HomeMy WebLinkAbout05 CA 2011-06~,
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AGENDA REPORT
MEETING DATE: SEPTEMBER 13, 2011
TO: PLANNING COMMISSION
FROM: COMMUNITY DEVELOPMENT DEPARTMENT
ITEM # 5
SUBJECT: CODE AMENDMENT 2011-06, DRAFT ORDINANCE NO. 1407 -BODY
ART ORDINANCE
RECOMMENDATION:
That the Planning Commission adopt Resolution No. 4181, recommending that the
Tustin City Council adopt Draft Ordinance No. 1407, amending Tustin City Code Section
4140 to regulate the inspection of body art facilities by the Orange County Health Care
Agency; amending Section 3141 to add definitions pertaining to body art; amending
Sections 3651-3654 pertaining to a body art permit; and amending Section 9232b to
permit body art facilities in certain commercial zones.
BACKGROUND AND DISCUSSION:
On September 9, 2010, the Ninth Circuit Court of Appeals decided Anderson v. City of
Hermosa Beach. In brief, the Court held that the process and business of tattooing are
pure forms of expression fully protected by the First Amendment and that Hermosa
Beach's total ban on tattoo parlors in the city was an unconstitutional restriction on free
expression because it was not a reasonable "time, place, and manner" restriction.
According to the Court, although the city had significant health and safety interests in
regulating the tattoo parlors, a complete prohibition was unreasonable because it was
substantially broader than necessary to achieve the city's health and safety goals.
Tattoo establishments are not listed as permitted uses in the Tustin Zoning Code, and
the Tustin City Code contains no specific provisions regulating the location,
development, or operational characteristics of establishments where tattoos are placed
on individuals. In this regard, the provisions of Tustin's Code are similar to those of
Hermosa Beach's municipal code found unconstitutional by the Ninth Circuit in
Anderson v. City of Hermosa Beach.
To prevent the establishment of unregulated tattoo establishments while staff and the
City Attorney analyzed and evaluated the impacts of this decision and potential
regulatory options, the City Council approved Interim Urgency Ordinance No. 1392 on
February 1, 2011, and enacted a temporary moratorium on the establishment and
Planning Commission Report
September 13, 2011
Presentation on Tustin Legacy Disposition Strategy
Page 2
operation of tattoo establishments within the City for a period of 45 days. On March 1,
2011, the Tustin City Council adopted Interim Urgency Ordinance No. 1396, which
extended Interim Urgency Ordinance No. 1392 for an additional period of ten (10)
months and fifteen (15) days.
Currently, permanent cosmetics facilities are the only type of body art facility permitted
within the City of Tustin. On March 20, 2007, the Tustin City Council adopted
Ordinance No. 1324 to enable the inspection and regulation of permanent cosmetics
facilities within the City of Tustin by the Orange County Health Department. As noted
previously, other types of body art facilities, which include tattoo establishments and
body piercing facilities, are not listed as permitted uses in the Tustin Zoning Code, and
the Tustin City Code contains no specific provisions regulating the location,
development, or operational characteristics of establishments where tattoos or body
piercings are placed on individuals.
Pursuant to existing state law, every person engaged in the business of tattooing, body
piercing, or permanent cosmetics is required to register with the county in which the
business is located, obtain a copy of the county's sterilization, sanitation, and safety
standards, and pay aone-time registration fee. According to the Orange County Health
Care Agency, there are about 150 body art facilities registered in the county. Many of
these facilities are inspected on an annual basis through health services agreements
with cities by two (2) County inspection officers who devote a portion of their time to the
inspection of body art facilities.
On February 9, 2011, Assembly Bill No. 300, or the Safe Body Art Act, was introduced.
If Assembly Bill No. 300 becomes law, it will provide minimum statewide standards for
the regulation of persons engaged in body .art businesses. These standards are
intended to protect the practitioner and the client from the transmission of infectious
diseases through the application of proper body art procedures and the control of cross-
contamination of instruments and supplies. The bill would also require the owner of a
body art facility to obtain and annually renew a health permit from the local health
agency and to maintain the body art facility in a specified manner. These proposed
requirements would be more regulatory in nature than the current county registration
requirement.
The proposed code amendment would establish body art facilities, including body
piercing, tattooing, or the application of permanent cosmetics, as a permitted use within
the City of Tustin Retail Cammercial (C-1), Central Commercial (C-2), Heavy
Commercial (C-3), and Commercial General (CG) Zoning Districts, subject to
operational requirements, and establish that all body art practitioners practicing at such
facilities shall be licensed by the City. In addition, under existing Code provisions body
art facilities could be permitted in other zoning districts if the Community Development
Director and/or Planning Commission were to determine that a body art facility is similar
to another permitted use.
Planning Commission Report
September 13, 2011
Presentation on Tustin Legacy Disposition Strategy
Page 3
In consultation with the City Attorney, it is recommended that body art facilities be listed
as a permitted use rather than a conditionally permitted use because of the practical
and legal constraints placed upon the City by the Anderson v. City of Hermosa Beach
case. If a conditional use permit were required, denial would be difficult to justify in
individual cases, and the grounds for denial would need to be based on health and
safety matters that would be covered by the County health permit.
The proposed amendment to the Tustin City Code is necessary to: 1) enable the
inspection and regulation of body art facilities .within the City of Tustin by the Orange
County Health Care Agency; 2) establish a body art permit far body art practitioners;
and 3) permit body art facilities subject to operational requirements necessary and
appropriate to protect the health and safety of body art facilities.
The proposed amendments are consistent with the City of Tustin General Plan and
comply with Goal 4 of the Public Safety Element to reduce the risk to the community's
inhabitants from exposure to hazardous materials and wastes.
ENVIRONMENTAL ANALYSIS
Proposed Code Amendment 2011-006 is not subject to the California Environmental
Quality Act ("CEQA") pursuant to CEQA Guidelines Sections 15060{c)(2) (the activity
will not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c){3) (the activity is not a project as defined in Section 15378)
(Title 14, of the California Code of Regulations) because it has no potential for resulting
in physical change to the environment, directly or indirectly; it prevents changes in the
environment by requiring the approval of body art permits for body art practitioners and
imposing operational conditions on body art facilities.
PUBLIC NOTICE, CHAMBER OF COMMERCE REVIEW
A public notice was published in the Tustin News on September 1, 2011, informing the
public of proposed Code Amendment 2011-006. Copies of the proposed ordinance
were transmitted to the Tustin Chamber of Commerce. At the March 1, 2011, City
Council meeting, Councilmember Gavello requested additional outreach; therefore,
copies were also sent to individuals who have expressed interest in body art facilities
and to body art industry representatives.
°' ~ r
Scott Reekstin
Senior Planner
Elizabeth A. Binsack
Director of Community Development
Attachments:
A. Planning Commission Resolution No. 4181
B. U.S. Court of Appeals Ninth Circuit Court Decision:
Anderson v. City of Hermosa Beach
ATTACHMENT A
PLANNING COMMISSION RESOLUTION NO. 4181
RESOLUTION NO. 4181
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF TUSTIN, CALIFORNIA, RECOMMENDING
THAT THE TUSTIN CITY COUNCIL APPROVE CODE
AMENDMENT 2011-06 (ORDINANCE 1407) AMENDING
PART 4 OF CHAPTER 1 OF ARTICLE 4 OF THE TUSTIN
CITY CODE REGULATING THE INSPECTION OF BODY
ART FACILITIES BY THE ORANGE COUNTY HEALTH
CARE AGENCY; AMENDING PART 4 OF CHAPTER 1 OF
ARTICLE 3 ADDING DEFINITIONS PERTAINING TO
BODY ART; AMENDING PART 5 OF CHAPTER 6 OF
ARTICLE 3 PERTAINING TO A BODY ART PERMIT; AND
AMENDING SECTION 9232b OF PART 3 OF CHAPTER 2
OF ARTICLE 9 TO PERMIT BODY ART FACILITIES.
The Planning Commission of the City of Tustin hereby finds and determines as
follows:
A. That the proposed amendment to the Tustin City Code is necessary to: 1)
enable the inspection and regulation of body art facilities within the City of
Tustin by the Orange County Health Care Agency; 2) establish a body art
permit for body art practitioners; and 3) permit body art facilities subject to
operational requirements necessary and appropriate to protect the health
and safety of body art facilities.
B. That permanent cosmetics facilities are currently the only type of body art
facility permitted and regulated within the City of Tustin. Other types of
body art facilities include tattoo establishments and body piercing facilities.
C. That tattoo establishments and body piercing facilities are not listed as
permitted uses in the Tustin Zoning Code, and the Tustin City Code
contains no specific provisions regulating the location, development, or
operational characteristics of establishments where tattoos or body
piercings are placed on individuals.
D. That in a recent case, Anderson v. City of Hermosa Beach, the Ninth
Circuit Court of Appeals ruled that the City of Hermosa Beach's total
prohibition on the establishment and operation of tattoo parlors within the
city was unconstitutional, and that cities may only impose reasonable "time,
place, and manner" regulations on such activities. The Ninth Circuit held
that a tattoo, the process of tattooing, and the business of tattooing are
pure forms of expression fully protected by the First Amendment to the
United States Constitution, and that the City of Hermosa Beach's total ban
on tattoo parlors was not a reasonable "time, place, or manner" restriction.
Resolution No. 4181
CA 2011-06
Page 2
The Ninth Circuit's decision calls into question the effectiveness of the
Tustin City Code in regulating the act and/or business of tattooing and
addressing land uses related to tattooing.
E. That tattooing is an activity that, if undertaken in unsanitary conditions, can
lead to the transmission of infectious diseases, including hepatitis, syphilis,
tuberculosis, and NIV. Based upon the experience of other cities, it is
reasonable to conclude that similar negative effects could occur in the City
of Tustin as a result of the establishment or operation of tattoo
establishments that do not meet minimum sterilization, sanitation, and
safety standards.
F. That the City has received inquiries regarding the permitting and
establishment of tattoo establishments within the City. The issuance or
approval of any business license, permit or other entitlement for the
establishment or operation of tattoo establishments is a threat to the public
health, safety, and welfare in that there currently are no specific standards
or regulations in the Tustin City Code that comprehensively address the
potential negative effects associated with the location and operation of
such facilities. Absent reasonable time, place, and manner regulations
governing tattoo establishments, such uses could be established in areas
of the City where they are inconsistent and/or incompatible with the
surrounding land uses and/or operated under unsanitary conditions,
thereby increasing the risk of transmission of infectious diseases.
G. That the proposed amendment will establish body art facilities, including
body piercing, tattooing, or the application of permanent cosmetics, as a
permitted use within the City of Tustin Retail Commercial (C-1 ), Central
Commercial (C-2), Heavy Commercial (C-3), and Commercial General
(CG} Zoning Districts, subject to operational requirements, and establish
that all body art practitioners practicing at such facilities shall be licensed
by the City.
H. That on March 20, 2007, the Tustin City Council adopted Ordinance No.
1324 to enable the inspection and regulation of permanent cosmetics
facilities within the City of Tustin by the Orange County Health Department.
That on February 1, 2011, the Tustin City Council adopted Interim Urgency
Ordinance No. 1392 relating to the establishment or operation of tattoo
establishments.
J. That on March 1, 2011, the Tustin City Council adopted Interim Urgency
Ordinance No. 1396, which extended Interim Urgency Ordinance No. 1393
for an additional period of ten (10) months and fifteen (15) days.
Resolution No. 4181
CA 2011-06
Page 3
K. That the proposed amendment is not subject to the California
Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines
Sections 15060(c)(2) (the activity will not result in a direct or reasonably
foreseeable indirect physical change in the environment) and 15060(c)(3)
(the activity is not a project as defined in Section 15378) (Title 14, of the
California Code of Regulations) because it has no potential for resulting in
physical change to the environment, directly or indirectly; it prevents
changes in the environment by requiring the approval of body art permits
for body art practitioners and imposing operational conditions on body art
facilities.
L. That on September 13, 2011, a public hearing was duly noticed, called and
held by the Tustin Planning Commission on Code Amendment 2011-06
(Ordinance No. 1407).
M. That the proposed amendments are consistent with the City of Tustin
General Plan and comply with Goal 4 of the Public Safety Element to
reduce the risk to the community's inhabitants from exposure to hazardous
materials and wastes.
II. The Planning Commission hereby recommends that the City Council adopt
Ordinance No. 1407 approving Code Amendment 2011-06 attached hereto as
Exhibit A, regarding body art facilities.
PASSED AND ADOPTED at a regular meeting of the Tustin Planning Commission
held on the 13t" day of September, 2011.
JEFF R. THOMPSON
Chairperson
ELIZABETH A. BINSACK
Planning Commission Secretary
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF TUSTIN )
I, ELIZABETH A. BINSACK, the undersigned, hereby certify that I am the Planning
Commission Secretary of the Planning Commission of the City of Tustin, California;
Resolution No. 4181
CA 2011-06
Page 4
that Resolution No. 4181 was duly passed and adopted at a regular meeting of the
Tustin Planning Commission, held on the 13th day of September, 2011.
ELIZABETH A. BINSACK
Planning Commission Secretary
EXHIBIT A
ORDINANCE NO. 1407
ORDINANCE NO. 1407
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN,
AMENDING PART 4 OF CHAPTER 1 OF ARTICLE 4 OF THE TUSTIN
CITY CODE REGULATING THE INSPECTION OF BODY ART
FACILITIES BY THE ORANGE COUNTY HEALTH CARE AGENCY;
AMENDING PART 4 OF CHAPTER 1 OF ARTICLE 3 ADDING
DEFINITIONS PERTAINING TO BODY ART; AMENDING PART 5 OF
CHAPTER 6 OF ARTICLE 3 PERTAINING TO A BODY ART PERMIT;
AND AMENDING SECTION 9232b OF PART 3 OF CHAPTER 2 OF
ARTICLE 9 TO PERMIT BODY ART FACILITIES.
The City Council of the City of Tustin hereby ordains as follows:
Section I. The City Council finds and determines as follows:
A. That the proposed amendment to the Tustin City Code is necessary to:
1) enable the inspection and regulation of body art facilities within the
City of Tustin by the Orange County Health Care Agency; 2) establish
a body art permit for body art practitioners; and 3) permit body art
facilities subject to operational requirements necessary and
appropriate to protect the health and safety of body art facilities.
B. That permanent cosmetics facilities are currently the only type of body
art facility permitted and regulated within the City of Tustin. Other
types of body art facilities include tattoo establishments and body
piercing facilities.
C. Tattoo establishments and body piercing facilities are not listed as
permitted uses in the Tustin Zoning Code, and the Tustin City Code
contains no specific provisions regulating the location, development, or
operational characteristics of establishments where tattoos or body
piercings are placed on individuals.
D, In a recent case, Anderson v. City of Hermosa Beach, the Ninth Circuit
Court of Appeals ruled that the City of Hermosa Beach's total
prohibition on the establishment and operation of tattoo parlors within
the city was unconstitutional, and that cities may only impose
reasonable "time, place, and manner" regulations on such activities.
The Ninth Circuit held that a tattoo, the process of tattooing, and the
business of tattooing are pure forms of expression fully protected by
the First Amendment to the United States Constitution, and that the
City of Hermosa Beach's total ban on tattoo parlors was not a
reasonable "time, place, or manner" restriction. The Ninth Circuit's
decision calls into question the effectiveness of the Tustin City Code in
regulating the act and/or business of tattooing and addressing land
uses related to tattooing.
E. Tattooing is an activity that, if undertaken in unsanitary conditions, can
lead to the transmission of infectious diseases, including hepatitis,
777346.3
syphilis, tuberculosis, and HIV. Based upon the experience of other
cities, it is reasonable to conclude that similar negative effects could
occur in the City of Tustin as a result of the establishment or operation
of tattoo establishments that do not meet minimum sterilization,
sanitation, and safety standards.
F. The City has received inquiries regarding the permitting and
establishment of tattoo establishments within the City. The issuance
or approval of any business license, permit or other entitlement for the
establishment or operation of tattoo establishments is a threat to the
public health, safety, and welfare in that there currently are no specific
standards or regulations in the Tustin City Code that comprehensively
address the potential negative effects associated with the location and
operation of such facilities. Absent reasonable time, place, and
manner regulations governing tattoo establishments, such uses could
be established in areas of the City where they are inconsistent and/or
incompatible with the surrounding land uses and/or operated under
unsanitary conditions, thereby increasing the risk of transmission of
infectious diseases.
G. The City has completed a study, which is incorporated in the City
Council Report dated October 4, 2011, regarding appropriate
operational requirements necessary to protect the public health, safety,
and welfare of the community and employees of body art facilities from
impacts associated with the operation of body art establishments.
H. That the proposed amendment will establish body art facilities,
including body piercing, tattooing, or the application of permanent
cosmetics, as a permitted use within the City of Tustin Retail
Commercial (C-1 ), Central Commercial (C-2), Heavy Commercial (C-
3), and Commercial General (CG) Zoning Districts, subject to
operational requirements established below, and establish that all body
art practitioners practicing at such facilities shall be licensed by the
City.
That on March 20, 2007, the Tustin City Council adopted Ordinance
No. 1324 to enable the inspection and regulation of permanent
cosmetics facilities within the City of Tustin by the Orange County
Health Department.
J. That on February 1, 2011, the Tustin City Council adopted Interim
Urgency Ordinance No. 1392 relating to the establishment or operation
of tattoo establishments.
K. That on March 1, 2011, the Tustin City Council adopted Interim
Urgency Ordinance No. 1396, which extended Interim Urgency
Ordinance No. 1393 for an additional period of ten (10) months and
fifteen (15) days.
L. That the proposed amendment is not subject to the California
Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines
777346.3
Sections 15060(c)(2) (the activity will not result in a direct or
reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section
15378) (Title 14, of the California Code of Regulations) because it has
no potential for resulting in physical change to the environment,
directly or indirectly; it prevents changes in the environment by
requiring the approval of body art permits for body art practitioners and
imposing operational conditions on body art facilities.
Section II
PART 4
4140.010
M. That on September 13, 2011, the Tustin Planning Commission held a
public hearing on proposed Code Amendment 2011-006 and adopted
Resolution No. 4181 recommending that the Tustin City Council
approve Code Amendment 2011-006.
N. That on October 4, 2011, a public hearing was duly noticed, called,
and held before the City Council concerning Code Amendment 2011-
006.
O. That the proposed amendments are consistent with the City of Tustin
General Plan and comply with Goal 4 of the Public Safety Element to
reduce the risk to the community's inhabitants from exposure to
hazardous materials and wastes.
Part 4 of Chapter 1 of Article 4 is hereby amended to read as follows:
BODY ART FACILITIES
4140.010 DEFINITIONS
4140.020 EXPOSURE CONTROL TRAINING
4140.030 INFECTION PREVENTION AND CONTROL PLAN
4140.040 BODY ART FACILITIES
4140.050 PREEMPTION
4140.060 CLEANING, STERILIZATION, AND HOUSEKEEPING
4140.070 EQUIPMENT PURCHASED PRE-STERILIZED
4140.080 CLIENTS
4140.090 PRACTITIONER
4140.100 SKIN PREPARATION
4140.110 TATTOO AND PERMANENT COSMETIC APPLICATION
4140.120 BODY PIERCING
4140.130 SHARPS DISPOSAL
4140.140 TEMPORARY BODY ART FACILITIES
4140.150 MOBILE BODY ART FACILITIES
4140.160 ENFORCEMENT AUTHORITY
4140.170 REGISTRATION
4140.180 PERMIT AND FEE REQUIREMENTS
4140.190 PENALTIES
4140.200 PERMIT SUSPENSION OR REVOCATION
4140.210 HOURS OF OPERATION
4140.220 MANAGEMENT OF OPERATIONS
4140.230 NUISANCE
DEFINITIONS
7773463
As used in this Chapter, unless the context otherwise requires, the following terms
shall have the meanings ascribed to them respectively:
(a) "Antiseptic" means a liquid or semi-liquid substance that is approved by the U.S. Food
and Drug Administration, as indicated on the label, to reduce the number of
microorganisms present on the skin and on mucosal surfaces.
(b) "Bloodborne pathogen(s)" means disease causing microorganisms that, when
present in the blood, can be transmitted to humans. These microorganisms include,
but are not limited to, Hepatitis B Virus (HBV), Hepatitis C Virus (HCV) and Human
Immunodeficiency Virus (HIV).
(c) "Body art" means the practice of physical body adornment including, but not limited
to, the following techniques: body piercing, tattooing or application of permanent
cosmetics.
(d) "Body art facility" means the area within a building or other location in which a
practitioner performs body piercing, tattooing or application of permanent cosmetics,
including the preparation and procedure area, as defined in this Chapter.
(e) "Body piercing" means the creation of an opening in the human body for the purpose
of inserting jewelry or decorative objects. This includes, but is not limited to, piercing
of an ear, lip, tongue, nose, belly button, cheek, forehead or eyebrow. Body piercing
does not, for the purpose of this Chapter, include piercing the leading edge or earlobe
of the ear with a sterile, disposable, single-use stud or solid needle that is applied
using a mechanical device to force the needle or stud through the ear.
(f} "Client" means any individual who receives a body piercing, tattoo or application of
permanent cosmetics from a practitioner as defined in this Chapter.
(g) "Disinfectant" means a product that is approved by the U.S. Environmental Protection
Agency, as indicated on the label, to reduce or eliminate the presence of disease
causing microorganisms.
(h) "Health officer" means the Orange County Health Officer or designee.
(i) "Instrument" means any tattooing, body piercing or permanent cosmetics equipment
or device that comes into contact with intact skin, non-intact skin, or mucosal
surfaces. Such equipment includes, but is not limited to, needles, needle bars, needle
tubes, forceps, hemostats, tweezers, razors, razor blades, or other tools and devices
used to insert pigment or pierce the skin or mucosal surfaces of the human body.
Such equipment also includes studs, hoops, rings or other decorative jewelry,
materials or apparatuses inserted into any part of the body for the intended purpose
of placement in a hole resulting from the piercing.
(j} "Permanent cosmetics" means the application of pigments inserted into or under the
surface of human skin for the purpose of permanently changing the color or
appearance of the skin. This includes, but is not limited to, permanent eyeliner, eye
shadow, or lip color.
7773463
(k) "Permanent cosmetics facility" means the area within a building in which a practitioner
performs the application of permanent cosmetics, including the preparation and
procedure area, as defined in this Chapter.
(I) "Practitioner" means an individual who performs tattooing, body piercing, or who
applies permanent cosmetics as defined in this Chapter.
(m) "Preparation Area" means a room or a designated portion of a room that is used to
clean and sterilize reusable instruments that are used for tattooing, body piercing, or
permanent cosmetics.
(n) "Procedure area" means a room or a designated portion of a room where tattooing,
body piercing or the application of permanent cosmetics is performed.
(o) "Proprietor" means the person having general control and management over the
conduct of business at a body art facility, or the person operating such establishment,
whether or not such person is the legal owner of the premises or the business.
(p) "Purchased pre-sterilized equipment" means any individually packaged, single-use
instruments, devices and/or needles that are obtained after processing to render
them free of all microbial life forms. Each package shall have the manufacturer's
processing identification number and date of expiration.
(q) "Sharps waste" means any instrument or object, including but not limited to needles
or razor blades, that has been used to penetrate the skin or mucosa to perform
tattooing, body piercing or the application of permanent cosmetics, or otherwise
contaminated by coming into contact with blood or surfaces that have not been
disinfected or sterilized.
