Thursday, March 30, 2017
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Panel Revives Tattooer’s Challenge to Long Beach Zoning
By KENNETH OFGANG, Staff Writer
A Huntington Beach tattoo artist who wants to open a shop in Long Beach may challenge restrictive city zoning on First Amendment grounds, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel reinstated a suit against the city by James Real, who claimed in his complaint that city ordinances are too restrictive as to where he can open his business. He also argued that the city’s fees are excessive, and that officials are given too much discretion as to whether or not to grant conditional use permits required for tattoo businesses to operate in the few areas where they aren’t banned completely.
U.S. District Judge Manuel Real of the Central District of California granted a Rule 52(c) dismissal, equivalent to a nonsuit, on the first day of a bench trial on the 42 U.S.C. §1983 action. The judge ruled that the ordinances were valid time, place, and manner restrictions because they did not entirely forbid tattooing; that the plaintiff could not prove a facial challenge, because there was no evidence the laws impacted anyone but him; and that his failure to seek a permit precluded him from claiming injury-in-fact.
Smith Opinion
But Judge Milan D. Smith Jr., writing for the Ninth Circuit, said the plaintiff had standing to challenge the laws, both on their face and as applied, and that the laws were, on their face, a prior restraint on protected activity. The city may still prevail on retrial, however, if it presents enough evidence that the laws reasonably restrict the time, place, and manner of speech, the appellate jurist said.
Ninth Circuit precedent, Smith noted holds that tattooing is “purely expressive activity fully protected by the First Amendment.” A plaintiff who raises a facial challenge to a restriction on such activity, on grounds that include the existence of a permitting system that grants unfettered discretion to public officials, need not apply for a permit under that system, Smith said.
The judge cited Santa Monica Food Not Bombs v. City of Santa Monica (9th Cir. 2006).450 F.3d 1022, which held that a plaintiff did not have to have applied for an event permit, or been turned away, in order to have standing to challenge the permit regulations. Allegations that it would have planned an event in the city, but didn’t because of the onerous permit requirements, were sufficient, the court held.
Injury-in-Fact
Smith went on to say that the district judge applied an unduly restrictive view of the injury-in-fact requirement for an as-applied challenge, by concluding that Real lacked standing because he did not apply for a permit to operate at a specific location identified in a letter he wrote to the city in 2011, when he first informed it of his intent to operate a tattoo business.
The ruling, Smith said, overlooked the fact that Real identified two other locations in the letter, as well as his testimony that the location the district judge referred to was no longer desirable four years later. Besides, Smith said, the plaintiff did not need to apply for a permit in order to establish injury; he only needed to prove that he desired to engage in protected activity and the city wouldn’t allow him to do so.
Judge John B. Owens concurred in the opinion, as did Senior U.S. District Judge Alvin K. Hellerstein, visiting from the Southern District of New York.
The case is Real v. City of Long Beach, 15-56159. It was argued by Robert C. Moest for the plaintiff and Assistant City Attorney Monte H. Machit for Long Beach.
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