The Wag More Dogs mural might have been a colorful burst of whimsy along the Shirlington dog park that stretches behind South Four Mile Run Drive in Arlington. But Arlington County officials decided that it was not just art but a 960-square-foot advertisement, which is 900 square feet more than county rules allow for ads. So the mural by Arlington artist Mark Gutierrez has been covered since the dog grooming and boarding house opened in September 2010.
And after two federal courts agreed with Arlington, owner Kim Houghton was forced yesterday to paint over the large “happy cartoon dogs” which were, by her own admission, the same dogs in Wag More Dogs’ own logo. Before beginning the whitewash, Houghton and her lawyers denounced the decisions as an attack on freedom of speech. Arlington officials said they were just trying to be fair to all small businesses in the county.
Another Arlington business, the Smokey Shope III head shop in Crystal City, faced a similar quandary with its oversized painting of a man smoking a cigar. Rather than cover it, they recently had an artist convert the cigar to a whale, and no whales are sold in Smokey Shope III.
“I’m sad to see the mural,” Houghton said, “that was an expression of my joy of being on this dog park, of my love of dogs, be wiped out, after a long struggle.” But she said a beautiful new mural would replace it, free of commercial content, and dog walkers along Four Mile Run will soon see “a wild, spectacular image” and “everyone’s going to be thrilled.”
Below is a short video interview with Houghton. For more details on the mural’s legal history, a copy of the key ruling in the case and a poll where you can weigh in on the mural’s demise, follow along after the jump.
Houghton, a former advertising representative for The Post, began working to open an upscale “doggy daycare” business on South Oxford Street in 2009. The Shirlington dog park runs behind the commercial district and along Four Mile Run.
Houghton commissioned the mural for $4,000 in 2010, and acknowledged in court papers that it “incorporates some of the cartoon dogs in Wag More Dogs’ logo.” Her federal lawsuit seeking to keep the mural uncovered also acknowledged that the mural was intended “to create good will with the people who frequented the dog park” behind the store, “many of whom were potential Wag More Dogs customers.”
And those admissions pretty much sank the mural’s legal chances.
Before the store ever opened, Arlington decided the mural was an advertising sign, and ordered it reduced or covered. They also offered another option: Add lettering to the mural which said, “Welcome to Shirlington Park’s Community Canine Area.”
Houghton declined that offer. She covered the mural with a blue tarp and sued Arlington in federal court in Alexandria.
In February 2011, U.S. District Court Judge Leonie M. Brinkema issued a 31-page opinion that was a complete victory for Arlington. Arlington argued that its ordinance on commercial signs was intended to prevent traffic from being disrupted and to preserve the aesthetic environment of the county.
The question then became this: Is the ordinance “content neutral,” or was it targeted at certain messages or material? When Houghton’s lawyers at the Institute for Justice argued that the ordinance needed to be strictly scrutinized, Brinkema wrote that “Wag More Dogs is barking up the wrong tree.”
The judge concluded that Houghton “cannot reasonably assert that the dog mural is anything other than a business sign, erected as part of a business strategy to advertise and promote the Wag More Dogs brand.” Brinkema said allowing more signs like Wag More Dogs could create ”a virtual cacophony of competing commercial signs” that would harm traffic and aesthetics. Arlington’s ordinance “aims to avoid such a result — and rightly so,” the judge ruled.
Houghton and the Institute for Justice appealed, but the 4th Circuit federal appeals court upheld Brinkema in May of this year. The court ruled the mural was commercial speech, which governments may regulate; Arlington’s law was content neutral; and allowing Arlington to define commercial speech was “not an augur of Constitutional doom.”
Robert P. Frommer, the lead counsel for Houghton, said as he stood in front of the mural, “Today, Arlington County has muzzled free speech. If the mural displayed cats, dragons or ponies, it would be fine.” He said he would not be appealing to the U.S. Supreme Court because he did not think the court would choose this case to address the issue of regulating sign content.
“There’s a war going on,” Frommer said, “a real fight around the country about these sign laws...We don’t usually require people to consult government bureaucrats before they express themselves.”
Carol McCorkrie, an assistant county attorney for Arlington, said Tuesday, “We support small business and we want a level playing field for everyone.” But “she admitted in her pleadings that this was a sign for her business,” McCorkrie said. And that brought the government in.
In Crystal City, Smokey Shope III faced the same situation. “They said it was an advertisement,” store manager Gavin Ferguson said of the man with the cigar, the smoke curling across his face and back toward the parking lot. So they changed the cigar about two weeks ago.
The artists behind the Smokey Shope III mural, Zack Weaver and Rob Fogle of Wilmington, N.C., are now painting the new Wag More Dogs mural. They were there whitewashing the current mural Tuesday. “It’s the first time I’ve ever covered one up,” Fogle said. “I don’t like it, and I sure wouldn’t like anyone doing it to something of mine.”
Now, tell us what you think. Below the poll is Judge Brinkema’s ruling in the case:
Here is U.S. District Court Judge Leonie M. Brinkema’s ruling on the Wag More Dogs mural: