James Real v. City of Long Beach , 852 F.3d 929 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES REAL, No. 15-56158
Plaintiff-Appellant,
D.C. No.
v. 2:13-cv-01631-
R-MAN
CITY OF LONG BEACH, a California
Municipal Corporation,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted February 14, 2017
Pasadena, California
Filed March 29, 2017
Before: MILAN D. SMITH, JR. and JOHN B. OWENS,
Circuit Judges, and ALVIN K. HELLERSTEIN, * District
Judge.
Opinion by Judge Milan D. Smith, Jr.
*
The Honorable Alvin K. Hellerstein, United States Senior District
Judge for the Southern District of New York, sitting by designation.
2 REAL V. CITY OF LONG BEACH
SUMMARY **
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
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
REAL V. CITY OF LONG BEACH 3
held that plaintiff raised a cognizable claim that the City’s
zoning ordinances constituted an unlawful time, place, or
manner restriction on speech. The panel remanded for the
district court to try the City’s defense that the ordinances
were reasonable time, place, and manner restrictions and not
unlawful prior restraints on speech.
COUNSEL
Robert C. Moest (argued), Law Offices of Robert C. Moest,
Santa Monica, California, for Plaintiff-Appellant.
Monte H. Machit (argued), Assistant City Attorney; Charles
Parkin, City Attorney; Office of the City Attorney, Long
Beach, California; for Defendant-Appellee.
OPINION
M. SMITH, Circuit Judge:
James Real brought this civil rights action against the
City of Long Beach (City), alleging that the City’s zoning
ordinances violate the First Amendment by unreasonably
restricting his ability to open and operate a tattoo shop in
Long Beach. The district court held that Real did not have
standing to bring his claims because he did not apply for a
conditional use permit (CUP), which is required to operate a
tattoo shop in Long Beach. On appeal, Real argues that he
has standing to bring both facial and as-applied challenges
to the City’s relevant zoning ordinances, and that the
ordinances operate as both unlawful prior restraints on
speech and unreasonable time, place, or manner restrictions
on speech. We hold that Real has standing to bring both
4 REAL V. CITY OF LONG BEACH
facial and as-applied First Amendment challenges against
the City, and remand for the district court to try the City’s
defense that the ordinances are reasonable time, place, and
manner restrictions and not unlawful prior restraints on
speech.
FACTS AND PRIOR PROCEEDINGS
Real is a tattoo artist and long-time resident of Long
Beach. He owns a tattoo shop in Huntington Beach,
California, but has desired to open a shop in Long Beach for
over a decade. However, he has not opened a shop or applied
for a CUP due to Long Beach’s restrictive zoning
ordinances, which disallow tattoo shops in most of Long
Beach and require a CUP to operate. Long Beach Code
§ 21.32.110, Table 32-1. Additionally, a tattoo shop may not
operate within 1,000 feet “of any existing adult
entertainment, arcade, fortunetelling, tattoo parlor, or
tavern,” and may only operate between 7 a.m. and 10 p.m.
Id. § 21.52.273. Before issuing a CUP, the City must
conclude, among other things, that “[t]he proposed use will
not be detrimental to the surrounding community including
public health, safety or general welfare, environmental
quality or quality of life.” Id. § 21.25.206. Generally, only
a property owner in an area zoned for tattooing may apply
for a CUP; if the affected property is not in such an area, the
property owner must submit a separate application for a
variance. Id. § 21.25.203.
