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BREAKING NEWS — Judge Dismisses Dog Mural Lawsuit

by ARLnow.com | February 11, 2011 at 4:08 pm | 3,840 views | 90 Comments

(Updated at 4:40 p.m.) The lawsuit over the legality of a dog mural has been dismissed by a federal judge.

Kim Houghton, the owner of Wag More Dogs (2606 S. Oxford Street), sued Arlington County after zoning officials declared her store’s mural of dogs, bones and paw prints — which faces the Shirlington dog park — to be a form of commercial speech and in violation of the county’s sign ordinance. U.S. District Court Judge Leonie Brinkema dismissed the lawsuit today “with prejudice.”

Undeterred, Houghton vowed to keep fighting.

“We’re going to appeal,” she said when reached by phone at her store this afternoon. “I am disappointed, but it’s not over yet.”

In the suit, Houghton said her mural was a piece of art that was beautifying the park. She objected to the county’s suggestion that the mural could be preserved if she added the words “Welcome to Shirlington Park’s Community Canine Area.”

“I think that once against the county is just seeking to take my mural and make it into an informational sign for themselves,” she said this afternoon. “I’m hopeful that we’ll win on appeal… let the games begin, let’s see what happens.”

More from the county press release:

ARLINGTON, Va. – United States District Court Judge Leonie M. Brinkema, for Virginia’s Eastern District, today dismissed with prejudice the lawsuit brought by Wag More Dogs, an Arlington dog day care and pet grooming business, and its owner, challenging Arlington County’s sign ordinance.

“We are pleased that the judge agreed with Arlington that this issue was about advertising, and that she found the County’s sign ordinance to be fair and reasonable,” said Asst. County Attorney Carol McCoskrie.

Wag More Dogs owner Kim Houghton had filed suit against the County late last year, alleging that it had violated her First Amendment right of free speech in finding that a mural she had commissioned for an outside wall of her business violated Arlington’s sign ordinance.

Houghton had sought an injunction against the County, seeking to have the Court order the County to let Houghton remove a tarp the County had required she place over the mural.

The County argued that Houghton’s case had no merit because the County has the authority to regulate commercial signs and that Houghton had not proven that the sign ordinance discriminates based on content.

In issuing her ruling, Judge Brinkema said that the mural is a “classic form of branding and advertising,” and meets the definition of a sign. The judge found that the County’s sign ordinance is a valid, content-neutral restriction on the size of signs in the M-1 zoning district, even noting that by saying the ordinance was content-based, Wag More Dogs was “barking up the wrong tree.”

Judge Brinkema said that “even taking all of the facts alleged by plaintiff as true, plaintiff’s Complaint states no plausible First Amendment violation under governing precedent.” She dismissed the case “with prejudice,” meaning that the owner of Wag More Dogs will need to appeal the ruling if she wishes to further pursue its claim.

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  • Me

    People and their dogs . . . so annoying!

  • http://www.amberwilkie.com Amber

    ::sigh:: This poor lady thought she was doing something nice for her community. I *like* that mural. This is the kind of red tape crap that makes me mad.

    • Captain Obvious

      The woman declined to add words that would have made it clear that it was about beautification of the park and not advertising for her store, and then sued. I’m not sure I’d impute 100% altruism here.

      • Captain Obvious

        Also, who does something like that without running it by the powers that be first? She should know better.

        It’s a neat mural. I hope she adds the words the County requested and uncovers it.

        • Don

          Yes, what insanity on her part – she didn’t run by the county whether or not she could paint art on her building.

          I’m perfectly okay with regulating commercial speech but if the mural would be okay with added verbiage turning it into an advertisement for the dog park then it must not be effective advertisement for her business as-is.

          I’m also a little disappointed that the judge claimed this is a content-neutral regulation of speech (necessary for restrictions to be constitutional) – if they’ll allow it if there’s COMPULSORY speech added then it’s NOT content-neutral.

