By all means, ring in 2014 – but don’t be too loud! You may be kicking off the new year with a new noise ordinance.
Fairfax County and other localities in Virginia have not been enforcing noise ordinances since 2009, when the Supreme Court of Virginia struck down Virginia Beach’s noise ordinance as unconstitutionally vague in Tanner, et al. v. City of Virginia Beach, 277 Va. 432 (2009). Virginia Beach’s ordinance prohibited “unreasonably loud, disturbing and unnecessary” noise that is “detrimental to the life or health of persons of reasonable sensitivities.” The noise at issue involved hip-hop, punk rock and indie music pumping from Virginia Beach’s Peppermint Beach Club on Atlantic Avenue.
The language in Fairfax County’s old noise ordinance was very similar to the Virginia Beach ordinance, prohibiting “any unnecessary sound which annoys, disturbs or perturbs reasonable persons with normal sensibilities.” By contrast, Fairfax County’s new noise ordinance will prohibit noise “that is audible in any other person’s residential dwelling with the doors and window’s to the other person’s residential dwelling closed.”
With the old ordinances, local officers became particularly adept at trying to resolve noise conflicts in creative ways. Hopefully these efforts will not fully disappear as jurisdictions amend their noise ordinances. Slapping someone with a ticket or a lawsuit is much less effective that solving the underlying problem – particularly with an incessantly barking dog. For excellent ideas about how to address excessive barking, take a look at this recent blog post by trainer Veronica Sanchez with Cooperative Paws in Vienna, Virginia!
Arlington County’s sign ordinance defines “sign” as “[a]ny word, numeral, figure, design, … [or] display … used to direct, identify, or inform the public while viewing the same from outdoors.” The ordinance requires a permit before a business can display a sign, and limited Wag More Dogs to three signs totaling no more than 60 square feet. The $4000 mural is 16 feet by 60 feet – 960 square feet.
The County declared the mural a prohibited sign, and gave Wag More Dogs three options: (1) pay a non-refundable $1,782 fee for a special exception permit which may be granted or denied; (2) paint something else unrelated to the business like flowers over the dogs and bones; or (3) paint “Welcome to Shirlington Park’s Community Canine Area in four-foot high letters above the mural to create an informational sign that would not need a permit. Retaining the mural would result in civil fines and possibly even criminal prosecution.
Wag More Dogs decided to fight back, and filed suit in federal court, bringing a First Amendment challenge against Arlington County’s sign ordinance. The County responded with a motion to dismiss, which Judge Brinkema heard last month. Earlier this month, Judge Brinkema issued a 33-page Memorandum Opinion.
Judge Brinkema’s first line of business was to decide whether the federal court had subject matter jurisdiction over the dispute. The County argued that Wag More Dogs lacked standing to challenge the sign ordinance because its mural was so clearly in violation of the ordinance. I didn’t really follow this or why the County even tried to make this argument. Judge Brinkema easily found that Wag More Dogs had standing, which takes three things: (1) injury in fact – losing the mural and suffering civil fines and criminal prosecution is about as straightforward as injury gets; (2) causation – the ordinance itself spells out the penalties constituting the “injuries in fact”; and (3) redressability – striking down the ordinance would redress Wag More Dogs’ issues with the statute.
So far, so good for Wag More Dogs. But unfortunately, this is where Wag More Dogs’ luck runs out.
Judge Brinkema’s opinion goes on to analyze Wag More Dogs’ constitutional challenges, which came in three layers: (1) the ordinance violates Wag More Dogs’ right to free speech and artistic expression; (2) the ordinance is overbroad and vague; and (3) the County’s alternatives restrain speech or unconstitutionally compel speech.
Looking first at the free speech argument, Judge Brinkema had to determine what level of scrutiny would apply to the sign ordinance. Quintessential political or artistic speech earns the highest form of scrutiny – strict scrutiny. But Judge Brinkema concluded what was at issue is a content neutral ordinance aimed at commercial speech, warranting only intermediate scrutiny.
