Delray Beach Passes Really Stupid Tattoo Studio Ordinance

"That kind of thing" ... yeah, that's my baby daughter with the Lizard Man.  Guess what?  She still has not joined a gang.

"That kind of thing" … yeah, that's my baby daughter with the Lizard Man. Guess what? She still has not joined a gang.

The City of Delray Beach, Florida decided that it didn’t like “that kind of thing.” So, they took a page out of the moral-crusader textbook — formerly only used to ban adult bookstores and strip clubs — and informed tattoo artists that they are just not welcome in their Quiet Little Beach Community. Ordinance No. 33-16 places a number of unconstitutional limits on these businesses.

WHEREAS, there is NOTHING TO SEE HERE

The first sign that an ordinance is unconstitutional? When its City Attorney thinks it is so constitutionally suspect that they feel the need to pack its introduction with a whole bunch of clauses that start with “WHEREAS” and then finish with “nope, we’re not violating the First Amendment, we swear!”

WHEREAS, the City wishes to regulate the location of tattoo establishments consistent with the public interest and the health, safety and welfare of the community and consistent with the constitutional protections provided to speech and expression; and

You see that? That’s when your bullshit detector needs to wake up from sleep mode. What this usually means is “to hell with the First Amendment, we don’t like ‘that kind of thing’ around here.”

Keep your bullshit detector on… because there’s more

WHEREAS, the City has a reasonable basis to believe that there are land use compatibility issues related to the siting of tattoo establishments and their customers near churches and schools, and that it is in the public interest therefor to buffer tattoo establishments from churches and schools; and

Really? So there’s nothing to see here, but we think that tattoo studios can’t co-exist with schools and … churches?

WHEREAS, the City has undertaken to investigate and study the secondary impacts of tattoo establishments and has learned that tattoos and tattoo establishments are associated with gangs, who are also related to criminal activities including illegal drugs and violence; and

Clearly the idiot that wrote this is not as dumb as you might think. At least someone once told them about the “adverse secondary effects doctrine” – and they even think they know what it means. By the end of this poast, you’ll probably understand more of it than the author(s) of this ordinance.

Ready for the coup de grace? Here it is, with subtitles:

WHEREAS, the City does not intend to suppress or infringe upon any expressive activities protected by the First Amendment of the U.S. Constitution, but instead desires to enact reasonable time, place, and manner regulations that address the adverse effects of tattoo establishments.

This is the legislative equivalent of “I’m not racist, BUT….” Is anything after the conjunction going to be non-racist? Probably not. Or, frankly, we don’t even need an analogy. When someone says “I support the First Amendment, BUT…” then everything before the conjunction is most definitely just noise without meaning. When the government passes a law and then feels like it has to tell you that it is not trying to fuck with the First Amendment, the law is definitely fucking with the First Amendment. Otherwise, why the fuck would you put that there? Hey, didn’t mean to grab you by the pussy, but here your pussy is, in my hand…

The Adverse Secondary Effects Doctrine

You don’t have the attention span for a poast that has a full class on this. So, let me just sum it up for you. Back in the 70s, blue-balled fuckhead politicians got sticks up their asses about adult bookstores and adult theaters. They didn’t like “that kind of thing.” So, they passed laws against them. But, the First Amendment got in the way. In fact, it was so goddamned clearly against the First Amendment that you had judges really in a bind. Do we just tear up the First Amendment because we’re scared of pictures of tits? If not, how do we stop consenting adults from selling pictures of tits in our fair community?

Quite the conundrum, eh?

Enter the adverse secondary effects doctrine. With this magic wand, you can say “we don’t approve of this kind of speech,” as long as you lie and say “but, we’re not trying to get rid of that kind of speech, we’re trying to combat its adverse secondary effects

That means, you can ban strip clubs if you’re doing so to ban the crime and blight that come along with them. See Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976). And all of a sudden, poof! the regulation is no longer content-based! Magic! After all, adult bookstores and strip clubs tended to be in bad neighborhoods in those days. Thus, the logic is was “because these kinds of places are in bad neighborhoods, they must cause the problems in the bad neighborhoods.” See also City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47–48 (1986) (reaffirming the doctrine as a content-neutral doctrine).

