Posted by: Patricia Salkin | June 27, 2012

WA Appeals Court Upholds Restriction on Commercial Sign Sizes Designed to Address Aesthetics and Traffic Control

Catsiff opened an Octopus toy store on E. Main Street and painted a wall sign depicting an octopus hiding behind a rainbow over the rear entrance and a similar design on the store front, neither of which he obtained a permit for. The sign violated city’s regulations for height and width limits. Catsiff was issued a notice of violation. Although he concedes the violation, he claims the regulations were unconstitutional as a violation of his free speech rights.

The WA Court of Appeals determined that the restriction was commercial in nature since the purposes of Catsiff’s signs were economic and involved speech that proposed a commercial transaction. As such, the burden of justifying the restrictions is placed upon the government to show they are narrowly tailored to serve a substantial state interest.

While signs are a form of expression protected by the free speech clause, they pose problems that are subject to municipalities’ police powers. Based upon prior case law developed by the U.S. Supreme Court  in City of Ladue v. Gilleo and by the State supreme court in Collier v. City of Tacoma, restrictions upon the noncommunicative aspects of signs must be: 1)content neutral; 2) reasonable; and 3)supported by a legitimate regulatory interest.

Regarding content neutrality, restrictions are content neutral if they do not regulate on the basis of viewpoint. Here, the sign size and height restrictions do not limit what an owner may say or what a sign may depict.

Regarding reasonableness, the means chosen need to not be the least restrictive means, but must be reasonable. Case law has determined that there must be a reasonable fit between the legislature’s ends and the means chosen to accomplish those ends. The city carefully considered its size and height restrictions; a building improvement guide was commissioned and taken into consideration.

The final aspect, having a legitimate regulatory interest requires a compelling interest for regulation. Previously, the court in State v. Lotze found that aesthetics and traffic safety are compelling state interests. Catsiff argues that the sign code purpose section nowhere uses the words “aesthetics” or “traffic safety.” Despite the lack of the express language, the Court of Appeals determined that by discussing “visual clutter” in the purpose as well as providing legislative history supporting traffic safety concerns, the sign code manifests a legitimate interest.

Catsiff’s additional claim is that the ordinances are unconstitutionally vague since the term “sign” is itself vague. However, this claim was unsupported since the sign code specifically defines a “wall sign” in detail, listing its characteristics, and no danger exists that a citizen could mistake other surfaces as being regulated by the code.

Catsiff also contended that the size and height restrictions are constitutionally overbroad, because they reach noncommercial speech as well as commercial. In this instance, the ordinances regulate advertising to protect aesthetics and promote traffic safety, therefore they do not reach constitutionally protected speech.

Finally, Catsiff’s claim that the sign-permit requirement is an invidious prior restraint is not at issue since he did not exhaust his administrative remedies by taking the administrative appeal option he was provided with.

Catsiff v. McCarty, 274 P.3d 1063 (WA Ct of App 4/12/2012)

The opinion can be accessed at:  http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=304221MAJ


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