                    SUPREME COURT OF ARIZONA
                             En Banc

RYAN COLEMAN and LAETITIA         )   Arizona Supreme Court
COLEMAN,                          )   No. CV-11-0351-PR
                                  )
                      Appellants, )   Court of Appeals
                                  )   Division One
                 v.               )   No. 1 CA-CV 10-0808
                                  )
CITY OF MESA, a municipal         )   Maricopa County
corporation; MESA CITY COUNCIL,   )   Superior Court
a body politic; SCOTT SMITH,      )   No. CV2010-092351
Mayor; LINDA CROCKER, City        )
Clerk; KYLE JONES, Vice Mayor     )
and City Council Member; ALEX     )
FINTER, DINA HIGGINS, DENNIS      )   O P I N I O N
KAVANAUGH, DAVE RICHINS, SCOTT    )
SOMERS, City Council Members,     )
                                  )
                       Appellees. )
__________________________________)


        Appeal from the Superior Court in Maricopa County
                 The Honorable Larry Grant, Judge

                      REVERSED AND REMANDED
________________________________________________________________

          Opinion of the Court of Appeals, Division One
                228 Ariz. 240, 265 P.3d 422 (2011)

                             VACATED
________________________________________________________________

SCHARF-NORTON CENTER FOR CONSTITUTIONAL LITIGATION          Phoenix
AT THE GOLDWATER INSTITUTE
     By   Clint Bolick
          Carrie Ann Sitren

And

KIELSKY, RIKE & ELGART, P.L.L.C.                          Scottsdale
     By   Michael Kielsky
Attorneys for Ryan Coleman and Laetitia Coleman
MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER, P.A.            Phoenix
     By   Scott A. Holcomb
          Fredda J. Bisman
          David N. Ferrucci
Attorneys for City of Mesa, Mesa City Council, Scott Smith,
Linda Crocker, Kyle Jones, Alex Finter, Dina Higgins, Dennis
Kavanaugh, Dave Richins, and Scott Somers

LEAGUE OF ARIZONA CITIES AND TOWNS                       Phoenix
     By   Joni Hoffman
Attorney for Amicus Curiae League of Arizona Cities and Towns

________________________________________________________________

B A L E S, Vice Chief Justice

¶1          This    case        involves    the     intersection      of   municipal

zoning regulations and the right of tattoo artists to ply their

trade.     After the City of Mesa denied Ryan and Laetitia Coleman

a permit to operate a tattoo parlor, the Colemans filed this

action alleging violations of their rights to free speech, due

process,    and    equal    protection      under     the   federal    and   Arizona

Constitutions.      The superior court dismissed the complaint under

Arizona Rule of Civil Procedure 12(b)(6) for failing to state a

claim upon which relief can be granted.

¶2          Recognizing         that    tattooing    involves    constitutionally

protected    speech,       we    hold   that   the    superior   court     erred   by

dismissing the complaint as a matter of law.                       We vacate the

opinion of the court of appeals, reverse the judgment of the

superior court, and remand to that court for further proceedings

consistent with this opinion.


                                           2
                                                                       I.

¶3                           Mesa City Code § 11-6-3(B) requires tattoo parlors and

other specified businesses (including pawn shops, body piercing

salons, and non-chartered financial institutions) to obtain a

Council Use Permit (CUP) in order to operate in the city.1                                               The

Colemans applied in July 2008 for a CUP to open a parlor in a

Mesa strip mall.                                          Under the code, Mesa’s Planning and Zoning

Board reviews each CUP application and makes a recommendation to

the            City              Council.                      In   February   2009,   city   zoning   staff

recommended that the City issue the Colemans a permit, subject

to certain conditions, which they accepted.                                             Nonetheless, after

a public hearing, the Board voted 3-2 to recommend that the

Council deny the CUP, citing concerns that the proposed use was

not appropriate for the location or in the best interest of the

neighborhood.                                The Council held a public meeting in March 2009

at which it received comments from several speakers supporting

and opposing the tattoo parlor.                                             Ultimately, the Council voted

6-1 to deny the permit.

¶4                           The Colemans sued the City of Mesa and various city

officials (collectively “Mesa”).                                            Their complaint alleges that

Mesa’s denial of the CUP violated their rights to free speech,
                                                            
1
   This opinion cites the version of Mesa’s zoning ordinance in
effect in 2008-09.   Effective September 3, 2011, Mesa replaced
its previous ordinance with a new one.     The parties have not
suggested that the new ordinance affects the resolution of any
issues pending before this Court.
                                3
due process, and equal protection under the federal and Arizona

Constitutions, and it seeks declaratory and mandamus relief and

damages under 42 U.S.C. § 1983.                          Mesa moved to dismiss the

lawsuit under Rule 12(b)(6) for failing to state a claim upon

which relief can be granted.                   The superior court granted the

motion, observing that the Council’s decision “was a reasonable

and rational regulation of land use.”

