September 2010

NINTH CIRCUIT HOLDS HERMOSA BEACH’S BAN ON TATTOO PARLORS UNCONSTITUTIONAL

September 10, 2010, by Meyers Nave

On September 9, 2010, in Anderson v. City of Hermosa Beach, the Ninth Circuit reversed the district court and directed that summary judgment and an injunction be granted in favor of a person seeking to establish a tattoo parlor, holding that tattooing is a form of pure expression fully protected by the First Amendment, and that the city’s total ban on tattoo establishments was not a reasonable “time, place and manner” regulation.

The city’s zoning code, by omitting tattoo parlors among the list of allowable uses, effectively banned the siting of such businesses anywhere within the city. The city argued that it needed only a rational basis for its zoning decision, and that the health concerns associated with tattooing combined with the lack of county personnel available to inspect tattoo parlors justified its total ban.

The court, taking judicial notice of “the skill, artistry, and care that modern tattooists have demonstrated,” and drawing on detailed explanations of the art and history of tattooing, concluded that tattoos themselves, the process of tattooing, and the business of tattooing are all protected as “pure expressive activity.” Thus, the court explained, a reasonable “time, place and manner” test, rather than the less stringent tests applicable to the regulation of mere “conduct with an expressive component,” should apply.

Applying the time, place or manner test, the court concluded that the city’s total ban on tattoo parlors failed because it was substantially broader than necessary to achieve the city’s goals of protecting the public health. The city’s arguments that current government resources were insufficient to safeguard the city's legitimate health concerns could not, without a stronger evidentiary showing by the city, justify the ban, because, among other things, the deployment of additional resources to safeguard public health is within the city's control. For this reason, the court believed that enhanced regulation of tattooing (rather than a total ban on tattoo parlors) would achieve the city’s objective.

The court also concluded that even if the city's prohibition were tightly fit to the purpose of protecting health, another prong of the reasonable time, place or manner test would doom the ban: because the medium of the human body is unique, tattoo artists and wearers would lack the constitutionally mandated adequate alternative channels to express themselves if tattoos were completely unavailable.

The Ninth Circuit recognized that its ruling conflicts with those of many other jurisdictions, perhaps setting up a request for en banc review or a cert. petition in the U.S. Supreme Court.

After this decision, city-wide bans of tattoo parlors are unlikely to survive. Although the opinion leaves open the possibility of significant regulation of these establishments, for a city to show that no plausible regulation could ameliorate its public health and safety concerns, such that a ban is necessary, would appear difficult.