The Eleventh Circuit Visits Margaritaville

In Buehrle v. City of Key West, Case No. 14-15354 (decided December 29, 2015), the United States Court of Appeals for the Eleventh Circuit considered whether a limit on the number of tattoo establishments in the City of Key West, Florida infringed the First Amendment rights of a tattoo artist.

From 1966 through 2007, the City of Key West, Florida prohibited the operation of any tattoo parlors. Opinion, pp. 2-3. As a result of litigation, Key West adopted an ordinance permitting two tattoo businesses to operate in its historic district. According to the Opinion, Key West maintained that “tattoo establishments would be inconsistent with the district’s historic character.” Opinion, p. 3. Further, it feared that tourists obtaining “regrettable tattoos” would have a negative impact on tourism in Key West. Opinion, p. 3. Mr. Buehrle, desiring to operate an additional tattoo establishment in Key West, sued the City. The Federal District Court granted summary judgment to the City, and Mr. Buehrle appealed.

The Court of Appeals reversed. As a threshold matter, the Court determined that Mr. Buehrle’s operating as a tattoo artist was protected artistic expression under the First Amendment. Opinion, pp. 4-8. Because the ordinance limiting tattoo establishments did not discriminate regarding the content of tattoos, the issue for the Court was whether the limit of two tattoo establishments was a reasonable time, place and manner restriction. Opinion, pp. 8-9. The Court concluded that the City had failed to meet its burden to demonstrate that its ordinance served a significant governmental interest. Although the City asserted that the existence of more than two tattoo establishments would affect the character of the historical district and adversely impact tourism, the City offered no evidence to support those assertions. Opinion, pp. 9-13. The Court remanded the case to the District Court to allow the City a chance to support its claims, although certain statements in the Court’s Opinion imply a certain skepticism of whether the City could make a showing that would support limiting the number of tattoo businesses to two.

The opinion is available at

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