Foundation for Economic Education: How a California tattoo artist beat public health officials who tried to deny her a permit

California tattoo artist Delia Fields is finally free to do what she loves. That’s the good news. However, her story highlights the uneven—some would say arbitrary—constitutional protections enjoyed by some entrepreneurs but not others.

The last few years haven’t been easy for Delia. She lost everything she owned in the Camp Fire of 2018 except for her dog, her truck, and the clothes on her back. Delia then bounced between a Walmart parking lot, friends’ couches, and a motel before moving to Redding, California to start over.

After arriving in Redding, Delia found work in a restaurant and started rebuilding her life. Surviving a life-changing disaster was bad enough on its own, but even working full-time, she was barely making ends meet as a server.

As she contemplated her future, Delia thought back to college, where she studied cultural anthropology and was captivated to learn that over millennia, cultures throughout the world have practiced body art to record events and express themselves. It was then that she realized she wanted to become a tattoo artist.

Even though she was still working full-time at the restaurant, she found a local body artist willing to train her as a piercing apprentice, teaching her the ins and outs of body art. After apprenticing for over a year and a half, Delia had mastered proper techniques and safe practices, and had learned how to run a business. With her new skills in hand, Delia began thinking about her next move.

Again, however, fate had other plans. With the arrival of COVID-19, the shop she trained in was forced to close. As a result, Delia set her sights on opening her own studio once the pandemic improved.

In April 2021, Velvet Orange was born. Combining her talents with her friend and former boss Shar, Delia found an ideal location in downtown Redding and applied for the required health and safety permits for a new body art studio.

Even though the county’s health inspection of the studio found it to be flawless, the county denied Delia a permit to tattoo. Because the city had recently enacted a prohibition on tattooing in the downtown area, the inspector informed Delia that the county could only issue a permit for body piercing.

The news was upsetting and confusing—an existing tattoo studio already operated in the center of downtown Redding. Bewilderingly, Delia’s studio was located a mere block within the downtown no-tattoo zone. Worse still, she could see another tattoo studio from the corner of her street just beyond the prohibited zone.

Delia refused to let this news stop her. With the help of Pacific Legal Foundation, in September of 2021 Delia sent the City of Redding and Shasta County letters pointing out the First Amendment problem with arbitrarily banning tattoo businesses in downtown Redding.

Indeed, the United States Court of Appeals for the Ninth Circuit held in 2010 that tattooing, as well as the business of tattooing, is a purely expressive activity fully protected by the First Amendment to the US Constitution, and that a total ban on tattooing is not a reasonable restriction on speech.

The city and county quickly relented. Upon being reminded of the First Amendment’s protections for tattooing and the business of tattooing, Redding notified Delia that it would update its downtown zoning plan to remove the restriction on tattoo businesses, with the amendments finally being enacted in February 2022. With the city’s assurances, Shasta County proceeded to issue an updated permit authorizing Velvet Orange to provide tattoo services as well as body piercing. Delia’s perseverance and determination paid off.

But she would enjoy only a shadow of those constitutional protections if she wanted to open most any other type of business.

The reason Delia was able to fight back so successfully is simply that courts recognize greater constitutional protections for speech than for the right to earn a living. If a business is expressive—like tattooing—then it enjoys robust constitutional protection with a heavy burden on the government to justify restrictions on the business’s operations. But if the business is non-expressive—like a massage therapy studio or a food truck—then it has almost no protections against arbitrary restrictions. For example, Redding’s provisions that now allow tattoo businesses downtown still prohibit massage businesses.

There is no principled justification for treating some constitutional rights as second-class. An entrepreneur’s right to earn a living is implicated just as much whether she’s in the business of tattooing, preparing food, or providing massage therapy. Indeed, in Dent v. State of West Virginia, the Supreme Court stated that it is “undoubtedly the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose.”

Unfortunately, nearly a century ago the Supreme Court also held that regulations on opening and running small businesses are generally subject to “rational basis review,” which most courts have said requires only a hypothetical connection between a regulation and a legitimate government concern like the health, safety, and welfare of the public.

Even if the hypothetical justifications are proven wrong, it doesn’t matter; they just had to be plausible when the government passed the law. In practice, courts typically rubberstamp government restrictions on non-expressive entrepreneurship.

As a result, most entrepreneurs have little protection against the whims and preferences of state and local lawmakers—and in many instances even need their competitors’ permission to open their doors.

All entrepreneurs deserve the full promise of the Constitutional protections that let Delia have a chance at success. Entrepreneurs like Delia aren’t asking for special favors; to paraphrase abolitionist and suffragette Sarah Grimké, all they ask is that their government take their feet from off their necks and permit them to stand upright.

This article was originally published by Foundation for Economic Education on April 22, 2022.