Doggy Day Care Owner Loses Mural Defense

(CN) - A Virginia county can block a kennel from commissioning a large mural depicting "happy cartoon dogs, bones and paw prints" on its exterior, the 4th Circuit ruled.

Wag More Dogs is an Arlington doggy day care that sits beside a popular dog park. In an effort to "beautify the area" and "create goodwill with the people who frequented the dog park," owner Kim Houghton commissioned a 960-square-foot mural incorporating cartoon dogs and other elements in the Wag More Dogs logo.

But the Arlington County zoning administrator emailed Houghton in August 2010 to inform her that the painting exceeded size limitations for signs in her area.

The administrator then threatened to put a "lock" on Houghton's building permit until she removed the mural.

Houghton had two options for removal: paint over the image or apply to the county for a comprehensive sign plan to maintain compliance. The administrator noted, however, that Houghton had little chance of receiving a sign plan, and that she should cover up the sign in the meantime.

After Houghton asked how she could repurpose the mural as a painting instead of a sign, the zoning official said she would have to remove any elements that the mural shares with her business, such as dogs, bones, paw prints, pets or people walking dogs.

Houghton ultimately covered the mural and Arlington issued her business a certificate of occupancy. To keep the mural mostly intact, the county also offered to let her add the words "Welcome to Shirlington Park's Community Canine Area."

But Houghton declined, and instead took aim at the allegedly vague and unconstitutional sign ordinance in a federal complaint.

U.S. District Judge Leonie Brinkema refused to issue an injunction and dismissed the case with prejudice, finding that the sign law was a content-neutral restriction of speech. Brinkema also said the law is not vague when read in the context.

The 4th Circuit affirmed last week.

"The heart of Wag More Dogs' complaint is that the sign ordinance is an impermissible content-based restriction on speech, both facially and as applied, that cannot survive strict scrutiny. We disagree and hold that the sign ordinance is content neutral on its face," Judge Albert Diaz wrote for a three-judge panel. "As applied to Wag More Dogs, the regulation is a restriction on commercial speech. Because the sign ordinance satisfies intermediate scrutiny, Wag Mores Dogs' content-based challenges lack merit."

Diaz also said Houghton's claims had a syllogistic quality.

"Any regulation that differentiates between types of speech is content based," the decision states. "The sign ordinance imposes different requirements on different types of speech. Therefore, the sign ordinance is content based. But Wag More Dogs would have us hew to a Euclidean commitment to wooden logic, where the law instead demands a more pragmatic judgment. Viewing the sign ordinance with reference to precedent that applies a practical analysis of content neutrality, requiring that a regulation do more than merely differentiate based on content to qualify as content based, we conclude that the sign ordinance is content neutral and satisfies intermediate scrutiny."

The law differentiates between types of speech in certain ways, according to the court, which noted that size requirements apply to "business signs," but not noncommercial signs. It also exempts 15 types of signs from its coverage.

"But this varying treatment is not sufficient to convert the sign ordinance into a content-based restriction on speech," Brinkema wrote.

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