Coleman v. City of Mesa

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 appropriate for the location or in the best interest of the

neighborhood. The Council held a public meeting in March 2009

at which it received comments from several speakers supporting

and opposing the tattoo parlor. Ultimately, the Council voted

6-1 to deny the permit.

¶4 The Colemans sued the City of Mesa and various city

officials (collectively “Mesa”). Their complaint alleges that

Mesa’s denial of the CUP violated their rights to free speech,

1
This opinion cites the version of Mesa’s zoning ordinance in
effect in 2008-09. Effective September 3, 2011, Mesa replaced
its previous ordinance with a new one. The parties have not
suggested that the new ordinance affects the resolution of any
issues pending before this Court.
3
due process, and equal protection under the federal and Arizona

Constitutions, and it seeks declaratory and mandamus relief and

damages under 42 U.S.C. § 1983. Mesa moved to dismiss the

lawsuit under Rule 12(b)(6) for failing to state a claim upon

which relief can be granted. The superior court granted the

motion, observing that the Council’s decision “was a reasonable

and rational regulation of land use.”

¶5 The court of appeals reversed. Coleman v. City of

Mesa, 228 Ariz. 240, 244 ¶ 1, 265 P.3d 422, 426 (App. 2011).

Citing Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1060

(9th Cir. 2010), the court held that “obtaining a tattoo,

applying a tattoo, and engaging in the business of tattooing”

are “pure speech entitled to the highest level of protection” by

the First Amendment and Article 2, Section 6 of Arizona’s

Constitution, 228 Ariz. at 244 ¶ 1, 265 P.3d at 426. The court

of appeals further concluded that the Colemans had “sufficiently

alleged claims for violations of their free speech, equal

protection, and due process rights,” and the trial court had

erred by dismissing the complaint without allowing the parties

to develop a factual record. Id.

¶6 We granted Mesa’s petition for review because this

case involves issues of first impression and statewide

importance regarding the free speech rights of tattoo artists

and the authority of municipal governments to regulate the
4
location of tattoo parlors.

II.

¶7 Dismissal of a complaint under Rule 12(b)(6) is

reviewed de novo. We clarify the standard of appellate review

here because our past statements have been inconsistent. In

Dressler v. Morrison, 212 Ariz. 279, 281 ¶ 11, 130 P.3d 978, 980

(2006), the Court stated that an order granting a motion to

dismiss is reviewed for abuse of discretion, citing Franzi v.

Superior Court, 139 Ariz. 556, 561, 679 P.2d 1043, 1048 (1984).

Franzi, however, involved a criminal proceeding rather than a

motion to dismiss a civil pleading under Rule 12(b)(6). 139

Ariz. at 558, 579 P.2d at 1045. Dressler, moreover, recognized

that issues of law are reviewed de novo. 212 Ariz. at 281 ¶ 11,

130 P.3d at 980.

¶8 Dismissal is appropriate under Rule 12(b)(6) only if

“as a matter of law [] plaintiffs would not be entitled to

relief under any interpretation of the facts susceptible of

proof.” Fid. Sec. Life Ins. Co. v. State Dep't of Ins., 191

Ariz. 222, 224 ¶ 4, 954 P.2d 580, 582 (1998). Because questions

of law are reviewed de novo, e.g., Wilmot v. Wilmot, 203 Ariz.

565, 569 ¶ 10, 58 P.3d 507, 511 (2002), the grant of a dismissal

under Rule 12(b)(6) is reviewed de novo.

¶9 “Arizona follows a notice pleading standard.” Cullen

v. Auto-Owners Ins. Co., 218 Ariz. 417, 419 ¶ 6, 189 P.3d 344,
5
346 (2008). In determining if a complaint states a claim on

which relief can be granted, courts must assume the truth of all

well-pleaded factual allegations and indulge all reasonable

inferences from those facts, but mere conclusory statements are

insufficient. Id. ¶ 7. “[C]ourts look only to the pleading

itself” when adjudicating a Rule 12(b)(6) motion. Id. If

“matters outside the pleading” are considered, the motion must

be treated as one for summary judgment. Ariz. R. Civ. P.

