Friday, November 19, 2010
WALLA WALLA -- The stage has been set for a full-blown legal battle between the city of Walla Walla and the owner of a downtown toy store who wants to save his giant octopus mural.
The question is no longer whether the mural painted on the storefront of Main Street retailer Inland Octopus is a sign, but whether the city's sign code is constitutional.
Superior Court Judge Donald W. Schacht on Thursday afternoon denied a preliminary injunction request by store owner Bob Catsiff, who filed a lawsuit against the city earlier this month.
But the lawsuit will continue, just as it would have had Schacht granted the injunction. The city, meanwhile, has agreed not to enforce removal of the octopus.
The lawsuit could take weeks, months or years -- considering possible appeals -- to conclude.
The dispute took a brief detour to City Hall on Thursday night for a session with Hearing Examiner Leland B. Kerr. At the session, both sides agreed -- by presenting a signed stipulation -- that the octopus painted above the entrance to Inland Octopus at 7 E. Main St. is a wall sign under the city's definition and because of its large size, is contrary to provisions of the sign code. The city had taken that position when it ordered Catsiff to remove the mural last month.
Catsiff now can add a direct appeal of that finding to his lawsuit, which claims the sign code infringes on his constitutional protections of free speech.
City Attorney Tim Donaldson said in an interview that enforcement against the mural will be stayed until the court process is concluded. That means the octopus can remain for the time being. And although daily fines of $100 against Catsiff and building owner Michael May will continue to accrue, they won't be collected unless the city ultimately wins the case. Catsiff and May also face $300 in one-time fines for failing to obtain permits related to the painting, as well as another on the back exterior of the building.
The giant octopus peeking over a castle wall was painted on the storefront by artist Aaron Randall during the Labor Day weekend. Catsiff did not obtain a permit for the painting of the mural or a permit to occupy the city right of way while it was painted. He also did not obtain a permit for an octopus and rainbow painting on the back of the building from earlier in the year. City Manager Nabiel Shawa said he learned of the mural when a resident called him at home over the holiday weekend. City officials returned from the long weekend that Tuesday to discover the mural complete.
Randall painted the mural free of charge for the toy store, but Catsiff estimates the replacement value at $3,000 to $5,000.
The city has maintained from the beginning that Catsiff's octopus mural is a sign. Until this week, Catsiff had claimed the mural is not a sign, but a piece of artwork. His attorney, Michael de Grasse, addressed the diverging views at Thursday's court hearing, citing "a basic analytical error perhaps committed by both sides."
"People seem to be worried whether the mural is a sign," de Grasse said. "We concede it's a sign. We have a sign."
That's because, according to de Grasse, the city's definition is so broad and inclusive that even a newspaper can be considered a sign. And the mural -- or sign -- violates certain size provisions of the code, de Grasse acknowledged.
But the ordinance, in turn, violates Catsiff's free speech rights guaranteed under the federal and state constitutions, according to de Grasse.
"That mural is protected expression," de Grasse said. "It is a form of free speech."
De Grasse argued in court Thursday afternoon that an injunction should be granted to stop enforcement of the code until Schacht reviews the merits of the suit's claims of constitutional violations. Fines of $100 a day have been accruing -- although not levied -- against Catsiff since Oct. 14 and the city could eventually paint over the sign at his expense.
But in denying Catsiff's request for a preliminary injunction, Schacht agreed with City Attorney Tim Donaldson that Catsiff hadn't at that point exhausted his administrative remedies because Thursday's night's session with the hearing examiner hadn't yet occurred.
Donaldson maintained an injunction would be premature and the case doesn't meet the legal requirements for such an action. He told Schacht the city is not trying to deprive Catsiff of any remedy. "All we're asking is Mr. Catsiff simply be required to follow the (administrative) process," Donaldson said.
But de Grasse argued that all legal requirements for a preliminary injunction were met, and since Catsiff now admits his sign violates the municipal code's size restrictions, the administrative process could not resolve the issue. De Grasse added that the dispute needs to be adjudicated in a court of law.
"The issue is a constitutional one," he said.
With both sides agreeing the painting is a sign, the city's hearing examiner had little to resolve Thursday evening.
The focus of that 7 p.m. hearing was originally expected to be arguments over whether the painting violated the sign code. Instead attorneys presented the signed stipulation that resulted from the afternoon hearing. The hearing examiner meeting, attended by about 10 people -- attorneys, city officials and just three members of the general public -- ended after less than 15 minutes.Terry McConn can be reached at firstname.lastname@example.org or 526-8319. Vicki Hillhouse can be reached at email@example.com or 526-8321.