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Case 1:10-cv-01347-LMB -TCB Document 16 Filed 12/30/10 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF VIRGINIA

WAG MORE DOGS, LLC )


)
Plaintiff, )
)
v. )
)
MELINDA M. ARTMAN, et al. ) Civil Action No. 1:10cv1347
)
)
Defendants. )
)

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’


MOTION TO DISMISS FOR FAILURE TO
STATE A CLAIM AND LACK OF JURISDICTION

Defendants Melinda M. Artman, in her official capacity as the Zoning Administrator for

Arlington County, Virginia (“Ms. Artman” or “Zoning Administrator”), and Arlington County,

Virginia (Ms. Artman and Arlington County, Virginia will be referred to together as the

“County”) submit this Memorandum of Points and Authorities in support of their Motion to

Dismiss For Failure to State A Claim and Lack of Jurisdiction. On December 3, 2010, the

County was served with “Plaintiff’s Original Complaint for Declaratory and Injunctive Relief”

(“Complaint”) which had been filed on behalf of Plaintiff Wag More Dogs (“WMD”). Because

the Complaint fails to state any claim upon which this Court could grant relief, and because

WMD lacks standing to challenge the Arlington County Zoning Ordinance (“ACZO”) the

County respectfully requests that this case be finally dismissed, with prejudice.

The Complaint fails to state a claim because it utterly fails to articulate any plausible

basis on which the Court could grant relief. The facts it includes tell how Ms. Houghton, the

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owner of WMD, painted a huge sign on the wall of her business, but do not include any facts that

show how the County’s ordinance, which prohibits that sign, is not constitutional under

governing law. The Complaint offers legal conclusions, but these are not entitled to be taken as

true. As is shown below, under a proper legal framework, WMD cannot succeed on any of the

five claims, and therefore the County asks that the Complaint be dismissed.

The Complaint was filed on December 2, 2010. It contains a Count One entitled

“Freedom of Speech” and then includes four more headings, which appear to reflect an effort to

state additional counts. However, the Complaint does not articulate any actual constitutional

wrong with specificity. In some cases there are inadequate allegations of any sort to state a legal

basis for a claim, and in other cases incorrect legal conclusions are relied on. Such allegations

are not entitled to be taken as true by this Court. Under governing law the meager factual

allegations in the complaint cannot support a ruling for the plaintiff. Also, because WMD’s sign

is prohibited under an unchallenged provision of the ACZO, WMD lacks standing to challenge

any other regulations and this Court lacks jurisdiction over such claims.

FACTUAL ALLEGATIONS

For purposes of this Motion only, the facts as set forth in the Complaint, but not the legal

conclusions, will be presumed to be true. Even so, it is clear that the mural is an advertising sign

which is prohibited under valid ordinance provisions. WMD is a business located in an M-1, or

“Light Industrial District.” Complaint ¶ 39. Commercial buildings in the M-1 district may have

“business signs identifying the product or services available on the premises or advertising a use

conducted thereon” of up to 60 square feet in total, 1 which may be divided among up to three

1
The ACZO allows an alternate measure of one square foot of sign area for each linear foot of
building frontage, if that area is greater than 60 square feet. Because WMD’s linear building
frontage is less than 60 feet, this alternate measure is irrelevant to this case, and is not discussed.
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signs. AZCO § 34.G.1 (Hereafter, section 34 of the ACZO, which section governs signs, will be

referred to as the “Sign Ordinance”). The mural far exceeds that size limit, being approximately

16 by 60 feet. Complaint, ¶ 30.

In July, 2009, Ms. Houghton rented the property at 2606 South Oxford Street to begin

work on opening her new “doggy-daycare concept” business, named Wag More Dogs.

Complaint, ¶¶ 14-15. The rear wall of the building at 2606 Oxford Street abuts the Shirlington

Park’s Community Canine Area (“Dog Park”). Complaint, ¶ 18. Ms. Houghton knows, and has

become friendly with, many of the patrons of the Dog Park. Complaint, ¶ 20. She chose to rent

this particular property because it is in a building that the Dog Park patrons could “easily access”

and many of them were potential customers of WMD. Complaint, ¶¶ 23, 26.

Ms. Houghton paid an artist to paint a 16 by 60 foot painting of dogs, bones, and paw

prints, including dogs from the WMD logo. Complaint ¶¶ 27-30. The mural was created as part

of her efforts to open her business. Complaint, ¶ 24. The dog mural even includes some of the

dogs used in WMD’s logo. Complaint, ¶ 27. The mural is intended to engender good will

among the patrons of the dog park, whom she believed to be potential clients. Complaint, ¶ 26.

Patrons of the Dog Park have said that the tarps over the painting, which are required by the

County because the sign violates the County’s Sign Ordinance, make them think that WMD is

closed. Complaint ¶ 87. Ms. Houghton does not want to change the mural, because that would

change the message it conveys. Complaint, ¶¶ 90, 98.

As WMD alleges, the Sign Ordinance permits business signs of no more than 60 square

feet in the zoning district where WMD is located. Complaint ¶ 38. See also, ACZO, § 34.G.1.

The mural, which WMD admits contains elements of WMD’s logo and is used to convey and

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communicate a message related to WMD’s business, is more than 15 times that limit. Complaint

¶¶ 27, 30.

The illegal sign was found during inspections of the property for construction related to

opening the WMD business. The Zoning Administrator required WMD to correct the violation

before allowing occupancy of the building. Complaint, ¶ 46. Ms. Houghton, rather than take

any one of a number of other options open to her, chose to cover the painting with tarps.

Complaint, ¶¶ 59-63. The Zoning Administrator then issued a Certificate of Occupancy (“CO”)

on a temporary basis, to give Ms. Houghton time to address the issues presented by the sign.

