The Northern District of Illinois upheld the city council’s denial of a special use permit for the operation of a tattoo studio where the Council informed the plaintiff that it was “not the kind of business” the council wanted in the neighborhood. Following the denial, the plaintiff alleged that his constitutional rights were violated, asserting that the denial violated his right to equal protection, substantive due process and procedural due process, and that the zoning ordinance is an unconstitutional exercise of the state’s police power on its face and as applied to the plaintiff.
The Northern District first quickly dismissed the City’s motion regarding lack of subject matter jurisdiction claiming that the matter was not yet ripe because the plaintiff had not exhausted its state remedies for its constitutional property rights claim. The Court noted that exhaustion of state remedies is only required where there is an allegation of a due process violation in connection with a claim of takings violating the Fifth Amendment. Since this was not a claim brought by the plaintiff, the City’s motion to dismiss for lack of standing was denied.
The plaintiff argued that his right to free speech under the First Amendment was violated, asserting that the right to draw tattoos is protected speech. The Court said that the act of tattooing is not constitutionally-protected free speech because the act itself is not intended to convey a particularized message. Finding no fundamental right or suspect class, the Court held that the government’s decision to deny the permit could be rationally related to a legitimate state interest, as the City explained numerous planning goals are advanced by the requirement of a special use permit for this use including: “character, stability, or intended development of the City’s central business district; suitability of the location to the proposed use; necessity and desirability of a proposed use in a particular location; and protection of the health and/or safety of the community.” Therefore, the Court held that the plaintiff is not entitled to relief for an Equal Protection violation. Further, the Court noted that the Plaintiff did not plead sufficient grounds to be considered a class of one for purposes of Equal Protection.
Turning to the plaintiff’s substantive due process claim, the Court noted that the plaintiff must show 1) the decision was arbitrary and irrational and 2) a separate constitutional violation or the inadequacy of state law remedies. Having not alleged a separate constitutional violation, since the act of tattooing was determined not to be protected activity under the First Amendment, the Court dismissed this claim. Similarly, the plaintiff’s procedural due process claim was dismissed because the plaintiff could not establish that he had a protectable property interest since he did not have a legitimate claim of entitlement to a special use permit.
Lastly, since the zoning ordinance itself is rationally related to a legitimate state interest, and plaintiff has neglected to include in the complaint any grounds upon which the zoning ordinance could be unrelated to a legitimate state interest, the police powers challenge to the zoning ordinance also failed.
Hold Fast Tattoo, LLC v. City of North Chicago, 2008 WL 656077 (N.D. Ill. 3/7/2008).
The opinion can also be accessed at:
http://www.abisoft.org/opinions/2008/1_07-cv-04479_20080307.pdf
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