Jack Phillips isn’t the only baker to find himself targeted by busybodies demanding conformity.
Jack Phillips isn’t the only baker to find himself targeted by busybodies demanding conformity.
I t makes perfect sense that New Hampshire, a state populated by rugged individualists, would adopt as its motto a toast by its most famous Revolutionary War hero. But given the way one town is treating a popular bakery, the choice presented in New Hampshire’s creed may as well be “live free or diet.”
When Sean Young purchased Leavitt’s Country Bakery last year, he vowed to use the local institution as a hub of civic engagement. The bakery had been a popular meeting place in the Town of Conway for four decades, and Young’s purchase succeeded in keeping the establishment open. He even convinced his son and daughter to work some shifts.
Last spring, he was approached by the local high school’s art department and told that the students needed a place to hang a mural they were painting as part of a class project. Young happily offered up Leavitt’s as a home for their art.
When the mural was unveiled, it showed the sun rising over Mount Washington, except the mountain bluffs were majestic confections — donuts and other pastries against the sun’s rays. The community was delighted by the quirky, whimsical mural, which would now adorn the front of the bakery above the door. It is exactly the type of local art project that gives small towns their unique character.
But the pointy-nosed bureaucrats in the town’s code-enforcement office weren’t as excited.
A week after the mural went up, the town informed Young that the donut painting wasn’t “art,” it was a “sign.” As such, a code-enforcement officer told Young, it was in violation of the town’s sign ordinance, which limits the size of signs. He was told he had to take it down. This week, Young received notice that if the sign is not removed, he could face criminal charges and a fine of up to $275 per day.
Young was confused. “I didn’t understand how the government could decide what students are allowed to paint on their high-school art projects,” he told me.
Because the mural depicts products sold at the bakery, the town’s zoning department told Young, the painting “announced the purpose” of the business. Had the painting been of, say, giraffes, the mural would have been perfectly legal.
“Leavitt’s could legally have a mural the exact same size if it didn’t show any items they sell,” said attorney Rob Frommer of the Institute for Justice, which has chosen to defend Young against the town. “That makes no sense and violates the First Amendment.”
It is laughable to suggest that the town government is trying to regulate the Leavitt’s mural because it poses any sort of safety issue — the zoning board isn’t trying to save residents from any ventricular Armageddon they might face when scarfing down one of Leavitt’s donuts. It appears the town bureaucrats are simply afraid that the high schoolers’ art might bring more people to Young’s business.
It is the ordinance, however, that is the tool of oppression in Young’s case. The rule itself is impossibly vague, regulating any “device, fixture, placard, structure or attachment thereto” used “to communicate information of any kind to the public, whether commercial or noncommercial.”
The idea that nearly anything can be considered a “sign” is backed up in the injunction that Young filed against Conway this week, in which his lawyers provide this example:
In 2006, the Town enforced its sign code against a local ice cream parlor called “Lickety Splitz.” Lickety Splitz had installed ice-cream-cone-shaped trash cans outside of its store. The Town forced Lickety Splitz to remove them, because [zoning board] members determined that, because Lickety Splitz sold ice cream, and the trash cans were shaped like ice cream cones, the “primary purpose” of the trash cans was to sell ice cream.
At one recent town-hall meeting, a legal expert condemned the vagueness of the ordinance, pointing out that, under the existing rule, showing support for Ukraine by flying a yellow and blue flag or supporting gay pride with a rainbow decoration could both be considered “signs” subject to the code.
Young told me that in 2006, the town government conceded that the sign ordinance was unconstitutionally vague but said it wouldn’t be able to redraft it until April of that year.
“That was almost 17 years ago,” he said.
Of course, the town has no regulations on murals, which is why it is so important for its regulators to classify the donut painting as a “sign.” It is a common principle in local government bureaucracy that what isn’t expressly permitted is de facto forbidden.
“We are standing up for the high-school kids, we are standing up for art, and we don’t think the government should be able to tell you what you’re allowed to paint for an art project,” said Young, who told me his personal political views lean small-“l” libertarian.
And thus, Young joins the parade of bakers, florists, and others who have been thrust into the world of legal machinations that only suit overzealous regulators. Take Jack Phillips, for instance, the Colorado baker who is sued every ten minutes because he refuses to bake cakes celebrating actions (such as same-sex marriage) that go against his religion. If you are a master of confections, you, too, could soon find yourself the target of busybodies demanding your conformity.
Young said he tried to fight the town’s actions through legal channels, but he was rebuffed every step of the way. He applied for a variance in September of last year, but it was unanimously denied. Despite over 1,000 commenters taking to Facebook to save the mural, Young’s variance request was once again denied in November.
In his injunction against Conway, he demands that the town allow him to keep his artwork up. He seeks nominal damages of one dollar.
Young said he will not stop until his right to display a painting of his choice on his own property is restored.
“If we need to, we will go to the U.S. Supreme Court,” he said.
“The town government, like all other governments, seems to be taking more and more control,” he said, “and I’m not going to let the town bully me.”
Conway regulators be warned: Donut doubt his resolve.