beach tattoo zoning ordinance first saw there's a requirement that anybody who wants to do tattooing in the city have wound leach obtain a conditional used permit and the second requirement is that it has to do with the location and the proximity of tattoo shops they they're only allowed in a very small percentage of the commercial districts in long beach they have to be a thousand feet from each other they have to be a thousand feet from fortune telling the stablish mints and they have to be a thousand feet from taverns and these issues represented to the trial court three times there were two motions for summary judgment and then there was a short trial and the issues are purely issues of law which should be decided by this court in favor of the opponent i mean if you ask of us counsel just real got a real real party and a real judge so i understand they're not related i understand that's right but in any event  as i understand his ruling he is ruling on the basis of standing with respect to both the facial and that applies as applied challenges that your understanding as well that that's correct your honor although he did classify the conditional use permit requirement as a time place and manner which is not but before before we get to that if it's he did have a trial but the city had no opportunity to put on its defenses if argue has standing i assume you're suggesting that basically we could just decide this but wouldn't we have to send it back because it is how can it be fair for only one side to have presented its case in chief and not the around with with all respect first of all the conditional there are two aspects to it the conditional use permit requirement is easier because a conditional use permit as a requirement to engage in speech has never been upheld when the conditional is when the conditions in the permit ordinance are the kinds of conditions they're in the long beach ordinance all the terms in the ordinance are stream leave a about whether it's reasonable whether it's compatible with the public interest whether it promotes the health safety and welfare of the city these are exactly the kinds of standards quote unquote that have been struck down repeatedly by the u s supreme court back before an order but in order for the court to determine whether the zoning ordinance is narrowly tailored to fit a significant government interest doesn't the city have an opportunity or shouldn't have an opportunity to present its argument and in that respect well that aspect of the dirt as i say there are two legal issues the first one is the permit application that i think the court has everything and he's to decide and i think the court has everything it needs to decide the other issue too this is a complicated dance when it comes to the burden of proof and the city of long beachhead the burden proving that there is a justification for this ordinance that restricts the areas and restricts the proximity and it had the opportunity to do that in response to both summary judgment motions and it is never offered any evidence of any kind or any legislative history of any kind to show that there are any secondary facts but didn't have to pardon didn't have to do it one on the other non you're suggesting but they didn't do anything and they take the position in their brief here that we don't have to say anything on this issue that they breached doesn't defend the first amendment aspects of the case well i did only address a standing as far as the trial is concerned but the exact arguments tonight exact legal issues were put forward of the summary judgment motions and although the summary judgment motions were not separately appealable the city had every opportunity to justify its ordinances and failed to do so and i don't think it's necessary for them have to do it because judge real took the case away from the city not in a summary judgment motions that had the opportunity  and he denied the summary judgments he did all of those things but i think that the issues with respect to both aspects of the ordinance are issues of law i submitted a supplemental authority to the court  just decided last august so i judge wilson well judge wilson's decision is a good one but there was also a case out of oceanside called yvonne y v o n n versus city of oceanside its arguments those arguments of a nature that we as a court of appeals can decide without a record yes i think both issues i think the record here these these pre these t ordinances were adopted with no supporting evidence and that's clear from the record the court has about the ordinances and the history of the ordinances there was no justification for limiting the areas where tattooing  retail establishment that is and you look at the intensity of the use you look at the net how many people go there how long they stay how much parking you need you have regulations about signage you have health regulations to make sure it's done in  sanitary manner but i believe very i don't think there's there's a a negative connotation that attaches to the word tattoo that's obsolete most many cities los angeles is the closest example that i'm familiar with san diego is that way to have no restrictions on tattooing about it in that they be located in a commercial district that could be a barber shop or it could be a tattoo shop your argument is that as a matter of law we can hold that there is no time place when men are aspect of this regulation that deserves any deference a tool not it not in the way it was and acted because unlike the history here in the cases that  that shine a light on this issue to record a pardon and we could do so without a record the record is the ordinance themselves and the legislative history of those ordinances which is before