Tattoo artist can bring First Amendment challenge

Tattoo artist James Real brought a civil rights action against the city of Long Beach, claiming the city's zoning ordinances impinge his First Amendment right to engage in tattooing. Real v. City of Long Beach, 2017 DJDAR 2996 (9th Cir. March 29, 2017). Real alleged, among other things, that the city's conditional use permitting process vests excessive discretion in city officials. For example, under Long Beach Code Section 21.25.206, before issuing a conditional use permit, the city must conclude that "[t]he proposed use will not be detrimental to the surrounding community including public health, safety or general welfare, environmental quality or quality of life."

The city's zoning ordinances also: (1) prohibited tattoo shops from operating within 1,000 feet "of any existing adult entertainment, arcade, fortunetelling, tattoo parlor, or tavern," (2) restricted tattoo shops' hours of operation to between 7 a.m. and 10 p.m., and (3) mandated that only a property owner in an area zoned for tattooing could apply for a conditional use permit.

After a one-day bench trial, the district court determined that Real lacked standing to bring either a facial or as-applied challenge to the ordinances. The district court held that Real's facial challenge failed because he neglected to present evidence of the ordinances' impact on third parties. The district court found that Real's as-applied challenge failed because he never applied for a conditional use permit, and thus suffered no injury-in-fact. Real appealed, and the 9th U.S. Circuit Court of Appeals reversed.

First, the 9th Circuit held that the district court erred in determining that a plaintiff must present evidence of harm to third parties in order to bring a facial challenge on First Amendment grounds. The 9th Circuit explained that "a plaintiff has standing to vindicate his First Amendment rights through a facial challenge when he argues that an ordinance impermissibly restricts a protected activity." Moreover, "when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license."

Real alleged that the city ordinance impermissibly restricted an activity protected by the First Amendment; indeed, the 9th Circuit has previously determined that tattooing — i.e., the tattoo itself, the process of tattooing and the business of tattooing — is "purely expressive activity fully protected by the First Amendment." Thus, Real had standing to bring a facial challenge to the city's zoning ordinances, and the district court erred in holding otherwise.

Second, the 9th Circuit concluded that the district court also erred in finding that Real failed to demonstrate an injury-in-fact sufficient to confer Article III standing to bring an as-applied challenge to the city zoning ordinances. The court explained that "a plaintiff satisfies the injury-in-fact requirement where he alleges an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Real satisfied each part of this test: (1) he intended to open a tattoo shop without a conditional use permit; (2) tattooing is fully protected by the First Amendment; (3) the zoning ordinances proscribe his intended conduct; and (4) he faces a credible threat of prosecution because the city explicitly told him that he would be subject to zoning enforcement processes if he opens a tattoo shop in the city without first obtaining a conditional use permit. Under these circumstances, the 9th Circuit concluded that Real has standing to bring an as-applied challenge to the city's zoning ordinances, and the district court's contrary finding was erroneous.

Finally, the 9th Circuit reversed the district court's holding that the zoning ordinances could not constitute a prior restraint because they did not entirely prohibit tattooing. The court explained that "[a]n 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." Because Real alleged that the city's zoning ordinances vested excessive permitting discretion in the city and did not contain adequate procedural safeguards, the 9th Circuit determined that he had raised a cognizable prior restraint claim.

The 9th Circuit remanded the case to the district court to try Real's facial and as-applied First Amendment claims and the city's defense that the zoning ordinances are reasonable time, place and manner restrictions.

Karen A. Henry is counsel in the Los Angeles office of Davis Wright Tremaine LLP.