Kitsap County, Respondent, v. Mattress Outlet et al., Petitioners, 153 Wash. 2d 506

¶1 Ireland, J. In this case we decide the constitutionality of Kitsap County’s sign ordinance, which the county claims prohibits Mattress Outlet’s use of raincoat-clad workers as offsite advertisements. We hold that Kitsap County Code (KCC) 17.445.070(C), as applied to the Mattress Outlet raincoats, is an unconstitutional restriction of commercial speech. Therefore, we reverse the superior court and affirm the district court’s dismissal of the citation issued to Mattress Outlet.

FACTS ¶2 Petitioner Mattress Outlet operates a retail mattress business in various locations throughout the state, including a store in Silverdale in Kitsap County. Kevin Gould is the director of operations and the general manager responsible for the Silverdale store. One of Mattress Outlet’s advertising techniques is to pay independent contractors, who wear yellow, oversized raincoats that display Mattress Outlet’s name, address, and telephone number, to stand on public sidewalks and wave to passersby.

Mattress Outlet also sells these raincoats at its stores, along with hats, t-shirts, and other items advertising Mattress Outlet. ¶3 On October 24, 2001, a Kitsap County Code Enforcement Officer cited Mattress Outlet for using raincoat-clad workers as “an offsite sign without a permit” in violation of KCC 17.445.010 and 17.445.070(C). Clerk’s Papers 49-52, 167. ¶4 The district court found the sign ordinances unconstitutionally vague and overbroad, as well as an unconstitutional restriction of free speech as applied to the raincoats used by Mattress Outlet. The district court dismissed the violations.

The county appealed to the superior court, which reversed, ruling that the statute was not vague, that Mattress Outlet did not have standing to challenge the ordinance on overbreadth grounds, and that the commercial speech restrictions were constitutional as applied to Mattress Outlet. We granted Mattress Outlet’s petition for review. DISCUSSION Standard of Review ¶5 Municipal ordinances are interpreted using the same rules as state statutes. City of Spokane v. Douglass, 115 Wn.2d 171, 177, 795 P.2d 693 (1990). The constitutionality of a statute or ordinance is an issue of law, which we review de novo.

Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 114, 937 P.2d 154, 943 P.2d 1358 (1997). A duly enacted ordinance is presumed constitutional, and the party challenging it must demonstrate that the ordinance is unconstitutional beyond a reasonable doubt. Douglass, 115 Wn.2d at 177. Analysis ¶6 Mattress Outlet contends that under the plain language of the sign code, its raincoats are not signs and, therefore, are not subject to the sign ordinance.

Kitsap County contends that the raincoats are signs, as described by the nonexclusive list of portable signs regulated by the sign ordinance. ¶7 The Kitsap County ordinance defines a “sign” as “a collection of letters, numbers or symbols which calls attention to a business, product, activity, person, or service.” KCC 17.110.675.

A “portable sign” is defined as one “which has no permanent attachment to a building or the ground which include [s], but is not limited to, A-frame, pole attachment, banners and reader board signs.” KCC 17.110.620. ¶8 The ordinance requires a permit to display a sign, unless the sign is exempt. KCC 17.445.010. Signs exempt from the regulations include traffic, street, and legal signs; “for sale” and “for rent” signs; official community festival signs; and certain signs placed by governmental agencies. KCC 17.445.080.

Other signs are conditionally exempt from the sign code, and they include “help wanted” signs, restroom signs, political campaign signs, garage and yard sale signs, subdivision signs, and certain A-board signs. KCC 17.445.090. The sign code prohibits offsite signs, providing that “[bjillboards and signs not directing attention to products or services available on the premises where the sign is situated are prohibited.” KCC 17.445.070(C). ¶9 Mattress Outlet argues that its raincoats are not signs under the ordinance.

Mattress Outlet contends that the raincoats are apparel, and apparel is not regulated by the ordinance. Mattress Outlet points out that the ordinance’s examples of portable signs are fixtures to land, such as an A-frame or a pole. Mattress Outlet argues that the ordinance does not speak to something worn by a person. Kitsap County, on the other hand, argues that the raincoats worn by Mattress Outlet workers are not ordinary clothing and “are nothing more than a sandwich board sign,” which falls within the nonexclusive list of portable signs such as A-frame and reader board signs.

Br. of Resp’t at 13-14. f 10 Mattress Outlet’s raincoats are not ordinary raincoats. The raincoats display the name, phone number, and address of Mattress Outlet in large letters and also state, “1/2 PRICE MATTRESS SALE.” The parties agree that the raincoats display a collection of letters and numbers, as referenced in the ordinance’s definition of a sign. Unlike ordinary raincoats, these coats are reinforced to make them rigid and flat for the purpose of making the message more readable.

