SUPREME COURT OF ARIZONA
En Banc
RYAN COLEMAN and LAETITIA ) Arizona Supreme Court
COLEMAN, ) No. CV-11-0351-PR
)
Appellants, ) Court of Appeals
) Division One
v. ) No. 1 CA-CV 10-0808
)
CITY OF MESA, a municipal ) Maricopa County
corporation; MESA CITY COUNCIL, ) Superior Court
a body politic; SCOTT SMITH, ) No. CV2010-092351
Mayor; LINDA CROCKER, City )
Clerk; KYLE JONES, Vice Mayor )
and City Council Member; ALEX )
FINTER, DINA HIGGINS, DENNIS ) O P I N I O N
KAVANAUGH, DAVE RICHINS, SCOTT )
SOMERS, City Council Members, )
)
Appellees. )
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Larry Grant, Judge
REVERSED AND REMANDED
________________________________________________________________
Opinion of the Court of Appeals, Division One
228 Ariz. 240, 265 P.3d 422 (2011)
VACATED
________________________________________________________________
SCHARF-NORTON CENTER FOR CONSTITUTIONAL LITIGATION Phoenix
AT THE GOLDWATER INSTITUTE
By Clint Bolick
Carrie Ann Sitren
And
KIELSKY, RIKE & ELGART, P.L.L.C. Scottsdale
By Michael Kielsky
Attorneys for Ryan Coleman and Laetitia Coleman
MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER, P.A. Phoenix
By Scott A. Holcomb
Fredda J. Bisman
David N. Ferrucci
Attorneys for City of Mesa, Mesa City Council, Scott Smith,
Linda Crocker, Kyle Jones, Alex Finter, Dina Higgins, Dennis
Kavanaugh, Dave Richins, and Scott Somers
LEAGUE OF ARIZONA CITIES AND TOWNS Phoenix
By Joni Hoffman
Attorney for Amicus Curiae League of Arizona Cities and Towns
________________________________________________________________
B A L E S, Vice Chief Justice
¶1 This case involves the intersection of municipal
zoning regulations and the right of tattoo artists to ply their
trade. After the City of Mesa denied Ryan and Laetitia Coleman
a permit to operate a tattoo parlor, the Colemans filed this
action alleging violations of their rights to free speech, due
process, and equal protection under the federal and Arizona
Constitutions. The superior court dismissed the complaint under
Arizona Rule of Civil Procedure 12(b)(6) for failing to state a
claim upon which relief can be granted.
¶2 Recognizing that tattooing involves constitutionally
protected speech, we hold that the superior court erred by
dismissing the complaint as a matter of law. We vacate the
opinion of the court of appeals, reverse the judgment of the
superior court, and remand to that court for further proceedings
consistent with this opinion.
2
I.
¶3 Mesa City Code § 11-6-3(B) requires tattoo parlors and
other specified businesses (including pawn shops, body piercing
salons, and non-chartered financial institutions) to obtain a
Council Use Permit (CUP) in order to operate in the city.1 The
Colemans applied in July 2008 for a CUP to open a parlor in a
Mesa strip mall. Under the code, Mesa’s Planning and Zoning
Board reviews each CUP application and makes a recommendation to
the City Council. In February 2009, city zoning staff
recommended that the City issue the Colemans a permit, subject
to certain conditions, which they accepted. Nonetheless, after
a public hearing, the Board voted 3-2 to recommend that the
Council deny the CUP, citing concerns that the proposed use was
not appropriate for the location or in the best interest of the
neighborhood. The Council held a public meeting in March 2009
at which it received comments from several speakers supporting
and opposing the tattoo parlor. Ultimately, the Council voted
6-1 to deny the permit.
¶4 The Colemans sued the City of Mesa and various city
officials (collectively “Mesa”). Their complaint alleges that
Mesa’s denial of the CUP violated their rights to free speech,
1
This opinion cites the version of Mesa’s zoning ordinance in
effect in 2008-09. Effective September 3, 2011, Mesa replaced
its previous ordinance with a new one. The parties have not
suggested that the new ordinance affects the resolution of any
issues pending before this Court.
3
due process, and equal protection under the federal and Arizona
Constitutions, and it seeks declaratory and mandamus relief and
damages under 42 U.S.C. § 1983. Mesa moved to dismiss the
lawsuit under Rule 12(b)(6) for failing to state a claim upon
which relief can be granted. The superior court granted the
motion, observing that the Council’s decision “was a reasonable
and rational regulation of land use.”