12(b)(6). A complaint’s exhibits, or public records regarding

matters referenced in a complaint, are not “outside the

pleading,” and courts may consider such documents without

converting a Rule 12(b)(6) motion into a summary judgment

motion. See Strategic Dev. & Constr., Inc. v. 7th & Roosevelt

Partners, LLC, 224 Ariz. 60, 63 ¶ 10, 64 ¶ 13, 226 P.3d 1046,

1049-50 (App. 2010).

III.

A.

¶10 “Tattooing,” as used in this opinion, refers to:

mark[ing]the skin with any indelible design, letter,
scroll, figure, symbol or any other mark that is
placed by the aid of needles or other instruments upon
or under the skin with any substance that will leave
color under the skin and that cannot be removed,
repaired or reconstructed without a surgical
procedure.

A.R.S. § 13-3721(E)(2). Although tattooing has an ancient

history and has been practiced in many different cultures, the
6
modern process generally involves electronically powered tattoo

machines that move a solid needle up and down to puncture the

skin between 50 and 3,000 times per minute, depositing insoluble

ink into the skin with each puncture. Anderson, 621 F.3d at

1055. Because the process involves puncturing the skin

repeatedly, tattooing carries risks of infection and

transmission of disease if done with unsterile equipment or in

unsanitary conditions. Id. at 1056. When properly performed,

tattooing generally is a safe procedure. Id.

¶11 Arizona does not extensively regulate the practice of

tattooing. Persons who provide tattoos, referred to as tattoo

artists, are not certified, licensed, or registered by the

state. State law does, however, bar the use of needles that

have not been properly sterilized, the reuse of needles, and the

improper disposal of used needles. A.R.S. §§ 13-3721(A)(2), 44-

1342. It is also unlawful to tattoo a minor unless the child’s

parent or legal guardian is present. Id. § 13-3721(A)(1).

¶12 The City of Mesa also imposes few regulations on

tattooing. It does not certify, license, or register tattoo

artists; nor does it generally regulate the manner in which

tattoo parlors operate. Mesa provides that tattoo parlors

cannot be within 1,200 feet of a school, another tattoo parlor,

or a body piercing salon. Mesa City Code § 11-6-3(B)(2). (This

location restriction is not at issue here.) Mesa additionally
7
requires tattoo parlors to obtain a CUP. Id.

¶13 Under Mesa’s zoning code, a CUP is a “discretionary

authorization” that the City Council may issue if it finds,

“through a public hearing that the proposed activity is in

conformance with the intent of this Code, the General Plan,

and/or other specified plans or Council policies and will be

compatible with, and not detrimental to, adjacent properties or

the neighborhood in general.” Id. § 11-1-6. A CUP may issue

only after the City Council finds that the use will “be

compatible with surrounding uses.” Id. § 11-6-3(B)(4). The

parties agree that many tattoo studios operate in Mesa with city

approval.

B.

¶14 We first consider whether the Colemans have stated a

claim for relief based on the First Amendment or Article 2,

Section 6 of Arizona’s Constitution. The First Amendment

proscribes laws “abridging the freedom of speech,” and Article

2, Section 6 of our state constitution declares that “[e]very

person may freely speak, write, and publish on all subjects,

being responsible for the abuse of that right.” These

provisions, the Colemans argue, protect the right of tattoo

artists to engage in creative expression by operating tattoo

parlors.

¶15 Mesa argues that we need not determine if tattooing is
8
constitutionally protected expression because, even if it is,

generally applicable zoning laws may apply to otherwise

protected activities without presenting free speech issues. See

Leathers v. Medlock, 499 U.S. 439, 447-49 (1991) (finding no

“First Amendment difficulties” in applying general tax to

media); Arcara v. Cloud Books, Inc., 478 U.S. 697, 705 (1986)

(holding that First Amendment did not preclude closing of adult

bookstore, pursuant to generally applicable nuisance statute,

when solicitation of prostitution was occurring on premises).

