Court ruling: 1st Amendment protects Mesa tattoo shop - East Valley Tribune: Mesa

Court ruling: 1st Amendment protects Mesa tattoo shop

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Posted: Friday, September 7, 2012 3:15 pm | Updated: 9:41 am, Tue Sep 11, 2012.

They may not be everyone’s idea of art. But the Arizona Supreme Court ruled Friday that tattoos are “expressive elements’’ of both the artist and the wearer.

That means both tattoos themselves and the shops where they are drawn onto customers are entitled to the same kind of First Amendment Protections as any other form of art.

And that, the justices said, limits the discretion of city council members and other municipal staff to impose special conditions on applicants for permits or turn them down outright.

Attorney Clint Bolick of the Goldwater Institute, who brought the lawsuit on behalf of the owners of Angel Tattoo in Mesa, said the ruling is historic. He said no other state supreme court anywhere in the country has ever extended First Amendment protections to tattoo shops.

Friday’s ruling, however, is far from a clear-cut victory for Ryan and Laetitia Coleman, the owners of the yet-to-be-opened parlor.

On one hand, the justices said they are entitled to challenge the 2009 decision of the Mesa City Council in denying their use permit. But the high court said the couple still has to prove that the council’s denial of a permit to operate in the specific location they wanted violated their First Amendment rights.

City spokesman Kevin Christopher, in a prepared statement, said council members still believe a judge will vindicate their decision to refuse to issue the necessary use permit “based on the concerns of the residents in the area,’’ even with the new hurdles imposed by the Supreme Court.

And the justices, in Friday’s ruling, left intact the ability of cities to impose reasonable across-the-board regulations on where tattoo parlors can open and their hours of operation.

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. The Colemans 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.’’

When the Court of Appeals overturned that ruling last year, the city appealed.

Attorneys for Mesa argued there is nothing wrong with the council having the last word to determine if a proposed business is compatible with the surrounding neighborhood. They pointed out that council-issued use permits are required for a host of operations, including schools, rescue missions, pool halls and apartments.

But Supreme Court Justice Scott Bales, writing for the unanimous court, said the council’s right to deny a use permit, particularly in a case-by-case basis like this, cannot override free speech rights.

In this case, Bales and his colleagues concluded that tattooing is entitled to First Amendment protections. He said that starts with the proposition that the tattoo itself is pure speech.

“This seems incontrovertible,’’ Bales wrote. He said Constitution protects a range of expressive activity beyond written or spoken words, including parades, music, paintings and even topless dancing.

And Bales said the only difference between a tattoo and a pen-and-ink drawing is the canvas: skin versus paper.

In fact, Bales said, a tattoo actually could be considered to have more “expressive elements’’ than a drawing.

“A tattoo reflects not only the work of the tattoo artist but also the self-expression of the person displaying the tattoo’s relatively permanent image,’’ he wrote.

More to the point for this case, the court said the First Amendment extends to the process of actually drawing the tattoos.

“The art of writing is no less protected than the book it produces,’’ Bales said. “Nor is painting less an act of free speech than the painting that results.’’

Bales rejected arguments that the process of tattooing is not protected because artists may use standard designs or patterns, like the iconic Virgen de Guadalupe. He said that would be like saying cable TV operators do not have First Amendment rights because they only have programming originally produced by others.

While limiting the discretion of cities to reject use permits for tattoo parlors, the justices did not overturn all regulations of that type of business. Bales said cities remain free to enact reasonable regulations on things like hours of operation and how far the parlors must be from schools.

And Ken Strobeck, executive director of the League of Arizona Cities and Towns, said he is buoyed by the fact that the court left intact the ability of cities to require tattoo parlors to comply with regulations that apply to all businesses, including health requirements and zoning restrictions.

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