          • Just the Facts

            Wow, Don, you get quite a bit wrong in your post.

            Whether or not the mural is an “effective” advertisement isn’t the question. The question is whether it is commercial speech or not. The judge found that it was and, therefore, could be regulated by the County.

            You also appear to misunderstand the concept of content-neutral regulations. If, for example, the County allowed commercial murals of cats but not dogs, that would NOT be a content-neutral regulation. The addition of words promoting a public park would change the mural from commercial speech to public speech.

            I’m also a little disappointed that the judge claimed this is a content-neutral regulation of speech (necessary for restrictions to be constitutional) – if they’ll allow it if there’s COMPULSORY speech added then it’s NOT content-neutral.

        • WMD

          I must submit an architectural drawing approved by the county. The required wording is “Welcome to Shirlington Parks Community Canine Area” in 4 foot high lettering, in two lines, required by the county, and approved every step of the way by the County. It is no small task painting precision lettering on concrete block, 20 feet above the ground. The cost, $7000. I spent $4,000 on the mural. The lettering makes it an Informational SIGN for the County. Care to make a donation?

          • Al

            You should have checked to see if your advertising was ok before you had it painted – and stop claiming it’s going to cost you $7000, you could easily find some art students from MaryMount to help you out. It’s getting old that you’re acting like such a victim.

      • Overgrown Bush

        The required words were an advertisement for the Arlington-owned dog park! How ironic….

      • G

        I agree captain. I don’t see the harm in writing what the county wants. Seemed like a good compromise. I’m guessing the business owner doesn’t want to pay for it herself though… the cost of legal expenses paid by the non-profit and the county would have easily covered this cost and saved everyone a lot of time and $$.

        • Sam

          Nobody says the words have to look like professional artwork – I’ll bet some volunteers could just pick up a paintbrush and buy a couple of buckets of paint at Home Depot and get the words done in less than an hour.

          • WMD

            Not true. I must submit an architectural drawing to be approved by the county. The required wording is “Welcome to Shirlington Parks Community Canine Area” in 4 foot high lettering, in two lines, required by the county, and approved every step of the way by the County. It is no small task painting precision lettering on concrete block, 20 feet above the ground. The cost, $7000.

          • Sam

            Again with the $7000. Maybe you should be paying attention to the dogs you have in your care instead of posting on this board. Really makes one wonder what’s more important to you; dogs or publicity.

      • G

        Also, it wasn’t fair that Wag More Dogs could paint this mural with dogs, while muddy mutt painted ugly graffiti on their building because they weren’t allowed to paint dogs… Though I think anything else would have been better than graffiti.

      • BoredHouseWife

        Who cares what the reasons were. The mural looks nice, it’s next to a dog park, Even if she used her “logo” dog. I know, I know, you can’t let one have a victory because they all start to snap their teeth. I just feel like the whole shabang a waste of time.

      • MomOfTeens

        The county granted her permission to put up a mural, she hired and paid an artist to do it, thinking, gee, maybe pictures of dogs on a wall that faces a dog park would be a good idea…and then they made her cover it up. I really don’t see how this is necessarily going to drive traffic into her store if there is nothing on there that has the name of her business. If I walked into that park with a dog, knowing it was a dog park, and saw mural, I would think it was relating to the park, not a business.

        • Sam

          She didn’t get permission to do anything. She just did it and she herself said she decided to “ask for forgiveness instead of permission”.. Now she sues. And has lost one round for obvious reasons. It’s an enlarged logo for her business.

      • WMD

        I did not decline, I cannot afford the $7000 cost to paint the County required wording “Welcome to Shirlington Parks Community Canine Area, in the County required height of 4 feet high, in two lines no less, on top of the mural, thus making it an informational SIGN for the county. It is no small task to paint precision lettering on concrete block, 20 feet above the ground. Graffiti is not an option here.

        • Dog Lover

          Paint over the entire wall in a solid color. Much cheaper.

