James Real v. City of Long Beach
852 F.3d 929
9th Cir.2017Background
- James Real, a tattoo artist, sought to open a tattoo shop in Long Beach but did not apply for a conditional use permit (CUP) because most areas are not zoned for tattooing and the CUP process is burdensome.
- Long Beach zoning: tattoo shops disallowed in most areas; CUP required to operate; 1,000-foot proximity restriction from taverns/other tattoo parlors; operating hours limited to 7 a.m.–10 p.m.
- CUP approval factors include vague standards (e.g., whether the use "will not be detrimental to the surrounding community") and the Code lacks a firm deadline to grant or deny a CUP after hearing.
- Real sent a 2011 letter identifying three prospective locations; the City later opened one arts district to CUPs and a shop opened there, but Real did not apply.
- District court granted judgment for the City, finding Real lacked standing (because he had not applied for a CUP), treated the ordinances as time/place/manner regulations (not prior restraints), and characterized Real's claim as as-applied only.
- Ninth Circuit reversed: held Real has standing to bring both facial and as-applied First Amendment challenges and remanded for trial on whether the ordinances are unlawful prior restraints or unreasonable time/place/manner restrictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Facial challenge standing | Real argues he may facially challenge ordinances that impermissibly restrict tattooing and vest unbridled discretion in officials | City contends Real lacked evidence of third-party effects and thus asserted only an as-applied claim | Court: Real has standing to bring a facial First Amendment challenge without first applying for a CUP where licensing vests unbridled discretion |
| As-applied standing | Real intends to open a shop and faces a credible threat of enforcement; thus he suffered injury-in-fact | City argues Real lacked injury because he never applied for a CUP (and did not pursue East Village location) | Court: Real has standing for as-applied challenge—intention + credible threat satisfy Susan B. Anthony List test |
| Prior restraint claim | Real argues CUP process vests excessive discretion and lacks prompt-decision safeguards, constituting a prior restraint | City argued ordinances are merely time/place/manner rules and do not totally ban tattooing | Court: Ordinances plausibly constitute a prior restraint because of unfettered discretion and no deadline to decide CUPs; claim is cognizable and must be tried |
| Time/place/manner defense | Real contends location/proximity and hours unreasonably restrict protected expressive conduct (tattooing) | City maintains restrictions are reasonable regulatory measures serving significant interests | Court: Whether restrictions are reasonable T/P/M must be decided on remand; City bears burden to show the three-part test is met |
Key Cases Cited
- Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022 (9th Cir. 2006) (facial First Amendment challenges may be brought by those asserting ordinance impermissibly restricts protected activity)
- City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) (one subject to licensing that vests unbridled discretion may bring facial challenge without applying for license)
- Anderson v. City of Hermosa Beach, 621 F.3d 1051 (9th Cir. 2010) (tattooing is purely expressive activity protected by the First Amendment)
- Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014) (standing where plaintiff intends conduct proscribed by statute and faces credible threat of enforcement)
- FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) (licensing schemes with unbridled discretion can constitute prior restraints)
- Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011 (9th Cir. 2009) (licensing regulations must provide narrow, objective, definite standards and explanations for decisions)