Agenda - Planning Commission - 06/01/2017

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Zoning Bulletin May 25, 2017 I Volume 11 1 Issue 10 Citation: Real v. City of Long Beach, 852 E3d 929 (9th Cif: 2017) The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. NINTH CIRCUIT (CALIFORNIA) (03/29/17)—This case addressed the issue of whether a tattoo artist, who needed but had not applied for a conditional use permit to operate a tattoo shop in a city, had standing to bring a facial and/or as -applied First Amendment challenge to the city's zoning ordinance. The case also addressed whether the tattoo artist raised a cognizable claim (i.e., made the allegations necessary to try the claim) that the city's zoning ordinance, which restricted locations of tattoo shops and allowed- them only with a conditional use permit, constituted an "unlawful prior restraint on speech" and/or an "unlawful time, place, or manner restriction on speech" in violation of the First Amendment. The Background/Facts: James Real ("Real") was a tattoo artist who sought to open a tattoo shop in Long Beach, California (the "City"). The City's zoning ordinances disallowed tattoo shops in most locales, required at least 1,000 feet between tattoo shops and taverns or other tat- too shops, and required a conditional use permit ("CUP") to operate. Eventually, Real brought a legal action against the City, arguing that the City's zoning ordinances "unduly restricted his First Amendment right to engage in tattooing by (1) limiting the areas in which tattooing [was] permitted, including by requiring that there be at least 1,000 feet between tattoo shops and taverns or other tattoo shops, and (2) requiring permit- ting through a CUP process that vest[ed] excessive discretion in city of- ficials and impose[d] excessive fees." The district court held that Real did not have standing (i.e., the legal right to bring the claim) because he suffered no "injury" since he had never applied for a CUP in order to operate a tattoo shop in the City. Real appealed. On appeal, he argued that he had standing to bring both facial (i.e., a challenge to the constitutionality of the ordinances, on their face) and as -applied (i.e., a challenge to the constitutionality of the ordi- nances as applied to Real) First Amendment challenges to the City's rele- vant zoning ordinances. He also argued that the ordinances operated as both unlawful prior restraints on speech and unreasonable time, place, or manner restrictions on speech in violation of the First Amendment. DECISION: Judgment of district court reversed, and matter remanded. The United States Court of Appeals, Ninth Circuit, held that Real had standing to bring both facial and as -applied First Amendment challenges against the City. The court remanded for the district court to try the City's defense that the ordinances were reasonable time, place, and manner restrictions and not unlawful prior restraints on speech. With regard to the matter of standing, the court explained that "a plaintiff has standing to vindicate his First Amendment rights through a © 2017 Thomson Reuters 3