Then, First Amendment lawyers said “hey, you can’t just say that this causes problems. You need to prove it.” So, the cities and towns trying to pull this crap had to show that they were basing their ordinances on more than just “I saw it in a movie” or “we hypothetically think that this will solve these problems.” The burden isn’t super high, but it has to be at least somewhat factually based. City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002). In that case, the court got all fragmented, with some justices calling bullshit on the content-neutrality of these ordinances. Nevertheless, all nine justices agreed that intermediate scrutiny applied if an ordinance was aimed at adverse secondary effects, and not just at the content. There’s some burden shifting, and really interesting fact-based inquiries, and the deck is definitely stacked in favor of the municipalities. But, thanks in large part to many of the veterans in the First Amendment Lawyers’ Association, the city can’t base their views on complete junk science.

But, to date, there has not yet been a case that upheld the adverse secondary effects doctrine in a case that didn’t involve pearl-clutching over sexually explicit conduct. That said, it hasn’t come right out and rejected using it outside of the “eek, tits and cocks!” realm either. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 394–95 n.7 (1992); Boos v. Barry, 485 U.S. 312, 320–21 (1988).

Apply it, yo

First off, Tattoo artistry is First Amendment protected. See Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1055 (9th Cir. 2010). A few years later, the 11th Circuit (which controls in Delray Beach) held the same. See Buehrle v. City of Key W., 813 F.3d 973 (11th Cir. 2015)

In that case, the Conch Republic tried to ban tattoo studios because they thought it would be bad for the town’s character, and bad for tourism. The 11th Circuit called bunk ass on that.

A regulation limiting the creation of art curtails expression as effectively as a regulation limiting its display. The government need not ban a protected activity such as the exhibition of art if it can simply proceed upstream and dam the source. Consistent wit the Supreme Court's teaching, the right to display a tattoo loses meaning if the government can freely restrict the right to obtain a tattoo in the first place. (Id. at 977)

The 11th Circuit said that it wouldn’t just take the City’s word for it that the ordinance served some important interests. It needed a “reasonable basis” for believing that. Id. citing Zibtluda, LLC v. Gwinnett Cty. ex rel. Bd. of Comm'rs, 411 F.3d 1278, 1286 (11th Cir. 2005). And, harkening to my statement earlier that the deck is pretty stacked for the municipality.

This burden is not a rigorous one. Id. But a municipality cannot "get away with shoddy data or reasoning." City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438, 122 S. Ct. 1728, 152 L. Ed. 2d 670 (2002) (plurality opinion). It "must rely on at least some pre- enactment evidence" that the regulation would serve its asserted interests. Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee Cty., 337 F.3d 1251, 1268 (11th Cir. 2003); see also Zibtluda, 411 F.3d at 1286 ("Nevertheless, [the enacting body] must cite to some meaningful indication—in the language of the code or in the record of legislative proceedings—that the legislature's purpose in enacting the challenged statute was a concern over secondary effects rather than merely opposition to proscribed expression.") (alteration in original) (quoting Ranch House, Inc. v. Amerson, 238 F.3d 1273, 1283 (11th Cir. 2001)). Such evidence can include anything "reasonably believed to be relevant— including a municipality's own findings, evidence gathered by other localities, or evidence described in a judicial opinion." Peek-A-Boo Lounge, 337 F.3d at 1268 (internal quotation marks omitted).

The city was required to make at least some investigation and make some findings. “"[T]he government bears the burden of showing that the articulated concern has more than merely speculative factual grounds." Flanigan's Enters., Inc. v. Fulton Cty., 242 F.3d 976, 986 (11th Cir. 2001)."

The City of Key West totally flopped.

The City conducted no investigation and made no findings. It relied upon no expert testimony, findings made by other municipalities, or evidence described in judicial decisions. It failed to muster even anecdotal evidence supporting its claims. The closest the City came to presenting evidence on the impact on tourism was a passing reference to a few lines of a Jimmy Buffett song. And we are unsure whether even that reference fully supports its position.

But, what about in Delray? Did they learn nothing?

No, they learned a little. They learned that the ordinance is only a justifiable burden on expression if there is actual evidence showing that there are problems that the ordinance will favorably address. So, there must be a demonstration of actual secondary effects, and those effects must be remediated by the ordinance. See Young; Renton. The existence of the effects must be shown through both competent and substantial evidence. Krueger v. City of Pensacola, 759 F.2d 851 (11th Cir. 1985); Leverett v. City of Pinellas Park, 775 F.2d 1536 (11th Cir. 1985); Basiardanes v. City of Galveston, 682 F.2d 1203 (5th Cir. 1982).

