1. APA Florida’s 14 th Annual Public Policy Workshop Planning in the Courts Tallahassee, Florida dat@theriaquelaw.com February 3, 2016

2. 2 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 non- conforming uses (“Ordinance”). Pursuant to the Ordinance, the City denied Brad Buehrle’s application for a business license to open a tattoo establishment.

3. 3 Mr. Buehrle sued the City, alleging that the Ordinance against tattoo establishments constituted an unconstitutional restriction of his First Amendment- protected 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.

4. 4 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.

5. 5 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.

6. 6 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.

7. 7 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.

8. 8 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.

9. 9 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.

10. 10 The First District reversed the Circuit Court, concluding the no development rights were transferred by the deed for Tract 3.