Petition for Writ of Certiorari — Lasting Beauty, LLC v. City of Chesapeake, Virginia (No. 06-1374)

Gn ojphe ~°FiCe OF THE CLERK

Supreme Court of the Chited States

LASTING BEAUTY, L.L.C.

and DENISE HUMPHRIES,

Petitioners,

Vv.

CITY OF CHESAPEAKE

and JAMES T. DAVIS, CZA,

Zoning Administrator,

Respondents.

+

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

®

PETITION FOR WRIT OF CERTIORARI

+

Kevin E. Martingayle

Counsel of Record

STALLINGS & BISCHOFF, P.C.

2101 Parks Avenue, Suite 801

Post Office Box 1687

Virginia Beach, Virginia 23451

(757) 422-4700

Counsel for Petitioners

THE LEX GROUP®® @ 1750 K Street N.W. @ Suite 475 @ Washington, DC 20006

(202) 955-0001 @ ($00) $15-3791 @ Fax: (202) 955-0022 @ www.thelexgroupdc.com

QUESTIONS PRESENTED

1. Did the courts below err in failing to determine

that the subject City zoning scheme governing

tattooing unconstitutionally burdens free speech

and expression rights guaranteed by the United

States Constitution?

2. Did the Courts~below err in failing to determine

that the subject City zoning scheme, facially and

as applied, denies equal protection and due

process rights guaranteed by the United States

Constitution?

ii

LIST OF PARTIES

The petitioners are Lasting Beauty, LLC and

Denise Humphries, and the Respondents are City of

Chesapeake, a municipal corporation, and James T.

Davis, CZA, Zoning Administrator.

CORPORATE DISCLOSURE STATEMENT

Petitioner, Lasting Beauty, LLC is a Virginia

company that has no parent corporation. No

publicly-held company holds 10% or more of

Petitioner’s stock.

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............ccccsssscsseessseeeeees i

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CORPORATE DISCLOSURE STATEMENT ............ ll

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TABLE OF AUTHORITIES .......ccccccccccscocsssevevsevsensess iv

CIR ee Oe SUI WP sii cnases vases cnsigunceneececsenveulanantae 1

PARI EIEN sehiivseciictinicteicegiatinieeainnie 1

CONSTITUTIONAL PROVISIONS AND

CITY ZONING ORDINANCE INVOLVED ............... 1

STATEMENT OF THE CASE .......ccssssssssssssesssssseeesseees 8

Fh, GN cccckcivesictnnivtinnctadammenisniand 3

B. Prior tattoo litigation and the City’s

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CFR Bei OE CRI CI aise sctictcitvcctesntemnneccens 4

REASONS WHY THE WRIT SHOULD BE

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A. Summary of ATMuMeht.......ccccccccsvecceesvevecseesseeesth

