Sheila McLaughlin reports:
Is the Lady Liberty mascot that waves customers into Liberty Tax Service considered a sign?
The township thinks it is. The business’ owner says that’s bunk. And a man familiar with signage issues nationwide says he has never heard of such a dispute.
Wade Swormstedt of Kenwood, publisher/editor of Signs of the Times magazine for the on-premise sign industry, said, “I don’t really know of a legal precedent one way or another on that – anywhere.” But, Swormstedt said, the situation seems to indicate continued resistance to unconventional signage, bucking a national trend toward relaxing signage restrictions.
“With the economy doing so poorly, the signs make a difference,” he said, by boosting business and bringing in more tax revenue.
The Lady Liberty battle began almost three years ago. In 2010, the tax service received a $500 ticket for violating township sign regulations. Now the case is at Ohio’s 12th District Court of Appeals in Middletown, which could take weeks to release a decision that could be precedent-setting for an eight-county area including all except Hamilton County.
Co-owner of the Liberty franchise in West Chester, Kyle Garth, says the township’s sign restrictions violate his right to commercial free speech. Liberty’s locations in other Southwest Ohio communities aren’t facing problems because of their costumed “wavers,” he said. “This is our No. 1 marketing tool. It’s really, honestly killing my business. I should be double where I’m at right now,” Garth said about the township’s decision to keep the “wavers” off the congested roadside.
Garth and his wife, Lorriane, who live in nearby Mason, opened the franchise in late 2009 in a strip center at the southwest corner of Tylersville and Cox roads. Liberty Tax Service has 4,000 offices in the United States and Canada; it’s the nation’s second-largest tax preparer, behind H & R Block.
West Chester is the Garths’ sole location. Other franchisees run several offices. “This has been going on since the first or second week we were in business in West Chester Township. They told me flat out it is ‘dirtying up our community,’” Garth said. “We don’t have this problem in any other part of the state. Nowhere.”
“Wavers” dressed like the Statue of Liberty are part of Liberty Tax Service’s branding, Garth said. If he could, he would hire three to five mascots who would be paid $8 an hour and would receive a bonus depending on what kind of a show they put on for traffic.
West Chester spokeswoman Barb Wilson said costumed characters as advertising are banned by the zoning code, she said.
But Garth’s attorney, Tony Covatta said, “If you read the definition in their statute, there’s no way that costume constitutes a sign.” Township regulations define a sign as “any device, structure, fixture or place card using graphics, symbols, and/or written copy for the primary purpose of identifying, providing corrections or advertising any establishment, product, goods or services.”
Garth tried to resolve the issue by seeking a variance to the West Chester’s zoning code after receiving the ticket. He was denied. Garth wanted permission to station the live Lady Liberty character on the sidewalk for three months. The township board of zoning appeals decided in December 2010 that allowing the “wavers” would require too much manpower to make sure the “human signs” stayed out of the right-of-way.
Township documents also indicate that a costumed character was a dangerous distraction for motorists and “detracts from the commercial district.” West Chester zoning officials suggested that Garth instead put up a temporary sign, something affixed to the ground and no more than 16 square feet. That could only be up 14 days per year, according to sign regulations for temporary signs. That wasn’t good enough for Garth. He challenged the township’s decision to Butler County Common Pleas Court, where Judge Patricia Oney sided with West Chester. Garth took it to the appeals court.
The township has also battled another businesses over a costumed character, suing the Union Station apartment complex off of Cincinnati-Dayton Road in 2006 over a sign-holding tiger mascot. The apartment complex settled last year, promising to abide by regulations.
Jack Vyhnalek, who owns Liberty Tax offices in Anderson Township, Franklin and Blanchester, said he hasn’t had any government backlash; Anderson Township officials just told him to keep the wavers 10 feet back from Beechmont Avenue. “We’re the fastest-growing tax business ever and we’ve done it the old-fashioned way. We don’t have TV ads. We don’t have radio ads, we do it with the old-fashioned guerilla-type marketing. That’s what the waver is all about,” Vyhnalek said.
He’s not sure why West Chester officials are up in arms: “You can go on YouTube and see tons of pictures of our wavers. It’s almost becoming one of these crazes .”
Tod Swormstedt of Walnut Hills, founder of the American Sign Museum in Camp Washington, said that although the West Chester case is intriguing, “I don’t know how it fits into the evolution of signage. I can talk about the evolution of materials, technologies and design trends, but I don’t know how that fits in with a person standing there in a costume.”
He also says there are bigger signage issues: “I’m sure it’s very important to the people in West Chester and to Liberty Tax Service. I’m not diminishing the impact on them. But in the history of signs, it would be a very small footnote.”
Janice Morse contributed to this story.