Litigation Backgrounder

The Issue in a Nutshell:

No one should have to choose between their right to speak and their right to earn an honest living.  And the First Amendment does not let government officials play art critic.

Kim Houghton is the owner of Wag More Dogs, a canine boarding and grooming facility in Arlington, Va.  Long a fan of the dog park that is located right behind her business, Kim commissioned an outdoor mural of cartoon dogs, bones and paw prints in order to give something back to the community.  But a few months later, Arlington officials blocked Kim’s building permit and told her that she could not open unless she painted over the mural or covered it with a blue tarp.  Her crime was painting a piece of art that—in the eyes of Arlington officials—was “too related” to her business.  In the eyes of the county regulator, a mural that depicted dragons would be perfectly fine.  But because it shows dogs and bones, it’s illegal.  Under the threat of losing her livelihood, Kim complied and covered the mural.

But now she is waging a fight to vindicate not only her own right to free expression, but also the rights of other small businesses who must continually face seemingly all-powerful government regulators who arbitrarily and abusively wield the authority.

Arlington County’s zoning ordinance unconstitutionally burdens certain speech based on its message.  And the complete vagueness of the ordinance gives government officials unbridled discretion to decide what is art and what is a sign.  That is why Kim has teamed up with the Institute for Justice to file a federal First Amendment challenge to Arlington’s zoning ordinance in court.

Kim’s lawsuit, filed on December 2, 2010, in the U.S. District Court for the Eastern District of Virginia, will vindicate her right to earn an honest living free from the unconstitutional conditions that Arlington is trying to impose.  And it will strengthen and expand on a very simple and important legal principle:  Under the First Amendment, the right to speak is just that—a right—and not a privilege to be doled out by government officials.

Introduction

Location, location, location aren’t the only essentials for the success of a small business.  Generating goodwill with potential customers is also key.

And yet, in Arlington, Va., entrepreneur Kim Houghton, the owner of Wag More Dogs[1], is being mercilessly harassed by a local bureaucracy for creating an attractive and playful mural of dogs at play on the back wall of her business—a wall that faces an area dog park.

The mural doesn’t say, “Open for business.”  In fact, the mural doesn’t have any words at all . . . not even the name of Kim’s enterprise.

It is merely an artistic expression designed to please the dog owners who walk their dogs by Kim’s business—something better to look at than a bare cinderblock wall.

So what’s the problem?  The mural of cartoon dogs, bones and paw prints is an illegal “sign” in the opinion of a county official because its message is “too close” to the goods and services that the business provides.  If the mural had dragons rather than dogs, Arlington County wouldn’t have a problem with it.  But because it features dogs and bones, and Kim’s business deals with dogs, that, for Arlington County, is too close and so they consider the mural to be a sign, which is government-regulated.

The zoning official has now given Kim three alternatives:  1) paint it over at Kim’s own expense, 2) turn the private mural into a government sign by adding the words “Welcome to Shirlington Park’s Community Canine Area” in four-foot-high letters, or 3) have her business shut down and face steep fines.

But Kim has decided to create a fourth alternative for herself:  Represented by the Arlington-based Institute for Justice—a national public interest law firm with a long history of successfully defending the rights of government-menaced entrepreneurs—she is going to sue to defend her rights and the rights of other small business owners.

Faced with the threat of having her business shut down by the county, Kim has been forced to hide her artwork behind an ugly blue tarp, leaving many would-be customers thinking that her business is shut down.  As part of her lawsuit, she is seeking the court’s permission to display the mural during the course of her litigation.

Entrepreneurship is the path to both freedom and economic growth.  In this jobless recovery, local governments should stop creating senseless and abusive roadblocks that threaten the very existence of budding businesses.[2] But what’s happened to Kim is more than just wrong; it’s unconstitutional.  The First Amendment to the U.S. Constitution protects individuals and businesses from vague laws like Arlington County’s that give government officials the authority to scrutinize a piece of art’s message to decide whether it may stay up or must come down.  And just as the government may not restrict an entrepreneur’s speech directly, neither may it order that an entrepreneur remain silent or else risk fines or even being run out of business.  To vindicate her rights to free speech and economic liberty, Kim has joined with the Institute for Justice to strike down Arlington’s zoning law and display her artwork to the world once more.

A New Life, Interrupted

Kim Houghton is pursuing her American Dream.  After working for more than 20 years in advertising at The Washington Post, Kim decided that she needed to make a change.  Her goal was to go into business for herself and do something that she deeply cared about.  Upon surveying her life, Kim recognized that she loved her dogs and often spent hours with them at the nearby dog park.  What’s more, she is on the board for ArlingtonDogs, a volunteer group that helps maintain all the Arlington dog parks and advocates for dogs and their owners.  Once Kim learned about the concept of doggy daycare and grooming, she felt it was a perfect fit and strove to make her dream a reality.

