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Cocoa Beach: Board Of Adjustment And Tattoos.

Last night the Board of Adjustments for the City of Cocoa Beach met to discuss three cases.

Our main issue will be with the third case, but something else came prior to the actual cases.

Item number 6 was added to the agenda and reads:

Review of quasi-judicial hearing requirements – City Attorney (added to the Agenda 05/11/17)

City Attorney Marsh Segal-George reviewed the standards for a “quasi-judicial” hearing, which is what the Board of Adjustment (BOA) acts as. Generally speaking, a quasi-judicial board is one that acts as a court in a limited set of circumstances and areas. In this instance, the BOA is familiar with the general codes for building in Cocoa Beach. Rather than having some judge sit there and try to learn the codes, the law allows a local board to act as a court and the decisions have the same weight as a court.

The interesting thing is that Segal-George said that previously the City Staff had made recommendations on whether to grant or deny the variance as part of the presentation to the Board. The Staff will no longer do this. Although Segal-George did not say so, there were always problems with the Staff recommendations based on the fact that people who had made the decisions and recommendations never had to testify. There seemed to us to be a bias toward the Staff’s opinion and too many times we heard “the Staff knows what they are doing” and going with their recommendation rather than their own judgement.

We had written about this more than one time and it appears that someone may have heard our cries and are now not allowing the Staff to make recommendations on agenda items.

We’ll take that as a win.


We want to turn our attention to item C3.

The Cocoa Beach Tattoo Company was looking to move into Cocoa Beach from their current location in Cape Canaveral. According to the owner Dave Cox, the company came up with the name “Cocoa Beach Tattoo Company” and then found that their best location for customers would be in Cape Canaveral. Now the company is looking to move into the downtown area of Cocoa Beach and also sell beach ware, clothing, and souvenirs. .

The problem is that the location is 1730 feet from another tattoo parlor. For the company to move to the proposed location they would need a “special exemption” from the Board of Adjustments.

From the agenda summary:

This request, if granted would allow a tattoo studio to be located at 37 South Atlantic Avenue. The location is in the CG General Commercial zoning district, within the Downtown Core subdistrict of the downtown overlay. According to the Cocoa Beach Land Development Code (LDC) Section 2-11.E.13, a tattoo studio is a permitted use upon approval of a special exception.

The applicant is the owner of the Cocoa Beach Tattoo Company LLC, which has been in business since 2013 and is currently located in Cape Canaveral. The proposal, as stated within the attached letter of intent, is to relocate within the corporate limits of Cocoa Beach and expand the business to include the retail sales of beach apparel, furniture, and accessories.

One of the considerations for the Board, when deciding to approve a tattoo studio at a particular location, is the distance from another existing tattoo studio. The distance, as measured from the public entrance of one to the public entrance of another, should be 2,000 feet, but the Board has the authority to consider a location that is closer. The distance between the proposed tattoo studio and the closest existing studio is 1,730 feet, as shown on the attached map.

Some background might be needed.

In 2009 the City Commission passed a rule requiring that tattoo parlors not be within 2000 feet of each other. According to City Planner Sue Ryan, the reason for the passage was that the Commission was concerned about the way a cluster of tattoo parlors would look.

That’s important to remember.

The City Commission voted based on the impression a tattoo shop has.

Many times during the meeting last night, BOA members commented that they felt they didn’t have the right to go back and change the rule or allow an exception to the 2000 foot rule.

Don Haynes asked whether there were any cases or case law that were contrary to the 2000 foot rule as he had heard that courts had ruled that tattoos were a form of art and therefore under the protection of the First Amendment.

Attorney Segal-George, who apparently was as prepared on this issue as she always is, said she was unaware of any court cases that covered this.

Allow us to introduce Segal-George and the rest of the Board of Adjustment (and hopefully ultimately the City Commission) to the case of Buehle v. City of Key West. The case was decided in December of 2015 by the Eleventh Circuit which covers the State of Florida. The date also means that the decision was after the 2009 vote by the City Commission but would apply to the 2000 foot rule itself.