The wearer appears to be encased in a large, rectangular structure rather than to be wearing a piece of clothing. ¶[11 The wearers are paid contractors hired for the sole purpose of displaying the Mattress Outlet advertising message. The parties agree that the raincoats are intended “to call attention to” the Mattress Outlet store, as stated in the ordinance’s definition of a “sign.” KCC 17.110.675. The Mattress Outlet raincoats are worn in all types of weather; their purpose is unrelated to the purpose of ordinary apparel.

Therefore, the raincoats fit within the definition of a sign. f 12 In addition, the raincoats reasonably fall within the definition of a portable sign, which includes A-frame and reader board signs. Even if the raincoats did not fall within the specific classifications of A-frames and reader board signs, the list of portable signs in the code is expressly nonexclusive. The raincoat is designed to function as a retail sign, and mounting the advertising message on the raincoat rather than cardboard or other material does not obscure the raincoat’s character as a sign.

Therefore, we hold that the Mattress Outlet raincoats are signs subject to the Kitsap County sign ordinance. ¶13 We now turn to the question of whether KCC 17.445.070(

C) is an unconstitutional restriction of commercial speech as applied to Mattress Outlet. The First Amendment to the federal constitution (applied to the states through the Fourteenth Amendment) provides that “[c]ongress shall make no law . . . abridging the freedom of speech.” U.S. Const, amend. I. Our state constitution protects freedom of speech, guaranteeing that “[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” Const., art. I § 5. ¶14 Commercial speech “propose [s] a commercial transaction.” United States, v. Edge Broad.

Co., 509 U.S. 418, 426, 113 S. Ct. 2696, 125 L. Ed. 2d 345 (1993). It is “expression related solely to the economic interests of the speaker and its audience.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 561, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980). The constitution allows greater governmental regulation of commercial speech because commercial speech has a great potential to mislead and because the state has an interest in protecting the public from those seeking to obtain the public’s money. Rubin v. Coors Brewing Co., 514 U.S. 476, 495, 115 S. Ct. 1585, 131 L.

Ed. 2d 532 (1995); Nat’l Fed’n of Retired Persons v. Ins. Comm’r, 120 Wn.2d 101, 114, 838 P.2d 680 (1992). ¶15 On the other hand, society has a strong interest in preserving the free flow of commercial information. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 763, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976). As the Court has stated, a “ ‘particular consumer’s interest in the free flow of commercial information . . . may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.’ ” Coors Brewing, 514 U.S. at 481-82 (quoting Va.

Citizens Consumer Council, 425 U.S. at 763). The “general rule is that the speaker and the audience, not the government, assess the value of the information presented.” Edenfield v. Fane, 507 U.S. 761, 767, 113 S. Ct. 1792, 123 L. Ed. 2d 543 (1993). ¶16 A four-part test determines whether commercial speech restrictions are permissible. Cent. Hudson, 447 U.S. 557.

The Central Hudson test asks (1) whether the speech concerns a lawful activity and is not misleading, (2) whether the government’s interest is substantial, (3) whether the restriction directly and materially serves the asserted interest, and (4) whether the restriction is no more extensive than necessary. The party seeking to uphold a restriction on commercial speech carries the burden of justifying it. Thompson v. W. States Med. Ctr., 535 U.S. 357, 122 S. Ct. 1497, 152 L. Ed. 2d 563 (2002); Ino Ino, 132 Wn.2d at 114. ¶17 In this case, the first two prongs are undisputed.

The parties agree that the first prong is satisfied because the mattress sales are lawful and the advertisement is not misleading. They also agree that the second prong is satisfied because the government has a substantial interest in traffic safety and aesthetics. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507-08, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981). ¶18 The parties disagree as to the third and fourth prongs of the Central Hudson test. These prongs involve a consideration of the “fit” between the legislature’s ends and the means chosen to accomplish those ends.

Edge, 509 U.S. at 427-28 (quoting Posadas de Puerto Rico Assocs. v. Tourism Co. of P.R., 478 U.S. 328, 341, 106 S. Ct. 2968, 92 L. Ed. 2d 266 (1986)). ¶19 The third prong of the Central Hudson test requires Kitsap County to show that the ordinance directly and materially serves the governmental interests. Edenfield, 507 U.S. at 767.

The burden is not satisfied by “ ‘mere speculation and conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.’ ” Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555, 121 S. Ct. 2404, 150 L. Ed. 2d 532 (2001) (quoting Greater New Orleans Broad. Ass’n v. United States, 527 U.S. 173, 188, 119 S. Ct. 1923, 144 L. Ed. 2d 161 (1999)). ¶20 Mattress Outlet contends this case is similar to City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 113 S.

Ct. 1505, 123 L. Ed. 2d 99 (1993), in which the Supreme Court struck down a municipal regulation as an unconstitutional restriction of commercial speech. Discovery Network published a free magazine advertising adult programs, which was dispensed from freestanding newsracks placed on city sidewalks. The city ordered Discovery Network to remove its newsracks pursuant to an ordinance prohibiting distribution of commercial handbills on the public right of way. Discovery Network, 507 U.S. at 415.

