Agenda - Planning Commission - 01/31/2013 - Special

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October 25, 2012 I Volume 6 I Issue 20 Zoning Bulletin sive activity. Determining that tattooing is protected speech also implied that the business of tattooing is constitutionally protected, said the court. As such, the court concluded that tattooing can be regulated only by content -neutral, generally applicable laws (such as taxes, health regulations, and nuisance ordinances) and through reasonable time, place, and manner regulations. The City had argued that it did not matter whether tattooing was a constitutionally protected expression because, even if it was, "gener- ally applicable zoning laws may apply to otherwise protected activities without presenting free speech issues." The court was not persuaded. The court noted that the City's zoning ordinance effectively prohibited certain uses, including tattoo parlors, unless the City Council issued a discretionary CUP. The City was not, found the court, attempting to impose a generally applicable law (such as a tax or nuisance prohibi- tion) to the on -going operations of businesses engaged in protected speech. Instead, the City was exercising unfettered discretion to deny permission for businesses engaged in protected speech to operate at all. The court rejected the City's argument that it could exercise such discretion because it had similar discretion to deny permission for other, nonprotected uses. The court said that the fact that a permit scheme may also apply to nonprotected activities did not insulate it from constitutional challenge when applied to protected speech. Having concluded that tattooing is protected speech, the court next considered whether the Colemans' complaint sufficiently stated a claim for relief based on alleged violations of the First Amendment or Article 2, § 6 of Arizona's Constitution. The Colemans had alleged that the City's CUP process was not a reasonable time, place, and manner regulation of their protected expression. The court explained that for a permit system to qualify as a reasonable time, place, and manner regulation, the scheme: must not be based on the content of the mes- sage; must be narrowly tailored to serve a significant governmental interest;, and must leave open ample alternatives for communication. The Colemans had alleged that the City's "planning and zoning code approval criteria, facially and as applied by the City Council," did not sufficiently guide or limit the City Council's discretion in rendering decisions. (The City, itself, had asserted that the City Council's determinations on CUPs were discretionary and effectively nonreviewable.) The court concluded that the Colemans had alleged sufficient facts to state a claim on which relief could be granted for violations of the freedom of speech. See also: Thomas v. Chicago Park Dist., 534 U.S. 316, 122 S. Ct. 775, 151 L. Ed. 2d 783 (2002). See also: Anderson v. City of Hermosa Beach, 621 F.3d 1051, 67 A.L.R.6th 681 (9th Cir. 2010) (holding that "tattooing is purely expres- sive activity fully protected by the First Amendment"). 4 © 2012 Thomson Reuters