ALEXANDRIA, Va. (CN) - A doggy daycare service sued Arlington County in a constitutional battle over whether its mural of "happy cartoon dogs, bones, and paw prints" is a sign or art. Wag More Dogs says the county threatened to shut it down and slap it with criminal penalties if it displays the mural on the back wall of its building, which faces a dog park.
Wag More Dogs sued Arlington County and its zoning administrator, Melinda Artman, in Federal Court.
Kim Houghton, Wag More's owner, commissioned the mural when she opened her business. "For the past three months, this artwork has been covered by a series of large blue tarps," the complaint states. "This is because defendants have concluded that any artwork that 'has any relationship with [Wag More Dogs]' is a 'sign.'"
The county zoning ordinance requires that Houghton get a sign permit, and that the sign must be no more than 60 square feet.
"Wag More Dogs cannot obtain a sign permit for its artwork because it covers most of a wall. If Wag More Dogs unveils its artwork and lets people see its happy dogs with bones, defendants will fine it, revoke its certificate of occupancy, force it to close, and perhaps subject it to criminal penalties.
"Arlington County's zoning ordinance on its face and as enforced by defendants retrains plaintiff's speech and has no constitutionally acceptable justification."
Houghton says she had to spend $350 on tarps and bolts to cover the mural, so that Arlington County would "unfreeze" her occupancy certificate.
"Wag More Dogs' artwork has been covered up for three months, including late summer and fall 2010 when patrons to Shirlington Dog Park could have enjoyed the painting of happy dogs, bones, and paw prints," the complaint states.
Houghton says she asked Artman, via email, "'What correction would be needed to change the sign into a mural?'" because "no sign permit is required to display a mural.
Artman responded that "'For the mural to NOT be considered a sign, it may depict anything you like EXCEPT something to do with dogs, bones, paw prints, pets, people walking their dogs, etc.' ..."
Houghton adds: "Had an identical design been painted on the exterior wall of a flower shop, it would not be considered a sign under the Arlington County Zoning Ordinance."
She says Artman wouldn't "unfreeze" her permit because the original tarps left 8 feet of the mural showing, so after she bought another tarp and covered that up, she got her temporary certificate of occupancy, with a rider that states 'This permit is valid as long as the tarp covering a mural that also meets the definition of a sign as determined by the Zoning Administrator and which faces Shirlington Dog Park remains in place.'"
Her mural appropriately covered with a tarp, Wag More Dogs opened for business on Sept. 15. Six days later, the complaint states, "Arlington County officials again inspected the artwork and ordered Wag More Dogs her to secure the tarps again because, in part, it was 'not adequately secured behind and to the sides of the black metal fire ladder, exposing parts of the mural, including a depiction of a dog bone.'"
After further negotiations, and without the assistance of the United Nations, Arlington officials suggested that if Houghton, at her own expense, painted "'the official name of the [Shirlington Dog Park] on the mural' then 'the mural becomes an informational sign' under Section 34(E)(4) of the Sign Code and would not require a permit." But the official said that "the letter would have to run the length of the artwork and estimated 'that the lettering would have to be at minimum 48 inches tall.'" Also, Houghton says, she would have to "'provide the county [with] a sketch prior to painting the lettering to assure it will be in compliance.'" (All brackets as in complaint.)
The county offered to sell her a "comprehensive sign plan" for the low, low price of $1,782.
And the official suggested that the letters on the sign state: "Welcome to Shirlington Park's Community Canine Area."
Houghton points she would run out of wall before she ran out of letters, and that if she made it two lines deep, it would use up more than 8 vertical feet of wall area, an area so large, one presumes, it would compromise the artistic integrity of the mural.
Houghton says the county's ordinance is unconstitutionally vague, unconstitutional prior restraint of speech, and that its "Welcome Sign Option Compels Plaintiff to Mouth Defendants' Message."
She wants an injunction allowing her to unveil the mural, and nominal damages of $1. She is represented by William Mellor with the Institute for Justice.
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