Arizona Court of Appeals hears Mesa tattoo case - Tucson Citizen
The Arizona Court of Appeals is weighing whether the Mesa City Council denied the constitutional rights of two tattoo artists by denying them an operating permit 21/2 years ago.
Attorneys argued both sides of the case Thursday morning at Coronado High School in Scottsdale. The court from time to time will hear a case at a school as an educational exercise.
The case stems from the council's denial in March 2009 of permission to Ryan and Laetitia Coleman, who live in Nice, France, to open Angel Tattoo in a strip mall on the southeastern corner of Dobson and Baseline roads.
Several neighbors spoke against the parlor at that meeting, fearing it would drag down the area's quality of life. Mayor Scott Smith cast the only yes vote.
The Colemans then sued Mesa, alleging their rights had been violated. Last year a county judge upheld the city's right to govern tattoo parlors under a "council use permit" process, which gives the council wide discretion to approve or deny certain types of businesses.
Clint Bolick, an attorney for the Goldwater Institute, a libertarian advocacy group, argued for the Colemans.
"The subjective permit process to which the Colemans were subjected violates their right to free expression and is unconstitutional," Bolick said.
At one point Judge Patrick Irvine asked Bolick, "Why is tattooing speech at all? And if it's speech, why isn't a hairdresser speech? People spend a lot of time on their hair, and they're making a statement with it, and so why isn't a hairdresser speech?"
It's like commissioning an artist to do a portrait, Bolick said. "The only difference between a portrait is the medium that's being used is not canvas but someone's skin. And it's even more important than a painting because it becomes a part of the person."
Scott Holcomb, the attorney representing Mesa, said it's not free speech that's being regulated, it's a business.
"This case does not deal with any type of First Amendment rights at all. The city of Mesa is not regulating speech," Holcomb said.
That elicited questions from Judge Donn Kessler as to whether a city had a right to regulate a bookstore that might sell controversial religious and political texts.
"Wouldn't the sale of books (be) free expression?" he asked.
"Bookstores do have First Amendment protection," Holcomb said. "But that doesn't take them out of the realm of regulation. . . . You regulate the business. You're not regulating the content."
Irvine worried that giving the council broad discretion over certain types of businesses could lead to violations of the First Amendment. A council could, for example, deny permission for a religious school simply because it didn't like that particular religion.
Holcomb admitted that would be a First-Amendment case, but cities have the right to deny permission to all kinds of land uses if they generate traffic problems, lack sufficient infrastructure or would otherwise burden a neighborhood.
With regard to the tattoo parlor, he said, "The city of Mesa is solely dealing with the location of the business."
In rebuttal Bolick said, "There is no land-use exception to the First Amendment."
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