Posted by: Patricia Salkin | September 11, 2014

Fed Dist Court in IL Finds Tattoo Artist Stated a Valid Claim for Denial of Procedural Due Process Following Denial of Permit for Studio as Tattoos and Tattooing are Protected by the First Amendment

Jucha owned and operated 4 Aces Tattoo Parlor and Body Piercing in Franklin Park, Illinois. Jucha sought to open a second studio, known as 4 Anchors Tattoo (“4 Anchors”) at 2314 Green Bay Road in North Chicago, Illinois. If allowed to open 4 Anchors, Jucha would “disseminate expressive body art in the form of the tattoos and body piercings it sells and applies to its customers. Jucha has obtained a commitment from the owner of the property to provide Jucha with a lease if he received necessary permitting from the City. However, under the City’s zoning ordinance, body art establishments are presumptively not allowed. In order to obtain permission to open 4 Anchors, Jucha sought a Special Use Permit from the City Council. Jucha learned that his application failed because 4 Anchors was “not the kind of business” the City Council wanted in the City. There was no public hearing with regard to Jucha’s request for a Special Use Permit, nor did the City Council did not hear any evidence or testimony with regard to the negative impact that might result from the presence of 4 Anchors in the City. Jucha alleges that the City violated his and his customers’ free speech rights by denying his request to open a tattoo parlor within the City’s limits. The City moves to dismiss on the basis that the First Amendment does not protect an individual’s right to apply tattoos.

The court first stated that tattoos and tattooing are protected by the First Amendment, so the City will need to demonstrate that, despite the protected status afforded to tattooing, the ordinance was constitutional. Jucha claimed that the City Council’s decision to deny him a Special Use Permit was arbitrary, and asserted that the City was motivated by an apparent prejudice against tattoo parlors and their clientele. Moreover, Jucha alleged that the City did not hold a public hearing with regard to his request and that the City did not hear testimony, consider data, or assess any other form of evidence prior to rendering its decision. To state a valid procedural due process claim, the court stated that a plaintiff must allege that he was deprived of a protected liberty or property interest without adequate process. Taking these allegations as true, the court found that the Complaint states a procedural due process claim against the City by plausibly alleging that Jucha did not receive a meaningful hearing.

Jucha v City of North Chicago, 2014 WL 4696667 (ND Ill. 8/6/2014)

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