The background of the case is rather simple:

Mr. Buehrle wished to open a tattoo establishment in the City’s historic district. After negotiating a lease to rent commercial space there, he attempted to file an application with the City for a business license. The City denied Mr. Buehrle’s application. The City prohibits tattoo establishments in the historic district, see Key West, Fla., Code of Ordinances, subpart A, § 42–6(a), and allows tattoo establishments only in the General Commercial District as a “conditional use,” see id. subpart B, § 122–418(21).

The island of Key West has a history of restricting the operation of tattoo establishments. From 1966 to 2007, there was a blanket prohibition on operating any tattoo establishments on the island. According to local lore, this ban arose at the request of the United States Navy, which feared that its sailors would obtain ill-advised tattoos. Today, the City permits only two tattoo businesses to operate in the historic district as lawful non-conforming uses; it allowed these as part of the settlement of a prior lawsuit challenging the constitutionality of the ban. The City maintains that, given its history, tattoo establishments are inconsistent with the district’s historic character. It also fears that rash tourists will obtain regrettable tattoos, leading to negative association with Key West. Thus, it argues, permitting more tattoo establishments will adversely affect tourism.

It is ironic that the arguments put forth by the City of Key West mirror those put forth by the City Commission as well as the members of the Board of Adjustments.

The Court addressed whether tattooing itself was protected under the Amendment:

We have never addressed whether tattooing is a protected form of artistic expression. The Ninth Circuit encountered this issue in Anderson v. City of Hermosa Beach, where it held that tattooing was protected speech and that Hermosa Beach constitutionally could not ban tattoo establishments from operating in the city. 621 F.3d 1051, 1055 (9th Cir.2010). We join the Ninth Circuit in holding that the act of tattooing is sheltered by the First Amendment, in large part because we find tattooing to be virtually indistinguishable from other protected forms of artistic expression. As our sister circuit observed, “[t]he 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․ [A] form of speech does not lose First Amendment protection based on the kind of surface it is applied to.” Id. at 1061.

[….]

Any other interpretation of the First Amendment in this context would deprive it of the force and effect the Supreme Court has told us it deserves. See Ward, 491 U.S. at 790. A regulation limiting the creation of art curtails expression as effectively as a regulation limiting its display. The government need not ban a protected activity such as the exhibition of art if it can simply proceed upstream and dam the source. Consistent with the Supreme Court’s teaching, the right to display a tattoo loses meaning if the government can freely restrict the right to obtain a tattoo in the first place. See Anderson, 621 F.3d at 1062 (“[T]he tattoo cannot be created without the tattooing process․ Thus, as with writing or painting, the tattooing process is inextricably intertwined with the purely expressive product (the tattoo), and is itself entitled to full First Amendment protection.”). For this reason, the Supreme Court has never “drawn a distinction 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 (emphasis omitted); see also Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 116–18 (1991) (First Amendment protects both the act of writing content and the act of publishing it).

Make no mistake about it. In the State of Florida, tattooing and the creation of tattoos is a protected form of speech.

But the issue doesn’t end there.

Governments such as the City of Cocoa Beach have the right to place “time, place and manner” restrictions on speech. For a government to place such a restriction, they must show a compelling interest in restricting speech.

Some of the BOA members argued that a tattoo parlor would “change the look and character” of what the City of Cocoa Beach was trying to accomplish in the downtown area.

Amazingly, the 11th Circuit addressed that as well:

The City argues that the ordinance’s purpose is to prevent the deterioration of the historic district. Specifically, the City fears that allowing additional tattoo establishments to operate in the historic district would adversely impact the “character and fabric” of the district and thus the tourism that the district attracts. We do not doubt that these are substantial government interests. See One World One Family Now v. City of Miami Beach, 175 F.3d 1282, 1288 (11th Cir.1999) (“There is ․ no question that the city’s further interest in creating an aesthetic ambiance which will attract tourists ․ is a substantial government interest, especially where, as here, a designated historic area is at issue.”); Messer v. City of Douglasville, 975 F.2d 1505, 1510 (11th Cir.1992) (“A government has a more significant interest in the aesthetics of designated historical areas than in other areas.”).

