With legal arguments in recent days over a proposed Mesa tattoo business, looks like “time, place and manner” is getting more, please pardon the pun, ink in the East Valley.
A few weeks ago, the argument over the proper “time, place and manner” — a legal term for when the government can properly regulate speech or expression — was regarding when roadside signs in the campaign over the recall of state Sen. Russell Pearce, R-Mesa, could go up.
“Time, place and manner” arguments are also flying about tattoos, tattooing, and tattoo businesses.
Once, the sight of someone wearing a tattoo who hadn’t spent time in, say, either the Navy or in an outlaw gang was considered scandalous and inappropriate around decent people.
It’s almost impossible to make that claim any more, but a Mesa couple is fighting the application of that view in state appellate court.
Thursday’s edition of the Arizona State University campus newspaper, State Press, wrote about Ryan and Laetitia Coleman.
It reported that the Arizona Court of Appeals heard their appeal Sept. 15 of a Maricopa County Superior Court decision. The appellate court agreed with the lower court’s ruling that in 2009 the City Council legally denied the Colemans a permit to open a tattoo shop at Dobson and Baseline roads.
Of course, today a large part of the population, perhaps even a majority, still finds tattoos unattractive and something they wouldn’t have on their own bodies.
The same could be said about leisure suits and platform shoes, of course, but it’s a safe bet that if someone wanted to open a shop today that sold them, the city wouldn’t deny him or her a permit.
Times have definitely changed regarding tattoos. All kinds of people from college students to grandparents wear them. Certainly a de facto argument can no longer be made that a place where you can get a tattoo is automatically bad for the neighborhood.
Now, all the increased numbers of tattoos of late just didn’t appear on these people’s bodies. You have to get one somewhere, which means that in recent years more businesses have opened that affix them to paying customers.
When lawsuits are filed by businesses of a type that for a variety of reasons raise the moral hackles of a segment of the community, the businesses often present at least two arguments: First, what they do is legal. Second, denial of a permit based on unfounded predictions of what might result form an unconstitutional government intrusion, called prior restraint, based on the content of their form of expression.
The Tribune reported in March 2010 that the Colemans’ lawsuit filed that month was based on such First Amendment grounds, essentially that one or more tattoos on one’s body is protected by the Bill of Rights as a form of free expression.
By extension, go arguments such as this, a tattoo shop should have the right to exist, certainly also based on a lack of evidence that such an establishment would negatively impact the surrounding area.
The 9th U.S. Circuit Court of Appeals addressed this connection in September 2010 regarding an ordinance in Hermosa Beach, Calif. Unlike Mesa, which decides such questions case by case, Hermosa Beach’s ordinance banned all tattoo parlors, which the federal appellate court found unconstitutional.
The appellate judges found no separation of tattooing, a form of free expression, from the business of a tattoo shop as an extension of that freedom:
That is what the Arizona Court of Appeals will be considering now that the federal appellate court has ruled: Is a prediction of potential harm to property values or increased crime — also rights found in the Bill of Rights — enough to overcome the right of free expression?
As the Tribune reported in March 2010, Mesa approved Damage Ink tattoo shop on Alma School Road in 2006, even over similar arguments as above from neighbors, as Mesa doesn’t ban these establishments outright.
More to the point, as also was reported in the same story, a Maricopa County Superior Court judge ordered Tempe to reinstate a permit for a tattoo business in that city due to lack of solid evidence that it would result in neighborhood decline.
Maybe this issue has become less important due to recent economic events.
That is, perhaps in 2009 East Valley property values were still enviable enough for people to complain to the city about possible negative effects on them. The subsequent housing collapse and recession have certainly done more to property values than the proximity of just about any legal business.
Which makes me wonder, if this shop were proposed today, would the Mesa City Council still have turned it down?
• Mark J. Scarp (email@example.com) is a Tribune contributing columnist whose opinions appear here on Sundays.