Tattoo Artist Wins Appeal on Municipal Zoning Ban

On December 29th, 2005, the Eleventh Circuit Court of Appeal reversed an earlier decision that upheld Key West’s zoning ordinance, which restricted the number of tattoo parlors in the historic district.  Tattoo Artist Brad Buehrle had sued the city government, claiming that the ordinance restricted his First Amendment right to artistic expression.  The City of Key West contested that it is not the tattoo artist who has protections under the First Amendment, but rather the person receiving the tattoo.  This argument opened an examination of the Court that the medium makes no difference and that the tattoo industry has evolved, with more and more artists coming from classical art backgrounds.
Ultimately, the Court’s decision on whether or not the City could restrict Freedom of Speech rested on a 3 test measure:
1.) Is the regulation justified without reference to the content of the regulated speech?
2.) Is the regulation narrowly tailored to serve a significant governmental interest?
3.) Does the regulation leave open ample alternative channels for communication of the information?
Both parties conceded that the Key West ordinance fulfilled the first measure.  However, the City could not show due diligence and sufficient data to support that an increase of tattoo parlors would deter tourism in the historic district.  Judge Pryor, in his decision, was open to the idea that tattoo parlors could have a detrimental effect on tourism in the historic district, but the City’s lack of evidence and mere “appeal to common sense” did not meet the Court’s satisfaction of burden of proof.  Thus the City was unable to satisfy the second measure and could not provide ample reasoning for the restriction of Mr. Buehrle’s First Amendment Protections.
The attorneys of Massey & Duffy, PLLC are experienced in civil litigation and appellate law.  If you have a case regarding the protection of your civil rights, contact our office at (352) 505-8900 to schedule a consultation today.


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