Complaint ¶ ¶ 66-67. Because Ms. Houghton chose not to permanently remove the sign from

her building, the Zoning Administrator also conditioned the CO on the tarps remaining in

position to cover the sign. Complaint ¶ 67.

After covering the sign to obtain her CO, Ms Houghton continued discussing how she

could keep WMD’s sign with County staff. Complaint, ¶ 73. County staff offered Ms.

Houghton an idea about how the mural could be changed, so that it would no longer be a

advertising for her business under AZCO § 34.G. Complaint, ¶¶ 72-73. They described a way in

which the mural could be converted from advertising to a public information sign related to the

Dog Park. Complaint ¶¶ 74-80. The new sign would then be permitted under ACZO § 34.E.4.

Complaint ¶ 74.

ARGUMENT

I. The Complaint Articulates No Constitutional Violation.

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that every complaint

contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”

The pleading must allege facts that show that the plaintiff would be entitled to relief if such facts

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were proved to be true. “[A] pleading that offers ‘labels and conclusions will not do.’ Nor does

a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”

Ashcroft v. Iqbal, ___ U.S. ____, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

In reviewing the allegations of a complaint, a court “need not accept the legal conclusion

drawn from the facts,” nor is it bound to accept “unwarranted inferences, unreasonable

conclusion, or arguments.” Glassman v. Arlington County, No. 10-1496, 2010 U.S. App. Lexis

26111, at *12 (4th Cir. 2010). Rather, factual allegations must show that plaintiff has stated a

claim to relief. Id. at *8. “[W]hile legal conclusions can provide the framework of a complaint,

they must be supported by factual allegations.” Iqbal, at 129 S. Ct. at 1950. Moreover, legal

conclusions are not entitled to a presumption of truth. Francis v. Giacomelli, 588 F.3d 186, 193

(4th Cir. 2009). This Court must look to the governing case law to determine whether the legal

arguments are correct and will therefore support a claim for relief. Finally, to survive a motion

to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim

to relief that is plausible on its face.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at

570). Plausibility requires more than a possibility that a defendant has acted unlawfully.

Glassman, at *11-12, citing Iqbal and Twombly, supra.

The Complaint does not meet that standard; it fails to articulate any specific violation.

Although it is replete with phrases relating to First Amendment law, remarkably absent is any

clear statement of an actual First Amendment violation. As written, the Complaint is not

susceptible of a direct response because the County simply cannot ascertain what constitutional

violations are being complained about. The County is not required to first, guess at the

constitutional claims and then attempt to respond to those hypothetical claims.

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The Complaint concludes that the Sign Ordinance is unconstitutional., but fails to provide

factual allegations to support that conclusion. General statements that WMD’s right to express

itself have been violated are not sufficient. The First Amendment does not guarantee the right to

express oneself at all times and places and in any manner that a person may wish. Heffron v.

Int’l Soc’y for Krishna Consciousness, Inc. 452 U.S. 640, 647, 101 S. Ct. 2559, 69 L.Ed.2d 298

(1981). To state a legal claim, WMD must outline how the restrictions to which it objects

improperly violate its rights. The Complaint does not do that; it identifies no restriction in the

ordinance that fails to meet constitutional muster, but complains instead about words WMD has

taken out of context. The Complaint claims the County lacks evidence of a proper purpose, but

ignores the Sign Ordinance statement of purpose, which articulates government interests that

have long been held to be both substantial and narrowly tailored to justify sign regulations. The

Complaint claims that certain restrictions are “content-based;” that, alone, does not make them

illegal. Without addressing these issues, the legal conclusions in the Complaint are insufficient.

Nowhere in the Complaint is a plain statement of facts that articulate a constitutional violation on

which relief may be based. Therefore, it should be dismissed in its entirety.

II. Count One Fails to State a Claim Because, As A Matter of Law, Content-Neutral
Sign Regulations Have a Proper Purpose.

Perhaps the closest WMD comes to identifying an alleged constitutional infirmity in the

ordinance is in Count One, where it seems to contend that the County’s Sign Ordinance has no

proper purpose. Under governing law, however, this Count fails to state a claim because courts

have long held that the governmental purposes of protecting traffic safety and preventing visual

clutter are substantial and therefore sufficient to justify content-neutral sign regulations. As a

matter of law, content neutral regulations of the time, place and manner of signs are narrowly

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tailored because they do no more than eliminate the very problems the government seeks to

avoid. The Complaint offers no basis on which this Court can rule otherwise.

A. The County’s Interests in Traffic Safety and Esthetics are Substantial.

As the Supreme Court stated nearly thirty years ago, it was, even then, far too late in the

history of sign regulation for a party to claim that the County cannot justify restricting WMD’s

speech based on “public safety” or “public health” or other “sufficient justification.” Complaint,

¶¶ 108-110; Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 508, 101 S. Ct. 2882, 69

L.Ed.2d 800 (1981) (“Nor can there be substantial doubt that the twin goals that the ordinance

seeks to further—traffic safety and the appearance of the city—are substantial governmental

goals. It is far too late to contend otherwise with respect to either traffic safety or esthetics”).

Nonetheless, that appears to be the basis for WMD’s Count One. The history of courts’ decisions

on sign regulations establish beyond question that reasonable limitations are justified by the

goals of limiting distractions to motorists and protecting traffic safety, as well as by esthetics and

protecting against visual clutter.

In Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S. Ct. 2882, 69 L.Ed.2d 800

(1981) the Court closely examined San Diego’s justifications for its sign ordinance, to determine

whether the ordinance directly advanced stated governmental purposes. The Court agreed with

the “accumulated, commonsense judgments of local lawmakers and of the many reviewing

courts that billboards are real and substantial hazards to traffic safety.” 453 U.S. at 510. It

likewise found that “billboards by their very nature, wherever located and however constructed,

can be perceived as an ‘esthetic harm.’” 453 U.S. at 510. The Court recognized that sign

regulations could reasonably further such purposes, but found some regulations invalid because

they contained exceptions that would prohibit noncommercial signs in locations where

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commercial speech was allowed. Metromedia involved billboards, but over the years the courts

have clarified that its holding applies equally to all signs.

Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466

U.S. 789, 104 S. Ct. 2118, 80 L.Ed.2d 772 (1984) was the result of a challenge to a ban on signs

on public property. The Court noted that “it has been clear since this Court’s earliest decisions

concerning the freedom of speech that the state may sometimes curtail speech when necessary to

advance a significant and legitimate state interest.” 466 U.S. at 804, citing Schenck v. United

States, 249 U.S. 47, 52 (1919). It recognized that localities have a “weighty, essentially esthetic

interest in proscribing intrusive and unpleasant formats for expression.” 466 U.S. at 806. In

conclusion, the Court announced:

We reaffirm the conclusion of the majority in Metromedia. The


problem addressed by this ordinance—the visual assault on the
citizens of Los Angeles presented by an accumulation of signs posted
on public property—constitutes a significant substantive evil within
the City’s power to prohibit.

466 U.S. at 807.

Signs on private property are no different:

Unlike oral speech, signs take up space and may obstruct views,
distract motorists, displace alternative uses for land, and pose other
problems that legitimately call for regulations. It is common ground
that governments may regulate the physical characteristics of signs…

City of LaDue v. Gilleo, 512 U.S. 43, 48, 114 S. Ct. 2038, 2041, 129 L.Ed.2d 36, 42–43 (1994)

(Ban on nearly all residential signs held unconstitutional as too restrictive). See also, Covenant

Media, supra, 493 F.3d at 434 (upholding City’s content-neutral Sign Ordinance because City’s

goal was to “eliminate confusing, distract and unsafe sign, assure the efficient transfer of

information; and enhance the visual environment of the City of North Charleston” and “not to

stymie any particular message”).

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Arlington County’s Sign Ordinance rests on this well-established foundation, and the

complaint states no basis for a finding otherwise. The Sign Ordinance purposes are set forth in

Section 34 of the ACZO:

These regulations are intended to: reduce the traffic hazards caused
by such unregulated signs which may distract, confuse, and impair
the visibility of motorists and pedestrians; ensure the effectiveness
of public traffic signs and signals; protect property values by
insuring the compatibility of property with that surrounding it;
provide an attractive visual environment throughout the County;
protect the character and appearance of the various neighborhoods
in the County…

ACZO, Section 34, p. 1. The Complaint states no claim that these purposes, long recognized as

adequate justification for reasonable sign regulation, are not adequate. Count One should be

dismissed because its erroneous legal claims are not enough to state a claim.

B. The Ordinance Is Narrowly Tailored to Serve Those Interests.

Further, the County’s ordinance is narrowly tailored to serve those interests. To be

narrowly tailored, a regulation need not be the least intrusive means of accomplishing a

governmental purpose. American Legion Post 7 v. City of Durham, 239 F.3d 601, 610 (4th Cir.

2001) (incidental burden of regulation of commercial flags on noncommercial flags did not

violate narrow tailoring requirement) quoting Ward v. Rock Against Racism, 491 U.S. 781, 798–

799, 105 L.Ed.2d 661, 109 S. Ct. 2746 (1989). Such restrictions need be only a reasonable fit to

serve the asserted ends. Bd. Of Tr. Of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 477, 109 S.

Ct. 3028, 106 L.Ed. 2d 388 (1989).

As a matter of established law, time, place and manner restrictions on posted signs are

narrowly tailored because they directly “eliminate the exact source of the evil” the County seeks

to remedy. Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 808, 104 S. Ct.

2118, 80 L.Ed. 2d 772 (1984) (ban on signs in the public right of way narrowly tailored to

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further interests in traffic safety and esthetics) citing Metromedia. The existence of the signs

themselves creates the threat to traffic safety and the visual clutter, so a prohibition on the

medium of speech “curtails no more speech than is necessary to accomplish [the] purpose.”

Taxpayers for Vincent, 466 U.S. at 810.

The regulation to which WMD is subject here is a regulation on the size of advertising

signs. ACZO § 34.G.1; Complaint, ¶ 38. It is, under Taxpayers for Vincent, narrowly tailored to

serve the purposes asserted in the Ordinance. It permits a defined amount of signs, and is

narrowly tailored to achieve well-recognized viewpoint neutral governmental purposes.

III. WMD Lacks Standing To Challenge Other Provisions Of the Ordinance.

The 960 square foot mural that identifies WMD’s business clearly violates the

Sign Ordinance sixty-square-foot limitation as set forth in the ACZO, section 34.G.1. The

Complaint does not challenge that section of the Sign Ordinance. Because this sign is prohibited

under one valid provision of the ordinance, WMD cannot obtain relief under any other provision

of the ordinance and therefore lacks standing to challenge them.

An essential element of the standing inquiry is whether plaintiff has suffered some injury

from the alleged violation. This is the “irreducible minimum” of standing. Covenant Media of

South Carolina, LLC v. City of North Charleston, 493 F.3d 421, 428 (4th Cir; 2007); Midwest

Media Prop., LLC. V. Symmes Twp., 503 F.3d 456, 461 (6th Cir .2007) quoting Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L.Ed.2d 351 (1992) (Where

appellants chose not to challenge size and height requirements that prohibited their sign, they

could not challenge other sign regulations, because a ruling in appellants’ favor on such claims

could make no difference to them). Standing to challenge one part of an ordinance does not give

a party “a passport to explore the constitutionality of every provision of the Sign Regulation.”

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Covenant Media of S.C., 493 F.3d at 429. A plaintiff must show that he has been injured by each

challenged ordinance provision. 493 F.3d at 430 (emphasis supplied). The Court in Covenant

Media of S.C. granted standing to challenge a failure to require decisions within a particular time

frame, as that had injured the appellant. 493 F.3d at 430. It noted, however, that just as in this

case, the application was for a sign that violated unchallenged height and size requirements, and

therefore the appellant lacked standing to challenge any other regulation relied on for denial of a

sign permit. 493 F.3d at 430.