the court and shows no specific findings that support these regulations and in the first amendment area with the adult businesses which is the were this law comes from and it's you know it's something that we move past in many ways but when the adult bookstores are being regulated the first thing the court said is you can't have a conditional and they decided that as a matter of law that's been support held up upheld by the supreme the supreme court many times by the ninth circuit then they looked at time place and manner and with adult businesses they looked at the so called secondary characteristics and in cases like young versus american many theaters and renton the court found that the municipalities were justified in restricting the location of adult businesses because they caused specific that were articulated before the laws were passed that is with adult businesses there were prostitution or us there was sexual paraphernalia thrown away in the neighborhood that kind of thing that had an impact on the neighborhoods where they were located crime reporting went up and so on and so on and so on those specific findings justified the limitation of those businesses to certain parts of cities and that's been uphel had no opportunity to present what it believed were contrary views well i don't know of any i don't know of any evidence that they exist certainly the cities allow tattooing like the city of los an it's just a business there's a limited number of shops it'll open some will survive and some won't when it comes to free speech the artist should be the one who decides where to locate to reach his audience and not to say that i don't think you answer question and you used you suggest that as a matter of law the judge did just nothing out there no nobody said anything before and as a matter of blog courts have adopted this proposal and there's nothing for the city to say you may be right about whether the city has something to say but it doesn't have a right to express its view to say you know we've we have found that tattooing results in x y and z i'm not saying they're going to or that they couldn't or could i just don't know but they haven't county arizona that's at three thirty six fed third eleven fifty three and in those cases talk about the shifting burdens of proof that exist in deciding whether a meant justification for a law if it has a pre an act a justification for the law but here there is no preannouncement justification so the law has to go and then the city might come back with a replacement law and then we'd be involved in a much more complicated process of deciding where tattooing can be located but at least initially this city's cannot use current evidence if it hasn't and we haven't heard of any but it can't go back and prove well we have these problems or we imagine these problems exist and therefore the previously an affable justified you can't restrict speech based on speculation supposition you have to have concrete reasons and that's why the adults only ordinances are upheld is because those ordinance were supported by past experience they didn't have to be the experience of the particular location where the ordinance was adopted but there were experiences in other cities didn't apply for a permit he didn't have standing to challenge and never or not but i didn't see anyone who order the district explain why i cases like the city of lakewood or susan b anthony why he could still go that way without addressing those cases that did i miss something in the absolutely correct that this is an appeal from an order a order that the court the city made during trial was the state equivalent of a non suit motion rule fifty two c and that's what we're appealing here and i heard  counsel talk a lot about summary judgment and the non availability of an appeal for summary judgment certainly at the time the court granted the city's fifty two c motion had the appellant wanted to appeal that summary judgment motions and brought before this court the constitutionality of the ordinance it could have but did it only challenge judge reales the situation that no standing existed so that is the issue that's does many state federal cases have considered conditional use permit requirements of first amendment protected businesses although a conditional use permit may be required if the criteria for its issuance is sufficiently precise no court is upheld nor dense like that in long beach you have an answer that well certainly the city has a showing that this is a contract content neutral ordinance i don't think that's disputed it has to conditional use permits initial use permits advance the miscible value in compatible uses i think at the end of the day when it was a compatible use well would your honor appreciate a gas station next to your house clearly not would a school appreciate a medical marijuana that commercial zoning right but commercial talking about mixing into a residential neighborhood talk about commercial zoning what's different about a tattoo business from any other business well the city has that's what you have to answer right and had the city had the opportunity to put on evidence of the third prong which is that it has a significant government interest it would have put it on that would be an interest to be so far distant from a fortune teller what's the connection between fortune telling and tech doing well the connection between a tavern and and and ted killing yeah i don't know i think that would have been the subject approved at the time  had the city an opportunity to present that evidence but before this court is not the propriety of the statute or the ordinance but whether this particular appellant had standing which justification of an eight thousand dollars