Kim chose to open Wag More Dogs, a canine daycare, boarding and grooming business in an area of Arlington County, Va., known as Shirlington.  Kim wanted to make Wag More Dogs into an upscale facility with a professional staff that was specially trained in dog behavior and handling.  In July 2009[3], Kim began to hire various contractors and reconfigure an industrial building to house and groom the dogs she would soon service.

Wag More Dogs’ facility abuts the Shirlington Dog Park[4] a popular recreational area for local dog owners where Kim had taken her dogs since 2004.  As part of putting together her business, Kim wanted to replace the bare cinder block wall on the back of her building with artwork that would beautify the area.  She did this not only to help her business, but to give something back to the dog park community that she had been a member of for so long.  Kim commissioned a local artist[5] to design and paint a picture of cartoon dogs, bones and paw prints that would be approximately 60 feet long and 16 feet high.  Several weeks and $4,000 later, Kim’s mural was complete.

As can be seen above, the artwork that Kim created neither mentions Wag More Dogs nor contains any wording whatsoever.  Still, a zoning official from Arlington County came to Wag More Dogs several months after the mural was finished and told Kim that her artwork was an illegal sign under the county’s zoning ordinance.

Like many municipalities, Arlington has a zoning ordinance[6] regulating land use in the county.  Part of that ordinance is Arlington’s sign code[7]which both defines what a sign is and dictates what signs may be displayed in Arlington’s residential, commercial and manufacturing zones.  According to the Zoning Administrator, the artwork was a sign under the ordinance because it was “used to direct, identify, or inform the public while viewing the same from outdoors.”[8] In other words, Arlington officials concluded that the mural is a sign because it depicts things that are too closely related to Kim’s business and because (in the opinion of the Zoning Administrator) it subtly “led” would-be customers to Wag More Dog’s rear entrance.  In an email, the Zoning Administrator made clear that Kim could have a mural depicting “anything . . . EXCEPT something to do with dogs, bones, paw prints, pets, people walking their dogs, etc.”[9] Because Wag More Dogs is located in a manufacturing area, Arlington’s sign code says it may have no more than 60 square feet of signage,[10] which is far less than the total area of Kim’s artwork.

Because of Kim’s illegal so-called “sign,” Arlington officials put a block on Wag More Dogs’ building permit, which made getting the business up and running impossible.  With her business hemorrhaging money, Kim asked what she could do to get the certificate of occupancy she needed to open her doors.  On August 13, 2010, Arlington officials replied by telling Kim that she would either have to paint over the mural entirely, change the dogs and bones to items that were unrelated to her business, or hide the mural behind a tarp.  Kim reluctantly agreed to the last option and, on September 15, 2010, Wag More Dogs went into business, albeit with an ugly blue tarp covering its artwork and a certificate of occupancy that will be rescinded should Kim remove the tarp without prior permission.

Wag More Dogs’ opening has been a boon to both Kim and the larger Shirlington community.  Wag More Dogs has hired trainers, groomers and receptionists to care for, feed and groom its canine clients.  And when Kim takes her dogs into the park, many people tell her both how much they appreciate her business and how they wished she could uncover her artwork.  As one local blogger[11] put it, “As the recession forces small businesses to close their doors every day, it’s a shame that a business that is trying to open is being blocked for artwork that is so much more attractive than a gray cinderblock wall.”

But still the tarp remains.  Arlington’s zoning administrator has said that Wag More Dogs could possibly resolve its problem by applying for a “comprehensive sign plan.”  But under Arlington law, a comprehensive sign plan is nothing more than asking for the arbitrary approval of government officials.  Just applying for a comprehensive sign plan is time consuming, can cost thousands of dollars and, as the zoning administrator frankly admitted, would likely not result in Kim securing the relief she needs.

Arlington County has made one other suggestion to Kim:  She may keep her artwork if, at her own expense, she will paint “Welcome to Shirlington Park’s Community Canine Area” in four-foot high letters above the mural.[12] Before she does this, however, Arlington officials told Kim that she must first send them a sketch of the proposed signage.  They will then review it and tell her if it passes muster.  In essence, Arlington wants Kim to hand over her art and turn it into the County’s sign.

