Jucha v. City of Chi.

• Decision Date: 06 August 2014
• Docket Number: No. 13 C 8629,13 C 8629
• Citation: 63 F.Supp.3d 820
• Parties: Jeffrey Jucha, d/b/a 4 Anchors Tattoo, Plaintiff, v. City of North Chicago, Defendant.
• Court: U.S. District Court — Northern District of Illinois

63 F.Supp.3d 820

Jeffrey Jucha, d/b/a 4 Anchors Tattoo, Plaintiff

v.City of North Chicago, Defendant.

No. 13 C 8629

United States District Court, N.D. Illinois, Eastern Division.

Signed August 6, 2014

David G. Sigale, Law Firm of David G. Sigale, P.C., Glen Ellyn, IL, for Plaintiff.

Julie M. Koerner, O'Halloran Kosoff Geitner & Cook LLC, Jane Marie May, O'Halloran, Kosoff, Helander & Geitner, P.C., Northbrook, IL, for Defendant.

OPINION AND ORDER

Sara L. Ellis, United States District Judge

Plaintiff Jeffrey Jucha, a tattoo artist, sought to open his own tattoo parlor in the City of North Chicago, Illinois (the “City”). After Jucha failed to receive a permit from the City allowing him to open his tattoo parlor, he filed suit alleging that the City violated his and his customers' constitutional rights and seeking declaratory and injunctive relief pursuant to the First Amendment of the United States Constitution and the Fourteenth Amendment's Due Process Clause and Equal Protection Clause. Additionally, Jucha brings parallel claims under the Illinois Constitution. Now before the Court is the City's motion to dismiss the Complaint for failure to state a claim [11]. Because Jucha has not adequately pleaded the elements, the Court dismisses Jucha's federal and state law equal protection claims. But the Court denies the motion with regard to all other claims, because the Court finds that the First Amendment protects tattoos, the act of tattooing, and the business of tattooing. Further, the Complaint sufficiently alleges that the City violated Jucha's and his customers' First Amendment rights without providing due process of law.

BACKGROUND¹

Jucha owns and operates 4 Aces Tattoo Parlor and Body Piercing in Franklin Park, Illinois. Jucha sought to open a second studio, known as 4 Anchors Tattoo (“4 Anchors”), at 2314 Green Bay Road in North Chicago, Illinois. If allowed to open 4 Anchors, Jucha would “disseminate expressive body art in the form of the tattoos and body piercings it sells and applies to its customers.” Doc. 1 ¶ 4. Jucha has obtained a commitment from the owner of the property to provide Jucha with a lease if he receives necessary permitting from the City.

Under the City's zoning ordinance, body art establishments are presumptively not allowed. However, one such establishment currently operates within the City and has been allowed to remain open under a grandfather provision. In order to obtain permission to open 4 Anchors, Jucha sought a Special Use Permit from the City Council. On October 21, 2013, the City Council indefinitely tabled Jucha's application for a Special Use Permit, effectively denying him the opportunity to open 4 Anchors within the city limits. Jucha learned that his application failed because 4 Anchors was “not the kind of business” the City Council wanted in the City. Doc. 1 ¶ 9. The City Council also considered whether to amend the Zoning Ordinance to allow body art establishments, but this measure failed by a 5–2 vote. There was no public hearing with regard to Jucha's request for a Special Use Permit. The City Council did not hear any evidence or testimony with regard to the negative impact that might result from the presence of 4 Anchors in the City.

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed.R.Civ.P. 12(b)(6) ; Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir.2011). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

ANALYSIS

I. Standing

Although the City does not challenge Jucha's standing to sue on behalf of himself, it argues that Jucha lacks standing to sue on behalf of his potential customers. To establish standing, a plaintiff must show (1) an injury in fact, (2) a causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “Ordinarily, of course, people have no standing to assert the rights of third parties.” Perry v. Globe Auto Recycling, Inc., 227 F.3d 950, 953 (7th Cir.2000). “In the context of the First Amendment, however, ‘courts have taken a more liberal approach (under the prudential branch of the standing doctrines) to the ability of one party to assert the rights of another party.’ ” Covenant Media of Ill., L.L.C. v. City of Des Plaines, Ill., 391 F.Supp.2d 682, 687 (N.D.Ill.2005) (quoting United States v. Holm, 326 F.3d 872, 875 (7th Cir.2003) ). Parties challenging a statute on First Amendment grounds may represent the interests of third parties “whose protected expression is prohibited or substantially burdened by the regulation.” Schultz v. City of Cumberland, 228 F.3d 831, 848 (7th Cir.2000).

Additionally, businesses may represent their customers' constitutional rights. See Craig v. Boren, 429 U.S. 190, 195, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (beer vendors may challenge an alcohol regulation on equal protection grounds on behalf of their customers); Pierce v. Soc'y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 536, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (holding that a school may assert the rights of its students' parents, and gathering cases granting injunctions to businesses on behalf of customers); Ezell v. City of Chicago, 651 F.3d 684, 696 (7th Cir.2011) (owners of a firing range are allowed to sue on behalf of their customers in a Second Amendment challenge to a zoning ordinance). Therefore, the Court finds that Jucha has standing to sue the City on behalf of his customers.

II. First Amendment Claim

In Count I, Jucha alleges that the City violated his and his customers' free speech rights by denying his request to open a tattoo parlor within the City's limits. The City moves to dismiss on the basis that the First Amendment does not protect an individual's right to apply tattoos. The question now before the Court is whether the First Amendment protects tattoos, the act of tattooing, and the business of tattooing. The Court finds that it does.

There is no doubt that the First Amendment protects artistic expression. Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 602, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (“It goes without saying that artistic expression lies within this First Amendment protection.”); Hurley v. Irish–Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (noting that the “painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll” are “unquestionably shielded”). It is also clear that the First Amendment does not protect “expressive conduct” to the same extent that it protects the written or spoken word. See Texas v. Johnson, 491 U.S. 397, 406, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (“The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word.”); United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (rejecting “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea”). But the Supreme Court has repeatedly made clear that the First Amendment protects various media of expression, including symbols and other non-verbal expression. Hurley, 515 U.S. at 569, 115 S.Ct. 2338 (“[T]he Constitution looks beyond written or spoken words as mediums of expression.”); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (“Symbolism is a primitive but effective way of communicating ideas.”).

The Supreme Court reinforced this point in Brown v. Entertainment Merchants Association, ––– U.S. ––––, 131 S.Ct. 2729, 2737, 180 L.Ed.2d 708 (2011). In Brown, the video game industry brought a First Amendment challenge against a California law restricting the sale, rental, and labeling of violent video games. Id. at 2732–33. The Supreme Court began its analysis by noting that the state of California “correctly acknowledges that video games qualify for First Amendment protection.” Id. at 2733. The Supreme Court went on to make clear that the First Amendment is not limited to traditionally refined works that one might find in a museum or library, but that “[c]rudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny.”Id. at 2737 n. 4 ; see also Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 92 L.Ed. 840 (1948) ( “Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.”). Brown held that “[l]ike the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world).” Brown, 131 S.Ct. at 2733. Finally, Brown reiterated that “ ‘the basic principles of...