Yvon v. City of Oceanside, Case No.: 16-CV-1640-AJB-WVG

• Citation: 202 F.Supp.3d 1147
• Decision Date: 11 August 2016
• Docket Number: Case No.: 16-CV-1640-AJB-WVG
• Parties: Christopher YVON, Plaintiff, v. CITY OF OCEANSIDE, a California Municipal Corporation, Defendant.
• Court: U.S. District Court — Southern District of California

202 F.Supp.3d 1147

Christopher YVON, Plaintiff,

v.CITY OF OCEANSIDE, a California Municipal Corporation, Defendant.

Case No.: 16-CV-1640-AJB-WVG

United States District Court, S.D. California.

Signed August 11, 2016

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

Ted Steven Burke, Jr., Oceanside, CA, for Defendant.

ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

Hon. Anthony J. Battaglia, United States District Judge

Presently before the Court is Plaintiff Christopher Yvon's ("Yvon") motion for preliminary injunction.¹ (Doc. No. 3.) Defendant City of Oceanside ("City") opposes the motion. (Doc. Nos. 5, 10.) Having reviewed the parties' arguments and controlling authority, and pursuant to Local Civil Rule 7.1.d.1, the Court finds the matter suitable for decision on the papers, without oral argument. The Court GRANTS Yvon's motion.

BACKGROUND

Yvon is an individual seeking the City's approval to operate a tattoo studio at 609 Vista Way in Oceanside, California. (Doc. No. 1 ¶¶ 1, 9.) The location where Yvon seeks to open his studio is governed by the substantive provisions of the 1986 Zoning Ordinance and the administrative provisions of the 1992 Zoning Ordinance. (Doc. No. 5-3 ¶ 14.) Section 1500 of the 1986 Ordinance ("CUP regulation") requires persons seeking a business license to operate a tattoo business in Oceanside to obtain a conditional use permit ("CUP"). (Id. ¶ 10.) Yvon alleges that this regulation grants City officials unbridled discretion in determining whether to grant or deny a permit. (Id. ¶ 11.) Yvon further alleges the City does not require a CUP decision to issue within a specified brief period of time. (Id. ¶ 12.) For these reasons, Yvon alleges the CUP regulation constitutes an unconstitutional prior restraint. (Doc. No. 3-1 at 9–13.)

Because tattooing is classified as a "regulated use" by section 1500.21 of the 1986 Ordinance, criteria in addition to the CUP regulation are imposed. (Doc. No. 1 ¶ 12.) Specifically, section 1500.23 imposes a location restriction on regulated uses, requiring such businesses to be at least 200 feet from residential properties and 1000 feet from any other regulated uses ("buffer zone regulation"). (Id. ¶ 13.) Yvon alleges this regulation is an impermissible time, place, and manner restriction. (Doc. No. 3-1 at 13–15.)

Yvon alleges that his counsel contacted the City on November 24, 2015, requesting that he be allowed to open a tattoo shop without first applying for a CUP.² (Doc. No. 1 ¶ 14.) John Mullen, an attorney for the City, called Yvon's counsel informing him that while the City would not require Yvon to obtain a police permit, he would be required to obtain a CUP. (Id. ) In mid-June 2016, the City's planning division issued a staff report recommending that Yvon's CUP be denied. (Id. ¶ 15.)

Yvon alleges that the reasons given in support of the recommendation do not meet First Amendment requirements. (Id. ) Because of the City ordinances, Yvon alleges he has suffered the loss of his right to free speech as well as income he cannot earn due to his current inability to operate a tattoo business in the City.³ (Id. ¶ 16.) Yvon thus instituted this action by filing the operative complaint, bringing claims under 42 U.S.C. § 1983 for deprivation of his rights guaranteed by the First and Fourteenth Amendments of the United States Constitution, as well as deprivation of his right to free speech guaranteed by Article 1, Section 2 of the California state constitution. (Id. ¶¶ 17–23.)

Yvon filed the instant ex parte application on June 29, 2016. (Doc. No. 3.) The Court permitted the City an opportunity to oppose the application, which it did on July 5, 2016. (Doc. No. 5.) On July 6, 2016, Yvon filed a reply. (Doc. No. 6.) The Court denied Yvon's ex parte application to the extent he sought a TRO, but otherwise construed the application as a motion for preliminary injunction. (Doc. No. 9 at 3–4.) The Court permitted both sides an additional opportunity to further brief the propriety of this injunctive relief, which they did. (Doc. Nos. 10, 11.)