The intermediate scrutiny test requires the sign ordinance to serve a “substantial” government interest, in a manner that is “in proportion” to that interest and no more restrictive than necessary to achieve it. The purposes of the sign ordinance are traffic safety and avoiding visual clutter, which courts have not hesitated to conclude are “substantial” government interests. Judge Brinkema also found that the sign ordinance was in proportion with its interest, because it merely restricted the size and number of signs without banning commercial speech.
Next, Judge Brinkema analyzed Wag More Dogs’ argument that the ordinance was overbroad and vague. Wag More Dogs made both a “facial challenge” and an “as applied” challenge. For the facial challenge based on vagueness, Wag More Dogs would need to show that no set of circumstances exists under which the law would be valid. Judge Brinkema had no problem finding that the ordinance, and its definition of “sign” as something that “directs, identifies or informs,” was not vague because it used words of common usage, with plain and ordinary meanings easily understood by the average person.
For the “as applied” challenge, Wag More dogs pointed to an email from County Zoning Administrator Artman saying that “the mural cannot show anything that has any relationship with your business,” such as “dogs, bones, paw prints, pets, people walking their dogs, etc.” Judge Brinkema was not troubled by this “any relationship” test, saying that Wag More Dogs failed to allege the County even really uses that test, and that even if it did, a reasonable person could easily understand and apply the test.
Lastly, Judge Brinkema analyzed the County’s proffered alternatives of applying for a special exception permit, painting over the mural or adding language to it. Judge Brinkema handily dismissed these arguments. She found that the County’s special exception permit scheme needed only adequate standards and a fair opportunity for judicial review, which were built into the County’s Comprehensive Sign Plan. Regarding painting over the mural, or adding language to make the mural an informational sign, Judge Brinkema noted that these was only options, and could not be considered unconstitutionally compelled speech.
In the end, Judge Brinkema granted the County’s motion to dismiss, ending the case at a very early stage. We’ll see if the Institute for Justice continues the fight with an appeal.
As unfair as it may seem, the truth is that it takes a lot to strike down an ordinance. You can see how difficult it was, even when the right to free speech was at issue. At least Wag More Dogs had the benefit of intermediate scrutiny for its constitutional challenge, and Judge Brinkema still did not hesitate to uphold the sign ordinance. Imagine if free speech were not an issue. With statutes like breed specific legislation, there is no heightened scrutiny, with courts applying a “rational basis” test. You will hear me moan about this when I start blogging about breed specific legislation – I promise, it’s coming!
While there may be some basis behind Arlington’s sign ordinance, the ordinance produces inconsistencies that are hard to deal with. For instance, if Wag More Dogs were beside a flower shop, theoretically the flower shop could put up the Wag More Dogs mural, and Wag More Dogs could paint flowers on its wall. As another example, graffiti like what has been tagged on the walls of The Muddy Mutt next door is not off-limits. I don’t know about you, but I’d much rather look at the Wag More Dogs mural.
If you’ve been watching updates about animal crush videos on my blog, or getting the news elsewhere, you’ve been anxiously awaiting the day for President Obama to sign Amended HR 5566 into law. That day has finally come!
Amended HR 5566 addresses the void in the law left by US v. Stevens, in which the United States Supreme Court struck down Congress’s previous effort to criminalize animal crush videos.
The only lingering question is whether Amended HR 5566 will also address depictions and videos of other forms of animal abuse – most notably dog fighting, which was precisely the issue in Stevens.
Dog owners here in the Northern Virginia area are fortunate to have a choice of many great dog parks. Ask any number of people, and they will likely tell you Shirlington Dog Park is the best of the bunch. Where else can your dog frolic and play in fully enclosed acreage, and even take a dip in waters deep enough to swim?