On August 1, 2011, Real’s attorney sent a letter to the
City identifying three locations where Real desired to open
a tattoo shop, and had obtained preliminary approval from
landlords, but was unable to move forward because the
locations were not zoned for tattooing. Real’s attorney
argued that the zoning ordinances were invalid because
(1) City officials have excessive discretion to issue or deny
REAL V. CITY OF LONG BEACH 5
a CUP, and (2) the areas in which tattoo shops may be
located are unreasonably restricted. The City responded on
August 8, 2011, stating that a number of properly permitted
tattoo shops operate in Long Beach, and the City was
considering expanding zoning for tattooing, possibly to the
East Village Arts District, where Real was interested in
operating. 1
Real brought this action against the City, arguing that the
City’s zoning ordinances unduly restricted his First
Amendment right to engage in tattooing by (1) limiting the
areas in which tattooing is permitted, including by requiring
that there be at least 1,000 feet between tattoo shops and
taverns or other tattoo shops, and (2) requiring permitting
through a CUP process that vests excessive discretion in city
officials and imposes excessive fees. The district court held
a one-day bench trial where Real testified that if the CUP
process were not in place, he would have the means to, and
indeed would, pursue opening a shop in Long Beach. He
1
At some point after August 1, 2011, the City opened the East
Village Arts District to CUP applications for tattoo shops, and at least
one tattoo shop opened there. Real never applied for a CUP to open a
shop in the East Village Arts District, although one of the three locations
he identified in his 2011 letter to the City was in that area. At trial, he
testified that he was no longer interested in operating there, at least in
part because a prominent tattoo shop had already opened there, and he
was concerned about professional courtesy. Contrary to the City’s
arguments and the district court’s holding, the City’s decision to expand
tattooing to the East Village Arts District and Real’s failure to apply for
a CUP to operate there do not defeat his claims. The East Village Arts
District was only one location that Real was considering, and he changed
his mind due to subsequent events. Moreover, the City’s zoning
expansion does not undermine Real’s claims that the CUP process vests
unbridled discretion in the City, that most of Long Beach is not zoned
for tattooing, and that the location proximity requirements are unduly
restrictive.
6 REAL V. CITY OF LONG BEACH
testified that he never applied for a CUP because the areas in
which he was interested in opening a shop (particularly an
area named Retro Row) were not zoned for tattooing, so he
knew the application would be denied. Further, to obtain a
CUP he would first have to rent a location, then pay a large,
nonrefundable application fee, and then wait while the
permit was reviewed, with no guarantee that it would be
approved. Moreover, he was aware that there were bars
centrally located in Retro Row, and so the 1,000 foot
restriction would likely be prohibitive, even if the area were
zoned for tattooing.
After cross-examining Real, and before presenting any
evidence, the City made an oral Federal Rule of Civil
Procedure 52(c) motion, claiming that Real had not met his
burden. The court agreed, and entered judgment for the City,
concluding that (1) the zoning ordinances constituted time,
place, or manner regulations, not prior restraints, because
they did not entirely forbid tattooing; (2) Real brought an as-
applied challenge, rather than a facial challenge, because he
did not present evidence of impact on third parties; and
(3) Real did not have standing to bring his as-applied
challenge because he did not apply for a CUP, and thus
suffered no injury-in-fact. Real timely appealed.
STANDARD OF REVIEW
We review the district court’s Article III standing
decision de novo. Braunstein v. Ariz. Dep’t of Transp.,
683 F.3d 1177, 1184 (9th Cir. 2012). We also review the
district court’s determination that the City’s zoning
ordinances do not constitute a prior restraint on speech de
novo, including any underlying factual findings. Tucker v.
State of Cal. Dep’t of Educ., 97 F.3d 1204, 1209 n.2 (9th Cir.
1996).
REAL V. CITY OF LONG BEACH 7
ANALYSIS
The district court inaccurately narrowed Real’s claims in
its order granting judgment in favor of the City by
(1) framing Real’s challenge as only to the CUP
requirement, when Real also challenged the location
restrictions on tattoo shops; (2) ignoring Real’s claim that
the CUP process vests unbridled discretion in the City; and
(3) stating that Real’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 Real
initially identified in his letter to the City. By overlooking
these aspects of Real’s claims, the district court incorrectly
concluded that Real lacked standing and did not raise a prior
restraint claim.
I. Real Has Standing to Bring a Facial First
Amendment Challenge to the City’s Zoning
Ordinances
The district court held that Real “plainly did not assert a
facial challenge to the zoning ordinances” because Real
presented “no evidence regarding any third party’s conduct
or effect of the zoning ordinances on third parties.”
However, there is no requirement that a plaintiff present
evidence of harm to third parties in order to bring a facial
challenge pursuant to the First Amendment. Rather, a
plaintiff has standing to vindicate his First Amendment
rights through a facial challenge when he “argue[s] that an
ordinance . . . impermissibly restricts a protected activity,”
and such facial challenges may be paired with as-applied
challenges. Santa Monica Food Not Bombs v. City of Santa
Monica, 450 F.3d 1022, 1033–34 (9th Cir. 2006).
