Wag More Dogs owner Kim Houghton and her lawyers filed an appeal in the U.S. Court of Appeals for the 4th District on Monday over a mural painted on the outside of her Shirlington dog boarding and grooming business.
The appeal was first reported by ARLnow.com.
Houghton’s original suit, filed in December, claimed that Arlington County’s zoning board violated her First Amendment right to free speech by forcing her to cover the $4,000 mural of dogs, bones and paw prints. The mural violated the county’s sign ordinance, officials said.
U.S. District Judge Leonie M. Brinkema agreed and dismissed the lawsuit in February.
Houghton, a former 20-year advertising representative for The Washington Post, wants Brinkema’s decision reversed and to “have her day in court,” said Robert P. Frommer, staff lawyer for the Institute for Justice and lead counsel on the case.
He will “argue that Arlington’s sign code unconstitutionally gives government bureaucrats the power to play art critic,” he said.
The county’s zoning staff said that since the mural depicts dogs and Houghton owns a dog-based business, it is a sign.
“If the mural depicted kittens or ponies, that would have been fine. If an auto shop put up Wag More Dogs’ mural, Arlington County would not have had a problem with that,” Frommer said.
Arlington County had yet to receive a copy of the brief and could not comment, said Diana Sun, a county spokeswoman. The county will have one month to respond to the brief.
The mural has been covered with a blue tarp since the fall.
Update, 5:45 p.m., 4/28/11: “In February, the U.S. District Court agreed with Arlington that this issue is about commercial sign regulation, and the judge found Arlington's sign ordinance to be fair and reasonable," said Stephen MacIsaac, Arlington County attorney, in a statement. "In her ruling, Judge Brinkema said that the mural is a 'classic form of branding and advertising,' and meets the definition of a sign, which is, therefore, subject to the County's sign ordinance. The judge found that the County’s sign ordinance is a valid, content-neutral restriction on the size of signs in the M-1 zoning district, even noting that, by saying the ordinance was content-based, Wag More Dogs was 'barking up the wrong tree.' "
MacIsaac said the county will file a response to Houghton's brief in the coming weeks.