nonrefundable application again your honor i had to say i don't know but i don't know because i'm not the trial attorney and i was prepared to put that evidence on a time trial but that was evidence that certainly the city would be prepared to address had judge reale required or allow the city to put on  the judge's order at the district court level that was the basis of the fifty two c motion and that i think is a somewhat alicia before the court is what they're standing for this court want to get back to the cases referred to by judge  owen let's start with the facial challenge what's the city's response to santa monica food not versus city of santa monica and city of lakewood versus plain dealer publications as far as the standing argument regarding a facial challenge why don't those cases solve that problem here and and toward standing if you will acknowledge standing to the plaintiffs in this case t answer first the district court found that this was not a facial challenge the court found that it was and has applied challenge it took evidence on that matter it permitted the appellant to present evidence as to that matter and it made a factual determination which that this court should not question or second guess the facts of the terminations of the district court district court said it was an as applied challenge and consequently neither of the cases cited would apply but generally speaking the cases of the found standing where they an appellant or perspective plaintiff has not taken advantage of a particular ordinance or an application process the course of all look to whether there's been some injury and that could be even a change of position for example in the santa monica case the court found that in that case those plaintiffs did suffer an injury a concrete injury because they went to a different location the protests in susan b anthony is a completely different situation because the plaintiffs in the susan b anthony case face the very real possibility of a criminal prosecution simply by acting on its first amendment rights which i don't have a clear let's let's go back to the facial challenge for a second that my reading of these cases suggest that where the city has unbridled discretion that is a facial issue thanks everybody why it does that not make this ordinance one that is subject to a facial challenge this ordinance does not permit unbridled discretion or an unfettered discretion on the part of the planning commission in fact the planning commission's decisions are not limits them well two things any decision by the planning commission is appealable as a matter of right to the city council so it doesn't answer this question though does it it does i believe because city councils are required to take make fact findings consistent with the law and have those findings published and problem i'm at i understand your argument but what do we base it on here and this record well i go back to the district court's factual determination that this is an as applied challenge so it's difficult for me to argue to the court that it should analyze the case with this record should have analyzed the case as a facial challenge and then defend its failure to do that because it to analyze it and certainly no no no fair enough but where that is to court say what you just said that this  forcing this ordinance but what it did say was that there was no evidence that the plaintiff presented that anybody else had suffered any harm as a result of this tattoo ordinance i could not start a tattoo business and in fact the evidence the conic evidence that the appellant presented at the time of trial was that there were a number of other tattoo parlors he was aware of and in fact he had the opportunity to tat to open a tattoo parlor they didn't avail i'm self of simply because he didn't want to compete with a raul was contacting the city council in the city attorney's office he made inquiries about opening a tattoo party it was called the arts district in long beach at the time it was not a zone for tattooing later it was  that's when the paper crane company that you partner began its operation in the very location where the pellet originally said he wanted to be and then changed his mind and said he didn't want to be he didn't want to be there because he couldn't compete with  people or moved in but what that that digs the question we've been asking what are the criteria what should be the criteria if it just any old business we see statistics and there quoted judge by his decision forty percent of americans over twenty five and below forty have tattoos there are a number of the with it's not it's not a clandestine business anymore and i think and of course the city is now suggesting that it is the city is actually very tattoo friendly i think that should be clear from this record and it should be clear from the record clear to me ok i'm not coming here any  there are a number tattoo parlors operating in long beach there are a number of businesses that are said that are required to participate with the conditional used permit seven eleventh's have to also get a commission on conditional use permit so a conditional use permit is not necessarily an onerous burden placed on businesses it's merely an attempt by the city to ensure that there is not incompatible uses there's not saturation of businesses in particular locations is your point that you  if he didn't we don't have a chance to come back the first amendment points i would agree with your honor that if that's the city's position that if this court views judge rails the what what should let's suppose we want to reverse on the standing issue and let's suppose we take your argument that you should develop an opportunity for record what's the impact on