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Fourth Circuit Court of Appeals Finds that Arlington County Zoning Ordinance Did Not Constitute an Impermissible Restriction on Free Speech

Wag More Dogs, LLC v. Cozart
No. 11-1226 (4th Cir. May 22, 2012)

by Wayne Heavener, Summer Associate
Semmes, Bowen & Semmes (www.semmes.com)

In Wag More Dogs, LLC v. Cozart, Judge Diaz of the United States Court of Appeals for the Fourth Circuit held that a comprehensive zoning ordinance (the “Ordinance”) regulating signs in Arlington County, Virginia (the “County”) did not constitute an impermissible restriction on free speech. The Court rejected claims by the company, Wag More Dogs, LLC, that the County’s Ordinance was an unconstitutionally vague, content-based restriction on free speech. Rather, the Court affirmed the District Court’s decision dismissing Wag More Dogs’ suit and preliminary injunction, because the Ordinance was a narrowly tailored means of furthering a substantial government interest.

The County enacted the Ordinance in order to reduce traffic hazards caused by unregulated signs and enhancing the County’s overall aesthetics. The Ordinance set forth various requirements for different classifications of signs, dependent upon zoning district. One such requirement was that “business signs” adhere to certain size and number regulations. If a sign did not otherwise fall into one of the Ordinance’s specified classifications, one could seek pre-approved exemption from the County.

Kim Houghton owned Wag More Dogs, LLC, which was a pet daycare located in Arlington, Virginia. Houghton commissioned a painting on the rear of its building, which was adjacent to Shirlington Park in Arlington County, Virginia. The painting was a large mural, featuring cartoon dogs from Houghton’s company logo. On August 13, 2010, the County’s Zoning Commission informed Houghton that the mural violated the Ordinance as an impermissibly large business size, and must be covered up. Per an agreement between Houghton and the County, Houghton covered the painting with tarps. County officials sought to reach a compromise: Houghton could remove the tarps if it were to add “Welcome to Shirlington Park’s Community Canine Area” to the painting. Houghton declined the County’s offer.

Wag More Dogs filed suit in the United States District Court for the Eastern District of Virginia, and sought to enjoin the County from enforcing the Ordinance. Wag More Dogs contended that the Ordinance was an impermissible, content-based restriction on speech. The company further alleged that the Ordinance was impermissibly vague on its face, and that requiring Wag More Dogs to add “Welcome to Shirlington Park’s Community Canine Area” constituted compelled speech. The District Court rejected the company’s arguments, and granted the County’s Motion to Dismiss. Wag More Dogs appealed the District Court’s dismissal.

Reviewing the District Court’s decision de novo, the Court of Appeals for the Fourth Circuit affirmed the District Court’s decision, dismissing the Wag More Dogs’ action against the County. The Court concluded that the Ordinance was content neutral on its face. Rejecting the company’s argument that any ordinance that differentiated between different kinds of speech constituted a content-based restriction, the Court favored a more flexible approach based upon its precedent in Covenant Media of S.C., LLC v. City of N. Charleston, 493 F.3d 421 (4th Cir. 2007). Therefore, the fact that the Ordinance differentiated between business signs and noncommercial signs would not serve to invalidate that law as unconstitutional. Similarly, the Court found that the Ordinance satisfied intermediate scrutiny. Observing that the County enacted the Ordinance to promote traffic safety and enhance the County’s aesthetics, the Ordinance furthered a substantial government interest and was narrowly tailored in achieving its goals.

The Court also rejected Wag More Dogs’ argument that its sign was noncommercial speech. Following Bolger v. Young Products Corp., 463 U.S. 60 (1983), the Court observed that company’s sign was economically motivated to attract customers. Given that Wag More Dogs’ sign was commercial in nature, the Ordinance was a constitutionally applied measure drawn to further a substantial government interest in regulating commercial signage. The Court found that the Ordinance was neither void for vagueness, nor constituted an unlawful prior restraint because it provided adequate guidelines for citizens and officials to follow.


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