Coleman v. City of Mesa

Decision Date07 September 2012
Docket NumberNo. CV–11–0351–PR.,CV–11–0351–PR.
Citation642 Ariz. Adv. Rep. 4,284 P.3d 863,230 Ariz. 352
PartiesRyan 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.
CourtArizona Supreme Court

OPINION TEXT STARTS HERE

Scharf–Norton Center for Constitutional Litigation at the Goldwater Institute By Clint Bolick, Carrie Ann Sitren, Phoenix And Kielsky, Rike & Elgart, P.L.L.C. By Michael Kielsky, Scottsdale, Attorneys for Ryan Coleman and Laetitia Coleman.

Mariscal, Weeks, McIntyre & Friedlander, P.A. by Scott A. Holcomb, Fredda J. Bisman, David N. Ferrucci, Phoenix, Attorneys for City of Mesa, Mesa City Council, Scott Smith, Linda Crocker, Kyle Jones, Alex Finter, Dina Higgins, Dennis Kavanaugh, Dave Richins, and Scott Somers.

League of Arizona Cities and Towns By Joni Hoffman, Phoenix, Attorney for Amicus Curiae League of Arizona Cities and Towns.

OPINION

BALES, Vice Chief Justice.

¶ 1 This case involves the intersection of municipal zoning regulations and the right of tattoo artists to ply their trade. After the City of Mesa denied Ryan and Laetitia Coleman a permit to operate a tattoo parlor, the Colemans filed this action alleging violations of their rights to free speech, due process, and equal protection under the federal and Arizona Constitutions. The superior court dismissed the complaint under Arizona Rule of Civil Procedure 12(b)(6) for failing to state a claim upon which relief can be granted.

¶ 2 Recognizing that tattooing involves constitutionally protected speech, we hold that the superior court erred by dismissing the complaint as a matter of law. We vacate the opinion of the court of appeals, reverse the judgment of the superior court, and remand to that court for further proceedings consistent with this opinion.

I.

¶ 3 Mesa City Code § 11–6–3(B) requires tattoo parlors and other specified businesses (including pawn shops, body piercing salons, and non-chartered financial institutions) to obtain a Council Use Permit (CUP) in order to operate in the city.1 The Colemans applied in July 2008 for a CUP to open a parlor in a Mesa strip mall. Under the code, Mesa's Planning and Zoning Board reviews each CUP application and makes a recommendation to the City Council. In February 2009, city zoning staff recommended that the City issue the Colemans a permit, subject to certain conditions, which they accepted. Nonetheless, after a public hearing, the Board voted 3–2 to recommend that the Council deny the CUP, citing concerns that the proposed use was not appropriate for the location or in the best interest of the neighborhood. The Council held a public meeting in March 2009 at which it received comments from several speakers supporting and opposing the tattoo parlor. Ultimately, the Council voted 6–1 to deny the permit.

¶ 4 The Colemans sued the City of Mesa and various city officials (collectively Mesa). Their complaint alleges that Mesa's denial of the CUP violated their rights to free speech, due process, and equal protection under the federal and Arizona Constitutions, and it seeks declaratory and mandamus relief and damages under 42 U.S.C. § 1983. Mesa moved to dismiss the lawsuit under Rule 12(b)(6) for failing to state a claim upon which relief can be granted. The superior court granted the motion, observing that the Council's decision “was a reasonable and rational regulation of land use.”

¶ 5 The court of appeals reversed. Coleman v. City of Mesa, 228 Ariz. 240, 244 ¶ 1, 265 P.3d 422, 426 (App.2011). Citing Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1060 (9th Cir.2010), the court held that “obtaining a tattoo, applying a tattoo, and engaging in the business of tattooing” are “pure speech entitled to the highest level of protection” by the First Amendment and Article 2, Section 6 of Arizona's Constitution, 228 Ariz. at 244 ¶ 1, 265 P.3d at 426. The court of appeals further concluded that the Colemans had “sufficiently alleged claims for violations of their free speech, equal protection, and due process rights,” and the trial court had erred by dismissing the complaint without allowing the parties to develop a factual record. Id.

¶ 6 We granted Mesa's petition for review because this case involves issues of first impression and statewide importance regarding the free speech rights of tattoo artists and the authority of municipal governments to regulate the location of tattoo parlors.

II.

¶ 7 Dismissal of a complaint under Rule 12(b)(6) is reviewed de novo. We clarify the standard of appellate review here becauseour past statements have been inconsistent. In Dressler v. Morrison, 212 Ariz. 279, 281 ¶ 11, 130 P.3d 978, 980 (2006), the Court stated that an order granting a motion to dismiss is reviewed for abuse of discretion, citing Franzi v. Superior Court, 139 Ariz. 556, 561, 679 P.2d 1043, 1048 (1984). Franzi, however, involved a criminal proceeding rather than a motion to dismiss a civil pleading under Rule 12(b)(6). 139 Ariz. at 558, 679 P.2d at 1045.Dressler, moreover, recognized that issues of law are reviewed de novo. 212 Ariz. at 281 ¶ 11, 130 P.3d at 980.

