Phoenix--Tom Preston has owned and operated Virtual Reality, a tattoo studio in Mesa, for 14 years, with no consumer complaints or legal infractions. But when he and his wife, Elizabeth, sought to open a new studio in a vacant storefront in a strip mall on Scottsdale Road in Tempe, the City Council gave him a resounding no.
The issue came to a head late yesterday when the Goldwater Institute Scharf-Norton Center for Constitutional Litigation filed suit against Tempe in Maricopa County Superior Court, alleging that the city's actions violate the due process, equal protection, and free speech rights of the Prestons under the federal and state constitutions.
When the Prestons sought a use permit in June, a Tempe hearing examiner granted it, finding that the studio "would not contribute to neighborhood deterioration or downgrade property values," it "is consistent with the General Plan," and "appears to be compatible with surrounding uses." Tempe has no particular rules against or governing tattoo studios, and several others operate within the city limits. The examiner set 12 conditions regarding advertising, health and safety, and other issues, to which the Prestons agreed. After that hearing, an appeal board also agreed to grant the permit.
On that basis, the Prestons signed a five-year lease and invested $30,000 to make the studio ready to open. But a month ago, the City Council voted 7-0 to deny the permit.
"These two entrepreneurs played by the rules every step of the way," declared Clint Bolick, the Goldwater Institute litigation director. "At the end of the game, the city changed the rules based not on evidence but stereotypes, depriving the Prestons of their right to pursue a livelihood."
"I was shocked by the City Council's decision," said Tom Preston. "The whole discussion was about the way I look. Just because I look different, the City Council doesn't want me in Tempe."
Though once considered a fringe profession, tattooing and other forms of body art have become decidedly mainstream. The Prestons count among their Mesa studio clients police officers, military personnel, members of the clergy, school teachers, lawyers, and college students. The Body Accents studio would have provided employment opportunities for at least four body art practitioners, added over $200,000 annually to the local economy, and created a thriving enterprise in a neighborhood beset by vacant storefronts.
"This decision was arbitrary and subjective, and based on the personal tastes of the Council," said Bolick. "When government denies entrepreneurs the right to pursue their chosen business, it needs to have a good reason that is expressed in policies that apply equally to all." The Goldwater Institute hopes to establish a statewide precedent that will prevent similar abuses of the rights of small business owners.
The Goldwater Institute is a nonprofit public policy research and litigation organization whose work is made possible by the generosity of its supporters.