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Fourth Circuit Dog Mural Ruling Bites Small Business Owner

By Robyn Hagan Cain on May 23, 2012 | Last updated on March 21, 2019

It seems like it's been months since we had a FindLaw Top Dog, so we’re making up for it with a post about a Top Dog Professional.

Today’s Top Dog Professional, Kim Houghton, is a recent Fourth Circuit Court of Appeals litigant. Houghton has what we imagine to be the best job ever: She runs Wag More Dogs, a doggy daycare business located near the Shirlington Dog Park in Arlington, Va.

In 2009, Houghton rented store space adjacent to the dog park. In an effort to "beautify the area" and to "create goodwill with the people who frequented the dog park, many of whom were potential Wag More Dogs customers," Houghton commissioned a dog mural on the building. The painting measured approximately 960 square feet and incorporated some of the cartoon dogs in Wag More Dogs' logo. Houghton described it as including "happy cartoon dogs, bones, and paw prints."

But Arlington County Zoning Administrator Melinda Artman didn't find the dogs, bones, and paw prints to be "happy".

The Arlington Sign Ordinance for the "M" district, where Wag More Dogs is located, places limitations on the size and content of outdoor signage. Artman emailed Houghton to inform her that the size of the painting violated the Sign Ordinance. Artman gave Houghton the option of painting over the display or applying for a comprehensive sign plan to maintain compliance with the Sign Ordinance, (though her chances of success with the latter option were slim). In the interim, Artman told Houghton to cover the painting with tarps if she elected not to paint over it.

According to Artman, "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. In other word [sic], the mural can not [sic] show anything that has any relationship with your business. If it does, then it becomes a sign."

Arlington officials later offered an accommodation to keep the painting mostly intact: They told Houghton that she could include the words "Welcome to Shirlington Park's Community Canine Area" above the artwork, which would convert the painting from an impermissible sign into an informational sign not requiring a permit under the Sign Ordinance. Houghton, instead, sued, claiming that the Arlington Sign Ordinance was an unconstitutionally vague, impermissible, content-based restriction on speech, and that the proposed "welcome" accommodation qualified as unconstitutionally compelled speech.

A district court judge dismissed Houghton's claims last year.

The Fourth Circuit Court of Appeals affirmed the lower court, concluding that the Arlington Sign Ordinance is content neutral on its face. As applied to Wag More Dogs, the court said that the regulation is a restriction on commercial speech. Because the Sign Ordinance satisfies intermediate scrutiny, the appellate court held that Wag More Dogs' content-based challenges lacked merit.

What should Wag More Dogs do now? Keep the dog mural covered with tarps pending a Supreme Court appeal, or give in to Shirlington's "welcome" demands?

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