          • Frank

            Funny; but certainly would do the trick

  • Rick

    the dems win again!

    • Sunny617

      Whatever, dude. I’m a Dem, and I was rooting in favor of the mural.

      • Rick

        I’m a republican and wanted the mural too. It’s stupid that a law dictates whether a painting of ANYTHING looks better than a cinder block wall within eyeshot of a park. Fair/Shirlington suffers because of five people who want to turn everything into an urban village. I hope the owner paints a banner depicting hell and gets to leave it up. I would actually help

        • http://arlingtondirt.blogspot.com/ TGEoA

          I just hope a rabid dog bites Zimmerman.

          • FedUp

            I hope a rabid dog bites the zoning administrator.

      • mehoo

        Me too.

    • 57 chevy

      what does Democrat mean anymore?

  • Overgrown Bush

    Too bad. It would have brightened up the area a bit. I was pulling for her.

  • GeorgeOrwell

    good win for the government. seriously.
    and now let’s talk about money arlington has to spend on frivilous lawsuits AGAINST the County. this was a no-brainer from the start.
    sorry so much time and energy was wasted on something that wasn’t going to win.
    appeals won’t win either.
    paint the words and make it a true community thing.

  • Arlwhenever

    The County allows signs with Cap player images on the side of the Ballston Mall garage — they’ve been playing like dogs much of this season.

    • GeorgeOrwell

      Chapter 10: “ALL ANIMALS ARE EQUAL, BUT SOME ARE MORE EQUAL THAN OTHERS”

      don’t people read my stuff anymore??

      • Arlwhenever

        Ah yes, since the Wag More Dogs proprietess is not schooled in your writings she will next construct a windmill — Fisette and Zimmerman will maneuver to take credit, and then catching themselves, tear down the unauthorized contraption. God forbid that anyone should get ahead of the County Energy Plan.

    • othersideoftheriver

      And why is the big American flag on the side of the insurance company on Washington (near Solly Motors) ok?

      • Rick

        because its the american flag…

    • Caps

      The signs on the Ballston garage were part of the site plan proposal that was approved.

      • Arlwhenever

        Which is the essence of content based discrimination — some signs are approved others are not.

        • America’s Got Talent

          I thought the point was, she didn’t ask in the first place?

          • WMD

            It’s on private property, it’s a mural, not covered by Arlington County Code

          • Sam

            When you own a business, you follow the rules and submit your signage plans of any kind for approval – in most cases to the landlord and to the county. Everybody seems to figure that out; you don’t wait until you’re ready to open to find out if your signage is ok.

            And, your lawyers should be advising you to stop posting on boards and commenting as your statments at times contradict themselves and you say the tarp makes it look like you’re closed, which helps the County with their case that this isn’t art, it’s commercial advertising covered by the code.

            You don’t get it both ways.

  • Greg

    Gotta love that picture of the dog. “…woof…woof…WTF?”

  • Captain Obvious

    If she appeals this, she’s throwing good money after bad. The suit was a loser from the start, and Brinkema’s highly regarded, thorough, and rarely reversed.

  • steve

    Could you jerks who let your dogs crap all over the courthouse area please clean up after your dog?

  • Sam

    It was never about the principle of free speech or the mural – it was about free publicity and the business owner got lots of free publicity.

    As some said during this whole thing last year – get some art students to paint the words for free – since it’s for such altruistic purposes as the owner claims; who cares what words are on the mural? It’s just art. Right?

  • DudeGuy

    Appeal? ugh, more tax payers dollars down the drain for some idiot that wants to keep a mural and some idiots that want to keep it down.

  • NArl

    I think the blue tarp should stay on the wall, it like a big FU to the county, cause it looks like crap.

    • e-man

      there is a story about a man in Utah who supposedly had a zoning request denied due to neighbor opposition. so he installed this window.

      • 4Arl

        She could combine the two- an election advertisement in time for the County Board election in November… painted on the blue tarp.

