Sentencia

JOHNNY ANDERSON vs. CITY OF HERMOSA BEACH, a California Municipal Corporation

OPINION

We hold that tattooing is purely expressive activity fully protected by the First Amendment, and that a total ban on such activity is not a reasonable “time, place, or manner” restriction.

I. BACKGROUND
Hermosa Beach Municipal Code (“Code”) § 17.06.070 effectively bans tattoo parlors.

A.Tattooing

Tattooing carries the risk of infection and transmission of disease “if unsanitary conditions are present or unsterile equipment is used.”

In general, however, “tattooing is a safe procedure if performed under appropriate sterilized conditions.”

B. Tattooing Regulations

Because of the potential health concerns implicated by tattooing, the State of California requires “[e]very personengaged in the business of tattooing . . . [to] register . . . with the county health department of the county in which that business is conducted,” and requires these county health departments to inspect the registered tattoo parlors, A person engaged in a tattooing business “who fails to register as provided by Section 119303 . . . [is] subject to a civil penalty of five hundred dollars ($500)per violation.”. Moreover, California makes it illegal to “tattoo[ ] or offer[ ] to tattoo a person under the age of 18 years.” The City of Hermosa Beach lies within the County of Los Angeles (“the County”). According to a declaration by Claro Cartagena, an inspector of tattoo establishments for the County, there are nearly 300 tattoo establishments in the County and over 850 tattooists. However,Cartagena is the only inspector in the County monitoring the parlors. Many tattoo parlors have never been inspected and are subject to no regulations other than the requirement to register with the County. Thus, it is largely up to the owner of the tattoo establishment to sterilize his equipment and follow sterilization procedures.

Although Los Angeles County generally permits tattooingbusinesses, the City of Hermosa Beach does not. Hermosa Beach Municipal Code § 17.06.070 provides: “Except as provided in this title, no building shall be erected, reconstructed or structurally altered, nor shall any building or land be used for any purpose except as hereinafter specifically provided and allowed in the same zone in which such building and land is located.” The Code provides zoning for awide variety of commercial uses, including movie theaters, restaurants, adult businesses, bars, fortune tellers, gun shops, and youth hostels. HERMOSA BEACH MUN. CODE § 17.26.030. No provision of the zoning code, however, permits tattoo parlors, and as a result, these facilities are banned from Hermosa Beach under section 17.060.070. Indeed, on November 20, 2007, the City’s Planning Commissionadopted a resolution against amending the Code to permit tattoo parlors.

C. Facts and Procedural History

Plaintiff-Appellant Johnny Anderson presently co-owns a tattoo parlor in the City of Los Angeles, and seeks to establish a tattoo parlor in the City of Hermosa Beach.

The court “conclude[d] that the act of tattooing is not protected expression under the First Amendment because, althoughit is non-verbal conduct expressive of an idea, it is not ‘sufficiently imbued with the elements of communication’ ” to receive First Amendment protection.

II. FIRST AMENDMENT FRAMEWORK

The First Amendment, applied to the states through the Fourteenth Amendment, prohibits laws “abridging the freedom of speech.” I. The First Amendment clearly includes pure speech, but not everything thatcommunicates an idea counts as “speech” for First Amendment purposes.

Accordingly, our analysis proceeds as follows. Our first task is to determine whether tattooing is (1) purely expressive activity or (2) conduct that merely contains an expressive component.

III. ANALYSIS

We hold that Hermosa Beach Municipal Code § 17.06.070 is facially unconstitutional to the extent that it excludes...