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TALLAHASSEE (CBSMiami/NSF) – Finding that tattooing is a “protected artistic expression,” a federal appeals court has tossed out a Key West ordinance that prevented the opening of a tattoo establishment in the city’s historic district.

A three-judge panel of the 11th U.S. Circuit Court of Appeals sided with Brad Buehrle, who was denied a business license to open a tattoo establishment in the historic area. Key West has historically barred tattoo establishments in the area, though two operate as a result of an earlier lawsuit challenging the constitutionality of the ban.

“The city maintains that, given its history, tattoo establishments are inconsistent with the district’s historic character,” said Tuesday’s ruling, written by appeals-court Judge Jill Pryor. “It also fears that rash tourists will obtain regrettable tattoos, leading to negative association with Key West. Thus, it argues, permitting more tattoo establishments will adversely affect tourism.”

But the 14-page ruling said tattooing is an artistic expression protected by the First Amendment and that the city had failed to meet legal tests to justify limits on that expression.

“Particularly glaring is the lack of evidentiary support for the city’s assertions concerning tattooing’s purported effect on tourism,” the ruling said. “The city pointed to no study indicating that the operation of tattoo establishments in the historic district would impact the tourism industry. The city conducted no investigation and made no findings. It relied upon no expert testimony, findings made by other municipalities, or evidence described in judicial decisions. It failed to muster even anecdotal evidence supporting its claims. 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. And we are unsure whether even that reference fully supports its position.”

A footnote said that reference was to Buffett’s song “Margaritaville,” though the judges also noted that the song refers to a tattoo as a “real beauty.”

The News Service of Florida contributed to this report.

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