Mesa further notes that its zoning code requires CUPs for a wide

range of property uses including schools, rescue missions, pool

halls, and apartments. See Mesa City Code § 11-6-3.

¶16 We are not persuaded by Mesa’s characterization of the

denial of a CUP to the Colemans as merely the application of a

general law that incidentally affects speech-related activities.

Mesa’s zoning ordinance effectively prohibits certain uses,

including tattoo parlors, unless the City Council issues a

discretionary CUP. The City is not attempting to impose a

generally applicable law, such as the tax in Leathers or the

nuisance prohibition in Arcara, to the on-going operations of

businesses engaged in protected speech. Instead, the City

claims that the Council may exercise its unfettered discretion

(which it also argues is effectively non-reviewable) to deny

permission for businesses engaged in protected speech to operate
9
at all because it has similar discretion to deny permission for

other, non-protected uses.

¶17 The fact that a permit scheme may also apply to non-

protected activities does not insulate it from constitutional

challenge when applied to protected speech. See, e.g., Thomas

v. Chicago Park Dist., 534 U.S. 316 (2002). Thomas is

illustrative, as it involved a challenge to a city ordinance

requiring permits for events involving fifty or more people in

public parks, whether soccer games, picnics, or political

rallies. Recognizing that the ordinance “is not even directed

to communicative activity as such, but rather to all activity

conducted in a public park,” id. at 322, the Supreme Court

nonetheless considered whether it satisfied the constitutional

requirements for reasonable time, place, and manner regulations,

including the requirement that there be adequate standards to

guide the discretion of the official issuing the permit. See

id. at 323; see also Forsyth Cnty. v. Nationalist Movement, 505

U.S. 123, 130–31 (1992) (concluding that permit and fee

requirements applicable to “any activity on public property -

from parades, to street corner speeches, to bike races” violated

the First Amendment by vesting unbridled discretion in

permitting officials).

¶18 To determine if the Colemans have stated a claim for a

violation of their free speech rights, we must determine whether
10
tattooing is constitutionally protected expression. Courts in

other jurisdictions are divided on this issue, which in turn

reflects differing views on whether tattooing should be

characterized as purely expressive activity (“pure speech”) or

instead as conduct with an expressive component. We use the

terms “purely expressive activity” and “pure speech” to refer

not only to written or spoken words, but also to other media

(such as painting, music, and film) that predominantly serve to

express thoughts, emotions, or ideas. See Hurley v. Irish-

American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557,

568-70 (1995) (holding that “expressive parades” are protected

speech for purposes of First Amendment); Coleman, 228 Ariz. at

248-49 ¶ 14, 265 P.3d at 430-31 (similarly defining “pure

speech”).

¶19 “If tattooing is purely expressive activity, then it

is entitled to full First Amendment protection” and can be

regulated only through reasonable time, place, and manner

restrictions. Anderson, 621 F.3d at 1059 (citing Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989)). If, however,

tattooing is instead characterized as conduct with an expressive

component, it will be protected under the First Amendment only

if it is “sufficiently imbued with elements of communication,”

that is, there is “[a]n intent to convey a particularized

message” and “the likelihood [is] great that the message [will]
11
be understood” by viewers. Spence v. Washington, 418 U.S. 405,

409-11 (1974). Restrictions on protected expressive conduct are

evaluated under the test announced in United States v. O’Brien,

391 U.S. 367, 376-77 (1968) (analyzing prosecution for symbolic

burning of draft card to protest the draft).2 Finally, if the

conduct is not “sufficiently imbued with elements of

communication,” then the regulation need only be rationally

related to a legitimate governmental interest. Anderson, 621

F.3d at 1059 (internal quotation marks omitted) (citing Schad v.