¶5             The court of appeals reversed.                        Coleman v. City of

Mesa, 228 Ariz. 240, 244 ¶ 1, 265 P.3d 422, 426 (App. 2011).

Citing Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1060

(9th    Cir.    2010),   the       court      held      that       “obtaining        a   tattoo,

applying a tattoo, and engaging in the business of tattooing”

are “pure speech entitled to the highest level of protection” by

the    First    Amendment         and    Article        2,   Section       6    of   Arizona’s

Constitution, 228 Ariz. at 244 ¶ 1, 265 P.3d at 426.                                 The court

of appeals further concluded that the Colemans had “sufficiently

alleged      claims    for    violations           of    their      free       speech,    equal

protection, and due process rights,” and the trial court had

erred by dismissing the complaint without allowing the parties

to develop a factual record.                 Id.

¶6             We   granted   Mesa’s         petition        for    review      because    this

case    involves       issues           of   first       impression            and   statewide

importance regarding the free speech rights of tattoo artists

and    the   authority       of    municipal         governments        to      regulate    the
                                               4
location of tattoo parlors.

                                    II.

¶7          Dismissal    of   a   complaint    under     Rule   12(b)(6)    is

reviewed de novo.       We clarify the standard of appellate review

here because our past statements have been inconsistent.                   In

Dressler v. Morrison, 212 Ariz. 279, 281 ¶ 11, 130 P.3d 978, 980

(2006), the Court stated that an order granting a motion to

dismiss is reviewed for abuse of discretion, citing Franzi v.

Superior Court, 139 Ariz. 556, 561, 679 P.2d 1043, 1048 (1984).

Franzi, however, involved a criminal proceeding rather than a

motion to dismiss a civil pleading under Rule 12(b)(6).                    139

Ariz. at 558, 579 P.2d at 1045.           Dressler, moreover, recognized

that issues of law are reviewed de novo.             212 Ariz. at 281 ¶ 11,

130 P.3d at 980.

¶8          Dismissal is appropriate under Rule 12(b)(6) only if

“as a matter of law [] plaintiffs would not be entitled to

relief    under   any   interpretation    of   the   facts   susceptible    of

proof.”     Fid. Sec. Life Ins. Co. v. State Dep't of Ins., 191

Ariz. 222, 224 ¶ 4, 954 P.2d 580, 582 (1998).             Because questions

of law are reviewed de novo, e.g., Wilmot v. Wilmot, 203 Ariz.

565, 569 ¶ 10, 58 P.3d 507, 511 (2002), the grant of a dismissal

under Rule 12(b)(6) is reviewed de novo.

¶9          “Arizona follows a notice pleading standard.”             Cullen

v. Auto-Owners Ins. Co., 218 Ariz. 417, 419 ¶ 6, 189 P.3d 344,
                                     5
346 (2008).          In determining if a complaint states a claim on

which relief can be granted, courts must assume the truth of all

well-pleaded         factual    allegations        and    indulge          all    reasonable

inferences from those facts, but mere conclusory statements are

insufficient.          Id. ¶ 7.         “[C]ourts look only to the pleading

itself”   when       adjudicating       a   Rule     12(b)(6)        motion.          Id.     If

“matters outside the pleading” are considered, the motion must

be    treated    as    one   for    summary       judgment.          Ariz.       R.   Civ.    P.

12(b)(6).       A complaint’s exhibits, or public records regarding

matters       referenced       in   a     complaint,       are       not    “outside         the

pleading,”       and    courts      may     consider      such       documents         without

converting       a    Rule     12(b)(6)     motion       into    a    summary         judgment

motion.       See Strategic Dev. & Constr., Inc. v. 7th & Roosevelt

Partners, LLC, 224 Ariz. 60, 63 ¶ 10, 64 ¶ 13, 226 P.3d 1046,

1049-50 (App. 2010).

                                            III.

                                             A.

¶10           “Tattooing,” as used in this opinion, refers to:

       mark[ing]the skin with any indelible design, letter,
       scroll, figure, symbol or any other mark that is
       placed by the aid of needles or other instruments upon
       or under the skin with any substance that will leave
       color under the skin and that cannot be removed,
       repaired   or   reconstructed   without   a   surgical
       procedure.

A.R.S.    §     13-3721(E)(2).            Although    tattooing         has      an    ancient

history and has been practiced in many different cultures, the
                                             6
modern process generally involves electronically powered tattoo

machines that move a solid needle up and down to puncture the

skin between 50 and 3,000 times per minute, depositing insoluble

ink into the skin with each puncture.                      Anderson, 621 F.3d at

1055.      Because        the    process       involves     puncturing     the      skin

repeatedly,        tattooing       carries        risks        of     infection      and

transmission of disease if done with unsterile equipment or in

unsanitary conditions.            Id. at 1056.        When properly performed,

tattooing generally is a safe procedure.                  Id.