the plaintiff and this guy he's got  maybe a lease with some space he doesn't know if he can get a lease because he's got to pay eight thousand dollars nonrefundable to the city he's out how many years and see first made application should we consider any equitable riehl applied as he was urged to apply for a conditional use permit if we believe that there was standing that that was my question what should we do so we remand back to the district judge to make findings on the first amendment point yes and what about the position of the plaintiff in the meantime that if this court is inclined to disagree but just real regarding standing it has to remain a back because that's the only issue before the court the city has been given the opportunity to demonstrate that it has a significant government interest as being advanced all of the cases say that that is not a difficult burden to show it's not an overwhelming burden and we should have that opportunity to do that in to take advantage of his first amendment rights to express himself and being deterred by legislation that made it difficult that placed impediments on the path and that would drive out the marginal plight of wishing to express himself just as brenda was very much concerned about that issue she we had that kind of concern for the plaintiff here no your honor the plaintiff i think is a record was developed the plaintiff was given every opportunity to avail of self of the city's ordinance with an expectation that he would be given a conditional use permit in fact the city all but said you apply you'll get at this point if wanted a constitutional challenge that's very important area where he didn't want to go well he didn't want to go to that area he changed his mind and was so what else went in head of him and he didn't want to compete he couldn't compete we don't know that he couldn't compete he said it was a friend of his and he didn't want to compete against a friend of his he didn't say that he couldn't compete apply the applicant and apply the injunction anyway i want i want yes that's true and i just want to clarify one thing that in terms of the notion judge arose quite unhappy about the fact that he thought he portrayed my client as a bird having a burger king attitude he wanted it his way but in fact when my client who originally was looking at areas there were three shops that he was three specific locations that he had talked to landlords and they were suitable to him one of those was in the area that was eventually opened up to tattooing and i think the court is correct he didn't want one so much competition is that one is a step on somebodies talos but their testimony is clear that there's an area called retro row where he really wanted to locate an echoes along with his artistic style his retro tattoo style but anyway the main point is that the conditional use permit requirement cannot be defended there is nothing that could make that constitutional so those let's suppose we disagree with that every man is there any kind of equitable remedy you you think we can give you is that have to go to the district court well i think no i think that the court has the power to grant an injunction and should do so pending further proceedings in the district court and i would also respect assess what would be the russian now well i say i think  unless if we don't prevail if the court believes that we don't prevail as a matter of law on either issue then i think it would be more difficult i think on reflection the court should determine that at the very least a conditional use permit can't be required even if the locational restrictions are subject to further examination which i don't believe they should be but the case can be split into two parts and at least as far as the use permit is required that should be enjoined immediately so that other people who want to tattoo in areas where it's now allowed won't have to go through that unconstitutional process is it your position that no conditional use ferment can ever be required of someone part in a business that is involved in creating art not when there's a first amendment issue involved the courts have repeated the condition here is a proposed use will not be detriment detrimental to the surrounding community including public safety general welfare like it is an l a county is a big art museum very big there's very little parking there and i've done some more to try to do some you're saying that the city could not say you know here's you you're involved in displaying various this is also true in the adult business area things like signage parking hours of operations within reason there are a list of conditions that can be imposed the key is that they be neutral i mean to be objective and specific because sites probably argues that they are but you're but you say you're not saying now that you can have a say you peed when a tattoo parlors and no no you absolutely can but you can't have this one you can't have one that gives the city any other unbridled discretion is there any other if we voted this one is there another one to take his place you know the city would have to an athlon but but the city could could list conditions if it listed you know they do that for all businesses in order to get a business license you have to show you have a certain number of parking spaces it's not a discretionary process it's a checklist the enough parking you have enough bathrooms to have this you know that for each kind of business they have a checklist that's fine but that's not this is a many tiered discretionary process you have to spend a lot of money to go through what you have to prepare plans you have to have planning review it's expensive and it should not be burdened first amendment speech