DAPHNE, Alabama— Cities across the country have passed ordinances restricting or banning tattoo parlors from operating within their corporate limits. Eastern Shore cities are the latest to take up such regulations, but will these restrictions stand up in court?

Spanish Fort was the first city to pass an ordinance on the issue of tattoo studios and where they can be located. At its April 15 council meeting, the city passed an ordinance restricting tattoo parlors from operating within the city limits.

City Attorney David Conner said the reason for banning the practice in the city was because of the lack of an appropriate place for such uses.

“The City Council passed an amendment to the Zoning Ordinance that prohibits tattoo parlors in any zoning district at this time,” Conner told The Courier on Wednesday. “That is based in large part on the development of the city to this point and the narrow commercial corridors that we have along Highway 31 and around the Eastern Shore Center and Spanish Fort Town Center.”

Conner added it doesn’t mean the city won’t consider changing the Zoning Ordinance to include tattoo parlors in the future, as the city grows.

Other cities in some parts of the country that have taken similar action have been met with successful legal challenges.

The most notable court case to date has been Anderson v. Hermosa Beach. With a population of about 20,000, Hermosa Beach, Calif. is similar in size and demographics to Eastern Shore cities. The court case was appealed to the U.S. Court of Appeals for the Ninth Circuit Court, which ruled that the city of Hermosa Beach’s ordinance banning tattoo parlors from the city was unconstitutional.

“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,” Judge Jay Bybee wrote in the court’s opinion.

That opinion goes on to say the city can impose reasonable “time, place, and manner restrictions” on tattoo businesses in the city, but an outright ban of all tattoo businesses is unconstitutional.

The “time, place, and manner” regulations bring us to Fairhope’s new proposed restrictions on tattoo parlors.

The proposed amendment to Fairhope’s Zoning Ordinance states “body- piercing studios, non-chartered financial institutions, palm readers and tattoo studios shall not be located within 275 linear feet of residential zoned areas, places of worship, schools, the City of Fairhope Central Business District and public parks.”

In addition, the minimum distance between similar uses, two tattoo studios for instance, must be 5,000 linear feet, or nearly a mile.

These guidelines, in effect, restrict tattoo parlors from the city except along a small stretch of Greeno Road. With the 5,000 feet restriction, it in essence allows for one, perhaps two businesses of this kind in the city.

The city excluded permanent cosmetic make-up establishments from this category. There is a permanent cosmetic make-up business currently in downtown Fairhope.

Planning Director Jonathan Smith said he didn’t know of a specific reason for separating permanent cosmetic make-up establishments from tattoo parlors and the zoning regulations, except that the Planning Commission found that the uses were not similar.

The reason for not allowing tattoo parlors and the other business types listed in the amendment in downtown Fairhope, he said, was because of “a lack of architectural design guidelines” in the downtown area.

Smith added that he consulted the cities of Spanish Fort, Orange Beach, Daphne and Gulf Shores in drafting the amendment. No public input was sought in the drafting of the ordinance.

While he did not solicit public input, he did receive calls and letters from citizens which were taken into account, he said.

Man O’War proprietor Kevin Black, who owns the only tattoo parlor in Fairhope, was also not consulted.

Black’s business, which stirred up controversy last summer when he applied for a business license and was denied, will be “grandfathered” in. As long as he continues doing business in his current location, he will not be subject to the new zoning regulations. If Black stops doing business for any reason, or moves his shop to a new location, he will have to abide by the new regulations, Smith said.

“We disagree with this whole thing on principle alone,” Black said this week. “It is heavy-handed and it is uninformed. We asked that we be made exempt as long as we are solvent with the city and our business license is in good standing. That seemed to be incredibly confusing to them, as if they had never considered those options.”

Smith said he thought exempting a business from the regulations would be a legal issue and that the proposed zoning amendment would be presented to the council without any changes made. The amendment is set to come before the City Council at the May 13 meeting.

The question raised here is whether Fairhope’s proposed amendment is a “reasonable and narrow restriction of time, place and manner” given the size and mapping of the city.

The city of Daphne is currently drafting its own zoning amendment to deal with the issue of tattoo parlors and other business types. In the interim, a six-month moratorium has been placed on the issuance of licenses for such businesses.

During a Daphne Code Enforcement Committee meeting last month, an attorney representing the city said an outright ban of such businesses could face a significant legal challenge.

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