The case pits the city of Mesa against a married couple whose request to open a tattoo parlor was rejected after neighbors complained.
Goldwater Institute lawyer Clint Bolick, who represents the couple, Ryan and Letitia Coleman, said the case has national significance because it is the first time a state supreme court has ruled on whether tattoos and tattooing are protected under the First Amendment.
“As the court notes, this is an issue that has divided courts around the country,” Bolick said.
The case now returns to Maricopa County Superior Court for further consideration.
The Colemans wanted to open a tattoo parlor in the Dobson Ranch neighborhood of Mesa and had agreed to a list of special terms for opening, such as reporting gang tattoos to police and refusing to tattoo drunken patrons. Tattoo parlors and other businesses such as pawn shops and body piercing salons require special permission to open from the City Council.
The City Council voted 6-1 in March 2009 against the business after neighbors complained at a hearing that it would degrade their neighborhood by attracting crime.
The Colemans filed suit in Maricopa County Superior Court alleging violations of their constitutional rights to free speech, due process and equal protection. Judge Larry Grant dismissed it after finding that the Colemans had no First Amendment case to make.
In order to determine whether Grant inappropriately dismissed the case, the Supreme Court first had to determine whether tattooing involves protected speech.
The Supreme Court relied on a 2010 9th Circuit Court of Appeals case, Anderson v. City of Hermosa Beach, in which that city tried to ban tattoo parlors.
The 9th Circuit found that “obtaining a tattoo, applying a tattoo and engaging in the business of tattooing” are “pure speech entitled to the highest level of protection.”
“This does not mean, of course, that the business of tattooing is shielded from governmental regulation,” Justice Scott Bales wrote on behalf of the unanimous Supreme Court. “. . . generally applicable laws, such as taxes, health regulations, or nuisance ordinances, may apply to tattooing businesses. Moreover, tattooing may be subject to reasonable time, place and manner regulations.”
Ken Strobeck, executive director of League of Arizona Cities and Towns, said he was encouraged by that reference because his organization had filed an amicus brief arguing that the business of tattooing is not protected speech.
But Bolick said Mesa’s special permitting system is unreasonable.
“Mesa’s system is so completely objective that no business should be subjected to it,” Bolick said. “It has complete discretion whether to approve or deny a permit and that deprives businesses of the certainty that they need to make investments.”
Mesa spokesman Kevin Christopher said the city was within its authority to reject the business based on the concerns of the neighbors and will continue in that position in trial court.