Coleman v. City of Mesa
265 P.3d 422
Ariz. Ct. App.2011Background
- Mesa requires a Council Use Permit for tattoo parlors in commercial zones, with location, licensing, and compatibility criteria.
- Colemans, body artists from France, sought to open Angel Tattoo in a Mesa shopping center and applied for the Permit.
- Board staff found compliance and recommended issuance with conditions; Board voted 3-2 to urge denial; Council denied 6-1.
- Colemans sued Mesa alleging violations of free speech, equal protection, and substantive due process under state and federal constitutions.
- Superior court dismissed the complaint as a reasonable land-use regulation; Colemans appeal argued First Amendment protections apply to tattooing.
- Court of Appeals holds tattooing constitutes pure speech and remands for further factual development rather than upholding dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is tattooing pure speech protected by the First Amendment | Colemans: tattooing is pure speech under both constitutions. | Mesa: tattooing is conduct, not protected speech; review under rational basis. | Tattooing is pure speech; highest protection applied; not subjected to conduct-based scrutiny. |
| Whether Mesa's permit process narrowly tailors its legitimate interests | Colemans can show lack of narrowly tailored guidance and overbreadth based on perceptions. | Mesa's process reasonably furthers planning/land-use goals with compatibility concerns. | Colemans allege insufficient tailoring; factual record needed to evaluate if restrictions are narrowly drawn. |
| Whether Mesa's permit denial violates equal protection | Tattoo parlors singled out without solid basis; discriminatory treatment based on perceptions. | Regulation applies to all commercial establishments; legitimate land-use concerns exist. | Record inadequate; equal protection claim survives pending development of facts supporting tailoring. |
| Whether Mesa's decision violated substantive due process | Decision based on perceptions rather than evidence, lacked proper guidance for discretion. | Zoning decisions are legislative actions; standard is appropriate to land-use planning. | Substantive due process claim survives with the need for factual development; dismissal was improper. |
Key Cases Cited
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. Supreme Court 1989) (time, place, and manner scrutiny framework for content-neutral regulations)
- Spence v. Washington, 418 U.S. 405 (U.S. Supreme Court 1974) (test for whether conduct conveys a particularized message)
- Hold Fast Tattoo, LLC v. City of N. Chicago, 580 F. Supp. 2d 656 (N.D. Ill. 2008) (tattooing treated as non-expressive conduct not protected by First Amendment)
- Anderson v. City of Hermosa Beach, 621 F.3d 1051 (9th Cir. 2010) (tattooing deemed pure speech with full First Amendment protection)
- City of Ladue v. Gilleo, 512 U.S. 43 (U.S. Supreme Court 1994) (alternative channels for communication and reasonable restrictions)
- Young v. American Mini Theatres, Inc., 427 U.S. 50 (U.S. Supreme Court 1976) (locations of commercial establishments may be controlled to serve interests)
- Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (U.S. Supreme Court 1983) (speech-related taxation and protection equivalence to First Amendment)