Weaver v. City of Montebello, Case No. CV 19-1585-DMG (FFMx)

Decision Date02 April 2019
Docket NumberCase No. CV 19-1585-DMG (FFMx)
Citation370 F.Supp.3d 1130
CourtU.S. District Court — Central District of California

Robert C. Moest, Robert C. Moest Law Offices, Santa Monica, CA, for Plaintiff.


This matter is before the Court on Plaintiff Katherine Weaver's Motion for Preliminary Injunction. [Doc. # 7.] Plaintiff requests that the Court enjoin Defendant City of Montebello from enforcing certain zoning ordinances that "require tattoo business[es] to apply for a conditional use permit and exclude[ ] them ... from almost all commercial locations in the City." [Doc. # 7-1 ("TRO Application") at 1.] Plaintiff filed an Ex Parte Application for Temporary Restraining Order ("TRO") and Order to Show Cause ("OSC") re Preliminary Injunction on March 14, 2019. [Doc. # 7.] Defendant did not oppose it. The Court granted Plaintiff's Application and issued an OSC re Plaintiff's Motion for Preliminary Injunction ("MPI") on March 19, 2019. [Doc. # 13 ("TRO Order").] The TRO Order required Defendant to file any opposition it had to the MPI by March 25, 2019. Once again, Defendant filed no written response. On April 2, 2019, the Court held a hearing on the OSC, at which Defendant appeared.


Plaintiff seeks to open a tattoo studio. [Doc. # 7-3 ("Weaver Decl.") at ¶ 2.] She has a business model in mind and has located an "appropriate site" to open up shop on Beverly Boulevard in Montebello, California. Id. at ¶ 3. Montebello has zoned her chosen area for general commercial use (in a zone designated as C-2). Id. The city, however, prohibits "body art establishments," including tattoo studios from operating within 1,000 feet of certain "sensitive uses," such as residences, schools, "places of religious assembly," libraries, public parks, or any city-owned facility. TRO Application at 5; Montebello Mun. Code § 17.08.835. The effect of the 1,000-foot rule, as city officials demonstrated to Plaintiff, is that Montebello's zoning code only permits tattoo shops to operate in two small "shopping centers" in the northeast corner of the city. Weaver Decl. at ¶ 5. According to Plaintiff, shopping centers are not ideal locations for tattoo studios because they generally do not "welcome" tattoo businesses, which do not attract much foot-traffic and cannot afford the high rents. Id. at ¶ 6.

Even if Plaintiff decided to open her studio in one of the two shopping centers, she would first have to obtain a conditional use permit ("CUP"). TRO Application at 5. Montebello's Municipal Code requires that "[w]hen an application has been filed for a ... conditional use permit or any other action requiring a public hearing ... [t]he date for the public hearing shall be set by the city planner and shall be held as soon as possible following receipt of the complete application." Montebello Mun. Code § 17.78.020. The Code requires that:

Before any conditional use permit shall be granted, all of the following findings must be made:
A. That the site for the proposed use is adequate in size and shape;
B. That the site has sufficient access to streets and highways, and is adequate in width and pavement type to carry the quantity and quality of traffic generated by the proposed use;
C. That the proposed use will not have an adverse effect upon adjacent or abutting properties; andD. That the proposed use is consistent with the objectives of the community redevelopment project area in which the site is located.

Id. § 17.70.070. The planning commission must, within "twenty days after completion of the public hearing" on the CUP "announce its findings in a formal resolution." Id. at § 17.70.110(A). The commission must state "the facts and reasons which ... make the granting of the conditional use permit necessary to carry out the general purpose of this code." Id. at § 17.70.110(B).1 The resolution must also "set forth those conditions necessary to [e]nsure that granting the conditional use permit will not adversely affect the surrounding properties nor the general welfare of the community." Id.

Operating a tattoo studio in violation of the Code is a misdemeanor, punishable by six months in jail and a $ 1,000 fine. Weaver Decl. at ¶ 9. Plaintiff claims Montebello's zoning scheme "effectively excludes tattoo businesses from the entire city." Id. at ¶ 7. As a result, she argues that Montebello's CUP regime amounts to an unconstitutional prior restraint on First Amendment-protected speech, both facially and as applied to her, because: (1) it vests city officials with "unbridled discretion" to restrict speech; and (2) it does not include sufficient procedural safeguards to prevent abuses of the CUP regime. TRO Application at 6-9. She also argues that Montebello's general zoning restrictions violate the First Amendment.


