In Real v. City of Long Beach, published March 29, 2017, the 9th Circuit reversed a judgment against a plaintiff who brought a 42 U.S.C. section 1983 action challenging the defendant city's tattoo parlor zoning ordinances as violating the First Amendment. The ordinances disallow tattoo shops in most of the City, require a conditional use permit to operate them, barring them within 1,000 feet of existing tattoo parlors or other adult entertainment businesses, restricting their hours of operation, and generally restricting them to areas zoned for tattooing. The plaintiff alleged that the ordinances restricted his First Amendment right to engage in tattoing by limiting the areas where tattooing is permitted, and by requiring permitting through a CUP process that vests excessive discretion in city officials and imposes excessive fees. The plaintiff never applied for a CUP because the areas in which he was interested in opening a shop were not zoned for tattooing, so he knew the application would be denied. At a bench trial, the court entered judgment for the city, concluding that the plaintiff was bringing only an as-applied challenge and did not have standing to do so because he did not apply for a CUP.
The 9th Circuit ruled that the plaintiff was bringing both a facial and an as-applied challenge, and had standing to bring both. When a licensing statue alleged vests unbridled discretion in a government official over whether to permit expressive activity, one subject to the law may challenge it facially without first applying for and being denied a license. Tattooing is purely expressive activity. The plaintiff did not have to apply for a CUP to bring a facial challenge. He met the standing requirements for an as-applied challenge, because he alleged an intention to engage in a course of conduct arguably affected with a constitutional interest but proscribed by a statute, and there exists a credible threat of prosecution under it. Because the ordinances allegedly vest excessive permitting discretion with the city, and do not contain adequate procedural safeguards since no time limits are placed on CUP decisions, the plaintiff raised a cognizable prior restraint claim. The court remanded the issue of whether the ordinances were proper time, place, and manner restrictions.
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