The city stated that the goal of the regulation was to ensure safe streets and regulate visual blight. ¶21 The Supreme Court held that the prohibition of commercial newsracks failed the third and fourth prongs of the Central Hudson test. The Court noted that of the approximately 1,500 to 2,000 newsracks in the city, only 62 were commercial racks prohibited by the regulation. Therefore, the regulation would have only a minimal effect on safety and aesthetics.

While the Court agreed with the city’s argument that an incremental decrease in newsracks provides an incremental increase in aesthetics and safety, that “paltry” benefit was not material enough to justify the restriction of Discovery Network’s First Amendment rights. A minimal benefit will not support a restriction of free speech. Discovery Network, 507 U.S. at 418. ¶22 The Court also held that the regulation was not a reasonable means of achieving its stated goals of safety and aesthetics. The commercial newsracks were no more harmful than the noncommercial newsracks.

The Court cautioned against placing too much importance on the distinction between commercial and noncommercial speech, especially where the distinction bears no relationship to the particular interests asserted by the city. Discovery Network, 507 U.S. at 424. Because commercial and noncommercial newsracks were equally offensive and dangerous, the commercial/noncommercial distinction was an impermissible basis upon which to regulate the newsracks. ¶23 Here, as in Discovery Network, prohibiting persons from wearing signage provides minimal, if any, benefit in aesthetics and safety.

There is no evidence that the Mattress Outlet signs have any effect on traffic safety. Mere speculation of harm will not justify a limitation on the exercise of the right of free speech. Consol. Edison Co. of N.Y., Inc. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 530,100 S. Ct. 2326, 65 L. Ed. 2d 319 (1980). As to the goal of aesthetics, the raincoat-clad workers are not the type of signage generally thought of as contributing to visual blight.

Accordingly, the county has failed to affirmatively establish that its restriction materially and directly advances its interests in aesthetics and safety. f 24 Likewise, we hold that the Kitsap County ordinance fails to meet the fourth prong of the Central Hudson test. Under the fourth prong, we examine the means chosen to accomplish the government’s asserted interest. Discovery Network, 507 U.S. at 416. The county bears the burden of establishing that the restrictions are no more extensive than necessary to serve the county’s stated interests. Cent. Hudson, 447 U.S. at 566.

The restriction must be narrowly tailored. Bd. of Trs. v. Fox, 492 U.S. 469, 480, 109 S. Ct. 3028, 106 L. Ed. 2d 388 (1989). While the means chosen need not be the least restrictive means, the fit between the means chosen and the interests asserted must be reasonable. Coors Brewing, 514 U.S. at 491. The existence of numerous and obvious less burdensome alternatives to the restriction on commercial speech is relevant in reviewing the reasonability of the means chosen.

Discovery Network, 507 U.S. at 416 n.12. ¶25 Here, as in Discovery Network, the Kitsap County ordinance distinguishes between commercial and noncommercial speech, although that distinction does not bear any relationship to the county’s interests in aesthetics and safety. Discovery Network, 507 U.S. at 424.

As in Discovery Network, the offsite signs prohibited by the Kitsap County ordinance are no more hazardous to traffic and no more aesthetically offensive than many of the signs exempted from the ordinance, such as farm produce signs, yard sale signs, and special event signs for holiday bazaars. ¶26 The Kitsap County sign ordinance reaches further than necessary to achieve goals of aesthetics and safety. The total ban of offsite advertising under KCC 17-.445.070(

C) does not reflect any method of narrowly tailoring the restriction to meet the specific goals of increased safety and aesthetics. For example, if traffic safety is a concern, then the county can designate restrictions as to place and time, without completely prohibiting this method of advertising. At a minimum, the county restrictions could be narrowly tailored so as to accommodate the reasonable use of apparel displays.

As it is, the offsite advertising ban burdens substantially more speech than is necessary to further the government’s interests. ¶27 The county has failed to demonstrate that a total ban of offsite advertising is a reasonable method of achieving its goals. Therefore, we hold that KCC 17.445.070(

C) fails the fourth prong of the Central Hudson test. ¶28 Accordingly, we hold that KCC 17.445.070(

C) of the Kitsap County sign ordinance is an unconstitutional restriction of free speech as applied to the commercial speech of Mattress Outlet. The decision of the superior court is reversed. The citation was against Mattress Outlet were properly dismissed by the district court. Sanders, Chambers, and Owens, JJ., concur. Justice Faith Ireland is serving as a justice pro tempore of the Supreme Court pursuant to Washington State Constitution

article TV,

section 2(a). Although our state constitution may be more protective of free speech than the federal constitution, it is unnecessary to consider a state constitutional analysis because KCC 17.445.070(

C) fails the minimum protection provided under the federal constitution. Because of our holding, it is unnecessary to decide Mattress Outlet’s arguments that the ordinance is unconstitutionally overbroad and vague.