Institute of Justice says Conway's 'doughnut' ordinance has holes

CONWAY — Leavitt’s Country Bakery, locked in a battle with the town over a mural depicting doughnuts and other baked goods, is being backed by an Alexandria, Virginia-based nonprofit, the Institute for Justice, which maintains that the town ordinance is unconstitutional.

The IJ is supporting the bakery but not representing them in court at this time, and trying to be a resource to the bakery and to the town of Conway, which IJ says should re-write its sign ordinance.

The IJ was founded in 1991. At present, the institute is litigating 97 cases in 35 states and Washington, D.C. It has a staff of 139, a budget of nearly $33 million, and offices in Virginia, Florida, Illinois, Minnesota, Texas, Arizona and Washington state, according to its website, ij.org.

The Conway Zoning Board of Adjustment at its monthly meeting on Nov. 16 denied by a 5-0 vote a request for a rehearing by the owner of Leavitt’s Country Bakery regarding its oversized sign/mural.

The bakery is represented by Cooper Cargill Chant in North Conway.

The ZBA on Sept. 21 unanimously denied Young’s request for a variance for the mural. The denial followed a decision at the ZBA’s Aug. 17 meeting when it upheld a determination by Conway Assistant Building Inspector Jeremy Gibbs that the mural of baked goods and mountaintops, though it had no words, was a non-conforming wall sign and exceeded size restrictions.

Robert Frommer, Institute for Justice senior attorney and director of IJ’s Project on the Fourth Amendment, wrote the town a letter on Nov. 14 asking it to refrain from enforcing the ordinance and encouraging them to write a new ordinance, which he said the IJ could help with.

“We have a national sign initiative, where we work with small businesses around the country against arbitrary discriminatory sign codes,” said Frommer. “If litigation does become necessary, then the nature of our representation might change at that point. But for right now, we’re just trying to be a friend to work out a positive sum outcome for both the town and the business.”

Young on Thursday said he had 30 days from the Nov. 16 denial of rehearing to file an appeal in Carroll Couny Superior Court. But for now, he’s waiting to see what the town will do.

“We won’t let it go past 30 days,” said Young.

Frommer’s letter explains, “One of the rights that IJ protects is the First Amendment right of individuals and businesses to freely communicate through murals and signs.

“For over 20 years, IJ has successfully brought suit against sign code restrictions that violate our clients’ rights to free speech, including in the U.S. Courts of Appeal for the Fourth, Sixth, Eighth and Ninth Circuits. We also work with cities to amend their sign codes in order to forestall litigation,” Frommer said.

The Institute of Justice found the case by reading the account on The Conway Daily Sun’s website.

One thing they do is look for news stories about signs and murals and businesses, said Frommer in a phone interview Tuesday.

Young is grateful the IJ has taken an interest.

“We were surprised when it happened, and it’s definitely been helpful,” said Young.

IJ has sent a letter to the town explaining its ordinance is “constitutionally problematic” along with a model sign code that places like Orange Park, Florida, and Mandan, North Dakota, have adopted. The city of Sacramento rewrote its sign ordinance after the IJ brought up a challenge on behalf of a business owner.

Frommer said the town’s counsel wanted to review the issue and a model sign code. He expects this review to take a few weeks before IJ hears back.

“We’re in sort of a wait-and-see mode,” said Frommer.

If the case goes to litigation, a local attorney could move to have Frommer admitted to the New Hampshire Superior Court.

Frommer’s letter says that the “beautiful paintings” at Settlers Green with the text that says “Welcome to North Conway” communicate that North Conway is a “great place to be,” and the town considers them murals and not signs.

Frommer said Zoning Board member Andrew Chalmers at the meeting of Sept. 21 said the reason Leavitt’s art is considered a sign is because it depicts what’s sold inside.

“Conway’s discrimination against wall paintings based entirely on content is unconstitutional under U.S. Supreme Court precedent, including Reed v. Town of Gilbert, Ariz.,” said Frommer, citing a 2015 case.

“In Reed, the Supreme Court specifically addressed sign codes, and the court made clear that municipalities cannot treat signs and other displays differently based upon their content. And here, it is clear that Conway is imposing greater restrictions on certain paintings simply because it believes what those paintings depict is related to what is sold inside. This is flatly unconstitutional under Reed,” he said.

Frommer says the town’s ordinance appears to predate the Reed case by two years.

The letter calls on the town of Conway to stop the enforcement action against Leavitt’s and to reform its sign ordinance to pass constitutional muster. Frommer added the Institute could help the town rewrite its ordinance.

A new ordinance would have to be approved by voters at the polls in April.

“The Institute for Justice therefore calls on Conway officials to let Leavitt’s keep its attractive and well-loved wall painting and to amend the Conway sign code to allow all murals, regardless of content,” said Frommer’s letter.

“This won’t just help the town align with the First Amendment of the U.S. Constitution and avoid the possibility of embroiling the town in litigation. It will also be a benefit because, just like the other murals in town, the Leavitt’s mural will be a delight to the citizens of Conway for years to come — especially to the Conway youth who created it,” he concluded.

The Sun asked Code Enforcement Officer Gibbs about the letter.

“The town Of Conway is simply applying the ordinance as it is written, and Leavitt’s is simply following the appeal process as allowed by the applicable RSAs,” said Gibbs in an email Dec. 2.

Town attorney Jason Dennis tagged the Sun in his Dec. 7 email to Frommer, IJ Litigation Fellow Betsy Sanz and Jake Crabbs of Cooper Cargill Chant.

In the email, Dennis asked Frommer questions. Among them is that Orange Park’s ordinance says that “artwork” isn’t to “convey a commercial message.” Dennis asks Frommer how Orange Park’s ordinance is different from Conway’s.

“I admit I have not read the entire 31-page Orange Park ordinance word-for-word and cover-to-cover, so, I am hoping you can help me: what makes Orange Park’s ordinance different from what you say Conway has done?” asked Dennis.

Dennis also said enforcement hasn’t begun against Leavitt’s.

“The town is continuing its evaluation of the sign ordinance, and there will be no enforcement action while this evaluation is ongoing,” said Dennis.

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