Catsiff v. McCarty

Decision Date12 April 2012
Docket NumberNo. 30422–1–III.,30422–1–III.
Citation274 P.3d 1063
CourtWashington Court of Appeals
PartiesRobert CATSIFF, Appellant, v. Tim McCARTY and City of Walla Walla, Respondent.

OPINION TEXT STARTS HERE

Michael Edward De Grasse, Attorney at Law, Walla Walla, WA, for Appellant.

Timothy J. Donaldson, Walla Walla City Attorney, Walla Walla, WA, for Respondent.

BROWN, J.

¶ 1 Robert Catsiff appeals a superior court decision affirming a Walla Walla administrative order mainly deciding a sign he painted on his store violated size and height restrictions of the city's sign code. We reject Mr. Catsiff's federal and state free speech contentions, deny his attorney fee request, and affirm.

FACTS

¶ 2 Mr. Catsiff owns and operates the Inland Octopus toy store and gift shop in Walla Walla. In 1991, the city enacted a sign ordinance as part of a coordinated downtown revitalization plan to further central business district (CBD) renovation and to preserve and restore its historic resources. Consistent with city visual-quality policies designed to improve the appearance of the downtown area, the city recognized [p]articular attention needs to be given to signing in the [CBD].” Clerk's Papers (CP) at 360. On March 27, 1991, the city council resolved to form a local improvement district to finance the installation of downtown revitalization improvements and passed a complementary zoning ordinance at its next meeting including the city's sign code.

¶ 3 The 1991 sign code's stated purpose was to improve the city's visual quality by accommodating and promoting sign placement “consistent with the character and intent of the zoning district; proper sign maintenance; elimination of visual clutter; and creative and innovative sign design” Walla Walla Municipal Code (WWMC) § 20.204.010. The city adopted wall sign size and height requirements for Walla Walla's CBD. Wall signs are limited to 25 percent of a wall area, and no combination of sign areas may exceed 150 square feet per street frontage. WWMC § 20.204.250(A)(4), (5). In addition, signs cannot extend higher than 30 feet above grade. WWMC § 20.204.250(A)(8).

¶ 4 In 2002, the city designated a “downtown area” as a subset of its CBD. It then adopted design standards in 2003 that contained signage requirements applying to the downtown area. Similar to the sign code, the downtown design standards disallow wall signs higher than 30 feet above grade, provide that wall signs shall not exceed 25 percent of a wall area, and limit sign areas to 150 square feet per street frontage. WWMC § 20.178.110.

¶ 5 In March 2004, Mr. Catsiff opened the Inland Octopus toy store at 220 E. Main Street. He applied for, and was issued, a sign permit. In February 2010, desiring to change business locations, Mr. Catsiff leased 7 E. Main Street within the city's CBD and downtown area. He told the owner he wanted to paint a wall sign depicting a hiding octopus on the exterior back wall of his store. On March 18, Mr. Catsiff submitted a business registration application to the city for the 7 E. Main Street location. The application contained a notification above the signature line that Mr. Catsiff, “will need to obtain a sign permit prior to construction or installation of any exterior sign.” CP at 644.

¶ 6 In late April 2010, Mr. Catsiff painted a wall sign depicting an octopus hiding behind a rainbow over the rear entrance of the store. He did not apply for a permit before painting it. In September Mr. Catsiff painted on the store front an octopus hiding behind several buildings with a rainbow above the buildings; Mr. Catsiff concedes the front sign exceeds the city's height and width limits.

¶ 7 Acting Walla Walla City Manager, Tim McCarty, issued a notice of civil violation to Mr. Catsiff and his landlord regarding both signs on October 14, 2010 for violating the city's sign code permitting requirements, and the sign size and height requirements of the sign code and the downtown design standards. At the violation hearing, Mr. Catsiff stipulated factually to his violations, but asserted the regulations were unconstitutional. The city's hearing examiner concluded he violated the WWMC by failing to get sign permits before painting his back and front wall signs and by failing to get a right-of-way permit before using the public sidewalk as a staging area to paint the front sign. The hearing examiner further ruled the front sign constituted a continuing violation of the size and height requirements of both the sign code and the downtown design standards.

¶ 8 Mr. Catsiff appealed to the superior court, requesting declaratory and injunctive relief. The court issued a letter decision on April 28, 2010 rejecting Mr. Catsiff's constitutional claims and affirming the hearing examiner's decision. On June 1, 2010, the court entered findings of fact and conclusions of law and judgment in favor of the city. The Washington Supreme Court declined Mr. Catsiff's petition for direct review, and transferred the matter to this court.

