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.
2
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.
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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; Richmond-
Greyhound 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.
. . . .
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[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
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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
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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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