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Westhampton Beach 'ice cream cone' spurs legal headache

Maxwell Richman, 13, the son of Elyse Richman,

Maxwell Richman, 13, the son of Elyse Richman, who owns Shock Ice Cream and Dessert Cafe in Westhampton Beach, tries to reach the top of the giant cone. (June 28, 2013) Credit: Newsday / Jeffrey Basinger

It might be the most expensive ice cream cone in the Hamptons.

In the past three years, the village of Westhampton Beach has spent more than $18,000 in legal fees trying to fine a business owner $350 for what she contends was sculpture and village officials insist was a business sign -- something on display only a couple of days.

Elyse Richman, 52, owner of Shock Ice Cream and Dessert Cafe on Main Street, said the 6-foot-tall waffle cone of mint, vanilla and strawberry was art and that it was stolen soon after it was displayed near her store.

Village officials acknowledged the expenditures and said in interviews and in a thick stack of court motions that it was clearly a sign, erected by Richman -- a frequent offender of the village's sign code, the village said -- without permission and in violation of the village's strict ordinance meant to promote a "mellow" downtown.

Mayor Conrad Teller said that, historically, "This village has prided itself to keeping signs to a low roar."

Teller said he was not thrilled with the cost of the legal fight over the fine, which the village argues is actually $750, and not $350 as Richman and a village justice said, because Richman was found guilty of another sign ordinance violation in 2006. But he and the village's attorney, Hermon J. Bishop, defended pursuing the matter.

"It seems like we're wasting a lot of money on what most people would consider nothing," Teller said. "But we do have a sign ordinance that we have to uphold."

Richman, who hired an attorney to fight the cone violation, said in 28 years running three village businesses, she has paid two fines for violating the village's sign code. Other citations were dismissed or remedied. She accused the village of selectively enforcing which businesses are cited and referred to the case as "an absolute injustice of power, a waste of money and a waste of court time . . . It's just loony."

Joan Levan, a Westhampton Beach resident and former trustee, said Richman sometimes pushes the line promoting her business, but said she should be applauded.

"Why they'd spend $18,000 on something like this is the most ludicrous thing I've ever heard in my whole life," she said. "I'm appalled my taxes are paying for something so stupid."

Some fellow residents agreed.

"That's crazy," said Janice Koppell, 53, as she enjoyed a gelato from a nearby Haagen-Dazs and a stroll down Main Street.

"It's government mismanagement of funds," added her husband, Marc, 54.

The legal wrangling began in February 2012, when acting village Justice J. Lee Snead ruled that the more than 100-pound fiberglass ice cream cone -- which contained no words -- "qualifies as a 'sign' under the Village code."

However, at an April 2012 court hearing meant to schedule a trial, he dismissed the case "in the interest of justice," stating in the court transcript that "it turns out the offending ice cream cone sign is no longer on the building and has not been on the building for some time."

The following June, board members voted to appeal the case to the Second Judicial Department Appellate Term in Brooklyn, paying Bishop $190 an hour to work on the case. Between May 2012 and February 2013, Bishop billed the village $17,927.51 for the appeal work, according to records provided by the village.

The total doesn't include the work Bishop did on the case in village Justice Court, which he said could not be broken out because it was added with other work he did for the village.

Richman, who also owns a children's clothing store and a ladies' apparel store in the village, replaced the stolen cone with a similar one she placed inside her shop. She said she is just trying to promote her business, but Paul Houlihan, the village's building and zoning administrator, said that since 2001, the village has ordered Richman to correct sign violations 15 times and issued her another five summonses for illegal signs.

He said the fight is necessary to prevent a general flouting of the village's sign law, which was developed with a majority of business owners.

Otherwise, he said: "Then the bagel store will want to put big bagels out front. The real estate guy would put up big houses with 'sold' signs."

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