Posted by: Patricia Salkin | April 7, 2017

9th Circuit Court of Appeals Finds Plaintiff had Standing to Bring Both Facial and As-Applied First Amendment Challenges against the City for Denial of Permit to Operate Tattoo Shop

James Real brought a civil rights action against the City of Long Beach, alleging that the City’s zoning ordinances violated the First Amendment by unreasonably restricting his ability to open and operate a tattoo shop in Long Beach. The district court held that Real did not have standing to bring his claims because he did not apply for a conditional use permit (CUP), which was required to operate a tattoo shop in Long Beach. On appeal, Real argued that he had standing to bring both facial and as-applied challenges to the City’s relevant zoning ordinances, and that the ordinances operated as both unlawful prior restraints on speech and unreasonable time, place, or manner restrictions on speech.
At the outset, the court noted that tattooing is “purely expressive activity fully protected by the First Amendment.” Although Real did not clearly state whether his challenge was as applied or facial, he challenged the zoning ordinances on the grounds that they impermissibly restrict an activity protected by the First Amendment and vested excessive permitting discretion in the City. Accordingly, the court determined Real had standing to bring a facial challenge to the zoning ordinances. Contrary to the City’s contention, the court found Real was not required to first have a CUP application denied to bring this claim. Real also sufficiently alleged a credible threat of prosecution because the City “has vigorously defended its zoning ordinances in this case, and he has been explicitly told that he will be subject to zoning enforcement processes if he opens except as permitted by the zoning scheme.” Because the City did not deny these allegations, and continued to defend its zoning ordinances, it seemed likely that the City would take action against Real if he opened a tattoo shop without a CUP. The court therefore found Real had standing to bring an as-applied challenge.
The court next found that the district court erred by holding that the zoning ordinances could not constitute a prior restraint because they did not prohibit tattooing entirely. The court held that an outright prohibition was not required to bring a prior restraint claim; instead, “a licensing scheme that places unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.” Here, the City did not have the opportunity to present evidence on its permitting discretion or any procedural safeguards. Accordingly, the court remanded this issue to district court. Similarly, Real’s argument that the City unconstitutionally restricted a protected means of expression because the City did not have an opportunity to address whether its zoning ordinances constitute permissible time, place, or manner restrictions on tattooing.
Real v City of Long Beach, 2017 WL 1160972 (9th Cir. CA 3/29/2017)


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