Anderson v. City Of Hermosa Beach

• Citation: 621 F.3d 1051
• Decision Date: 09 September 2010
• Docket Number: No. 08-56914.,08-56914.
• Parties: Johnny ANDERSON, Plaintiff-Appellant, v. CITY OF HERMOSA BEACH, a California Municipal Corporation, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

621 F.3d 1051

Johnny ANDERSON, Plaintiff-Appellant,

v.CITY OF HERMOSA BEACH, a California Municipal Corporation, Defendant-Appellee.

No. 08-56914.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted May 7, 2010.

Filed Sept. 9, 2010.

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Robert C. Moest, Law Offices of Robert C. Moest, Santa Monica, CA, for the plaintiff-appellant.

John C. Cotti, Jenkins & Hogin, LLP, Manhattan Beach, CA, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California, Christina A. Snyder, District Judge, Presiding. D.C. No. 2:07-cv-05923-CAS-E.

Before: JOHN T. NOONAN, RICHARD R. CLIFTON and JAY S. BYBEE, Circuit Judges.

Opinion by Judge BYBEE; Concurrence by Judge NOONAN.

BYBEE, Circuit Judge:

We address a question of first impression in our circuit: whether a municipal ban on tattoo parlors violates the First Amendment. Although courts in several jurisdictions have upheld such bans against First Amendment challenges, see, e.g., Hold Fast Tattoo, LLC v. City of North Chicago, 580 F.Supp.2d 656, 659-61 (N.D.Ill.2008); Yurkew v. Sinclair, 495 F.Supp. 1248, 1253-55 (D.Minn.1980); State v. Brady, 492 N.E.2d 34, 39 (Ind.Ct.App.1986); People v. O'Sullivan, 96 Misc.2d 52, 409 N.Y.S.2d 332, 333 (1978); State v. White, 348 S.C. 532, 560 S.E.2d 420, 423-24 (2002); Blue Horseshoe Tattoo, V, Ltd. v. City of Norfolk, 72 Va. Cir. 388, 390 (Cir.Ct.2007), we respectfully disagree. We hold that tattooing is purely expressive activity fully protected by the First Amendment, and that a total ban on such activity is not a reasonable “time, place, or manner” restriction.

I. BACKGROUND

Petitioner-Appellant Johnny Anderson seeks to establish a tattoo parlor in Defendant-Appellee City of Hermosa Beach (the “City”), but Hermosa Beach Municipal Code (“Code”) § 17.06.070 effectively bans tattoo parlors. Anderson sued the City under 42 U.S.C. § 1983, alleging that § 17.06.070 is facially unconstitutional under the First and Fourteenth Amendments. The parties filed cross-motions for summary judgment, and the district court denied Anderson's motion and granted the City's motion. Anderson now appeals this decision.

We begin with the relevant background information, starting with a brief explanation of the process and health implications of tattooing, ¹ followed by a summary of the laws regulating tattooing in the State of California and its subdivisions, and ending with a more detailed description of the facts and procedural history in Anderson's particular case.

A. Tattooing

A declaration provided by the City sums up well the process of tattooing:

A tattoo is created by injecting ink into a person's skin. To do this, an electrically powered tattoo machine, often called a gun, moves a solid needle up and down to puncture the skin between 50 and 3,000 times per minute. The needle penetrates the skin by about a millimeter and deposits a drop of insoluble ink into the skin with each puncture.

The ink is deposited in the dermis, which is the second layer of skin.... Because the skin has been punctured many times, the end result is essentially an open wound.

Tattooing carries the risk of infection and transmission of disease “if unsanitary conditions are present or unsterile equipment is used.” Yurkew, 495 F.Supp. at 1252. The City's declarations establish that tattooing can result in the transmission of such diseases as hepatitis, syphilis, tuberculosis, leprosy, and HIV. Reports from the Centers for Disease Control and Prevention and the Food and Drug Administration confirm the significant health risks of tattooing. See Centers for Disease Control and Prevention, Body Art: Tattoos and Piercings (Jan. 21, 2008), available at http:// www. cdc. gov/ features/ bodyart (last visited May 25, 2010) (noting risks of infection, tuberculosis, Hepatitis B and C, and HIV); United States Food and Drug Administration, Tattoos & Permanent Makeup (Nov. 29, 2000), available at http:// www. fda. gov/ cosmetics/ product and ingredient safety/ product information/ ucm 108530. htm (last visited May 25, 2010) (discussing risks of infection, removal problems, potential allergic reactions, and MRI complications).

