APA Florida’s 14th Annual
Public Policy Workshop
Planning in the Courts
Tallahassee, Florida
February 3, 2016
dat@theriaquelaw.com
Buehrle v. City of Key West, Case No. 14-15354, 2015
WL 9487716 (11th Cir. Dec. 29, 2015).
The City of Key West (“City”) enacted an ordinance
prohibiting the operation of any tattoo establishments in
the City’s historic district, other than the two tattoo
establishments currently operating as lawful nonconforming uses (“Ordinance”).
Pursuant to the Ordinance, the City denied Brad
Buehrle’s application for a business license to open a
tattoo establishment.
2
Mr. Buehrle sued the City, alleging that the Ordinance
against
tattoo
establishments
constituted
an
unconstitutional restriction of his First Amendmentprotected right of artistic expression.
The United States District Court for the Southern District
of Florida granted summary judgment in favor of the City
after determining that, while the act of tattooing is
protected speech, the Ordinance was a reasonable time,
place, and manner restriction.
Mr. Buehrle appealed the District Court’s decision to the
United States Court of Appeals for the Eleventh Circuit.
3
The Eleventh Circuit analyzed whether the act of tattooing
constitutes protected speech.
The City argued that the act of tattooing does not constitute
protected speech because it is merely the act of crafting the
customer’s desired expression.
The customer wearing the tattoo becomes the protected
speech, while the tattoo artist’s creation of the tattoo is one
step removed from protection.
The Eleventh Circuit rejected the City’s argument,
concluding that the act of tattooing had evolved to become
its own art form because, while tattooing, most tattoo artists
emphasize their own creativity and expression.
4
Having determined that the act of tattooing constitutes
protected speech, the Eleventh Circuit analyzed whether the
Ordinance was nevertheless a reasonable, time, place, and
manner restriction.
The City argued that the Ordinance helps preserve the
district’s historic character and is needed because otherwise
tourists may obtain tattoos that they later regret.
Additionally, the City contended that tourists may associate
their negative experience with the City, thereby adversely
affecting tourism overall.
5
Although the City’s concerns were legitimate governmental
interests, the Eleventh Circuit concluded that the record did
not contain any evidence that the Ordinance would fulfill
such interests.
The City failed to demonstrate that the two non-conforming
tattoo establishments still operating degraded the historic
district.
6
In regard to the alleged adverse impact to tourism, the
City conducted no investigation, made no findings, relied
upon no expert witness testimony, and “failed to muster
even anecdotal evidence supporting its claims.”
Indeed, the “closest the City came to presenting evidence
on the impact on tourism was a passing reference to a few
lines of a Jimmy Buffett song” – which the court
determined the City had misconstrued.
Accordingly, the Eleventh Circuit reversed the District
Court’s decision in favor of the City.
7
Howard v. Murray, Case Nos. 1D14-1841, 1D14-1984,
1D14-1996, 2015 WL 6847833 (Fla. 1st DCA Nov. 9 2015).
Murray acquired property known as Tract 3 in the Sandestin
DRI.
When Murray applied to Walton County for a development
order, he was informed that Howard owned all development
rights for Tract 3.
Murray claimed that development rights in Tract 3 passed
through chain of title to him.
The Circuit Court ruled in favor of Murray, concluding that
the development rights in Tract 3 had transferred to Murray.
8
The First District Court of Appeal held that “development
rights do not pass automatically with the conveyance of the
fee interest in a DRI subparcel.”
The First District reasoned that “[w]hen DRI property is
subdivided, the contracting parties determine which
development rights, if any, are transferred, unless the
development order provides otherwise.”
The First District determined that the original deed
separating Tract 3 from its parent parcel made no mention
of conveying development rights.
9
The First District reversed the Circuit Court, concluding
the no development rights were transferred by the deed
for Tract 3.
10