The Colemans initiated this action, following the denial of a permit to operate a tattoo parlor, claiming violations of both the federal and Arizona state constitutions. The trial court granted the City of Mesa’s motion to dismiss for failure to state a cause of action. The first tier appellate court reversed, finding that the art of tattooing was a form of protected free speech. The City appealed to the Supreme Court of Arizona, which found that tattooing was protected free speech, vacated the opinion of the appellate court, reversed the dismissal of the trial court, and remanded the matter back to the trial court for further proceedings.
The City of Mesa requires tattoo parlors to obtain a Council Use Permit (hereinafter “CUP”) to operate within the City. The City’s zoning staff advised the conditional approval of the application. The Colemans accepted these conditions. The Zoning Board held a hearing and recommended against granting the permit, a recommendation the City Council would follow. The Colemans responded to the denial by suing the City, claiming free speech, equal protection, and due process violations under both the federal and state constitutions. The trial court dismissed the action, finding the Council’s determination was “reasonable and rational.” Upon review, the Court of Appeals reversed, finding sufficient allegations of constitutional violations. The City appealed and the Supreme Court of Arizona granted the petition for review, as the issues proposed in this case are of first impression and significant importance.
In order for a tattoo parlor to operate within the City, it must meet land use requirements and obtain a CUP. The CUP is a discretionary permit granted by the Council. In determining whether to grant the CUP, the Council is to consider whether the parlor is “compatible with, and not detrimental to, adjacent properties or the neighborhood in general.” In order to grant the permit, the Council must find that the parlor will “be compatible with surrounding uses.”
The court began by addressing the Colemans’ free speech claim. The Colemans argued that the state and federal constitutions protect the creative expressions of tattoo artists. The City responded by asserting that the constitutional protections are irrelevant because the ordinance is a law of general applicability, which does not present a free speech claim. The court found that the CUP process was not a law of general applicability, but rather one that singles out certain land uses for stricter treatment.
Since the CUP process was not insulated from constitutional review, the Supreme Court of Arizona had to determine whether tattooing is a form of constitutionally protected free speech. To make this determination, the court would need to decide whether tattooing is a “purely expressive activity,” or if tattooing is an activity imputed with elements of communication. If tattooing is the former, it is granted full constitutional protection, but if it is the latter, the ordinance would be afforded rational basis review. The appellate court determined that tattooing is “purely expressive” and was entitled to intermediate scrutiny. The Supreme Court of Arizona agreed with the appellate court, finding that the medium used for expression, whether it be skin or paper, has no effect on the fact that the tattoo artist is making an expression when engrafting the image on the skin, and the person bearing the tattoo is making an expression by having it on their body. The court also provided that the business of tattooing is also constitutionally protected, but that laws of general applicability can regulate the land use.
Having found that tattooing is a form of constitutionally protected speech, the court had to determine whether the Colemans sufficiently pled a claim. Since the ordinance is facially content neutral and the Colemans did not alleged their permit was denied because of the content of their speech, the court had to look into whether the CUP process was a reasonable time, place and manner regulation. To be reasonable, the CUP process “must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication.”
The court found that the Colemans pled sufficient facts to allege a free speech violation. The court arrived at this finding based on numerous factors, including: the language of the ordinance, which provides broad discretion to decision makers; the Colemans agreed to comply with all the conditions imposed by the zoning staff; the Colemans would comply with the local laws when in operation; and, other tattoo parlors had been approved. This issue was remanded to the trial court for further proceedings.
Next, the court addressed the Colemans’ claim that the denial of their CUP permit violated their equal protection and due process rights under the state and federal constitutions. The appellate court, in finding free speech a fundamental right, determined that strict scrutiny should be applied. The Supreme Court of Arizona reversed, as the free speech right itself was only afforded intermediate scrutiny, and the equal protection and due process rights deriving from the free speech right could not be afforded a more stringent standard of review. Thus, the court ruled that intermediate scrutiny be applied to these causes of action.
Once the court determined which standard of review would be applied, the court then addressed whether the Colemans alleged sufficient facts to meet the standard. Specifically, the Colemans alleged that other tattoo parlors were permitted in other areas of the City, but that the Colemans’ application was denied due to “‘perceptions, stereotypes and prejudice’ rather than facts demonstrating that their business would harm the community.” The court found the Colemans sufficiently pled a cause of action, and, thus, the trial court’s order granting the motion to dismiss was improper. The Supreme Court of Arizona reversed and remanded for further proceedings.
Coleman v. City of Mesa, 230 Ariz. 352 (Sept. 7, 2012).
The opinion can be accessed here.