Federal Rule of Civil Procedure 65 governs the issuance of TROs and preliminary injunctions, and courts apply the same standard to both. See Credit Bureau Connection, Inc. v. Pardini , 726 F.Supp.2d 1107, 1114 (E.D. Cal. 2010) (citing Ne. Ohio Coal. for the Homeless v. Blackwell , 467 F.3d 999, 1009 (6th Cir. 2006) ). Plaintiffs seeking injunctive relief must show that: (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Toyo Tire Holdings of Ams. Inc. v. Cont'l Tire N. Am., Inc. , 609 F.3d 975, 982 (9th Cir. 2010) (citing Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ). An injunction is also appropriate when a plaintiff raises "serious questions going to the merits," demonstrates that "the balance of hardships tips sharply in the plaintiff's favor," and "shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1135 (9th Cir. 2011) (quoting The Lands Council v. McNair , 537 F.3d 981, 987 (9th Cir. 2008) ).

A. Likelihood of Success on the Merits

As a preliminary matter, operating a tattoo studio is protected First Amendment activity. Anderson v. City of Hermosa Beach , 621 F.3d 1051, 1060 (9th Cir. 2010) ("The tattoo itself , the process of tattooing, and even the business of tattooing are not expressive conduct but purely expressive activity fully protected by the First Amendment."). Accordingly, Plaintiff has standing to pursue facial and as-applied challenges to Montebello's zoning requirements. Real v. City of Long Beach , 852 F.3d 929, 933 (9th Cir. 2017) (concluding plaintiff, a tattoo shop owner, could bring a facial First Amendment challenge to a CUP scheme "when he argue[d] that an ordinance ... impermissibly restricts a protected activity.") (internal quotes and brackets omitted); Santa Monica Food Not Bombs v. City of Santa Monica , 450 F.3d 1022, 1033–34 (9th Cir. 2006).

1. Montebello's CUP Requirement Likely Vests Officials with Unbridled Discretion

Prior restraints on First Amendment speech are not "per se unconstitutional," but "any system of prior restraint comes to [the court] bearing a heavy presumption against its constitutional validity." Epona v. Cty. of Ventura , 876 F.3d 1214, 1222 (9th Cir. 2017) (citing FW/PBS, Inc. v. City of Dallas , 493 U.S. 215, 225, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) ). Any ordinance that "makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official—as by requiring a permit or license which may be granted or withheld in the discretion of such official—is an unconstitutional censorship or prior restraint." Id. (quoting Shuttlesworth v. City of Birmingham , 394 U.S. 147, 151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) ). Zoning requirements, such as the ones at issue here, qualify as "ordinances" under Shuttlesworth. Schad v. Borough of Mount Ephraim , 452 U.S. 61, 68, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981) ("But the zoning power is not infinite and unchallengeable; it ‘must be exercised within constitutional limits.’ ").

To avoid giving officials an unconstitutional amount of discretion, a "law subjecting the exercise of First Amendment freedoms to the prior restraint of a license" must set forth "narrow, objective, and definite standards to guide the licensing authority." Epona , 876 F.3d at 1222. In other words, laws without such definite guidelines pose a "threat of content-based, discriminatory enforcement." G.K. Ltd. Travel v. City of Lake Oswego , 436 F.3d 1064, 1082 (9th Cir. 2006). In Epona , the Ninth Circuit fixed guideposts for district courts evaluating a prior restraint's constitutionality. On one end of the spectrum, the Ninth Circuit has held unconstitutional a law that: (1) included only "abstract language," such as requirements that structures may not "have a harmful effect upon the health or welfare of the general public" or be "detrimental to the welfare of the general public ... [or] to the aesthetic quality of the community or the surrounding land uses"; and (2) lacked "any requirement that officials provide some evidence to support the conclusion that a particular structure or sign is detrimental to the community." Id. at 1223.

On the other end, the Ninth Circuit has approved of a city's "sign code" that: (1) used abstract terms, but provided specific definitions for those terms elsewhere in the code; and (2) "provided additional safeguards by requiring that officials render application decisions within a limited time period and state the reasons for [each] decision to either grant or deny a permit so as to facilitate effective review." Id. at 1223 (internal citations omitted). It then recognized that some cases may fall between these two data points and emphasized that ...

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