(r} "Sterilization" means the complete destruction of all microbial life forms including
spores. Sterilization includes the use of an appropriate and approved method of
testing so as to ensure sterilization.
(s) "Tattooing" means to pierce or puncture the human skin with a needle or other
instrument for the purpose of the application of pigments or the inserting of pigment
under the surface of the skin; the application of pigments or inks inserted into or
under the skin for the purpose of producing a mark or by production of scars.
4140.020 EXPOSURE CONTROL TRAINING
(a) Prior to registration as a body art practitioner with the County Health Care Agency, all
body art practitioners shall complete and submit proof of completion to the county, of
an Exposure Control Training Program that meets or exceeds the requirements of this
Chapter.
(b) The person conducting the training shall be knowledgeable in the subject matter
covered by the elements defined in section 4140.020(d).
(c) The organization providing the Exposure Control Training shall provide appropriate
written training materials to each trainee.
7773463
(d) The content of the Exposure Control Training Program shall include:
(1) California Occupational Safety and Health Administration Bloodborne Pathogens
Standard and other applicable standards and regulations with pertinent
explanations.
(2) The causes, control, and symptoms of the diseases caused by bloodborne
pathogens.
(3) The modes of transmission of bloodborne pathogens.
(4) A discussion of risks involved in the application of body art and how they may
lead to exposure to bloodborne pathogens for the client or body art practitioner.
(5) The use of personal protective equipment such as disposable gloves and an
explanation of the limitations of the equipment.
(6) The importance of hand washing and a demonstration of the hand washing
process as described in Section 4140.090.
(7) The types, proper technique and order of tasks before and after putting on and
removing gloves to avoid cross-contamination.
(8) Activities that compromise a disinfected work area, a sterile procedure site, inks
and pigments, sterile instruments and disinfected skin area.
(9) Choosing, using and storing disinfectants and antiseptics.
(10) Signs required for contaminated materials and the importance of labeling
chemicals and supplies.
(11) Information on Hepatitis B vaccine, including its efficacy, safety and method of
administration.
(12) What constitutes a bloodborne pathogen exposure incident, including:
a. How the exposure occurred and what actions are to be taken to prevent or
minimize future exposures.
b. Risk of infection following a bloodborne pathogen exposure incident.
c. Procedures to be followed after an exposure incident, including medical
follow-up.
d. Opportunity for interactive questions and answers with the instructor.
4140.030 INFECTION AND PREVENTION CONTROL PLAN
(a) Each proprietor shall establish, maintain and follow, at each body art facility, a written
Infection Prevention and Control Plan.
777346.3
(b) The Infection Prevention and Control Plan shall include, at a minimum, the following:
(1) Procedures for cleaning and disinfection of surfaces in the preparation and
procedure areas.
(2) Procedures for maintaining the sterility or integrity of instruments, equipment and
other material used during tattooing, body piercing, or permanent cosmetics.
(3) Procedures for cleaning, packaging, sterilizing, and storing reusable instruments,
and equipment.
(4) Procedures for safe handling and disposal of sharps waste.
(5) Inventory (names, manufacturers, container size) of all chemicals and
disinfectants and their intended use.
(c) The Infection Prevention and Control Plan shall be revised by the proprietor
whenever changes in practices or procedures are made.
(d) The proprietor shall be responsible for ensuring that the Infection Prevention and
Control Plan is followed.
4140.040 BODY ART FACILITIES
(a) The health permit shall be posted in a conspicuous place in the lobby of the body art
facility.
(b) Body art facilities shall not be used as a food establishment, for human habitation or
any other use which may cause contamination of instruments or equipment used for
body art activities.
(c) The floors, furnishings and equipment of body art facilities shall be kept clean at all
times during business hours.
(d) Adequate lighting and ventilation shall be provided in the preparation and procedure
areas.
{e) Adequate toilet facilities shall be available. Toilet rooms and bathrooms shall not be
used for the storage of instruments, or other supplies used for body art activities.
(f} Rooms used for tattooing, body piercing or permanent cosmetic procedures shall be
separated by a wall or partition from those areas used for nail, hair and other
activities.
(g) All sinks shall be supplied with hot (110°F minimum) and cold running water.
(h} A sink that is readily accessible to the body art practitioner shall be provided and
equipped with liquid soap and single use paper towels dispensed from wall-mounted
dispensers that protect the supply from contamination.
777346.3
(i) Pets or other animals shall not be allowed in the body art facility, except for trained
guide or assistance animals for the disabled. No trained guide or assistance animal
shall be allowed in the procedure or preparation area.
Q) No person shall utilize or maintain in a body art facility equipment that does not
comply with the requirements of this Chapter.
(k} The proprietor shall maintain the body art facility and the general premises under the
control of the proprietor in a clean and sanitary manner.
(I) All solid surfaces and objects in the procedure area and preparation area shall be
immediately cleaned and disinfected after each use with an appropriate bleach
solution or other Environmental Protection Agency (EPA) registered disinfectant that
is labeled as tuberculocidal. Manufacturer's instructions for concentration, contact
time, and disposal requirements for all disinfectants must be observed.
(m) The practitioner shall wear disposable gloves on both hands when touching, cleaning
or handling a surface or object soiled or potentially soiled with blood. Disposable
gloves worn by the body art practitioner shall be promptly removed, and hands
immediately washed whenever the practitioner leaves a procedure or preparation
area.
(n) Each procedure and preparation area shall have waste receptacles, which are lined
with plastic bags manufactured for use in waste containers that fold over the top
margin of the waste container.
4140.050° PREEMPTION
,:
The provisions of this Chapter are intended to supplement applicable state law and to
be in addition to, and not in conflict with such laws. Each provision shall remain in effect until
the enactment of state laws or the promulgation of state regulations that conflict with or
otherwise preempt the authority of the County of Orange or the City of Tustin to control the
conduct described in this Chapter.
4140.060 CLEANING, STERILIZATION, AND HOUSEKEEPING
(a) Instruments that pierce the skin or touch non-intact skin that will be reused shall be
cleaned, packaged in appropriately labeled sterilizer pouches and sterilized prior to
reuse.
(b) Used instruments that will be sterilized and reused shall be placed in a container of
clean water until cleaned and sterilized. Used instruments must be kept physically
separated from sterilized or unused disposable instruments. Disposable instruments
must be disposed of directly into a sharps container or into the appropriate trash
receptacle after use.
(c) Ultrasonic cleaners, if used, shall be maintained and operated according to
manufacturer's instructions.
777346.3
(d) If an ultrasonic cleaner is not available, instruments shall be cleaned and disinfected
manually by scrubbing with a brush and a disinfectant used according to
manufacturer's instructions.
(e) Clean instruments to be sterilized shall be first placed in sterilizer pouches that
contain either a sterilizer indicator or internal temperature indicator. Each pack shall
contain instruments for not more than one client. The outside of the pack shall be
labeled with the name of the instrument, date sterilized and initials of the person
operating the equipment.
(f) Instruments must be repackaged and re-sterilized if the pouch is torn or otherwise
compromised, if the indicator shows that adequate temperature was not reached or if
the item is not used within 6 months of the date of sterilization.
(g) Sterilized instruments must be maintained and stored in sterilized pouches until use.
(h) Sterilizers shall be operated according to manufacturer's instructions. If
manufacturer's instructions cannot be obtained, steam sterilization shall be
accomplished in an autoclave with at least 15 pounds of pressure per square inch at
a temperature of 250 degrees Fahrenheit for at least 30 minutes or as instructed by
the local Health Officer should the standards for sterilization change from time to time.
(i) Liquid sterilants shall not be used to sterilize instruments.
{j) Sterilized instruments shall be placed in clean, dry, labeled containers or stored in a
labeled cabinet that is protected from dust and water contamination.
(k) Sterilization equipment shall meet the following requirements:
(1) Only sterilizers intended for medical instruments shall be used. Sterilization
equipment shall be cleaned, and maintained according to manufacturer's
instructions.
(2) Sterilization equipment shall be tested after the initial installation, after any major
repair, and at the frequency recommended by the manufacturer. If no
manufacturer's recommendation can be found, then the unit shall be tested at
least weekly utilizing a biological monitoring system appropriate for the sterilizer
type.
(3) Biological indicator test results shall be maintained on site and available for
review for a period of two years subsequent to the date of the results.
(I) A written log of each sterilization cycle shall be maintained on-site and available for
review for a period of two years, and shall include the following information:
(1) Date of load.
(2) The contents of the load.
(3) The exposure time and temperature.
7773463
(4) The results of the chemical indicator.
4140.070 EQUIPMENT PURCHASED PRE-STERILIZED
(a) A practitioner using only purchased, disposable, single use and pre-sterilized
instruments shall not be required to have sterilization equipment.
(b) Invoices for the purchase of all pre-sterilized instruments must be maintained onsite
and available for review for a period of two years after purchase. Required invoices
include but are not limited to combo couplers, needle chambers, barrels, casings, tips
and needles.
4140.080 CLIENTS
(a) No body art procedure shall be performed on skin surface areas containing any rash,
pimples, boils, or infection or otherwise manifesting any evidence of unhealthy
conditions including but not limited to any evidence of inflammation, such as redness,
swelling, infection, or open or draining lesions.
(b} Prior to receiving a tattoo, body piercing or permanent cosmetics, the client shall
read, sign and receive a copy of an informed consent form and post-procedure
instructions appropriate to the procedure.
(c) A copy of the signed informed consent form and post procedure instructions for all
body art procedures must be maintained onsite and available for review for a period
of two years after the procedure is performed.
(d) The consent form and post-procedure instructions shall include at a minimum, the
following:
(1) Record of information from the client's picture identification showing the name,
date of birth, gender, address of client, and driver's license or identification card
number.
(2) A summary, including the date, location and description of the procedure.
(3) What to expect following the procedure, including any medical complications
that may occur as a result of the procedure.
(4) A statement regarding the permanent nature of body piercing, tattooing or
permanent cosmetics.
(5) A questionnaire regarding a client history of herpes, diabetes, allergic reactions
to latex or antibiotics, hemophilia or any other bleeding disorder or the use of
anticoagulants, which may prevent the healing of the site where the tattoo or
permanent cosmetics were applied, and of cardiac valve disease or of being
prescribed antibiotics prior to dental or surgical procedures.
(6} Post-procedure instructions on the care of the site of the tattoo, body piercing, or
permanent cosmetics.
777346.3
(7) Post-procedure restrictions on activities such as bathing, swimming, gardening
or contact with animals.
(8) Information regarding signs and symptoms of infection and to immediately
consult a physician if any of the listed signs and symptoms of infection occur.
4140.090 PRACTITIONER
(a) No body art operation shall be performed unless the practitioner is free of pustular
skin lesions and any communicable diseases that could be transmitted in the normal
practice of body art.
(b) No practitioner shall eat, drink or smoke while performing a body art procedure.
(c) No practitioner shall perform a body art procedure with unclean hands. For purposes
of this section, hands shall not be considered clean unless they have been thoroughly
washed with soap from a single service dispenser and warm water vigorously rubbing
all surfaces of lathered hands for at least ten (10) seconds, followed by thorough
rinsing under a stream of water. Hands shall be dried using single service towels from
a sanitary dispenser or hot air blower. Practitioners shall wear new, disposable exam
gloves for every client during the procedure. Gloves shall be discarded between each
client, and hands shall be washed each time gloves are changed. If a glove is
pierced, torn, or contaminated by coming into contact with any other person, or
contaminated surface, both gloves shall be removed and discarded. A single pair of
gloves shall not be used on more than one person.
4140.100 SKIN PREPARATION
No body art operation shall be performed unless the skin is adequately prepared prior
to the operation. For purposes of this section, skin shall be considered properly prepared if it
is thoroughly cleaned with an antiseptic according to manufacturer's instructions. If
necessary, the skin shall be shaved with a new, single use disposable razor.
