A federal district court held that a 960-square-foot mural containing a business’ logo and related images, overlooking a dog park frequented by many of the business’ customers, was a form of sign advertising and commercial speech, and could therefore be regulated by the county’s content-neutral sign ordinances without implicating the First Amendment.
Plaintiff, Kim Houghton, was the owner of a dog grooming and boarding business called Wag More Dogs, located in a light industrial district in Arlington, Virginia. After undertaking substantial renovations to the building where her business was located, plaintiff commissioned a local artist to paint a mural depicting dogs, dog bones, and paw prints, on an exterior wall overlooking Shirlington Dog Park. Plaintiff admitted that one of the purposes of commissioning the 960-square-foot mural was “to create goodwill with the people who frequented the [Shirlington] dog park, many of whom were potential Wag More Dogs customers.” The mural included the Wag More Dogs logo and depictions of “cartoon dogs” that were very similar to cartoon dogs depicted on the Wag More Dogs website.
Shortly after unveiling the mural, plaintiff received word from the Arlington County Zoning Administrator that the mural violated a zoning ordinance on business signage, which could not exceed 60 square feet in total. Because of the violation, the zoning official “put a lock” on plaintiff’s building permit and prevented final building inspection of the renovated facility until the violation was addressed. Plaintiff was given several options: covering the mural with a tarp, altering the mural to display images other than dogs, applying for a special exception permit, adding lettering to make the mural a “public information sign,” or painting over the artwork. Plaintiff opted to cover the artwork with a tarp, and the building permit process was allowed to proceed.
When plaintiff received her temporary certificate of occupancy in September 2010, it contained a provision which stated that the permit was valid “so long as the tarp covering a mural that also meets the definition of a sign” remained in place. Plaintiff opened for business, and the tarp remained over the mural. In December 2010, plaintiff filed a complaint for declaratory and injunctive relief and a motion for preliminary injunction, all alleging that the Arlington County zoning restrictions – as drafted and as applied – violated plaintiff’s First Amendment rights. Defendants filed motions to dismiss for failure to state a claim and for lack of jurisdiction, arguing that plaintiff had not “alleged any plausible constitutional violation.” The court disagreed with defendants as to subject matter jurisdiction, ruling that it did have jurisdiction over the case, but sided with the defendants on all other matters.
In a lengthy decision, the court held that the county zoning regulation was constitutional because it was content neutral, restricted only to commercial speech, and capable of passing the intermediate scrutiny test. The ordinance was deemed to be content-neutral because the regulation was applicable to all commercial signs, regardless of their contents, on the basis of their size. Because the ordinance identified speech for regulation “based upon its general category” of business signs, regardless of the government’s views on any given sign’s content, the court held that the ordinance was “clearly content-neutral” on its face, and that intermediate, rather than strict scrutiny, should be applied. So long as a business complied with the restrictions on the total space devoted to advertising signage – which could not exceed 60-square feet –that business’ signage was allowed. Further, because the plaintiff admitted the purpose of the mural was, at least in part, to “engender goodwill with potential . . . customers,” the court held the mural was purely commercial speech, and subject to lesser forms of scrutiny than individual speech, as established in Central Hudson Gas and Electric Corp. v. Public Service Commission of N.Y., 447 U.S. 557 (1980).
The court further held that the country signage ordinance was not unconstitutionally vague or overbroad, that the “any relationship” test developed by the County Zoning Administrator for determining whether an image was a sign was not unconstitutional, and that the alternatives offered by county officials to the plaintiff were not First Amendment violations. On the vagueness challenge, the court found that the ordinance gave persons of ordinary intelligence sufficient notice about what types of signs were forbidden, and was very similar to other sign ordinances that had been previously challenged and upheld in the Fourth Circuit.
When plaintiff asked the County Zoning Administrator to further define what actions would be necessary to change the sign to an allowable mural, the Administrator responded that a mural could depict anything except images that showed “any relationship” to plaintiff’s business, such as dogs, bones, paw prints, pets, or people walking their dogs. Plaintiff asserted this test was unconstitutionally vague and overbroad. However, the test was not included in the ordinance itself and was an “informal response” offered by the Administrator, not a “binding interpretation of the ordinance,” according to the court. Even if the stated test was included in the ordinance, the court felt that it would still pass a vagueness test, since it drew the distinction between signs that “bear a relationship to” a business, which constitute commercial speech, and those that are unrelated to business, which are noncommercial speech entitled to greater protection.
Finally, plaintiff claimed that the county’s comprehensive sign plan, which requires businesses to apply for a special exemption permit before installing commercial advertisements which fall outside the confines of the existing law, was not an unconstitutional prior restraint on speech because it had adequate standards for reviewing permit applications and an opportunity for judicial review by aggrieved applicants. Further, plaintiff claimed that the county’s proposal to allow the mural to stay if the plaintiff added the phrase “Welcome to Shirlington Park’s Community Canine Area,” effectively making the mural a “public information sign” under county ordinance, was unconstitutionally compelled speech. The court also rejected this claim, because the addition of the phrase was one of several alternatives suggested to the plaintiff, not a requirement that the plaintiff actually engage in the speech if she did not wish to do so.
Rejecting as “implausible” all of plaintiff’s First Amendment claims related to the county signage ordinance, the court granted the county’s motion to dismiss for failure to state a claim. The court further dismissed plaintiff’s complaint with prejudice and denied as moot plaintiff’s motion for preliminary injunction to prevent the county from enforcing the ordinance.
Wag More Dogs v. Artman, 2011 WL 652473 (E.D. Va. 2/10/11)
The Institute for Justice took on the case for Wag More Dogs, and they have posted information, including a copy of the mural and a video here: http://www.ij.org/firstamendment/3595
