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Wag More Dogs Seeks Appeal of Mural Lawsuit

by ARLnow.com — June 27, 2011 at 3:26 pm 3,531 62 Comments

An Arlington dog grooming and boarding business is asking a federal appeals court to consider whether Arlington County’s sign ordinance is constitutional.

In February, a U.S. District Court Judge dismissed a lawsuit against Arlington County filed by Wag More Dogs (2606 S. Oxford Street). With the assistance of the the Institute for Justice, a Ballston-based libertarian public interest law firm, Wag More Dogs owner Kim Houghton had claimed that the county’s crackdown on the store’s colorful wall mural, which faced the Shirlington dog park, was unconstitutional.

Today, Houghton and the Institute for Justice announced that they have asked the U.S. Court of Appeals for the Fourth Circuit to take the case — which revolves around the method by which Arlington County decides what is ‘art’ and what is an impermissible commercial sign.

“The U.S. Constitution gives everyone the right to speak and the right to earn an honest living,” said Robert Frommer, the attorney who’s representing Wag More Dogs. “Kim is asking the U.S. Court of Appeals to vindicate both of these rights and let her share her artwork with the dog park once again.”

The appeals court will now decide whether to hear the case.

Update at 6:40 p.m. — Arlington County Attorney Steven MacIsaac has released a statement about the appeal.

In February, the U.S. District Court agreed with Arlington that this issue is about commercial sign regulation, and the judge found Arlington’s sign ordinance to be fair and reasonable. In her ruling, Judge Binkema said that the mural is a “classic form of branding and advertising,” and meets the definition of a sign , which is, therefore, subject to the County’s sign ordinance. 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.”

We are aware that the owner has filed an appeal to the 4th Circuit Court of Appeals, and has just now filed her brief. We will now file our response in accord with court rules.

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  • Fido

    I love the dog looking at the covered-up mural. +10.

    • Woof

      Who took that pic? It’s priceless.

  • Tre

    This picture begs for a caption contest…. The prize is my respect

  • CrystalMikey

    Money is still being wasted on this?

  • Thes

    “The U.S. Constitution gives everyone the right to speak and the right to earn an honest living,”

    So, he admits it is a commercial sign. Now the only remaining question is whether Arlington has the right to regulate the size of commercial signs.

    • cj

      Where in the Constitution is the right to earn a living, honestly or otherwise?

    • wmd

      The County will ultimately close the business if the mural is not painted over or the dogs, bones, paws removed. The tarp had to be covered the mural BEFORE the business could even open.

      • Frank Alfred

        WMD should have done their homework and had their sign approved just like every other business has to do and has done.

        But, it was too confusing right? Or is it that it’s artwork? Or is it that it’s infringing on freedom of speech? Or is it only whatever gets publicity?

    • doodly

      Yep. Crappy lawyer.

  • Woof.

    This is all I see. Woof.

  • Woof.

    woof

    • Woof number 2

      Sorry Woof – didn’t mean to take your name, but I see we both appreciate a good photo when we see one.

  • PhilL

    Ok any law-talking people out there, what’s the current make-up of the Fourth Circuit and how are they likely to see this appeal?

  • niceguy

    Caption:
    “I hope it’s Dog Playing Poker!”

  • Captain Obvious

    The Fourth Circuit is going to affirm, after costly briefing and oral argument.

  • South Arlington

    Wag More Dogs was using photos of their mural in commercial advertising in a few regional pet magazines also. I think it’s naive to believe this wasn’t intended as purely commercial speech.

    • wmd

      Wag More Dogs has advertised only in NOVA Dog magazine and the ads did not have the mural in them.

  • DennisW

    With all of the visual pollution around this county, including advertising signs for tennis lessons being strung around county tennis courts, I just don’t see what precedent they have to go on that shows any consistency to their code or its enforcement. So what if the business used the mural in advertising? It doesn’t say the business name. In this case, it’s simply a signpost. BTW, methinks “purely commercial speech” doesn’t exist anymore after Citizens United. Money talks…

    • doodly

      Oh, for God’s sake, do you people have to find Citizen’s United in everything?

    • danielobvt

      Visual pollution…
      Or as some of call it, advertising or… (shh) capitalism….

  • JimPB

    Where’s the public health or public welfare in the sign regulation?

    Strip back the unwarranted control and free the dog mural.

