Wag More Dogs, LLC v. Cozart, No. 11-1226

Decided: May 22, 2012

Plaintiff Wag More Dogs, LLC, a “doggy daycare” business located in Arlington County, Virginia, (“County”) filed a lawsuit against the County seeking a declaratory judgment and an injunction after the County informed the business that a painting on the rear of its building violated a local sign ordinance.  The painting consisted of cartoon dogs, bones, and paw prints, and was intended by the store to “beautify the area” and “create goodwill” with people who visited the adjacent dog park.  Nonetheless, the painting measured approximately 960 square feet which was in contravention of the local proscription on commercial buildings from erecting “business signs” that exceed a total of 60 square feet.  The County deemed the store’s mural as a “business sign” because its contents—dog-related paintings—were associated with the store’s business of providing pet daycare services.

The Plaintiff challenged the County’s sign ordinance on its face, claiming that it was an unconstitutional content-based restriction on speech.  In addition, the Plaintiff claimed that as applied, the ordinance impermissibly restricted its noncommercial speech while not prohibiting other forms of noncommercial speech.  The Plaintiff’s content-based argument was based on the fact that the ordinance’s size limitation only applied to “business signs” and some signs, e.g., directional signs, “no-trespassing” signs, were completely exempt from the ordinance.   In addition, the Plaintiff claimed that the sign ordinance was unconstitutionally vague, and finally, that the ordinance’s prohibition was a prior restraint on the store’s right to exercise free speech.  The federal district court granted the County’s motion to dismiss and denied the Plaintiff’s motion for a preliminary injunction as moot.

On appeal, the Fourth Circuit held that the sign ordinance was content neutral on its face and easily survived an intermediate scrutiny test.  Though the ordinance imposed different requirements on different types of speech, the court found that the size restrictions on business signs were justified by reasons unrelated to the content being expressed.  According to the court, Wag More Dogs could not demonstrate that the government’s regulation on its freedom of expression was due to its “disagreement with the message” being conveyed by the business.  Instead, the regulation was justified by the County’s interests in promoting traffic safety and enhancing the area’s aesthetic environment.  Thus, “even if [the ordinance] has an incidental effect on some speakers or messages but not others,” that limited effect did not convert the permissible “time, place, and manner” restriction into an unconstitutional content-based restriction.  The court also rejected the Plaintiff’s argument that, as applied to its business, the ordinance was an unconstitutional restriction on noncommercial speech.  This argument failed, according to the court, because the painting on the rear of the Plaintiff’s building was “tantamount to advertising,” and as such, constituted commercial speech subject to the ordinance’s 60 square feet limitation on “business signs.”

In considering Wag More Dogs’ theory that the County’s definition of “sign” was too vague to be enforced, the Fourth Circuit ruled that “an ordinary person exercising ordinary common sense can sufficiently understand and comply with” the definition, especially when read with the accompanied provisions of the ordinance.  Finally, the court held that the ordinance was not an unlawful prior restraint on the business’s freedom of speech because the County’s zoning ordinance provided for a mechanism to apply to a county board for an exemption from the various sign restrictions.  In addition, Wag More Dogs had the opportunity to seek meaningful and “effective judicial review” from decision of the board “granting or failing to grant” the exemption.

Full Opinion

-John C. Bruton, III

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