Similarly, WMD does not even attempt to challenge the sixty square foot limit on signs in

the M-1 Light Industrial District, as set forth in ACZO § 34.G.1. Complaint, ¶ 38. Therefore,

the mural is a prohibited sign because it is more than sixty square feet. A ruling that any other

challenged provision of the ACZO is unconstitutional would make no difference to WMD

because its sign would still be illegal. WMD could obtain no redress even if this Court were to

rule that another portion of the ordinance is invalid, and so WMD lacks standing. The Complaint

must be dismissed to the extent it attempts to challenge any ordinance provision except the

definition of sign, which is valid as set forth in Section IV. Infra.

IV. The Zoning Ordinance Definition of Sign is Valid

The County’s Zoning Ordinance definition of sign provides one general definition of

sign, and then more specific definitions for various types of signs that are separately regulated.

The definitions that applied to WMD’s signs are reasonably clear and are valid content-neutral

restrictions that are permissible under governing precedent. The Complaint contends that,

because three words in those definitions are not defined within the ordinance, it is invalid. This

contention fails utterly to address the relevant portions of the Sign Ordinance. It ignores the

definition relied upon to find the mural to be an illegal sign. Even if it considered the correct

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language, it is insufficient to state a claim under governing law because using terms without

specifying definitions does not constitute vagueness in the constitutional sense.

A. Arlington County’s Zoning Ordinance Definition of Sign Includes the Dog


Mural.

The County’s Sign Ordinance defines a sign, in relevant part, as:

Any word, numeral, figure, design, trademark, flag, pennant,


twirler, light, display, banner, balloon, or other device or any kind
which….is used to direct, identify, or inform the public while
viewing the same from outdoors.

ACZO, § 34.B, p. 2. That definition does not, standing alone, regulate any sign. Rather, more

specific provisions provide further definition in support of the regulation. For the sign in this

case, Section 34 G.1 of the Sign Ordinance permits, “on the walls of commercial buildings, in all

“C” and “M” Districts, up to three (3) signs for each tenant, up to a maximum total sign area of

sixty (60) square feet…” ACZO, § 34.G.1. The type of sign to which that section applies is

further defined as:

Business signs identifying the products or services available on the


premises or advertising a use conducted thereon may be displayed
in “C” and “M” District under the conditions and to a maximum
aggregate area of all signs as follows.

ACZO § 34.G.

The dog mural both identifies the products and services and advertises the use; it contains

dogs from WMD’s logo, and depicts dogs in activities that would be part of “doggy day-care.”

Complaint ¶ 27, 30. It was designed to attract customers from the Dog Park it faces. Complaint,

¶ 26. The Arlington County Zoning Administrator correctly determined that it met the Zoning

Ordinance’s definition of sign. This can’t seriously be questioned, as Ms. Houghton recently

told the press, “I also intended to attract customers with it, to create goodwill with potential

customers.” Washington Post, December 9, 2010, p. B.2.

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B. The Sign Ordinance is Not Unconstitutionally Vague

Plaintiff asserts the erroneous legal conclusion that the Sign Ordinance is

unconstitutionally vague. As a matter of law, however, that conclusion is wrong. The context in

which the word “sign” is used in AZCO § 34.G. leaves no ambiguity as to the conduct being

regulated. Plaintiff’s argument ignores the substantial body of case law holding that common

words, when given their plain and ordinary meaning, do not need to be exhaustively defined, or

even defined at all within the regulation, to avoid vagueness. Finally, these precise terms have

been used in sign ordinances which have been upheld in the Fourth Circuit and other

jurisdictions.

1. The Ordinance Governs Signs With Enough Specificity to Notify


Persons of Ordinary Intelligence What Is Being Prescribed.

To find a civil statute void for vagueness, the statute must be “so vague and indefinite as

to really be no rule or standard at all,” Seniors Civil Liberties Ass’n v. Kemp, 965 F.2d 1030,

1036 (11th Cir. 1992) (citing Boutilier v. INS, 387 U.S. 118, 123 (1967)). A sign ordinance is

unconstitutionally vague only if it “fail[s] to give persons of ordinary intelligence notice of what

conduct is being prescribed…[or] permit[s] or authorize[s] ‘arbitrary and discriminatory

enforcement.’” Adventure Commc’n Tech. LLC v. Iowa Utils. Bd., 2010 US Dist. LEXIS 87250,

*54, No. C10-4074-MWB (N.D. Iowa, August 17, 2010). Interpretation of the regulation must

be guided by common sense and plain meaning. United States v. Gagliardi, 506 F.3d 140, 147

(2d Cir. 2007).

Indeed, no term is so precise that there can never be a question as to its meaning.

“[P]erfect clarity and precise guidance have never been required” even for regulations on

expressive activity. Preston v. Leake, 2010 U.S.Dist. LEXIS 111883, p. 8 (2010), quoting

Imaginary Images, Inc. v. Evans, 612 F.3d 736, 749 (4th Cir. 2010). The absence of definitions is

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of no moment. “There is no constitutional requirement that a legislature define every word in a

statute, and in the absence of a statutory definition, ‘words will be interpreted as taking their

ordinary, contemporary common meaning.’” 2101 U.S. Dist. LEXIS 11183 at p.8, citing Perrin

v. United States, 444 U.S. 37, 42, 100 S. Ct. 311, 62 L.Ed. 199 (1979).