¶5 The court of appeals reversed. Coleman v. City of
Mesa, 228 Ariz. 240, 244 ¶ 1, 265 P.3d 422, 426 (App. 2011).
Citing Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1060
(9th Cir. 2010), the court held that “obtaining a tattoo,
applying a tattoo, and engaging in the business of tattooing”
are “pure speech entitled to the highest level of protection” by
the First Amendment and Article 2, Section 6 of Arizona’s
Constitution, 228 Ariz. at 244 ¶ 1, 265 P.3d at 426. The court
of appeals further concluded that the Colemans had “sufficiently
alleged claims for violations of their free speech, equal
protection, and due process rights,” and the trial court had
erred by dismissing the complaint without allowing the parties
to develop a factual record. Id.
¶6 We granted Mesa’s petition for review because this
case involves issues of first impression and statewide
importance regarding the free speech rights of tattoo artists
and the authority of municipal governments to regulate the
4
location of tattoo parlors.
II.
¶7 Dismissal of a complaint under Rule 12(b)(6) is
reviewed de novo. We clarify the standard of appellate review
here because our past statements have been inconsistent. In
Dressler v. Morrison, 212 Ariz. 279, 281 ¶ 11, 130 P.3d 978, 980
(2006), the Court stated that an order granting a motion to
dismiss is reviewed for abuse of discretion, citing Franzi v.
Superior Court, 139 Ariz. 556, 561, 679 P.2d 1043, 1048 (1984).
Franzi, however, involved a criminal proceeding rather than a
motion to dismiss a civil pleading under Rule 12(b)(6). 139
Ariz. at 558, 579 P.2d at 1045. Dressler, moreover, recognized
that issues of law are reviewed de novo. 212 Ariz. at 281 ¶ 11,
130 P.3d at 980.
¶8 Dismissal is appropriate under Rule 12(b)(6) only if
“as a matter of law [] plaintiffs would not be entitled to
relief under any interpretation of the facts susceptible of
proof.” Fid. Sec. Life Ins. Co. v. State Dep't of Ins., 191
Ariz. 222, 224 ¶ 4, 954 P.2d 580, 582 (1998). Because questions
of law are reviewed de novo, e.g., Wilmot v. Wilmot, 203 Ariz.
565, 569 ¶ 10, 58 P.3d 507, 511 (2002), the grant of a dismissal
under Rule 12(b)(6) is reviewed de novo.
¶9 “Arizona follows a notice pleading standard.” Cullen
v. Auto-Owners Ins. Co., 218 Ariz. 417, 419 ¶ 6, 189 P.3d 344,
5
346 (2008). In determining if a complaint states a claim on
which relief can be granted, courts must assume the truth of all
well-pleaded factual allegations and indulge all reasonable
inferences from those facts, but mere conclusory statements are
insufficient. Id. ¶ 7. “[C]ourts look only to the pleading
itself” when adjudicating a Rule 12(b)(6) motion. Id. If
“matters outside the pleading” are considered, the motion must
be treated as one for summary judgment. Ariz. R. Civ. P.
12(b)(6). A complaint’s exhibits, or public records regarding
matters referenced in a complaint, are not “outside the
pleading,” and courts may consider such documents without
converting a Rule 12(b)(6) motion into a summary judgment
motion. See Strategic Dev. & Constr., Inc. v. 7th & Roosevelt
Partners, LLC, 224 Ariz. 60, 63 ¶ 10, 64 ¶ 13, 226 P.3d 1046,
1049-50 (App. 2010).
III.
A.
¶10 “Tattooing,” as used in this opinion, refers to:
mark[ing]the skin with any indelible design, letter,
scroll, figure, symbol or any other mark that is
placed by the aid of needles or other instruments upon
or under the skin with any substance that will leave
color under the skin and that cannot be removed,
repaired or reconstructed without a surgical
procedure.
A.R.S. § 13-3721(E)(2). Although tattooing has an ancient
history and has been practiced in many different cultures, the
6
modern process generally involves electronically powered tattoo
machines that move a solid needle up and down to puncture the
skin between 50 and 3,000 times per minute, depositing insoluble
ink into the skin with each puncture. Anderson, 621 F.3d at
1055. Because the process involves puncturing the skin
repeatedly, tattooing carries risks of infection and
transmission of disease if done with unsterile equipment or in
unsanitary conditions. Id. at 1056. When properly performed,
tattooing generally is a safe procedure. Id.