¶ 8 Dismissal is appropriate under Rule 12(b)(6) only if “as a matter of law [ ] plaintiffs would not be entitled to relief under any interpretation of the facts susceptible of proof.” Fid. Sec. Life Ins. Co. v. State Dep't of Ins., 191 Ariz. 222, 224 ¶ 4, 954 P.2d 580, 582 (1998). Because questions of law are reviewed de novo, e.g., Wilmot v. Wilmot, 203 Ariz. 565, 569 ¶ 10, 58 P.3d 507, 511 (2002), the grant of a dismissal under Rule 12(b)(6) is reviewed de novo.

¶ 9 “Arizona follows a notice pleading standard.” Cullen v. Auto–Owners Ins. Co., 218 Ariz. 417, 419 ¶ 6, 189 P.3d 344, 346 (2008). In determining if a complaint states a claim on which relief can be granted, courts must assume the truth of all well-pleaded factual allegations and indulge all reasonable inferences from those facts, but mere conclusory statements are insufficient. Id. ¶ 7. [C]ourts look only to the pleading itself” when adjudicating a Rule 12(b)(6) motion. Id. If “matters outside the pleading” are considered, the motion must be treated as one for summary judgment. Ariz. R. Civ. P. 12(b)(6). A complaint's exhibits, or public records regarding matters referenced in a complaint, are not “outside the pleading,” and courts may consider such documents without converting a Rule 12(b)(6) motion into a summary judgment motion. See Strategic Dev. & Constr., Inc. v. 7th & Roosevelt Partners, LLC, 224 Ariz. 60, 63 ¶ 10, 64 ¶ 13, 226 P.3d 1046, 1049–50 (App.2010).

III.
A.

¶ 10 “Tattooing,” as used in this opinion, refers to:

mark[ing]the skin with any indelible design, letter, scroll, figure, symbol or any other mark that is placed by the aid of needles or other instruments upon or under the skin with any substance that will leave color under the skin and that cannot be removed, repaired or reconstructed without a surgical procedure.

A.R.S. § 13–3721(E)(2). Although tattooing has an ancient history and has been practiced in many different cultures, the modern process generally involves electronically powered tattoo machines that move a solid needle up and down to puncture the skin between 50 and 3,000 times per minute, depositing insoluble ink into the skin with each puncture. Anderson, 621 F.3d at 1055. Because the process involves puncturing the skin repeatedly, tattooing carries risks of infection and transmission of disease if done with unsterile equipment or in unsanitary conditions. Id. at 1056. When properly performed, tattooing generally is a safe procedure. Id.

¶ 11 Arizona does not extensively regulate the practice of tattooing. Persons who provide tattoos, referred to as tattoo artists, are not certified, licensed, or registered by the state. State law does, however, bar the use of needles that have not been properly sterilized, the reuse of needles, and the improper disposal of used needles. A.R.S. §§ 13–3721(A)(2), 44–1342. It is also unlawful to tattoo a minor unless the child's parent or legal guardian is present. Id. § 13–3721(A)(1).

¶ 12 The City of Mesa also imposes few regulations on tattooing. It does not certify, license, or register tattoo artists; nor does it generally regulate the manner in which tattoo parlors operate. Mesa provides that tattoo parlors cannot be within 1,200 feet of a school, another tattoo parlor, or a body piercing salon. Mesa City Code § 11–6–3(B)(2). (This location restriction is not at issue here.) Mesa additionally requires tattoo parlors to obtain a CUP. Id.

¶ 13 Under Mesa's zoning code, a CUP is a “discretionary authorization” that the City Council may issue if it finds, “through a public hearing that the proposed activity is in conformance with the intent of this Code, the General Plan, and/or other specified plans or Council policies and will be compatible with, and not detrimental to, adjacent properties or the neighborhood in general.” Id. § 11–1–6. A CUP may issue only after the City Council finds that the use will “be compatible with surrounding uses.” Id. § 11–6–3(B)(4). The parties agree that many tattoo studios operate in Mesa with city approval.

B.

¶ 14 We first consider whether the Colemans have stated a claim for relief based on the First Amendment or Article 2, Section 6 of Arizona's Constitution. The First Amendment proscribes laws “abridging the freedom of speech,” and Article 2, Section 6 of our state constitution declares that [e]very person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.” These provisions, the Colemans argue, protect the right of tattoo artists to engage in creative expression by operating tattoo parlors.

¶ 15 Mesa argues that we need not determine if tattooing is constitutionally protected...

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