B. Free Speech/Expression Issues.................::0086+ 7

C. Equal Protection and Due Process ................ 10

CEPR A IAIN cividercetassssciinirbiaioansinibemeriacatmuiagiainae 12

APPENDIX

TABLE OF AUTHORITIES

CASES

Bery v. City of New York,

97 F.3d 689 (2d Cir. 1996)

Board of Airport Comm’rs v. Jews for Jesus, Inc.,

482 U.S. 569 (1987)

Board of Supervisors v. Carper,

200 Va. 653, 107 S.E.2d 390 (1959)

Broadrick v. Oklahoma,

413 U.S. 601 (1973)

Brown v. Louisiana,

383 U.S. 131, 86S. Ct. 719,

15 L.Ed.2d 637 (1966)

City of Chesapeake v. Ancient Art Tattoo Studio,

02 Va. S. Ct. UNP 012082 (2002)

Commonwealth v. Meuse,

1999 Mass. Super. Lexis 470,

10 Mass. L. Rep. 661 (Mass. Super. Ct. 1999)

Erie v. Pap’s A.M..,

529 U.S. 277 (2000)

Lanphear v. Commonwealth of Massachusetts,

Mass. Superior Court Slip Opinion

99-1896-B (October 20, 2000), affd,

Commonwealth v. Lanphear,

50 Mass. App. Ct. 1107,

737 N.E.2d 1281 (2000)

MacNeil v. Board of Appeal of Boston,

2004 Mass. Super. LEXIS 282,

18 Mass. L. Rep. 153 (Mass. Super. Ct. 2004)

Nike, Inc. v. Kaskv,

i Ie CE oss sisidickphnnsidstbinisievedsossiessices

People v. O’Sullivan,

96 Misc. 2d 52 (N.Y. Misc. 1978).........0....00...

Schad v. Mount Ephraim,

Re Aes EE AIRED siete shicisnianisncncaninxaueavcsnisacacss

Smith v, Goguen,

415 U.S. 566, 94S. Ct. 1242,

Fe Mis ME CATS) cs ceticrssccencdecisasenrsenssscierers

Spence v. Washington,

418 U.S. 405, 94 S. Ct. 2727,

BE Rie OO IO isco v essoticeepesionsnisveconvsxivinn

State ex. rel. Medical Licensing Bd. v. Brady,

492 N.E.2d 34 (Ind. Ct. App. 1986)................0..

State v. White,

348 S.C. 532, 560 S.B.2d 420 (2002)..............

Stephenson v. Davenport,

110 F.3d 1508 (6 Cir. 1907) 00. :cccccssisecsscdsccooes

Stromberg v. California,

283 U.S. 359, 51S. Ct. 532,

Se A EEF CRO ED isc crnksvtbinsscatetblinnndindesmnins

Texas v. Johnson,

491 U.S. 397, 109 S. Ct. 2533,

BO Bie RE CL occ scscvensizesei cctesercdneineninnae

ereneee

eeeeee

vl

Tinker v. Des Moines School District,

393 U.S. 503, 89S. Ct. 733,

oe RAE FH GM inthis srdacvercdcehinnsudderouistenseceu 9

Tory v. Cochran,

Re ee: WOE MIU cicssetvnccoceccissernctscerescbeccebmsneasenss 5

United States v.

Playboy Entertainment Group. Inc.,

RE PRR DOR AER on ee eee oe tod 5

Village of Willowbrook v. Olech,

ee Ene SUE GUID Sica cenndnvinnsisawievctuvcseestes 11

Virginia v. Black,

RMR IEEE CIENT... sa csv sedsenerevcubcouacnbtesedaeedecmaeucks 5

Virginia v. Hicks,

ee ee ao. aia dliiduenvtcmeapcanseiaoouaeniaa 5

Yurkew v. Sinclair,

495 F. Supp. 1248 (D. Mirn. 1980) ..................008. 9

CONSTITUTIONAL PROVISIONS

Ra IT MI Bhi occ sicispwesneucenuosececaukswseens passim

ee I, I FG isi iscuctcenesieud ccvetucadcnnietsbeewiacenen 2

STATUTES

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Pe ee Be TI ik a oceratcnicenetusines aaeuanuveneciictersndvwninedaas 3

_ ORDINANCES

Chesapeake City Ordinance § 8-601......................... 4

Chesapeake City Ordinance § 8-601(C)(27)............... 2

Vill

OTHER AUTHORITIES

Anthony Jude Picchione,

Tat-too Bad for Municipalities:

Unconstitutional Zoning of Body-Art

Establishments, 84 B.U.L. Rev. 829 (June,

Bobby G. Frederick,

Tattoos and the First Amendment - Art

Should Be Protected As Art: The South

Carolina Supreme Court Upholds _ the

State’s Ban on Tattooing, 55 S.C. L. Rev.

Fe Cs SN bite ieciehinttcere datieeniumlota veseiass

Virginia Board of Health Professions Report

SA Te, Se iscsctssssciioces eicsisciianenaauannnsawaiadeases

PETITION FOR WRIT OF CERTIORARI

Lasting Beauty, LLC and Denise Humphries

(hereinafter referred to collectively as “Humphries”)

respectfully petition this Court for a writ of certiorari

to review the judgment of the Circuit Court of the

City of Chesapeake (the “trial court”), and the

decision of the Virginia Supreme Court denying

review. The trial court held that tattooing is not

sufficiently “communicative in nature to warrant

protection under the First Amendment” and rejected

Humphries’ free speech, equal protection and due

process arguments.