Borough of Mount Ephraim, 452 U.S. 61, 68 (1981)).

¶20 One end of the spectrum is illustrated by the Ninth

Circuit’s opinion in Anderson, which held that “tattooing is

purely expressive activity fully protected by the First

Amendment.” 621 F.3d at 1055. The court of appeals in this

case agreed with Anderson and further ruled that “Mesa’s

ordinance and permit process are subject to intermediate

scrutiny” to determine if they constitute a reasonable time,

place, and manner regulation. Coleman, 228 Ariz. at 250 ¶ 18,

265 P.3d at 432.

2
Under the O’Brien test, a regulation of protected expressive
conduct is constitutional if (1) it is within the government’s
constitutional power; (2) it furthers an important or
substantial governmental interest; (3) the governmental interest
is unrelated to the suppression of free expression; and (4) the
incidental restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest.
391 U.S. at 377.
12
¶21 Several other courts, however, have concluded that

tattooing is not protected by the First Amendment because it is

not itself expressive conduct. See, e.g, Hold Fast Tattoo, LLC

v. City of North Chicago, 580 F. Supp. 2d 656, 660 (N.D. Ill.

2008) (finding that “act of tattooing is one step removed from

actual expressive conduct”); Yurkew v. Sinclair, 495 F. Supp.

1248, 1253-55 (D. Minn. 1980) (finding process of tattooing is

not protected speech); State ex rel Medical Licensing Bd. v.

Brady, 492 N.E.2d 34, 39 (Ind. Ct. App. 1986) (same); State v.

White, 560 S.E.2d 420, 422 (S.C. 2002) (same).

¶22 A third approach, refusing to treat tattooing

categorically as either protected or unprotected expression, has

been suggested in scholarly commentary. See Ryan J. Walsh,

Comment, Painting on a Canvass of Skin: Tattooing and the First

Amendment, 78 U. Chi. L. Rev. 1063 (2011). Relying on

Mastrovincenzo v. City of New York, 435 F.3d 78 (2d Cir. 2006),

this approach would extend First Amendment protections to a

particular tattoo artist’s work if it has a predominantly

expressive purpose. Courts would therefore make a case-by-case

inquiry to determine if tattooing is protected by the First

Amendment. Walsh, supra, at 1097-1100.

¶23 We conclude that the approach adopted in Anderson is

most consistent with First Amendment case law and the free

speech protections under Arizona’s Constitution. Anderson
13
starts with the proposition that a tattoo itself is pure speech.

621 F.3d at 1060. This seems incontrovertible. “[T]he

Constitution looks beyond written or spoken words as mediums of

expression,” Hurley, 515 U.S. at 569, and the Supreme Court has

recognized that the First Amendment protects a range of

expressive activity including parades, music, paintings, and

topless dancing. See id.; Anderson, 621 F.3d at 1060.

¶24 Tattoos, as the Ninth Circuit noted in Anderson, are

generally composed of words, realistic or abstract symbols, or

some combination of these items. 621 F.3d at 1060. They can

express a broad range of messages, and they may be purely

decorative or serve religious, political, or social purposes:

The 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. This distinction has no significance in terms
of the constitutional protection afforded the tattoo;
a form of speech does not lose First Amendment
protection based on the kind of surface it is applied
to.

Id; see also White, 560 S.E.2d at 425 (Waller, J.,

dissenting) (observing that “whether or not something is

‘speech’ protected by the First Amendment cannot focus upon

the medium chosen for its expression”).

¶25 A tattoo involves expressive elements beyond those

present in “a pen-and-ink” drawing, inasmuch as a tattoo

reflects not only the work of the tattoo artist but also the

14
self-expression of the person displaying the tattoo’s relatively

permanent image. Of course, there is no First Amendment right

to tattoo another person against his or her will, see Anderson,

621 F.3d at 1068 (Noonan, J., concurring) (noting that “[a]

tattoo punitively affixed is unprotected”), and indeed the First

Amendment (and other constitutional provisions) would prevent

the government from requiring a person to be tattooed. Cf.

