Present: All the Justices 

ANCIENT ART TATTOO STUDIO, 

LTD., ET AL. 

v. Record No. 011299 OPINION BY JUSTICE CYNTHIA D. KINSER 

 APRIL 19, 2002 

CITY OF VIRGINIA BEACH, ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Frederick B. Lowe, Judge 

 In this appeal, we consider whether the circuit court 

erred in denying mandamus relief to petitioners who sought 

approval of applications to operate tattoo establishments. 

Because we conclude that a zoning administrator’s decision 

on the applications involved the performance of a 

discretionary duty, we will affirm the circuit court’s 

judgment. 

FACTS AND MATERIAL PROCEEDINGS 

 In a petition for a writ of mandamus, Ancient Art 

Tattoo Studio, Ltd. (Ancient Art) challenged the validity 

of an ordinance of the City of Virginia Beach (the City) 

that has prohibited the operation of tattoo establishments 

within the City limits since 1965. The circuit court ruled 

that the ordinance at issue, Virginia Beach City Code § 23-

51, is inconsistent with the City’s authority to regulate 

the conduct of tattoo parlors as set forth in Code § 15.2-
912, and also with the provisions of Code § 18.2-371.3.1 

Thus, the court held that, to the extent that the City’s 

denial of Ancient Art’s previously filed application for a 

business license and certificate of occupancy to operate a 

tattoo parlor was premised on Section 23-51, the permits 

should be issued. However, the court stated that Ancient 

Art must satisfy any other legitimate requirements of the 

City’s ordinances. 

 Joseph M. Dufresne, president of Ancient Art, then 

filed another application to obtain the required permits to 

operate a tattoo parlor.2 The City’s interim zoning 

administrator (Zoning Administrator) advised Dufresne that, 

in light of the circuit court decision invalidating 

Virginia Beach City Code § 23-51, she could not make a 

determination on the application until she had conducted 

further research. Ancient Art then filed a petition for a 

supplemental writ of mandamus to require the Zoning 

Administrator to grant the requested approval immediately. 

In the petition, Ancient Art alleged that it had complied 

 1

 Virginia Beach City Code § 23-51(b) provided that 

“[i]t shall be unlawful for any person in the city to 

operate a tattoo establishment or engage in the practice or 

business of tattooing as a tattoo operator or as a tattoo 

artist.” 

2

 Ancient Art subsequently filed an application in its 

name. 

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with all the provisions of the City’s zoning ordinance and 

that, therefore, issuing the required certificates is “a 

perfunctory ministerial procedure” that is generally 

handled “at the counter.” Ancient Art asserted, however, 

that the Zoning Administrator purposefully delayed approval 

of its applications in order to allow the City sufficient 

time in which to amend its zoning ordinance so as to 

preclude the operation of tattoo establishments in certain 

zoning districts. 

 At a hearing on Ancient Art’s supplemental petition, 

the court heard testimony from Dufresne and the Zoning 

Administrator. According to Dufresne, the Zoning 

Administrator stated that “she had 90 days to make a 

decision, and she was instructed [by the City Attorney’s 

office] to take the full 90 days.” However, the Zoning 

Administrator disputed Dufresne’s assertion and instead 

testified that she had been requested not to issue permits 

for tattoo establishments “over the counter.” She 

acknowledged that businesses performing temporary tattooing 

and body piercing had been previously classified as 

“personal service establishments” that are permitted in the 

City’s RT-2 Resort Tourist District. See Virginia Beach 

City Code §§ 1510 and 1511. However, the Zoning 

Administrator explained that, because of the invalidation 

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of the City’s ordinance banning tattoo establishments and 

the absence of any other ordinances specifically addressing 

the practice of tattooing, she needed time to determine the 

appropriate classification for a tattoo parlor. She also 

stated that she was aware of and could not ignore the fact 

that the City had pending amendments to its zoning 

ordinance regarding the classification and location of 

tattoo parlors. Nevertheless, she admitted that if she 

“had to make a decision today, . . . [the] tattoo parlors 

can go into place.” 

 The circuit court denied the petition, concluding that 

the City should have a reasonable period of time in which 

to consider Ancient Art’s applications and enact 

appropriate zoning regulations relating to the location and 

operation of tattoo establishments. The court subsequently 

entered an order memorializing this ruling. 

