Case of the Week: Ninth Circuit Holds that Failure to Provide Zoning District for Tattoo Parlor Violates First Amendment.

Posted By Cliff Tuttle | October 2, 2010

No. 510

HERNANDO BEACH INK.

The Ninth Circuit Court of Appeals recently ruled that the failure of the City of Hernando Beach, California to provide a district where tattoo parlors could be located constituted a de facto ban on that form of expression and thus violated the First Amendment.

As any fan of LA Ink can tell you, the tattoo is an ancient and venerable form of self-expression.  The patrons of LA Ink frequently have a message that they wish to convey to the world by the artwork that is indelibly engraved on their bodies.  However, at least in Pennsylvania, a tattoo parlor would probably win this case without resort to the First Amendment, assuming that the facts were otherwise favorable.

In Pennsylvania, “the fair share principle” requires a local political unit to plan for and provide land use regulations which meet the legitimate needs of all categories of people who may desire to live within its boundaries. Surrick v. Zoning Hearing Board of Upper Providence, 476 Pa. 182, 382 A.2d 105 (1977) The Surrick case, which stands for the principle that a de facto exclusion of a land use within a political subdivision  must serve the public interest, has been cited in least 274 cases, plus numerous treatises and articles on zoning. The opponent of a tattoo parlor would have the burden of proving that such a use is contrary to the public health, safety and welfare. Courts outside Pennsylvania, including the Seventh Circuit and the Virginia Supreme Court have upheld the exclusion of tattoo parlors on public welfare grounds.

CLT

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CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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