Wooley v. Maynard, 430 U.S. 705 (1977) (holding that First

Amendment barred state from requiring citizens to display “Live

Free or Die” motto on vehicle license plates).

¶26 We also agree with Anderson’s conclusion that the

process of tattooing is expressive activity. See 621 F.3d at

1061-62.3 Supreme Court case law has not distinguished “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. For example, the art of writing is no

less protected than the book it produces; nor is painting less

an act of free speech than the painting that results. Id. at

1061-62.

3
Mesa attempts to distinguish Anderson by noting that it
involved a city’s total ban on tattooing, which the Ninth
Circuit concluded was not a reasonable time, place, and manner
regulation. The fact that Anderson considered a total ban,
however, does not detract from the merits of its analysis of
whether tattooing is protected speech.
15
¶27 This observation explains why we are not persuaded by

decisions such as Hold Fast Tattoo that rely on Spence to

conclude that tattooing is not protected by the First Amendment.

See, e.g., Hold Fast Tattoo, 580 F. Supp. 2d at 659-60; Yurkew,

495 F. Supp. at 1253. The Spence test, which focuses on whether

conduct is “sufficiently imbued” with expressive content to

warrant protection, applies to conduct that is not itself

generally expressive. Anderson, 621 F.3d at 1061; see Hurley,

515 U.S. at 569 (declining to apply Spence test to expressive

parades and noting it does not apply to paintings and music).

¶28 We also decline to apply Mastrovincenzo’s case-by-case

approach to analyze the regulation of tattooing. In

Mastrovincenzo, the Second Circuit considered whether the First

Amendment protected the sale of clothing painted with graffiti,

and ultimately concluded that the sale was protected because

“the disseminators of that clothing [were] genuinely and

primarily engaged in artistic self-expression” rather than “a

chiefly commercial exercise.” 435 F.3d at 91. Mastrovincenzo,

however, adopted this approach to determine if certain products,

such as t-shirts and caps, that are not generically expressive

should nonetheless be protected by the First Amendment because

the particular items “serve predominantly expressive purposes.”

Id. at 92.

¶29 Mastrovincenzo acknowledged that its case-by-case
16
approach does not apply to “paintings, photographs, prints and

sculptures [that] always communicate some idea or concept to

those who view it, and as such are entitled to full First

Amendment protection.” Id. (internal quotation omitted).

Tattoos, in our view, are more like paintings than t-shirts in

terms of their general expressive content. Moreover, a case-by-

case inquiry would be difficult to administer and insufficiently

protective of free speech rights: whether a particular artist

could engage in tattooing might turn in the first instance on a

licensing official’s assessment whether the proposed work is

“predominantly expressive” and ultimately on whether courts

agreed with that assessment.4

¶30 Our conclusion that the process of tattooing is

protected speech is also not affected by the fact that tattoo

artists may use standard designs or patterns. In Hurley, the

Court rejected arguments that a parade was not the protected

expression of its organizers because it incorporated speech

originally created by others. The Court noted that “First

Amendment protection [does not] require a speaker to generate,

4
Mastrovincenzo outlined a three-part inquiry to determine if a
product is predominantly expressive: (1) the court should
“consider whether that item also has a common non-expressive
purpose or utility,” 438 F.3d at 95; (2) if the court finds that
an item has both expressive and non-expressive purposes, it must
determine which purpose dominates; and (3) if an item is found
to be predominantly expressive, the court must “take into
account other factors that shed light on how and why an object
is being sold or disseminated.” Id. at 96.
17
as an original matter, each item featured in the communication.

Cable operators, for example, are engaged in protected speech

activities even when they only select programming originally

produced by others.” 515 U.S. at 570 (citing Turner Broad.