So it is no surprise that Kim Houghton chose a space right off of the Shirlington Dog Park to open up Wag More Dogs, a new doggie daycare, boarding and grooming facility. As wonderful as Shirlington Dog Park is, there is one huge drawback. The park is sandwiched between Four Mile Run and a commercial district, and when your back is facing Four Mile Run, the view is – “industrial.” Or, “warehouse-y.” Well OK, it’s downright ugly:
To beautify the view from the park, Ms. Houghton paid $4000 to commission local artist Mark Gutierrez to paint this 16’ x 60’ mural of joyful dogs and dog bones on the back side of the building:
Arlington County reacted by freezing Wag More Dogs’ building permit. The County’s justification? The mural was a prohibited “sign” under the Section 34 of the Arlington County Zoning Ordinance because it shows “dogs at play” and directs the viewer’s eyes to the store’s emergency exit. And if the “sign” didn’t come down, the penalty could be a $200 civil fine. If ten more days went by, there could be up to a $500 civil fine for each subsequent violation, up to a total of $5000 in fines. After that point, the matter could be referred to the Commonwealth Attorney’s office for criminal prosecution.
Arlington County Zoning Ordinance Section 34(B) defines a “sign” as any “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.” For commercial buildings in an M District (like Wag More Dogs’ building), each tenant is allowed a maximum total sign area of the greater of either 60 square feet, or one square foot per linear foot of the tenant’s frontage. Displaying a sign requires a sign permit from the Zoning Administrator. Artwork requires no permit.
One option for Wag More Dogs was to apply for a “Comprehensive Sign Plan.” According to the County, the Arlington County Board was unlikely to approve a Comprehensive Sign Plan, but Ms. Houghton was welcome to try – after applying for a use permit, paying a non-refundable fee of $1782 and waiting at least two months for an outcome.
Another option the County suggested was to change the pictures in the mural to something other than dogs, bones, paw prints – anything except something having to do with dogs and pets, so that there would be no relationship to the business.
In the meantime, Wag More Dogs had to cover the mural with tarp. In September 2010, the County issued Wag More Dogs a temporary certificate of occupancy, conditioned on the tarp staying in place. So now when you are romping with Rover in the dog park, you see this:
After the tarp was in place, the County suggested yet a third option – turning the mural into an “informational sign” that would not require a permit if Ms. Houghton, at her own expense, added “Welcome to Shirlington Park’s Community Canine Area” in letters at least four feet high.
The complaint argues that the County’s definition of “sign” is unconstitutionally vague and an unlawful restriction on free speech. Wag More Dogs is demanding declaratory relief that the sign definition is unconstitutional, an injunction against messing with the mural and Wag More Dogs’ certificate of occupancy, nominal damages in the amount of $1 and attorney’s fees and costs.
There is no doubt that murals go a long way to beautifying neighborhoods, particularly in commercial areas. Many local neighborhoods like Del Ray and Arlandria have great murals that add charm and character up and down Mount Vernon Avenue:
I will be watching and reporting on how all of this unfolds. In the meantime, I will join my neighbors and fellow dog park patrons in cheering on Wag More Dogs and the Institute for Justice!
If it were up to you, what would it be — art or signage?
It has already been a great week, with very positive news regarding two pressing issues — crush videos and electronic collars.
In Cleaning Up The Mess After United States v. Stevens: Amended H.R. 5566, I recently talked about how previous federal legislation designed to combat “crush videos” ended up being struck down by the United States Supreme Court. The House immediately introduced a bill to fix the problem, which the Senate tweaked. The next step was reconciling the differences between the House bill and the Senate amendments.
Robert Stevens owned and ran a business called “Dogs of Velvet and Steel,” selling graphic videos depicting pit bulls participating in dog fighting or attacking other animals. Two of these videos were “Japan Pit Fights” and “Pick-a-Winna: A Pit Bull Documentary,” with 1960s and 1970s footage of American dog fights, along with contemporary dog fights in Japan, where dog fighting is supposedly legal. A third video, “Catch Dogs and Country Living,” shows pit bulls hunting wild boar, and has a scene in which a pit bull gruesomely attacks a domestic farm pig.
