A city ordinance effectively banning tattoo parlors oversteps constitutional limits protecting freedom of expression, the Ninth U.S. Circuit Court of Appeals has ruled.

A unanimous three-judge panel struck down a City of Hermosa Beach zoning code prohibiting tattoo parlors because it violated the First Amendment. 

Although it may seem that tattoos are the provenance of modern day subcultures such as rock stars and motorcyclists, tattoos have been part of evolving culture around the globe for thousands of years, the court explained. City of Hermosa Beach, however, perceived tattoos' outlaw air and had adopted a zoning ordinance that precluded the operation of tattoo parlors.

Johnny Anderson, a tattooist operating in the City of Los Angeles, wanted to open a parlor in this neighboring beach city and ran headlong into the prohibition. In 2006, he sued Hermosa Beach, but the action was dismissed because Anderson had not availed himself of city administrative procedures for determining whether a tattoo parlor might be allowed as similar to other permitted uses.

Following case dismissal, Anderson filed a request with the city for such a determination. The city denied Anderson's request in June 2007. He then filed a 42 USC § 1983 civil rights claim, alleging violation of the First and Fourteenth Amendments. At the District Court level, the city successfully argued that tattooing was not a First Amendment protected activity. District Court Judge Christina Snyder reviewed the ordinance under the rational basis test, and, on the basis of potential health risks, upheld the ban. Anderson appealed.

The Ninth Circuit reversed the lower court, finding, "The tattoo itself, the process of tattooing, and even the business of tattooing are … purely expressive activities fully protected by the First Amendment." Accordingly, the scope of city regulation must be limited to reasonable "time, place and manner," the court determined. The court then addressed and rejected each of the city's arguments that the ban amounted to reasonable time, place and manner restrictions.

Perhaps the city's best argument was based upon public health. Tattooing involves the injection of ink into a person's skin. The required puncturing of the skin creates the potential for skin infection. State law requires every tattooist to register with county health departments. The Los Angeles County health department had one inspector, and not all establishments operating within the jurisdiction of the county had been inspected. The city asserted that the county's limited resources with which to inspect and regulate tattoo parlors for public health purposes was sufficient justification for an absolute ban. 

The court held, however, that the city failed to provide sufficient justification that it could not otherwise accommodate public health concerns while permitting a First Amendment protected activity. In other words, the ordinance was too broad.

"[A]lthough a total ban on tattooing might be the most convenient way of addressing the city's health concerns, the city has given us no reason to conclude that these concerns cannot be adequately addressed through regulation of tattooing rather than a total ban on tattoo parlors," Judge Jay Bybee wrote for the court. "Thus, particularly in light of the Supreme Court's historical ‘concern with laws that foreclose an entire medium of expression,' we have little difficulty concluding that the city's ban is ‘substantially broader than necessary to achieve the [city's] interest.'

The city also argued that there were alternative means of communicating the same protected speech, such as printing on a tee shirt. The court concluded, however, that the permanent nature of tattoo ink carried a different message, and that there were no other equally effective communication media.

The Case:

Anderson v. City of Hermosa Beach, No. 08-56914, 2010 DJDAR 14319. Filed September 9, 2010.

The Lawyers:

For Anderson: Robert C. Moest, (310) 915-6628

For the city: John C. Cotti, Jenkins & Hogin, (310) 643-8448