Additionally, courts can look to other sources for definition. Some terms, such as

commercial and noncommercial have been found sufficient, as defined in the decisions of courts,

to give a person reasonable notice of what a law allows or prohibits. Central Hudson Gas &

Elec. v. Public Serv. Comm’n, 447 U.S. 557, 561, 65 L.Ed.2d 341, 100 S. Ct. 2343 (1980); Major

Media of the Southeast, Inc. v. City of Raleigh, 792 F.2d 1269, 1272 (4th Cir. 1986). Dictionary

definitions are also relied upon when courts are called upon to ascertain the meaning of a law.

See, Giovani Carandola, Limited; North Carolina Golf and Travel Inc. v. Fox, 470 F.3d 1074,

1080-1081 (4th Cir. 2006).

WMD attempts to introduce ambiguity where none exists. Section 34.G.1 of the ACZO

clearly states that for commercial buildings in light industrial districts, the size and area

limitation at issue in this case applies to: “Business signs identifying the products or services

available on the premises or advertising a use conducted thereon…” Ignoring this provision of

the ACZO, which clearly gives persons of ordinary intelligence notice of what type of signs are

being regulated, WMD improperly attacks a few words in the general definition of the word

“sign” without reference to the context in which the words are being used. WMD gives several

misleading examples of a business putting up a picture of some sort on its exterior wall to

suggest that a person of ordinary intelligence would be unable to tell if the picture is a sign under

the County’s Sign Ordinance. It ignores the fact that the restrictions in the Sign Ordinance

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provide more specific definitions for individual types of signs, and that the words it alleges are

“vague” are not the actual basis of any restriction.

For commercial buildings in light industrial districts, the test is whether the sign

“identif[ies] the product or services available on the premises or advert[ises] a use conducted

thereon.” ACZO § 34.G. Since WMD is a business that offers dog grooming, walking and

boarding services, a mural depicting the cartoon dogs in WMD’s logo as well as dog bones and

paw prints, obviously identifies the services available in the building, and is therefore subject to

the size limitations of ACZO § 34.G.1. See Complaint, ¶14.

At the heart of Plaintiff’s argument is an assumption that all pictures are art which should

be afforded some greater degree of protection than other forms of speech. However, when

pictures are used—as they are here—as symbols and logos to identify and promote a business,

they are within the purview of the Sign Ordinance restrictions in 34.G.1. WMD’s use of its logo

dogs in the mural serves the purpose of identifying their business to the general public, just as

McDonald’s golden arches or Target’s red and white bullseye identify those businesses to the

general public. The mere fact that information is being conveyed through a nonverbal format

does not change the fact that it is advertising.

Further, Plaintiff’s claim that a person of ordinary intelligence would be unable to tell

whether the mural directs, identifies or informs the public of WMD’s business is belied by the

fact that Ms. Houghton deliberately commissioned a mural to “incorporate…cartoon dogs in

Wag More Dogs’ logo” for the purpose of “creat[ing] goodwill with the people who frequented

the dog park, many of whom were potential Wag More Dogs customers” to be painted on the

back wall of her business. Complaint ¶¶ 26, 27. Despite commissioning the sign for the express

purpose of attracting potential customers to her dog walking and dog grooming business,

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Plaintiff now claims that she could not have known in advance that her mural depicting dogs,

paw prints and bones would inform the public of the nature of her business. The words of the

Complaint make clear that any reasonable person would have known that the painting was

directly related to WMD’s business and constituted advertising.

2. The Terms “Direct, Identify and Inform” Are Not Vague Because
They Are Used According To Their Plain and Ordinary Meanings.

Even if the words “direct” “identify” or “inform” were of independent relevance in this

case, they are words of common usage that have plain and ordinary meaning, and so do not

render the ordinance void for vagueness.

In Gagliardi, supra, the defendant argued that a federal statute criminalizing any attempt

to entice, induce or persuade a minor to engage in illegal sexual activity was unconstitutionally

vague because the statute did not define “attempt,” “persuade,” “induce,” “entice,” or “coerce.”

506 F.3d at 147. The court rejected the defendant’s vagueness argument, stating that the words

used in the statute were “words of common usage that have plain and ordinary meaning,” and

that while:

there may be some uncertainty as to the precise demarcation


between ‘persuading,’ which is criminalizing, and ‘asking,’ which
is not, this uncertainty is not cause for constitutional concern
because the statute’s terms are sufficiently definite that ordinary
people using common sense could grasp the nature of the prohibited
conduct.

Id. Similarly, in United States v. Cullen, 499 F.3d 157, 163 (2d Cir. 2007), the court found that

the Wild Bird Act’s failure to specifically define the terms “personal” and “pet” did not render

the statute unconstitutionally void because those words “are comprehensible to an ordinary

person.” (“Although we recognize in many English words there lurk uncertainties, to meet the

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fair warning prong, an ounce of common sense is worth more than a 800-page dictionary.”)

(citations omitted).

The words direct, identify and inform are not only common words used in their plain and

ordinary meaning, they are also words routinely used in valid sign ordinances. See e.g.,

Covenant Media of South Carolina v. City of North Charleston, 493 F.3d 421, 425 (4th Cir.

2007) (upholding sign ordinance which defined off premises sign as signs “identifying or

advertising a business, person, or activity, or goods, products, services or facilities located on the

premises where the sign is installed.”); Clear Channel Outdoor v. City of New York, 594 F.3d 94,

99 (2d Cir. 2010) (upholding New York City’s sign regulation which defined advertising sign as

“a sign that directs attention to…” services offered on the premises); B&B Coastal Enter., Inc. v.

Demers, 276 F. Supp. 2d 155, 159 (D. Me 2003) (denying preliminary injunction challenging

town ordinance which defined advertising sign as a “sign which directs attention to…” the type

of business or profession conducted on the premises). None of these ordinances define “direct”

or “identify” beyond the common and ordinary meaning of those words and yet, contrary to

WMD’s assertion, courts throughout the country have been able to interpret and understand the

conduct being prohibited by said ordinances.

