by Art Thomason, Arizona Republic
The Mesa City Council denied two tattoo artists the constitutional protections of free speech by rejecting their efforts to open a business two years ago, the Arizona Court of Appeals said Thursday.
The decision - a first by any Arizona court on the issue of free speech protections for tattoo artists - reversed a Maricopa County Superior Court ruling that sided with the city.
"We hold that obtaining a tattoo, applying a tattoo and engaging in the business of tattooing are exercises of free speech entitled to protection as a fundamental right under the Arizona Constitution and the United States Constitution," the appeals court's presiding judge, Ann Timmer, wrote in the 31-page opinion.
The court was asked by the Goldwater Instituteto determine whether the City Council denied the constitutional rights of two tattoo artists by denying them an operating permit.
The case stems from the council's March 2009 decision to deny a permit for Ryan and Laetitia Coleman, who live in Nice, France, to open Angel Tattoo in a strip mall on the southeastern corner of Dobson and Baseline roads. During the council meeting, several neighbors said they feared that the tattoo parlor would drag down the area's quality of life. Mayor Scott Smith cast the only yes vote.
The shopping center has been plagued by vacancies since a Basha's supermarket closed there several years ago.
The Colemans then sued Mesa, alleging their rights had been violated. Last year a county judge upheld the city's right to govern tattoo parlors under a "council use permit" process that gives the city wide discretion to approve or deny certain types of businesses.
Clint Bolick, an attorney for the Goldwater Institute and director of its Institute's Scharf-Norton Center for Constitutional Litigation, argued for the Colemans, calling the permit process "subjective."
The question about how tattooing is free speech was raised by judges during the hearing.
At one point Judge Patrick Irvine asked Bolick, "Why is tattooing speech at all? And if it's speech, why isn't a hairdresser speech? People spend a lot of time on their hair, and they're making a statement with it, and so why isn't a hairdresser speech?"
Bolick replied:. "The only difference between a portrait is the medium that's being used is not canvas but someone's skin. And it's even more important than a painting because it becomes a part of the person."
Scott Holcomb, the attorney representing Mesa, argued that a business, not free speech, was being regulated by the city. "This case does not deal with any type of First Amendment rights at all," Holcomb said.
Timmer said in Thursday's opinion that the superior court had erred by dismissing the Colemans' complaint "without affording an opportunity to develop a factual record. We therefore reverse and remand for additional proceedings."
Mayor Smith said Thursday the city's attorneys will have an opportunity to present the court with a record in the case that's "a lot deeper."
That record, he said, will include additional reasons that the city had for denying the permit.
The appeals court decision is the second in the last nine years that the city has lost an appeals case based on citizens' rights.
Mesa turned a local brake shop owner into a national icon for property rights when the Arizona Court of Appeals ruled in 2002 that the city wrongly seized his business through eminent domain so it could be sold to a developer.