Wag More Dogs, Ltd. v. Cozart

• Decision Date: 22 May 2012
• Docket Number: No. 11–1226.,11–1226.
• Citation: 680 F.3d 359
• Parties: WAG MORE DOGS, LIMITED LIABILITY CORPORATION, Plaintiff–Appellant, v. Norma J. COZART, in her official capacity as (acting) Zoning Administrator for Arlington County, Virginia; Arlington County, Virginia, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

680 F.3d 359

WAG MORE DOGS, LIMITED LIABILITY CORPORATION, Plaintiff–Appellant,

v.Norma J. COZART, in her official capacity as (acting) Zoning Administrator for Arlington County, Virginia; Arlington County, Virginia, Defendants–Appellees.

No. 11–1226.

United States Court of Appeals,Fourth Circuit.

Argued: March 21, 2012.

Decided: May 22, 2012.

ARGUED: Robert Peller Frommer, Institute For Justice, Arlington, Virginia, for Appellant. Carol Winfield McCoskrie, County Attorney's Office, Arlington, Virginia, for Appellees. ON BRIEF:Robert J. McNamara, William H. Mellor, III, Institute For Justice, Arlington, Virginia, for Appellant. MinhChau N. Corr, County Attorney's Office, Arlington, Virginia, for Appellees.

Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge DIAZ wrote the opinion, in which Judge DUNCAN and Judge KEENAN joined.

OPINION

DIAZ, Circuit Judge:

Wag More Dogs, LLC appeals the district court's dismissal of its complaint, which alleged that Arlington County's sign ordinance violated the First Amendment. We agree with the district court that the ordinance is a content-neutral restriction on speech that satisfies intermediate scrutiny. Finding no merit to the other constitutional challenges, we affirm.

I.

A.

Like most local governments throughout the country, Arlington County (“Arlington”) has enacted a comprehensive zoning ordinance. Several provisions of the zoning ordinance pertain to the display of signs (“Sign Ordinance”). Arlington enacted the Sign Ordinance to “regulate the construction, placement and display of signs in order to maintain the health, safety, convenience and welfare of residents and businesses of the County, as well as the overall visual appearance throughout the County.” Arlington County, Va., Zoning Ordinance § 34.¹ Among other aims, Arlington promulgated the Sign Ordinance to “reduce the traffic hazards caused by ... unregulated signs” and to enhance the aesthetic environment of the County. Id.

The Sign Ordinance defines “sign” as “[a]ny word, numeral, figure, design, trademark, flag, pennant, twirler, light, display, banner, balloon or other device of any kind which, whether singly or in any combination, is used to direct, identify, or inform the public while viewing the same from outdoors.” Id. § 34(B). It further provides as a general rule that “[a] sign permit shall be obtained from the Zoning Administrator before any sign or advertising is erected, displayed, replaced, or altered so as to change its overall dimensions.” Id. § 34(A)(1).

Two categories of signs are not subject to the permit process. The first, a list of signs permitted in all zoning districts without permits, includes fifteen types of signs and covers such rudimentary postings as official notices required by law, “no trespassing” signs, and directional signs. Id. § 34(E). A second category lists fourteen types of prohibited signs—most of which involve jarring or otherwise-distracting displays—for which no permit may be issued. Id. § 34(C). A catchall provision allows noncommercial speech on a sign wherever commercial speech is permitted. Id. § 34(A)(4).

The Sign Ordinance sets out intricate requirements for various types of signs located in different zoning districts. Relevant to this appeal, a provision includes size regulations for businesses in “C” and “M” districts (“Business Sign Provision”). Id. § 34(G). The Business Sign Provision mandates that an individual obtain a sign permit before erecting a “business sign”—that is, a sign “identifying the products or services available on the premises or advertising a use conducted thereon.” Id. “On the walls of commercial buildings in all ‘C’ and ‘M’ Districts,” businesses are allowed to display “up to three (3) signs for each tenant, up to a maximum total sign area of sixty (60) square feet per tenant, or a total sign area of one (1) square foot per linear foot of the tenant's frontage, whichever is greater.” Id. § 34(G)(1).

If a proposed sign does not otherwise qualify for a permit under the Sign Ordinance but does not fall under the prohibited-signs category, an individual may seek a special exception through a “comprehensive sign plan.” Id. § 34(A)(3). The provision detailing the process through which Arlington evaluates applications for a comprehensive sign plan (“Comprehensive Sign Plan Provision”) states as follows:

Use permits may be issued for any of the special exceptions or conditional uses for which a use permit is required by the provisions of this ordinance; provided, that the County Board shall find that after a duly advertised hearing, the use will not: (1) affect adversely the health or safety of persons residing or working in the neighborhood of the proposed use; (2) be detrimental to the public welfare or injurious to property or improvements in the neighborhood; (3) be in conflict with the purposes of the master plans of the County.