¶11          Arizona does not extensively regulate the practice of

tattooing.     Persons who provide tattoos, referred to as tattoo

artists,   are      not    certified,      licensed,      or    registered     by   the

state.     State law does, however, bar the use of needles that

have not been properly sterilized, the reuse of needles, and the

improper disposal of used needles.                A.R.S. §§ 13-3721(A)(2), 44-

1342.    It is also unlawful to tattoo a minor unless the child’s

parent or legal guardian is present.               Id. § 13-3721(A)(1).

¶12          The    City    of   Mesa   also      imposes       few   regulations     on

tattooing.         It does not certify, license, or register tattoo

artists; nor does it generally regulate the manner in which

tattoo   parlors      operate.       Mesa       provides    that      tattoo   parlors

cannot be within 1,200 feet of a school, another tattoo parlor,

or a body piercing salon.           Mesa City Code § 11-6-3(B)(2).                (This

location restriction is not at issue here.)                         Mesa additionally
                                           7
requires tattoo parlors to obtain a CUP.                   Id.

¶13            Under Mesa’s zoning code, a CUP is a “discretionary

authorization” that the City Council may issue if it finds,

“through    a    public    hearing       that   the    proposed        activity    is    in

conformance with the intent of this Code, the General Plan,

and/or other specified plans or Council policies and will be

compatible with, and not detrimental to, adjacent properties or

the neighborhood in general.”               Id. § 11-1-6.              A CUP may issue

only    after    the    City     Council    finds      that      the    use   will      “be

compatible with surrounding uses.”                    Id. § 11-6-3(B)(4).               The

parties agree that many tattoo studios operate in Mesa with city

approval.

                                           B.

¶14            We first consider whether the Colemans have stated a

claim for relief based on the First Amendment or Article 2,

Section    6    of     Arizona’s    Constitution.           The    First      Amendment

proscribes laws “abridging the freedom of speech,” and Article

2, Section 6 of our state constitution declares that “[e]very

person may freely speak, write, and publish on all subjects,

being     responsible      for     the    abuse       of   that    right.”         These

provisions,      the    Colemans    argue,      protect     the    right      of   tattoo

artists to engage in creative expression by operating tattoo

parlors.

¶15            Mesa argues that we need not determine if tattooing is
                                           8
constitutionally protected expression because, even if it is,

generally     applicable       zoning      laws       may     apply    to     otherwise

protected activities without presenting free speech issues.                           See

Leathers v. Medlock, 499 U.S. 439, 447-49 (1991) (finding no

“First   Amendment       difficulties”         in     applying      general    tax     to

media); Arcara v. Cloud Books, Inc., 478 U.S. 697, 705 (1986)

(holding that First Amendment did not preclude closing of adult

bookstore, pursuant to generally applicable nuisance statute,

when solicitation of prostitution was occurring on premises).

Mesa further notes that its zoning code requires CUPs for a wide

range of property uses including schools, rescue missions, pool

halls, and apartments.         See Mesa City Code § 11-6-3.

¶16          We are not persuaded by Mesa’s characterization of the

denial of a CUP to the Colemans as merely the application of a

general law that incidentally affects speech-related activities.

Mesa’s   zoning    ordinance        effectively           prohibits    certain      uses,

including    tattoo      parlors,    unless         the    City   Council     issues    a

discretionary     CUP.      The     City   is   not       attempting    to    impose    a

generally applicable law, such as the tax in Leathers or the

nuisance prohibition in Arcara, to the on-going operations of

businesses    engaged     in   protected        speech.           Instead,    the    City

claims that the Council may exercise its unfettered discretion

(which it also argues is effectively non-reviewable) to deny

permission for businesses engaged in protected speech to operate
                                           9
at all because it has similar discretion to deny permission for

other, non-protected uses.

¶17         The fact that a permit scheme may also apply to non-

protected activities does not insulate it from constitutional

challenge when applied to protected speech.                           See, e.g., Thomas

v.     Chicago       Park    Dist.,      534   U.S.      316    (2002).           Thomas    is

illustrative, as it involved a challenge to a city ordinance

requiring permits for events involving fifty or more people in

public     parks,         whether     soccer        games,     picnics,      or    political

rallies.        Recognizing that the ordinance “is not even directed

to communicative activity as such, but rather to all activity

conducted       in    a   public    park,”      id.    at    322,     the   Supreme      Court

nonetheless considered whether it satisfied the constitutional

requirements for reasonable time, place, and manner regulations,

including the requirement that there be adequate standards to

guide the discretion of the official issuing the permit.                                   See

id. at 323; see also Forsyth Cnty. v. Nationalist Movement, 505

U.S.     123,    130–31       (1992)      (concluding          that    permit      and     fee

requirements applicable to “any activity on public property -

from parades, to street corner speeches, to bike races” violated

the     First        Amendment      by    vesting        unbridled          discretion      in

permitting officials).