4140.110 TATTOO AND PERMANENT COSMETICS APPLICATION
(a) All inks, pigments, petroleum jellies, soaps, and other reusable products used in a
procedure shall be dispensed from containers in a manner to prevent contamination
of the original container and its contents.
(b) Pigments shall be placed into clean single use cups or caps that shall be disposed of
immediately upon completion of the procedure.
(c) Single-use rinse cups shall be disposed of immediately upon completion of the
procedure.
(d) Reusable rinse cups shall be cleaned and disinfected upon completion of the
procedure.
(e) All inks, dyes or pigments used shall be commercially manufactured for the procedure
and shall be used according to manufacturer's instructions.
7773463
(f) All products applied to the skin including stencils shall be single use and disposed
into a waste receptacle after the procedure.
(g} Needles and needle bars shall be sterilized prior to tattooing or application of
permanent cosmetics or shall be purchased pre-sterilized. Needles shall be used only
once and then disposed of. When the needle bar is to be reused the used needles
shall be either carefully removed from the needle bar to reduce the risk of needle
stick injury to the practitioner and disposed of in a sharps container, or the needle bar
and needles shall be first cleaned by soaking in a disinfectant and cleaning with a
brush or cleaning in an ultrasonic cleaner, and then the needles removed from the
needle bar and disposed of in a sharps container.
(h) If a rotary pen, or traditional coil machine that reuses components is used, then the
use of sterilization equipment shall be required for sterilization of the reusable parts
that make contact with the client or blood.
(i) All rotary pens and other devices used to apply pigments must be designed and used
to prevent backflow of pigments into the machine.
4140.120 BODY PIERCING
(a) All jewelry or other objects to be placed in newly pierced skin shall be sterilized, or
purchased pre-sterilized, be in good condition, and be designed and manufactured for
insertion into the intended body part.
(b) Only jewelry or other objects made of implant grade stainless steel, solid 14K through
24K gold, niobium, titanium, platinum or other materials determined to be equally bio-
compatible shall be placed in newly pierced skin.
4140.130 SHARPS DISPOSAL
(a) Each procedure area shall have a container for the disposal of sharps waste that is
rigid, puncture resistant, leak proof and that is closeable and sealable so that when
sealed, the container cannot be reopened without great difficulty. The container must
be labeled with the words "sharps waste" or with the international biohazard symbol
and the word "BIOHAZARD."
(b} All sharps waste produced during the process of tattooing, body piercing and
permanent cosmetics shall be disposed of by one of the following methods:
(1) Steam sterilized on-site and disposed of as solid waste. If this method is utilized,
a chemical indicator strip or tape that indicates that the container has been
treated must be affixed prior to sterilization, and shall stay affixed to the
container when it is disposed.
(2) Treated on-site by a method approved by the Health Officer, and disposed of as
solid waste.
(3) Removal and disposal through use of a Registered Medical Waste Hauler in
accordance with the provisions of the California Medical Waste Management
7773463
Act. Tracking documents must be maintained on-site and be available for review
for a period of two years from the date of removal from the body art facility.
4140.140 TEMPORARY BODY ART FACILITIES
Temporary body art facilities shall be prohibited in the City of Tustin.
4140.150 MOBILE BODY ART FACILITIES
Mobile body art facilities shall be prohibited in the City of Tustin.
4140.160 ENFORCEMENT AUTHORITY
The Health Officer or his or her designee is charged with the enforcement of this
Chapter, except for Sections 4140.210, 4140.220 and 4140.230. The City of Tustin Police
Department and the City of Tustin Code Enforcement Officer are also authorized to enforce
this ordinance. The Health Officer may, during the establishment's hours of operation and
other reasonable times, enter, inspect, search and secure samples, photographs, or other
evidence from any body art facility, or any location suspected of being a body art facility, for
the purpose of enforcing this Chapter. It is a violation of this Chapter for any person to refuse
to permit entry or inspection, the taking of samples or other evidence, or access to the facility
in order to copy any record as authorized by this Chapter, or to conceal any samples or
evidence, or withhold evidence concerning them. A written report of the inspection shall be
made and a copy shall be supplied or mailed to the proprietor or practitioner of the body art
facility.
4140.170 REGISTRATION
(a) Every practitioner as defined in this Chapter shall register with the Orange County
Health Care Agency and shall have on display so as to be readily visible to the public
proof that shows that the practitioner has registered, as specified in Health and Safety
Code Section 119303.
(b) Registration of all practitioners is required every three years.
4140.180 PERMIT AND FEE REQUIREMENTS
A body art facility shall not be open for business without: (1) at least one valid body
art permit issued by the Director of Community Development to a practitioner practicing body
art at that location during operating hours, (2) a valid City business license, and (3) a valid
County health permit. The Health Officer shall issue a health permit when inspection has
determined that the proposed body art facility and its method of operation will conform to the
requirements of this Chapter. A health permit, once issued, is nontransferable. Ahealth
permit shall be valid only for the proprietor and location approved. The Orange County Board
of Supervisors shall adopt fees for the health permit, practitioner registration, and related
services. Fees shall be sufficient to cover the actual expenses of administering and enforcing
this program.
777346.3
4140.190 PENALTIES
Violation of any section of this Chapter by the proprietor or practitioner shall constitute
a misdemeanor and upon conviction thereof shall be punishable by a fine not to exceed one
thousand dollars ($1,000.00) per day per violation or by imprisonment in the county jail for a
term not exceeding six (6) months, or both such fine and imprisonment. Each day the
violation continues and is not corrected shall be a treated as a separate and distinct violation.
4140.200 PERMIT SUSPENSION OR REVOCATION
(a) Whenever the Health Officer finds that a body art facility is not in compliance with the
requirements of this Chapter, a written inspection notice shall be issued to the
proprietor. If the proprietor fails to comply, the Health Officer shall issue to the
proprietor, a notice of violation setting forth the acts or omissions with which the
proprietor is charged. Failure to comply with the Notice of Violation within the noted
timeframe may result in health permit suspension.
(b) If any immediate danger to the public health or safety is found, unless the danger is
immediately corrected, the Health Officer may temporarily suspend the permit and
order the body art facility immediately closed. Immediate danger means any
condition, based upon inspection findings or other evidence that may cause disease
transmission, including, but not limited to:
(1 } Inadequate sterilization of equipment;
(2) Sewage contamination;
(3) Lack of potable water supply;
(4) Or any other condition, which in the opinion of the Health Officer, causes
immediate danger to public health and safety and requires temporary
suspension as noted above.
(c) Whenever a health permit is suspended as the result of an immediate danger to the
public health or safety, the Health Officer shall issue to the proprietor a notice setting
forth the acts or omissions with which the proprietor is charged.
(d) Any body art facility for which the health permit has been suspended shall close and
remain closed until the health permit has been reinstated.
(e) Where grounds for denial, suspension, non-renewal or revocation of a health permit
exist, the Orange County Sheriff, Health Officer or Code Enforcement Officer shall
serve the applicant or permit holder with a notice which shall state the reasons for the
proposed action, the effective date of the action, and of the right to appeal the action.
(f) Appeal shall be made by filing a written notice of appeal setting out the action
appealed from, the grounds of the appeal and the facts upon which the appeal is
based. The notice of appeal shall be filed with the Clerk of the Board of Supervisors
not more than thirty (30) days after service of the notice of proposed action. A copy of
the notice appealed from shall be attached to the notice of appeal. Notice of the date,
time, and place of the hearing on the appeal shall be mailed at least ten (10) days
?77346.3
prior to the date of the hearing by certified mail, return receipt requested, with proof of
service attached, addressed to the address on the permit.
(g) Hearing on the appeal shall be conducted by a Hearing Officer who shall preside over
the hearing, take evidence on the appeal and determine whether, on the basis of a
preponderance of the evidence, the appealed action shall be upheld. The Hearing
Officer shall render a written decision not less than forty-five (45} days after the date
of the appeal hearing. The decision of the Hearing Officer shall be final.
4140.210 HOURS OF OPERATION
(a) No body art facility shall operate except between the hours of 8 a.m. and 10 p.m.
Sunday through Thursday and between 8 a.m. and 12 a.m. on Friday and Saturday.
(b) The hours of operation shall be posted in a conspicuous place in the lobby of the
establishment and in a window or other location visible from the outside.
4140.220 MANAGEMENT OF OPERATIONS
(a) Each body art facility shall have a manager on the premises during all hours of
operation who shall be responsible for the operations and maintenance of the facility,
for compliance with all licensing requirements and to observe and supervise the
actions of all persons on the premises.
(b) Each body art facility shall provide a lobby or other seating area where customers
and other invitees of the business may be seated while waiting or otherwise not
having body art applied.
(c) No body art facility shall knowingly permit loud, boisterous, lewd, violent or
threatening behavior by clients or staff while in the facility or in any parking lot or
other adjacent area under the control of the body art facility.
4140.230 NUISANCE
(a) No body art facility shall be operated in a manner which constitutes a nuisance.
(b} Operation of a body art facility in violation of this Chapter or applicable penal or health
statute of the State of California shall constitute a public nuisance.
(c) A body art facility may be found to be a nuisance on the basis of multiple violations of
this Chapter, or any penal or health statute of the State of California or of multiple
complaints which have been the resolved against the proprietor.
(d) Nuisance determinations and abatement shall be made and performed in the manner
set forth in Sections 3-14-2 and following of the Codified Ordinances of the County of
Orange.
Section III. Section 3141 of Part 4 of Chapter 1 of Article 3 is hereby amended to add the
following definitions:
777346.3
Body art. The practice of physical body adornment including, but not limited to, the
following techniques: body piercing, tattooing or application of permanent cosmetics.
Body art facility. The area within a building or other location in which a practitioner
performs body piercing, tattooing or application of permanent cosmetics, as defined in this
Chapter, including the preparation and procedure area.
Body piercing. The creation of an opening in the human body for the purpose of
inserting jewelry or decorative objects. This includes, but is not limited to, piercing of an ear,
lip, tongue, nose, belly button, cheek, forehead or eyebrow. Body piercing does not, for the
purpose of this Chapter, include piercing the leading edge or earlobe of the ear with a sterile,
disposable, single-use stud or solid needle that is applied using a mechanical device to force
the needle or stud through the ear.
Tattooing. To pierce or puncture the human skin with a needle or other instrument for
the purpose of the application of pigments or the inserting of pigment under the surface of
the skin; the application of pigments or inks inserted into or under the skin for the purpose of
producing a mark or by production of scars.
Section IV. Part 5 of Chapter 6 of Article 3 is hereby amended to read as follows:
Part 5 BODY ART
3651 PERMIT REQUIRED
No person shall engage in the business of applying body art without obtaining a body
art permit issued by the Director. No person shall engage in the business of applying body
art except at aduly-licensed body art facility specified in the County health permit registration
form and in the City body art permit.
This Part does not restrict the activities of any physician or surgeon licensed under
Chapter 5 (commencing with Section 2000) of Division 2 of the Health and Safety Code.
3652 PREREQUISITES TO OBTAINING PERMIT
No person shall be eligible to receive a body ark permit until such person has
obtained a valid County health permit for a body art facility or until such person is employed
by a body art facility with a valid County health permit.
Any person who wishes to obtain a permit to engage in the business of applying body
art shall provide proof of: (1) registration with the County Health Department, (2) payment of
an annual County inspection fee, and (3) address(es) where the business is to be conducted
pursuant to Health and Safety Code Section 119303.
3653 APPLICATION REQUIREMENT
In addition to providing the information required on the City's application form, the
applicant shall provide evidence that a complete set of fingerprints of the applicant was taken
through the Livescan service.
777346.3
3654 OPERATIONAL REGULATIONS
A permittee shall not:
(1 } Do business at any location not specified in the County's registration form or
City permit; or
(2} Violate the sterilization, sanitation, and safety standards adopted by the State
Department of Health Services.