Id. § 36(G)(1).

Individuals who violate the Sign Ordinance are initially subject to civil penalties. Arlington imposes a $200 fine on a first-time violator, and fines steadily increase for subsequent transgressions. Id. § 37(D)(1). When an individual has accrued $5000 or more in fines, Arlington may prosecute the violation as a criminal misdemeanor. Id. § 37(G).

B.

Kim Houghton owns and maintains Wag More Dogs, LLC (“Wag More Dogs”), a “doggy daycare” business located in an “M” district in Arlington, Virginia. Houghton sought to position her store near the Shirlington Dog Park, ultimately renting a space in 2009 adjacent to the park. In an effort to “beautify the area” and to “create goodwill with the people who frequented the dog park, many of whom were potential Wag More Dogs customers,” Houghton commissioned a painting on the rear of the business's building. J.A. 8. The final product, measuring approximately 960 square feet, incorporated some of the cartoon dogs in Wag More Dogs' logo. Houghton described it as including “happy cartoon dogs, bones, and paw prints.” Id. 5.

On August 13, 2010, Arlington County Zoning Administrator Melinda Artman emailed Houghton to inform her that the painting violated the Sign Ordinance. Specifically, the painting exceeded the size limitations imposed on signs displayed in “M” districts, in contravention of section 34(G)(1) of the Sign Ordinance. Artman stated that an administrative lock would remain on the building permit until Houghton cured the violations. Houghton could either paint over the display or apply for a comprehensive sign plan to maintain compliance with the Sign Ordinance, though her chances of success with the latter option were dubious, according to Artman. In the interim, Artman told Houghton to cover the painting with tarps if she elected not to paint over it.

Houghton followed up with Artman by email, asking what steps she could take to ensure that the painting was not considered a business sign. Artman responded as follows:

For the mural to NOT be considered a sign, it may depict anything you like EXCEPT something to do with dogs, bones, paw prints, pets, people walking their dogs, etc. In other word [sic], the mural can not [sic] show anything that has any relationship with your business. If it does, then it becomes a sign.

Id. 37. Houghton ultimately covered the painting with tarps, and Artman released the lock on her building. Artman subsequently issued Wag More Dogs a final certificate of occupancy on September 27, 2010, under the condition that the tarps remain in place over the painting.

About two weeks later, Arlington officials sought to reach an accommodation with Houghton so that she could remove the tarps while keeping the painting mostly intact. They told her that she could include the words “Welcome to Shirlington Park's Community Canine Area” above the artwork, which would convert the painting from an impermissible sign into an informational sign not requiring a permit under the Sign Ordinance. Houghton declined.

C.

Unable to display the painting because it violated the Sign Ordinance, Wag More Dogs filed suit against Artman ² and Arlington. It challenged the Sign Ordinance on a variety of First Amendment grounds. Wag More Dogs first contended that the Sign Ordinance was an impermissible content-based restriction on speech, both facially and as applied to the business. It then alleged that the Sign Ordinance was unconstitutionally vague. Augmenting the vagueness attack by referencing Artman's email to Houghton, Wag More Dogs claimed that Artman enforced the ordinance using an impermissibly vague “any relationship” test—i.e., she would consider any display to constitute a “business sign” if it had any relationship to the on-site business. Wag More Dogs further alleged that the Comprehensive Sign Plan Provision operated as an unconstitutional prior restraint on speech. Finally, it claimed that Arlington's offer of accommodation—in which Houghton could display the painting if she included above the artwork “Welcome to Shirlington Park's Community Canine Area”—qualified as unconstitutionally compelled speech. Wag More Dogs sought declaratory and injunctive relief for these alleged First Amendment violations.

Wag More Dogs filed a motion for a preliminary injunction, while Arlington and Artman moved to dismiss the complaint. The district court granted the motion to dismiss with prejudice and denied the motion for a preliminary injunction as moot. The court initially held that the Sign Ordinance was a content-neutral restriction on speech that easily satisfied intermediate scrutiny, rejecting Wag More Dogs' facial and as-applied challenges. The court further found no merit to Wag More Dogs' vagueness challenges. It first concluded that the Sign Ordinance's definition of “sign,” when read in the context of the rest of the regulation, was not impermissibly vague. The court next held that Wag More Dogs had not plausibly alleged that Arlington uses the “any relationship” test as a decisive interpretation,...