Sys., Inc. v. FCC, 512 U.S. 622, 636 (1994)). The fact that a

tattoo artist may use a standard design or message, such as

iconic images of the Virgen de Guadalupe or the words “Don’t

tread on me” beside a coiled rattlesnake, does not make the

resulting tattoo any less expressive.

¶31 Determining that tattooing is protected speech also

implies that the business of tattooing is constitutionally

protected. See Anderson, 621 F.3d at 1062-63. “[T]he degree of

First Amendment protection is not diminished merely because the

[protected expression] is sold rather than given away.” City of

Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 756 n.5

(1988); see also Riley v. Nat’l Fed’n of the Blind of N.C.,

Inc., 487 U.S. 781, 801 (1988) (noting that “a speaker’s rights

are not lost merely because compensation is received; a speaker

is no less a speaker because he or she is paid to speak”). This

does not mean, of course, that the business of tattooing is

shielded from governmental regulation. As discussed above,

generally applicable laws, such as taxes, health regulations, or

nuisance ordinances, may apply to tattooing businesses.

Moreover, tattooing may be subject to reasonable time, place,
18
and manner regulations. See Ward, 491 U.S. at 791; Anderson,

621 F.3d at 1059, 1064.

¶32 Having concluded that tattooing is protected speech,

we next consider whether the Colemans’ complaint sufficiently

states a claim for relief based on alleged violations of the

First Amendment or Article 2, Section 6 of Arizona’s

Constitution. The Mesa ordinance, which requires a CUP for all

tattoo parlors, is facially content-neutral and the Colemans do

not contend that they were denied a permit based on the content

of their contemplated speech. The Colemans instead allege that

the CUP process is not a reasonable time, place, and manner

regulation of their protected expression.

¶33 For a permit system to qualify as a reasonable time,

place, and manner regulation, the scheme “must not be based on

the content of the message, must be narrowly tailored to serve a

significant governmental interest, and must leave open ample

alternatives for communication.” Thomas, 534 U.S. at 323 n.3

(internal quotation omitted); see also Forsyth Cnty., 505 U.S.

at 130. It also must “contain adequate standards to guide the

official's decision and render it subject to effective judicial

review.” Thomas, 534 U.S. at 323; Forsyth Cnty., 505 U.S. at

130 (noting that “[a] government regulation that allows

arbitrary application is inherently inconsistent with a valid

time, place, and manner regulation”) (internal quotation
19
omitted).

¶34 The Colemans have alleged sufficient facts to state a

claim on which relief can be granted for violations of the

freedom of speech. They allege that the City’s “planning and

zoning code approval criteria, facially and as applied by the

City Council,” do not sufficiently guide or limit the City

Council’s discretion in rendering decisions. (In fact, before

this Court, counsel for Mesa argued that the City Council’s

determinations on CUPs are discretionary and effectively non-

reviewable.)

¶35 The Colemans further allege that they have agreed to

comply with all the conditions that city zoning staff identified

in recommending they be issued a permit; that the Council has

issued permits to other tattoo parlors; and that they will

comply with all applicable laws and reasonable regulations on

the time, place, and manner of conducting their business. They

also allege that they have been discriminatorily denied a permit

to operate their business, suppressing their free expression and

that of their prospective customers.

¶36 If we accept these factual allegations as true, as we

must for purposes of assessing a motion to dismiss on the

pleadings, then the Colemans have stated a claim under the First

Amendment because the “pleading itself” does not indicate that

Mesa’s denial of the CUP was a reasonable time, place, and
20
manner regulation of their speech.5 Cullen, 218 Ariz. at 419

¶ 7, 189 P.3d at 346. Although dismissal of the complaint under

Rule 12(b)(6) was inappropriate, we express no opinion whether

Mesa’s ordinance, the CUP process, or the refusal to allow the

Colemans to operate their tattoo business at a particular

location were in fact reasonable restrictions or violated their

free speech rights.

C.

¶37 The Colemans also allege in their complaint that

Mesa’s denial of a CUP to operate a tattoo parlor violated their

rights to equal protection and due process under the federal and

Arizona Constitutions.

