by Gary Nelson - Sept. 17, 2012 12:50 PM
The Republic | azcentral.com
After three years of litigation, not much has changed in the case of Angel Tattoo vs. City of Mesa.
To wit: The tattoo parlor still doesn't have its permit, and Mesa is still facing court action.
That state of limbo was perpetuated by an Arizona Supreme Court ruling last week.
For the first time in the country at that judicial level, the court held tattooing to be a form of speech protected under the federal and state constitutions.
The court did not opine, however, on whether the Mesa City Council acted properly in March 2009 when it denied a council use permit for the parlor in Dobson Ranch.
That is now to be hashed out in trial at the county level, because the high court ruled that a county judge erred when he threw out the lawsuit filed against Mesa by tattoo artists Ryan and Laetitia Coleman.
Dennis Kavanaugh, the city councilman who represents Dobson Ranch, said there's a chance that such a trial might not take place.
"The (Supreme Court) opinion does maintain the right of local government to impose reasonable time, place and manner of operations of such establishments," Kavanaugh said. "The parties always have the option to resolve the dispute without further litigation, and I am sure that both sides will make a good-faith effort to explore settlement opportunities."
Contrary to some media reports, Kavanaugh said, Mesa has never banned tattoo parlors but rather approved or rejected them on a case-by-case basis.
In 2006, for example, the council approved a tattoo shop in the face of neighborhood opposition and despite a location that was closer to a school than city ordinance specifies.
In March 2009, however, the Colemans were turned away by a 6-1 council vote influenced largely by neighbors who feared the shop would drag down the area.
The Colemans appeared to have won resoundingly last November when the Arizona Court of Appeals ruled that tattooing is protected by the free-speech clauses in the U.S. and Arizona constitutions, and sent the case back to county court for trial.
Mesa appealed that ruling but got from the Supreme Court essentially the same result, the difference being that the Supreme Court "vacated" the appeals-court ruling on technical grounds.
"The 27-page opinion by the Arizona Supreme Court was carefully crafted and represents a new judicial view of this subject in Arizona," said Kavanaugh, who is a lawyer.
"Importantly," he said, "the Supreme Court vacated the opinion of the Arizona Court of Appeals, which ... had far-reaching implications for Arizona cities in a variety of governance areas."
Kavanaugh also noted the Supreme Court "did not make any finding that the city of Mesa was wrong in its council action in the case."
The Supreme Court said the Angel Tattoo case "involves the intersection of municipal-zoning regulations and the right of tattoo artists to ply their trade."
Mesa has always contended that even if tattooing is constitutionally protected, a city still has the right to regulate where it occurs. Zoning laws, for example, prohibit establishing a printing plant in a residential neighborhood, and other court cases have upheld cities' rights to confine sexually oriented businesses to certain areas.
Mesa's council-use-permit process requires certain businesses, such as tattoo parlors and pawn shops, to pass a higher level of scrutiny than mere conformance to zoning standards. In denying a license to Angel Tattoo, council members believed they were acting within their discretionary authority, even if their reasons were subjective.
Mayor Scott Smith was the lone vote in favor of Angel Tattoo during the lengthy March 30, 2009, meeting.
He said at the time that opponents had not proven their case for denying the license and that if the free market did not want the shop in the Albertson's-anchored strip mall, it would fail.
Smith said this week he has not had time to read the latest ruling and wasn't prepared to recommend whether to settle the case or continue with the court fight.
18 Sep, 2012
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Source: http://www.azcentral.com/community/mesa/articles/2012/09/10/20120910mesa-mulls-its-next-move-angel-tattoo.html
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