¶18         To determine if the Colemans have stated a claim for a

violation of their free speech rights, we must determine whether
                                               10
tattooing is constitutionally protected expression.                               Courts in

other jurisdictions are divided on this issue, which in turn

reflects       differing       views      on        whether    tattooing       should       be

characterized as purely expressive activity (“pure speech”) or

instead as conduct with an expressive component.                              We use the

terms “purely expressive activity” and “pure speech” to refer

not only to written or spoken words, but also to other media

(such as painting, music, and film) that predominantly serve to

express thoughts, emotions, or ideas.                          See Hurley v. Irish-

American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557,

568-70 (1995) (holding that “expressive parades” are protected

speech for purposes of First Amendment); Coleman, 228 Ariz. at

248-49    ¶    14,     265    P.3d   at    430-31          (similarly      defining    “pure

speech”).

¶19            “If tattooing is purely expressive activity, then it

is    entitled    to    full    First      Amendment         protection”      and     can   be

regulated       only    through      reasonable            time,   place,     and     manner

restrictions.          Anderson, 621 F.3d at 1059 (citing Ward v. Rock

Against       Racism,    491    U.S.      781,       791    (1989)).        If,     however,

tattooing is instead characterized as conduct with an expressive

component, it will be protected under the First Amendment only

if it is “sufficiently imbued with elements of communication,”

that    is,    there     is    “[a]n      intent      to     convey    a   particularized

message” and “the likelihood [is] great that the message [will]
                                               11
be understood” by viewers.                                                Spence v. Washington, 418 U.S. 405,

409-11 (1974).                                  Restrictions on protected expressive conduct are

evaluated under the test announced in United States v. O’Brien,

391 U.S. 367, 376-77 (1968) (analyzing prosecution for symbolic

burning of draft card to protest the draft).2                                                        Finally, if the

conduct                      is            not                 “sufficiently        imbued    with       elements      of

communication,”                                  then            the   regulation      need   only      be   rationally

related to a legitimate governmental interest.                                                          Anderson, 621

F.3d at 1059 (internal quotation marks omitted) (citing Schad v.

Borough of Mount Ephraim, 452 U.S. 61, 68 (1981)).

¶20                          One end of the spectrum is illustrated by the Ninth

Circuit’s opinion in Anderson, which held that “tattooing is

purely                  expressive                             activity     fully      protected      by     the    First

Amendment.”                             621 F.3d at 1055.                        The court of appeals in this

case              agreed                  with                 Anderson    and    further     ruled     that       “Mesa’s

ordinance                        and            permit             process       are   subject     to      intermediate

scrutiny” to determine if they constitute a reasonable time,

place, and manner regulation.                                                Coleman, 228 Ariz. at 250 ¶ 18,

265 P.3d at 432.

                                                            
2
   Under the O’Brien test, a regulation of protected expressive
conduct is constitutional if (1) it is within the government’s
constitutional   power;  (2)   it  furthers   an   important  or
substantial governmental interest; (3) the governmental interest
is unrelated to the suppression of free expression; and (4) the
incidental restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest.
391 U.S. at 377.
                               12
¶21          Several       other   courts,         however,    have          concluded     that

tattooing is not protected by the First Amendment because it is

not itself expressive conduct.                 See, e.g, Hold Fast Tattoo, LLC

v. City of North Chicago, 580 F. Supp. 2d 656, 660 (N.D. Ill.

2008) (finding that “act of tattooing is one step removed from

actual expressive conduct”); Yurkew v. Sinclair, 495 F. Supp.

1248, 1253-55 (D. Minn. 1980) (finding process of tattooing is

not protected speech); State ex rel Medical Licensing Bd. v.

Brady, 492 N.E.2d 34, 39 (Ind. Ct. App. 1986) (same); State v.

White, 560 S.E.2d 420, 422 (S.C. 2002) (same).

¶22          A    third       approach,        refusing       to         treat      tattooing

categorically as either protected or unprotected expression, has

been suggested in scholarly commentary.                            See    Ryan J. Walsh,

Comment, Painting on a Canvass of Skin: Tattooing and the First

Amendment,       78   U.    Chi.      L.     Rev.    1063     (2011).            Relying       on

Mastrovincenzo v. City of New York, 435 F.3d 78 (2d Cir. 2006),

this   approach       would    extend       First    Amendment       protections          to   a

particular       tattoo     artist’s        work    if   it    has       a    predominantly

expressive purpose.            Courts would therefore make a case-by-case

inquiry to determine if tattooing is protected by the First

Amendment.       Walsh, supra, at 1097-1100.

¶23          We conclude that the approach adopted in Anderson is

most   consistent       with    First       Amendment       case    law       and   the    free

speech   protections          under        Arizona’s     Constitution.               Anderson
                                              13
starts with the proposition that a tattoo itself is pure speech.