Vague Laws Enable Capricious Officials, Stifle Entrepreneurs’ Freedom of Speech and Economic Liberty

These restrictions and demands by Arlington County have forced Kim to choose between her right to free speech and her right to earn an honest living.  But this dilemma is not simply the result of a few government officials who have chosen to behave badly.  Rather, it is the inevitable result of a legal system that gives government officials absolute discretion to treat entrepreneurs with absolute disdain.

The problems rest on the fact that, for several reasons, the Arlington sign ordinance is unconstitutional.  The first problem is that the ordinance is hopelessly vague:  Vague laws violate the First Amendment both because they fail to give people adequate notice of when they may speak, and because they give government officials such wide latitude that they implicitly authorize or even encourage arbitrary and discriminatory enforcement.[13]

The Arlington Zoning Ordinance defines a sign as any “design . . . used to direct, identify, or inform the public.”  But what does that definition mean in practice?  Although some messages clearly fall within the “direct, identify or inform” criteria (such as a sign that says “Eat at Joe’s” and features a large arrow pointing towards the restaurant), many others would leave an ordinary citizen with no idea if she must get a permit before putting up her artwork or mural.  Instead of running the risk of being investigated by zoning officials and fined, many people who would otherwise speak will remain silent.

In order to provide some structure, Arlington’s zoning ordinance calls on officials to closely inspect what an alleged sign says in order to decide whether it subject to regulation.  But this only raises a new problem:  Now a would-be speaker must figure out not what the vague words in the ordinance mean, but how the zoning administrator might possibly interpret them.  Here, Arlington officials have candidly stated that their conclusion that Wag More Dog’s artwork is a sign rests on a determination that its portrayal of dogs, bones and paw prints is “too closely related” to the services that Kim offers.[14] Similar situations[15] have come up in Arlington County in recent months, including one involving a church banner and another involving a mixed-use development project that wanted to put a banner around its fence during construction, but was told that it could not depict anything about the project or the buildings they would put up.  And so instead they had local artists give them paintings of clouds and waterfalls, which the Arlington County zoning official thought did not convey any information.  Like Kim’s dog park mural, whether these images were considered “signs” turned on the zoning administrator’s subjective interpretation of what the law demands.[16] Since there is no way of knowing for sure what the administrator will think about any specific sign, few will spend thousands of dollars and weeks of their time on a mere guess.

Because Arlington’s sign code requires county officials to divine a mural’s “message” in deciding if it can be regulated, it is an impermissible content-based restriction on speech.  The First Amendment strongly disfavors restrictions like this precisely because of the threat they pose to people’s rights.  As such, content-based restrictions are “presumptively invalid” and governments may impose them only if they can prove that the law passes the most rigorous of scrutiny.[17] In an analogous case last year, a federal court struck down a city’s determination that a mural of marine life on the side of a bait and tackle shop was a “sign” because its content was related to the products the shop offered.[18] The court held that because officials had to inspect the mural’s message to determine if it needed a permit, it was an impermissible content-based restriction on speech.[19]

And time and again, that is exactly what Arlington County is doing when it comes to judging whether a mural is a sign:  making an impermissible content-based restriction on speech.  Arlington is claiming it has the authority to regulate Wag More Dog’s artwork based on a completely subjective determination that the artwork bears a relationship to Kim’s business.  Placing unbounded discretion in the hands of government officials, though, is anathema to the idea that the First Amendment conveys upon individuals a right to speak, not a privilege to be doled out or withheld.  But freedom of speech is not self-vindicating; to ensure that every American is free to express themselves, we rely on judges to protect innocent people from government officials who are bent on enforcing vague and unconstitutional laws.  And that is exactly what the Institute for Justice is calling on the courts to do here.

The Defendants

The defendants in this case are Melinda A. Artman, who is being sued in her official capacity as the Zoning Administrator for Arlington County, and the County of Arlington, Va. 

The Litigation Team

The Institute for Justice filed its complaint in this case, Wag More Dogs LLC v. Artman, on December 2, 2010.  The litigation team for the Institute for Justice in this case is IJ Staff Attorneys Robert Frommer and Robert McNamara.

The Institute for Justice: A History of Protecting Free Speech and Economic Liberty

The Institute for Justice has a long history of successfully representing entrepreneurs nationwide who fought arbitrary government regulation, reviving the constitutional protection of the right to economic liberty—the right to earn an honest living in the occupation of one’s choice, free from excessive government regulation:

• Swedenburg v. Kelly—The Institute for Justice successfully waged the nation’s leading legal battle to reestablish the American ideal of economic liberty when, on May 16, 2005, the U.S. Supreme Court struck down discriminatory laws that existed only to protect the monopoly power of large, politically connected liquor wholesalers.  Virginia vintner Juanita Swedenburg and California vintner David Lucas joined wine consumers and IJ in filing this federal lawsuit as a challenge to the ban on direct interstate wine shipments in New York.  The case raised issues of Internet commerce, free trade among the states, and regulations that hampered small businesses and the consumers they sought to serve.

