Tattoo studio, Tempe continue nearly 3-year legal battle

Posted on April 13, 2010 | Type: In the News
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In June, it will be three years since Tom and Elizabeth Preston applied for a permit to open a tattoo studio in Tempe.

Since 2007, the Prestons and Tempe have been involved in a legal fight over opening the studio. That battle is likely to continue through the year until a hearing is set in the Arizona Court of Appeals for the court case.

Tom Preston said he never imagined that his desire to open a business in the nondescript strip mall near Scottsdale and McKellips roads would turn into a legal battle that sparked the attention of the national tattoo industry and a conservative think tank.

Working at his Mesa tattoo studio, Virtual Reality, Tom Preston shakes his head at the lengthy legal fight.

"The (commercial) space is still empty. Can you believe that? For the past two years, they (Tempe) could've had a business collecting (sales-tax) money for the city," Preston said.

A broker for the property confirmed the space is vacant.

The Goldwater Institute, a Phoenix-based conservative think tank, defends the Prestons. The institute's lawyers took the case for free after the Tempe City Council voted in October 2007 to revoke the Prestons' permit.

Clint Bolick, a Goldwater attorney handling the case, said the council's decision infringes on business owners' rights.

The council was responding to complaints from members of the North Tempe Neighborhood Association, who believed tattoo studios are associated with "negative perceptions." Allowing the studio to open in a strip mall that housed a liquor store and an adult video and lingerie shop would stymie the neighborhood's redevelopment efforts and lower its property rates, the association said.

Neighbors have said they are not prejudiced against people who have tattoos, but they have a right to advocate for or against the types of businesses that move into their neighborhood.

In June 2007, a Tempe hearing officer granted the Prestons' permit, saying that the business was zoned for the area and would "not contribute to neighborhood deterioration or downgrade property values."

The Prestons had operated their Mesa studio for more than a decade and were eager to expand to Tempe, where Preston says the tattoo industry thrives off of the city's university students. Preston leased the space for about $1,300 a month and invested about $25,000 to $30,000 to improve the space.

But neighbors took their complaint to the city's Development Review Board, asking the board to revoke the permit.

In August 2007, the commission voted, 4-3, to uphold the hearing officer's decision to award the permit. The neighborhood association took its complaint to the council, where Mayor Hugh Hallman said the "perception" of the tattoo business could hurt the neighborhood. The council unanimously agreed.

The neighbors rejoiced. And Preston's former attorney told him he should give up his fight.

"She told me we wouldn't win against the city. And it would cost us thousands of dollars to fight Tempe," Preston said.

Goldwater officials stepped in and asked Preston if he would let them represent his family. Goldwater had recently launched a litigation center and believed Preston's fight with Tempe showed that Valley cities were bullying small businesses.

In December 2009, a Maricopa County Superior Court judge ordered Tempe to reinstate the Prestons' permit, concluding that the council's decision to revoke the permit was "arbitrary" and "capricious." The judge denied the Prestons damages.

In January, Goldwater filed an appeal of the judge's decision to deny damages.

"The economy was great for him when he wanted to open. But Tempe took his permit. It's tougher (economic) times now. . . . He should have help from the city in fixing their error (taking the permit)," Goldwater attorney Carrie Ann Sitren said.

Tempe appealed the judge's order to grant the Prestons' permit. And in March Goldwater shot back, asking the judge to dismiss the city's appeal on grounds that Tempe violated Arizona's Open Meeting Law when the council members did not publicly vote on whether to file an appeal.

"We were watching for the vote on the appeal. Tom deserved the right to ask the city to stop fighting his permit. Residents deserved to comment on whether Tempe should continue to invest legal resources when a judge had already ruled against them," Sitren said.

Andrew Ching, Tempe's city attorney, said Tempe officials did not violate the public-meetings law when they discussed the appeal in a private executive session and filed the appeal without a public vote.

Ching said the council is responding to a lawsuit the Prestons initiated. Had the council decided to initiate the lawsuit, then it would have gone to a public vote, he added.

The court denied Goldwater's motion to dismiss but said the issue could be raised when the case goes to a hearing.

Meanwhile, Preston says he believes the final decision will be in his favor.

"We've had calls from all kinds of people supporting us. There's nothing bad about tattoos. Police have them. Firefighters have them. People in the military have them. I don't think anyone nowadays is going to say that a tattoo studio will hurt your neighborhood," he said.

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