¶11 Arizona does not extensively regulate the practice of
tattooing. Persons who provide tattoos, referred to as tattoo
artists, are not certified, licensed, or registered by the
state. State law does, however, bar the use of needles that
have not been properly sterilized, the reuse of needles, and the
improper disposal of used needles. A.R.S. §§ 13-3721(A)(2), 44-
1342. It is also unlawful to tattoo a minor unless the child’s
parent or legal guardian is present. Id. § 13-3721(A)(1).
¶12 The City of Mesa also imposes few regulations on
tattooing. It does not certify, license, or register tattoo
artists; nor does it generally regulate the manner in which
tattoo parlors operate. Mesa provides that tattoo parlors
cannot be within 1,200 feet of a school, another tattoo parlor,
or a body piercing salon. Mesa City Code § 11-6-3(B)(2). (This
location restriction is not at issue here.) Mesa additionally
7
requires tattoo parlors to obtain a CUP. Id.
¶13 Under Mesa’s zoning code, a CUP is a “discretionary
authorization” that the City Council may issue if it finds,
“through a public hearing that the proposed activity is in
conformance with the intent of this Code, the General Plan,
and/or other specified plans or Council policies and will be
compatible with, and not detrimental to, adjacent properties or
the neighborhood in general.” Id. § 11-1-6. A CUP may issue
only after the City Council finds that the use will “be
compatible with surrounding uses.” Id. § 11-6-3(B)(4). The
parties agree that many tattoo studios operate in Mesa with city
approval.
B.
¶14 We first consider whether the Colemans have stated a
claim for relief based on the First Amendment or Article 2,
Section 6 of Arizona’s Constitution. The First Amendment
proscribes laws “abridging the freedom of speech,” and Article
2, Section 6 of our state constitution declares that “[e]very
person may freely speak, write, and publish on all subjects,
being responsible for the abuse of that right.” These
provisions, the Colemans argue, protect the right of tattoo
artists to engage in creative expression by operating tattoo
parlors.
¶15 Mesa argues that we need not determine if tattooing is
8
constitutionally protected expression because, even if it is,
generally applicable zoning laws may apply to otherwise
protected activities without presenting free speech issues. See
Leathers v. Medlock, 499 U.S. 439, 447-49 (1991) (finding no
“First Amendment difficulties” in applying general tax to
media); Arcara v. Cloud Books, Inc., 478 U.S. 697, 705 (1986)
(holding that First Amendment did not preclude closing of adult
bookstore, pursuant to generally applicable nuisance statute,
when solicitation of prostitution was occurring on premises).
Mesa further notes that its zoning code requires CUPs for a wide
range of property uses including schools, rescue missions, pool
halls, and apartments. See Mesa City Code § 11-6-3.
¶16 We are not persuaded by Mesa’s characterization of the
denial of a CUP to the Colemans as merely the application of a
general law that incidentally affects speech-related activities.
Mesa’s zoning ordinance effectively prohibits certain uses,
including tattoo parlors, unless the City Council issues a
discretionary CUP. The City is not attempting to impose a
generally applicable law, such as the tax in Leathers or the
nuisance prohibition in Arcara, to the on-going operations of
businesses engaged in protected speech. Instead, the City
claims that the Council may exercise its unfettered discretion
(which it also argues is effectively non-reviewable) to deny
permission for businesses engaged in protected speech to operate
9
at all because it has similar discretion to deny permission for
other, non-protected uses.
¶17 The fact that a permit scheme may also apply to non-
protected activities does not insulate it from constitutional
challenge when applied to protected speech. See, e.g., Thomas
v. Chicago Park Dist., 534 U.S. 316 (2002). Thomas is
illustrative, as it involved a challenge to a city ordinance
requiring permits for events involving fifty or more people in
public parks, whether soccer games, picnics, or political
rallies. Recognizing that the ordinance “is not even directed
to communicative activity as such, but rather to all activity
conducted in a public park,” id. at 322, the Supreme Court
nonetheless considered whether it satisfied the constitutional
requirements for reasonable time, place, and manner regulations,
including the requirement that there be adequate standards to
guide the discretion of the official issuing the permit. See
id. at 323; see also Forsyth Cnty. v. Nationalist Movement, 505
U.S. 123, 130–31 (1992) (concluding that permit and fee
requirements applicable to “any activity on public property -
from parades, to street corner speeches, to bike races” violated
the First Amendment by vesting unbridled discretion in
permitting officials).