• Craigmiles v. Giles—The Institute for Justice secured a federal court victory striking down Tennessee’s casket sales licensing scheme as unconstitutional, a decision that was upheld unanimously in December 2002 by the 6th U.S. Circuit Court of Appeals and not appealed.  This marked the first federal appeals court victory for economic liberty since the New Deal.

• Franzoy v. Templeman—IJ represented two interior designers in successfully challenging New Mexico’s titling law, which prohibited anyone except government-licensed interior designers from using the terms “interior design” or “interior designer.”  The New Mexico Legislature amended the law, doing away with the speech restriction.  The Governor signed the bill into law in April 2007.

• Rissmiller v. Arizona Structural Pest Control Commission—In the fall of 2005, the Institute for Justice Arizona Chapter (IJ-AZ) challenged the state’s requirement that gardeners and landscape maintenance workers obtain three separate licenses simply to kill weeds with over the counter products.  As a result of this litigation, gardeners throughout the state are now free to control weeds using products available to the average consumer.

• Diaw v. Washington State Cosmetology, Barbering, Esthetics, and Manicuring Advisory Board—In March 2005, after being sued by the Institute for Justice Washington Chapter (IJ-WA) just seven months earlier, state lawmakers exempted African-style hairbraiders from discriminatory cosmetology-licensing requirements.

• Minneapolis Taxi Deregulation—In 2006, taxi entrepreneur Luis Paucar teamed with IJ to successfully lobby the City of Minneapolis to remove an artificial government-imposed cap on the number of taxis legally permitted to operate in city limits.  Not surprisingly, the existing taxi companies sued the city claiming the city took away their right to a fixed level of competition.  Paucar and IJ intervened in the case and got the court to recognize that there is no constitutional right to a competition-free market.  The court dismissed the case.  Based on this victory, three other Minnesota cities deregulated their taxi industries.

• Armstrong v. Lunsford—The Institute for Justice opened the hairbraiding market in Mississippi in 2005 when the state Legislature responded to this lawsuit, filed in federal court in 2004, by allowing IJ’s clients to continue their entrepreneurship without obtaining a needless government license.

• Alf v. Arizona Structural Pest Control Commission—In 2004, IJ-AZ persuaded Arizona bureaucrats to change their position on requiring teenage entrepreneur Christian Alf to obtain a government-issued license for his after-school handyman business helping local residents prevent roof rats.

• Farmer v. Arizona Board of Cosmetology—In 2004, as a result of an IJ-AZ lawsuit, the Arizona Legislature exempted hairbraiders from the state’s outdated cosmetology scheme.

• ForSaleByOwner.com Corp. v. Zinnemann—Also in 2004, the Institute for Justice prevailed in persuading the U.S. District Court for the Eastern District of California to stop the state of California’s efforts to impose real estate broker licensing requirements on an informational website.

• Wexler v. City of New Orleans—In 2003, the Institute for Justice successfully persuaded a federal court to strike down an absurd ordinance that prohibited booksellers from selling books on city sidewalks without a government-issued permit.

• Clutter v. Transportation Services Authority—In 2001, IJ defeated Nevada’s Transportation Services Authority and its entrenched limousine cartel that had stifled competition in Las Vegas’ limousine market.

• Cornwell v. California Board of Barbering and Cosmetology—In 1999, IJ defeated California’s arbitrary cosmetology licensing requirement for African braiders.

• Ricketts v. City of New York—The Institute for Justice successfully defended commuter-van entrepreneurs in 1999 in a fight against the government bus monopoly that would not allow any jitney entrepreneurs to provide service to consumers in underserved metropolitan neighborhoods in New York City.

• Jones v. Temmer—In 1995, IJ helped three entrepreneurs overcome Colorado’s protectionist taxicab monopoly to open Denver’s first new cab company in nearly 50 years.  IJ used this victory to help break open government-sanctioned taxicab monopolies in Indianapolis and Cincinnati.

• Uqdah v. D.C. Board of Cosmetology—In 1993, IJ’s work in court and the court of public opinion led the District of Columbia to eliminate a 1938 Jim Crow-era licensing law against African-style hairbraiders.

For more information, contact:

John E. Kramer

jkramer@ij.org