Umbrella flap makes its way to federal court

By The Associated Press

02.07.03

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KENNEBUNK, Maine — A flap over umbrellas outside a restaurant in this tourist enclave has made its way into the federal courts.

The owner of Bartley's Dockside has sued after being told to cover up the words "Hebrew National Beef Franks" on his table umbrellas. The code-enforcement officer contends the umbrellas violate a sign ordinance.

Brian Bartley said the code enforcement officer told him last July that the umbrellas were "personally offensive to me, and they have to go."

Bartley said he was ordered to cover the logo with either spray paint or duct tape to make the umbrellas comply with town code, according to the lawsuit filed last month in U.S. District Court in Portland.

The flap grew as locals inquired as to who had defaced the umbrellas, and Bartley explained that he was required to do so.

To Bartley's lawyer, Roland Coles, the case smacks of anti-Semitism. "Had the umbrella said 'Christian National Hot Dogs,' I don't think there would have been any issues," Coles said yesterday.

Neither Town Manager Barry Tibbetts nor the code enforcement officer, Paul Demers, returned calls to the Associated Press seeking comment yesterday morning. But The New York Times quoted Demers as denying he was anti-Semitic.

The Times quoted Tibbetts as saying, "What this really boils down to is, basically, the town has an ordinance that says you're allowed three signs. He has in excess of 10."

Even though Bartley felt he had complied with the law, the town took him to state court for violating the sign ordinance, which limits the number of signs to three per establishment. Fines can range from $100 to $2,500 for each violation. Bartley is asking a federal judge in the court in Portland to prohibit Kennebunk from enforcing its sign ordinance against him.

Things turned even uglier recently when the town declined to renew the beer and liquor license for the 25-year-old restaurant, a frequent hangout for both President Bushes and their staffs when they are in town.

The Times quoted commercial-speech expert Bruce E. H. Johnson, a Seattle lawyer, as saying, "Under the First Amendment, a city can regulate truthful commercial speech about a legal product such as Hebrew National hot dogs only if can prove the regulation directly advances a substantial governmental interest."

The town's sign ordinance does not mention umbrellas, but it does mention awnings as an example. Awnings are not covered by the ordinance unless they have a commercial message on them, the ordinance says.

Coles says the whole thing is silly. What's next, he asked, fining waiters and waitresses who wear T-shirts with a commercial logo while they serve customers seated outside a restaurant?

Umbrellas are a sign of summer and there's no need to regulate them, Coles said.

Most of them, like Bartley's umbrellas, are given to vendors for free. Bartley said in court documents he couldn't afford umbrellas, which cost $150 to $170 apiece, so he accepts free ones.

"What would Rome be without Cinzano umbrellas or what would Paris be without Perrier umbrellas?" Coles said.