  • Clarendude

    This should be an interesting case. First question is whether the sign itself was even commercial ‘speech’. Second, is the regulation of it content-neutral. This latter point is tangled since the County said they could keep the sign if they ADDED words advertising a public facility. Interesting.

    • Thes

      I understood the County offer of compromise to be that they could “transform” the sign from *commercial* into *government* expression by expressly designating it as an advertisement (or decoration) for the park instead being an implied advertisement for the business. But it seems the business really preferred to have the mural remain a form of advertising for themselves, which, in turn, made it a commercial sign larger than the ordinance allows.

      The quote from their lawyer about “earn[ing] an honest living” bears this out. The owner believes she should not be subject to the size limit on commercial signs if her particular commercial sign is cute enough.

      • John Fontain

        “The quote from their lawyer about “earn[ing] an honest living” bears this out.”

        Will this quote from their lawyer be included as evidentiary matter in this case?

        • Webster

          Of course not. And he knows it.

      • wmd

        The owner believes in the right to free speech and would like to keep the mural as art and not have it become a sign.

        • Frank Alfred

          Then change your logo and your sign on the door that matches the “art”.

          • wmd

            Which came first…the mural or the logo?

          • Frank Alfred

            Doesn’t matter – you did it and shouldn’t be surprised at the consequences of your actions. There are a lot of business owners who make the effort to do the right thing; your business should not be exempt.

            And, don’t bother trying to make this into some kind of game with the “chicken and egg” analogy. It’s just ridiculous and your attorney should be advising you to stay off the blogs as your comments in the past have been contradictory and can be used against you as to your intent.

            This is all just getting really old. You certainly aren’t garnering as much good will as you think. In fact, I personally know of several folks who initially thought the County did the wrong thing, but have now changed their mind – primarily due to your comments. You might want to think about that….

          • Amanda

            From this picture on your Yelp page, showing the blank wall with no mural and a banner for your business with logo, I’d say the logo came first and the mural was painted to match your logo as an advertisement for your business.

            http://www.yelp.com/biz_photos/kGAgbQe55OCtokom8H7W3g?select=IgHIuzXFJb6B7I5BTAbDmA

          • Frank Alfred

            See what happens when you try to be smarter than the rest of us? You get yourself in trouble….

          • Amanda

            And the photo on your Bring Fido page shows the entire wall.

            http://www.bringfido.com/resource/6621/

          • Frank Alfred

            PS. Amanda – I hope the County uses your information to help stop this looney toon from continued frivolous lawsuits!

          • Maria

            Also interesting how she used that very same wall, pre-mural, as a space to put up a banner very specifically advertising her business.

          • WTH?

            You do realize how many potential customers you have pissed off by wasting so much tax-payer money on this. I am all about free speech and what not but your attorneys have taken you down the wrong path. You should worry more about cleaning up your image/sign before you dig a hole you can’t get out of, no matter how many poop bags you donate.

  • Mkt Common

    The real problem, as we all know, is that Arlington’s sign law is ridiculous. Small, locally owned businesses with little ad budget etc. suffer the most. That said, I’m curious at this particular owner’s willingness to keep at this … is the law firm doing this for him/her pro bono?

    • wmd

      “Pro Bono”

      • Frank Alfred

        And the taxpayers pay for Arlington to keep defending itself against a business owner who couldn’t be bothered to get the sign plans approved before getting it painted.

        Thanks for that WMD.

        • Captain Obvious

          +1, Frank. Their unwillingness to follow the procedures that every business owner knows are in place shows that they were trying to be cute. What’s the old saying about it being easier to ask for forgiveness than permission?

          • Frank Alfred

            And, funny, the business owner even said those exact words at one point in time.

          • Ann of Tan Gables

            And it is one of my least-favorite sayings, probably because I dislike the attitude behind it so much.

            I’m not a public relations expert, but is flouting the law and whining about it when busted a recommended business technique? I got a dog recently, and I cannot imagine putting money into WMD’s pockets when there are other places I could go.

    • Webster

      It is ridiculous, and the county has admitted such.

  • Tabby

    This issue and arlnow.com mentioned on the morning news!

    • http://www.arlnow.com ARLnow.com

      Really? Which channel?

      • Toots

        I heard it, too. Channel 504 on my lineup.

