Hold Fast Tattoo, LLC v. City of North Chicago, No. 07 C 4479.

• Court: United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
• Writing for the Court: James B. Moran
• Citation: 580 F.Supp.2d 656
• Parties: HOLD FAST TATTOO, LLC, Plaintiff, v. CITY OF NORTH CHICAGO, a Body politic and corporate, Defendant.
• Docket Number: No. 07 C 4479.
• Decision Date: 07 March 2008

580 F.Supp.2d 656 HOLD FAST TATTOO, LLC, Plaintiff,
v.
CITY OF NORTH CHICAGO, a Body politic and corporate, Defendant. No. 07 C 4479. United States District Court, N.D. Illinois, Eastern Division. March 7, 2008.

Page 657

COPYRIGHT MATERIAL OMITTED

Page 658

Wayne B. Giampietro, Stitt, Klein, Daday & Aretos, Rolling Meadows, IL, for Plaintiff.

Jane Marie May, Clifford Gary Kosoff, Joshua S. Abern, O'Halloran Kosoff Geitner & Cook, Northbrook, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES B. MORAN, Senior District Judge.

Defendant City of North Chicago moves under FRCP 12(b)(1) and 12(b)(6) to dismiss the complaint of plaintiff, Hold Fast Tattoo. For reasons hereinafter stated, plaintiffs complaint is dismissed.

BACKGROUND

In ruling on defendant's motion, we accept as true all facts alleged in plaintiff's complaint and draw all reasonable inferences in favor of plaintiff. St. John's United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir.2007) (12(b)(1) motion); McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006) (12(b)(6) motion).

Hold Fast Tattoo wishes to open a tattoo studio on North Sheridan Road in the City of North Chicago and has obtained a prospective lessor at its desired location. In accordance with North Chicago's zoning ordinance, Hold Fast Tattoo applied for a special use permit to operate a tattoo studio at that location. On June 21, 2007, the Zoning Board of Appeals of North Chicago recommended approval of the permit to its city council. The proposal was apparently discussed at two council meetings, on 7/9/07 and 7/16/07, and plaintiff's request for a special use permit was ultimately denied. The city council informed plaintiff that its special use permit was denied because it was "not the kind of business" the council wanted in North Chicago (cplt.¶ 11).

Plaintiff requests that the court declare defendant's refusal to issue a special use permit unconstitutional, and that it enjoin defendant from enforcing the zoning ordinance. The complaint identifies four purported constitutional violations. In Count I, plaintiff alleges that defendant, by denying his application for a special use permit, violated his right to equal protection, substantive due process and procedural due process. In Count II, plaintiff alleges that defendant's zoning ordinance is an unconstitutional exercise of the state's police

Page 659

power on its face and as applied to plaintiff.

ANALYSIS

This court has jurisdiction over the subject matter of this action under 28 U.S.C. § 1331 because plaintiff has alleged constitutional violations. We also have subject matter jurisdiction under 28 U.S.C. § 1343(a)(3) and (4) because plaintiff has brought suit to redress the claimed deprivation of constitutional rights and to recover damages for alleged constitutional violations pursuant to 28 U.S.C. § 1983.

I. 12(b)(1) Motion to Dismiss Due Process Claims for Lack of Standing

We address defendant's 12(b)(1) motion first: subject matter jurisdiction "must be the first issue in every federal suit." Lear Corp. v. Johnson Elec. Holdings Ltd., 353 F.3d 580, 582 (7th Cir.2003). Defendant argues that plaintiff's due process claim is not yet ripe because it has not exhausted its state remedies for its constitutional property rights claim.

The exhaustion of state remedies is only required when the plaintiff alleges a due process violation in connection with a constitutional takings claim violating the Fifth Amendment. Greenfield Mills, Inc. v. Macklin, 361 F.3d 934, 961 (7th Cir. 2004). However, plaintiff here has not alleged a taking without just compensation and the Fifth Amendment is "nowhere invoked." Behavioral Inst. of Ind. v. Hobart City Common Council, 406 F.3d 926, 931 (7th Cir.2005).

Hold Fast Tattoo's claim, brought under 42 U.S.C. § 1983, has no exhaustion requirement. Id. at 931 n. 2. North Chicago's 12(b) (1) motion to dismiss the due process claims for lack of standing is denied.

II. Defendant's 12(b)(6) Motion to Dismiss

We turn next to defendant's motion to dismiss under 12(b)(6) for failure to state a claim upon which relief can be granted. If plaintiffs complaint gives defendant fair notice of the claims and the grounds upon which it rests, defendant's motion will be denied. EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir.2007) (synthesizing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) and Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The complaint must also plausibly suggest that plaintiff has more than a speculative right to relief. Id.

A. Equal Protection Claim

It appears from the complaint that plaintiff proceeds under the "fundamental right" theory of equal protection. Specifically, plaintiff asserts that defendant's actions violated his right to free speech under the First Amendment.

Plaintiff argues that its right to draw tattoos is protected by the First Amendment Free Speech Clause. The nature of the right to draw tattoos is a question that has not been directly addressed by the Seventh Circuit nor the Supreme Court. However, we are persuaded by related authority, as well as the decisions of numerous other courts, that the act of tattooing is not constitutionallyprotected free speech.

The First Amendment protects speech. It also protects expressive conduct, as long as the conduct is "sufficiently imbued with elements of communication to fall within the scope" of the First Amendment. Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974). To determine whether an activity warrants First Amendment protection, the

Page 660

court must determine whether there was intent to convey a particularized message and whether there is a great likelihood that the message would be understood by those who view it. Miller v. Civil City of South Bend, 904 F.2d 1081, 1086 (7th Cir. 1990) (citing Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)).

The act of tattooing fails the first prong of this test because the act itself is not intended to convey a particularized message. The very nature of the tattoo artist is to custom-tailor a different or unique message for each customer to wear on the skin. The act of tattooing is one step removed from actual expressive conduct, which is similar to a sound truck, which enables each customer to express a particularized message, but the sound truck vehicle itself is not expressive. The Supreme Court, in R.A.V. v. St. Paul, noted that a noisy sound truck is a "mode of speech" because it can be used to convey a message, but "in and of itself" it is not protected by the First Amendment. 505 U.S. 377, 386, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (quoting Niemotko v. Maryland, 340 U.S. 268, 282, 71 S.Ct. 328, 95 L.Ed. 280 (1951)). Similarly, the tattoo artist's daily work may be used by customers to convey a message, but it is not protected by the First Amendment in and of itself. Because the act of tattooing fails the first prong of the test for First Amendment protection, there is no "message" to be understood by viewers and tattooing must also fail the second prong....