Preston v. Hallman (Defending small business owners)

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Case background:

"I keep thinking about our first lawyer who told us to not to fight the city's decision to refuse our permit because it would cost too much and we had no way of winning. We're just so thankful to Goldwater . . . without them we would've given up." --Tom Preston

Tom Preston owns a reputable tattoo studio in Mesa, Arizona and like many entrepreneurs he sought to expand his business with his wife Elizabeth, by opening a new shop in Tempe. After acquiring the permit, the Preston's signed a five year lease and invested $30,000 in the property. Then a local neighborhood group sought to deny the Prestons their economic liberty by appealing to the City Council. Based on negative stereotypes and personal opinions rather than hard evidence and facts, Mayor Hugh Hallman and the Council voted unanimously to override their own zoning officials and denied the permit. The Prestons were left with a long-term lease and stood to lose a significant capital investment. 

As a liberty watchdog, the Goldwater Institute stepped in to help the Prestons by suing Tempe. A superior court judge ruled that the City must reinstate the Prestons' business permit. However, the Prestons were not awarded any damages. Even though they won the case, after originally spending $30,000 to open the studio, the Prestons were left with no money to move forward with reopening it. The Goldwater Institute filed an appeal asking that the Prestons be awarded damages and the City cross-appealed. After both appeals were filed, the City and the Prestons agreed to dismiss their appeals. The Prestons plan to open their new tattoo studio in August 2010.

This case represents a classic infringement upon our business freedom by local governments when they can deny an individual the right to their livelihood based upon their personal feelings rather than the rule of law. Through this lawsuit, the Goldwater Institute was successful in protecting economic freedom, private property rights, and enforcing the rule of law.

View Press Releases Below:

Tempe Tattoo Studio Lawsuit Settled

Tempe Loses Second Court Battle over Tattoo Studio

City of Tempe Asks for "Do Over" in Tattoo Studio Case

Tattoo Studio Wins Opening Round in Tempe Legal Battle

Goldwater Institute Goes to Bat for Tattoo Studio Entrepreneurs

The Stakes:

• Economic freedom for Arizona's entrepreneurs.
• The right to be free from arbitrary decisions by local government officials.

• Holding local government accountable to due process and equal protection.

Case Timeline:

• June 4, 2007: Elizabeth Preston applies for use permit from the City of Tempe to open Body Accents Tattoo & Piercing Studio.
• June 24, 2007: Hearing officer awards Mrs. Preston a use permit with 12 conditions for health/saftey, and advertising which Mrs. Preston accepted.
• August 14, 2007: The Tempe Development Review Commission upholds permit on 4-3 vote after the North Tempe Neighborhood Associate appealed the original permit.
• October 6, 2007:  Mayor Hallman and Tempe city council revoked a permit after the permit was already approved by the zoning board.
• November 5, 2007: Case filed with Maricopa County Superior Court.
• May 11, 2009: Judge Robert Oberbillig heard arguments on cross-motions for summary judgment on Monday, May 11 at 9:45 a.m. at 125 West Washington Street, Phoenix, Courtroom 202.
• July 6, 2009: Judge Oberbillig heard arguments on Tempe's Motion for Reconsideration at 11 a.m. at 125 W. Washington Street, Courtroom 202.

• July 9, 2009: Judge Oberbillig rules that Tempe must reinstate the Preston's permit, and that the Preston's can sue the city for damages.

• July 17, 2010: The City of Tempe drops its appeal of the case and the Prestons drop their appeal for damages.

Case Documents:

• Appellate Brief
• Motion to Dismiss Cross - Appeal
• Judge Oberbillig's Ruling
• Resonse to City's Motion for Reconsideration
• Motion for Summary Judgment Response-Reply
• Motion for Summary Judgment
• Expert Report of Vince Hemingson
• Expert Report of Robert E. Kammrath

• Preston v. Hallman complaint

Media Coverage:

• Coyotes and Tattoos
  KTVK Channel 3, July 21, 2009
• Clint discusses Tempe's motion for reconsideration
  KFNX 1100 AM, June 26, 2009
• "Tempe Doesn't Want Tattoos"
  ABC 15, June 22, 2009
• "Judge ponders tattoo parlor in Tempe"
  KTAR 92.3 FM, May 11, 2009
• "Tempe Tattoo Case"
  Fox 10 News, May 11, 2009
• Carrie Ann Sitren discusses tatoo case after judge hears oral arguments 
  KFNX 1100 AM, May 11, 2009
• "Tempe tattoos a stereotype on couple"
  E.J. Montini, Arizona Republic, November 8, 2007.
• "Tattoo parlor sues Tempe after denied opening"
  Garin Groff, East Valley Tribune, November 7, 2007.

• "Tempe blocks tattoo studio"
  Katie Nelson, Arizona Republic, October 6, 2007.

How can I help?

• The stakes are high, help build positive press. Write letters to the editor for your local newspaper and let them know how you feel.
• The Goldwater Institute's Scharf-Norton Constitutional Litigation Center is able to defend your constitutional freedom because of the generous donations of private individuals.  R. Evan Scharf and John R. Norton III have arranged for a $1 million challenge grant to establish and fund the Goldwater Institute Scharf-Norton Center for Constitutional Litigation.  To donate to the litigation center or become a member of the Goldwater Institute, please call (602) 462-5000.

Learn more about the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.