Stevens was charged with violations of 18 U.S.C. §48, which made it a crime punishable by up to five years in prison if someone knowingly “creates, sells, or possesses a depiction of animal cruelty,” if done “for commercial gain” in interstate or foreign commerce. A depiction of animal cruelty under Section 48 was one “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,” if that conduct violates federal or state law where “the creation, sale, or possession takes place.” Section 48 had built-in exceptions for any depiction “that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.”
Section 48 was designed primarily to target crush videos, which show horrendous acts of animal cruelty that are punishable as a crime in all fifty states and the District of Columbia. Congress felt the need to enact Section 48 to combat the fact that law enforcement typically cannot identity of the participants in crush videos, which may only show the person’s leg or foot. Like animal cruelty, dog fighting is illegal in all fifty states and the District of Columbia, and has been regulated federally since 1976.
In the Stevens opinion, the Court first looked at what kinds of “speech” are so unworthy of protection that they fall completely outside of the First Amendment, such as child pornography. The Government argued that depictions of animal cruelty should be carved out of First Amendment protection just like child pornography, but the eight Justices in the majority (sans Justice Alito, the lone brave dissenter) did not buy it.
Next, the Court looked at Stevens’ challenge to Section 48 “on its face,” arguing that Section 48 was so overbroad that it captured too many lawful acts its sweep. The Court was deeply disturbed by the fact that the terms “wounded” and “killed” in the definition of a depiction of animal cruelty presumably had no requirement that the underlying acts be “cruel,” capturing videos about livestock and hunting in Section 48’s sweep. Section 48’s exceptions did not give the Justices enough comfort that livestock and hunting videos would escape prosecution.
The Court struck down Section 48 and relieved Stevens of his conviction and well-deserved thirty-seven month sentence. However, at the end of the opinion, the Court limited its decision to its finding that Section 48 was overbroad. This left the window open for the possibility that a more narrow statute would be upheld as constitutional. For a wonderful analysis of what the Court did and did not do in Stevens, be sure to catch Matthew Liebman’s post on the Animal Legal Defense Fund Blog, Clarifying the Supreme Court’s United States v. Stevens Opinion. In that post, Liebman found the silver lining of the Stevens opinion to be the potential that the Justices would uphold a statute specifically tailored to crush videos and dog fighting.
Stevens was decided on April 20, 2010. In the days that followed, organizations like the Animal Legal Defense Fund and the Humane Society urged Congress to pass a new statute that could overcome the issues raised by the Court in Stevens. Fortunately, Congress responded swiftly.
On September 28, 2010, the Senate responded by passing H.R. 5566 EAS (“Engrossed Amendment Senate”), targeting the “extreme animal cruelty” depicted in crush videos. The new statute seems plenty narrow to withstand constitutional attack. My fear is that it is too narrow, arguably allowing dog fighting videos – the very situation raised in Stevens – to squeak by unprosecuted. The bill now goes back to the House to resolve the differences between H.R. 5566 and H.R. 5566 EAS.
UPDATE: Please take a look at Steve Dale’s recent post on the Facebook Legalizing Dog Fighting page. Their message? “Legalize dog fighting. Pets are not people. They are your pet. something you own. If i’m not mistaken when you own something you can do what you want with it.” Seems they need to read up on the animal cruelty and animal neglect laws in all fifty states and the District of Columbia. Steve Dale describes how to help shut down the page for its blatant promotion of illegality and violence. Please take the time to do so.
UPDATE #2 (10/17/2010): Facebook took down the Legalizing Dog Fighting page, only to have the group put up a new one. Please take a moment to go to Steve Dale’s new blog post and report this page, too.
UPDATE #3 (10/18/2010): The second page is also down!
UPDATE #4 (10/18/2010): There is a third page up. How is this for their new message: “Dog fighting is good clean fun and a great activity to bring families together for an evening of entertainment. The best part is there is an abundant supply of FREE pit bulls available through your local shelter and craigslist.” Please take time to report this page.
UPDATE #5 (10/19/2010): And the third page is down now.
By all means, ring in 2014 – but don’t be too loud! You may be kicking off the new year with a new noise ordinance.
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