As the Court explained in City of Lakewood v. Plain
Dealer Publishing Co., 486 U.S. 750, 755–56 (1988), “when
8 REAL V. CITY OF LONG BEACH
a licensing statute allegedly vests unbridled discretion in a
government official over whether to permit or deny
expressive activity, one who is subject to the law may
challenge it facially without the necessity of first applying
for, and being denied, a license.” This is because “without
standards to fetter the licensor’s discretion, the difficulties of
proof and the case-by-case nature of ‘as applied’ challenges
render the licensor’s action in large measure effectively
unreviewable.” Id. at 758–59.
We have held that tattooing is “purely expressive activity
fully protected by the First Amendment.” Anderson v. City
of Hermosa Beach, 621 F.3d 1051, 1060 (9th Cir. 2010).
This includes “[t]he tattoo itself, the process of tattooing, and
even the business of tattooing.” Id. Although Real did not
clearly state to the district court whether his challenge was
as-applied or facial, he plainly challenged the zoning
ordinances on the grounds that they impermissibly restrict
an activity protected by the First Amendment and vest
excessive permitting discretion in the City. Thus, Real has
standing to bring a facial challenge to the zoning ordinances.
See Santa Monica Food Not Bombs, 450 F.3d at 1033. 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. See City of Lakewood, 486 U.S. at 755–56.
II. Real Has Standing to Bring an As-Applied First
Amendment Challenge to the City’s Zoning
Ordinances
To establish Article III standing to challenge a law as
applied to him, a plaintiff “must allege (1) a distinct and
palpable injury-in-fact that is (2) fairly traceable to the
challenged provision or interpretation and (3) would likely
be redressed by a favorable decision.” Santa Monica Food
REAL V. CITY OF LONG BEACH 9
Not Bombs, 450 F.3d at 1033 (internal quotation marks and
ellipsis omitted). 2
The district court held that Real lacked standing to bring
an as-applied challenge because he did not adequately allege
an injury-in-fact. According to the district court, to suffer an
injury in this case Real would have to apply for and be
denied a CUP to operate at 316 Elm Street in the East Village
Arts District, a location that Real identified in his 2011 letter
to the City. The district court limited the claim to that
location, even though it was only one of three locations that
Real identified in 2011, and at trial in 2015 Real explained
that subsequent events had made it an undesirable location,
and he was looking to operate elsewhere in Long Beach.
Moreover, Real was not required to apply for a CUP to
operate anywhere in Long Beach to suffer an injury; “a
plaintiff satisfies the injury-in-fact requirement where he
alleges an intention to engage in a course of conduct
arguably affected with a constitutional interest, but
proscribed by a statute, and there exists a credible threat of
prosecution thereunder.” Susan B. Anthony List v. Driehaus,
134 S. Ct. 2334, 2342 (2014) (internal quotation marks
omitted). In such a case, “an actual arrest, prosecution, or
other enforcement action is not a prerequisite to challenging
the law.” Id.
Real readily meets the first part of the Susan B. Anthony
List standard because (1) he alleged an intention to open a
2
Real readily meets the second and third prongs of the standing
analysis. His alleged inability to open a tattoo shop is fairly traceable to
the zoning ordinances governing the locations and permitting of tattoo
shops, and a decision finding those laws unconstitutional would likely
redress his injury because he would be able to open a tattoo shop without
the current restrictive requirements.
10 REAL V. CITY OF LONG BEACH
tattoo shop without a CUP; (2) “tattooing is purely
expressive activity fully protected by the First Amendment,”
Anderson, 621 F.3d at 1055; and (3) the zoning ordinances
proscribe his intended conduct. Real also sufficiently
alleged a credible threat of prosecution. In his appellate
brief, he argued that “the threat of enforcement against [him]
is substantial,” because the City “has vigorously defended its
zoning ordinances in this case, and [he] has been explicitly
told that he will be subject to zoning enforcement processes
if he opens except as permitted by the zoning scheme.” The
City has not denied these allegations, and has continued to
defend its zoning ordinances. It appears likely that the City
would take action against Real if he opened a tattoo shop
without a CUP; thus, he has standing to bring an as-applied
challenge. See Susan B. Anthony List, 134 S. Ct. at 2342.
