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A Tattoo Shop Owner May Challenge City Zoning Restrictions As Being An Unconstitutional Prior Restraint On Protected First Amendment Activity.

In Real v. City of Long Beach, (9th Cir. 2017) 852 F.3d 929, the Ninth Circuit Court of Appeals ruled that the owner of a California tattoo shop, Mr. James Real (“Real”), may rightfully bring an action pursuant to 42 U.S.C. § 1983 alleging that the City of Long Beach’s (“City”) zoning restrictions violate the First Amendment by unreasonably restricting Real’s ability to open and operate a tattoo shop in the City.

In the U.S. District Court, Real argued that the City’s zoning use restrictions were overly restrictive “prior restraints” with regard to his First Amendment right to engage in tattooing. The restrictions involved designations of when and where he was allowed to operate his shop (for example, one rule was that the City requires there be at least 1,000 feet between tattoo shops and taverns or other tattoo shops). Real further argued that the use restrictions gave the City too much discretion regarding conditions and fees in deciding whether to grant a conditional use permit (“CUP”) for the operation of a tattoo shop.

The District Court dismissed Real’s complaint, ruling that the City’s use restrictions were not overly restrictive prior restraints because they did not prohibit tattooing entirely. The Court also found that Real lacked the necessary standing to sue as he could not prove a “facial” challenge or an “as-applied” First Amendment challenge, as Real’s failure to seek a permit precluded him from claiming injury-in-fact. Real already owned a tattoo shop in Huntington Beach, CA. He did not apply for a CUP for a new shop in Long Beach prior to filing this complaint, as he believed the City would deny his application.

In overruling this decision, the Ninth Circuit Court of Appeals held that the District Court erred in holding that the City’s zoning restriction was not a prior restraint because it does not prohibit tattooing entirely. The Court explained that an outright prohibition is not required to bring a prior restraint claim; rather, “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” (citing FW/PBS, Inc. v. City of Dallas, (2004) 493 U.S. 215, 225–26). The Court further held Real had standing to bring both facial and as-applied First Amendment challenges to the City’s zoning restrictions as both unlawful prior restraints on protected speech (the Court has previously held tattooing is a purely expressive activity fully protected by the First Amendment) and as impermissible time, place or manner restrictions. The Court held it was not necessary for Real to first be denied a CUP after applying because of the high degree of likelihood that the City would take action against Real if he opened a tattoo shop without a CUP.

This case was remanded to U.S. District Court, where the City will have a chance to argue that its zoning rules do not constitute an unlawful prior restraint on speech as applied to tattoo parlors, and that they are permissible time, place or manner restrictions under the Constitution.

©2017 Miles J. Dolinger.  This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship.

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Miles J. Dolinger
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