Section V. Section 9232a.2. of Part 3 of Chapter 2 of Article 9 is hereby amended to
sequentially reletter item numbers (d) through (s) and include body art
facilities as item (d) as follows:
(d) Body art facilities (as defined in section 3141, and subject to the
requirements of Part 4 of Chapter 1 of Article 4}
Section VI.
If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for
any reason determined to be invalid or unconstitutional by the decision of any court of
competent jurisdiction, such decision shall not affect the validity of the remaining portions of
this ordinance. The City Council of the City of Tustin hereby declares that it would have
adopted this ordinance and each section, subsection, sentence, clause, phrase, or portion
thereof irrespective of the fact that any one or more sections, subsections, sentences,
clauses, phrases, or portions be declared invalid or unconstitutional.
PASSED AND ADOPTED by the City Council of the City of Tustin, at a regular meeting on
the 4t" day of October, 2011.
JERRY AMANTE
Mayor
PAMELA STOKER
City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE ) SS
CITY OF TUSTIN 1
CERTIFICATION FOR ORDINANCE NO. 1407
PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, does hereby certify that the whole number of the members of the City Council of
the City of Tustin is 5; that the above and foregoing Ordinance No. 1407 was duly and
regularly introduced at a regular meeting of the Tustin City Council, held on the 4t" day of
October, 2011 and was given its second reading, passed, and adopted at a regular meeting
of the City Council held on the 18t" day of October, 2011 by the following vote:
COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
777346.3
COUNCI~MEMBER ABSTAINED:
COUNCI~MEMBER ABSENT:
PAMELA STOKER
City Clerk
777346.3
ATTACHMENT B
U.S. COURT OF APPEALS NINTH CIRCUIT COURT
DECISION: ANDERSON V. CITY OF HERMOSA BEACH
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FtJR THE NINTH CIRCUIT
Joxrrr[v ANDERS{?N, No
08-56914
Plaint~Appellant, .
D.C. No.
v. 2:07-ev-05923-
CITY OF HERMOSA BEACH, a CAS-E
California Municipal Corporation, OFIMON
Defendant-Appellee.
Appeal Pram the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted
May 7, 2010-Pasadena, California
Filed September 9, 2010
Before: John T. Noonan, Richard R. Clifton and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee;
Concurrence by Judge Noonan
13739
ANDERSON V. HERMOSA BEACH 13743
COUNSEL
Robert C. Moest, Law Offices of Robert C. Moest, Santa
Monica, California, for the plaintiff-appellant.
John C. Cotti, Jenkins & Hogin, LLP, Manhattan Beach, Cali-
fornia, for the defendant-appellee.
OPINION
BYBEE, Circuit Judge:
We address a question of first impression in our circuit:
whether a municipal ban on tattoo parlors violates the First
Amendment. Although courts in several jurisdictions have
upheld such bans against First Amendment challenges, see,
e.g., Hald Fast ~'attoo, LLC a City of North Chicago, 580 F.
Supp. 2d 656, 659-61 {N.D. Ill. 2008); Yurkew v. Sinclair,
495 F. Supp. 1248, 1253-55 (D. Minn. 1980); State v. Brady,
492 N.E.2d 34, 39 {Ind. Ct. App. 1986}; People v. O'Sullivan,
409 N.Y.S.2d 332, 333 (App. Div. 1978); State v. White, 560
S.E.2d 424, 423-24 (S.C. 2002}; Blue Horseshoe Tattoo, [~
Ltd. v. City of Norfotk, 72 Va. Cir. 388, 390 (Cir. Ct. 2007),
we respectfully disagree. We hold that tattooing is purely
expressive activity fully protected by the First Amendment,
and that a total ban on such activity is not a reasonable "time,
place, or manner" restriction.
1. BACKGROUND
Petitioner-Appellant Johnny Anderson seeks to establish a
tattoo parlor in Defendant-Appellee City of Hermosa Beach
13744 ANDbRSON V. HEftMOSA BEACH
(the "City"), but Hermosa Beach Municipal Code ("Code"}
§ 17.06.070 effectively bans tattoo parlors. Anderson sued the
City -under 42 U.S.C. ~ 1983, alleging that § 17.06.070 is
facially unconstitutional under the First and Fourteenth
Amendments. The parties filed cross-motions for summary
judgment, and the district court denied Anderson's motion
and granted the City's motion. Anderson now appeals this
decision.
We begin with the relevant background information, start-
ing with a brief explanation of the process and health implica-
tions of tattooing,' followed by a summary of the laws
regulating tattooing in the State of California and its subdivi-
sions, and ending with a more detailed description of the facts
and procedural history in Anderson's particular case.
A. Tattooing
A declaration provided by the City sums up well the pro-
cess of tattooing:
A tattoo is created by injecting ink into a person's
skin. To do this, an electrically powered tattoo
machine, often called a gun, moves a solid needle up
and down to puncture the skin between 50 and 3,000
times per minute. The needle penetrates the skin by
about a millimeter and deposits a drop of insoluble
ink into the skin with each puncture. The ink is
deposited in the dermis, which is the second layer of
skin.... Because the skin has been punctured many
times, the end result is essentially an open wound.
'Throughout most of this opinion, we use "tattooing" as shorthand to
refer not only to the process of tattooing but also to the business of
tattooing-that is, the procedure under which the tattooist injects a tattoo
into a person's skin in exchange for money. In Part IILA, however, we
break down tattooing into each of its component parts: the tattoo itself, the
physical process of tattooing, and the business of tattooing.
ANDERSON V. HERMOSA BEACH 13745
Tattooing carries the risk of infection and transmission of
disease "if unsanitary conditions are present or unsterile
equipment is used." Yurkew, 495 F. Supp. at 1252. The City's
declarations establish that tattooing can result in the transmis-
sion of such diseases as hepatitis, syphilis, tuberculosis, lep-
rosy, and HIV. Reports from the Centers far Disease Control
and Prevention and the Food and Drug Administration con-
firm the significant health risks of tattooing. See Centers for
Disease Control and Prevention, Body Art: Tattoos and Piere-
ings {Jan. 21, 2008), available at httpaJwww.cdc.gov!
featureslbodyart (last visited May 25, 2010) (noting risks of
infection, tuberculosis, Hepatitis B and C, and HIV); United
States Food and Drug Administration, Tattoos & Permanent
I~lakeup (Nov. 29, 2000), available at http:!lwww.fda.gov/
cosmeticslproductandingredientsafety/productinfarmation/
ucm 108530.htm {last visited May 25, 2010) {discussing risks
of infection, removal problems, potential allergic reactions,
and MRI complications).
In general, however, "tattooing is a safe procedure if per-
formed under appropriate sterilized conditions." Yurkew, 495
F. Supp. at 1252. "[T]attoo artists protect themselves and their
clients when following safe and healthy practices," including
"using sterile needles and razors, washing hands, wearing
gloves, and keeping surfaces clean." Centers for Disease Con-
trol and Prevention, supra; see also Mayo Clinic, Tattoos:
Understand Risks and Precautions (Feb. 16, 2010), available
at httpa/www.mayoclinic.comlhealth/tattoos-and-piercings/
mc00020 (last visited May 25, 2010) (providing a list of ques-
tions aperson should ask "[t]o make sure [his] tattoo will be
applied safely").
B. Tattooing Regulations
Because of the potential health concerns implicated by tat-
tooing, the State of California requires "[e]very person
engaged in the business of tattooing ... [to] register ...with
the county health department of the county in which that busi-
13746 ANDERSON V. HERMOSA BEACH
Hess iS COndueted," CAL. HEALTH c~ SAFETY CaDE ~ 119303{a),
and requires these county health departments to inspect the
registered tattoo parlors, id. § 119304. A person engaged in a
tattooing business "who fails to register as provided by Sec-
tion 119303... [is] subject to a civil penalty of five hundred
dollars {$500) per violation." Id. § 119306. Moreover, Cali-
fornia makes it illegal to "tattoo[ ] or offer[ ] to tattoo a per-
son under the age of 18 years." CAL. PENAL Cons § 653.
The City of Hermosa Beach lies within the County of Los
Angeles {"the County"). According to a declaration by Clara
Cartagena, an inspector of tattoo establishments for the
County, there are nearly 300 tattoo establishments in the
County and over 850 tattooists. However, Cartagena is the
only inspector in the County monitoring the parlars. Many tat-
too parlors have never been inspected and are subject to no
regulations other than the requirement to register with the
County. Thus, it is largely up to the owner of the tattoo estab-
lishment to sterilize his equipment and follow sterilization
procedures. According to Cartagena, "While most tattoo
establishments are clean and sanitary, others are not.... As
in any field, there are those practitioners that are unscrupulous
or incompetent and do not follow the proper sterilization pro-
cesses strictly. This poses a risk far infection." Cartagena has
also received complaints about illegal underage tattooing.
Although Los Angeles County generally permits tattooing
businesses, the City of Hermosa Beach does not. Hermosa
Beach Municipal Cade § 17.06.070 provides: "Except as pro-
vided in this title, no building shall be erected, reconstructed
or structurally altered, nor shall any building or land be used
for any purpose except as hereinafter specifically provided
and allowed in the same zone in which such building and land
is located." The Code provides zoning for a wide variety of
commercial uses, including movie theaters, restaurants, adult
businesses, bars, fortune tellers, gun shops, and youth hostels.
HERMOSA BEACH MuN. CODE § 17.26.030. Na provision of the
zoning code, however, permits tattoo parlors, and as a result,
AxorRSarr V. I~ERMaSA BEACH 13747
these facilities are banned from Hermosa Beach under section
17.Ob0A70. Indeed, on November 20, 2007, the City's Plan-
ning Commission adapted a resolution against amending the
Cade to permit tattoo parlors.
C. Facts and Procedural History
Plaintiff Appellant Johnny Anderson presently co-owns a
tattoo parlor in the City of Los Angeles, and seeks to establish
a tattoo parlor in the City of Hermosa Beach. Anderson
describes his own approach to tattooing in a declaration he
submitted to the district court:
The tattoo designs that are applied by me are indi-
vidual and unique creative works of visual art,
designed by me in collaboration with the person who
is to receive the tattoo. The precise design to be used
is decided upon after discussion with the client and
review of a draft of the design. The choices made by
bath me and by the recipient involve consideration
of color, light, shape, size, placement on the body,
literal meaning, symbolic meaning, historical aliu-
sian, religious impart, and emotional content. I
believe my designs are enormously varied and com-
plex, and include realistic depictions of people, ani-
mals and objects, stylized depictions of the same
things, religious images, fictional images, and geo-
metric shapes and patterns.... Sometimes, several
kinds of images are combined into a single tattoo ar
series of tattoos.... I have studied the history of tat-
taaing, and I draw significantly on traditional Ameri-
cana tattoo designs and on Japanese tattoo motifs in
creating my images, while ail the while trying to add
my own creative input to make the designs my awn.
On August 14, 2006, Anderson brought a 42 U.S.C. § 19$3
action against the City in the Central District of California,
alleging that Hermosa Beach Municipal Code § 17.06.070 is
13748 ANDERSON V. HERMOSA BLACH
facially unconstitutional under the First and Fourteenth
Amendments, and seeking declaratory relief, injunctive relief,
attorney's fees, costs, and any other relief the court deemed
appropriate. The district court initially dismissed Anderson's
claim for lack of ripeness because Anderson had not sought
permission to operate a tattoo parlor under the administrative
procedures provided in the Cade, which allow the community
development director to permit a commercial use not listed in
the zoning code if this use "is similar to and not mare objec-
tion[able] than other uses listed." HERMOSA BEACH MIIN. CODE
§ 17.26.440. In May 2007, Anderson filed a request with the
City's community development director seeking such a find-
ing of "similar use" so that he could open a tattoo parlor. By
a letter dated June 21, 2007, the request was denied, and
therefore Anderson was prohibited from opening a tattoo par-
lor in the City.
On September 12, 2007, Anderson filed the instant action
{similar to the first) in the Central District of California.