 On April 24, 2001, a few days before entry of the 

court’s final order, the City adopted several amendments to 

its zoning ordinance. The amendments permit the operation 

of tattoo parlors in the City’s B-2 Business District with 

a conditional use permit. However, the amendments 

specifically prohibit the operation of tattoo parlors in 

the City’s RT-2 Resort Tourist District, where Ancient Art 

had originally planned to open a tattoo establishment. 

4
 Ancient Art appeals from the denial of its petition 

for a supplemental writ of mandamus. It contends that the 

Zoning Administrator is not authorized to take up to 90 

days to rule on pending applications. Instead, relying on 

Virginia Beach City Code § 103(e), Ancient Art asserts that 

the issuance of a certificate of occupancy is mandatory 

upon the applicant’s compliance with the requirements of 

the City’s zoning ordinance, and that the Zoning 

Administrator cannot delay approval in order for the City 

to enact zoning changes. Thus, Ancient Art argues that, 

because it satisfied all existing zoning requirements, the 

circuit court should have granted a writ of mandamus 

directing immediate approval of Ancient Art’s pending 

applications. 

ANALYSIS 

 Mandamus is an extraordinary remedy that may be used 

“to compel performance of a purely ministerial duty, but it 

does not lie to compel the performance of a discretionary 

duty.” Board of County Supervisors v. Hylton Enters., 

Inc., 216 Va. 582, 584, 221 S.E.2d 534, 536 (1976) (citing 

Griffin v. Board of Supervisors, 203 Va. 321, 328, 124 

S.E.2d 227, 233 (1962)); accord Town of Front Royal v. 

Front Royal & Warren County Indus. Park Corp., 248 Va. 581, 

584, 449 S.E.2d 794, 796 (1994); Early Used Cars, Inc. v. 

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Province, 218 Va. 605, 609, 239 S.E.2d 98, 101 (1977). A 

writ of mandamus may be issued only when there is a clear 

right to the relief sought, a legal duty to perform the 

requested act, and no adequate remedy at law. Hylton 

Enters., 216 Va. at 584, 221 S.E.2d at 536; RichmondGreyhound Lines v. Davis, 200 Va. 147, 151-52, 104 S.E.2d 

813, 816-17 (1958). 

 Applying these principles, we conclude that Ancient 

Art was not entitled to a writ of mandamus. After the 

circuit court decided that the City’s long-standing 

ordinance banning the operation of tattoo establishments 

was not valid, the Zoning Administrator had to look to the 

City’s zoning ordinance to determine, for the first time, 

how tattoo parlors should be classified for the purpose of 

deciding in which zoning districts those establishments 

could be located. Unlike the situation in Town of 

Jonesville v. Powell Valley Village Limited Partnership, 

254 Va. 70, 77-78, 487 S.E.2d 207, 212 (1997), where the 

town had no zoning regulations in effect after its zoning 

ordinance was declared void ab initio, the City’s zoning 

ordinance was not affected by the court’s ruling and 

provided the framework for the Zoning Administrator’s 

decision on Ancient Art’s applications. Contrary to 

Ancient Art’s argument, tattoo establishments did not, 

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after the ban was invalidated, automatically fall into the 

category of “personal service establishments” that are 

permitted in the RT-2 Resort Tourist District, see Virginia 

Beach City Code § 1511, merely because establishments 

providing temporary tattoos, body piercing, and permanent 

make-up had previously been given that classification. 

This is so even if Ancient Art is correct in its assertion 

that permanent make-up “is nothing more than tattooing by 

another name.” 

 Thus, in the absence of any zoning regulation 

regarding the operation or location of tattoo parlors, or a 

definition of the term “personal service establishments” in 

the City’s zoning ordinance, the determination as to how to 

classify a tattoo parlor necessarily involved the exercise 

of discretion by the Zoning Administrator. Even if Ancient 

Art had complied with all other zoning requirements, the 

Zoning Administrator’s decision, in these circumstances, 

remained discretionary and was not the performance of a 

purely ministerial duty. As this Court stated many years 

ago: 

 [I]t is well settled that mandamus will not lie to 

compel the performance of any act or duty necessarily 

calling for the exercise of judgment and discretion on 

the part of the official charged with its performance. 

