Arizona Supreme Court to take up Mesa tattoo parlor case - East Valley Tribune: Business

Arizona Supreme Court to take up Mesa tattoo parlor case

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Posted: Friday, February 17, 2012 12:46 pm | Updated: 1:30 pm, Wed Feb 22, 2012.

The Arizona Supreme Court will take up a Mesa tattoo parlor case in which a lower court ruled that cities can no longer use long-established regulations to block where certain types of businesses can locate.

The court will hear oral arguments March 27. Mesa asked the court to hear the case after a three-judge panel of the Arizona Court of Appeals ruled that tattoo parlors are entitled to the same First Amendment protections as the artwork they produce. Mesa officials said the ruling was much broader than a single tattoo shop and could change land-use restrictions across Arizona.

Mesa turned down a request in 2009 from Angel Tattoo after Dobson Ranch residents said the tattoo parlor was incompatible with the area.

Mesa Councilman Dennis Kavanaugh represents the Dobson Ranch area and said his background as an attorney led him to expect the Supreme Court would take the case. Kavanaugh said courts across the nation had ruled in the opposite direction of the appellate court's decision. That ruling would bring substantial changes if left unchallenged, he said.

"If you take this Court of Appeals case to its logical extreme, they said tattoo free speech is of such high importance that basically they can go anywhere in the city they want to," he said.

The court's unanimous ruling on Nov. 3, 2011, said cities can consider citizen viewpoints in deciding whether a business is an appropriate fit in a neighborhood. But the ruling said the city could not deny a permit to a tattoo parlor "based soley on neighborhood hostility born from perceptions about tattoo parlors that may or may not be accurate.''

"If this was permitted, unpopular speech could be silenced easily under the guise of land use planning,'' the ruling said.

Mesa ordinances require some kinds of businesses, including tattoo parlors, to get special use permits before operating. The requirements include being at least 1,200 feet from existing tattoo shops or schools and that they are "compatible with surrounding uses." The City Council has final say on the permits.

Mesa voted 6-1 against Angel Tattoo, owned by Ryan and Laetitia Coleman.

Attorney Michael Kielsky represents the Colemans, and said the case is about more than free speech. He said Mesa was "arbitrary and capricious" when it denied a permit. He said it's wrong the city requires tattoo parlors to sign a lease, pay rent and make improvements before they can apply for a permit and then see if they will get approval. Kielsky said the city was "arbitrary and capricious" in reviewing the application.

"It's about does the city have the power to simply say, "Eh, we don't feel like it. We don't like you,'" Kielskly said. "They can't do that. You've got to have standards. Once they are met, you've got to issue the permit."

Kavanaugh said the appeals court ignored some issues, like Angel Tattoo starting construction without a permit and violating city codes. But he said he looks forward to the high court's ruling even if he may not like the decision.

"Regardless of the outcome, there will be some finality so we know how the game is going to be played in the future," he said.

Kielsky said he couldn't predict the outcome. Nor could he say if the Colemans would apply again for a permit if the court rules in their favor. They spent $40,000 to $50,000 on the shop alone and also have legal expenses, Kielsky said.

"At the end of the day, it's going to have to be a business decision," he said.

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