Appeals Court rules cities cannot restrict location of tattoo parlors

PHOENIX -- Tattoo parlors are entitled to the same First Amendment protections as the artwork they produce, meaning government is limited in restricting where they can go, the Arizona Court of Appeals ruled Thursday.

In a precedent-setting decision, the three-judge panel rejected arguments by the city of Mesa that it was entitled to reject an application to open a tattoo shop because nearby residents considered it "incompatible' with the neighborhood.

Judge Ann Scott Timmer, writing for the unanimous court, said cities can consider citizen viewpoints in deciding whether a particular business is appropriate to a neighborhood. But she said a city cannot deny a permit to a tattoo parlor "based solely on neighborhood hostility born from perceptions about tattoo parlors that may or may not be accurate.'

"If this was permitted, unpopular speech could be silenced easily under the guise of land use planning,' Timmer said.

Thursday's ruling could have implications beyond Mesa, potentially undermining laws in other cities that impose special restrictions on where tattoo parlors can be located.

Dennis Kavanaugh, the council members in whose district the shop wants to go -- and who voted to deny the permit -- said he wants to study the ruling before deciding whether to ask colleagues to appeal to the Arizona Supreme Court. His concern is whether it is so broad that it could undermine the ability of cities to restrict other kinds of businesses like pawn shops and massage parlors.

A Mesa ordinance requires certain kinds of businesses, including tattoo parlors, to obtain special use permits before operating in commercial areas. Among the requirements is being at least 1,200 feet from an existing tattoo shop or school and be "compatible with surrounding uses.'

While recommendations are made by a planning officer or board, the council has the final say.

In this case, the planning board recommended approval, with conditions, including taking steps to limit loitering, restricting the days and hours of operation, cooperating with police to identify known gang tattoos and refusing to apply racist or gang tattoos. Ryan and Laetitia Coleman, the owners of Angel Tattoo, agreed to those restrictions.

But the council voted 6-1 to deny the permit after hearing concerns from neighbors about the shop possibly drawing crime and reducing property values. Only Mayor Scott Smith was in support.

A trial judge rejected their claim of First Amendment violations, concluding the council's decision "was a reasonable and rational decision based on community concerns.'

Timmer said some courts have concluded that administering a tattoo is not communication entitled to constitutional protections. But she said that defies logic.

"The sole purpose of a tattoo is to communicate thoughts, emotions or ideas as rendered by the tattoo artist,' the judge wrote. She said providing less protection to tattoos would require courts to differentiate between Salvador Dali's "The Persistence of Memory' and a tattoo of melting clocks "merely because the former is painted on canvas while the latter is inked on a bicep.'

What all that means, Timmer wrote, is that any restrictions by a city on tattoo parlors must be examined closely to see if they improperly infringe on First Amendment rights.

Attorneys for the city argued that its ordinance does not ban tattoo parlors but simply bars them from locating in "incompatible' locations.

But Timmer said the planning board staff concluded that the proposal conformed with the city's general plan, would not be detrimental to the neighborhood and would not damage property values. And she said the police had reported no increase in crime at a similarly situated tattoo parlor.

What the denial came down to, the court said, was neighborhood objections -- objections she said which amounted to veto power over an unpopular business.

Timmer also said that allowing the council policy to stand means the Coleman have to spend time and possibly money to find a new location -- a location that the council may also find is not "compatible' with the neighborhood.

Thursday's ruling does not automatically preclude cities from restricting tattoo parlors. But it requires them to show that any rules are "narrowly drawn to achieve a compelling government interest' which outweighs the First Amendment rights of the business owners.

Kavanaugh said the restrictions on tattoo parlors are based on long-standing beliefs in many cities that certain commercial uses require more scrutiny than others because of "a perception by the public of some kind of negativity associated with the use.' He said that is the same logic behind similar limits on pawn shops, massage parlors and check-cashing shops.

He also said that restrictions like these often date back years, to a time when there was a different view of the kind of people who get tattoos.

"Obviously, that changes as society evolves,' Kavanaugh said. And he said tattoos "have moved into the mainstream.'

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