Real v. City of Long Beach, No. 15-56158 (9th Cir. 2017)
Annotate this CasePlaintiff, a tattoo artist and long-time resident of Long Beach, filed suit against the City, alleging that the City's zoning ordinances violated the First Amendment by unreasonably restricting his ability to open and operate a tattoo shop in Long Beach. The district court entered judgment for the City. The court concluded that the district court inaccurately narrowed plaintiff's claims in its order by framing plaintiff's challenge as only to the conditional use permit (CUP) requirement, when plaintiff also challenged the location restrictions on tattoo shops; ignoring plaintiff's claim that the CUP process vests unbridled discretion in the City; and stating that plaintiff's claim only concerned his desire to open a shop at 316 Elm Street in the East Village Arts District, when this was just one of three locations that plaintiff initially identified in his letter to the City. The court held that plaintiff has standing to bring a facial first amendment challenge to the City's zoning ordinances where he was not required to first apply for, and then be denied, a CUP to bring this claim under a permitting system that allegedly gives City officials unfettered discretion over protected activity; plaintiff has standing to bring an as-applied First Amendment challenge to the City's zoning ordinances where it appeared likely that the City would take action against plaintiff if he opened a tattoo shop without a CUP; plaintiff raised a cognizable claim that the City's zoning ordinances constituted an unlawful prior restraint on speech; and plaintiff raised a cognizable claim that the City's ordinances constituted unlawful time, place, or manner restrictions on speech. Accordingly, the court reversed and remanded for further proceedings.
Court Description: Civil Rights The panel reversed the district court’s judgment in favor of the City of Long Beach in an action brought pursuant to 42 U.S.C. § 1983 alleging that the City’s zoning ordinances violate the First Amendment by unreasonably restricting plaintiff’s ability to open and operate a tattoo shop in Long Beach. The panel held that plaintiff had standing to bring a facial First Amendment challenge to the zoning ordinances and that he was not required to apply for, and then be denied, a conditional use permit under a permitting system that allegedly gave City officials unfettered discretion over an expressive activity fully protected activity by the First Amendment. The panel also held that plaintiff had standing to bring an as-applied First Amendment challenge because it appeared likely that the City would take action against plaintiff if he opened a tattoo shop without a conditional use permit. The panel held that plaintiff raised a cognizable claim that the City’s zoning ordinances constituted an unlawful prior restraint on speech. The panel held that the Long Beach Code supported plaintiff’s allegations that the ordinances vested excessive permitting discretion with the City to issue or deny a conditional use permit, and did not contain adequate procedural safeguards. The panel further
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