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 …
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