** NOTE: THIS OPINION DUPLICATES BOTH REQUESTING PARTY REQUESTS **
THE ATTORNEY GENERAL HAS RECEIVED YOUR REQUEST IN WHICH YOU ASK FOR AN OPINION ADDRESSING THE CONSTITUTIONALITY OF THE OKLAHOMA LAW WHICH PROHIBITS TATTOOING UNLESS DONE BY A LICENSED PRACTITIONER OF THE HEALING ARTS. IN VIEW OF THE FACT THAT AN OPINION OF THE ATTORNEY GENERAL ON THE CONSTITUTIONALITY OF A STATUTE IS ADVISORY ONLY (YORK V. TURPEN, 681 P.2D 763 (OKLA.1984)), YOUR REQUEST WILL BE ANSWERED BY THIS INFORMAL LETTER. THIS IS NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL BUT REPRESENTS, RATHER, THE ANALYSIS AND CONCLUSIONS OF THE UNDERSIGNED ASSISTANT ATTORNEY GENERAL.
TITLE 21 O.S. 841 (1991) PROVIDES AS FOLLOWS:
"IT SHALL BE UNLAWFUL FOR ANY PERSON TO TATTOO OR OFFER TO TATTOO ANY PERSON. AS USED HEREIN TO "TATTOO" MEANS TO INSERT PIGMENT UNDER THE SURFACE OF THE SKIN OF A HUMAN BEING, BY PRICKING WITH A NEEDLE OR OTHERWISE SO AS TO PRODUCE A PERMANENT INDELIBLE MARK OR FIGURE VISIBLE ON THE SKIN. PROVIDED, HOWEVER, THAT THE PROVISIONS HEREOF SHALL NOT APPLY TO ANY ACT OF A LICENSED PRACTITIONER OF THE HEALING ARTS PERFORMED IN THE COURSE OF HIS PRACTICE."
THERE ARE THREE POSSIBLE CONSTITUTIONAL QUESTIONS RAISED BY THE STATUTE IN QUESTION. FIRST, IT MIGHT BE ARGUED THAT THE STATUTE DEPRIVES ONE OF PROPERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT; SECOND, THAT IT VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT; AND THIRD, THAT IT INFRINGES ON FREEDOM OF SPEECH IN VIOLATION OF THE FIRST
DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS
IT IS CLEARLY WITHIN THE POLICE POWER OF A STATE TO ENACT ALL LAWS AND REGULATIONS NECESSARY TO PROTECT THE HEALTH, SAFETY, AND WELL BEING OF ITS CITIZENS. ATLANTIC COAST LINE RAILROAD V. GOLDSBORO, 232 U.S. 548, 58 L.ED. 721 (1914). IN ATLANTIC THE SUPREME COURT WROTE THAT THIS POWER TO LEGISLATE AND REGULATE FOR THE COMMON GOOD "CAN NEITHER BE ABDICATED NOR BARGAINED AWAY, AND IS INALIENABLE EVEN BY EXPRESS GRANT; AND THAT ALL CONTRACT AND PROPERTY RIGHTS ARE HELD SUBJECT TO ITS FAIR EXERCISE". ATLANTIC, 232 U.S. AT 557. THUS, WHATEVER ARGUABLE "RIGHT" ONE MIGHT HAVE TO OPERATE A TATTOO PARLOR IS SUBJECT TO THE STATE'S POWER TO PROTECT THE HEALTH AND SAFETY OF THOSE WITHIN ITS BORDERS.
THE ATLANTIC CASE CONCERNED A SECTION OF RAILROAD TRACK WHICH LAY DIRECTLY IN THE CENTER OF GOLDSBORO, NORTH CAROLINA. THE TRACK HAD PRECEDED THE TOWN AND WAS USED FOR SHIFTING FREIGHT CARS FROM ONE SPOT TO ANOTHER AND FOR GIVING THE CARS ACCESS TO WAREHOUSES. THE TOWN ENACTED CERTAIN ORDINANCES WHICH SEVERELY LIMITED THE RATE OF SPEED AND THE HOURS OF CARS USING THE TRACK, AND WHICH REQUIRED THE RAILROAD TO LOWER THE TRACK TO MAKE IT CONFORM TO THE GRADE OF THE NEWLY PAVED STREET.
THE RAILROAD OBJECTED THAT ALL OF THESE LIMITATIONS CONSTITUTED A TAKING OF THEIR PROPERTY WITHOUT DUE PROCESS. THE SUPREME COURT DISAGREED AND HELD THAT "THE ENFORCEMENT OF UNCOMPENSATED OBEDIENCE TO A REGULATION ESTABLISHED