Anderson and the City filed crass-motions far summary judg-
ment on September 22, 2008. On October 27, 2008, the dis-
trict court issued a written decision granting the City's motion
far summary judgment and denying Anderson's motion. The
court "conclude[d] that the act of tattooing is not protected
expression under the First Amendment because, although it is
non-verbal conduct expressive of an idea, it is not `suffi-
ciently imbued with the elements of communication' " to
receive First Amendment protection under the Supreme
Court's decision in Spence v. Washington, 418 U.S. 405, 409
{ t 974) {per curiam). The court reasoned that "the customer
has ultimate control over which design she wants tattooed on
her skin" and, therefore, "the tattoo artist does not convey an
idea ar message discernible to an identifiable audience." Hav-
ing determined that the act of tattooing is not protected under
the First Amendment, the court applied rational basis review
to the City's ordinance and held that, "[g]iven the health risks
ANDERSOAI v. HERMOSA BEACH 13749
inherent in operating tattoo parlors, ...the City has a rational
basis for prohibiting tattoo parlors." Anderson timely appealed.2
II. FIRST AMENDMENT FRAMEWORK
[1] The First Amendment, applied to the states through the
Fourteenth Amendment, prohibits laws "abridging the free-
dom of speech." U.S. CONST. amend. I. The First Amendment
clearly includes pure speech, but not everything that commu-
nicates an idea counts as "speech" for First Amendment pur-
poses. The Supreme Court has consistently re}ected "the view
that an apparently limitless variety of conduct can be labeled
`speech' whenever the person engaging in the conduct intends
thereby to express an idea." United States v. O'Brien, 391
U.S. 367, 376 (1968) {analyzing a prosecution far the sym-
bolic burning of a draft card to protest the draft); see also
Cohen v. California, 403 U.S. 15, 18 {1971) (noting the
important distinction between "a conviction resting solely
upon `speech' "and one based "upon ...separately identifi-
able conduct which allegedly was intended ... to be per-
ceived by others as expressive of particular views but which,
on its face, does not necessarily convey any message").
[2] Thus, although pure speech is entitled to First Amend-
ment protection unless it falls within one of the "categories of
speech ...fully outside the protection of the First Amend-
ment," United States v. Stevens, 130 5. Ct. 1577, 1586 {2010);
see also Chaplinsky v. New Hampshire, 315 U.S, 568, 571-72
(1942), conduct intending to express an idea is constitution-
ally protected only if it is "sufficiently imbued with elements
of communication. to fall within the scope of the First and
Fourteenth Amendments," which means that "[a]n intent to
2"We review de novo a grant of summary judgment and must determine
whether, viewing the evidence in the light most favorable to the nonmov-
ing party, there are any genuine issues of material faot and whether the
district court correctly applied the relevant substantive law." Lopez v.
Smith, 203 F.3d 1122, 1131 (9th Cir. 200U} (en bane}.
13750 ANDERSON V. HERMOSA BEACH
convey a particularized message [is] present, and ...the like-
lihood [is] great that the message w[ill] be understood by
those who view[ ] it," Spence, 418 U.S. at 409-1 1. And even
where conduct expressive of an idea is protected by the First
Amendment, "[t]he government generally has a freer hand in
restricting expressive conduct than it has in restricting the
written or spoken ward." Texas v. Johnson, 491 U.S. 397, 406
{ 1989}. Restrictions on protected expressive conduct are ana-
lyzed under the four-part test announced in O'Brlen, a less
stringent test than those established for regulations of pure
speech.'
[3] Accordingly, our analysis proceeds as follows. Our
first task is to determine whether tattooing is (1 } purely
expressive activity or (2} conduct that merely contains an
expressive component. In other words, we must determine
whether tattooing is more akin to writing (an example of
purely expressive activity) or burning a draft card (an exam-
ple of conduct that can be used to express an idea but does not
necessarily do so). See D'Brierz, 391 U.S, at 370, 376; Cohen,
403 U.S. at l8. if tattooing is purely expressive activity, then
it is entitled to full First Amendment protection and the City's
regulation is constitutional only if it is a reasonable "time,
place, or manner" restriction on protected speech. Ward v.
Rock ,4gainst Racism, 491 U.S. 781, 791 (1989)." If, on the
3In O'Brien, the Court held that a regulation of protected expressive
conduct is constitutional:
[l1 if it is within the constitutional power of the Government; [21
if it furthers an important or substantial governmental interest; [3]
if the governmental interest is unrelated to the suppression of free
expression; and [41 if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the fur-
therance of that interest.
391 U.S. at 377.
°Anderson does not contend that the City's regulation is a content-based
restriction on speech. And with good reason, as the City bans all tattoo
parlors, not just those that convey a particular kind of message ar subject
matter. Thus, we do not subject the regulation to strict scrutiny.
ANDERSC7N V. HERMOSA BEACH I37S I
other hand, tattooing is merely conduct with an expressive
component, then it is entitled to constitutional protection only
if it is "sufficiently imbued with elements of communication
to fall within the scope of the First and Fourteenth Amend-
ments." Spence, 418 U.S. at 409. If so, then the constitutional-
ity of the ordinance is governed by the O'Brien test. If
tattooing is conduct that is not "sufficiently imbued with ele-
ments of communication," id., then we must determine only
whether the City's zoning regulation is rationally related to a
legitimate governmental interest, see Schad v. Borough of
Mount Ephraim, 4S2 U.S. 61, 68 {1981}.
With this complex legal framework in mind, we turn to
Hermosa Beach Municipal Code § 17.06.070.
III. ANALYSIS
We hold that Hermosa Beach Municipal Code § 17.06.070
is facially unconstitutional to the extent that it excludes tattoo
parlors. First, we hold that tattooing is purely expressive
activity rather than conduct expressive of an idea, and is thus
entitled to full First Amendment protection without any need
to resort to Spence's "sufficiently imbued" test. Second, we
hold that the City's total ban on tattooing is not a constitu-
tional restriction on protected expression because it is not a
reasonable "time, place, or manner" restriction.
A. Tattooing as First Amendment Expression
The district court assumed that the process of tattooing is
at most "non-verbal conduct expressive of an idea" rather
than speech itself. This determination is consistent with cases
from other courts that have emphasized the distinction
between the product and the process of tattooing and have
held that the physical process of tattooing is conduct subject
to Spence's "sufficiently imbued" test. See, e.g., Hold Fast
Tattoo, S84 F. Supp. 2d at 660 {analyzing tattooing under
Spence's framework based on the premise that "[t]he act of
13752 ANDERSON V. HERMOSA BEACH
tattooing is one step removed from the actual expressive con-
duet"); Yarrkew, 495 F. Supp. at 1253-54 (regardless of
"whether ...the image conveyed by the tattoo[ ] is an art
form ar amounts to art," "the process of tattooing is undeni-
ably conduct" that is subject to the Spence test}. These courts
then held that tattooing fails the Spence test. See, e.g., Hold
Fast Tattoo, 580 F. Supp. 2d at 660 (holding that "[t]he act
of tattooing ...itself is not intended to convey a particular-
ized message"}; Yurkew, 495 F. Supp. at 1253-54 (holding
that "the actual process of tattooing is not sufficiently com-
municative" to come within the First Amendment, because
"there has been no showing that the normal observer .. .
would regard the process of injecting dye into a person's skin
through the use of needles as communicative"); White, 560
S.E.2d at 423 ("Unlike burning [a] flag, the process of inject-
ing dye to create [a] tattoo is not sufficiently communicative
to warrant [First Amendment] protection[ ]."}. Similarly, the
City argues that "[t]he process of injecting dye into a person's
skin through the use of needles," in contrast with "any mes-
sage conveyed by the tattoo image, is non-expressive conduct
that must, in order to acquire First Amendment protection
[under Spence], carry with it an intent to Canvey a message
that will be understood by those who viewed it."
For the reasons set forth below, we disagree with the basic
premise underlying the conclusions of both the City and the
lower courts that have considered this issue. The tattoo itself,
the process of tattooing, and even the business of tattooing are
not expressive conduct but purely expressive activity fully
protected by the First Amendment.
The Tattoo
[4) There appears to be little dispute that the tattoo itself is
pure First Amendment "speech." The Supreme Court has con-
sistently held that "the Constitution looks beyond written or
spoken words as mediums of expression." Hurley v. Irish-
~4merican Gay, Lesbian and Bisexual Group of Boston, 515
ANDERSON V. HER:tiiOSA BEACH 13TS3
U.S. SS'l, 569 (1995}. Accordingly, the Supreme Court and
our court have recognized various farms of entertainment and
visual expression as purely expressive activities, including
music without words, Ward, 491 U.S. at 790; dance, Schad,
4S2 U.S. at 65-66; topless dancing, Doran v. Salem Inn, Inc.,
422 U.S. 922, 932-934 (1975); movies, .Joseph Bursryn, lnc.
v. Wilson, 343 U.S. 495, SO1-02 {1952}; parades with or with-
out banners or written messages, Hurley, S 1 S U.S. at 568; and
both paintings and their sale, White v. City of Sparks, S00
F.3d 953, 956 (9th Cir. 2007}. We have afforded these expres-
sive activities full constitutional protection without relying an
the Spence test. See Hurley, 515 U.S. at 569 {"[A] narrow,
succinctly articulable message is not a condition of constitu-
tional protection, which if confined to expressions conveying
a `particularized message,' would never reach the unquestion-
ably shielded painting of Jackson Pollack, music of Arnold
Schoenberg, or Jabberwocky verse of Lewis Carroll." (cita-
tion omitted) (quoting Spence, 418 U.S. at 411)}.
[5] Tattoos are generally composed of words, realistic or
abstract images, symbols, or a combination of these, all of
which are forms of pure expression that are entitled to full
First Amendment protection. Tattoos can express a countless
variety of messages and serve a wide variety of functions, "in-
cluding: decorative; religious, magical; punitive; and as an
indication of identity, status, occupation, or ownership." Mark
Gustafson, The Tattoo in the Later Roman Empire and
Beyond, ZYt WRITTEN ON THE BQDY: THE TATTOO IN EUROPEAN
AND AMERICAN 1-IISTaRY 17 (Jane Caplan ed., Reaktion Books
2000}; see also Alan Gavenar, The i~ariable Context of Chi-
cano Tattooing, in MARKS of C[VILIZATION 209 (Arnold Rubin
ed., Regents of the University of California 19$8) (discussing
the religious, social, and political purposes of tattooing); Clin-
ton R. Sanders, Drill and Frill: Client Choice, Client Typolo-
gies, and Interactional Control in Commercial Tattooing
SettingS, In MARKS OF CIVILIZATION, supra, at 222-23 {discuss-
ing the "wide variety of reasons" people choose to get a tat-
too, including symbolization of an interpersonal relationship,
t37S4 ANDERSON V. HERMOSA BEACH
participation in a group, representation of key interests and
activities, self-identification, and making a decorative or aes-
thetic statement}. We do not profess to understand the work
of tattoo artists to the same degree as we know the finely
wrought sketches of Leonardo da Vinci or Albrecht Durer, but
we can take judicial notice of the skill, artistry, and care that
modern tattooists have demonstrated.
[6~ The principal difference between a tattoo and, far
example, open-and-ink drawing, is that a tattoo is engrafted
onto a person's skin rather than drawn on paper. This distinc-
tion has no significance in terms of the constitutional protec-
tion afforded the tattoo; a form of speech does not lose First
Amendment protection based on the kind of surface it is
applied to. It is true that the nature of the surface to which a
tattoo is applied and the procedure by which the tattoo is cre-
ated implicate important health and safety concerns that may
not be present in other visual arts, but this consideration is rel-
evant to the governmental interest potentially just~ing a
restriction on protected speech, not to whether the speech is
constitutionally protected. We have little difficulty recogniz-
ing that a tattoo is a form of pure expression entitled to full
constitutional protection.