¶18 To determine if the Colemans have stated a claim for a
violation of their free speech rights, we must determine whether
10
tattooing is constitutionally protected expression. Courts in
other jurisdictions are divided on this issue, which in turn
reflects differing views on whether tattooing should be
characterized as purely expressive activity (“pure speech”) or
instead as conduct with an expressive component. We use the
terms “purely expressive activity” and “pure speech” to refer
not only to written or spoken words, but also to other media
(such as painting, music, and film) that predominantly serve to
express thoughts, emotions, or ideas. See Hurley v. Irish-
American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557,
568-70 (1995) (holding that “expressive parades” are protected
speech for purposes of First Amendment); Coleman, 228 Ariz. at
248-49 ¶ 14, 265 P.3d at 430-31 (similarly defining “pure
speech”).
¶19 “If tattooing is purely expressive activity, then it
is entitled to full First Amendment protection” and can be
regulated only through reasonable time, place, and manner
restrictions. Anderson, 621 F.3d at 1059 (citing Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989)). If, however,
tattooing is instead characterized as conduct with an expressive
component, it will be protected under the First Amendment only
if it is “sufficiently imbued with elements of communication,”
that is, there is “[a]n intent to convey a particularized
message” and “the likelihood [is] great that the message [will]
11
be understood” by viewers. Spence v. Washington, 418 U.S. 405,
409-11 (1974). Restrictions on protected expressive conduct are
evaluated under the test announced in United States v. O’Brien,
391 U.S. 367, 376-77 (1968) (analyzing prosecution for symbolic
burning of draft card to protest the draft).2 Finally, if the
conduct is not “sufficiently imbued with elements of
communication,” then the regulation need only be rationally
related to a legitimate governmental interest. Anderson, 621
F.3d at 1059 (internal quotation marks omitted) (citing Schad v.
Borough of Mount Ephraim, 452 U.S. 61, 68 (1981)).
¶20 One end of the spectrum is illustrated by the Ninth
Circuit’s opinion in Anderson, which held that “tattooing is
purely expressive activity fully protected by the First
Amendment.” 621 F.3d at 1055. The court of appeals in this
case agreed with Anderson and further ruled that “Mesa’s
ordinance and permit process are subject to intermediate
scrutiny” to determine if they constitute a reasonable time,
place, and manner regulation. Coleman, 228 Ariz. at 250 ¶ 18,
265 P.3d at 432.
2
Under the O’Brien test, a regulation of protected expressive
conduct is constitutional if (1) it is within the government’s
constitutional power; (2) it furthers an important or
substantial governmental interest; (3) the governmental interest
is unrelated to the suppression of free expression; and (4) the
incidental restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest.
391 U.S. at 377.
12
¶21 Several other courts, however, have concluded that
tattooing is not protected by the First Amendment because it is
not itself expressive conduct. See, e.g, Hold Fast Tattoo, LLC
v. City of North Chicago, 580 F. Supp. 2d 656, 660 (N.D. Ill.
2008) (finding that “act of tattooing is one step removed from
actual expressive conduct”); Yurkew v. Sinclair, 495 F. Supp.
1248, 1253-55 (D. Minn. 1980) (finding process of tattooing is
not protected speech); State ex rel Medical Licensing Bd. v.
Brady, 492 N.E.2d 34, 39 (Ind. Ct. App. 1986) (same); State v.
White, 560 S.E.2d 420, 422 (S.C. 2002) (same).
¶22 A third approach, refusing to treat tattooing
categorically as either protected or unprotected expression, has
been suggested in scholarly commentary. See Ryan J. Walsh,
Comment, Painting on a Canvass of Skin: Tattooing and the First
Amendment, 78 U. Chi. L. Rev. 1063 (2011). Relying on
Mastrovincenzo v. City of New York, 435 F.3d 78 (2d Cir. 2006),
this approach would extend First Amendment protections to a
particular tattoo artist’s work if it has a predominantly
expressive purpose. Courts would therefore make a case-by-case
inquiry to determine if tattooing is protected by the First
Amendment. Walsh, supra, at 1097-1100.
¶23 We conclude that the approach adopted in Anderson is
most consistent with First Amendment case law and the free
speech protections under Arizona’s Constitution. Anderson
13
starts with the proposition that a tattoo itself is pure speech.
