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Real v. City of Long Beach

United States Court of Appeals, Ninth Circuit

March 29, 2017

James Real, Plaintiff-Appellant,
v.
City of Long Beach, a California Municipal Corporation, Defendant-Appellee.

          Argued and Submitted February 14, 2017 Pasadena, California

         Appeal from the United States District Court for the Central District of California D.C. No. 2:13-cv-01631-R-MAN Manuel L. Real, District Judge, Presiding

          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.

          Before: MILAN D. SMITH, JR. and JOHN B. OWENS, Circuit Judges, and ALVIN K. HELLERSTEIN, [*] District Judge.

         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 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.

          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 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. ยง 21.25.206. ...


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