Last week, the federal Ninth Circuit Court of Appeals ruled that a tattoo shop owner had standing to challenge Long Beach, California’s zoning regulations.  The regulations had the effect of precluding the owner from operating his business in Long Beach.

James Real, who owns a tattoo parlor in Huntington Beach, California, sought to open a tattoo parlor in Long Beach.  Long Beach’s zoning regulations do not allow tattoo parlors in most zoning districts in the city; require a conditional use permit for operation of a tattoo parlor; may not be located less than 1,000 feet from another tattoo shop, adult entertainment use, arcade, or tavern; and tattoo parlors’ business hours are strictly limited.  Real sought approval from the city to locate in one of three locations, but the city responded by informing Real that none of the locations allowed for a tattoo parlor.

Real filed suit under the First Amendment, alleging that his tattooing was First Amendment-protected activity, and that the city’s zoning regulations were not proper time, place, and manner regulations and constituted an unconstitutional prior restraint.  The district court held that Real did not have standing to challenge the zoning regulations because he had failed to apply for a conditional use permit.

On appeal, the Ninth Circuit reversed.  The appeals court held that the plaintiffs’ claims could move forward, because a facial attack can be brought against any regulation, even where the plaintiff has not exhausted administrative remedies.  The court additionally agreed that Real could bring an as-applied challenge to the ordinance because he alleged an intention to open a tattoo shop, and was not required to have actually filed an application in order to have standing to bring an as-applied challenge.  The Ninth Circuit also found that Real raised cognizable claims that the city’s regulations were an unlawful prior restraint and that the regulations are unconstitutional time, place, and manner regulations.  The district court had previously found that the regulations could not be an unconstitutional prior restraint because they did not outrightly prohibit tattoo parlors, yet the Ninth Circuit disagreed and noted that a prior restraint can be effectuated by regulations that may not prohibit speech but which imposes a barrier to individuals’ speech.

The Ninth Circuit’s decision is consistent with other circuit court decisions that have found tattooing to be First Amendment-protected, and which have applied First Amendment doctrines in the context of zoning regulations that limit tattooing activities.

Real v. City of Long Beach, ___ F.3d ___, 2017 WL 1160972 (9th Cir. Mar. 29, 2017).

Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.