Updated: 10:43 a.m. Thursday, Nov. 1, 2012 | Posted: 6:30 a.m. Tuesday, Oct. 30, 2012

Court upholds local ruling against ‘Lady Liberty’

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Court upholds local ruling against ‘Lady Liberty’ photo
Staff photo by Nick Daggy
Scott Hardwick advertises for Liberty Tax Service along Main Street in Hamilton. Liberty Tax locations in Hamilton and Middletown have utilized “human signs” in the form of Lady Liberty mascots. The use of “human signs” is not prohibited in Hamilton or Middletown’s zoning codes, according to officials.
Court upholds local ruling against ‘Lady Liberty’ photo
Staff photo by Nick Daggy
Kyle and Lorraine Garth, owners of Liberty Tax Service, are nearly three years into a legal battle against a zoning code violation they received in early 2010 after they employed a woman to dress as Lady Liberty and stand near the road to attract customers to their business, located at 7743 Tylersville Road.

By Hannah Poturalski

Staff Writer

WEST CHESTER TWP. —

An iconic symbol of freedom — the Statue of Liberty — is at the heart of a local business owner’s fight for what he believes is freedom of speech.

Kyle Garth, owner of Liberty Tax Service, is nearly three years into a legal battle against a zoning code violation he received in early 2010 after he employed a woman to dress as Lady Liberty and stand near the road to attract customers to his business, located at 7743 Tylersville Road.

An Ohio appeals court has upheld West Chester Twp.’s board of zoning appeals ruling against the use of “human signs.”

“Liberty Tax never appealed the original notice of a zoning violation,” reads the Oct. 22 decision by the Ohio 12th District Court of Appeals in Middletown. “Instead, it chose to cease and desist the use of Lady Liberty as an advertising tool and to then seek a variance.”

The BZA said the use of Lady Liberty violated multiple sections of zoning code, including: allowing the sign on property not owned by Liberty Tax; the sign being portable and not affixed to the ground; and exceeding the size limit, according to court records.

The local township ruling has now been upheld in both Butler County Common Pleas Court and the Ohio 12th District Court of Appeals.

Now Garth’s court battle will move onto the constitutionality of the statute as it relates to Freedom of Speech, according to Judge Patricia Oney of Butler County Common Pleas. Motions are scheduled to be filed Nov. 6 during a hearing.

The zoning code in West Chester Twp. is too strict on businesses, especially in a down economy, Garth said in an email. The zoning ordinances have prohibited him from hiring additional employees that would have dressed as Lady Liberty, he said.

“Basically this situation is a case of an undesired form of employment being offered in their township,” Garth said. “Yes, they are to govern, but when are they overstepping their bounds?”

According to court records, the BZA denied the request for an exception because it would “alter the character of the neighborhood.”

“Lady Liberty created distractions for passing motorists and also detracted from the surrounding commercial signage utilized by other commercial businesses,” court records indicate.

“This is the beauty of our checks and balance system,” said Lee Wong, West Chester Twp. trustee. “Government should be extremely tested of its process. It’s always gratifying to know that the judicial branch (a disinterested third party) upheld the enforcement of our zoning codes.”

Liberty Tax Service, an income tax preparation and filing service, is part of national chain with franchises in all 50 states. Locations in Hamilton and Middletown have also utilized “human signs” in the form of Lady Liberty mascots.

The use of “human signs” is not prohibited in Hamilton or Middletown’s zoning codes, according to officials.

“If the (mascot) is moving and carrying a sign, there’s no ordinance against that,” said Larry Bagford, planning and zoning specialist in Hamilton. “We don’t address it unless it’s causing traffic or safety issues.”

Marty Kohler, planning director for the city of Middletown, said the city’s zoning code pertains only to signs attached to buildings or the ground. Kohler said the city doesn’t regulate signs carried by people or on vehicles.

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