2. The Tattooing Process
Our next task is to determine whether the process of tattoo-
ing is purely expressive activity. We hold that it is. Spence's
"sufficiently imbued" test has been reserved for processes that
do not produce pure expression but rather produce symbolic
conduct that, "on its face, does not necessarily convey a mes-
sage." Cohen, 403 U.S. at 18. Burning a flag, see Johnson,
491 U.S. at 411, burning a draft card, see O Brien, 391 U.S.
at 370, and wearing a black armband, see Tinker v. Des
Moines Indep. Cmty..Sch. Dist., 393 U.S. 503, 505-06 (1969),
can be done for reasons having nothing to da with any expres-
sion, and so require an interpretive step to determine the
expressive elements of these processes.
ANDERSON V. HERMOSA BEACH 137SS
[7] However, neither the Supreme Court nor our court has
ever drawn a distinction between the process of creating a
form of pure speech (such as writing or painting) and the
product of these processes (the essay or the artwork) in terms
of the First Amendment protection afforded. Although writing
and painting can be reduced to their constituent acts, and thus
described as conduct, we have not attempted to disconnect the
end product from the act of creation. Thus, we have not drawn
a hard line between the essays John Peter Zenger published
and the act of setting the type. Cf. Minneapolis Star & Tri-
bune Co. v. Minn. Comm'r of~Revenue, 460 U.S. 575, 582
(1983} (holding that a tax on ink and paper "burdens rights
protected by the First Amendment"). The process of expres-
sion through a medium has never been thought so distinct
from the expression itself that we could disaggregate Picasso
from his brushes and canvas, or that we could value Beetho-
ven without the benefit of strings and woodwinds. In other
words, we have never seriously questioned that the processes
of writing words down on paper, painting a picture, and play-
ing an instrument are purely expressive activities entitled to
full First Amendment protection.
[8] Tattooing is a process like writing wards down or
drawing a picture except that it is performed on a person's
skin. As with putting a pen to paper, the process of tattooing
is not intended to "symbolize" anything. Rather, the entire
purpose of tattooing is to produce the tattoo, and the tattoo
cannot be created without the tattooing process any more than
the Declaration of Independence could have been created
without a goose quill, foolscap, and ink. Thus, as with writing
or painting, the tattooing process is inextricably intertwined
with the purely expressive product {the tattoo), and is itself
entitled to full First Amendment protection.
We are further persuaded by the fact that the process of tat-
tooing is more akin to traditional modes of expression (like
writing) than the process involved in producing a parade,
which the Supreme Court has held cannot be meaningfully
1375{7 ANDERSON V. HERMOSA BEACH
separated from the parade's expressive product in terms of the
constitutional protection afforded. See Hurley, 515 U.S. at
56$ (holding that "[p]arades are ... a form of expression, not
just motion," and noting "the inherent expressiveness of
marching"). Thus, we have no difficulty holding that the tat-
tooing process is entitled to the same First Amendment pro-
tection as the process of parading.
Moreover, it makes no difference whether or not, as the dis-
trict court determined, "the customer has [the] ultimate con-
trol over which design she wants tattooed an her skin." The
fact that bath the tattooist and the person receiving the tattoo
contribute to the creative process or that the tattooist, as
Anderson put it, "provide[s] a service," does not make the tat-
tooing process any less expressive activity, because there is
no dispute that the tattooist applies bis creative talents as well.
Under the district court's logic, the First Amendment would
not protect the process of writing most newspaper articles-
after all, writers of such articles are usually assigned particu-
lar stories by their editors, and the editors generally have the
last word on what content will appear in the newspaper. Nor
would the First Amendment protect painting by commission,
such as Michelangela's painting of the Sistine Chapel. As
with all collaborative creative processes, both the tattooist and
the person receiving the tattoo are engaged in expressive
activity.
3. The Business of Tattooing
(9] Finally, the fact that the City's ban relates to tattooing
businesses rather than the tattooing process itself does not
5'The City does not actually ban tattooing as such but simply does not
permit tattoo parlors in its zoning regulations. In other words, so far as we
can tell, the Code contains no provision that would prevent a person from
performing a tattoo on a family member in his house for free. And the
City's restrictions may not apply to cosmetic tattooing that may be per-
formed in a doctor's office, clinic, or beauty parlor.
ANDERSON V. HERMOSA BEACH 13757
affect whether the activity regulated is protected by the First
Amendment. In Crty of Sparks, we held that even "an artist's
sale of his original artwork constitutes speech protected under
the First Amendment." 500 F.3d at 954 (emphasis added). We
first emphasized the inherent expressiveness of the painting
itself-in particular, that a painting "conveys [the artist's]
sense of form, topic, and perspective[,] ...may express a
clear social position ... [or] the artist's vision of movement
and color, ... [and] holds potential to `affect public attitudes'
by spurring thoughtful reflection in and discussion among its
viewers." Id. at 956 (citation omitted) (quoting Joseph Burs-
tyn, 343 U.S. at 501}. We then rejected "the city's argument
that [plaintiff's] sale of his paintings removes them from the
ambit of protected expression." Id.; see also City of Lakewood
v. PlUin Dealer Publ'g. Co., 486 U.S. 750, 756 n.5 (1988}
("[T]he degree of First Amendment protection is not dimin-
ished merely because the [protected expression] is sold rather
than given away."); Rlley v. Nat'l Fed'n of the Blind of N.C.,
Inc., 487 U.S. 7$1, 801 (1988) ("It is well settled that a speak-
er's rights are not lost merely because compensation is
received; a speaker is no less a speaker because he or she is
paid to speak.").
The Second Circuit reached a similar conclusion in Bery v.
City of New York, 97 F.3d 689 (2d Cir. 1996), where the court
held that the sale of visual artwork is expression fully pro-
tected by the First Amendment. Id. at 695. The court rejected
the city's argument that, unlike the production of art, "the sale
of art is conduct" and should therefore be subject to Spence's
test. Id. The court held that "[t]he sale of protected materials
is also protected," id. (citing Lakewood, 486 U.S. at 756 n.5},
reasoning that "without the money, the plaintiffs would not
have engaged in the protected expressive activity," id. at 696.
[ld] City of Sparks and Bery stand far the proposition that
because the sale of a painting is intertwined with the process
of producing the painting, the sale is entitled to full constitu-
tional protection without any need to resort to the Spence test.
137SS ANC?ERSdN V. HERb1dSA BEACt3
The same logic applies to the business of tattooing. Thus, we
conclude that the business of tattooing qualifies as purely
expressive activity rather than conduct with an expressive
component, and is therefore entitled to full constitutional pro-
tection without any need to subject it to Spence's "sufficiently
imbued" test, The business is subject to reasonable time,
place, or manner restrictions {as explained in the next sec-
tion}, but the fact that the tattoo is far sale does not deprive
it of its First Amendment protection.
B. The City's Ban as a Time, Place, or Manner Restriction
Having determined that tattooing is protected by the First
Amendment, our next inquiry is whether the City's total ban
on tattooing is a constitutional restriction on free expression.
A regulation that restricts protected expression based nn the
content of the speech is constitutional only if it withstands
strict scrutiny, see United States v. Playboy Entm't Group,
Inc., 529 U.S. 803, 813 (2000), meaning that it "is necessary
to serve a compelling state interest and that it is narrowly
drawn to achieve that end," Perry Educ. Assn v. Perry Locad
Educators' Assn, 460 U.S. 37, 45 {1983}. However, Ander-
son does not contend that Hermosa Beach Municipal Cade
§ 17.06.070 is a content-based restriction on speech. See
supra n.4. Rather, he argues that the City's regulation is an
unconstitutional restriction on a means of expression.
Accordingly, we must determine not whether the City's
regulation survives strict scrutiny but whether the City's regu-
lation is a reasonable "time, place, or manner" restriction on
protected speech. Ward, 491 U.S. at 791 ("Our cases make
clear ...that ...the government may impose reasonable
restrictions on the time, place, or manner of grateeted speech
...."). This determination requires an inquiry into whether
the restriction: {1) is "justified without reference to the con-
tent of the regulated speech"; (2) is "narrowly tailored to
serve a significant governmental interest"; and (3) "leave[s]
ANDERS{7N V. HERMOSA BEACH 13759
open ample alternative channels far communication of the
information." Clark v. Cmty. far Creative Non-itiolence, 468
U.S. 288, 293 {1984).
Before turning to this inquiry, we first emphasize that the
Supreme Court "ha[s] voiced particular concern with laws
that foreclose an entire medium of expression," because "the
danger they pose to the freedom of speech is readily apparent
-by eliminating a common means of speaking, such mea-
sures can suppress too much speech." City of Ladue v. Gilleo,
S12 U.S. 43, SS (1994). A long line of Supreme Court cases
indicates that such laws are almost never reasonable "time,
place, or manner" restrictions. See, e.g., id. at S4-SS (invali-
dating an ordinance forbidding the display of signs on private
property); Schad, 4S2 U.S. at 75-76 {ban on all live entertain-
ment}; Martin v. City of Struthers, Ohio, 319 U.S. 141, 145-
49 (1943} (ban on door-ta-door distribution of literature};
Jamison v. Texas, 318 U.S. 413, 416 (1943} {ban on distribut-
ing handbills on the public streets); Lovell v. City of Grim,
303 U.S. 444, 451-S2 {1938} (ban on distribution of pam-
phlets within the municipality); but see Kovacs v. Cooper,
336 U.S. 77, 89 (1949) (upholding a ban on sound trucks).
The interplay between the Court's often rigid statements
about total bans on modes of expression and its traditional
"time, place, or manner" test is not entirely clear. However,
we need not determine whether the City's regulation is per se
unconstitutional as a total ban of a means of expression or
whether it is subject to a particularly stringent test, because
we hold that it fails under even the traditional "time, place, or
manner" test. We proceed naw to that test.
I. Justified without Reference to Content
Anderson does not dispute that the City's regulation may
be "justified without reference to the content of the regulated
speech," Clark, 468 U.S. at 293. The City's regulation bans
all tattoo parlors, not just those conveying a particular kind of
13760 ANDERSON V. HER~tOSA BEACH
message or subject matter, and is purportedly justified based
on health and safety concerns.
2. Narrowly Tailored
[ll J A reasonable "time, place, or manner" restriction
must also be "narrowly tailored to serve a significant govern-
mental interest." Id. In Ward, the Supreme Court clarified the
meaning of this requirement:
[A] regulation of the time, place, or manner of pro-
tected speech must be narrowly tailored to serve the
government's legitimate, content-neutral interests
but ... it need not be the least restrictive or least
intrusive means of doing so.... So long as the
means chosen are not substantially broader than
necessary to achieve the government's interest, .. .
the regulation will not be invalid simply because a
court concludes that the government's interest could
be adequately served by same less-speech-restrictive
alternative.
491 U.S. at 798, 800 (emphasis added).
Anderson does not dispute that the City has a significant
interest in regulating tattooing because of the health and
safety concerns implicated by this process. Rather, Anderson
argues that the regulation is substantially broader than neces-
sary to achieve this interest because the interest could be
achieved by regulations ensuring that tattooing is performed
in a sanitary manner rather than outright prohibition of tattoo-
ing. The City disagrees, painting out that Los Angeles County
has only one health inspector for nearly 300 tattoo establish-
ments and over 850 tattooists, and that there are no statewide
regulations relating to sterilization, sanitation, and standards
for tattooists. "Put simply," the City argues, "there are insuffi-
cient resources to monitor the 8[5]0 tattooists operating in Las
ANCSERSON V. HERMOSA BEACH 13761
Angeles County, including the many who, like Plaintiff, are
self-taught and operating in backrooms and basements."
[12] As other courts have found, "tattooing is a safe proce-
dure if performed under appropriate sterilized conditions."
Yurkew, 495 F. Supp. at 1252; see also Centers for Disease
Control and Prevention, supra. Tattooing is now permitted
(subject to regulation) in all fifty states, with Oklahoma
becoming the last to lift its ban as of November 1, 2006.
