With Pennsylvania lawmakers on the hunt to regulate the Commonwealth’s tattoo and piercing industries via the proposed “Body Art Establishment Act” (see this author’s prior post), it appears Washington, DC, lawmakers are now jumping on the regulation train as well. Last Friday, the City’s Department of Health released a 66 page packet of proposed “draft” regulations (http://apps.washingtonpost.com/g/page/local/health-department-draft-regulations/440/) in an effort to further govern the tattoo and body piercing industries of our Nation’s Capital.
These regulations, titled the “Body Art Establishment Regulations”, seek to “protect the public’s health by keeping the District’s body art industry safe and sanitary.” Subtitle G, Title 25 of the DCMR, Section 101.1. Certainly, a noble purpose undertaken by the City’s representatives. Many of the provisions of these regulations make perfect sense and are indeed designed to protect customers of such businesses. However, some of the provisions raise serious concerns.
Section 204 of these regulations imposes a duty upon the operator or licensee of a body art establishment to ensure that no artist in the establishment either tattoos or pierces a customer until after the expiration of a 24 hour mandatory waiting period which will be evidenced by the customer’s execution of a Twenty Four (24) Hour Waiting Period Acknowledgement Form. If that portion of the section alone doesn’t raise your hackles, artists must realize that this form cannot be used to bind the customer to either getting or paying for the requested art. This latter provision could prohibit the common practice of accepting a “downpayment” or “reservation fee” for a sitting with the artist.
To this author, the language of this regulation pertaining to a 24 hour waiting period steps soundly upon the artists’ and customers’ rights of self expression and freedom of expression under the First Amendment. The 9th Circuit Court of Appeals has already weighed in on the issue extending the First Amendment to protect tattoos and the tattooing industry. While not binding law in the DC area, nor here in Pennsylvania, the Appeals Court’s rationale is certainly very persuasive.
In 2010, the 9th Circuit Court of Appeals heard the case of Anderson v. City of Hermosa Beach, 621 F. 3d 1051 (9th Cir. 2010). In that case, the City tried to ban tattoo parlors from conducting business in Hermosa Beach, CA, through part of its municipal code. After a thorough analysis and discussion of the constitutional details surrounding extension of the protection of the First Amendment to the subject of a tattoo and the tattooing industry, the Court stated “[t]he tattoo itself, the process of tattooing, and even the business of tattooing are not expressive conduct, but purely expressive activity fully protected by the First Amendment.” Therefore, the City’s attempt to ban tattoo parlors in Hermosa Beach was held to be unconstitutional since it is “not a reasonable ‘time, place or manner’ restriction because it is substantially broader than necessary to achieve the City’s significant health and safety interests and because it entirely forecloses a unique and important method of expression.” In the 2012 Arizona case, Coleman v. City of Mesa, (CV-11-0351-PR), that State’s highest court relied, in part, on the decision of the 9th Circuit, to restate that the protection of the First Amendment does indeed extend to a tattoo and the tattoo industry. Logically, such protection would likewise extend to piercings and the piercing business.
It is important to remember that regulations which are reasonable in time, place and manner may still be constitutional even where they may infringe upon the First Amendment. The 9th Circuit Court of Appeals stated in Anderson, “[a] regulation that restricts protected expression based on the content of the speech is constitutional only if it withstands strict scrutiny, see United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000), meaning that it ‘is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end,’ Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). ” Such regulations can include the Department of Health regulations as proposed in DC, as well as those proposed in Pennsylvania.
Of course, there are some court decisions from various jurisdictions which clash with these opinions. While Pennsylvania has not weighed in on this subject directly, the issue was mentioned in passing by the 3rd Circuit Court of Appeals in the case of Scavone v. Pennsylvania State Police, No. 12-1071, October 15, 2012. However, the Court held that the Plaintiff failed to preserve this exact issue for review on appeal.
I expect we will see some constitutional challenges raised to municipal, city and state regulations of the tattooing and piercing industries in the future – both here and in DC. I will, of course, continue to monitor the issue and update these posts. If you have questions or concerns regarding these issues, please feel free to email me directly at tbeveridge@princelaw.com.
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