621   F.3d          at        1060.      This     seems    incontrovertible.            “[T]he

Constitution looks beyond written or spoken words as mediums of

expression,” Hurley, 515 U.S. at 569, and the Supreme Court has

recognized           that        the     First     Amendment      protects     a   range       of

expressive          activity           including    parades,      music,     paintings,       and

topless dancing.                See id.; Anderson, 621 F.3d at 1060.

¶24             Tattoos, as the Ninth Circuit noted in Anderson, are

generally composed of words, realistic or abstract symbols, or

some combination of these items.                          621 F.3d at 1060.         They can

express     a       broad        range    of     messages,      and   they   may   be    purely

decorative or serve religious, political, or social purposes:

      The principal difference between a tattoo and, for
      example, a pen-and-ink drawing, is that a tattoo is
      engrafted onto a person’s skin rather than drawn on
      paper. This distinction has no significance in terms
      of the constitutional protection afforded the tattoo;
      a form of speech does not lose First Amendment
      protection based on the kind of surface it is applied
      to.

Id;   see       also           White,    560     S.E.2d    at    425    (Waller,       J.,

dissenting) (observing that “whether or not something is

‘speech’ protected by the First Amendment cannot focus upon

the medium chosen for its expression”).

¶25             A    tattoo           involves    expressive      elements     beyond        those

present      in          “a     pen-and-ink”       drawing,      inasmuch     as   a     tattoo

reflects not only the work of the tattoo artist but also the

                                                   14
self-expression of the person displaying the tattoo’s relatively

permanent image.                                       Of course, there is no First Amendment right

to tattoo another person against his or her will, see Anderson,

621 F.3d at 1068 (Noonan, J., concurring) (noting that “[a]

tattoo punitively affixed is unprotected”), and indeed the First

Amendment (and other constitutional provisions) would prevent

the government from requiring a person to be tattooed.                                                           Cf.

Wooley                v.          Maynard,                     430   U.S.   705   (1977)   (holding    that    First

Amendment barred state from requiring citizens to display “Live

Free or Die” motto on vehicle license plates).

¶26                          We         also              agree      with    Anderson’s    conclusion    that    the

process of tattooing is expressive activity.                                                    See 621 F.3d at

1061-62.3                       Supreme Court case law has not distinguished “between

the process of creating a form of pure speech (such as writing

or painting) and the product of these processes (the essay or

the            artwork)                      in           terms      of     the   First    Amendment    protection

afforded.”                          Id. at 1061.                     For example, the art of writing is no

less protected than the book it produces; nor is painting less

an act of free speech than the painting that results.                                                         Id. at

1061-62.

                                                            
3
    Mesa attempts to distinguish Anderson by noting that it
involved a city’s total ban on tattooing, which the Ninth
Circuit concluded was not a reasonable time, place, and manner
regulation.   The fact that Anderson considered a total ban,
however, does not detract from the merits of its analysis of
whether tattooing is protected speech.
                                15
¶27          This observation explains why we are not persuaded by

decisions    such    as   Hold    Fast    Tattoo   that       rely    on    Spence    to

conclude that tattooing is not protected by the First Amendment.

See, e.g., Hold Fast Tattoo, 580 F. Supp. 2d at 659-60; Yurkew,

495 F. Supp. at 1253.         The Spence test, which focuses on whether

conduct    is     “sufficiently    imbued”      with     expressive        content   to

warrant    protection,     applies       to    conduct    that       is    not   itself

generally expressive.           Anderson, 621 F.3d at 1061; see Hurley,

515 U.S. at 569 (declining to apply Spence test to expressive

parades and noting it does not apply to paintings and music).

¶28          We also decline to apply Mastrovincenzo’s case-by-case

approach     to     analyze      the     regulation      of     tattooing.           In

Mastrovincenzo, the Second Circuit considered whether the First

Amendment protected the sale of clothing painted with graffiti,

and ultimately concluded that the sale was protected because

“the   disseminators       of     that    clothing       [were]      genuinely       and

primarily engaged in artistic self-expression” rather than “a

chiefly commercial exercise.”             435 F.3d at 91.            Mastrovincenzo,

however, adopted this approach to determine if certain products,

such as t-shirts and caps, that are not generically expressive

should nonetheless be protected by the First Amendment because

the particular items “serve predominantly expressive purposes.”

Id. at 92.

¶29          Mastrovincenzo       acknowledged         that    its        case-by-case
                                          16
approach does not apply to “paintings, photographs, prints and

sculptures [that] always communicate some idea or concept to

those              who           view             it,           and   as    such    are     entitled       to    full    First

Amendment                        protection.”                          Id.       (internal         quotation      omitted).