OPINIONS BELOW

The trial court issued a memorandum opinion on

March 23, 2006 (reprinted in the appendix herein at

App. 2-15), followed by a Judgment and Final Order

entered May 3, 2006 (App. 17-19). The Virginia

Supreme Court initially denied review by Order

dated October 25, 2006 (App. 1), and then denied a

Petition for Rehearing by Order dated January 19,

2007 (App. 16).

JURISDICTION

The Order of the Virginia Supreme Court refusing

Humphries’ Petition for Rehearing was entered on

January 19, 2007 (App. 16). This Court has

jurisdiction pursuant to 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS AND CITY

ZONING ORDINANCE INVOLVED

The First Amendment to the Constitution of the

United States states as follows:

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech; or of the press; or the right of the

people peaceably to assemble, and to petition

the Government for a redress of grievances.

The Section One of the Fourteenth Amendment to

the Constitution of the United States states as

follows:

§ 1. All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the state wherein they reside. No state shall

make or enforce any law which shall abridge

the privileges or immunities of citizens of the

United States; nor shall any state deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the

laws.

Chesapeake City Ordinance § 8-601(C)(27) states

as follows:

The following conditions shall apply to specific

uses, as indicated in the “condition” column in

the uses schedule:

KOK KOK

27. Tattoo parlors shall be established and

operated in accordance with applicable

provisions in chapter 38 of the City Code.

Additionally, in order to protect and preserve

the character of residential neighborhoods,

residential property values, the vitality of

commercial districts and the overall quality of

life in Chesapeake, and further to prevent

detrimental effects on educational facilities

and public recreation areas, no tattoo parlor

shall be located within 1,000 feet of any other

tattoo parlor, private and public schools, day

care facilities, public parks, religious

institutions or any property zoned or used for

residential purposes.

STATEMENT OF THE CASE

A. Overview

Humphries is a performer of “intradermal

micropigmentation”. Legally, this service is defined

and treated exactly the same as _ traditional

tattooing. Code of Virginia § 54.1-700°. This appeal

involves the City of Chesapeake’s zoning scheme

relating to tattooing and restrictions imposed on the

activity.

The subject zoning allows tattooing only in the

City’s “industrial” districts (“M-l” and “M-2”), and

only as a “conditional use”. Further, it bans any

tattoo establishment “within 1000 feet of any other

‘ Section 54.1-700 provides these relevant definitions: “Tattoo

parlor’ means any place in which tattooing is offered or

practiced. “‘Tattooer’ means any person who for renumeration

practices tattooing. ‘Tattooing’ means the placing of designs,

letters, scrolls, figures, symbols or any other marks upon or

under the skin of any person with ink or any other substance,

resulting in the permanent coloration of the skin, including

permanent make-up or permanent jewelry, by the aid of

needles or any other instrument designed to touch or puncture

the skin.”

tattoo parlor, private and public schools, day care

facilities, public parks, religious institutions or any

property zoned or used for residential purposes.” See

ordinance § 8-601. See also the color-coded map in

the record as Plaintiffs Exhibit 5, depicting the

limited allowable areas.

B. Prior tattoo litigation and the City’s

former ban

Legal battles over tattooing are nothing new to

the City of Chesapeake, and one was the subject of a

previous appeal to the Virginia Supreme Court.

Specifically, in a June 5, 2001 ruling (memorialized

in an order dated June 21), a judge of the Chesapeake

Circuit Court struck down the City’s then-existing

blanket ban on tattooing. Days later, the City

repealed the ban and enacted new ordinances

regulating tattooing and severely limiting where it

would be allowed. In the meantime, the City also

appealed the trial court ruling invalidating the ban,

but because of the repeal of the provision struck

down by the trial court, the Virginia Supreme Court

found that the appeal was rendered moot. City of

Chesapeake v. Ancient Art Tattoo Studio, 02 Va. S.

Ct. UNP 012082 (2002). Although the parties in that

appeal briefed and argued many of the same issues

presented here -- including free speech -- the

dismissal ended that appeal without any opinion

being issued.

