Be Careful What You Ask For: The Dire Consequences of Backyard Chickens

Arlington County has been considering allowing backyard hens for a while now. It is commendable to find a way to obtain eggs in a way that doesn’t support big farms and the egg industry. However, backyard chickens in an urban community have the potential for very drastic – even deadly – consequences.

Surprisingly, Arlington County’s current zoning ordinance does not prohibit chickens, but Section 12.7.1 of the zoning ordinance does require poultry to be kept in a building, structure or yard located at least 100 feet from a street or lot line. Considering Arlington’s urban nature and small lots, this set back requirement prohibits the vast majority of residents from having chickens.

Not surprisingly, the County Manager recently recommended against backyard hens at a County Board work session last November. The staff had too many questions about hen raising, including what to do with dead, dying and abandoned hens, the impact on the Animal Welfare League of Arlington and animal control officers, and health and pest concerns.

The County Manager raised one other specific concern that Virginia residents may not be aware of – Virginia Code Section 3.2-6552 and its requirement to immediately kill any dog caught in the act of killing or injuring livestock or poultry. Yes, you read right – “kill”, not euthanize.  Section 3.2-6552’s language and requirements are so extreme that it’s worth it to post the statute verbatim here:

§ 3.2-6552. Dogs killing, injuring or chasing livestock or poultry.

It shall be the duty of any animal control officer or other officer who may find a dog in the act of killing or injuring livestock or poultry to kill such dog forthwith whether such dog bears a tag or not. Any person finding a dog committing any of the depredations mentioned in this section shall have the right to kill such dog on sight as shall any owner of livestock or his agent finding a dog chasing livestock on land utilized by the livestock when the circumstances show that such chasing is harmful to the livestock. Any court shall have the power to order the animal control officer or other officer to kill any dog known to be a confirmed livestock or poultry killer, and any dog killing poultry for the third time shall be considered a confirmed poultry killer. The court, through its contempt powers, may compel the owner, custodian, or harborer of the dog to produce the dog.

Any animal control officer who has reason to believe that any dog is killing livestock or poultry shall be empowered to seize such dog solely for the purpose of examining such dog in order to determine whether it committed any of the depredations mentioned herein. Any animal control officer or other person who has reason to believe that any dog is killing livestock, or committing any of the depredations mentioned in this section, shall apply to a magistrate serving the locality wherein the dog may be, who shall issue a warrant requiring the owner or custodian, if known, to appear before a general district court at a time and place named therein, at which time evidence shall be heard. If it shall appear that the dog is a livestock killer, or has committed any of the depredations mentioned in this section, the district court shall order that the dog be: (i) killed immediately by the animal control officer or other officer designated by the court; or (ii) removed to another state that does not border on the Commonwealth and prohibited from returning to the Commonwealth. Any dog ordered removed from the Commonwealth that is later found in the Commonwealth shall be ordered by a court to be killed immediately.

It’s difficult to fathom how this statute plays out in any jurisdiction, let alone in an urban jurisdiction like Arlington.  But take this as one example.  A neighbor’s chicken gets out of your neighbor’s yard and wanders into your backyard.  Your dog chases and injures or kills the chicken.  An animal control officer drives by just at that time, and sees the dog with the chicken.  Your neighbor is quite understanding and admits it was his fault for not keeping his chicken in his yard, and the animal control officer certainly doesn’t want to get involved.

Under Section 3.2-6552, the animal control officer has no choice but to kill the dog immediately.  The option to seize the dog isn’t applicable, because the animal control officer was an eyewitness to the events and there would be no need to have a hearing about whether your dog was the guilty party.  The animal control officer in all likelihood would not be carrying a firearm.  And even if a person lawfully has a firearm in Arlington, it is against the law to discharge a firearm in the county.  That leaves incredibly undesirable options like snapping the dog’s neck or beating the dog to death – actions that constitute cruelty.

A bill pending in the General Assembly proposes softening – but not eliminating – the dire consequences of Section 3.2-6552.  HB740 would allow localities with a population density of at least 3400 persons per square mile to pass an ordinance to limit or eliminate the animal control officer’s duty to kill or seize a dog, and to limit or eliminate an individual’s rights to kill the dog.

For those Arlington County residents who want local fresh eggs, you can have your cake and eat it, too, by shopping at Arlington County’s many wonderful local farmers’ markets and avoiding these potential hazards.

How To Handle Hybrids?

Maine is implementing a new law that requires a wildlife-in-captivity permit for wolf hybrids, and spaying or neutering for any current owners of hybrids.

It is legal to own a hybrid in Virginia, but Virginia Code Section 3.2-6582 allows localities to set up permitting systems to regulate such things as how many hybrids a person can own, identification by tags or tattoos, and the keeping and handling of hybrids.

Today’s Washington Post article quotes Jim Doughty, who runs a refuge with wolf hybrids, as saying that this law unfairly targets hybrids, and that:

Any animal, no matter whether it’s a pure wolf or a Chihuahua or a pug or anything else, depends on the person and how they raise it. It’s the same thing with your kids. If you’re abusive toward your kids, they’re not going to be so good. If you work with them, they’ll be great.

I disagree with Doughty. Although I am an avid critic of breed specific legislation, I see wolves and wolf hybrids in a very different light from pit bulls and other dog breeds. No good comes of spreading the rumor that dogs and wolves are one in the same. For many reasons – including for safety, and from a behavior and training perspective – the public needs to be made aware of the fact that dogs are not wolves – and wolves are not dogs.

