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Friday, January 28, 2005 - Page updated at 12:00 A.M.

Court finds big raincoats a fitting way to advertise

Seattle Times staff reporter

Bulletin: It is now legal to walk the streets of Washington wearing oversized raincoats emblazoned with ads.

So said the Washington Supreme Court, which handed down a decision yesterday in the case of a retail mattress company that advertised by paying people to wear logo-bearing raincoats.

While the subject matter of the case — whether Kitsap County had the right to ban such advertising — is far from life-or-death, the court was in such disagreement over the issue that it issued four separate opinions, ultimately deciding 5-4 in the raincoats' favor.

Welcome to the strange and convoluted world of sign regulations, where freedom of speech collides with the dreaded "visual blight," where clever advertising bumps up against traffic-safety concerns, where it's OK to announce an upcoming "Holiday Festival," but it could mean hundreds of dollars in fines to proclaim "Shop at Joe's."

The case started in 2001, when the Silverdale Mattress Outlet, which no longer is in business, began advertising by employing people to wave at passing motorists while wearing humongous raincoats emblazoned with the company's address and phone number.

Kitsap County slapped Mattress Outlet with about $1,400 in citations for violating an ordinance banning off-premises signs.

But Mattress Outlet fought back. It's a tricky matter regulating signs. That's because the First Amendment guarantees freedom of speech — whether the speech is on billboards or elsewhere.

Courts have previously ruled, however, that government may regulate the placement of advertising if it causes "visual blight" or a traffic hazard. That's what Kitsap County argued: The raincoats distracted motorists, which made them a hazard — not to mention unsightly.

The Mattress Outlet countered that the raincoats weren't really signs at all — they were clothing. The county didn't buy it.

"They're not designed to function as apparel," said Philip Bacus, the deputy prosecutor who handled the case. "Apparel keeps you warm, dry, comfortable. I would think they'd have to waddle when they wear these things."

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But Mattress Outlet had another argument: The county had exempted certain kinds of off-premises signs from the ban, such as ads for government-sanctioned festivals and yard-sale and political signs. What makes an ad for a yard sale different from one for a mattress sale, the company asked. Banning one while allowing the other is unlawful, it argued.

And besides, how can government regulate these particular yellow raincoats, but not T-shirts advertising The Gap or the Mariners? That line of argument prompted Justice Tom Chambers to worry about his mother, who wears logo sweat shirts and baseball caps that could be considered signs under the county's definition. Her shopping bag "boldly advertising the name of her favorite department store is even more suspect," he wrote in a concurring opinion. The majority didn't touch on the shopping habits of Chambers' mother. However, it ruled that Kitsap County's sign ordinance was an unconstitutional restriction of commercial speech.

Phil Talmadge, the mattress company's lawyer and a former Supreme Court justice, said the decision has broad implications statewide because many jurisdictions have similar ordinances.

Meanwhile, Bacus said they're busy trying to understand the decision's full implication. They're wondering, in particular, what it means for a tax-preparing service that's had a guy out front dressed as Uncle Sam and holding a sign advertising the business.

Copyright © 2005 The Seattle Times Company

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