Tattoos, in our view, are more like paintings than t-shirts in

terms of their general expressive content.                                                         Moreover, a case-by-

case inquiry would be difficult to administer and insufficiently

protective of free speech rights: whether a particular artist

could engage in tattooing might turn in the first instance on a

licensing                      official’s                       assessment        whether     the    proposed          work   is

“predominantly                                 expressive”                 and    ultimately        on     whether      courts

agreed with that assessment.4

¶30                          Our            conclusion                that        the    process      of    tattooing         is

protected speech is also not affected by the fact that tattoo

artists may use standard designs or patterns.                                                              In Hurley, the

Court rejected arguments that a parade was not the protected

expression                        of          its              organizers        because    it     incorporated         speech

originally                        created                      by   others.        The     Court    noted       that    “First

Amendment protection [does not] require a speaker to generate,
                                                            
4
   Mastrovincenzo outlined a three-part inquiry to determine if a
product is predominantly expressive: (1) the court should
“consider whether that item also has a common non-expressive
purpose or utility,” 438 F.3d at 95; (2) if the court finds that
an item has both expressive and non-expressive purposes, it must
determine which purpose dominates; and (3) if an item is found
to be predominantly expressive, the court must “take into
account other factors that shed light on how and why an object
is being sold or disseminated.” Id. at 96.
                                17
as an original matter, each item featured in the communication.

Cable operators, for example, are engaged in protected speech

activities      even    when   they    only    select    programming     originally

produced by others.”            515 U.S. at 570 (citing Turner Broad.

Sys., Inc. v. FCC, 512 U.S. 622, 636 (1994)).                       The fact that a

tattoo artist may use a standard design or message, such as

iconic images of the Virgen de Guadalupe or the words “Don’t

tread on me” beside a coiled rattlesnake, does not make the

resulting tattoo any less expressive.

¶31          Determining that tattooing is protected speech also

implies    that    the     business     of     tattooing      is   constitutionally

protected.      See Anderson, 621 F.3d at 1062-63.                 “[T]he degree of

First Amendment protection is not diminished merely because the

[protected expression] is sold rather than given away.”                        City of

Lakewood   v.     Plain    Dealer     Publ’g    Co.,    486    U.S.   750,     756    n.5

(1988); see also Riley v. Nat’l Fed’n of the Blind of N.C.,

Inc., 487 U.S. 781, 801 (1988) (noting that “a speaker’s rights

are not lost merely because compensation is received; a speaker

is no less a speaker because he or she is paid to speak”).                           This

does not mean, of course, that the business of tattooing is

shielded   from        governmental    regulation.            As   discussed    above,

generally applicable laws, such as taxes, health regulations, or

nuisance     ordinances,        may     apply     to     tattooing      businesses.

Moreover, tattooing may be subject to reasonable time, place,
                                         18
and manner regulations.                See Ward, 491 U.S. at 791; Anderson,

621 F.3d at 1059, 1064.

¶32         Having concluded that tattooing is protected speech,

we next consider whether the Colemans’ complaint sufficiently

states a claim for relief based on alleged violations of the

First     Amendment        or     Article     2,      Section     6    of    Arizona’s

Constitution.       The Mesa ordinance, which requires a CUP for all

tattoo parlors, is facially content-neutral and the Colemans do

not contend that they were denied a permit based on the content

of their contemplated speech.                The Colemans instead allege that

the CUP process is not a reasonable time, place, and manner

regulation of their protected expression.

¶33         For a permit system to qualify as a reasonable time,

place, and manner regulation, the scheme “must not be based on

the content of the message, must be narrowly tailored to serve a

significant       governmental         interest,    and    must   leave     open   ample

alternatives for communication.”                   Thomas, 534 U.S. at 323 n.3

(internal quotation omitted); see also Forsyth Cnty., 505 U.S.

at 130.     It also must “contain adequate standards to guide the

official's decision and render it subject to effective judicial

review.”     Thomas, 534 U.S. at 323; Forsyth Cnty., 505 U.S. at

130     (noting     that        “[a]     government       regulation      that     allows

arbitrary application is inherently inconsistent with a valid

time,     place,     and        manner     regulation”)       (internal      quotation
                                            19
omitted).

¶34           The Colemans have alleged sufficient facts to state a

claim    on   which   relief      can     be     granted     for   violations       of    the

freedom of speech.           They allege that the City’s “planning and

zoning code approval criteria, facially and as applied by the

City    Council,”     do    not    sufficiently           guide    or    limit    the    City

Council’s discretion in rendering decisions.                            (In fact, before

this Court, counsel for Mesa argued that the City Council’s

determinations on CUPs are discretionary and effectively non-

reviewable.)

¶35           The Colemans further allege that they have agreed to

comply with all the conditions that city zoning staff identified

in recommending they be issued a permit; that the Council has

issued    permits     to    other       tattoo       parlors;     and    that    they    will

comply with all applicable laws and reasonable regulations on

the time, place, and manner of conducting their business.                                They

also allege that they have been discriminatorily denied a permit

to operate their business, suppressing their free expression and

that of their prospective customers.

