Octopus gets day in Walla Walla court

A decision is expected soon in the case of the toy store octopus.

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WALLA WALLA -- It's either a case of Walla Walla city government overreaching its authority or a downtown toy store owner who doesn't want to follow regulations.

A Walla Walla County Superior Court judge now will decide after he heard legal arguments Tuesday afternoon in the lawsuit by Bob Catsiff, who is trying to save -- on constitutional grounds -- the giant, purple octopus mural painted on the storefront he leases.

Judge Donald W. Schacht didn't rule at the hearing, but promised a written decision soon.

Catsiff, owner of Inland Octopus, is asking Schacht to overturn a Walla Walla hearing examiner's decision in November. That decision affirmed fines the city is assessing on Catsiff for violating the sign code.

The city ordinance provides that on downtown properties, combined sign areas cannot exceed 150 square feet or 25 percent of a wall area. The height restriction is 30 feet.

Catsiff has agreed that the octopus on his store at 7 E. Main St. is a wall sign by the city's definition and contrary to the city code because of its large size and height. The city wants the painting removed, but Catsiff claims his mural is a type of constitutionally protected artistic expression and therefore, the sign code imposing restrictions on the painting violates his right of free speech under the U.S. Constitution.

Catsiff's attorney, Michael de Grasse, told Schacht at Tuesday's hearing that Catsiff's business "is not simply and purely a commercial operation," likening it more to an art shop than a service station.

Therefore, de Grasse argued, it is not a commercial sign but "is art, pure and simple." Its purpose is "to engage the imagination and support of his customers and other members of the community," de Grasse added.

He also pointed out there are other mural-like displays downtown that don't meet restrictions of the code.

The city, however, maintains Catsiff is not being unconstitutionally restrained, as higher state and federal courts previously have ruled in similar disputes.

City attorney Tim Donaldson told Schacht, "The city is seeking only to enforce sign size and height requirements that have been in place for 20 years."

Donaldson added that the city is enforcing its sign code even though it may not have caught every violator.

Catsiff knowingly violated the ordinance, Donaldson said. "It's a major violation. Of course, the city's going after it."

Since Oct. 14, Catsiff has continued to amass daily fines of $100 -- nearly $19,000 at this point -- which will be collected if the city wins the case. He also would then be required to remove the mural.

It was painted on the storefront during last year's Labor Day weekend. Catsiff didn't obtain a permit to have it painted or a permit to occupy the city right of way in the process. He also didn't obtain a permit for an octopus and rainbow painting on the back of the building earlier in the year. He has been assessed $300 in one-time fines for those violations.

De Grasse is asking Schacht to declare all related ordinances void as unlawful infringements of Catsiff's First-Amendment right and that the city be enjoined from enforcing them.

Donaldson wants Schacht to deny the appeal and rule the ordinances are valid.

Tuesday's hearing ran about an hour-and-a-half and the attorneys' arguments didn't include all of their positions spelled out in previously submitted briefs that cite higher court decisions in this state and other jurisdictions.

For instance, de Grasse wrote that the city's ordinance unlawfully regulates commercial speech, gives unbridled discretion to officials as to whether to grant sign permits, and are overbroad and too vague to meet constitutional requirements.

Among a litany of alleged constitutional deficiencies in the sign code, de Grasse claims the city's restrictions on artistic expression aren't allowed because they advance no substantial governmental interest and similar murals have been placed downtown without any permits.

In addition, he pointed out that permits aren't required for barber poles, historical site plaques, some political signs, certain flags and real estate signs. Therefore, he believes the ordinance places an unconstitutional ban based on content.

He added that previous court opinions on which the city relies aren't specific to this case in that they relate to regulations that can be imposed on billboards, off-premises signs and those on public property.

Donaldson wrote in his brief that decisions cited by de Grasse are old, out-of-context and his arguments have "more tentacles than an octopus."

Donaldson maintains the Washington state Supreme Court has already ruled that aesthetics and traffic safety are sufficient reasons to justify sign size restrictions. And the city's sign code furthers a substantial governmental interest -- economic development of downtown, which was dying in the 1980s. What resulted was a carefully envisioned and implemented downtown redevelopment plan that capitalized on the district's historic character, Donaldson added.

The size restrictions don't ban speech at any location, he wrote. "The City Code does not ban Mr. Catsiff from painting a hiding octopus above the entrances to his store. The one that he painted on the front of his store is just too big."

Terry McConn can be reached at terrymcconn@wwub.com or 526-8319.

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