621 F.3d at 1060. This seems incontrovertible. “[T]he
Constitution looks beyond written or spoken words as mediums of
expression,” Hurley, 515 U.S. at 569, and the Supreme Court has
recognized that the First Amendment protects a range of
expressive activity including parades, music, paintings, and
topless dancing. See id.; Anderson, 621 F.3d at 1060.
¶24 Tattoos, as the Ninth Circuit noted in Anderson, are
generally composed of words, realistic or abstract symbols, or
some combination of these items. 621 F.3d at 1060. They can
express a broad range of messages, and they may be purely
decorative or serve religious, political, or social purposes:
The principal difference between a tattoo and, for
example, a pen-and-ink drawing, is that a tattoo is
engrafted onto a person’s skin rather than drawn on
paper. This distinction has no significance in terms
of the constitutional protection afforded the tattoo;
a form of speech does not lose First Amendment
protection based on the kind of surface it is applied
to.
Id; see also White, 560 S.E.2d at 425 (Waller, J.,
dissenting) (observing that “whether or not something is
‘speech’ protected by the First Amendment cannot focus upon
the medium chosen for its expression”).
¶25 A tattoo involves expressive elements beyond those
present in “a pen-and-ink” drawing, inasmuch as a tattoo
reflects not only the work of the tattoo artist but also the
14
self-expression of the person displaying the tattoo’s relatively
permanent image. Of course, there is no First Amendment right
to tattoo another person against his or her will, see Anderson,
621 F.3d at 1068 (Noonan, J., concurring) (noting that “[a]
tattoo punitively affixed is unprotected”), and indeed the First
Amendment (and other constitutional provisions) would prevent
the government from requiring a person to be tattooed. Cf.
Wooley v. Maynard, 430 U.S. 705 (1977) (holding that First
Amendment barred state from requiring citizens to display “Live
Free or Die” motto on vehicle license plates).
¶26 We also agree with Anderson’s conclusion that the
process of tattooing is expressive activity. See 621 F.3d at
1061-62.3 Supreme Court case law has not distinguished “between
the process of creating a form of pure speech (such as writing
or painting) and the product of these processes (the essay or
the artwork) in terms of the First Amendment protection
afforded.” Id. at 1061. For example, the art of writing is no
less protected than the book it produces; nor is painting less
an act of free speech than the painting that results. Id. at
1061-62.
3
Mesa attempts to distinguish Anderson by noting that it
involved a city’s total ban on tattooing, which the Ninth
Circuit concluded was not a reasonable time, place, and manner
regulation. The fact that Anderson considered a total ban,
however, does not detract from the merits of its analysis of
whether tattooing is protected speech.
15
¶27 This observation explains why we are not persuaded by
decisions such as Hold Fast Tattoo that rely on Spence to
conclude that tattooing is not protected by the First Amendment.
See, e.g., Hold Fast Tattoo, 580 F. Supp. 2d at 659-60; Yurkew,
495 F. Supp. at 1253. The Spence test, which focuses on whether
conduct is “sufficiently imbued” with expressive content to
warrant protection, applies to conduct that is not itself
generally expressive. Anderson, 621 F.3d at 1061; see Hurley,
515 U.S. at 569 (declining to apply Spence test to expressive
parades and noting it does not apply to paintings and music).
¶28 We also decline to apply Mastrovincenzo’s case-by-case
approach to analyze the regulation of tattooing. In
Mastrovincenzo, the Second Circuit considered whether the First
Amendment protected the sale of clothing painted with graffiti,
and ultimately concluded that the sale was protected because
“the disseminators of that clothing [were] genuinely and
primarily engaged in artistic self-expression” rather than “a
chiefly commercial exercise.” 435 F.3d at 91. Mastrovincenzo,
however, adopted this approach to determine if certain products,
such as t-shirts and caps, that are not generically expressive
should nonetheless be protected by the First Amendment because
the particular items “serve predominantly expressive purposes.”
Id. at 92.
¶29 Mastrovincenzo acknowledged that its case-by-case
16
approach does not apply to “paintings, photographs, prints and
sculptures [that] always communicate some idea or concept to
those who view it, and as such are entitled to full First
Amendment protection.” Id. (internal quotation omitted).
