Friday, September 10, 2010
Court Strikes Down Hermosa Beach Ban on Tattoo Parlors
By STEVEN M. ELLIS, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday struck down as unconstitutional the City of Hermosa Beach’s ban on tattoo parlors.
Ruling that tattooing is purely expressive activity fully protected by the First Amendment, a three-judge panel said a city ordinance effectively banning the business of tattooing was not a reasonable “time, place, or manner” restriction.
U.S. District Judge Christina A. Snyder of the Central District of California upheld the ban in 2008 in the face of a federal civil rights challenge by Johnny Anderson, who co-owns a tattoo parlor in Los Angeles and sought to open another one in Hermosa Beach.
Anderson’s counsel, Los Angeles attorney Robert C. Moest praised yesterday’s decision, which he said was the first in the nation by a federal appellate court to address the issue. Pointing to contrary decisions by state and federal trial courts around the country, he said he was glad the case led to an appeal that secured a controlling, circuit-wide precedent.
Hermosa Beach City Attorney Michael Jenkins said the city was disappointed, and would determine its next course of action at its next City Council meeting.
“The Hermosa Beach City Council places a priority on protecting the public’s health and safety, and it adopted this ordinance because of the potential health hazards caused by unsanitary tattoo practices,” he said.
“The judges, in their ruling, acknowledge the potential health hazards, say many tattoo parlors are never inspected and quote Los Angeles County’s only tattoo parlor inspector as saying: ‘there are those practitioners that are unscrupulous or incompetent and do not follow the proper sterilization processes strictly. This poses a risk for infection.’ ”
The inspector, Claro Cartagena, told the district court in a declaration that Los Angeles County had nearly 300 tattoo establishments and over 850 tattooists, but that many parlors have never been inspected and are subject to no regulations other than registering with the county.
Hermosa Beach’s municipal code provides zoning for a number of commercial uses including movie theaters, restaurants, adult businesses, bars, fortune tellers, gun shops and youth hostels, but contains no provision permitting tattoo parlors.
Anderson brought suit after the city declined his request for a permit to open a tattoo parlor under a municipal code provision allowing such permits for uses “similar to and not more objection[able] than other uses listed.” The city later adopted a resolution against amending its code to permit tattoo parlors, and Snyder granted the city summary judgment in Anderson’s suit.
The judge concluded that the act of tattooing was not protected expression, even though it was non-verbal conduct expressing an idea, because it was “not sufficiently imbued with the elements of communication,” and because the customer, not the tattoo artist, was responsible for the idea or message conveyed. Snyder further determined that the city had a rational basis for the ban “[g]iven the health risks inherent in operating tattoo parlors.”
‘Purely Expressive Activity’
But Judge Jay S. Bybee—in a decision examining the historical significance of tattooing, and acknowledging that it can be a safe procedure if performed under appropriate sterilized conditions—wrote that “[t]he tattoo itself, the process of tattooing, and even the business of tattooing are not expressive conduct but purely expressive activity fully protected by the First Amendment.”
“The process of expression through a medium has never been thought so distinct from the expression itself that we could disaggregate Picasso from his brushes and canvas, or that we could value Beethoven without the benefit of strings and woodwinds.”
Bybee also wrote that “the fact that the tattoo is for sale does not deprive it of its First Amendment protection,” and said the ordinance was “not a reasonable ‘time, place, or manner’ restriction because it is substantially broader than necessary to achieve the City’s significant health and safety interests and because it entirely forecloses a unique and important method of expression.”
Judges John T. Noonan and Richard R. Clifton joined Bybee in his opinion, but Noonan wrote separately “to state that tattooing may be purely expressive, not that it always is.”
The case is Anderson v. City of Hermosa Beach, 08-56914.
Copyright 2010, Metropolitan News Company