Tattooing is protected by the First Amendment. Source: Creative Commons.

Two weeks ago, a federal district court in California granted preliminary injunctive relief to a tattoo shop owner who challenged the City of Montebello, California’s geographic restrictions on body art establishments.

Montebello’s regulation prohibits tattoo parlors within 1,000 feet of certain sensitive uses, including residential properties, schools, libraries, and religious institutions.  The effect of the regulation is to limit such establishments to two small shopping centers in the city.  Tattoo parlors are also subject to a conditional use permit requirement, in which the city is required to determine that the use will not have an adverse effect on surrounding properties and that it is consistent with city planning goals.

The plaintiff did not seek city approval to operate the tattoo parlor, but instead challenged the city’s regulation under the First Amendment.  The court observed that body art establishments are First Amendment-protected, because tattoos and body art are protected speech.  The court went on to find that the conditional use permit requirement in the code conferred unbridled discretion on the city, because the criteria for issuance of a conditional use permit were unspecific.  It also found that the ordinance failed to incorporate sufficient procedural safeguards, such as short review timeframes and available appeals.  Finally, the court found that the restriction on tattoo parlors was not narrowly tailored to the city’s interest in ensuring neighborhood compatibility and public health, safety, and general welfare.

Weaver v. City of Montebello, ___ F. Supp. 3d ___, 2019 WL 1454205 (C.D. Cal. Apr. 2, 2019).

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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.