In general, however, “tattooing is a safe procedure if performed under appropriate sterilized conditions.” Yurkew, 495 F.Supp. at 1252. “[T]attoo artists protect themselves and their clients when following safe and healthy practices,” including “using sterile needles and razors, washing hands, wearing gloves, and keeping surfaces clean.” Centers for Disease Control and Prevention, supra; see also Mayo Clinic, Tattoos: Understand Risks and Precautions (Feb. 16, 2010), available at http:// www. mayoclinic. com/ health/ tattoos- and- piercings/ mc 00020 (last visited May 25, 2010) (providing a list of questions a person should ask “[t]o make sure[his] tattoo will be applied safely”).

B. Tattooing Regulations

Because of the potential health concerns implicated by tattooing, the State of California requires “[e]very person engaged in the business of tattooing ... [to] register ... with the county health department of the county in which that business is conducted,” Cal. Health & Safety Code § 119303(a), and requires these county health departments to inspect the registered tattoo parlors, id. § 119304. A person engaged in a tattooing business “who fails to register as provided by Section 119303 ... [is] subject to a civil penalty of five hundred dollars ($500) per violation.” Id. § 119306. Moreover, California makes it illegal to “tattoo[ ] or offer[ ] to tattoo a person under the age of 18 years.” Cal. Penal Code § 653.

The City of Hermosa Beach lies within the County of Los Angeles (“the County”). According to a declaration by Claro Cartagena, an inspector of tattoo establishments for the County, there are nearly 300 tattoo establishments in the County and over 850 tattooists. However, Cartagena is the only inspector in the County monitoring the parlors. Many tattoo parlors have never been inspected and are subject to no regulations other than the requirement to register with the County. Thus, it is largely up to the owner of the tattoo establishment to sterilize his equipment and follow sterilization procedures. According to Cartagena, “While most tattoo establishments are clean and sanitary, others are not.... As in any field, there are those practitioners that are unscrupulous or incompetent and do not follow the proper sterilization processes strictly. This poses a risk for infection.” Cartagena has also received complaints about illegal underage tattooing.

Although Los Angeles County generally permits tattooing businesses, the City of Hermosa Beach does not. Hermosa Beach Municipal Code § 17.06.070 provides: “Except as provided in this title, no building shall be erected, reconstructed or structurally altered, nor shall any building or land be used for any purpose except as hereinafter specifically provided and allowed in the same zone in which such building and land is located.” The Code provides zoning for a wide variety of commercial uses, including movie theaters, restaurants, adult businesses, bars, fortune tellers, gun shops, and youth hostels. Hermosa Beach Mun. Code § 17.26.030. No provision of the zoning code, however, permits tattoo parlors, and as a result, these facilities are banned from Hermosa Beach under section 17.060.070. Indeed, on November 20, 2007, the City's Planning Commission adopted a resolution against amending the Code to permit tattoo parlors.

C. Facts and Procedural History

Plaintiff-Appellant Johnny Anderson presently co-owns a tattoo parlor in the City of Los Angeles, and seeks to establish a tattoo parlor in the City of Hermosa Beach. Anderson describes his own approach to tattooing in a declaration he submitted to the district court:

The tattoo designs that are applied by me are individual and unique creative works of visual art, designed by me in collaboration with the person who is to receive the tattoo. The precise design to be used is decided upon after discussion with the client and review of a draft of the design. The choices made by both me and by the recipient involve consideration of color, light, shape, size, placement on the body, literal meaning, symbolic meaning, historical allusion, religious import, and emotional content. I believe my designs are enormously varied and complex, and include realistic depictions of people, animals and objects, stylized depictions of the same things, religious images, fictional images, and geometric shapes and patterns.... Sometimes, several kinds of images are combined into a single tattoo or series of tattoos.... I have studied the history of tattooing, and I draw significantly on traditional Americana tattoo designs and on Japanese tattoo motifs in creating my images, while all the while trying to add my own creative input to make the designs my own.

On August 14, 2006, Anderson brought a 42 U.S.C. § 1983 action against the City in the Central District of California, alleging that Hermosa Beach Municipal Code § 17.06.070 is facially unconstitutional under the First and Fourteenth Amendments, and seeking declaratory relief, injunctive relief, attorney's fees, costs, and any other relief the court deemed appropriate. The district court initially dismissed Anderson's claim for lack of ripeness because Anderson had not sought permission to operate a tattoo parlor under the administrative procedures provided in the Code, which allow the community development director to permit a commercial use not listed in the zoning code if this use “is similar to and not more objection[able] than other uses listed.” Hermosa Beach Mun. Code § 17.26.040. In May 2007, Anderson filed a request with the City's community development director seeking such a finding of “similar use” so that he could open a tattoo parlor. By a letter dated June 21, 2007, the request was denied, and...