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Jim Purtee

Inflatable gorillas win one in court

How often do you get to write a headline like that?

U.S. District Judge Vanessa Gilmore ruled that a 1993 city ordinance restricting the use of attention-getting devices, such as the giant balloons atop businesses, violated the due process and equal protection rights of Houston Balloons & Promotions. The judge awarded the company, owned by Jim Purtee and his wife, $927,841 plus an additional $187,000 in expenses and attorneys fees.

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After a two-day trial earlier this month, Gilmore ruled the Houston sign ordinance section about attention-getting devices such as banners, pennants, streamers, strobes, spotlights, whirligigs and inflatable objects violated the equal protection clause of the 14th Amendment.

She ruled that there was no rational relationship between the regulation that banned balloons with nongeneric messages, like logos, and the city’s stated goals of traffic safety and visual aesthetics, especially because balloons with generic messages like “Sale” were allowed.

The judge found that the city violated the due process clause because the regulations were vague and the city enforced them arbitrarily and inconsistently.

Houston City Attorney Arturo Michel said the city will take a close look at the judge’s decision to see if it should appeal the case.

Michel said he does not think this ruling has implications for the new ordinance that bans the balloons.

My advice would be to drop this case and pay the man, and to give a lot of thought as to the implications for the new ordinance, which Purtee says will be challenged in court. I’ve said before that on balance I think the new ordinance is a good thing, but I’m sufficiently ambivalent about it to feel that this development changes things. The risk of losing in court is now a lot higher, and unlike with billboards, I don’t think this is a big enough issue to take that risk. It won’t bother me if the city decides to cut its losses and not enforce the new ordinance.

As for Mr. Purtee, what else can one say but this?

Go ahead and crack open that cold one, dude. You’ve earned it.

Big balloon lawsuit

This ought to be interesting.

The constitutional right to have a giant inflatable gorilla in a bathing suit and sunglasses grabbing consumer attention from a Houston business rooftop is the key issue in a trial that began in federal court on Wednesday.

Jim Purtee, owner of Houston Balloons & Promotions, is in court arguing the city of Houston violated his business’ constitutional right to equal protection in the arbitrary enforcement of city sign codes and should pay him damages of $938,241.

Purtee is fighting the city over an ordinance it stopped enforcing when he filed this lawsuit in 2006. But Purtee complains his customers remained antsy and he and his army of 450 inflatable eagles, rabbits, pumpkins, Santas and hot-air-balloon-shaped balloons have suffered for it.

“It cost us a lot of money and it wasn’t incidental,” he said.

Giant balloons will be banned over Houston rooftops beginning in 2010. That ordinance isn’t the subject of this lawsuit, though Purtee said he and others will challenge that next.

This lawsuit is over a 1993 ordinance that said banners, pennants, streamers, strobes, spot lights, whirligigs and inflatable objects were posing traffic and aesthetic problems. That ordinance didn’t ban them, it limited the number of days they could be up and banned business-specific messages placed across them. But the law did not create funding for substantial enforcement of these so-called “attention-getting devices.”

I blogged about the new ordinance banning attention-getting devices, which was passed last November, here, here, and here. The first link notes that the original ordinance, which is the one at issue, limits the use of these devices to 104 days per year, but because the days did not have to be consecutive, and could occur over the 365 day calendar year, it was difficult to enforce. The intent of the new ordinance was to clean up all of that. I think on balance the new ordinance is a good thing, but I can see how the uneven enforcement of the old ordinance could be legally problematic. I suspect the new ordinance is on firmer ground than the one it replaced, but we’ll see. I look forward to hearing what the judge has to say.