Our inquiry does not end there, however. We do not simply take the City at its word that the ordinance serves the aforementioned interests. Instead, the City must demonstrate that it had a reasonable basis for believing that its regulation would further these legitimate interests. See Zibtluda, LLC v. Gwinnett Cty. ex rel. Bd. of Comm’rs, 411 F.3d 1278, 1286 (11th Cir.2005). This burden is not a rigorous one. Id. But a municipality cannot “get away with shoddy data or reasoning.” City of Los Angeles v.. Alameda Books, Inc., 535 U.S. 425, 438 (2002) (plurality opinion). It “must rely on at least some pre-enactment evidence” that the regulation would serve its asserted interests. Peek–A–Boo Lounge of Bradenton, Inc. v. Manatee Cty., 337 F.3d 1251, 1268 (11th Cir.2003); see also Zibtluda, 411 F.3d at 1286 (“Nevertheless, [the enacting body] must cite to some meaningful indication—in the language of the code or in the record of legislative proceedings—that the legislature’s purpose in enacting the challenged statute was a concern over secondary effects rather than merely opposition to proscribed expression.”) (alteration in original) (quoting Ranch House, Inc. v. Amerson, 238 F.3d 1273, 1283 (11th Cir.2001)). Such evidence can include anything “reasonably believed to be relevant—including a municipality’s own findings, evidence gathered by other localities, or evidence described in a judicial opinion.” Peek–A–Boo Lounge, 337 F.3d at 1268 (internal quotation marks omitted).

In creating the ordinance with the 2000 foot limit, the City of Cocoa Beach never offered any study, testimony, or facts that would allow a time place and manner restriction against tattoo parlors. What was offered in the creation of the ordinance was “we don’t like tattoo parlors.”

That’s it. That was the reason.

That reason clearly fails to meet any type of standard required to limit speech.

The 11th Circuit found for the plaintiff Buerhle and overturned the Key West ordinance on tattoos as being unConstitutional.

While the Cocoa Beach Commission created the tattoo ordinance in 2009, it is clear that the 11th Circuit’s decision means the ordinance itself is unConstitutional. The City cannot act on that ordinance.

Yet last night they did just that. In a 4-1 vote (with Haynes being the dissenting vote) the BOA denied the Cocoa Beach Tattoo Company their special exemption – an exemption the company never should have had to apply for in the first place.

We remember reading the opinion in Buerhle v. City of Key West when it came out. There were a lot of discussions on the decision and its meaning and effects on local ordinances like the one in Cocoa Beach.

Don Haynes knew there was something out there on this issue but for some reason, chose not to investigate further. None of the other Board members looked around for a court case either.

We can argue all day that the members of the Board have a duty to be prepared for cases they hear above and beyond what the City Staff presents to them. There is nothing in the Sunshine Laws that prevents a Board member from talking with the City Staff or doing research. Members cannot communicate out of the public eye, but doing research is not communicating.

Instead, the Haynes and the members of the Board relied upon the City Attorney Segal-George.

Her lack of knowledge and lack of preparedness in this case is not unique. It seems to us that Segal-George and City Attorney Skip Fowler are always being caught unawares of basic issues on subjects. In our opinion, the lack of preparation is a lack of professionalism. In this case, with the Board turning down the Cocoa Beach Tattoo Parlor because of Segal-George being unaware of the Buerhle case, it is the applicant that now has to go back and try to appeal the case adding more cost to him.

