Institute for Justice Senior Attorney Rob Frommer (second from right) speaks at the Leavitt’s Country Bakery
press conference to announce a federal lawsuit against the town of Conway on Jan. 31, 2023. From left:
Cooper Cargill Chant Attorney Jake Crabbs, Institute for Justice Litigation Fellow Betsy Sanz, Institute for
Justice Senior Attorney Rob Frommer, and bakery owner Sean Young. (Photo by Rachel Sharples)
Leavitt’s Country Bakery, which is in a federal court battle with the town of Conway over the town’s sign ordinance, is now trying to take the town to task over the new public art ordinance because it would chill efforts to create future murals. Last week, the town’s lawyers said that new claim should be dismissed.
Since January 2023, the town and Leavitt’s County Bakery have been in federal court regarding what Leavitt’s says is a mural, which depicts baked goods painted by Kennett High School art students. It is located on the front of the bakery. The town has defined it as a sign and because of its large size says it is in violation of the town’s sign ordinance.
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.
Representing the town is Jason Dennis of Hastings Law Office in Fryeburg, Maine, and Madeline Kate Osbon, Brooke Lovett Shilo and Russell Hilliard of Upton Hatfield in Portsmouth.
The case is before Judge Joseph N. Laplante.
Leavitt’s is trying to add the new claims against the new public art ordinance to the original case and says the benefit of this is it would spare the town another lawsuit.
On June 18, Young’s attorneys filed “plaintiff’s motion for leave to supplement pleadings and memorandum in support. The pleading is aimed at the town’s “public art ordinance.” It was passed by the voters 1,277 to 423 on April 9. Young would like to do more murals but believes the public art ordinance could hamper him and others.
Leavitt’s is now asking LaPlante to declare that the public art ordinance is unconstitutional and for an “entry of judgment declaring that the Town’s discrimination against murals with content related to the business that displays the mural is unconstitutional.”
“That New Ordinance imposes restrictions on Plaintiffs from expressing themselves through future murals, either at Leavitt’s or other locations,” states the motion. “Accordingly, Plaintiffs’ supplemental complaint challenges the New Ordinance on similar First Amendment grounds.”
Young doesn’t know the subject matter of such future murals he might be planning.
Still, Leavitt’s says that the ordinance “discrimination” against proposed murals that are “commercial in nature” violates the First Amendment and serves no compelling government interest.
Under the public art ordinance, murals should also be “representative of the community and the natural beauty of the Mount Washington Valley.”
The public art ordinance prohibits issuance of a permit for proposed murals that displays “prices, products or services for any commercial use.”
Leavitt’s argues that the public art ordinance discriminates against proposed murals based on content.
“Sean does not want to restrict himself from choosing certain mural designs and messages just to appease the Public Art Ordinance and the Planning Board,” states the supplemental complaint. “Sean does not want to be subjected to the Planning Board’s unbounded discretion in deciding whether to approve or deny applications for proposed murals as ‘public art.’”
Meanwhile, the town objected to Leavitt’s motion to supplement the pleadings in a document filed on July 2. The objection stresses that Young is objecting to restrictions on theoretical future murals that haven’t been designed. The town’s lawyers want Laplante to deny the motion.
“Plaintiffs merely claim that because they would like to have murals in the future (even though Plaintiffs admit they have no idea what those murals will be), they have been injured simply because those potential murals would be subject to the New Ordinance,” states the town’s attorneys. “Plaintiffs merely present a hypothetical injury and have failed to allege a case or controversy that would allow this Court to have jurisdiction over adjudicating Plaintiffs’ claims.”
Summary judgment pleadings are due on July 15. Summary judgement is when a judge resolves a case or a piece of a case without trial. The original case is set for trial in November.
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