¶36           If we accept these factual allegations as true, as we

must    for   purposes      of    assessing          a   motion    to    dismiss   on     the

pleadings, then the Colemans have stated a claim under the First

Amendment because the “pleading itself” does not indicate that

Mesa’s   denial     of     the    CUP    was     a    reasonable    time,       place,    and
                                               20
manner regulation of their speech.5                                                Cullen, 218 Ariz. at 419

¶ 7, 189 P.3d at 346.                                          Although dismissal of the complaint under

Rule 12(b)(6) was inappropriate, we express no opinion whether

Mesa’s ordinance, the CUP process, or the refusal to allow the

Colemans                     to          operate               their    tattoo    business   at     a    particular

location were in fact reasonable restrictions or violated their

free speech rights.

                                                                         C.

¶37                          The            Colemans             also    allege    in   their     complaint      that

Mesa’s denial of a CUP to operate a tattoo parlor violated their

rights to equal protection and due process under the federal and

Arizona Constitutions.

¶38                          The           Fourteenth             Amendment       provides   that       “[n]o   State

shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; . . . nor deny

to any person within its jurisdiction the equal protection of

the laws.”                               Article 2, Section 13 of Arizona’s Constitution

provides “[n]o law shall be enacted granting to any citizen
                                                            
5
   Our conclusion that the Colemans have stated a claim under the
First Amendment sufficient to withstand a Rule 12(b)(6) motion
necessarily implies that they have also stated claims under
Article 2, Section 6 of Arizona’s Constitution, which is in some
respects more protective of free speech rights than the First
Amendment. See, e.g., State v. Stummer, 219 Ariz. 137, 194 P.3d
1043 (2008) (identifying standard for evaluating content-based
secondary effects regulations). Given the preliminary stage of
this litigation, we have no occasion to address whether Article
2, Section 6 might afford greater protection to the activity of
tattooing than applies under the First Amendment.
                                21
.     .   . privileges or immunities which, upon the same terms,

shall not equally belong to all citizens or corporations.”                       Both

the Fourteenth Amendment and Article 2, Section 4 of Arizona’s

Constitution provide that no person may be deprived of life,

liberty, or property “without due process of law.”

¶39             Although the Colemans also assert in their complaint

that      they    have    been    denied    “privileges       and   immunities     of

citizenship” in violation of the Fourteenth Amendment, they have

not alleged the deprivation of any rights protected under the

Supreme Court’s “narrow reading” of the Privileges or Immunities

Clause.      See McDonald v. City of Chicago, 130 S. Ct. 3020, 3029-

30    (2010).       Moreover,      this    Court   has    construed      Article   2,

Section     13    of     Arizona’s   Constitution        as   applying    the    same

standard as applies to equal protection claims under the federal

constitution, see Big D Constr. Corp. v. Court of Appeals, 163

Ariz. 560, 565-66, 789 P.2d 1061, 1066-67 (1990); Ariz. Downs v.

Ariz. Horsemen’s Found., 130 Ariz. 550, 555, 637 P.2d 1053, 1058

(1981), and the Colemans have not argued that another standard

should apply.          Thus, whether the Colemans have stated claims for

relief     in    addition    to    their   free    speech     claims     reduces   to

whether they have stated sufficient claims under the federal

Equal Protection Clause or the federal or state Due Process

Clauses.

¶40             The court of appeals held that because tattooing is
                                           22
protected     speech,    and     speech   is   a   fundamental   right,    courts

should apply “strict scrutiny” in assessing whether the City’s

denial of a CUP to the Colemans violated either equal protection

or due process.       Coleman, 228 Ariz. at 253-54 ¶¶ 26-27, 29, 265

P.3d at 435-36.          With respect to the First Amendment claims

themselves, however, the court of appeals correctly recognized

that   intermediate      scrutiny    would     apply   in   evaluating     whether

Mesa    had    imposed      a    permissible       time,    place,    or    manner

restriction on the Colemans’ operation of a tattoo parlor.                     Id.

at 250 ¶ 18, 265 P.3d at 432.

¶41           The   court   of    appeals      erred   by   stating   that    more

stringent scrutiny applies with respect to due process and equal

protection claims involving the First Amendment than applies to

the First Amendment claim itself.              At oral argument, counsel for

the Colemans acknowledged that, with respect to the free speech

claims, the same level of scrutiny would apply whether they are

grounded in the First Amendment or the Equal Protection and Due

Process Clauses.

¶42           As the Third Circuit has observed:

       If every time, place, and manner regulation were
       subject to strict scrutiny under the Equal Protection
       Clause simply because it burdened constitutionally
       protected speech, Ward's intermediate-scrutiny test
       would be rendered obsolete.      Instead, it is only
       content-based time, place, and manner regulations that
       call for strict scrutiny-whether viewed through the
       lens of First Amendment or Equal Protection doctrine.

