Coleman v. City of Mesa
230 Ariz. 352
Ariz.2012Background
- Colemans were denied a City Council Use Permit (CUP) to open a tattoo parlor in a Mesa strip mall.
- Colemans sued Mesa and officials for alleged First Amendment (free speech), due process, and equal protection violations under federal and Arizona law.
- Superior Court dismissed under Rule 12(b)(6) for failure to state a claim; the court deemed the decision a reasonable land-use regulation.
- Arizona Court of Appeals reversed, holding tattooing is pure speech entitled to strong First Amendment protection and the CUP process could be challenged.
- Supreme Court granted review to address first-impression, statewide issues on tattoo artists’ free speech rights and municipal control of tattoo-parlor locations.
- Court now holds tattooing is protected speech and that the complaint plausibly states claims for free speech, equal protection, and due process, necessitating remand for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is tattooing protected speech under the First Amendment and Article 2, §6? | Tattooing is pure speech protected by the First Amendment. | Tattooing may be regulated like other activities under generally applicable zoning laws. | Tattooing is protected speech; not categorically unprotected by context. |
| Does Mesa’s CUP scheme constitute a reasonable time, place, and manner regulation of protected speech? | CUP discretion is not adequately guided and thus not a permissible TPM regulation. | CUP process is a valid TPM regulation with discretionary decisions. | Colemans stated a claim that CUP process, as applied, may fail TPM standards; dismissal improper. |
| Do the Equal Protection and Due Process claims survive given tattooing’s protected status? | Denial based on prejudice and non-factual considerations arbitrary and irrational. | Zoning location decisions are legitimate regulatory actions. | Claims survive; rational basis/intermediate scrutiny applicable; government rationale must be shown to be legitimate. |
| Was the Rule 12(b)(6) dismissal appropriate given the pleadings? | Pleadings state plausible free speech, due process, and equal protection claims. | Complaint failed to state a claim. | Dismissal inappropriate; remand for further proceedings. |
Key Cases Cited
- Thomas v. Chicago Park Dist., 534 U.S. 316 (2002) (time, place, and manner regulation with adequate standards)
- Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123 (1992) (content-neutral permitting schemes require objective standards)
- Anderson v. Hermosa Beach, 621 F.3d 1051 (9th Cir. 2010) (tattooing protected as pure speech; expressive process also protected)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (time, place, and manner restrictions require narrow tailoring and standards)
- Leathers v. Medlock, 499 U.S. 439 (1991) (generally applicable laws may regulate protected speech)