Tattoos, in our view, are more like paintings than t-shirts in
terms of their general expressive content. Moreover, a case-by-
case inquiry would be difficult to administer and insufficiently
protective of free speech rights: whether a particular artist
could engage in tattooing might turn in the first instance on a
licensing official’s assessment whether the proposed work is
“predominantly expressive” and ultimately on whether courts
agreed with that assessment.4
¶30 Our conclusion that the process of tattooing is
protected speech is also not affected by the fact that tattoo
artists may use standard designs or patterns. In Hurley, the
Court rejected arguments that a parade was not the protected
expression of its organizers because it incorporated speech
originally created by others. The Court noted that “First
Amendment protection [does not] require a speaker to generate,
4
Mastrovincenzo outlined a three-part inquiry to determine if a
product is predominantly expressive: (1) the court should
“consider whether that item also has a common non-expressive
purpose or utility,” 438 F.3d at 95; (2) if the court finds that
an item has both expressive and non-expressive purposes, it must
determine which purpose dominates; and (3) if an item is found
to be predominantly expressive, the court must “take into
account other factors that shed light on how and why an object
is being sold or disseminated.” Id. at 96.
17
as an original matter, each item featured in the communication.
Cable operators, for example, are engaged in protected speech
activities even when they only select programming originally
produced by others.” 515 U.S. at 570 (citing Turner Broad.
Sys., Inc. v. FCC, 512 U.S. 622, 636 (1994)). The fact that a
tattoo artist may use a standard design or message, such as
iconic images of the Virgen de Guadalupe or the words “Don’t
tread on me” beside a coiled rattlesnake, does not make the
resulting tattoo any less expressive.
¶31 Determining that tattooing is protected speech also
implies that the business of tattooing is constitutionally
protected. See Anderson, 621 F.3d at 1062-63. “[T]he degree of
First Amendment protection is not diminished merely because the
[protected expression] is sold rather than given away.” City of
Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 756 n.5
(1988); see also Riley v. Nat’l Fed’n of the Blind of N.C.,
Inc., 487 U.S. 781, 801 (1988) (noting that “a speaker’s rights
are not lost merely because compensation is received; a speaker
is no less a speaker because he or she is paid to speak”). This
does not mean, of course, that the business of tattooing is
shielded from governmental regulation. As discussed above,
generally applicable laws, such as taxes, health regulations, or
nuisance ordinances, may apply to tattooing businesses.
Moreover, tattooing may be subject to reasonable time, place,
18
and manner regulations. See Ward, 491 U.S. at 791; Anderson,
621 F.3d at 1059, 1064.
¶32 Having concluded that tattooing is protected speech,
we next consider whether the Colemans’ complaint sufficiently
states a claim for relief based on alleged violations of the
First Amendment or Article 2, Section 6 of Arizona’s
Constitution. The Mesa ordinance, which requires a CUP for all
tattoo parlors, is facially content-neutral and the Colemans do
not contend that they were denied a permit based on the content
of their contemplated speech. The Colemans instead allege that
the CUP process is not a reasonable time, place, and manner
regulation of their protected expression.
¶33 For a permit system to qualify as a reasonable time,
place, and manner regulation, the scheme “must not be based on
the content of the message, must be narrowly tailored to serve a
significant governmental interest, and must leave open ample
alternatives for communication.” Thomas, 534 U.S. at 323 n.3
(internal quotation omitted); see also Forsyth Cnty., 505 U.S.
at 130. It also must “contain adequate standards to guide the
official's decision and render it subject to effective judicial
review.” Thomas, 534 U.S. at 323; Forsyth Cnty., 505 U.S. at
130 (noting that “[a] government regulation that allows
arbitrary application is inherently inconsistent with a valid
time, place, and manner regulation”) (internal quotation
19
omitted).
¶34 The Colemans have alleged sufficient facts to state a
claim on which relief can be granted for violations of the
freedom of speech. They allege that the City’s “planning and
zoning code approval criteria, facially and as applied by the
City Council,” do not sufficiently guide or limit the City
Council’s discretion in rendering decisions. (In fact, before
this Court, counsel for Mesa argued that the City Council’s
determinations on CUPs are discretionary and effectively non-
reviewable.)
¶35 The Colemans further allege that they have agreed to
comply with all the conditions that city zoning staff identified
in recommending they be issued a permit; that the Council has
issued permits to other tattoo parlors; and that they will
comply with all applicable laws and reasonable regulations on
the time, place, and manner of conducting their business. They
also allege that they have been discriminatorily denied a permit
to operate their business, suppressing their free expression and
that of their prospective customers.