So what are the secondary effects that this ordinance supposedly tackles? “Drug overdoses” and “gang activity.”

Cue the laugh track, because someone has been watching Sons of Anarchy too much… and "But I saw this on SOA" isn't going to fly at the 11th Circuit. Even if the laughable cultural miscues weren't bullshit, the remedies for these problems don't even come close to hitting the wall where they hang the dart board, much less anywhere near the bullseye.

How in the holy fuck does putting a tattoo studio more than 750 feet from another, as the crow flies, address that problem? How about being more than 300 feet from a church? Are you going to overdose on oxycontin if you go to church and then pass a tattoo studio? Putting tattoo studios out of sight? How does that help anything.

Even if all of this did help, wouldn’t there be ways to remedy these problems without burdening expression? How about “you can’t do heroin in a tattoo studio?”

The fact is, someone involved in drafting this ordinance read the Key West case, and thought that a few rote recitations and throwing a couple of bullshit references into the record would be enough to save the statute. It isn’t. And, I can’t wait to see Delray Beach get a whopper of an attorneys’ fees bill when it gets sued over this ordinance.

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Comments

  1. Zetopan says

    "Guess what? She still has not joined a gang."

    That's no surprise – gangs generally don't allow new members unless they are at least 3 years old.

  2. Bill W says

    All the vets I know have tattoos. All the currently serving military I know have tattoos. The gang I most closely associate with tattoos is the USMC, and, to date, I've neither seen nor heard of anyone going into a tattoo shop, getting a tattoo, and then spontaneously becoming a Marine. I assume this applies to conventional gangs as well, since my wife still hasn't joined MS-13.

  3. NS says

    Allow me to make a tost to this poast

    Are there actually people in Florida that think tattoo parlors hurt tourism? Will they next try to ban souvenir shops?

  4. mcinsand says

    First off, Tattoo artistry is First Amendment protected.

    This raises another question that I've had; how are sign ordinances constitutional? If I have a business and I want to put up a sign that does not interfere with safety or right of way, then how is my free speech NOT suppressed by an ordinance telling me that my business sign can only be a certain size and of a certain color palette? The same goes for towns that restrict building colors and styles. If it's my building and I want to attract customers, then I don't see how the first amendment cannot protect my sign choice.

  5. Michael 2 says

    I am entirely in favor of people advertising their tribal affiliation as boldly as possible. When it's written in German across neck and face I doubt I need a translator.

    Avoidance of danger tends to be the strongest of all instincts. Choosing your "tribe" is merely useful; avoiding deadly dangers is vital. What that means is if you arouse fear in someone by your foolish choice of tattoo you'll not get a chance to show how kind and compassionate you are (or aren't).

    As to vets; I served over 20 years in the Navy and I have no tattoos and no holes I wasn't born with. I do not set off metal detectors at the airport. I also do not wear advertising, no t-shirts denoting my tribal identity; except that this very action already denotes my tribal identity: Libertarian!

    Governments ought not to be deciding such things; but governments also ought not to be trying to make me embrace something I wish not to embrace. It should stay out of your life and mine. If I discriminate against you because of your choice of swastikas, so be it. I don't mind butterflies and Chinese dragons much; I still think it unwise but at least isn't particularly threatening. If you get only one canvas in your entire life and you insist on putting something on that canvas, it ought to be carefully chosen. I admire a tattoo of an exquisitely executed horned lizard on her foot (she's a herpetologist; studying reptiles). It isn't a bold in-your-face social justice statement; it is a reflection of her profession and unobtrusive.

  6. albert911emt says

    Welcome to Trumps' America. The "hatred and fear" party will rule us for the next four years, imposing their silliness on whoever doesn't look, talk, act, or sound right.

  7. John says

    Michael2, I love you. You demonstrate the essential Libertarian policy in such bold colors: I am the sole measure of righteousness and know exactly at all times what "the government" should and should not do, and all the rest of you don't. Fuckin' A, it's good to see someone outright admit that they are the sole arbiters for all of us.

  8. Simon Spero says

    Delray Beach is the Silicon Valley of drug rehab centers, with reported problems of having Open Air Drug Addict Markets. It also has a growing number of heroin overdoses (66 in July, 7 fatal if I Googled correctly).

    So it's not all happy beach town, and it's possible that some tattoo parlors may locally be gathering places for bad things. Possibly doesn't cut it, so they'd better have actually done their investigation and studying and not just pulled it out of their whereass.