We suggest the following:

1) The Board of Adjustment needs to revisit this issue. Their decision is contrary to the law and the Constitution. It doesn’t matter what the City Commission voted on in 2009. In 2015, what they voted upon was declared unConstitutional by the 11th Circuit.
2) The City Commission needs to revisit this regulation. We know it is unConstitutional and so it needs to be off the books. If it is not, businesses will see it and think it in effect.
3) The City needs new attorneys. Ironically, the City Commission is not meeting tonight because they are having private interviews with applicants for the City Attorney position. One of those applicants is being championed by Commissioner Karen Woulas who seems to believe that being friendly and nice is the same thing as being competent and providing sound legal advice. That applicant is none other than Fowler and Segal-George.

The City cannot afford to have votes and actions based on flawed legal advice. We were stunned that Segal-George was unaware of the Buerhle case. Then again, Segal-George was unaware of trademark law. She was unaware of First Amendment protections in a limited public forum. She and Flowler flip flopped like a mackeral out of water on the height and density issue.

The City and its residents (as well as businesses and their owners) deserve better.



10 Responses to “Cocoa Beach: Board Of Adjustment And Tattoos.”

  1. Hometown says:

    In this case it is my opinion that the BOA acted properly in denying a special exception for the tattoo parlor. Our city charter (our constitution) states clearly that:
    “the City of Cocoa Beach and its government shall use this Charter to further the interest of all citizens of Cocoa Beach in the establishment of a low-density residential and family-oriented resort community with paramount consideration given to the health, safety, welfare, comfort, and quality of life for all its citizens. This is an amendment to the whole of the existing Charter of the City of Cocoa Beach”
    So I would argue that allowing a tattoo parlor a special exception and also allowing it to be located closer than 2000′ from an existing tattoo parlor is not in line with a family-oriented resort community with paramount consideration given to the quality of life of all its citizens. In requesting a special exception I believe the burden should be on the requester to show that their proposal aligns with our charter, in this case I don’t think they were able to do that. The city is not saying you can’t have tattoo parlors but only restricting the places where they are allowed.
    I would agree we allow for to many special exceptions in our regs. which tend to make these decisions subjective and should update our codes to more clearly and specifically define what is allowed and not allowed.

    • AAfterwit says:

      Hometown,

      While you may agree with the Board’s decision, the fact of the matter is that the Board was relying on a regulation that the Court has said is invalid and unConstitutional.

      That cannot be allowed.

      The City and its boards are not above the law and the courts.

      A. Afterwit.

  2. Hometown says:

    Won’t be the first time, but I’m confused. I thought the court said it’s okay to regulate “time, place, and manner” of businesses. In this case case they said you can’t have this business at this location/place.
    I agree that the boards and commission need to immediately update any laws we have on the books that are invalid or unconstitutional. Our city finally removed a no hunting law that was invalid and unenforceable because the state controls all hunting requirements within state boundaries. Not sure why it takes so long to make these kinds of updates, should be fairly straight forward.

    • AAfterwit says:

      Hometown,

      A government can regulate time, place and manner of speech. However, those regulations must survive what is called “strict scrutiny.”

      A standard of Judicial Review for a challenged policy in which the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy.

      In other words, the courts have said that while governments may regulate speech on “time, place and manner,” they have to justify that regulation based on some actual harm to others. In the Buerhle case, the City of Key West argued that a tattoo parlor in their downtown area would change the “tone and character” of the area. That is similar to what Cocoa Beach (and to some extent, you) are saying – that the tattoo parlor would somehow change the area and make it “less family friendly.”

      Yet no one has offered any proof of that. As the Court said in Buerhle, a government can’t rely on unsubstantiated claims of harm in regulating the rights of people.

      As City Planner Ryan testified last night, when the City regulation was made, the Commissioners centered around the idea that they didn’t “like” the tattoo parlors. That’s it. That was their objection. They didn’t “like” the look and they didn’t “like” the type of business itself.

      Imagine if you will the City Commission saying “we won’t listen to people we don’t like.” Or “we won’t allow ideas to be heard that we don’t like.”