¶36 If we accept these factual allegations as true, as we
must for purposes of assessing a motion to dismiss on the
pleadings, then the Colemans have stated a claim under the First
Amendment because the “pleading itself” does not indicate that
Mesa’s denial of the CUP was a reasonable time, place, and
20
manner regulation of their speech.5 Cullen, 218 Ariz. at 419
¶ 7, 189 P.3d at 346. Although dismissal of the complaint under
Rule 12(b)(6) was inappropriate, we express no opinion whether
Mesa’s ordinance, the CUP process, or the refusal to allow the
Colemans to operate their tattoo business at a particular
location were in fact reasonable restrictions or violated their
free speech rights.
C.
¶37 The Colemans also allege in their complaint that
Mesa’s denial of a CUP to operate a tattoo parlor violated their
rights to equal protection and due process under the federal and
Arizona Constitutions.
¶38 The Fourteenth Amendment provides that “[n]o State
shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; . . . nor deny
to any person within its jurisdiction the equal protection of
the laws.” Article 2, Section 13 of Arizona’s Constitution
provides “[n]o law shall be enacted granting to any citizen
5
Our conclusion that the Colemans have stated a claim under the
First Amendment sufficient to withstand a Rule 12(b)(6) motion
necessarily implies that they have also stated claims under
Article 2, Section 6 of Arizona’s Constitution, which is in some
respects more protective of free speech rights than the First
Amendment. See, e.g., State v. Stummer, 219 Ariz. 137, 194 P.3d
1043 (2008) (identifying standard for evaluating content-based
secondary effects regulations). Given the preliminary stage of
this litigation, we have no occasion to address whether Article
2, Section 6 might afford greater protection to the activity of
tattooing than applies under the First Amendment.
21
. . . privileges or immunities which, upon the same terms,
shall not equally belong to all citizens or corporations.” Both
the Fourteenth Amendment and Article 2, Section 4 of Arizona’s
Constitution provide that no person may be deprived of life,
liberty, or property “without due process of law.”
¶39 Although the Colemans also assert in their complaint
that they have been denied “privileges and immunities of
citizenship” in violation of the Fourteenth Amendment, they have
not alleged the deprivation of any rights protected under the
Supreme Court’s “narrow reading” of the Privileges or Immunities
Clause. See McDonald v. City of Chicago, 130 S. Ct. 3020, 3029-
30 (2010). Moreover, this Court has construed Article 2,
Section 13 of Arizona’s Constitution as applying the same
standard as applies to equal protection claims under the federal
constitution, see Big D Constr. Corp. v. Court of Appeals, 163
Ariz. 560, 565-66, 789 P.2d 1061, 1066-67 (1990); Ariz. Downs v.
Ariz. Horsemen’s Found., 130 Ariz. 550, 555, 637 P.2d 1053, 1058
(1981), and the Colemans have not argued that another standard
should apply. Thus, whether the Colemans have stated claims for
relief in addition to their free speech claims reduces to
whether they have stated sufficient claims under the federal
Equal Protection Clause or the federal or state Due Process
Clauses.
¶40 The court of appeals held that because tattooing is
22
protected speech, and speech is a fundamental right, courts
should apply “strict scrutiny” in assessing whether the City’s
denial of a CUP to the Colemans violated either equal protection
or due process. Coleman, 228 Ariz. at 253-54 ¶¶ 26-27, 29, 265
P.3d at 435-36. With respect to the First Amendment claims
themselves, however, the court of appeals correctly recognized
that intermediate scrutiny would apply in evaluating whether
Mesa had imposed a permissible time, place, or manner
restriction on the Colemans’ operation of a tattoo parlor. Id.
at 250 ¶ 18, 265 P.3d at 432.
¶41 The court of appeals erred by stating that more
stringent scrutiny applies with respect to due process and equal
protection claims involving the First Amendment than applies to
the First Amendment claim itself. At oral argument, counsel for
the Colemans acknowledged that, with respect to the free speech
claims, the same level of scrutiny would apply whether they are
grounded in the First Amendment or the Equal Protection and Due
Process Clauses.
¶42 As the Third Circuit has observed:
If every time, place, and manner regulation were
subject to strict scrutiny under the Equal Protection
Clause simply because it burdened constitutionally
protected speech, Ward's intermediate-scrutiny test
would be rendered obsolete. Instead, it is only
content-based time, place, and manner regulations that
call for strict scrutiny-whether viewed through the
lens of First Amendment or Equal Protection doctrine.