        • Lou

          That was kind of one of my suggestions for the business if she lost the lawsuit. Take down the mural but put windows in that wall and move her grooming operation to the windows, as advertising. Maybe make the glass one-way so the dogs inside do not get distracted. But open up that side of the shop that faces the park for free advertising (minus the costs of modifying the wall at least).

          • WMD

            Great idea Lou!!

          • Sam

            But you can’t afford that – it’s probably far more than $7000. And you really just want the artwork for the people to see in the dog park right? Because you care about dogs so much right? The mural isn’t for advertising, right? So, if you could afford it, because it’s less than $7000, it’s really not the point, right? This whole thing is about the art, and to show your love of dogs….

          • GeorgeOrwell

            code probably won’t allow that because her building is likely on or very near the property line. you can’t put windows on the side of a building if there isn’t egress room once you get outside. and while there might be today, maybe not tomorrow, so code doesn’t allow windows in buildings that are on the property line.

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  • Bender

    They should simply paint on the tarp in big letters, “NO PAINTED DOGS ALLOWED, COURTESY OF ARLINGTON GOVERNMENT.” Or perhaps a mural of people with tape on their mouths or police arresting an artist with paint brush in hand. Both of which are clearly political speech, not commercial speech.

    • ArlGnaw

      Or a painting of zimmie, tejada and company being eaten by rabid dogs. That would be great!

  • http://arlingtondirt.blogspot.com/ TGEoA

    What about the mural on Rocklands and that outdoor store next to Rocklands (its official name)

    • Sam

      approved prior to painting – Wag More Dogs mural – not even submitted for approval – just painted because it’s “art”….that looks like the logo…oops.

      • http://arlingtondirt.blogspot.com/ TGEoA

        Makes sense. Thanks for the 411.

  • Pingback: UPDATE — Judge Dismisses Dog Mural Lawsuit « Siouxsie Law

  • Todd

    I think this is one of the most ridiculous news stories out there. Most of that end of Four Mile Run is an industrial wasteland, so beautification should be encouraged rather than discouraged. I also take issue with the county’s position that a mural is a sign. Their “compromise” amounts to nothing more than strong-arming to get a free mural for the county dog park on the business owner’s dime.

    This is the type of crud that challenges the Board’s assertion that they want to make Arlington small business friendly. Seems like they find more ways to hassle businesses than to encourage them so they can offer jobs, generate tax revenue, and serve the community.

    • FedUp

      +100

    • brendan

      agree.

  • John Andre

    What’s so bad about adding the words “Welcome to Shirlington Dog Park.” anyway???

    Ms. Houghton was offered a way by the County to keep the mural in place. She refused…hence the Court’s position. This decision, like those on more important matters [e.g. Obamacare] can be appealed…all the way to the Supreme Court if necessary.

    • Bender

      What’s so bad about adding the words “Welcome to Shirlington Dog Park.” anyway???

      It’s not free speech.

      It’s government compelled speech. It’s government extortion. It is government saying, “do this, or else.”

      Let Arlington County put up their own damn sign.

      • Al

        They aren’t requiring her to put the words on it – it was a compromise because she decided to paint the enlarged logo without first obtaining approval for her plans like the rest of the business owners do in Arlington. The County has been more than reasonable, and I rarely agree with the County on much of anything.

        She was given options to correct her error, she has declined to take them and decided to sue. Free speech is protected, but everyone is missing the real point. This isn’t about free speech. We all have to go through a process before we put signs up for our business because all of the citizens in our fair county want to make sure it doesn’t end up looking too “eclectic”.

        So, the County comes up with somewhat difficult to understand signage requirements to satisfy the noisy citizens who show up at the board meetings and complain when something doesn’t meet their standard of beauty.

        Blame this all on those noisy citizens who show up to make a change in the way our county is governed and rules are implemented and blame those who can’t be bothered to go; but like to complain about the rules.

