Phoenix--Maricopa County Superior Court Judge Robert H. Oberbillig gave Tom and Elizabeth Preston an opening round victory in their battle to open a tattoo studio in Tempe.
The court ruled that the Tempe City Council unlawfully revoked their special use permit to open a studio called Body Accents in a vacant storefront in a strip mall at 1524 N. Scottsdale Rd. in Tempe. The permit was awarded by a city hearing examiner and upheld by the city's Development Review Commission before the City Council voted on August 28, 2007 to revoke the permit due to what Mayor Hugh Hallman called a "perception" that the studio would contribute to neighborhood deterioration. In the meantime, the Prestons had signed a five-year lease and invested between $25,000-$30,000 preparing the studio to open in reliance on the permit.
The court ruled, "Even the City's own ordinances and rules reflect that this permit is valid," and that the Council may revoke it only on a showing of "good cause or public necessity."
The Prestons own and operate a tattoo studio in Mesa called Virtual Reality, which has not received a single complaint in over 15 years of continuous operation.
"The Council's action was a travesty," remarked Clint Bolick, director of the Goldwater Institute Scharf-Norton Center for Constitutional Litigation, which represented the Prestons. "The Prestons followed the city's rules and made a significant investment, only to be sent packing by the City Council on the basis of crude, outdated stereotypes."
The court sent the matter back to the City Council to reconsider in light of its ruling. Meanwhile, the storefront remains vacant, and the Prestons still would like to open a studio there.
"This ruling is a victory for the rule of law," declared Bolick. "If the City can lawfully treat the Prestons this way, then every small business owner in Arizona is at risk of arbitrary government action."
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