23
Brown v. City of Pittsburgh, 586 F.3d 263, 283 n.22 (3d Cir.
2009); see also Melrose, Inc. v. City of Pittsburgh, 613 F.3d
380, 394 (3d Cir. 2010) (noting that “where the state shows a
satisfactory rationale for a content-neutral time, place, and
manner regulation, that regulation necessarily survives scrutiny
under the Equal Protection Clause”) (internal quotation
omitted); Jones Intercable of San Diego, Inc. v. City of Chula
Vista, 80 F.3d 320, 327 (9th Cir. 1996) (recognizing that
content-neutral restrictions are reviewed under intermediate
scrutiny for either First Amendment or equal protection
purposes). These remarks apply equally to claims that a
content-neutral regulation violates due process because of its
impact on protected speech. See Albright v. Oliver, 510 U.S.
266, 273 (1994) (noting that “[w]here a particular Amendment
provides an explicit textual source of constitutional
protection” against a particular sort of government behavior,
“that Amendment, not the more generalized notion of substantive
due process, must be the guide for analyzing these claims”)
(internal quotations omitted).
¶43 That the Colemans’ free speech claims do not trigger
“strict scrutiny” does not mean, however, that the Colemans have
failed to state claims for violations of due process or equal
protection. For reasons explained in the preceding section, the
Colemans have alleged that the ordinance and permit denial do
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not satisfy intermediate scrutiny. Moreover, independent of any
free speech issues, the Equal Protection and Due Process Clauses
protect against government action that is arbitary, irrational,
or not reasonably related to furthering a legitimate state
purpose. See, e.g., City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 446-50 (1985) (rejecting special use permit
requirement as lacking a rational basis and thus violating equal
protection); N. Pacifica LLC v. City of Pacifica, 526 F.3d 478,
484 (9th Cir. 2008) (explaining that substantive due process
challenge to land use regulation requires allegation that it
does not advance any legitimate government purpose); Big D
Constr. Corp., 163 Ariz. at 565-66, 789 P.2d at 1066-67
(applying rational basis standard to equal protection claim
under Arizona Constitution); Valley Nat. Bank of Phx. v. Glover,
62 Ariz. 538, 553, 159 P.2d 292, 298-99 (1945) (discussing due
process under Arizona Constitution).
¶44 The Colemans allege that, although other tattoo
parlors have been allowed to operate in Mesa, the Council denied
the Colemans a permit based on “perceptions, stereotypes and
prejudice” rather than facts demonstrating that their business
would harm the community. Thus, the Colemans have alleged that
Mesa acted arbitrarily in denying them a permit and that the
action did not further any legitimate government purpose.
¶45 Mesa responds that the Colemans cannot complain about
25
the denial of the permit because the City merely rejected their
request to operate a tattoo parlor at a particular location.
Mesa further contends that its Council acted reasonably in
concluding that a tattoo parlor was not appropriate for this
location and did not serve the best interests of the
neighborhood. We acknowledge that municipalities have
legitimate interests in controlling the location of businesses
through zoning ordinances. See Young v. Am. Mini Theatres,
Inc., 427 U.S. 50, 62 (1976) (permitting the city to “control
the location of . . . commercial establishments, either by
confining them to certain specified commercial zones or by
requiring that they be dispersed throughout the city”).
¶46 In adjudicating a Rule 12(b)(6) motion to dismiss,
however, a court does not resolve factual disputes between the
parties on an undeveloped record. Instead, the issue is whether
the pleading states a sufficient claim to warrant allowing the
Colemans to attempt to prove their case. The complaint
sufficiently sets forth claims for relief for alleged violations
of the Colemans’ rights to free speech, equal protection, and
due process. Whether they can prove those claims will depend on
the course of proceedings in the trial court.
IV.
¶47 The superior court erred in dismissing the Colemans’
complaint pursuant to Rule 12(b)(6) for failing to state a claim
26
upon which relief can be granted. We vacate the opinion of the
court of appeals, reverse the judgment of the superior court,
and remand to that court for further proceedings consistent with
this opinion. We deny the Colemans’ request for attorney fees
without prejudice to their renewing this request with the
superior court should they ultimately prevail.
_____________________________________
Scott Bales, Vice Chief Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
A. John Pelander, Justice
_____________________________________
Robert M. Brutinel, Justice
27