Kitsap County v. Mattress Outlet , 153 Wash. 2d 506 ( 2005 )

¶29 (concurring in result) — I concur in the result the majority reaches. I write separately simply to express my view that it is unnecessary for us to reach the constitutional issue that the majority and dissent discuss at length. I reach this conclusion because it is apparent from the record that Mattress Outlet’s raincoats do not fall within the definition of a “portable sign.” Such a sign is defined in Kitsap County’s ordinance 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.” Kitsap County Code (KCC) 17.110.620. While I readily concede that the raincoats in question are not permanently attached to any building or the ground, they do not resemble any of the specific items listed in the ordinance. This is significant because there is a well known canon of construction known as “ejusdem generis,” which provides that when a general term is in sequence with specific terms, the general term is restricted to items similar to the specific terms.

Alexander, C.J.

¶30 While one could posit that I am engaging too narrow a reading of Kitsap County’s sign ordinance, I would respond that the majority’s broad interpretation of the term “portable sign” is problematic. This is so because it is common today to see persons wearing all manner of clothing that conspicuously contains the name or trademark of the manufacturer or that of another business enterprise such as a sporting enterprise—a NASCAR³ driver’s uniform comes readily to mind. While this type of clothing may impart a more subtle commercial message than do Mattress Outlet’s raincoats, the effect is the same and that is to call “attention to a business, product, activity, person or service.” KCC 17.110.675. I believe that we can reasonably assume from the wording of the Kitsap County ordinance that it was not intended to sweep within its reach so much commonly worn apparel.

¶31 In sum, because the Mattress Outlet raincoats are not signs under the ordinance in question, the wearing of them is not unlawful.

3 National Association for Stock Car Auto Racing.