  9. Simon Spero says

    Also, why not confuse people by starting sentences with "I'm not a racist but", then saying something that isn't racist. "I'm not a racist but I think that professional sports teams should pay for their own stadiums."

  10. Encinal says

    There's also whether giving churches the special privilege of having tattoo parlor-free spaces is a violation of the establishment clause.

    Delray Beach Passes Really Stupid Tattoo Studio Ordinance

    Ordinance against tattoo studios that's really stupid, or ordinance against studios for getting really stupid tattoos?

    @Simon Spero
    There's was a segment on some show (I think Jimmy Kimmel, but not sure) of seeing what they could get people to say just to get on TV. One was "Peyton Manning is a better quarterback than Cam Newton. I'm not racist."

  11. Matt says

    The closest the City came to presenting evidence on the impact on tourism was a passing reference to a few lines of a Jimmy Buffett song. And we are unsure whether even that reference fully supports its position.

    Did… did Key West try and quote "Margaritaville" as some kind of support?

  12. Michael 2 says

    John wrote "Michael2, I love you. You demonstrate the essential Libertarian policy in such bold colors"

    Thank you; it is rare that libertarians are appreciated, not that it matters.

    "I am the sole measure of righteousness and know exactly at all times what the government should and should not do, and all the rest of you don’t."

    This is where you and many others start to drift into herd mentality. the word "should" is very nearly not in a libertarian's vocabulary. I choose for me, you choose for you. Whether you should or should not do any particular thing depends entirely on your goal; but in the herd, goals are specified for all by the specifier (often hard to spot or identify) and thus the procedures to achieve it are also specified and called "shoulds" or "oughts". They are conditional statements; IF you want X, you {should, ought, must} do Y.

    But as for righteousness, yes, I must decide who to accept as an authority or moral guide. I choose which magnet attracts my moral compass for there be many magnets to choose from. Very likely so do you; I struggle with the idea that people exist that simply hand off their belief system to a controller of some kind, often known as a "community organizer" but may be just a parasite living on the fears of others.

    "it’s good to see someone outright admit that they are the sole arbiters for all of us."

    I am the sole arbiter for me. You are the arbiter for you, unless of course you aren't, but I am not your arbiter in any case.

    The United States was founded on self determination.

    It is not inherently selfish. Libertarian simply means I choose for me, you choose for you. Some people choose to be unselfish. Charity appears to be more prevalent among Republicans which would seem unexpected.

  13. Bara says

    Since the average age in Delray Beach is probably 75 (trust me I live there) I can't imagine a tattoo parlor would do very well anyway.

  14. John says

    Michael2, It is inherently selfish because it does not consider the external consequences of your choices, the very definition of selfishness.

  15. Michael 2 says

    John writes "Michael2, It is inherently selfish because it does not consider the external consequences of your choices, the very definition of selfishness."

    In what meaningful way do you differ from "I choose for me, you choose for you?"

    Perhaps you were intending to choose for both of us and a great many other people as well.

    A libertarian is entirely free to consider the external consequences of his choices and has a duty to do exactly that. A socialist needs only obey; no considering needed.

  16. GP says

    The first sign that an ordinance is unconstitutional? When its City Attorney thinks it is so constitutionally suspect that they feel the need to pack its introduction with a whole bunch of clauses that start with “WHEREAS” and then finish with “nope, we’re not violating the First Amendment, we swear!”

    Have you read Proposition 63? 2 pages of "findings" and an additional full page of "intent."

  17. Encinal says

    @John

    Michael2, It is inherently selfish because it does not consider the external consequences of your choices, the very definition of selfishness.

    You're misrepresenting both Michael2's position, and what the definition of "selfish" is. You're trying to support an argument by simply making up a definition. That is the very definition of child molestation.

  18. GuyOnTheAir says

    Some of the reasons I love this blog and site are the thoughtful articles, clarifications on law and rights, and Ken White's sense of humor about topics and the way he writes. (And I'm not a law profession related person in any other way.)

    But at least on this post, the reason I love this blog is the comments. At least 5 of them have caused me to cackle out loud in extreme mirth, from NS's ban of souvenir shops, to Doug DigDag's question of a "toster," to Brandon's "bred," to Simon Spero's "whereass" and other comments, to Encinal's brilliant comments about the article headline and "definitions."

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