C. The history of this case

This case proceeded before the trial court as a

declaratory judgment action and a trial was held

September 1, 2005. Thereafter, a March 23, 2006

memorandum opinion was issued by the trial court

ruling against Humphries. Humphries responded by

appealing to the Virginia Supreme Court and

followed all of the necessary appellate rules and

procedures.” The writ of appeal was denied on

October 25, 2006. Because of the critical issues in

this particular appeal, and also because of ongoing

tattoo law conflicts in Chesapeake and other

neighboring cities, a Petition for Rehearing was

presented for consideration by the Virginia Supreme

Court. It was denied by Order dated January 19,

2007.

REASONS WHY THE WRIT

SHOULD BE GRANTED

A. Summary of Argument

This appeal presents to an opportunity for this

Court to address and resolve an important conflict in

constitutional jurisprudence. The specific issue is

whether tattooists and their customers are protected

by free speech, due process and equal protection

principles, or whether localities are at liberty to

engage in unrestrained regulation of and

“In the Virginia Supreme Court, the Thomas Jefferson Center

for the Protection of Free Expression, a free speech advocacy

organization based in Charlottesville, Virginia, filed an “Amicus

Curiae Memorandum of Support for Petitioners’/Appellants’

Petition for Appeal” in which it agreed with Humphries that the

trial court engaged in a flawed analysis and reached a clearly

erroneous conclusion. This Court has accepted and reviewed

several amicus briefs from this organization in recent years in

cases involving important free speech issues. See _e.g., Tory v.

Cochran, 544 U.S. 734 (2005); Virginia v. Hicks, 539 U.S. 113

(2003); Nike, Inc. v. Kaskv, 539 U.S. 654 (2003); Virginia v.

Black, 538 U.S. 343 (2003); Erie v. Pap’s A.M., 529 U.S. 277

(2000); United States v. Playboy Entertainment Group. Inc.,

529 U.S. 803 (2000).

discrimination against the art form. This Court has

never addressed this particular issue, and the trial

court concluded the latter. The result of the trial

court’s opinion is continuing har n to fundamental

constitutional rights. This outcome burdens and

damages not only Humphries and countless other

tattooists and customers in Virginia and elsewhere,

but also other citizens wishing to engage in forms of

self-expression that local politicians may not favor.

The trial court’s opinion and the authority upon

which it relied constitute dangerous precedent for

localities to follow. Because there is a well-developed

and thoroughly briefed lower court record, this case

provides a good vehicle for issuing a defining and

culturally significant opinion. To be sure, this is a

legal battle that will rage on until this Court settles

the debate.

As Humphries argued in the Virginia courts,

tattooing is an ancient art form that has seen a

resurgence in popularity in the United States in the

past couple of decades. Like any other art form, it is

entitled to First Amendment protection. Instead, .

however, its practitioners and those who wish to have

the art form practiced upon their bodies have been

subjected to a burdensome zoning scheme in the City

of Chesapeake that cannot be justified. Not one

witness who testified in the trial court could explain

any need for the highly restrictive zoning involved in

this case.

Facially, the subject zoning scheme discriminates

against tattooing by imposing’ unjustifiably

burdensome zoning requirements, while similar

personal services are allowed as a matter of right in

almost all areas of the City, and without the need for

a “conditional use permit”. As applied, Humphries

presented evidence of selective enforcement, to

which the City had no answer or explanation.

B. Free Speech/Expression Issues

For purposes of this appeal and the City’s zoning

ordinance, intradermal micropigmentation and

tattooing are indistinguishable; therefore, the

Constitutional analysis is identical and Humphries

has proper standing to challenge the subject

ordinances on free speech and expression grounds.

Broadrick v. Oklahoma, 413 U.S. 601, 611-12 (1973).

See also Board of Airport Comm’rs v. Jews for Jesus,

Inc., 482 U.S. 569, 574 (1987).

