Hendricks County Flyer, Avon, IN

February 8, 2013

Avon facing lawsuit over 'living sign' ban

By Wade Coggeshall
CNHI

AVON — A dispute over "living signs" has resulted in a lawsuit against the town here.

Victor Ruthig owns two Liberty Tax franchises in Avon. Part of their business model involves using people dressed either as Uncle Sam or the Statue of Liberty standing outside the shop and waving to passers-by. Angela Walston, who manages the Liberty Tax at 8105 E. U.S. 36, estimates almost half of their business comes from these "wavers."

"When people come in, we ask them how they heard about Liberty. About half of them say they saw our waver," said Walston, who added that some clients specifically look for the mascot when searching for Liberty Tax.

Ruthig has operated in Avon since 2006, originally at a location along State Road 267. Town officials would periodically inspect their wavers, but permit them as long as they stayed out of the right-of-way.

In 2008, the town considered amending its zoning ordinance to include "living signs" that would effectively ban wavers such as Liberty Tax's. They ultimately dropped the proposal.

The issue remained dormant until last tax season. Ruthig says town officials threatened to fine him unless he stopped using his mascots.

"It was pretty damaging to our business at the end (of tax season)," he said.

That summer, Ruthig moved his office from State Road 267 to its current location along Rockville Road. He filed a variance with the town for permission to use wavers at the new address. The Avon Board of Zoning Appeals denied it at its Oct. 18, 2012, meeting.

The main reason cited was that such mascots cause a safety issue. Joe Smoker, Avon's assistant planner, wouldn't comment directly on this pending litigation but referred to his staff report to the BZA that recommended denying Liberty Tax's variance.

"U.S. 36 is not a shopping aisle, but a heavily-traveled corridor for vehicles," Smoker wrote. "The town has recognized this and has applied sign regulations to reduce visual clutter and distraction. This specific intersection (Dan Jones Road and U.S. 36) has some of the highest rates of vehicle incidents within the town and as such, measures need to be taken to limit distractions."

Ruthig asserts in the 10 years he's owned Liberty Tax branches - including another two by busy Indianapolis intersections - his wavers have never caused an accident.

"We're not interested in putting anyone in harm's way," he said. "We live here. I've never felt like this is a safety issue. It's other things that town officials want to accomplish."

He's referring to Smoker's report where the planner writes that Liberty Tax's variance could apply to every business.

"It is not unreasonable to believe that an approval of this request could lead to a person dressed as a beer bottle, cigar, tooth, bagel, UPS man, cell phone, and nail polish brush, among others, standing and waving along U.S. 36, all within this specific commercial center," Smoker wrote.

Ruthig says the only ones who've copied the idea consistently are some of the cash-for-gold buyers.

"To be respectful to the town, our guys have always only been out there to be goodwill ambassadors," he said of his mascots.

Charlie Selke, Ruthig's marketing manager in Avon, fills in as Uncle Sam when needed. He maintains that he stays out of the right-of-way and only waves his hand normally when in costume. There are no gesticulations or dancing. It's as much about being respectful to these American symbols as it is not causing a hazard.

"I almost get universally positive feedback," Selke said. "(People) honk and wave. They're delighted to see me."

As a result of the denied variance, Ruthig has filed a court petition against the town of Avon. He maintains the denial of his variance isn't supported by substantial evidence, is arbitrary and capricious, and violates his First Amendment rights. He says the BZA has offered to hear his variance again, but he doesn't see anything good coming from it.

"We felt like we answered most of their issues and proved our point," Ruthig said.

Unsure of how long it will take to wend its way through the courts, he's considering establishing a legal defense fund.

"There are always opportunities to find compromise," Ruthig said. "That could come into play at any time. But right now, if it takes us a year or two to go through this, we're in for the haul."

wade.coggeshall@flyergroup.com