Even if the Sign Ordinance’s general definition of a sign were vague in some way,

Plaintiff has made no claim that AZCO § 34.G., the applicable portion of Arlington County’s

Sign Ordinance, is unconstitutionally vague. Instead, Plaintiff appears to be claiming that the

entire Sign Ordinance is vague because a few words, when read in isolation and out of context,

are purportedly vague. Such a position is untenable and Plaintiff can cite no law to support it.

The words in the Sign Ordinance do not require a weighing of interests, like Child

Evangelism Fellowship v. Anderson School District Five, 470 F.3d 1062 (4th Cir. 2006), where

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the regulation allowed a school district to waive fees whenever it was determined to be in the

“district’s best interest.” Nor does it rely upon qualitative modifiers, as in North Carolina Right

to Life Inc. v. Leake, 525 F. 3d 274, 286 (4th Cir. 2008) (Vagueness found because whether a

group was a political committee under the statute depended upon whether it had, as a major

purpose, supporting or opposing nominations or elections of candidates.). Whether a business

has “signs identifying the products or services available on the premises or advertising a use

conducted thereon…” is a question that is susceptible of a yes or no answer. AZCO § 34.G.

C. The Sign Definition is Not a Content-Based Regulation Because


Consideration of the Location or Commercial Nature of a Sign is Not a
Content-Based Inquiry.

It cannot be disputed that government may place reasonable, content-neutral restrictions

on speech. E. g., Taxpayers for Vincent, supra. To determine whether a regulation is content

neutral, the “principal inquiry…is whether the government has adopted a regulation of speech

because of disagreement with the message it conveys.” Covenant Media of South Carolina v.

City of North Charleston, 493 F.3d 421, 432 (4th Cir. 2007). A regulation is content neutral if

“(1) the regulation ‘is not a regulation of speech,’ but rather a ‘regulation of the places where

some speech may occur,’ (2) the regulation ‘was not adopted because of disagreement with the

message [the speech] conveys,’ or (3) the government’s interest in the regulation ‘are unrelated

to the content of the [affected] speech.’” Id. (quoting Hill v. Colorado, 530 U.S. 703, 719–20)

(2000).

The dog mural in this case violated the 60-square-foot size limitation in ACZO § 34.G.1.

See Complaint, ¶ 38. The sign painted on WMD’s back wall was 16 feet by 60 feet, or 960

square feet, and therefore prohibited because of its size. “Size, however, is not a content

criterion.” American Legion Post 7 Of Durham v. City of Durham, 239 F.3d 601, 608 (4th Cir.

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2001). If the sign were 60 square feet in area, and WMD had no other signs, the mural would be

permitted. It is simply too large; this is not a content-based criterion. The statement of

erroneous legal conclusions in the Complaint does not require a finding otherwise.

The fact that this sign is advertising because it is located on the premises of WMD’s

business, but would not be advertising elsewhere, does not convert the restriction to a content-

based limitation. In Covenant Media, the Fourth Circuit rejected the idea that a sign ordinance’s

differential treatment based on signs’ location constitutes a content-based regulation. It upheld a

sign ordinance which regulated off-premises signs differently than on-premises signs. 493 F.3d

at 432. Determining whether a sign was an on-premises or off-premises sign necessarily

required the City to consider the location of the sign and the content of the sign to the extent that

said content related to the business, product or activities being conducted or promoted at a

certain location. However, the Court held that “[t]o the extent that the Sign Regulation required

looking generally at what type of message a sign carries to determine where it can be located,

this ‘kind of cursory examination’ did not make the regulation content based.” See also Melrose,

Inc. v. City of Pittsburgh, 613 F.3d 380, 388 (3d Cir. 2010) (“Determining whether a sign is

related to the location where it is placed inevitably demands consideration of the signs [sic]

content. But this consideration does not by itself constitute a lack of neutrality as to specific

content.”).

The distinction between this mural, which advertises a business, and the same picture in

another location, where it might be purely decorative, is a question of location, permissible under

Covenant Media, supra. It does not require a content-based determination. This is the kind of

inquiry, into the general subject matter, but not the content, of the sign that is made all the time

to determine whether signs are advertising or not, and if so, whether they are on-site or off-site

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advertising. Courts routinely uphold regulations that require such inquiry, and a similar decision

here is required.

Nor is the County’s ordinance content-based because it limits advertising signs where

noncommercial signs might be permitted. Ordinances limiting advertising signs are routinely

upheld by the Courts, and are not content-based because they distinguish between commercial

and non-commercial speech, so long as noncommercial speech is treated at least as favorably as

commercial speech. See, Metromedia, supra, 453 U.S. at 506 (The Supreme Court has

recognized “the common-sense and legal distinction between speech proposing a commercial

transaction and other varieties of speech”); American Legion, supra 239 F.3d at 608, (concluding

that a regulation that does not facially distinguish between noncommercial messages, even

though it might treat commercial messages differently, where there was no evidence of a

content-based purpose, was not content-based).

Because the ordinance is not content based, the County regulation of speech falls under

the time, place and manner restriction, and therefore need only be narrowly tailored to advance a

substantial governmental purpose. It meets that test as discussed in part III, supra.

V. Complaints About Statements By Public Officials Do Not Constitute A Cause of


Action

The third and fifth unnumbered counts in the Complaint seem to object to parts of

discussions with County officials who were attempting to assist Ms. Houghton and WMD to

resolve their illegal sign problem. These contentions do not state any legal cause of action; It is

not unconstitutional for a Zoning Administrator to try to explain to a citizen what the ordinance

requires, nor is there anything unconstitutional about offering a citizen an opportunity to keep a

mural, as a different type of sign, when the citizen professes to want to keep that sign.