      • Tabby

        I can tell you for sure when I go home and turn the TV on again. I generally just have it on in the other room when I’m getting ready and don’t care about the channel. Perhaps it was the one with Andrea Roane? The reporter spelled out the name of this site.

      • Tabby

        NBCWashington Channel 4.

  • AdArt

    How is this (mural) any different than the large painting on the side of Rocklands BBQ on Washington Blvd. across from Giant?

    • Frank Alfred

      It is different because:

      1) It was approved prior to painting
      2) It doesn’t look like their logo or reference their business – it’s just a neighborhood scene

      Just a guess.

    • TMP

      I haven’t seen it in a long time, so I don’t know if there is a barbeque scene in it, but God forbid if they did!

      • Tabby

        I miss the creepy cat (and the deli).

  • TMP

    I support the business owner on this one. That stretch of Four Mile Run and Arlington Mill Road is an eyesore and it’s ridiculous that the county would strong arm them about a sign ordinance for putting up a mural that only improves the look of the area. Next door there is a large graffiti wall, but that’s somehow better because it doesn’t relate to the business it’s painted on? Or how about the mural Curry’s Auto now has…good thing there isn’t a car on it, otherwise the mural police would come and get them. What makes it worse is that the county attempted to extort the business by offering to let them keep it if they added the county’s messaging to it. Free mural for the county on the back of a small business owner. Arlington should be encouraging beautification of a dumpy industrial area and stimulating business, not suppressing it.

    • Frank Alfred

      But at the same time, they can’t just let one business get a free pass because the area is ugly. Otherwise, other businesses in other areas would sue if they couldn’t get a big mural promoting their business approved – and if it were a mural of something the neighbors didn’t like; like let’s say pole dancing half-naked women to “implicitly’ advertise a dancing establishment, then there would be an uproar over that…

      There has to be some consistency and if you have the County making the decisions about what’s “cute” and what’s not – then we’re even in more trouble. They are already deciding too much for us.

      • Captain Obvious

        +1 again, Frank. I hear this all the time re: Westover Beer Garden, too. We can’t have rules that we waive based on circumstances–if we do that, then there’s no dispassionate way to protect the neighborhoods that need it.

      • alejandro

        Frank,
        You have thoroughly misstated the issue in at least a dozen comments here now. The WMD lawsuit isn’t asking for a “free pass” or special treatment. The lawsuit isn’t about the behavior of the regulators; it’s about the underlying county law. Specifically, the lawsuit contends that the law violates the First Amendment of the U.S. Constitution.
        According to the county, a mural depicting anything other than dogs or paws in that space would fall outside it regulations because it wouldn’t relate to the business. At the same time, according to the county, any non-dog related business could show paws and dogs without running afoul of the regulations. How is that not “content-based” discrimination that the First Amendment is supposed to forbid?
        Furthermore, the county law doesn’t say anything about logos; it just puts the regulators in a position of making a judgment about whether the sign relates to the business. Theoretically, a mural of happy people driving to work without their dog could also be related to the business, because that’s the service a doggie daycare offers–freeing you up from caring for your pet for the day. See the problem? There law itself contains no real standards, and that can have a chilling effect on speech.
        If WMD wins its case, it won’t be getting special treatment. The county will have to change the law that applies to all businesses. Everyone will have their rights vindicated if WMD wins. Vindicating one’s rights is never a waste of money, but there’s any easy way for the county to avoid spending more taxpayer money: Admit that its code is unconstitutionally overbroad and change it.

        • Frank Alfred

          Of course you’d say something like that as a supporter of the one who had to find a reason to get publicity and talked to her friend who was a lawyer.

          She’ll lose. Again.

          If was truly about free speech, then that would be one thing. But, most people have started to see the business owner’s true motivation through her own responses. Not once has she indicated that it’s truly about freedom of expression. She has repeatedly changed her story about when it was painted, why it was painted, how much it cost, what it would cost to make changes, etc. One day it’s art and she just did it for the community, another day, it’s hurting her business, and yet another, she indicates that she did it and decided to “ask for forgiveness instead of permission”. That itself indicates she knew it was wrong to do but did it anyway. If she truly cared about the freedom of speech issue, then she should have “asked for permission”; been denied, then sued to have the right to put it up. She chose to put it up, then sue when she didn’t get her way. These facts can not be denied as they are all in writing in her words – or were recorded on her tv interviews.

