May 2017

Standing  and tattooing -   Real v City of Long Beach (9th Cir 2017) 852 F3d 929

Plaintiff owns a tattoo shop in Huntington Beach, but has not opened a shop or applied for a conditional use permit (CUP) in Long Beach (City) because of its restrictive zoning ordinances. Under the relevant ordinances, a tattoo shop may not operate within 1000 feet “of any existing adult entertainment, arcade, fortunetelling, tattoo parlor, or tavern” and may operate only between 7 a.m. and 10 p.m. Long Beach C §21.52.273. Before issuing a CUP, City must conclude that the proposed use will not be “detrimental to the surrounding community including public health, safety or general welfare, environmental quality or quality of life.” Long Beach C §21.25.206. Plaintiff obtained preliminary approval from landlords at three locations in City, but was unable to move forward because the locations were not zoned for tattoo shops.

Plaintiff sued City, alleging that the zoning ordinances constituted improper prior restraint and unlawful time, place, and manner restrictions on expressive activity in violation of the First Amendment. The district court sustained City’s motion to dismiss, concluding that

·       Plaintiff did not have standing to bring a facial challenge because he did not present evidence of impact on third parties;

·       Plaintiff lacked standing to bring an as-applied challenge because he did not apply for a CUP; and

·       The zoning ordinances constituted time, place, or manner regulations and not prior restraints.

Plaintiff timely appealed, and the Ninth Circuit reversed.

Standing for Facial Claim. When a licensing ordinance “vests unbridled discretion in a government official over whether to permit or deny expressive activity,” a plaintiff may challenge the law “facially without the necessity of first applying for, and being denied, a license.” City of Lakewood v Plain Dealer Publ’g Co. (1988) 486 US 750, 755, 108 S Ct 2138. Moreover, tattooing is a “purely expressive activity fully protected by the First Amendment.” Anderson v City of Hermosa Beach (9th Cir 2010) 621 F3d 1051, 1060, reported at 33 CEB RPLR 194 (Nov. 2010). Here, because plaintiff alleged that the zoning ordinances improperly vest excessive permitting discretion in City with respect to tattooing, plaintiff had standing to bring a facial challenge.

Standing for As-Applied Claim. To establish standing for an as-applied First Amendment claim, a plaintiff must allege (1) an actual injury that is (2) fairly attributable to the challenged provision and (3) would likely be redressed by a favorable decision. Santa Monica Food Not Bombs v City of Santa Monica (9th Cir 2006) 450 F3d 1022. Moreover, a plaintiff suffers an injury in fact when it intends to engage in a constitutionally protected activity that is “proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Susan B. Anthony List v Driehaus (2014) ___ US ___, 134 S Ct 2334, 2342. Here, plaintiff intended to open a tattoo shop and the zoning ordinances limited that expressive activity. Moreover, City’s potential enforcement of its ordinances constituted a plausible threat of prosecution.

Prior Restraint. A licensing scheme that gives a government official or agency “unbridled discretion” constitutes prior restraint. FW/PBS, Inc. v City of Dallas (1990) 493 US 215, 225, 110 S Ct 596. Moreover, a prior restraint that fails to place limits on the time period for the decision-maker to issue a license is impermissible. 493 US at 226. Here, plaintiff alleged that the zoning ordinances vest excessive permitting discretion with City and fail to provide time limits on the CUP decisions. Accordingly, plaintiff’s complaint sufficiently pleaded a cognizable claim for improper prior restraint.

Time, Place, and Manner Restrictions. To restrict a purely expressive activity, such as tattooing, zoning ordinances must employ reasonable time, place, or manner restrictions on the activity. Anderson v City of Hermosa Beach (9th Cir 2010) 621 F3d 1051, 1055, reported at 33 CEB RPLR 194 (Nov. 2010). Reasonable restrictions must be narrowly tailored to serve a significant governmental interest and allow ample alternative channels for expression. 621 F3d at 1064. Here, plaintiff alleged that the zoning ordinances’ restrictions on the locations where tattoo shops could be located were substantially broader than necessary; thus, he stated a cognizable claim for unlawful time, place, and manner restrictions.

THE EDITOR’S TAKE: Tattoo parlors (like marijuana shops) have become our new favorite legal topics, due in part to the desire of many cities to see as few as possible within their borders. Long Beach restricted them not only by way of its traditional zoning mechanisms of allowing them in some areas and not in others, and additional physical demands (a 1000-foot halo, closing at 10:00 p.m.), but also required them to obtain conditional use permits even if the zoning conditions were met (subject to the somewhat vague standard of not being detrimental to the surrounding community), and to get variances if they wished to locate elsewhere. 

These requirements were sufficiently draconian for James Real, the potential tattoo shop owner, to sue the city for civil rights violations, but not enough for Manual Real, the federal judge hearing the case, to hold that he had made out a case—although it was, on the other hand, enough to satisfy the Ninth Circuit Court of Appeals. 

First: In the opinion of the appellate court, Judge Real was wrong in ruling that the plaintiff had not asserted a facial challenge, as he had plainly done so and had standing to do so. 

Second: Although the trial court had held that the plaintiff had no standing to bring an as-applied challenge, because he lacked a proper injury in fact, the appellate court concluded that he had shown enough fear to meet those requirements. 

Third: The district court erred by holding that the zoning ordinances could not constitute a prior restraint, because they do not prohibit tattooing entirely, whereas the Ninth Circuit contrarily asserted that the vague and broad powers given to the city could well amount to censorship, thereby raising “a cognizable prior restraint claim.” 

Lastly: The tattooist might well have standing to contend that these were unlawful time, place, or manner restrictions on speech, but had been denied the opportunity to do so when the judge declared victory for the city before this issue had been adjudicated. 

This case involved interesting land use (as well as constitutional) issues; the Ninth Circuit’s opinion is remarkably terse, given their numerosity and magnitude. Tattoo parlors are speechifiers, specially protected by the First Amendment, but are otherwise normal commercial activities regulated by perhaps somewhat “nuisancy” but in other respects conventional zoning and conditional use and variance regulations. (My son wears a tattoo; I don’t, because I’m from another generation. As an elder, I may not find his particularly attractive, but I guess I have to learn to listen to it, because it does constitute speech, after all.) The appellate panel’s short opinion may have been premised on its belief that the shop owner had been treated too unfairly in court to require much explanation, or else that tattoo parlors should stop being so disrespected by the cities that they support with their business tax payments.—Roger Bernhardt 

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40 Real Property Law Reporter 67 (Cal CEB May 2017), © The Regents of the University of California, reprinted with permission of CEB.