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A tattoo shop owner can sue the City of Long Beach, Calif., over allegedly unconstitutional zoning restrictions, the U.S. Court of Appeals for the Ninth Circuit held March 29 ( Real v. City of Long Beach , 2017 BL 100234, 9th Cir., No. 15-56158, 3/29/17 ).
James Real can proceed with his free speech challenge to the ordinances even though he didn’t apply for and was never denied an operating permit to open additional shops, the decision by Judge Milan D. Smith Jr. said.
The First Amendment protects tattooing, the court said. Real could make a facial challenge to the restrictions because the city’s permitting system allegedly gave its officials “unfettered discretion” concerning tattooing, the court said.
The court also rejected the city’s argument that Real couldn’t challenge the ordinances as applied to him because he didn’t suffer an injury.
Real satisfied the injury requirement because it was likely that the city would take action against him if he opened a shop without a permit, the court said.
The court reversed the district court’s judgment in favor of the city.
Judge John B. Owens and District Judge Alvin K. Hellerstein, sitting by designation from the U.S. District Court for the Southern District of New York, joined the decision.
Robert C. Moest argued for Real. The Long Beach city attorney’s office argued for the city.
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