The difference between wolves and dogs comes across very clearly in John Bradshaw’s excellent book Dog Sense. The following video clip from BBC’s Secret Life of Dogs shows nature winning out over nurture when scientists try to raise wolf cubs like puppies (starting at 2:53 in this clip):

What is your experience with hybrids? Are you for or against a permit system for the ownership of hybrids like Maine has just passed?

No Dogs Allowed! Judge Brinkema Upholds Arlington’s Sign Ordinance

As you know, I was rooting for Wag More Dogs, the Arlington doggie daycare adjacent to the Shirlington Dog Park that took on Arlington’s sign ordinance in the US District Court for the Eastern District of Virginia.  Judge Brinkema took Arlington County’s motion to dismiss under advisement, and has recently weighed in, unfortunately ruling against Wag More Dogs.

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.

Sign Or Artistic Speech? Wag More Dogs Takes On Arlington County To Find Out

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.

Understandably, none of these options were all that appealing to Wag More Dogs.  Along came the Institute for Justice, whose motto is “Litigating for Liberty.”  The Institute just filed a complaint on behalf of Wag More Dogs in the U.S. District Court for the Eastern District of Virginia. 

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:

Residents, local businesses and dog park patrons are rooting for Wag More Dogs on this one.  And this stand-off has created quite a stir in the media – from the Washington Post to the Washington Business Journal.  The Institute for Justice’s website also has a great page about the law suit. 

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?

Protecting Your Business: A Checklist For New (And Existing!) Pet Care Businesses In Virginia

Whether you are starting up a new pet care business, or you want to make sure you are covering your bases with your existing business, here’s a great checklist for you.  Watch for more details on these steps in later posts.

1.         Choose a name and protect your mark.  Before settling on a name, check for name availability with both the Clerk’s Office for Virginia’s State Corporation Commission and the U.S. Patent and Trademark Office.  It’s not enough to make sure that no one is using the name of your business.  To fully protect your mark, it is well worth registering your mark on the state level and filing a trademark application with the USPTO.  It usually pays off to consult with a trademark attorney at this step.

2.         Choose a business entity.  The most common entities are a sole proprietorship, a partnership, a limited liability company (LLC) and a corporation.  LLCs are a popular choice for businesses due to the LLC’s flexibility.  It is often in your best interest to consult with a corporate attorney at this point.

3.         Register your business.  Corporations, LLCs and limited partnerships must register with the Virginia State Corporation Commission.  If you are a franchise, you will also have to register with the State Corporation Commission’s Division of Securities and Retail Franchising.

4.         Register any trade names and general partnerships.  If you are using a trade name that is other than your entity’s official name, make sure that you register the trade name with your local Circuit Court Clerk’s Office.  Note that general partnerships also need to register with the Circuit Court.

5.         Check on state requirements.  Depending on your profession and business, you may have state licensing, registration or other requirements.  For instance, veterinarians and veterinary facilities must comply with licensing and registration requirements for the Virginia Board of Veterinary Medicine and the Virginia Department of Health Professions.  Commercial dog breeders, animal shelters and pounds, and rescues are subject to state reporting and other requirements.  Non-profits also have to register with the Virginia Department of Agriculture and Consumer Services’ Division of Consumer Protection to solicit as a charitable organization.  Various state laws also impact groomers, dog kennels and boarding facilities.

6.         Comply with zoning and permitting requirements and code regulations.  You will need to check with your local jurisdiction to ensure that you have complied with zoning and permitting requirements.  This step is more streamlined in some jurisdictions than others.  For instance, the City of Alexandria has created a “Permit Center” as a “One Stop Shop” in an effort to simplify this process.  (By the way, in 2010, Alexandria changed its small business zoning to add a new permitted use in the Cameron Station area for pet supplies, grooming and/or training with no overnight accommodations, if you’re looking for a location!)  Additionally, be sure to check on all building and other code regulations.

7.         Get a local business license.  Once you have registered your business and complied with your locality’s zoning and permitting requirements, you need to get a business license.  This license must be renewed annually.  When you apply for a license, this will also trigger the duty to estimate and pay your local business, professional and occupational license (BPOL) taxes.

8.         Comply with tax requirements.  Along with your BPOL taxes, make sure you have complied with other local tax requirements, such as business personal property taxes.  Of course, you also need to comply with state and federal taxes.  If you run a non-profit such as a rescue, make sure that you look into federal, state and local tax exemptions.  This is another time when you may want to seek help from a tax attorney or accountant.

9.         Get insurance.  Look into the many different insurance policies designed to protect your business, including insurance for general liability, professional liability and malpractice, umbrella liability, business property, business income and extra expense, animal bailee, equipment and commercial automobile coverage.  A good insurance broker can help you out here.

10.       Keep accurate and complete business records.  Generally, the privilege of obtaining a state or local license carries with it the state or locality’s right to audit your business and inspect your records.  Additionally, as mentioned above, certain businesses such as commercial dog breeders, animal shelters, pounds and rescues have their own obligations to maintain records and report information.  The importance of keeping accurate and complete records cannot be emphasized enough. 

Too many people think that they can start out on their own with a business such as dog walking, dog training or animal rescue without following these steps.  You can’t just wait until you have a solid clientele base before you worry about setting up and registering your business entity, getting insurance and a business license, and complying with these other requirements.  If you lack the resources to comply with these requirements prior to taking on your very first client, you should work for an established company for a while first before you take that leap. 

This post is not meant to be a full checklist of everything that is required for your particular business, but it is a great starting point to make sure that you have thought of the most important items to start up and protect your business.  Another great resource in thinking through whether you are ready to start your own business is the Virginia Department of Business Assistance’s Business One Stop Service.