Janice Franeis-Smith, OK Governor Henry Signs Tattoo
Legalization into Law, OKLA. CITY J. REC. (May 11, 2006},
available at http://findarticles.com/p/artieleslmi_gn41821
is 200605111ai n16412421 {last visited May 30, 2010). The
City has presented no evidence that tattooing in the City could
not be regulated in such a way that addresses the City's Legiti-
mate public health concerns. Rather, it simply argues that cur-
rently, there are insufficient resources in place to address
these concerns. But the provision vel non of such resources is
a matter within the City's control. Without more, we cannot
approve a total ban an protected First Amendment activity
simply because of the government's failure to provide the
resources it thinks are necessary to regulate it.
[I3] In sum, although a total ban on tattooing might be the
most convenient way of addressing the City's health con-
cerns, the City has given us no reason to conclude that these
concerns cannot be adequately addressed through regulation
of tattooing rather than a total ban on tattoo parlors. Thus,
particularly in light of the Supreme Court's historical "con-
cern with laws that foreclose an entire medium of expres-
sion," Czty of Ladue, 512 U.S. at 55, we have little difficulty
concluding that the City's ban is "substantially broader than
necessary to achieve the [City's] interest," Ward, 491 U.S. at
$00.
3. Alternative Channels
[14] Even if the City's regulation were narrowly tailored to
serve its health and safety interests, a reasonable "time, place,
I37E)2 ANI?ERSQN v. HERMt7SA BEACH
or manner" restriction on protected speech must also "leave
open ample alternative channels for communication of the
information." Clark, 4b$ U.S. at 293. The City argues that,
although its regulation restricts tattooists' ability to apply
images to human skin via the injection of ink, there are alter-
native means available for applying the exact same words,
images, and symbols to skin, such as airbrushing or the use
of natural henna paste to create temporary tattoos. The City
also points out that the tattooist could render his designs "on
a traditional canvas or other media," such as a T-shirt. In
other words, the City believes that "[t]here is nothing inher-
ently or distinctly expressive about rendering ...designs on
the skin" using the ink-injection method.
We disagree. In City of Ladue, the defendant city made an
argument similar to the one the City makes here. The City
argued that its ban on signs on private property was "a mere
regulation of the time, place, or manner of speech because
residents remain free to convey their desired messages by
other means, such as hand-held signs, letters, handbills, flyers,
telephone calls, newspaper advertisements, bumper stickers,
speeches, and neighborhood or community meetings." 512
U.S. at 56 (quotation marks and emphasis omitted). The
Supreme Court was
not persuaded that adequate substitutes exist for the
important medium of speech that Ladue has closed
off.... Displaying a sign from one's awn residence
often carries a message quite distinct from placing
the same sign someplace else, or conveying the same
text or picture by other means. Precisely because of
their location, such signs provide information about
the identity of the `speaker[,]' .. [which] is an
important component of many attempts to persuade.
Id. {emphasis added). The Court held the ordinance unconsti-
tutional because the city had "completely foreclosed a venera-
ANBERSON V. HERhtOSA UHAGH t3~~3
ble means of communication that is both unique and
important." Id. at 54.
[15] As in City of Ladue, the City of Hermosa Beach has
"completely foreclosed a venerable means of communication
that is both unique and important." Id. at 54. Like music, tat-
tooing is "one of the oldest forms of human expression,"
Ward, 491 U.S. at 790, as well as one of the world's mast uni-
versally practiced farms of artwork. See Jane Caplan, Intro-
duction, in WRITTEN oN mHr Boov, supra, at xi ("Physical
evidence for the practice [of tattooing] survives from the late
fourth millennium BC in Europe and from about 2000 BC in
Egypt, and tattooing can be found in virtually all parts of the
world at some time."). And it has increased in prevalence and
sophistication in recent years. See Juliet Fleming, The Renais-
sance Tattoo, in WRITTEN arr ~rxE Bor~v, supra, at 61 ("[F]or
the last quarter-century the West has been enjoying a `tattoo
renaissance'; a movement characterized by refinements of
conception ... ; by technical developments ... ;and by the
refinement of procedure and equipment ...."}; Susan Ben-
son, Inscriptions of the Sep Reflections on Tattooing and
Piercing in Contemporary Euro-America, in WRlrrrrr oN rxa
Botiv, supra, at 240 (discussing haw the "tattoo community"
has "bec[o]me more visible and more organized," and noting
that "over the past 30 years the number of tattoo establish-
ments has grown rapidly in absolute terms, bath in Europe
and America"). According to a 2006 survey by the Pew
Research Center, 36 percent of people from ages 18-25, 40
percent of people from ages 2b-40, and 10 percent of people
from ages 41-64, had or once had at least one tattoo. The Pew
Research Center for the Peapie & the Press, How Young Peo-
ple view Their hives, Futures and Politics: A Portrait of
"Generation Next" 21 (Jan. 9, 2007}, available at
http://people-press.orglreports/pdf1300.pdf (last visited May
30, 2010).
Most importantly, a permanent tattoo "often carries a mes-
sage quite distinct" from displaying the same words or picture
13704 ANDERSON V. HERiv10SA BEACH
through some other medium, and "provide[s] information
about the identity of the `speaker.' "City af'I,adue, 512 U.S.
at 56. A tattoo suggests that the bearer of the tattoo is highly
committed to the message he is displaying: by permanently
engrafting a phrase or image onto his skin, the bearer of the
tattoo suggests that the phrase or image is so important to him
that he has chosen to display the phrase or image every day
for the remainder of his life. The relative permanence of the
tattoo can also make a statement of "autonomy and self-
fashioning"-"of ownership aver the flesh" and a "defen[se
ofJ the embodied self against external impositions." Benson,
supra, at 251-52 (quotation marks omitted); see also id. at 251
{"[T]he permanence of the tattoo establishes ... an instantia-
tion of the will in defiance of process and time: `you can
never get it off.' "); id. at 250-251 (discussing how "the idea
of the permanence of the tattoo is critical" in that it is linked
"to ideas of the body as property and possession ...indeed
as the only possession of the self in a world characterized by
accelerating commodifieation and unpredictability"). Finally,
the pain involved in producing a permanent tattoo is signifi-
cant to its bearer as well: "Pain, like the tattoo itself, is some-
thing that cannot be appropriated; it is yours alone; it stands
outside the system of signification and exchange that threat-
ens the autonomy of the self." Id. at 251. These elements are
not present-ar, at least, not nearly to the same degree-in
the case of a temporary tattoo, a traditional canvas, or a T-
shirt. Thus, we disagree with the City that "[t]here is nothing
inherently or distinctly expressive about rendering ...designs
on the skin" using the ink-injection method.
The City analogizes this ease to Kovacs, the only case in
which the Supreme Court has upheld a total ban an a medium
of communication. In Kovacs, the Court upheld a Trenton,
New Jersey, ordinance banning sound trucks-vehicles with
attached sound amplifiers--on public streets. 336 U.S. at 89.
The Court emphasized Trenton's interest in preventing "dis-
tractions ...dangerous to traffic" and preserving "the quiet
and tranquility" of the residential areas. Id. at 87. The Court
ANDERSON V. HERMOSA BEACH 13765
also reasoned that the fact "[t]hat more people may be more
easily and cheaply reached by sound trucks ... is not enough
to call forth constitutional protection.'° Id. at 88-$9. The City
argues that tattooing is just like a sound truck-it might be a
more effective means to disseminate a message to the public,
but the same message may be transmitted by other means. Cf.
Hold Fast Tattoo, 580 F. Supp. 2d at 660 ("The act of tattoo-
ing is one step removed from actual expressive conduct,
which. is similar to a sound truck, which enables each cus-
tomer to express a particularized message, but the sound truck
vehicle itself is not expressive.").
The analogy to sound trucks is flawed. As discussed above,
a tattoo is not merely a "more effective" means of communi-
cating amessage; rather, the tattoo "often carries a message
quite distinct" from other media. City o~ f' Ladue, 512 U.S. at
56 {emphasis added), In light of the long line of cases in
which the Supreme Court has invalidated total bans on a
medium of communication, it cannot be true that any medium
of communication may be banned based on the reasoning that
it is merely a "more effective" means of communicating a
message; by this logic, after all, a canvas could be considered
merely a "more effective" means of displaying a painting than
lined paper. Seeming to recognize that its reasoning was in
some tension with its earlier cases, the Kovacs Court
explained that its judgment also rested on the fact that no one
within range of the sound truck could avoid the broadcast:
While this Court ...has invalidated an ordinance
forbidding a distributor of pamphlets or handbills
from summoning householders to their doors to
receive the distributor's writings, this was on the
ground that the home owner could protect himself
from such intrusion by an appropriate sign that he is
unwilling to be disturbed.... The unwilling listener
is not like the passer-by who may be offered a pam-
phlet in the street but cannot be made to take it. In
his home or on the street he is practically helpless to
13766 ANDERSON V. HF.RMOSA BF,ACH
escape this interference with his privacy by loud
speakers except through the protection of the munic-
ipality.
Kovacs, 336 U.S. at 86-87 {quotation marks and footnote
omitted) {citing Martin, 319 U,S. at 143, 148).
[l6] In this sense, the case at hand is easily distinguishable
from Kovacs and indistinguishable from the Court's other
cases involving total bans on modes of expression. A tattoo
does not force "unwilling listener[s]" to heed its message any
more than the expletive-laden jacket at issue in Cohen. A tat-
too is displayed passively on the person's body, such that a
member of the general public can simply avert his eyes if he
does not wish to view the tattoo (assuming the tattoo is visible
to the public at ail). In other wards, a tattoo effects no addi-
tional intrusion of privacy on members of the public beyond
other types of expression clearly protected by the First
Amendment. Thus, the City's tattoo regulation is subject to
the principle in Martin, Schad, and City of Ladue, which, read
alongside Kovacs, indicate that if a unique and important
mode of expression does not force unwilling listeners to heed
its message in an intrusive manner, the government may not
ban it regardless of the availability of alternative (and less dis-
tinctive) means of communicating a similar message.
IV. CONCLUSION
[17] In sum, we hold that the tattoo itself, the process of
tattooing, and the business of tattooing are forms of pure
expression fully protected by the First Amendment. We fur-
ther hold that the City's total ban on tattoo parlors in Hermosa
Beach is not a reasonable "time, place, or manner" restriction
because it is substantially broader than necessary to achieve
the City's significant health and safety interests and because
it entirely forecloses a unique and important method of
expression. Moreover, no genuine issue of rnateriai fact exists
with respect to the constitutionality of the regulation. Thus,
ANDERSON V. HERMOSA BEACH t3~b7
we hold that Hermosa Beach Municipal Code § 17.06A70 is
facially unconstitutional to the extent that it excludes tattoo
parlors, and we reverse the district court's order granting sum-
mary judgment in favor of the City and remand with instruc-
tions to grant Anderson's motion for summary judgment and
enjoin the City to include tattoo parlors in its zoning regula-
tions.
REVERSED.
NOONAN, Circuit Judge, concurring:
I concur in the holding of the court, and I agree with Judge
Bybee's robust defense of the values protected by the First
Amendment.
I write to state that tattooing may be purely expressive, not
that it always is. Any text may be expressive but is not invari-
ably so. A laundry list is normally not protected by the First
Amendment, but William Carlos Williams made a grocery list
into a poem. Context is all. A tattoo punitively affixed is
unprotected.
Accepting the fact that a tattoo may qualify as protected
speech, 1 note that creation of a tattoo may involve danger to
the health of its recipient, so that tattooing requires regulation
for health different from regulation, say, of a press. Tattooing
as a business may also require regulation to assure that it does
not attract minors. Finally, while we are bound to protect the
First Amendment value at issue, we are not bound to recog-
nize any special aesthetic, literary, or political value in the tat-
taoist's toil and trade.