Coleman v. City of Mesa

• Decision Date: 03 November 2011
• Docket Number: No. 1 CA–CV 10–0808.,1 CA–CV 10–0808.
• Citation: 265 P.3d 422,620 Ariz. Adv. Rep. 18,228 Ariz. 240
• Parties: Ryan COLEMAN and Laetitia Coleman, Appellants, v. CITY OF MESA, a municipal corporation; Mesa City Council, a body politic; Scott Smith, Mayor; Linda Crocker, City Clerk; Kyle Jones, Vice Mayor and City Council Member; Alex Finter, Dina Higgins, Dennis Kavanaugh, Dave Richins, Scott Somers, City Council Members, Appellees.
• Court: Arizona Court of Appeals

228 Ariz. 240

265 P.3d 422

620 Ariz. Adv. Rep. 18

Ryan COLEMAN and Laetitia Coleman, Appellants,

v.CITY OF MESA, a municipal corporation; Mesa City Council, a body politic; Scott Smith, Mayor; Linda Crocker, City Clerk; Kyle Jones, Vice Mayor and City Council Member; Alex Finter, Dina Higgins, Dennis Kavanaugh, Dave Richins, Scott Somers, City Council Members, Appellees.

No. 1 CA–CV 10–0808.

Court of Appeals of Arizona, Division 1, Department D.

Nov. 3, 2011.

Goldwater Institute By Clint Bolick, Carrie Ann Sitren, Phoenix, Kielsky, Rike & Elgart, P.L.L.C. By Michael Kielsky, Scottsdale, Attorneys for Appellants.

Mariscal, Weeks, McIntyre & Friedlander, P.A. By Scott A. Holcomb, Fredda J. Bisman, Erin R. Ford, Phoenix, Attorneys for Appellees.

OPINION

TIMMER, Presiding Judge.

¶ 1 This appeal presents our first opportunity to consider the First Amendment rights of tattoo artists to ply their trade in Arizona. In doing so, we decide whether the superior court erred by dismissing a complaint filed by appellants Ryan and Laetitia Coleman (the “Colemans”) against the City of Mesa and others (collectively, “Mesa”) for denying the Colemans' request for a permit to operate a tattoo parlor within 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. As such, any restriction on that right must be highly scrutinized by our courts. Because the Colemans sufficiently alleged claims for violations of their free speech, equal protection, and due process rights, the superior court erred by dismissing the complaint without affording an opportunity to develop a factual record. We therefore reverse and remand for additional proceedings.

BACKGROUND

¶ 2 Mesa requires some businesses, including pawn shops, tattoo parlors, ¹ and body piercing salons, to obtain a Council Use Permit (“Permit”) before operating in a commercially zoned area within the city. Mesa City Code, § 11–6–3(B) (2008). To obtain a Permit, a tattoo parlor, among other things, must be licensed as required by any state or county agency, must propose to operate in a location at least 1,200 feet from an existing tattoo parlor, body piercing salon, or school, and must “be compatible with surrounding uses, the General Plan,² and other recognized development plans or policies.” Id. at § 11–6–3(B)(2), (4). Mesa's Planning and Zoning Board (“Board”), or a Planning Hearing Officer, reviews all requests for Permits and recommends disposition to the City Council (“Council”), which decides whether to grant requests and impose additional conditions as necessary to fulfill the provisions and intent of Mesa's zoning ordinance. Id. at §§ 11–6–3, 11–18–8(U)(2).

¶ 3 The Colemans are body artists who have owned and operated “Angel Tattoo,” a successful tattoo parlor located for many years in Nice, France. They wish to open an American branch of their business in a Mesa strip shopping center that includes restaurants, a hair salon, a massage studio, and other small businesses in the Dobson Ranch neighborhood. In July 2008, the Colemans initiated the preliminary review process for obtaining a Permit and formally applied for the Permit the following January. The Board's staff reviewed the application, found the Colemans in compliance with Permit requirements imposed by the City Code, and recommended issuance of a Permit with conditions. ³ The Board reviewed the Colemans' application and staff recommendations at a February 2009 meeting and ultimately voted 3–2 to urge denial of the application, voicing concerns that a tattoo parlor was not “appropriate” for the neighborhood. In March, the Council considered the application and heard from both proponents and opponents at a public meeting. Opponents presented no evidence but articulated concerns that a tattoo parlor in the suggested location might draw crime to the area and reduce property values. The Council voted 6–1 to deny the Permit application.

¶ 4 The Colemans sued Mesa in March 2010, alleging violations of their civil rights guaranteed under the state and federal constitutions and seeking declaratory and mandamus relief as well as monetary damages under 42 U.S.C. § 1983. Mesa filed a motion to dismiss the complaint pursuant to Arizona Rule of Civil Procedure (“Rule”) 12(b)(6) in June, arguing the complaint failed to state a claim on which relief could be granted.⁴ After briefing and oral argument, the superior court granted the motion, concluding the Council's decision “was a reasonable and rational regulation of land use.” This timely appeal followed.