III. Real Raised a Cognizable Claim That the City’s
Zoning Ordinances Constitute an Unlawful Prior
Restraint on Speech
The district court erred by holding that the zoning
ordinances could not constitute a prior restraint because they
do not prohibit tattooing entirely. An outright prohibition is
not required to bring a prior restraint claim; rather, “a
[licensing] scheme that places unbridled discretion in the
hands of a government official or agency constitutes a prior
restraint and may result in censorship.” FW/PBS, Inc. v. City
of Dallas, 493 U.S. 215, 225–26 (2004) (internal quotation
marks omitted); see also Long Beach Area Peace Network v.
City of Long Beach, 574 F.3d 1011, 1025 (9th Cir. 2009)
(“Regulations must contain narrow, objective, and definite
standards to guide the licensing authority and must require
the official to provide [an] explanation for his decision.”)
(internal quotation marks and citation omitted).
Additionally, “a prior restraint that fails to place limits on the
REAL V. CITY OF LONG BEACH 11
time within which the decisionmaker must issue [a] license
is impermissible,” because “a licensing scheme creates the
possibility that constitutionally protected speech will be
suppressed where there are inadequate procedural
safeguards to ensure prompt issuance of the license.”
FW/PBS, 493 U.S. at 226.
Real alleged that the City’s zoning ordinances (1) vest
excessive permitting discretion with the City to issue or deny
a CUP, and (2) do not contain adequate procedural
safeguards because no time limits are placed on CUP
decisions. See id. at 225–26. The Long Beach Code
supports these allegations. First, the criteria to issue a CUP
includes the open-ended determination that the use “will not
be detrimental to the surrounding community including
public health, safety or general welfare, environmental
quality or quality of life.” Long Beach Code § 21.25.206.
Second, the Code does not include a deadline for City
officials to grant or deny a CUP. 3 Thus, Real raised a
cognizable prior restraint claim.
Because the district court granted the City’s motion for
nonsuit before the City presented its case, the City has not
had the opportunity to present evidence on its permitting
discretion or any procedural safeguards. Accordingly, we
remand for the district court to try the City’s defense.
IV. Real Raised a Cognizable Claim That the City’s
Zoning Ordinances Constitute Unlawful Time,
3
Although Long Beach Code § 21.25.207 requires that the Zoning
Administrator set a conditional use application for public hearing within
60 days of receiving a completed application, there is no deadline for a
grant or denial of the CUP following the hearing.
12 REAL V. CITY OF LONG BEACH
Place, or Manner Restrictions on Speech
Like the plaintiff in Anderson, Real does not argue that
the City’s ordinances constitute a content-based restriction
of protected expression subject to strict scrutiny. 621 F.3d
at 1063–64. Instead, Real argues that the City
unconstitutionally restricts a protected means of expression.
See id. Thus, because “tattooing is a purely expressive
activity fully protected by the First Amendment,” the City’s
zoning ordinances are constitutional only if they are
reasonable “time, place, or manner” restrictions on tattooing.
Id. at 1055.
Time, place, or manner restrictions are reasonable if they
are “(1) [] justified without reference to the content of the
regulated speech; (2) [] narrowly tailored to serve a
significant governmental interest; and (3) leave[] open
ample alternative channels for communication of the
information.” Id. at 1064 (internal quotation marks omitted).
While a government “need not [use] the least restrictive or
least intrusive means” of serving its legitimate interests, the
means must not be “substantially broader than necessary”
and must “promote[] a substantial government interest that
would be achieved less effectively absent the regulation.”
Ward v. Rock Against Racism, 491 U.S. 781, 798–800
(1989).
Because the City rested its case before it addressed
whether its zoning ordinances constitute permissible time,
place, or manner restrictions on tattooing, we remand for the
district court to try the City’s defense.
CONCLUSION
We REVERSE the district court’s holdings that (1) Real
did not adequately allege a facial challenge, (2) Real did not
REAL V. CITY OF LONG BEACH 13
have standing to raise an as-applied challenge, and (3) the
City’s zoning ordinances cannot constitute prior restraints on
speech. We REMAND for the district court to try Real’s
facial and as-applied First Amendment claims, on the
grounds that the City’s zoning ordinances operate as
unlawful prior restraints on speech and are unreasonable
time, place, or manner restrictions on speech. 4
4
Appellant James Real’s motion to take judicial notice, filed July 9,
2016, is GRANTED.