      People would be up in arms and rightfully so.

      That is no difference to what is happening here. In 2009 the Commission said “we don’t like this” so they made a rule limiting tattoo parlors. In 2015, the 11th Circuit came out and said “those rules are unConstitutional as you are basing them on what you like and dislike.”

      While I agree that the City needs to update codes and regulations, the fact of the matter is that Segal-George should have been aware of the 11th Circuit decision. She was not. That’s not right because now the owner of the tattoo parlor has to go back and spend more money to fix what is arguably professional incompetence on the part of the City.

      We aren’t arguing for or against the tattoo parlor itself. We here at ROH don’t care about that one way or the other.

      We do care when the City Attorney screws up. We do care when the City Boards vote and act contrary to the law. We can argue whether the members should have investigated this, but clearly Segal-George – a City contractor who is paid to offer correct legal advice – should have.

      A. Afterwit.

  3. Hometown says:

    Agree 100% on the shoddy legal advice the board received.

    But In more general terms what would constitute “proof” to a court that a business makes an area “less family friendly”, not just tattoo parlors but any business, what about adult entertainment. Would a vote of the majority of the citizens constitute proof that a city doesn’t consider that type of business to be family friendly?

    • AAfterwit says:

      Hometown,

      Generally speaking, the “proof” could vary. It could be a study that shows that tattoo parlors hurt other businesses in the similar areas. It could be a report from the Police Department that there is an increase crime occurs when a specific business is in the area. You have to have data that backs up the assertion.

      As for the “majority of citizens,” idea, what would you say if a majority of citizens voted against having a minority owned business in the area? Would “might make right?” What if the shop was a newspaper / magazine shop that printed a publication that was critical of Cocoa Beach? Should the majority of citizens be able to shut down that voice just because they disagree with it?

      We would argue “no.”

      Ironically, in 2009 the Commission put this regulation into effect because of a cluster of three tattoo parlors. Since then, 2 of those shops have gone out of business. The marketplace decided whether the shops were successful or not – not a regulation.

      Finally, and while this sounds like we are advocating for the tattoo shop we are not, the owner made a really good point that there are 2 bars in the close proximity to the location of the proposed shop. Is the City saying that bars are “family friendly?” To get a tattoo, one must be 18 or if under the age of 18, be accompanied by an parent or guardian. A person under 21 cannot walk into a bar and get a drink. Which business is more “family friendly?”

      The bottom line to us is that while we don’t have any tattoos and don’t like them, we see a tattoo as a form of art. We shouldn’t have the City saying what form of art or the creation of art is acceptable based on their “likes and dislikes.”

      No matter what, you just cannot say “we don’t like it” and go with that.

  4. Hometown says:

    I see your point but having trouble distinguishing the difference between free speech rights and a city regulating how businesses should look, as we seem to be doing with our form based zoning codes. Or recently with our publix building where we imposed visual appearance and height requirements on that property owner. Seems like the minute you apply one type of building code you start infringing on a property owners right to utilize his property how he wants. The other side of the coin is with no building/zoning regulations I could have 3 old rusty trucks sitting on blocks in the driveway. Daunting prospect to navigate how much control we cede to the government.

    • AAfterwit says:

      Hometown,

      You might be having difficulty because “free speech” and “property rights” are not the same thing.

      In a way, the proposed tattoo parlor illustrates this difference.

      The City can put some restrictions on actual buildings. Most of the time these restrictions deal with safety issues. For example, you want a certified plumber to hook up natural gas lines. You want tie downs on roofs because a roof in a hurricane is a weapon when it smashes into other buildings. Setbacks are often safety related. Common walls have regulations that do not apply to stand alone structures because of the harm one building may do to another.

      But with the tattoo parlor, what the City said was “we object to that art form.” The regulation had nothing to do with safety or any compelling City interest. The Commission just didn’t like the art form. A court ruled not liking the art form and restricting it was unConstitutional. In addition, because the law allows that City to limit and restrict commercial speech, it can say (and does say) what the size of the signs must be or cannot exceed.