        If you don’t like the rules, then work to get them changed, don’t sue for your personal gratification and claim it’s for free speech. Focus on your business and being successful instead of suing and appealing and wasting our tax money.

        Go to the board meetings, make your voice heard and get things changed. And next time Ms. Business Owner, don’t do something knowing you would have to “ask for forgiveness” instead of permission as you mentioned often in many statements to the media last year.

        • Arlwhenever

          Yes, submit to the political thuggery. Run the gauntlet or pay the price. Forget about that pesky little thing called the Bill of Rights.

          • Sam

            Yeah, that’s pretty not much what this guy was saying. If you really read it he was saying participate in the process and don’t just sue for your personal gain. That’s what living in a democracy is all about – everyone gets to participate and it’s their choice if they do so or not.

          • Bender

            Sorry Sam, living in a democracy or not, you don’t get to vote on what people choose to say or what government imposed speech they choose not to say.

            If we all get a say in the content of other people’s speech — living in a democracy — then I vote to prohibit you Sam from saying such anti-freedom sentiments.

          • Sam

            So I suppose I can move in next door to you – and all day every day play some kind of music that you hate but I love – and play it just loud enough that you can’t sleep at night – and you’ll be ok with it right? Because it’s free speech. It’s music I like and I sing to at the top of my lungs. At a decibel level that makes me happy.

            But you see, the County has rules for that – to make sure I can’t infringe on YOUR rights. It’s a compromise – like the one the County has tried to do with Wag More Dogs.

            Some people would find it offensive if they have to look at a huge mural of dogs, screwdrivers or trees in their face every day – so there are rules to protect them. It would be too difficult to say, well, “it’s ok only if your mural is in a location that would otherwise be ugly, and faces a dog park where some people might like they way your art looks, and it’s on property that you don’t own but rent – any other place, color, time, date, or building is excluded.”

            Part of living in a community is that you have to have some rules to protect the masses – much like you can’t say “Fire” in a theatre – even if you claim it’s free speech.

          • mehoo

            Sam,

            Your post is correct, but only when it applies to commercial signs.

            Signs or art that involve plain old speech can’t be regulated this way. If you think it’s ugly or don’t like the message, too bad. That’s freedom of speech.

          • mehoo

            The Bill of Rights does not protect commercial speech at the same level as other speech. This is about commercial activity, not speech. The fact that it happens to involve speech is irrelevant.

        • bananapeel

          “We all have to go through a process before we put signs up for our business because all of the citizens in our fair county want to make sure it doesn’t end up looking too “ECLECTIC”.”

          Hahahahahaha! Mr. Al is so very right.

      • local

        No it’s not. It’s just offering one possible solution.

    • Laser Pointer

      Really? You can’t see the hypocracy in Arlington’s request?

      • junebug26

        First of all, other citizens should have no say in what I paint on my property. Why should my property appear to everyone else’s liking and not mine. That’s one of the problems with our system of government that a whiny few can cause the system to be such that I have to ask your approval of the appearance of my personal property and business. The headline should read ARLINGTON COUNTY UNFRIENDLY TO SMALL BUSINESS.

        • local

          Sorry, but regulation of commercial signs on private property is both legal and accepted.

  • MariaC

    I don’t like the mural. It’s cartoonish.

  • MomOfTeens

    I’m not a dog owner or even particularly fond of dogs…but I am an artist, and this sucks. This woman paid to have this mural painted, and I can only imagine how long it took the artist (I don’t do murals but have friends who do and it’s pretty time-consuming); it does NOT mention her business, and IT FACES A DOG PARK for crying out loud. Hence…the pictures of dogs. Seriously Arlington County?

    • Sam

      And she did it before applying for a permit. Everyone else does – but she didn’t.

      • Captain Obvious

        She can hardly claim ignorance on this point, either–she must have gone through the County approval process when she opened to get her sign approved etc. I suspect she assumed it would be easier to get forgiveness than permission. Her faux outrage is ridiculous.

