It's hard to see why the colorful mural of cartoon puppies on the side of Kim Houghton's business is controversial. The dogs aren't lifting a leg on a religious icon or engaging in any lewd behavior. They're not even playing poker. They're just frolicking and chasing bones.
But the 1,000-square foot mural facing the popular Shirlington Dog Park is now the subject of a federal lawsuit.
Houghton, owner of a doggie day care business called Wag More Dogs, sued Arlington County on Thursday in U.S. District Court in Alexandria, seeking permission to uncover the mural.
The county said the mural's content -- replete with puppies, bones and paw prints -- makes it a commercial sign subject to county regulations, and those regulations don't allow signs larger than 60 square feet. The mural is currently covered up with a giant blue tarp at the county's insistence.
Houghton, who sold ads at The Washington Post for more than 20 years before recently launching her business, acknowledged that some of the cartoon dogs in the mural bear a resemblance to the dogs in her company logo. But she said her primary purpose was to brighten up the dog park. She deliberately avoided including the name of her business or any text that would associate the mural with her business.
But the county says that under its code, a mural on the side of a dog business that depicts dogs is a sign, not art.
"Once we have decided it's a commercial sign, we have an obligation make sure it complies with our ordinance," said county spokeswoman Mary Curtius. "We were surprised by the lawsuit. ... We have been working with this business owner for quite some time and trying to accommodate her."
Houghton's lawyer, Robert Frommer with the Arlington-based Institute for Justice, said the county can't be in the business of reviewing a mural's content and deciding for itself whether a mural is artwork or advertising. That's an unconstitutional infringement of free speech, Frommer said.
Frommer said counties clearly have the right to regulate commercial signage. But the fact that Houghton's mural says nothing about her business places it outside the scope of any legitimate regulation.
"Whatever gray areas there might be (in distinguishing advertising from artwork), this mural is far from it," said Frommer, whose institute has filed numerous lawsuits challenging what it sees as overzealous regulation of small businesses.
The law leads to ridiculous interpretations, Frommer said. Houghton was told the mural could depict anything but dogs, even though it would be seen outside a dog park. At one point, Houghton planned to have the dogs repainted as flowers to comply with the regulations.
Curtius said the county also offered, as a compromise, to allow the mural if Houghton painted "Welcome to the Shirlington Dog Park" or words to that effect to clarify that the mural promotes the dog park and not her business.
Houghton said the proposed compromise wasn't that simple. The county was insisting on 8-foot high letters spelling out the exact phrase "Welcome to Shirlington Park's Community Canine Area," which wouldn't fit on the side of the building and would cost $7,000 in addition to the $4,000 she already spent on the mural.
After several months of discussions that Houghton said were ultimately not productive, she decided to sue.
"I wasn't going to just walk away and whitewash " the mural, Houghton said.
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