Posted by: Patricia Salkin | August 26, 2016

Fed. Dist. Court in CA Finds City’s Conditional Use Permit Regulation of Tattoo Studio was an Unconstitutional Prior Restraint on Speech

Plaintiff Christopher Yvon sought the City’s approval to operate a tattoo studio at 609 Vista Way in Oceanside, California. The location where Yvon sought to open his studio was governed by the substantive provisions of the 1986 Zoning Ordinance and the administrative provisions of the 1992 Zoning Ordinance. Section 1500 of the 1986 Ordinance (“CUP regulation”) required people seeking a business license to operate a tattoo business in Oceanside to obtain a conditional use permit (“CUP”). Yvon alleged that this regulation granted City officials unbridled discretion in determining whether to grant or deny a permit. Yvon further alleged the City did not require a CUP decision to issue within a specified brief period of time.

Yvon’s argument was not that the buffer zone ordinances unreasonably limited alternative avenues of communication, but instead on the City’s alleged lack of a substantial government interest supported by pre-1986 evidence specifically tying tattooing businesses to harmful secondary effects. The City contended its interest in enforcing the buffer zone regulation was due to the harmful secondary effects associated with the enumerated regulated uses. The court first noted that a municipality seeking to combat the secondary effects of protected speech carries the initial burden of coming forth with “any evidence that is ‘reasonably believed to be relevant’ for demonstrating a connection between speech and a substantial, independent government interest.” It found that the City could rely on post-enactment evidence to support its position only after the burden has shifted back to it, and the City was necessarily required to rely on pre-enactment evidence to carry its initial burden. Moreover, the evidence the City has proffered says nothing that ties tattooing itself to the secondary effects that the City seeks to avoid; the findings contained in the 1992 Ordinance either referred to “adult businesses” generally or “sexually oriented businesses” specifically. Accordingly, the Court found that Yvon established a likelihood of success on the merits with respect to the buffer zone regulation contained in the 1986 Ordinance.

The court next found that the CUP regulation here vested City officials with unbridled discretion to grant or deny a CUP application based upon the applicant’s ability to show, among other things, that the suggested use will not “be detrimental to the health, safety, peace or general welfare of persons residing or working in the vicinity.” Additionally, having reviewed the 1986 Ordinance, the court agreed that the buffer zone and CUP regulations were severable from the majority of what remained. However, as to the buffer zone regulation, the court held that the entire Article 15.2 was subject to preliminary injunction because “it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not….”

As to the issuance of a preliminary injunction, the court found that Yvon’s First Amendment freedoms, as well as any other member of the public who wishes to operate a regulated use in the coastal zone of the City of Oceanside, “are in danger of impairment if a preliminary injunction does not issue to enjoin” the City from applying the buffer zone and CUP regulations. Upon a balancing of the equities, the court found that there was no indication that the City had any legitimate compelling interest that would be adversely affected if a preliminary injunction was issues. The court also found that the public interest weighed marginally in favor of the issuance of a preliminary injunction. Accordingly, the court held that the City be preliminary enjoined from enforcing the buffer zone and CUP regulations.

Yvon v City of Oceanside, 2016 WL 4238539 (SD CA 8/11/16)

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