Yurkew v. Sinclair

• Decision Date: 31 July 1980
• Docket Number: Civ. No. 4-80-239.
• Citation: 495 F. Supp. 1248
• Parties: David A. YURKEW, Sr., Plaintiff, v. James SINCLAIR, Individually and as Space Rental Superintendent of the Minnesota State Fair, William Korff, Michael Heffron, Norris Carnes, Lawrence Haeg, William Lilliquist, Sulo Ojakangas, Eileen Roehlke, Logan Scow, Arthur Springler, J. Tiffany, Individually and members of the Board of Managers of the Minnesota State Fair, and the Minnesota State Agricultural Society, Defendants.
• Court: U.S. District Court — District of Minnesota

495 F. Supp. 1248

David A. YURKEW, Sr., Plaintiff, v. James SINCLAIR, Individually and as Space Rental Superintendent of the Minnesota State Fair, William Korff, Michael Heffron, Norris Carnes, Lawrence Haeg, William Lilliquist, Sulo Ojakangas, Eileen Roehlke, Logan Scow, Arthur Springler, J. Tiffany, Individually and members of the Board of Managers of the Minnesota State Fair, and the Minnesota State Agricultural Society, Defendants.

Civ. No. 4-80-239.

United States District Court, D. Minnesota, Fourth Division.

July 31, 1980.

Laurie Savran and Barbara H. Nevin, Minneapolis, Minn., for plaintiff.

Jonathan Adams, Minneapolis, Minn., and Linda M. Ojala (of counsel), Minneapolis, Minn., for amicus curiae Minnesota Civil Liberties Union.

Warren Spannaus, Atty. Gen., and William P. Marshall, Sp. Asst. Atty. Gen., St. Paul, Minn., for defendants.

MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.

This is an action brought by plaintiff David Yurkew, Sr., a commercial tattooist, pursuant to 42 U.S.C. § 1983,¹ which challenges the refusal of the Minnesota State Fair Board of Managers to rent plaintiff space for commercial tattooing at the 1978, 1979 and 1980 state fairs. The plaintiff's sole contention is that the decision of the State Fair's Board of Managers violates his First Amendment rights, as applied to the states by the Fourteenth Amendment. Basically, plaintiff contends that he is an artist, that tattoo is an art form, that the process of creating a tattoo is protected First Amendment activity, that the State Fair is a public forum for purposes of the First Amendment, and that the defendants' refusal to rent him space at the fair amounts to an unlawful and unconstitutional prior restraint. The defendants dispute the notion that the process of tattooing is protected by the First Amendment, and argue alternatively that the interests of the State in protecting the health of fair patrons, as well as the protection of consumers, justify the exclusion of tattooing from the fair. Minnesota has not prohibited the practice of tattooing, and has left the subject of regulation or prohibition of the practice to local governments.

This action seeks both injunctive relief insofar as the 1980 state fair is concerned, and damages for the refusal of defendants to allow plaintiff to rent space at the 1978 and 1979 Minnesota State Fair. The plaintiff initially moved for a preliminary injunction to compel defendants to provide space to plaintiff for the 1980 fair, and counsel for all parties have consented to the Court's treatment of the motion as a request for a permanent injunction. The defendants have moved for summary judgment on the entire case, and argue that the process of tattooing is not protected by the First Amendment. As plaintiff has moved for injunctive relief, the following memorandum constitutes the Court's findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52(a). The parties have entered into a stipulation of facts, and both plaintiff and defendants have submitted affidavits on various matters.²

The parties' "Stipulation of Facts," insofar as it bears on the factual matters in issue here, reads as follows:

1. Plaintiff, David A. Yurkew, Sr., is a tattooist. He practices his profession in a studio entitled "Tattooing by Yurkew," located at 3127 Nicollet Avenue South, Minneapolis, Minnesota, 55408.

2. Plaintiff has been duly licensed as a tattooist by the City of Minneapolis for four years under Minneapolis City Ordinance Chapter 339, "Tattooing." Plaintiff has incurred no violation of Chapter 339.

3. On June 12, 1978, Plaintiff applied to the Minnesota State Fair to request rental space to tattoo patrons of the 1978 Minnesota State Fair.

4. Plaintiff's request was denied in the summer of 1978.

5. On or about February 6, 1979, Plaintiff applied to the Minnesota State Fair to request rental space for the 1979 Fair.

6. On or about June 20, 1979, the State Fair by Defendant James Sinclair sent plaintiff a letter denying plaintiff's request for rental space for the 1979 season.

7. Plaintiff appealed the denial of his request to rent space at the 1979 Fair. He based his appeal on the Minnesota State Fair policy which states that "any space rental applicant adversely affected by a decision of the Space Rental Department shall have the right to petition the Space Rental Review Committee for review of such decision." A hearing was held pursuant to the appeal.