¶38 The Fourteenth Amendment provides that “[n]o State

shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; . . . nor deny

to any person within its jurisdiction the equal protection of

the laws.” Article 2, Section 13 of Arizona’s Constitution

provides “[n]o law shall be enacted granting to any citizen

5
Our conclusion that the Colemans have stated a claim under the
First Amendment sufficient to withstand a Rule 12(b)(6) motion
necessarily implies that they have also stated claims under
Article 2, Section 6 of Arizona’s Constitution, which is in some
respects more protective of free speech rights than the First
Amendment. See, e.g., State v. Stummer, 219 Ariz. 137, 194 P.3d
1043 (2008) (identifying standard for evaluating content-based
secondary effects regulations). Given the preliminary stage of
this litigation, we have no occasion to address whether Article
2, Section 6 might afford greater protection to the activity of
tattooing than applies under the First Amendment.
21
. . . privileges or immunities which, upon the same terms,

shall not equally belong to all citizens or corporations.” Both

the Fourteenth Amendment and Article 2, Section 4 of Arizona’s

Constitution provide that no person may be deprived of life,

liberty, or property “without due process of law.”

¶39 Although the Colemans also assert in their complaint

that they have been denied “privileges and immunities of

citizenship” in violation of the Fourteenth Amendment, they have

not alleged the deprivation of any rights protected under the

Supreme Court’s “narrow reading” of the Privileges or Immunities

Clause. See McDonald v. City of Chicago, 130 S. Ct. 3020, 3029-

30 (2010). Moreover, this Court has construed Article 2,

Section 13 of Arizona’s Constitution as applying the same

standard as applies to equal protection claims under the federal

constitution, see Big D Constr. Corp. v. Court of Appeals, 163

Ariz. 560, 565-66, 789 P.2d 1061, 1066-67 (1990); Ariz. Downs v.

Ariz. Horsemen’s Found., 130 Ariz. 550, 555, 637 P.2d 1053, 1058

(1981), and the Colemans have not argued that another standard

should apply. Thus, whether the Colemans have stated claims for

relief in addition to their free speech claims reduces to

whether they have stated sufficient claims under the federal

Equal Protection Clause or the federal or state Due Process

Clauses.

¶40 The court of appeals held that because tattooing is
22
protected speech, and speech is a fundamental right, courts

should apply “strict scrutiny” in assessing whether the City’s

denial of a CUP to the Colemans violated either equal protection

or due process. Coleman, 228 Ariz. at 253-54 ¶¶ 26-27, 29, 265

P.3d at 435-36. With respect to the First Amendment claims

themselves, however, the court of appeals correctly recognized

that intermediate scrutiny would apply in evaluating whether

Mesa had imposed a permissible time, place, or manner

restriction on the Colemans’ operation of a tattoo parlor. Id.

at 250 ¶ 18, 265 P.3d at 432.

¶41 The court of appeals erred by stating that more

stringent scrutiny applies with respect to due process and equal

protection claims involving the First Amendment than applies to

the First Amendment claim itself. At oral argument, counsel for

the Colemans acknowledged that, with respect to the free speech

claims, the same level of scrutiny would apply whether they are

grounded in the First Amendment or the Equal Protection and Due

Process Clauses.

¶42 As the Third Circuit has observed:

If every time, place, and manner regulation were
subject to strict scrutiny under the Equal Protection
Clause simply because it burdened constitutionally
protected speech, Ward's intermediate-scrutiny test
would be rendered obsolete. Instead, it is only
content-based time, place, and manner regulations that
call for strict scrutiny-whether viewed through the
lens of First Amendment or Equal Protection doctrine.