LEGAL STANDARD

A preliminary injunction is an "extraordinary remedy" and is "never awarded as of right." Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citing Munaf v. Geren , 553 U.S. 674, 689–90, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) ). To obtain this relief, the moving party bears the burden of demonstrating four factors: (1) "he is likely to succeed on the merits"; (2) "he is likely to suffer irreparable harm in the absence of preliminary relief"; (3) "the balance of equities tips in his favor"; and (4) "an injunction is in the public interest." Id. at 20, 129 S.Ct. 365 (citations omitted).

Although a plaintiff must satisfy all four of the Winter requirements, the Ninth Circuit employs a sliding scale whereby "the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another." Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1131 (9th Cir.2011). Accordingly, if the moving party can demonstrate the requisite likelihood of irreparable harm and show that an injunction is in the public interest, a TRO may issue so long as there are serious questions going to the merits and the balance of hardships tips sharply in the moving party's favor. Id.

DISCUSSION

I. Likelihood of Success on the Merits

The Ninth Circuit recently made clear that all aspects of tattooing are purely expressive activity entitled to the full protection of the First Amendment: "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." Anderson v. City of Hermosa Beach , 621 F.3d 1051, 1060 (9th Cir.2010) (emphasis in original). However, activity protected by the First Amendment may still be subjected to constitutional time, place, and manner restrictions. See City of Renton v. Playtime Theatres, Inc. , 475 U.S. 41, 49–50, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) ; see also 3570 E. Foothill Blvd., Inc. v. City of Pasadena , 912 F.Supp. 1268, 1273 (C.D.Cal.1996) ("despite the fact that adult entertainment is protected by the First Amendment, local governments do have the right to impose time, place, and manner restrictions").

Yvon challenges two provisions of the 1986 Ordinance and seeks an injunction preventing the City from enforcing them: (1) the buffer zone regulation, which requires all regulated uses, including some constitutionally protected activities like tattooing, to be at least 200 feet from any residential property and 1000 feet from any other regulated use; and (2) the CUP regulation, which requires an applicant to show, inter alia , that the proposed use "will not ... be detrimental to the health, safety, peace or general welfare of persons residing or working in the vicinity." (Doc. No. 5-12 at 3.)

A. Yvon's Standing to Facially Challenge the Ordinances

As an initial matter, Yvon argues he has standing to facially challenge the ordinances, notwithstanding his pending application. (Doc. No. 3-1 at 8–9.) Though the City does not dispute this contention, the Court is "under an independent obligation to examine [its] own jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional] doctrines." FW/PBS, Inc. v. City of Dallas , 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (quoting Allen v. Wright , 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) ).

Having reviewed Yvon's position and controlling legal authority, the Court agrees that Yvon has standing to facially challenge the ordinances. SeeCity of Lakewood v. Plain Dealer Pub. Co. , 486 U.S. 750, 755–56, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) ("our cases have long held that when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license" (citing Freedman v. Maryland , 380 U.S. 51, 56, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) )); Forsyth Cnty., Ga., v. Nationalist Movement , 505 U.S. 123, 129, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) ("It is well established that in the area of freedom of expression an overbroad regulation may be subject to facial review and invalidation[.]"); Dease v. City of Anaheim , 826 F.Supp. 336, 340 (C.D.Cal.1993) ("Plaintiff has standing to challenge the ordinance, regardless of whether she has applied for or would qualify for the CUP").⁴

B. Buffer Zone Regulation

"The power of local governments to zone and control land use is undoubtedly broad and its proper exercise is an essential aspect of achieving a satisfactory quality of life in both urban and rural communities. But the zoning power is not infinite and unchallengeable; it ‘must be exercised within constitutional limits.’ " Schad v. Borough of Mount Ephraim , 452 U.S. 61, 68, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981) (quoting Moore v. E. Cleveland , 431 U.S. 494, 514, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (Stevens, J. concurring)). The Supreme Court's decision in City of Renton v. Playtime Theatres, Inc. , 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), sets forth the three-part analytical framework courts must apply when assessing whether a challenged zoning ordinance constitutes a constitutional time, place, and manner restriction on speech. First, is the ordinance a total ban on speech? Id. at 46, 106 S.Ct. 925. Second, if the restriction is not a total ban, is the ordinance content neutral or content based? Id. at 46–47, 106 S.Ct. 925. Finally, if the restriction is content neutral, is the ordinance designed to serve a substantial government interest that is narrowly tailored, and do reasonable alternative avenues of communication remain available? Id. at 47, 106 S.Ct. 925 ; Members of City Council of...