There is currently a significant and long-standing

split of authority in American jurisprudence regarding

whether tattooing is an activity sufficiently imbued

with communicative aspects to justify free speech and

expression protection under the First Amendment to

the Constitution. Logically, it is difficult to conceive

of any reason why tattooing should be considered any

differently from any other type of “art”. Tattooing is

an “art form” recognized both nationally and

internationally. Lanphear_v. Commonwealth of

Massachusetts, Mass. Superior Court Slip Opinion

99-1896-B (October 20, 2000), aff'd by Commonwealth

1281 (2000); Virginia Board of Health Professions

Report (January 3, 1994).° “Persons obtain tattoos to

demonstrate commitment to other persons, to

institutions, to religious beliefs, and to political and

personal beliefs.” Lanphear, p. 3. Many people -- men

° A copy of this report to the Virginia General Assembly is in

the record as Exhibit B to Humphries’ Bill of Particulars.

and women, middle-class professionals and otherwise

-- seek tattoos “as an expression of individuality.”

Report, p. 12.

In Lanphear, the Superior Court of

Massachusetts. declared that a Massachusetts

statute prohibiting tattooing by anyone other than a

licensed physician was an_ unconstitutional

infringement on the right to freedom of expression.

See also Commonwealth v. Meuse, 1999 Mass. Super.

Lexis 470, 10 Mass. L. Rep. 661 (Mass. Super. Ct.

1999) (dismissing criminal indictment of violation of

tattoo statute because statute requiring tattooing by

a qualified physician was unconstitutional).

In MacNeil v. Board of Appeal of Boston, 2004

Mass. Super. LEXIS 282, 18 Mass. L. Rep. 153 (Mass.

Super. Ct. 2004), the court analyzed amendments to

the Boston zoning code authorizing tattoo parlors

pursuant to a conditional use permit scheme. In that

case, the court rejected the notion that “merely

speculative factual grounds” can justify regulations

restricting free speech and expression rights, and

refused to accept unsupported’ conclusions

supposedly justifying the enactment. Id., 18 Mass.

L. Rep. at 155 (internal citations omitted). The court

went on to find that there was “insufficient evidence

that the City and Zoning Commission’s conditional

use designation was designed to serve any

substantial governmental interest and for that

reason, the body art establishment ordinance...is

unconstitutional.” Id.

The trial court in this case rejected the free

speech and expression arguments advanced by

Humphries, and in comparing competing authority

submitted by the parties, appeared to rely primarily

on State v. White, 348 S.C. 532, 560 S.E.2d 420

(2002).* The trial court also found support for its

decision in Stephenson v. Davenport, 110 F.3d 1303,

1307, n. 4 (8" Cir. 1997), State ex. rel. Medical

Licensing Bd. v. Brady, 492 N.E.2d 34 (Ind. Ct. App.

1986), Yurkew v. Sinclair, 495 F. Supp. 1248, 1254

(D. Minn. 1980), and People v. O’Sullivan, 96 Misc.

2d 52, 53 (N.Y. Misc. 1978). The analysis of the trial

court and other courts which have denied free speech

and expression protection for tattooing have made

rulings that simply cannot be reconciled with this

Court’s jurisprudence, which has made it clear that

many non-verbal, communicative and/or expressive

activities are entitled to protection. See, e.g., Texas

v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L.E.2d

342 (1989) (the burning of an American flag is

“speech” entitled to First Amendment protection);

Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727,

41 L.Ed.2d 842 (1974) (the display of an American

flag to which a peace symbol had been sewn is

afforded First Amendment protection); Smith vy,

Goguen, 415 U.S. 566, 94 S. Ct. 1242, 39 L.Ed.2d 605

(1974) (wearing a small American flag sewn to the

seat of one’s pants is protected expressive conduct);

Tinker v. Des Moines School District, 393 U.S. 503,

89 S. Ct. 733, 21 L.Ed.2d 731 (1969) (wearing a black

armband by students to protest American

* This opinion from a sharply divided South Carolina Supreme

Court has been the object of a great deal of criticism. See, e.g.,

Anthony Jude Picchione, Tat-too Bad for Municipalities:

Unconstitutional Zoning of Body-Art Establishments, 84 B.U.L.

Rev. 829 (June, 2004); Bobby G. Frederick, Tattoos and the

First Amendment - Art Should Be Protected As Art: The South

Carolina Supreme Court Upholds the State’s Ban on Tattooing,

55 S.C. L. Rev. 231 (Fall, 2003).

10

involvement in Vietnam is “speech”); Brown_v.

