Posted by: Patricia Salkin | November 12, 2011

AZ Appeals Court Holds Tattoos and the Business of Tattooing Are Forms of Speech Entitled to Full First Amendment Protection

The Colemans sought to operate a tattoo business in a strip shopping mall in the City of Mesa.  Mesa required some businesses, including pawn shops, tattoo parlors, and body piercing salons, to obtain a Council Use Permit before operating in a commercially zoned area. To obtain a permit, a tattoo parlor, among other things, had to be licensed as required by any state or county agency, sited to operate in a location at least 1,200 feet from an existing tattoo parlor, body piercing salon, or school, and “be compatible” with surrounding uses, the General Plan and other development plans.  The initial staff review found the Colemans were in compliance and recommended that the permit be issued.  However, the Planning and Zoning Board denied the permit because a tattoo parlor was not “appropriate” for the neighborhood.  When Council heard the application at a hearing, opponents presented no evidence but articulated concerns that a tattoo parlor in the suggested location might attract crime and reduce property values.  The Council voted 6-1 to deny the application.

The Colemans sued, alleging violations of their civil rights guaranteed under the state and federal constitutions, and seeking declaratory and mandamus relief as well as monetary damages under 42 U.S.C. § 1983.   The court below dismissed the complaint for failure to state a claim on which relief could be granted, concluding that the Council’s decision “was a reasonable and rational regulation of land use.”

In a case of first impression for the state, the Arizona Court of Appeals reversed and remanded, ruling that “obtaining a tattoo, applying a tattoo, and engaging in the business of tattooing are exercises of free speech entitled to protection as a fundamental right under the Arizona Constitution and the United States Constitution. As such, any restriction on that right must be highly scrutinized…”  Pure speech was characterized by “an inherent expressiveness that extend[ed] beyond oral and written communication to any medium whose dominant function [was] expression of a thought, emotion, or idea.  Following this general principle, we agree with [Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1060 (9th Cir. 2010)] that tattoos constitute ‘pure speech’ and are therefore entitled to full protection under the First Amendment. …We likewise agree with the Anderson court that the process and business of tattooing fall within the category of pure speech rather than conduct.”  The Colemans sufficiently alleged in the complaint that Mesa infringed their free speech, equal protection, and substantive due process rights by applying an unreasonable time, place, or manner restriction on operating tattoo parlors. The court below, therefore, erred by dismissing the complaint for failing to state a claim on which relief could be granted.

Coleman v. City of Mesa, 2011 WL 5244357 (Ariz. Ct. App. 11/3/2011).

The opinion can be accessed at: http://azcourts.gov/Portals/89/opinionfiles/CV/CV100808.pdf  

For an article on regulating controversial land uses that discusses tattoo cases from other jurisdictions see: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1822433

Also, there is an upcoming audio CLE on regulating controversial land uses organized by Dwight Merriam of Robinson & Cole, see: http://www.lorman.com/audio-conference/387461

This case abstract is excerpted from the November 9th IMLA News.  For more information about the International Municipal Lawyers Association see www.imla.org


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