Town Tells Donut Shop That Mural Painted By Local High Schoolers Is Illegal, Threatens Fines

High school students worked for weeks on an art project for a beloved local bakery in Conway, New Hampshire. When their mural of a sun rising over a mountainscape of assorted pastries was unveiled, it was reported by the local newspaper and widely praised. But there was someone in town who saw things differently: the local code enforcer.

What he saw was an “illegal” sign that needed to be torn down or painted over. That’s because, according to the town, if a mural depicts anything related to what a business does, it is a sign and subject to strict regulations. For instance, if the exact same mural were painted on a tire shop across town, or even at the farm stand thirty feet away from the bakery, it would be legal.

Leavitt’s Country Bakery is an institution in Conway. For 45 years it has been admired for its baked treats, even being named the “Best Doughnuts in New Hampshire” by a state television station last year. Sean Young had been a loyal customer for years. When the original owners decided to sell, most potential buyers had a different vision for the property. But Sean wanted to keep the bakery’s legacy going and purchased it in 2021.

Last year, a friend of Sean’s connected him with a local high school art teacher regarding a project for her students. Sean agreed to let them paint a mural for the unadorned space above the shop. Believing the students should have artistic freedom, Sean didn’t give them any directions about what to paint. But when he saw it, he loved it, and he wants to keep it.

The code enforcer’s warning came as a complete shock and Sean first thought that the town might grant an exemption. Despite overwhelming support for the students’ artwork, the town refused to grant an exemption and said that daily fines of $275 would start in February. The town also reiterated that the mural would be completely legal if Sean moved it from the bakery to a nearby farmstand.

Sean operates the bakery as a labor of love, currently drawing no salary from the business. Facing down a deadline that would financially ruin him, he teamed up with the Institute for Justice earlier this week to file a federal lawsuit against the town for violating his First Amendment rights.

Simply put, the government can’t decide what people may and may not paint. In legal terms, what the town has is a content-based restriction. If the students had painted the sun setting over actual mountains, it would be fine. If the students painted flowers, the mural would be legal. But ridiculously, that same flower mural would become illegal if the bakery decided to also sell bouquets.

Conway is not the only place in the U.S. where code enforcers try to play art critic when it comes to murals. Arlington County, Virginia, forced a doggie daycare to paint over cartoon dogs in 2012 and a pizza parlor to paint over a brightly colored mural of Italian foods in 2019. Last year a Minnesota town threatened to fine a salon for painting a mural because the city code did not strictly permit murals.

Fortunately for Sean, there is relatively recent support in the federal courts for his new lawsuit. The Lonesome Dove saloon in Mandan, North Dakota, was ordered to remove a mural because it included the name of the business in the art work. After the owners sued with Institute for Justice, a judge issued a temporary restraining order against the city, finding that a ban on commercial murals was “unlikely to survive constitutional muster.”

As Conway’s zoning board was considering whether to find the mural illegal, one of the members opined that it would be a great civics lesson for the students to have to seek permission from the government for their art. Now Sean intends to teach the town a civics lesson about freedom of expression. Speaking at a press conference announcing the new lawsuit he said, “I’m here to stand up for artists everywhere … The First Amendment is the cornerstone of American democracy.”

Sean received some good news shortly after announcing the suit. Conway agreed not to try to fine him while the lawsuit is going on. It’s a small victory, preserving the students’ art in place for at least a little longer.