Arlington, VA

(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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