23
Brown v. City of Pittsburgh, 586 F.3d 263, 283 n.22 (3d Cir.

2009); see also Melrose, Inc. v. City of Pittsburgh, 613 F.3d

380, 394 (3d Cir. 2010) (noting that “where the state shows a

satisfactory rationale for a content-neutral time, place, and

manner regulation, that regulation necessarily survives scrutiny

under the Equal Protection Clause”) (internal quotation

omitted); Jones Intercable of San Diego, Inc. v. City of Chula

Vista, 80 F.3d 320, 327 (9th Cir. 1996) (recognizing that

content-neutral restrictions are reviewed under intermediate

scrutiny for either First Amendment or equal protection

purposes). These remarks apply equally to claims that a

content-neutral regulation violates due process because of its

impact on protected speech. See Albright v. Oliver, 510 U.S.

266, 273 (1994) (noting that “[w]here a particular Amendment

provides an explicit textual source of constitutional

protection” against a particular sort of government behavior,

“that Amendment, not the more generalized notion of substantive

due process, must be the guide for analyzing these claims”)

(internal quotations omitted).

¶43 That the Colemans’ free speech claims do not trigger

“strict scrutiny” does not mean, however, that the Colemans have

failed to state claims for violations of due process or equal

protection. For reasons explained in the preceding section, the

Colemans have alleged that the ordinance and permit denial do
24
not satisfy intermediate scrutiny. Moreover, independent of any

free speech issues, the Equal Protection and Due Process Clauses

protect against government action that is arbitary, irrational,

or not reasonably related to furthering a legitimate state

purpose. See, e.g., City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 446-50 (1985) (rejecting special use permit

requirement as lacking a rational basis and thus violating equal

protection); N. Pacifica LLC v. City of Pacifica, 526 F.3d 478,

484 (9th Cir. 2008) (explaining that substantive due process

challenge to land use regulation requires allegation that it

does not advance any legitimate government purpose); Big D

Constr. Corp., 163 Ariz. at 565-66, 789 P.2d at 1066-67

(applying rational basis standard to equal protection claim

under Arizona Constitution); Valley Nat. Bank of Phx. v. Glover,

62 Ariz. 538, 553, 159 P.2d 292, 298-99 (1945) (discussing due

process under Arizona Constitution).

¶44 The Colemans allege that, although other tattoo

parlors have been allowed to operate in Mesa, the Council denied

the Colemans a permit based on “perceptions, stereotypes and

prejudice” rather than facts demonstrating that their business

would harm the community. Thus, the Colemans have alleged that

Mesa acted arbitrarily in denying them a permit and that the

action did not further any legitimate government purpose.

¶45 Mesa responds that the Colemans cannot complain about
25
the denial of the permit because the City merely rejected their

request to operate a tattoo parlor at a particular location.

Mesa further contends that its Council acted reasonably in

concluding that a tattoo parlor was not appropriate for this

location and did not serve the best interests of the

neighborhood. We acknowledge that municipalities have

legitimate interests in controlling the location of businesses

through zoning ordinances. See Young v. Am. Mini Theatres,

Inc., 427 U.S. 50, 62 (1976) (permitting the city to “control

the location of . . . commercial establishments, either by

confining them to certain specified commercial zones or by

requiring that they be dispersed throughout the city”).

¶46 In adjudicating a Rule 12(b)(6) motion to dismiss,

however, a court does not resolve factual disputes between the

parties on an undeveloped record. Instead, the issue is whether

the pleading states a sufficient claim to warrant allowing the

Colemans to attempt to prove their case. The complaint

sufficiently sets forth claims for relief for alleged violations

of the Colemans’ rights to free speech, equal protection, and

due process. Whether they can prove those claims will depend on

the course of proceedings in the trial court.

IV.

¶47 The superior court erred in dismissing the Colemans’

complaint pursuant to Rule 12(b)(6) for failing to state a claim
26
upon which relief can be granted. 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. We deny the Colemans’ request for attorney fees

without prejudice to their renewing this request with the

superior court should they ultimately prevail.

_____________________________________
Scott Bales, Vice Chief Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
A. John Pelander, Justice

_____________________________________
Robert M. Brutinel, Justice

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