Sheila McLaughlin reports:
The fight to put Lady Liberty back out on a busy street corner in West Chester Township next tax season isn’t over.
The 12th District Court of Appeals has ruled against Liberty Tax Service’s “waver,” saying West Chester gave the company a fair shake in hearings to decide whether the mascot was allowed under the township’s sign code.
Appeals judges sent the case back to Butler County Common Pleas Court to decide whether the waver dressed like the Statue of Liberty constituted protected speech.
On Tuesday, the company’s lawyer asked the appeals court to take another look at the case before the constitutionality question is broached.
“We think they are simply wrong on the law, with all due respect,” said Anthony Covatta, who represents Liberty Tax franchisees Kyle and Lorraine Garth.
The gist of the court filing is that the 12th District should have decided whether the West Chester Board of Zoning Appeals even had authority to rule on a sign variance for the Liberty Tax Service mascot before deciding if the township’s zoning process was properly applied.
Covatta maintains that the waver was not a sign as defined by the township zoning code, so the zoning appeals board didn’t have any authority to decide the case. Last week’s decision also conflicts with a decision in the Sixth District Court of Appeals in Toledo, Covatta contends.
The sign battle between the Garths and West Chester began in late 2009, soon after the Garths opened their Liberty Tax Service franchise in a strip center at the southwest corner of Tylersville and Cox roads.
The Garths say their costumed waver isn’t a sign and that West Chester’s sign regulations violated his right to commercial free speech. The wavers are considered Liberty Tax’s primary marketing tool.
West Chester officials say costumed characters as advertising are banned by the zoning code.