. . . . 

7
 [W]here the official duty in question involves the 

necessity on the part of the officer of making some 

investigation, and of examining evidence and forming 

his judgment thereon mandamus will not lie. 

Thurston v. Hudgins, 93 Va. 780, 783, 20 S.E. 966, 967-68 

(1895) (citations and quotation marks omitted), quoted in

Richlands Medical Assoc. v. Commonwealth ex rel. State 

Health Comm’r, 230 Va. 384, 386-87, 337 S.E.2d 737, 739 

(1985). 

 Relying on our decision in Planning Commission v. 

Berman, 211 Va. 774, 180 S.E.2d 670 (1971), Ancient Art 

nevertheless contends that the Zoning Administrator 

purposefully delayed making a decision on its applications 

so that the City would have time to amend its zoning 

ordinance in order to preclude the location of tattoo 

parlors in certain zoning districts. In Berman, the 

petitioners sought approval of a site plan and issuance of 

a building permit for a free standing restaurant in a 

zoning district that permitted such restaurants as a matter 

of right. We concluded that the evidence supported the 

trial court’s decision that the reasons given for denying 

approval of the site plan were “purely ‘technical’ and 

constituted an effort to illegally control the use of the 

land contrary to the existing zoning law[.]” Id. at 775-

76, 180 S.E.2d at 671-72. The denial of approval was not 

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predicated on the applicant’s failure to comply with zoning 

regulations, but on the desire of the planning commission 

to prevent any further increase in the number of free 

standing franchise restaurants on a particular street. Id.

at 776, 180 S.E.2d at 672. 

 Ancient Art overlooks a significant difference between 

the facts in Berman and those in the present case. There, 

the restaurant was to be located in a zoning district that 

permitted free standing restaurants as a matter of right. 

Once the applicant complied with any other zoning 

requirements, approval of the site plan and issuance of the 

building permit were purely ministerial acts. In contrast, 

the City’s zoning ordinance did not specifically permit the 

operation of a tattoo parlor as a matter of right in any 

particular zoning district. Rather, the right to operate 

such an establishment in a particular zoning district, 

specifically the RT-2 Resort Tourist District, depended on 

its classification under the City’s zoning ordinance. As 

already noted, that determination was a discretionary act. 

 The Zoning Administrator also was not required to make 

a decision “over the counter” as Ancient Art argues. Under 

Code § 15.2-2286(A)(4), the Zoning Administrator had 90 

days in which to respond to Ancient Art’s applications. 

The provisions of Virginia Beach City Code § 103(e) do not 

9
alter or reduce that 90-day period. Instead, Section 

103(e) merely requires the Zoning Administrator to “issue 

such certificate if [she] finds that all of the 

requirements of this ordinance have been met[.]” To make 

the finding that Ancient Art had satisfied all requirements 

of the City’s zoning ordinance, the Zoning Administrator 

first had to determine the appropriate classification for a 

tattoo establishment. 

 Our decision is not altered by the Zoning 

Administrator’s testimony that, if she “had to make a 

decision today,” she would issue the certificate. She was 

not required, under the provisions of either Code § 15.2-

2286 or Virginia Beach City Code § 103(e), to make a 

decision on the day that Ancient Art submitted its 

applications. Nor was Ancient Art entitled to a decision 

under the City’s existing zoning ordinance before the 

enactment of the amendments. See Parker v. County of 

Madison, 244 Va. 39, 42, 418 S.E.2d 855, 857 (1992)(the 

obligation to act in accordance with the new law, not the 

former, is not affected by the mere filing of an 

application before the new law becomes effective). 

Additionally, we note that the circuit court’s order 

specified that the denial of mandamus relief was without 

prejudice to Ancient Art’s right to file a petition for a 

10
writ of mandamus if the City failed to act on Ancient Art’s 

pending applications within 60 days of March 26, 2001. 

 Thus, we conclude that mandamus was not an appropriate 

remedy to obtain the relief sought by Ancient Art. 

Accordingly, the circuit court did not err in denying 

Ancient Art’s petition for a supplemental writ of mandamus, 

and we will affirm the circuit court’s judgment. 

Affirmed. 

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