DISCUSSION

¶ 5 Motions to dismiss test a complaint's legal sufficiency. Moretto v. Samaritan Health Sys., 190 Ariz. 343, 346, 947 P.2d 917, 920 (App.1997). Dismissal is warranted when the complaint fails to allege sufficient facts to support a legal claim. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988). The superior court properly dismisses a complaint only when it can be certain the plaintiff cannot prove facts entitling it to relief. Fid. Sec. Life Ins. Co. v. State, Dep't of Ins., 191 Ariz. 222, 224, ¶ 4, 954 P.2d 580, 582 (1998) (stating that dismissal for failure to state a claim is appropriate only if “as a matter of law ... plaintiffs would not be entitled to relief under any interpretation of the facts susceptible of proof”). As a general policy, “[m]otions to dismiss for failure to state a claim are not favored under Arizona law....” State ex. rel. Corbin v. Pickrell, 136 Ariz. 589, 594, 667 P.2d 1304, 1309 (1983).

¶ 6 We review the grant of a motion to dismiss for an abuse of discretion. Dressler v. Morrison, 212 Ariz. 279, 281, ¶ 11, 130 P.3d 978, 980 (2006). “A trial court abuses its discretion when it misapplies the law or predicates its decision on incorrect legal principles.” State v. Jackson, 208 Ariz. 56, 59, ¶ 12, 90 P.3d 793, 796 (App.2004). We review constitutional law issues underlying the motion de novo. State v. Ramsey, 211 Ariz. 529, 532, ¶ 5, 124 P.3d 756, 759 (App.2005). We accept as true all well-pleaded facts stated in the complaint and resolve inferences in favor of the plaintiff. Sw. Paint & Varnish Co. v. Ariz. Dep't of Envtl. Quality, 191 Ariz. 40, 41, 951 P.2d 1232, 1233 (App.1997), approved in part, 194 Ariz. 22, 976 P.2d 872 (1999).

¶ 7 The Colemans allege in their complaint that they are entitled to relief because the Council violated their state and federal constitutional rights to engage in free speech, receive equal protection under the law, and be afforded substantive due process. We address each basis in turn.

A. Free speech

¶ 8 The Colemans assert Mesa violated their state and federal free-speech rights to operate a tattoo parlor in the Dobson Ranch neighborhood because Mesa City Code § 11–6–3(B), as applied to the Colemans, was not a reasonable time, place, or manner restriction. They argue the superior court erred by granting the motion to dismiss because the sufficiency of their complaint can be assessed only after development of a factual record. Mesa counters that the act and business of tattooing are not free-speech rights and, consequently, the court properly applied a rational basis standard of review to test the propriety of Mesa's permitting process and decision on the Colemans' application. Alternatively, Mesa contends that if the act and business of tattooing are protected speech rights, the permitting process and the Council's decision survive the required heightened level of scrutiny. The superior court ruled in favor of Mesa, reasoning that the “Council's finding that it would be appropriate and in the best interest of the community to deny the Application to establish a tattoo parlor at this location was a reasonable and rational decision based upon community concerns.”

¶ 9 To determine whether the Colemans state a sufficient claim against Mesa for violating their free-speech rights, we initially must decide whether engaging in the act and business of applying tattoos is such a right guaranteed by the state or federal constitutions.⁵ Resolution of that issue will supply the appropriate legal framework to assess whether the Colemans' complaint states a cognizable claim.

¶ 10 Article 2, Section 6, of the Arizona Constitution, provides, “[e]very person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.” The First Amendment to the United States Constitution, which is applicable to the states through the Fourteenth Amendment, prohibits the government from “abridging the freedom of speech, or of the press.” Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925). Although our supreme court has held that Article 2, Section 6 affords greater protection to speech than the First Amendment, State v. Stummer, 219 Ariz. 137, 143, ¶ 17, 194 P.3d 1043, 1049 (2008); Mountain States Tel. & Tel. Co. v. Ariz. Corp. Comm'n, 160 Ariz. 350, 354–55, 773 P.2d 455, 459–60 (1989), neither party contends the state provision defines protected speech differently than the First Amendment. Indeed, our court has applied case law developed under the First Amendment to determine whether activity constitutes protected speech under the state constitution. ⁶ See Bird v. State, 184 Ariz. 198, 202 n. 2, 204, 908 P.2d 12, 16 n. 2, 18 (App.1995) (deciding that betting on election outcome is not protected speech). We do the same.

¶ 11 Constitutionally protected speech encompasses both “pure speech,” which comprises inherently expressive activities like writing and speaking,⁷ and expressive or symbolic conduct, such as voting, ⁸ nude dancing,⁹ wearing a black armband at school to protest government action,¹⁰ using public streets to picket,¹¹ and displaying an American flag with a peace symbol affixed.¹² “The government generally has a freer hand in restricting expressive...