          I have not at any time misstated the issue. My comments were completely my opinion about the intent of the lawsuit, the comments the business owner makes, etc.

          I’m pretty comfortable that I know what I’m talking about and that there are a lot of others who are tired of this draggin on for purposes that have nothing to do with helping other business owners in the county.

          It’s all in writing dude – and WMD put it in writing. As I suggested to her; she probably shouldn’t have posted so many contradictory statements as they are not in any way helping her case. Looks like the last court figured that out – and I’ll bet the next one will too.

          Sue when you have a real grievance and have truly been wronged. Not when you just don’t get your way.

          • alejandro

            The First Amendment to the Constitution doesn’t say: “Congress shall make no law abridging the freedom of speech of those who ask for permission to speak.”

            Nor does it say “Congress shall make no law abridging the freedom of speech of those with good motives.”

            It just says: “Congress shall make no law … abridging the freedom of speech …”

            You could have just looked it up.

          • Frank Alfred

            Alejandro – we’ll see who prevails. My guess is it won’t be Wag More Dogs…no matter how hard they try to make it all about Freedom of Speech.

          • doodly

            You are correct – motivation etc. isn’t an issue in the First Amendment.

            However, commercial speech has a lower level of protection, because it’s commerce that happens to have speech form. That is already a well-accepted doctrine.That is what this case hinges on – is this an ad or not? If it is, it can be regulated, and the content may determine whether its an ad or not.

          • alejandro

            The idea that commercial speech deserves lower protection than other types of speech is not nearly as well settled as you think it is. It is an issue that is very much in play in the courts right now. This and other cases show that the distinction between commercial speech and non-commercial speech is not so clear cut, and that should raise questions about the validity of the doctrine.
            If the commercial speech doctrine lets government make judgments about messages, then the doctrine can’t really be squared with the principle of content-neutrality.

          • doodly

            Okay, it may be in play, but it’s still a principle.

            I guess you have to look at content and intent.

  • give it a rest

    Alejandro,

    I think what you’re missing is that Frank has been mainly commenting on the behavior/statements of the owner of WMD. It appears that support for her “righteous” fight is waning, based on her attitude and behavior, which belies a sense of entitlement and a poorly executed attempt to manipulate the system. She isn’t fighting for anyone but herself, as she has admitted that she put the painting on her wall to serve as a sign for her business. She has done more damage to this lawsuit than anything, by trying to appear like a victim/crusader in this farce. She attempted to position herself as someone who cares so deeply about the community that she dropped 4 g’s on a painting. However, her veneer of altruism was smashed when she admitted to reporters that she did it to garner “good will” for her business – AKA CUSTOMERS – with the dog owner community who frequents that particular dog park. Then, she cried poor when the county offered her one additional option to deal with the situation she put herself in by not following the rules. Please, give us all a break. This has never been about free speech for her. It’s about advertising. Apparently she has been in the advertising business for 20 years – she knows how to sell a business, and that is what she was trying to do with the painting. However, I guess if you live by that “ask forgiveness rather than permission” credo, you make bad decisions. She thought she was being smart with that painting, but it seems like a numbskull move to not have checked it out first. Maybe she should start living by the motto “choose your battles wisely” and give this one a rest.

    With regard to the lawsuit, while your portrayal of the supposed result sounds reasonable and just and your arguments may work for another situation, in this case, it is painfully obvious that this painting was intended to be a sign. It is a TERRIBLE example to use to argue against the county regulation, as the dogs in the painting match the ones in the logo that she uses for recognition of her business, which was placed in that very same space prior to the painting. Nevermind the owner’s statements regarding her intent. It seems that, no matter how narrowly the county tailors the regulation, that painting will always be considered a sign and, therefore, can be regulated. It may well be that the county’s sign regulation is unreasonably broad and needs to be retooled, but this case is not an example of a business owner suffering from a poorly written regulation. I would bet there are examples of that in Arlington, but this is not one of them, and for that reason it is a waste of taxpayer money and a mockery of the legal system. You can analyze the current state of the laws/theories and if you are in a conlaw class, but this is about a particular lawsuit. One that has no merit.

    Prediction: the only thing this waste of time will gain for this owner is bad will, and the words “Welcome to the Shirlington Dog Park” across that silly painting.

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