Conway attorneys respond to Leavitt’s bakery lawsuit

Suit focuses on baked goods mural, considered by the town to be a commercial sign — not art
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Leavitt’s Country Bakery on Route 16 in Conway is seen Aug. 15, 2022. (Photo by Rachel Sharples)

The town of Conway told a federal judge last Friday it is simply trying to enforce an ordinance and not restricting Leavitt’s Country Bakery’s free speech, as Leavitt’s attorneys alleged after the town flagged its oversize baked goods mural as an illegal sign over a year ago.

For the past year, the Conway bakery and town zoning department have been at odds over the artwork of doughnuts and mountains painted by Kennett High School art students. Leavitt’s and its lawyers say the artwork is a constitutionally protected expression.

Representing the town is Jason Dennis of Hastings Law Office in Fryeburg, Maine, and Madeline Kate Osbon, Brooke L. Shilo and Russell Hilliard of Upton Hatfield in Portsmouth. Their answer to the Leavitt’s lawsuit was filed July 21 to U.S. District Judge Joseph N. Laplante.

Leavitt’s owner Sean Young is being represented by John Crabbs of Cooper Cargill Chant of North Conway, and Robert Frommer and Elizabeth Sanz of the Arlington, Va.-based Institute for Justice.

The lawsuit says Leavitt’s was “targeted” because the baked goods mural is considered by the town to be a commercial sign and not art.

The town’s attorneys say the question before the court is whether the art is a sign.

“The display on Leavitt’s façade depicts baked goods, identifying the purpose of Leavitt’s, a bakery, even if the sign did not depict a commercial message, it may still be considered a sign under the ordinance’s definition,” said the town.

“As the display meets the definition of a sign under the zoning ordinance, it must meet the town’s requirements, including its size. Given the square footage of Leavitt’s bakery, a wall sign may not exceed 22.13 total square feet. As Leavitt’s sign is around four times the permitted size, and a variance has been denied by the board of adjustment, the sign violates the town’s zoning ordinance,” the town attorneys said, adding, “The defendant treats all signs within the town of Conway the same and did not infringe on the free speech rights of the plaintiffs.”

The town says the definition of a sign is any “device, fixture, placard, structure or attachment thereto that uses color, form, graphic, illumination, symbol or writing to advertise, announce the purpose of, or identify the purpose of any person or entity, or to communicate information of any kind to the public, whether commercial or noncommercial.”

The town has no specific regulations for murals. 

The town says the ordinance was written to adhere to a 2015 Supreme Court decision, Reed v. Town of Gilbert, which addressed content of signs.

Young’s suit says he could be fined $275 and face criminal penalties for not complying with the sign ordinance, but in their answer, the town’s lawyers replied there’s no intention of charging him criminally.

Both parties plan to have a conference about the litigation and discovery Aug. 4.

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Categories: Law, Restaurants, Retail & Tourism