    • Captain Obvious

      I want to remind everyone that the mural replicates the dogs from her logo/branding. It wasn’t like she commissioned some artist and said, “Make me some beautiful public art.” She specifically ordered something that promoted her branding, and the judge noted that in her ruling.

  • jacSA

    The County and the Zoning Dept is definitely wrong on this issue and other zoning issues. Arlington is not friendly or fair when it comes to zoning in this part of the County – Shirlington/Nauck, unless you’re a big business, a developer or an individual that has a lot of money. So Ironic that the County’s tag line is…. where every individual is important! Oh that’s right they took that off out their website

  • http://blacknell.net/dynamic MB

    The usual ARLnow commenters, keeping it classy. Ed, you should do something more than delete these comments – ban repeat offenders.

  • Sam

    Really? Nice comment that has nothing to do with this article.

    Oh, yes, I suppose this must be ok with some of the people on this board as it’s just free speech, right? Clyde should have just put a few pictures around the comment and if it’s taken off the board, should sue because it infringes on his right of free speech.

  • dave schutz

    It seems to me there are two issues here: 1. did the County have the legal right to do what it did? The answer is yes, the judge found that the County did. 2. does the County look like a clueless, humorless thug, requiring a pleasant and lighthearted wall mural taken down from next to a dog park? The answer to that is also yes.

    • Matt Wavro

      Dave, You should add two more questions. Will Arlington voters assent to the decision in the next election? And will Chris Zimmerman’s pledge to be more business friendly be shown to be hollow by this and subsequent decisions by county staff?

  • Dog Lover

    Would Ms. Houghton have spent – what was it – $8000 of her own money to have a beautiful mural of flowers and trees painted on that wall? All in the name of beautifying her community? I seriously doubt it. She expected a return on her investment by making the dogs look just like those in her logo. Stop wasting court time and everyone’s money by misrepresenting your intent.

  • Lauren

    While I admit it did beautify the dog park it was also a advert that is clear in the intent of the image and in words and action made in the lawsuit. Lots of city’s and county’s have laws about murals for advertising and even just beautifying, some are to prevent graffiti and gang signs, and some are due to advertising next to public spaces. Now I do not think the county telling Ms. Houghton to put “Welcome to Shirlington Dog Park.” was fair to her, but it was a compromise to just talking it off. Were I in her shoes I would contact a local high school art department and ask if the art club would be interested in adding the aforementioned “Welcome to Shirlington Dog Park.” to her mural and inviting local press to show how she was helping her community, and giving a donation of a few hundred dollars to the high schools art program, that would change the intent and be free adverting too. Another note is if it is not perfect the county will think twice about having a problem with the letting knowing local youth were involved.

    • Nadia

      It’s a billboard, and it overlooks public space. Whether it is beautiful or not is not the issue. Had she investigated and then followed the regulations regarding signage, it could have been done in a way that was acceptable to the county from the start. The county does have to be mindful of setting precedent here, and they can’t just give her a pass because she spent money on it.

  • dave schutz

    Hey – we’re not alone in having humorless bureaucrats enforcing a sign ordinance. San Francisco has them too! http://www.boingboing.net/2011/02/23/cherised-coca-cola-g.html

  • neighbor

    i am a mural painter myself, its a shame for what this county has done, murals beautify spaces and give more culture to the area, a dog park with a dog painting how appropriate. i cannot believe a bunch of stuffy old men sat in thier offices and decided this is enough to make such a fight over, really Alington? really? im glad i dont live there , in my town we are allowed to have murals and guess what? we have an old train station with a train mural next to it, HOW APPROPRIATE! and have a theater with music notes and film painted outside appropriate once again! if we had a dog park we have a dog mural! i guess our old men who make the stuffy decisions arent sitting around with thier heads up thier asses worring about dog murals and they actually do important and productive things for our city so we enjoy living here plus we enjoy our murals . sorry Arlington mayeb someday when they die off you can too

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