8. On or about July 13, 1979, defendant William Korff, Chairman, Space Rental Review Committee, sent plaintiff a letter denying plaintiff's request for space. The letter stated that "the Board of Managers has determined that tattooing should not be permitted on the fair-grounds."

9. On or about January 4, 1980, plaintiff called the Minnesota State Fair Space Rental Department requesting an application for the 1980 Minnesota State Fair. During this conversation plaintiff was informed by James Sinclair that tattooing would again not be allowed at the Minnesota State Fair.

10. On or about January 4, 1980, defendants sic James Sinclair, sent plaintiff a letter stating that "the State Fair has a basic administrative policy which does not allow us to contract space for tattooing during the State Fair. This policy was recently confirmed by the Space Rental Committee of our Board of Managers in June of 1979, and we feel it only appropriate that we advise you as such and indicate at this time that we will be unable to offer you the opportunity to apply for space if you desire to conduct such activities at the 1980 Fair."

11. Some art forms are both sold and exhibited from booth space at the Minnesota State Fair.

12. Tattooing requires sterile instruments and surroundings to minimize the dangers of infection and transmission of disease.

13. Tattoos cannot be removed by means other than a surgical procedure. Not all tattoos can be removed by this procedure.

The legislature has delegated certain powers in connection with the State Fair to the Minnesota Agricultural Society, a state agency responsible for the operations of the fair. In Minn.Stat. § 37.16, the Minnesota Agricultural Society is authorized to:

make all bylaws, ordinances, and rules, not inconsistent with law, which it may deem necessary or proper for the government of the fairgrounds and all fairs to be held thereon, and for the protection, health, safety, and comfort of the public thereon; the same to be in effect from the time of filing with the secretary of the society. The violation of a bylaw, rule, or ordinance promulgated by the society is a misdemeanor.

Minn.Stat. § 37.17, subd. 1, provides that the society:

may license and regulate all shows, exhibitions, performances, and privileges on the fairgrounds, and revoke any such licenses, and prohibit, remove, and summarily stop all exhibitions, performances, or privileges which it may deem offensive to good morals or which are contrary to law.

The two most pertinent rules and regulations of the Minnesota Agricultural Society, which govern the Board of Managers of the State Fair, provide as follows:

RULE 11.32 The Management reserves the right to deny acceptance of or prohibit the showing of any exhibit, animal, concession or show that may be falsely entered or represented; or to deny acceptance of or prohibit the showing of an exhibit, animal, concession or show, or to remove any sign, banner, display material or advertising matter if such exhibit and/or display is contrary to law, or violative of the Society's valid interest in providing for the health, safety and/or protection of the fairgoing public. Further, the Management reserves the right to cancel any contract upon receipt of notice from any fair holding membership in the International Association of Fairs and Expositions and/or the Western Fairs Association, that the exhibitor or concessionaire has been suspended, expelled from or otherwise penalized for violation of contract terms or rules of said member. (1-27-71)

RULE 11.33 The Society recognizes that the State Fair is a proper forum for the free exchange of ideas necessary to a free society, yet reserves the right to regulate and license all concessions and exhibitions on the fairgrounds with regard to time, manner and place in pursuance of its valid interest in maintaining peace and order and in the protection of the general public. (1-27-71)

The policy adopted by the State Fair Board of Managers which prohibits tattooing was apparently developed in response to plaintiff's 1979 application to rent space at the fair. This same policy was invoked by defendants to deny plaintiff rental space at the 1980 fair. In a letter written by V. James Sinclair, plaintiff was informed of the rejection of his request to rent exhibitor's space at the fair for 1980. In that letter, Sinclair noted that it would be permissible, although available space was "minimal," for plaintiff to exhibit "the services plaintiff is able to provide," as long as he did not engage in the process of tattooing. The "services" referred to in the Sinclair letter which the defendants would allow plaintiff to exhibit at the fair apparently relate to a display of tattoo images through photographs, illustrations or actual recipients. In an affidavit, the plaintiff has indicated that this latter proposal was unacceptable.

The Minnesota State Fair is an annual event which takes place in Falcon Heights, Minnesota during the late summer. Over one million people attended the 1978 state fair and the attendance for the 1979 state fair amounted to 1,405,669. At the 1979 fair, there were approximately 1,100 concessionaires and exhibitors. For the last two years, there were more applicants for exhibitor space at the fair than there was actual physical rental space available. The number of new applicants for the 1978 fair amounted to 584, while for 1979, the number of new applicants totaled 750. A variety of different exhibitions are rented space...