Prestons' Court Battle Over Tattoo Studio
Tattoos cover most of Tom Preston's forearm and curl around his neck. He is used to people judging him by the colored etchings on his skin.
But as a taxpayer and business owner, he thought City Hall would be different.
"You expect (elected officials) to be completely unbiased," he said after the latest episode in his two-year battle to open a tattoo and body-piercing studio in Tempe.
Preston and his wife, Elizabeth, left Maricopa County Superior Court this week wondering how a few neighbors could sway Tempe City Council from allowing them to open a legal business.
The legal battle began in fall 2007 when the Prestons sued Tempe for the right to open their studio after the city revoked their business permit. While Tempe says it was protecting neighbors' rights, Preston thinks the decision was based on tattoo stereotypes.
"Policemen, teachers, firefighters, soldiers . . . have tattoos nowadays," Preston said. "This all just seems like . . . prejudice."
The case has drawn the attention of the conservative, pro-business Goldwater Institute, which is defending the Prestons, and cities and businesses are watching to see who will win a struggle between free enterprise and a city's right to manage development.
In 2007, the Prestons decided to expand their business. For about 13 years they had success with Virtual Reality tattoo studio in Mesa.
A strip mall near McKellips and Scottsdale roads in north Tempe seemed like the perfect spot for Body Accents Tattoo and Piercing Studio. In July 2007, a hearing officer granted the Prestons a use permit.
But members of the North Tempe Neighborhood Association objected and appealed to Tempe's Development Review Commission and then to the City Council.
Neighbors said the tattoo parlor would lower property values and stymie revitalization attempts by adding to a cluster of adult-oriented businesses in the strip mall. The center already had a bail-bond business, a liquor store and a lingerie shop.
Neighbors cited a New York study detailing the negative impact of adult-oriented businesses.
"It's going to look like another skid row if we let this kind of business come in. I'm ashamed," said Nancy Hickman, who owns a plumbing business next to the proposed studio. "It's going to look like Van Buren (Street) pretty soon."
The Prestons argued they had a reputable business and said their Mesa studio had no police complaints in 13 years.
But Mayor Hugh Hallman said the "perception" of the tattoo business could hurt the neighborhood. The council unanimously agreed.
Tempe officials have stressed that they are not discriminating against the Prestons and have pointed out that there are at least 12 tattoo studios in the city.
The Legal Battle
After Tempe revoked the Prestons' permit, the city enacted an anti-clustering ordinance, limiting the distance between adult-oriented businesses. Mesa, Peoria and Gilbert have similar ordinances.
In May, Judge Robert Oberbillig ruled that Tempe improperly revoked the permit, ordering the council to review whether there is "sufficient evidence of good cause and public necessity" to revoke the permit.
Tempe filed a motion asking the judge to reconsider, and he complied.
Arguing Monday for the Prestons, Goldwater Institute attorney Clint Bolick said the couple had a legitimate business, invested nearly $30,000 to open it and had followed Tempe's rules.
But Catherine Bowman, a Tempe attorney, said neighbors have the right to appeal a permit to the council. Permits are conditional, and the code warns that pending appeals, any investments business owners make are "at their own risk," she said.
Oberbillig said from the bench that he was persuaded by Tempe's argument but he questioned the council's fairness. "There has to be some credible evidence for the city to base its decision. It's (got to be) more than somebody's opinion whether somebody who has a tattoo is offensive to them," he said.
He said the case is a "close call" and is expected to rule this week.
Outside the courtroom, Bolick pointed out that the retail space where the studio would have opened has remained vacant for two years.
"They'd rather have an empty store than a legitimate business," he said.
Darlene Justus of the North Tempe Neighborhood Association said members have not changed their position. "We've really gotten a bad rap on this," she said, "We have the legal right to fight a business we think could hurt our neighborhood. It's not about people with tattoos. My grandson has a tattoo. It's about not wanting another adult-oriented business in the neighborhood."
Both sides said they would consider appeals if they lose.