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Ninth Circuit Reaffirms First Amendment Protection for Tattoo Parlors

On March 29, 2017, the Ninth Circuit reversed and remanded a trial court’s decision that a plaintiff did not have standing to challenge the City of Long Beach’s zoning ordinances relating to tattoo parlors, in Real v. City of Long Beach.  The City’s zoning ordinances restricted tattoo parlors to certain areas of the City; required a 1000-foot buffer between tattoo parlors and bars, adult businesses, arcades, fortune tellers, and other tattoo parlors; and required a Conditional Use Permit.  The plaintiff sued, alleging that the City’s zoning ordinances unreasonably restricted locations in which tattoo parlors could be located, and gave City officials too much discretion in determining whether to issue a permit.

After a brief trial, United States District Court Judge Manuel Real granted the City’s motion for nonsuit, holding that the plaintiff lacked standing to bring an as-applied challenge, because he had not applied for a permit.  The Ninth Circuit reversed, taking what appears to be a more relaxed approach to Article III standing.  The Ninth Circuit held that the plaintiff had standing to bring both facial and as-applied challenges to the City’s zoning ordinances as unlawful prior restraints on speech and outside the constitutional dictates of permissible time, place or manner restrictions.  The Ninth Circuit noted that even though the plaintiff had not applied for a permit, the City had vigorously defended its zoning ordinances in court, and the plaintiff had alleged that the City explicitly told him that if he opened a tattoo parlor without complying with the City’s zoning ordinances he would be subject to enforcement proceedings.  As a result, the Ninth Circuit held that the plaintiff had adequately alleged an injury-in-fact sufficient to have standing to sue.

In light of this opinion, municipalities should consider reviewing tattoo ordinances to ensure that there are sufficient locations in which tattoo parlors may operate, and that the permit process for tattoo parlors is clear, has appropriate time limits, and objectively calls out the standards under which a permit will be granted.