      But the City didn’t reject the tattoo parlor because of a sign, an awning, a cub cut out or anything like that. It rejected the parlor because they don’t like the art form the tattoo parlor sells. They don’t like the expression of art the tattoo parlor sells. To illustrate the idiocy of this, imagine if you will the Cocoa Beach Police Department and the Beach Rangers citing people with tattoos. We would all think that was crazy and an infringement on the rights of the people. Yet the City simply said “you can’t get that piece of legal artwork here because we don’t like it or the people that sell it.”

      So it is okay for people to have tattoos but not purchase them in the City? Where does the City think it gets that authority?

      (As a side note, there was a Supreme Court case where a City wanted to ban an art gallery that sold nude and erotic paintings done by the artist on the premises. The City new they couldn’t ban the art form, so they banned the “purchase, sale, distribution and possession” of oil paints in the city. The Supreme Court said that banning the “upstream activity” in order to stop the sale of the protected expression was unConstitutional. The same is true here. It is legal for people to have tattoos. The City cannot stop the “upstream” activity (the parlor) which produces the legal and protected expression of the tattoo.)

      Certainly the City / County / State has the right to regulate the safety of tattoo parlors as far as cleanliness and hygiene, but not the art itself.

      As far as Publix is concerned, Miller jumped the shark when he started complaining about the design of the building which was already within the code. It is not his call to say “I want an awning over this portion of the building.” If he wants that, let him propose it to the City Commission where every building in the City has to have an awning. Watch what happens with that request. His objections to the curb cut were not based on anything other than his opinion. Allen Engineering rightfully pointed out that the curb cut was controlled by the DOT, but Miller wanted something different. In short, Miller wanted his opinion to be substituted for the data driven determination which is made by the DOT.

      (And we still say Miller’s comment that “Publix hates pedestrians” was over the top and wrong. He tried to turn his opinion into what he called “facts.”)

      A.Afterwit.

  5. Teddy Salad says:

    Interesting topic:
    First item, back in the day the director of developmental services and staff did not make recommendations. Tony C. and staff presented facts, and answered questions based on facts and based on the land development code. Recommendations would be made as part of conditions if the variance was approved. Tony and his staff properly presented the information without bias. Many did not like this because you had to understand the information, the LDC, and have proper discussion of the board based on the evidence to satisfy all criteria for a variance.

    When Zac M was hired the staff began recommending outcomes, writing the presentations for the applicants, a change in the board attorney, the BOA had limited discussion based on personal opinion not evidence, and does not properly address the variance criteria.

    If I were to guess, the arguments in the Ocean Dunes case are not going well for the city, hence blame the attorney and put the BOA back on track to provide case discussion that has a legal basis.

    Second Item, a special exception is a review of something that is a legal use. Which means it is difficult legally to deny someone the right of that use. Many special exception denials go to court and are overturned given that the board did not properly review the case and subjectively denied.

    The issue, does the applicant want to challenge the decision and could take it to the commission for review. Probably the timing is right with a change of attorney and the information presented by this forum.

    • AAfterwit says:

      Teddy Salad,

      I agree with you on all accounts.

      The problem with the special exception in this specific case is that the City has no legal grounds for their rule and hence the denial of the special exception. It is not really the fault of the Commission for not keeping up on these things. After all, they passed a rule in 2009 under their best view, but in 2015 the court overruled a similar law. How Segal-George could not know about the decision is a mystery to us here at ROH.

      We agree that the man should be able to appeal, but our concern is “why should he have to?”

      The City and the BOA needs to pull this one back and say “boy, did we screw this on up.”

      If you notice, we believe in the law here at ROH. We want the law to be applied fairly and if we disagree with it, will work to change it. In this case the law was not fairly applied.

      A. Afterwit.

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