Louisiana, 383 U.S. 131, 86 S. Ct. 719, 15 L.Ed.2d

637 (1966) (the act of conducting a sit-in by African

American students at a segregated “whites only”

library is protected “speech”); and Stromberg v.

California, 283 U.S. 359, 51 S. Ct. 532, 75 L.Ed. 1117

(1931) (display of a red flag in support of communism

is speech). See also, Bery v. City of New York, 97

F.3d 689 (2d Cir. 1996) (invalidating, on free speech

and equal protection grounds, a licensing

requirement imposed on artists desiring to sell

artwork in public spaces). There is no principled

distinction to be made between the above-described

expressive activities and the art of tattooing, and, in

fact, the permanent nature of tattoos makes the

chosen statement or expression potentially much

more significant than, for example, the temporary

wearing of an arm band or the quick destruction of a

flag via a burning.

C. Equal Protection and Due Process

Facially, the zoning denies equal protection and

due process rights because it singles out a particular

form of expressive activity and subjects it to a

burdensome zoning scheme, without any justification

whatsoever. This is a continuing effort by the City to

discriminate against a particular activity and

clientele, and Gene Waters, a former member of the

Chesapeake City Council, testified without objection

or rebuttal to the blatant admissions of intentional

discrimination he heard from fellow Council

members as the zoning was created. (TR 48-57).°

° The September 1, 2005 trial transcript is in the record.

11

As applied specifically to Humphries, the subject

zoning has not only ensnared her in the City’s effort

to hinder the opening of “tattoo parlors”, but she has

also suffered selective prosecution. (TR 30-41).

As this Court made crystal clear in a per curiam

opinion, the equal protection clause of the United

States Constitution recognizes a so-called “class of

one” claim where a plaintiff alleges that “she has

been intentionally treated differently from others

similarly situated and that there is no rational basis

for the difference in treatment.” Village _ of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000)

(internal citations omitted). This is exactly what the

trial court record in this case reveals, and it is exactly

what Humphries argued to the trial court at the

conclusion of the evidence. (TR 170-71).

“The purpose of the equal protection clause of the

Fourteenth Amendment is to secure every person

within the State’s jurisdiction against intentional

and arbitrary discrimination, whether occasioned by

express terms of a statute or by its improper

execution through duly constituted agents.” Village

of Willowbrook, 528 U.S. at 564 (internal citations

omitted).

Although there is some precedent in Virginia law

for invalidating zoning classifications and decisions

on equal protection and due process grounds (see, e.g.,

Board of Supervisors v. Carper, 200 Va. 653, 107

S.E.2d 390 (1959)), there has been little guidance

from this Court regarding the extent to which such

constitutional principles apply to such and how lower

courts ought to judge them. In fact, Justice Breyer’s

concurrence in Village of Willowbrook, Id. at 565, was

12

careful to “minimize any concern about transferring

run-of-the-mill zoning cases into cases of

constitutional right.” See also Schad _v. Mount

Ephraim, 452 U.S. 61, n. 4 (1981) (declining to

address similar due process and equal protection

arguments and, instead, sustaining appellant’s First

Amendment challenge to a zoning’ scheme).

Humphries urges this Court to take this opportunity

to clarify the due process and equal protection

analysis to be employed in zoning disputes, and

respectfully submits that the City’s irrational

campaign against the art of tattooing makes this

zoning battle anything but “run-of-the-mill.” Simply

Stated, there must be a constitutional solution to the

type of governmental oppression and admitted

discrimination involved here.

CONCLUSION

For the reasons stated above, the petition for a

writ of certiorari should be granted.

Respectfully submitted

LASTING BEAUTY, LLC

and DENISE HUMPHRIES

By: /s/ Kevin E. Martingayle

Of Counsel

Kevin E. Martingayle (VSB No. 33865)

STALLINGS & BISCHOFF, P.C.

2101 Parks Avenue, Suite 801

Post Office Box 1687

Virginia Beach, Virginia 23451

(757) 422-4700 (Telephone)

(757) 428-6982 (Facsimile)

April 19, 2007