ANALYSIS

¶ 9 The issue is whether the trial court erred in deciding the city's sign-and-height code restrictions did not violate Mr. Catsiff's free speech rights under the state and federal constitutions.

¶ 10 The superior court reviews the administrative record before the body or officer in the local jurisdiction authorized to make the final determination. Citizens to Preserve Pioneer Park v. Mercer Island, 106 Wash.App. 461, 470, 24 P.3d 1079 (2001). We stand in the same position as the superior court and review the record before the hearing examiner. Thornton Creek Legal Def. Fund v. City of Seattle, 113 Wash.App. 34, 47, 52 P.3d 522 (2002). We review the findings of fact under the substantial evidence standard and conclusions of law de novo. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wash.2d 169, 176, 4 P.3d 123 (2000).

¶ 11 First Amendment protections apply equally to statutes and local ordinances.” State v. Immelt, 173 Wash.2d 1, 3, 267 P.3d 305 (2011). Article I, section 5 of the Washington Constitution also provides free speech protection. Kitsap County v. Mattress Outlet, 153 Wash.2d 506, 511, 104 P.3d 1280 (2005). The interpretation of constitutional provisions and legislative enactments, including municipal ordinances, presents a question of law that we review de novo. City of Spokane v. Rothwell, 166 Wash.2d 872, 876, 215 P.3d 162 (2009). Generally, we presume legislative enactments are constitutional. State v. Bahl, 164 Wash.2d 739, 753, 193 P.3d 678 (2008).

¶ 12 Initially, Mr. Catsiff suggests court decision inconsistencies between the principle that a party challenging an ordinance must demonstrate its unconstitutionality beyond a reasonable doubt and the principle that the government bears the burden of justifying restrictions on commercial speech by generally showing they are narrowly tailored to serve a substantial state interest. But in Mattress Outlet, for instance, our Supreme Court had no difficulty applying these principles. Mattress Outlet, 153 Wash.2d at 512, 104 P.3d 1280. And, the Immelt court noted a party challenging an ordinance bears the burden of proving its unconstitutionality, and in the free speech context the State usually bears the burden of justifying a restriction on speech. Immelt, 173 Wash.2d at 3, 267 P.3d 305. We turn now to Mr. Catsiff's five contentions.

¶ 13 First, Mr. Catsiff incorrectly contends the octopus signs on his business were not commercial speech. Two nondefinitive formulations distinguish between commercial and noncommercial speech. The Supreme Court has said commercial speech is “expression related solely to the economic interests of the speaker and its audience.” Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 561, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Another formulation is “speech proposing a commercial transaction.” Id. at 562, 100 S.Ct. 2343. The octopus signs meet both formulations.

¶ 14 Mr. Catsiff named his toy store “Inland Octopus.” He designed a store logo depicting an octopus hiding behind inland buildings. He displayed images of his Inland Octopus logo and rainbows on his original storefront and in advertising for his store. Mr. Catsiff admits he used an octopus on his storefront to convey [t]hat its a wonderful experience to come into my store and a wonderful place to buy toys.” Ex. 15, at 29. Since the purpose of the sign was economic, the sign would be characterized as commercial speech under Central Hudson.

¶ 15 Second, because the city restricted commercial speech, we must decide whether, as Mr. Catsiff contends, the city met its burden of justifying the restrictions because they were narrowly tailored to protect the city's substantial interest in traffic safety and aesthetics. He argues a conflict exists between Collier v. City of Tacoma, 121 Wash.2d 737, 854 P.2d 1046 (1993) and State v. Lotze, 92 Wash.2d 52, 593 P.2d 811 (1979), over whether traffic safety and aesthetic values are compelling state interests.

¶ 16 The Lotze court held such interests are compelling in the context of regulating political signs visible from highways. Lotze, 92 Wash.2d at 59, 593 P.2d 811. But the Collier court held a city ordinance restricting the length of time political signs may be displayed was not adequately justified by the city's interests in traffic safety and aesthetics. In so holding the court criticized Lotze and “depart[ed] from it “to the extent it implie[d] that aesthetics and traffic safety are compelling interests justifying greater restrictions on political speech than on commercial speech.” Collier, 121 Wash.2d at 756, 854 P.2d 1046; see also Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 513 n. 18, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (criticizing and overruling its prior summary approval of Lotze for not giving adequate weight to the distinction between commercial and noncommercial speech and to the higher level of protection afforded the latter). As can be seen, the Collier court departed from...

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