George Mason Law Review Civil Rights Law Journal

Tattoo Artist Takes On Key West Zoning Laws In 11th Circ

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Tattoo Artist Takes On Key West Zoning Laws In 11th Circ.

By Nathan Hale

Law360, Miami (October 2, 2015, 7:33 PM ET) -- A tattoo artist argued Friday to the Eleventh Circuit that Key West, Florida, zoning regulations that barred him from opening a shop in its historic districts, purportedly to protect tourism and health interests, violate First Amendment rights afforded to tattooing as a form of pure speech. 

Plaintiff Brad Buehrle asked the federal appeals court during oral arguments in Miami to vacate a summary judgment ruling in favor of the city and return the case to district court for a trial to determine if the city's regulation amounts to a “reasonable content neutral time, place and manner restriction” on tattoo parlors.

Key West currently allows two tattoo establishments to operate in its historic districts as lawful nonconforming uses as a result of a 2007 settlement and permits other tattoo shops as conditional uses in its general commercial district, where a third establishment currently operates, according to court documents.

Buehrle filed suit after he was unable to obtain permission to open a tattoo parlor at 130 Simonton St., within the historic districts.

The focus of Friday's hearing fell on what evidence the city has presented to back up its restrictions, which it holds are reasonably in place to look out for the health and welfare of residents and visitors and “to eliminate or to reduce secondary effects of such establishments upon both residents and visitors.”

“What evidence is there to support the proposition that tourism — the life blood of the community … would be affected by allowing a tattoo parlor?” U.S. Circuit Judge Stanley Marcus asked, also peppering Key West's counsel, Michael T. Burke of Johnson Anselmo Murdoch Burke Piper & Hochman PA.

In the lower court, U.S. District Judge Jose E. Martinez sided with Buehrle that the act of tattooing is an expression of pure speech and is entitled to full First Amendment protection.

As a result of that finding, the city's regulation had to meet a reasonable time, place and manner test, which Judge Martinez determined it did in granting the city's motion for summary judgment while denying a partial summary judgment motion filed by Buehrle.

Burke said during Friday's arguments that the city disagrees with the lower court's finding that the process of tattooing is protected pure speech, holding instead that it is the person who receives and displays the tattoo that is making the expression, but the appeals panel made clear that it was not likely to alter that decision.

U.S. Circuit Judge William H. Pryor Jr. asked if readers of a newspaper but not the reporters and editors are entitled to First Amendment protection, or if observers of artwork by Claude Monet and Pablo Picasso are protected but not the artists themselves.

Burke argued, though, that contrary to plaintiff's counsel Wayne LaRue Smith's comparison of tattoo parlors to art galleries, a closer comparison would be to automobile painting shops.

The exchange between the panel and Burke grew somewhat contentious at times as the judges pressed him on what evidence the city had entered into the record to support its reasoning.

“You may find this amusing, but I have a serious question here of what you have,” Judge Pryor said after Burke suggested that the city's reasoning that it would be a bad idea to have tattoo parlors in an area where there are a lot of bars relied on the Jimmy Buffett lyric, “How this tattoo got here, I haven't a clue.”

While Burke struggled to satisfy the panel's search for evidence, saying that it amounted mostly to the testimony and experience of the former Key West planning director on the importance to local tourism of preserving the city's historic character, the judges also hinted that they were not closed to the city's position.

Judge Pryor said that the city's reasoning may appeal to his common sense, but he was unsure about the city meeting its burden under the First Amendment.

And Judge Marcus raised the example that in the case of New York City's Eighth Avenue near Times Square, once a stretch of nude dancing and erotic movie establishments, it did not require a ton of empirical data to prove that those businesses had a deleterious effect on tourism in the area.

“You don't have to show much, but you have to show something,” he said.

Judge Pryor also said that should the summary judgment ruling be vacated and the case returned to the district court for trial, there are probably local constituents, such as hotel operators or other business owners, who back the city's claims, but that currently “We don't have anything like that in this record.”

U.S. Circuit Judges Stanley Marcus, William Pryor Jr. and Jill A. Pryor sat for the Eleventh Circuit.

Buehrle is represented by Wayne LaRue Smith of The Smith Law Firm.

Key West is represented by Michael T. Burke and Hudson C. Gill of Johnson Anselmo Murdoch Burke Piper & Hochman PA.

The case is Buehrle v. City of Key West, case number 14-15354, in the U.S. Court of Appeals for the Eleventh Circuit.

--Editing by Kelly Duncan.

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