Westhampton Beach Village Has Spent Thousands In Legal Fees Over Illegal Ice Cream Cone Sculpture

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Westhampton Beach Village has drawn criticism for spending thousands in legal fees in an attempt to force a Main Street business owner to pay a $700 fine for placing a 6-foot-tall ice cream cone outside her shop three summers ago.

But officials defending the expenditure, which has totaled $18,000, insist they must enforce the village code and punish Elyse Richman, the owner of Shock Ice Cream and two clothing stores also on Main Street, for repeatedly racking up violations. The original $350 fine was doubled because Ms. Richman had prior violations, according to village officials.

Ms. Richman has argued that the fiberglass cone, which was stolen from outside her shop in the summer of 2010 and remains missing, is a sculpture and not a business sign—the latter of which would have required a permit from the village. She also thinks the Village Board is wasting money in its quest to punish her and collect a small fine.

“You could put sidewalks in for $18,000,” said Ms. Richman, who also owns the Shock and Baby Shock clothing stores in Westhampton Beach. “I think there are more [important] issues that need to be addressed than this.”

She explained that she attached the cone to a fence outside her ice cream shop for a birthday party in July 2010. The village issued her a summons on July 28, 2010, for placing it along the sidewalk and not securing a permit. A week later, on August 4, 2010, she filed a report with Westhampton Beach Village Police stating that the cone, which was still outside, had been stolen sometime during the night.

Westhampton Beach Village Justice J. Lee Snead ruled early last year that the cone was, in fact, a sign, and a violation of the code. But during a court hearing on April 11, 2012, during which a trial was expected to be scheduled, Justice Snead unexpectedly dismissed the case “in the interest of justice.”

His order of dismissal, written a month later, states that the violation “is not likely to recur,” and noted that Ms. Richman has agreed to seek a permit should she ever install another statue in the future.

But in June 2012, the village trustees voted to appeal the order to the 2nd Judicial Department Appellate Term, State Supreme Court, in Brooklyn. They paid special counsel Hermon “Bo” Bishop, a Westhampton Beach attorney, a former village attorney and a second cousin of Mayor Conrad Teller, $190 an hour to draft the appeal.

To date, he has collected nearly $18,000 in fees for this one case, which Mr. Bishop said on Wednesday is expected to be decided in the fall or early winter. If the court sides with the village, the case would likely be scheduled for trial in Westhampton Beach Justice Court. If Ms. Richman wins, the case will be dismissed.

Regarding his fees, Mr. Bishop said the amount of work that went into the appeal was “extensive,’ and that the judge’s dismissal of the case was “improper” due to Ms. Richman’s pattern of flaunting the village code.

“This is a recidivist defendant who has continually broken the village code, and the trustees felt that it was time to see this through and to … not just let her get away with it because she hired a lawyer to defend her,” Mr. Bishop said.

Mr. Teller explained that such appeals take time to complete, and it was not out of the ordinary for Mr. Bishop to bill the village for the hours. “You don’t write them in five minutes,” he said, adding that Mr. Bishop will not collect any additional fees. “They’re technical.”

A few months later, Ms. Richman was issued another summons by the village after she displayed another ice cream statue outside her shop without first securing a permit, according to village records. She was found guilty in April 2013 and issued a $50 fine, which Ms. Richman said she has paid.

Village Building Inspector Paul Houlihan said Ms. Richman often flaunts the code, noting that, since 2001, she has been issued some two dozen notices of violation and numerous summonses for installing signs, outdoor displays, and outdoor tables and chairs without the proper approvals.

Mr. Houlihan added that he thinks Justice Snead made a mistake when he dismissed the ice cream cone case, noting that fining Ms. Richman could have deterred her from violating the code again in the future.

“Is it ever going to end—all the sign violations in the village? Of course not. There is always going to be someone new,” Mr. Houlihan said. “But I have to say this: There is no one, there is nobody who has been as consistent and methodical with sign violations as Elyse Richman. God bless her.”

Though Ms. Richman has accused village employees of selectively enforcing its code, Mr. Houlihan said both he and code enforcement officer Bridget Napoli painstakingly enforce the sign ordinance by issuing summonses as soon as they witness or are alerted of violations.

Ms. Richman disputes that claim. “They have attacked me and harassed me since I opened my store 28 years ago,” she said.

“The village is not business-friendly,” Ms. Richman added, pointing to its sign ordinance that permits business owners to have up to two signs outside their shops, only one of which may be on the ground. It also limits the size of the signs and prohibits others, like illuminated signs.

Ms. Richman said this week that her attorney, Guy Parisi, who has offices in Rye, is representing her pro bono in the case. She also said that, over the past 28 years, she has paid two fines for violating the village’s sign ordinance.

“Seriously, if this was outside my ice cream store, would this bother anybody?” she said, pointing to a similar 7-foot-tall cone that now makes its home inside her ice cream shop.

The village amended its sign ordinance in 2008, but only after establishing a committee of village residents, business owners, elected officials and a representative from the Greater Westhampton Chamber of Commerce.

“They wanted something that would keep the village looking nice and help the business community,” Mr. Houlihan said, adding that the ordinance is similar to those in Quogue Village and Southampton Town.

“If, all of a sudden, all the business owners were saying this is outrageous, I would encourage the trustees to do another sign committee,” he said. “If they want 6-foot-high statues outside of stores, we should let them have that.”

Village Trustee Hank Tucker said he has supported the decision to appeal the case, though at the time he was not aware it would cost such a substantial amount in legal fees. He noted that the $18,000 paid to Mr. Bishop was included on several vouchers that were not voted on by the entire Village Board. Rather, they were signed by Mr. Teller, and one of the other trustees, and paid out over a year.

“I am a believer of defending our statutes and our code,” Mr. Tucker said. “If you don’t defend your statutes and your code, then what good is it?”

He added that the board has since passed a resolution requiring that such payments be approved by the full board, and the trustees have placed a cap on the amount that could be paid to special counsel that the village hired to work on other suits.

“From a code enforcement view we’re saying, ‘She stuck a 6-foot-high ice cream cone out, what else would we do here?’” Mr. Houlihan said. “She stuck that outside and we issued her a summons.

“And we’ll issue her another summons the next time she does that,” he continued. “That’s what we do—that’s what the village paid us for, that’s what the village expects from Bridget and I.”

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