Lynnwood business fights ban on temporary signs

LYNNWOOD – A business here is fighting for free speech and survival, its owner says.

But the city says it’s protecting the safety of people who drive and walk on its streets.

The Futon Factory, at 196th Street SW and 48th Avenue W., has filed an appeal in Snohomish County Superior Court of a notice by the city that the business has repeatedly violated Lynnwood’s sign ordinance.

Beginning in April 2003, the Futon Factory began putting out balloons and hiring temporary workers to carry signs up 196th to 44th Avenue W. advertising the business.

Both the balloons and the signs violate city ordinances.

Portable signs – other than those for real estate sales and political campaigns – must be within 8 feet of a business, according to the city’s sign code, and balloons are prohibited for advertising altogether.

In a civil action filed this week, the Futon Factory claims it is being deprived of its First Amendment right to free speech. Allowing portable signs for political campaigns and real estate sales, but not for other purposes, amounts to illegal governmental favoritism, the action says.

In filing its appeal, the Futon Factory enlisted the legal help of the Seattle office of the Institute for Justice, a nationwide Libertarian organization that specializes in defending the rights of small-business owners.

“If someone doesn’t make a stand, I believe we’re all going to be the losers,” Futon Factory co-owner John DeRaspe said. The appeal asks that the violation be dismissed, that the city be prevented from enforcing the law against the business, and that the Futon Factory be awarded appeal costs and fees.

On several occasions in 2003, the city warned the Futon Factory that it was running afoul of the law. But the business continued using the portable signs. Sales were slumping, and having the signs displayed on busy 44th Avenue W. boosted sales, DeRaspe said. “We had a real positive response.”

In February, the city sent notice to the business that it would start levying fines, beginning at $100 the first day, $200 the second and on up to $500 for the fifth day and each day thereafter.

The business filed an appeal with the city in March. The city hearing examiner dismissed the appeal in separate hearings in April and earlier this month, ruling that deciding on the constitutionality of a matter was beyond the purview of the office.

Lynnwood city attorney Greg Rubstello said the portable signs can block walkways and are designed to grab the attention of motorists, causing a potential safety hazard. The signs are also regulated for aesthetic reasons, he said. Rubstello said political signs are exempt during campaign season for free-speech reasons, and real-estate signs for “a homeowner who’s trying to sell a house.”

DeRaspe disputed the notion that only temporary signs cause a distraction and therefore a safety hazard. “You could say the same thing about any sign in the city,” he said.

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