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In the third unnumbered count of the complaint, WMD takes an allegation about one

statement made, during an electronic mail discussion, about how Ms. Houghton could change the

sign into something that was permissible under the sign ordinance. Without any factual basis,

WMD claims that those words reflect the meaning of the ordinance “as interpreted and enforced

by Defendant Artman.” Complaint, ¶116. WMD then asserts that this word choice by Ms.

Artman is unconstitutional. According to the Complaint, Ms. Artman told Ms. Houghton that

she could keep a mural of an image that did not have “any relationship” to the business.

Complaint,¶ 116.

First, under the ordinance, the signs that are limited by paragraph 34.G.1 of the Sign

Ordinance are those which are business signs identifying the products or services available on

the premises or advertising a use conducted thereon…” ACZO 34.G. Thus, Ms. Artman was

entirely correct to try to explain to Ms. Houghton, in general conversation that a sign related to

the business would violate the ordinance. Furthermore, such a distinction is permissible, in that

signs that depict the goods or services offered by a business are commercial advertising signs.

Government may validly impose greater restrictions on them than on noncommercial speech, as

discussed above.

However, the Complaint contains no facts that can support the claim that the words “any

relationship” are anything more than part of a casual conversation. There is no basis stated

anywhere in the complaint for a finding that use of such words are unconstitutional, and a

complaint about them is not subject to challenge before this Court. A statement by a Zoning

Administrator in conversation is simply not official interpretation. Virginia law makes this clear;

it permits challenges to Zoning Administrator decisions or interpretations only where they have

been reduced to writing with a required statement that they are subject to appeal. Vulcan

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Materials Co. v. Bd. of Supervisors, 248 Va. 18, 24, 445 S.E.2d 97, 100 (1994) (Advisory

comments by local officials, that result in no action on any application, cannot be appealed.)

Had WMD sought such a determination, the ACZO provides for such a request, which would

have resulted in an official interpretation. ACZO § 36.B. There is no allegation that it has ever

done so or that this one statement represents any ongoing interpretation of the Sign Ordinance.

Even assuming for the sake of argument that such words did represent an official

interpretation of the definition in ACZO sec 34.G, they would create a valid standard under the

governing case law discussed in Section IV.B, supra. Using common sense, a reasonable person

could understand whether something is related to her business. Those words are not so vague as

to provide no standard at all. These allegations are not enough to establish that Ms. Artman’s

words reflect an ordinance interpretation. Thus an assertion that they are vague is not sufficient

to make a legal claim.

The claim in the unnumbered fifth Count, that somehow the Zoning Administrator and

the County are “compelling” Ms. Houghton and WMD to speak, is absurd, and belied by the

words in the Complaint. The Complaint itself states that WMD has several choices to come into

compliance; it may either replace the artwork with something that is not advertising for its

business (which alone offers a host of possibilities), remove the mural, apply for a

comprehensive sign plan, or paint it to be a sign for the nearby dog park, which would make it a

“public information sign.” Complaint, ¶107. WMD was in no way compelled to speak in this

manner; as the Complaint states, this was one “option” of several that would have enabled Ms.

Houghton to achieve her purported objective of keeping the picture she loved. Complaint, ¶ 76.

Ms. Houghton apparently did not want a sign that was not advertising for her business.

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The option to convert to a public information sign is a choice the County offered, after

much effort, to find some way to help Ms. Houghton do what she claimed she wanted most,

which was beautify the area with her mural. Because the ACZO permits public information

signs without a specific sign limitation, the County determined that Ms. Houghton’s sign could

be changed to be a public information sign that publicized the local Dog Park. Public

information signs are those erected by public officials. ACZO §34.B.4. The County did insist

that, to so convert the sign, it must become a sign for the Dog Park, and use its official name, so

additional wording was needed. In this way WMD could change the sign to a public information

sign, but it was never compelled to do so.

Allowing public information signs that are larger than permitted advertising signs does

not undermine the County’s asserted interests in traffic safety and the prevention of visual

clutter. As the Supreme Court has long recognized, the financial incentives to erect advertising

signs are great, and the potential proliferation of such signs present a substantial danger to those

interests. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425

U.S.748, 772 fn. 24, 96 S. Ct. 1817, 48 L.Ed.2d 346 (1976) (Observing that “commercial speech

may be more durable than other kinds. Since advertising is the sine qua non of commercial

profits, there is little likelihood of its being chilled by proper regulation and foregone entirely.”)

The risk that public officials, who are not engaged in commercial enterprises, and who have

limited budgets and reasons to place public information signs, will litter the landscape with huge,

distracting signs, is much less. As the instant situation shows, a business owner who is quite

willing to pay for advertising to be painted on her place of business is much less anxious to

convert that sign to a true public information sign. The governmental interests on which the sign

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ordinance is based are, therefore, served just as well by limitations on public information signs

that are less restrictive than those on business advertising.

Also, WMD has a unique location adjacent to a public park, which made this solution

possible. Public information signs are not appropriate in most situations and therefore one type

of sign is not so easily converted to the other. It is only because this particular sign is located on

the wall of WMD’s premises, but also adjacent to the Dog Park, that this option is available. The

mural sign at that location, while it can be advertising as Ms. Houghton commissioned it to be,

with a few changes can serve equally as a sign for the adjacent park. The choice of these two

types of signage is not available everywhere, it is happenstance that this wall could support

either. It is not the case, and the Complaint does not allege, that the County permits public

information signs to litter the landscape in a way that undermines its interest.

VI. WMD States No Claim As To the Comprehensive Sign Plan Option.

The unnumbered fourth count of the Complaint alleges that, as a prior restraint, the

option to obtain a comprehensive sign plan (“CSP”), a use permit allowed under Section 34.A of

the Sign Ordinance and Section 36.G. of the ACZO, lacks certain procedural safeguards. As

discussed above, WMD has no standing to challenge this provision. Even if it did, the

Complaint fails to state a claim because it offers no specifics and no facts to support its legal

conclusion that the option in the ACZO to obtain a CSP is an “unconstitutional burden on

Plaintiff’s speech.” Complaint ¶ 123.

