Hermosa Beach tattoo parlor ban ruled unconstitutional by appeals court

Tattoos and the art of tattooing are “forms of pure expression fully protected by the 1st Amendment,” a federal appeals court said Thursday in ruling that a city of Hermosa Beach ban on tattoo parlors is unconstitutional.

A three-judge panel of the U.S. 9th Circuit Court of Appeals ordered the city to allow tattooing in at least some of its areas zoned for business, saying a total ban was “facially unconstitutional.”

The city was sued by Johnny Anderson, co-owner of Yer Cheat’n Heart Tattoo in Gardena, after he was repeatedly rebuffed by city officials in his attempts to open a parlor at a busy intersection of the coastal community. Hermosa Beach officials had refused to allow tattooing in the city on grounds that the “open wounds” created by embedding ink under the skin with a needle can lead to infection or disease if not done properly.

“Tattooing is a process like writing words down or drawing a picture except that it is performed on a person’s skin,” the appeals panel said in overturning a lower court ruling that the subcutaneous images were not sufficiently expressive to deserve protection.

“A form of speech does not lose 1st Amendment protection based on the kind of surface it is applied to,” the panel stated.

Anderson’s attorney, Robert C. Moest, said he expected Hermosa Beach officials to reconsider an earlier city staff proposal to open the commercial zone around Pacific Coast Highway and Aviation Boulevard to tattoo parlors. It was at that intersection, in a building now housing a frozen yogurt store, that Anderson had sought to relocate from the seedy stretch of Vermont Avenue where his business now operates.

But an attorney for the city, Michael Jenkins, indicated that officials plan to appeal the panel ruling.

“The judges, in their ruling, acknowledge the potential health hazards, say many tattoo parlors are never inspected and quote Los Angeles County’s only tattoo parlor inspector as saying: ‘There are those practitioners that are unscrupulous or incompetent and do not follow the proper sterilization processes strictly. This poses a risk for infection,’” Jenkins said in a statement, noting that the city was weighing an appeal to either a larger panel of 9th Circuit judges or the U.S. Supreme Court.