Licensing limitations that are content-neutral on their face are not required to meet the

four factors set forth in Freedman v. Maryland, 340 U.S. 268, 282, 95 L.Ed. 267, 71 S. Ct. 325

(1951). Thomas v. Chicago Park District, 534 U.S. 316, 322-323, 122 S. Ct. 775, 151 L.Ed. 2d

783 (2002) (“A licensing standard which gives an official authority to censor the content of a

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speech differs toto coelo from one limited by its terms, or by nondiscriminatory practice, to

considerations of public safety and the like.”). WMD does not even allege, and cannot, that the

CSP process is other than a content-neutral time, place and manner restriction on speech. If

there are adequate standards and an opportunity for judicial review in a content-neutral licensing

scheme, as exist here under state law and the Arlington County ordinance, then a licensing

scheme is permissible. Thomas, supra 534 U.S. at 323; citing Niemotko v. Maryland, 340 U.S.

268, 271, 95 L.Ed. 267, 71 S. Ct. 325 (1951).

The County’s CSP process is a land use decision made in the legislative discretion of the

Arlington County Board, the elected governing body of the County. See, Arlington County v.

Bratic, 237 Va. 221, 225, 377 S.E.2d 368 (1989). The ACZO contains valid standards, under

established state law, for review of CSP decisions. See, ACZO § 36 G.1; Nat’l Mar. Union of

Am. v. City of Norfolk, 202 Va. 672, 119 S.E.2d 307 (1961) (Upholding standards identical to the

County’s for use permit approval, as providing sufficient protection against arbitrary and

unconstitutional decision making). These standards relate to valid and substantial governmental

purposes, as set forth in Virginia law for zoning regulation. Va. Code Ann. §§ 15.2-2280, 15.2-

2283 (2008).

Moreover, the County Board’s legislative decision making is subject to judicial review.

Va. Code Ann. § 15.2-2285.F (2008) (Providing that any action contesting the granting or failure

to grant a special exception shall be filed within 30 days in the Circuit Court). Were the County

to depart from the standards of the land-use ordinance, its decision would be subject to

challenge. The content-neutral, nondiscriminatory nature of that standard is thus protected

adequately under Thomas. Moreover, the County’s land-use decision-making is limited to

furthering proper zoning purposes. Cole v. City Council, 218 Va. 827, 241 S.E.2d 765 (1978).

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At least one Court has permitted this type of land use permit regulation. In Stott Outdoor

Adver. v. Monterey, 601 F. Supp. 2d 1143 (N.D. Calif. 2009) the Northern District Court of

California rejected a claim that a use permit requirement for billboards was facially

unconstitutional. 601 F. Supp. 2d at 1154:

Here, the ordinance required the appropriate County official to


make findings that there will not be any detrimental effects to
health, safety, peace, morals, comfort, and general welfare of
persons residing or working in the neighborhood, or detrimental or
injurious to property or improvement in the neighborhood of to the
general welfare of the County. Rather than being conferred with
unbridled discretion, the official is charged with making findings
affecting specific concerns enumerated in the ordinance.

601 F. Supp. 2d at 1154. The Court recognized that the land use reasons, and the fact that the

content of the speech was not a valid basis for making decisions on a land use application, were

sufficient to make the ordinance content-neutral. It went on to determine that the purposes were

sufficient governmental purposes and that it was not broader than necessary to further those

goals under Metromedia, supra.

The comprehensive sign plan is, facially, a valid content-neutral limit on speech, and

WMD has not alleged otherwise. It operates with sufficient restrictions under state land use law

to meet the standard of Thomas. Its specific application has not been challenged, and therefore

the claim that the CSP is illegal should be dismissed.

CONCLUSION

The Complaint filed by WMD, although it complains vociferously about the actions of

the County and its Zoning Administrator, fails to articulate any actual constitutional violation. In

fact, when analyzed under governing legal precedent, the legal conclusions asserted by WMD

simply cannot hold water. None of the apparent counts in the Complaint states an actual claim

upon which relief could be granted, even if the factual allegations were proved to be true.

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Therefore, Ms. Melinda M. Artman, in her official capacity as Zoning Administrator for

Arlington County, and Arlington County, Virginia, respectfully request that this Court dismiss

the Complaint, with prejudice, in its entirety.

Respectfully Submitted,

MELINDA M. ARTMAN, in her official capacity


as Zoning Administrator for Arlington County,
Virginia,

and

ARLINGTON COUNTY, VIRGINIA,

By Counsel,

____/s/______________________________
Carol W. McCoskrie
Virginia Bar No. 24395
Attorney for Defendants Melinda M. Artman and Arlington County, Virginia
Arlington County Attorney’s Office
2100 Clarendon Boulevard, #403
Arlington, Virginia, 22201
703-228-3100
703-228-7106 (fax)
cmccoskrie@arlingtonva.us

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Case 1:10-cv-01347-LMB -TCB Document 16 Filed 12/30/10 Page 28 of 28

CERTIFICATE OF SERVICE

I hereby certify that on the 30th day of December, 2010, I will electronically file the
foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification
of such filing (NEF) to the following:

Robert McNamara
Robert P. Frommer
Institute for Justice
901 North Glebe Road, Suite 900
Arlington, VA 22203
Tel: (703) 682-9320; Fax: (703) 682-9321
Email: rmcnamara@ij.org
rfrommer@ig.org
Attorneys for Plaintiff

____/s/______________________________
Carol W. McCoskrie
Virginia Bar No. 24395
Attorney for Defendants Melinda M. Artman and Arlington County, Virginia
Arlington County Attorney’s Office
2100 Clarendon Boulevard, #403
Arlington, Virginia, 22201
703-228-3100
703-228-7106 (fax)
cmccoskrie@arlingtonva.us

28

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