                                          23
Brown v. City of Pittsburgh, 586 F.3d 263, 283 n.22 (3d Cir.

2009); see also Melrose, Inc. v. City of Pittsburgh, 613 F.3d

380, 394 (3d Cir. 2010) (noting that “where the state shows a

satisfactory rationale for a content-neutral time, place, and

manner regulation, that regulation necessarily survives scrutiny

under    the        Equal   Protection         Clause”)     (internal         quotation

omitted); Jones Intercable of San Diego, Inc. v. City of Chula

Vista,   80    F.3d     320,   327    (9th     Cir.   1996)      (recognizing     that

content-neutral        restrictions      are     reviewed       under    intermediate

scrutiny      for     either     First    Amendment        or    equal     protection

purposes).          These   remarks      apply    equally       to   claims    that   a

content-neutral regulation violates due process because of its

impact on protected speech.               See Albright v. Oliver, 510 U.S.

266, 273 (1994) (noting that “[w]here a particular Amendment

provides       an     explicit       textual      source        of      constitutional

protection” against a particular sort of government behavior,

“that Amendment, not the more generalized notion of substantive

due process, must be the guide for analyzing these claims”)

(internal quotations omitted).

¶43           That the Colemans’ free speech claims do not trigger

“strict scrutiny” does not mean, however, that the Colemans have

failed to state claims for violations of due process or equal

protection.         For reasons explained in the preceding section, the

Colemans have alleged that the ordinance and permit denial do
                                          24
not satisfy intermediate scrutiny.                    Moreover, independent of any

free speech issues, the Equal Protection and Due Process Clauses

protect against government action that is arbitary, irrational,

or    not   reasonably        related    to    furthering       a    legitimate     state

purpose.       See, e.g., City of Cleburne v. Cleburne Living Ctr.,

473    U.S.    432,     446-50    (1985)       (rejecting       special     use    permit

requirement as lacking a rational basis and thus violating equal

protection); N. Pacifica LLC v. City of Pacifica, 526 F.3d 478,

484 (9th Cir. 2008) (explaining that substantive due process

challenge to land use regulation requires allegation that it

does   not     advance     any    legitimate         government      purpose);     Big   D

Constr.       Corp.,    163    Ariz.     at        565-66,    789    P.2d   at    1066-67

(applying      rational       basis    standard       to     equal   protection     claim

under Arizona Constitution); Valley Nat. Bank of Phx. v. Glover,

62 Ariz. 538, 553, 159 P.2d 292, 298-99 (1945) (discussing due

process under Arizona Constitution).

¶44           The      Colemans    allege          that,     although   other      tattoo

parlors have been allowed to operate in Mesa, the Council denied

the Colemans a permit based on “perceptions, stereotypes and

prejudice” rather than facts demonstrating that their business

would harm the community.               Thus, the Colemans have alleged that

Mesa acted arbitrarily in denying them a permit and that the

action did not further any legitimate government purpose.

¶45           Mesa responds that the Colemans cannot complain about
                                              25
the denial of the permit because the City merely rejected their

request to operate a tattoo parlor at a particular location.

Mesa    further    contends        that   its     Council       acted   reasonably       in

concluding that a tattoo parlor was not appropriate for this

location    and     did      not      serve      the     best     interests       of    the

neighborhood.           We       acknowledge           that     municipalities         have

legitimate interests in controlling the location of businesses

through zoning ordinances.                 See Young v. Am. Mini Theatres,

Inc., 427 U.S. 50, 62 (1976) (permitting the city to “control

the    location   of    .    .   .    commercial        establishments,       either     by

confining    them      to   certain       specified       commercial      zones    or    by

requiring that they be dispersed throughout the city”).

¶46         In    adjudicating        a   Rule    12(b)(6)       motion    to    dismiss,

however, a court does not resolve factual disputes between the

parties on an undeveloped record.                 Instead, the issue is whether

the pleading states a sufficient claim to warrant allowing the

Colemans    to    attempt        to   prove      their        case.     The     complaint

sufficiently sets forth claims for relief for alleged violations

of the Colemans’ rights to free speech, equal protection, and

due process.      Whether they can prove those claims will depend on

the course of proceedings in the trial court.

                                           IV.

¶47         The superior court erred in dismissing the Colemans’

complaint pursuant to Rule 12(b)(6) for failing to state a claim
                                            26
upon which relief can be granted.       We vacate the opinion of the

court of appeals, reverse the judgment of the superior court,

and remand to that court for further proceedings consistent with

this opinion.   We deny the Colemans’ request for attorney fees

without   prejudice   to   their   renewing   this   request   with   the

superior court should they ultimately prevail.



                            _____________________________________
                            Scott Bales, Vice Chief Justice

CONCURRING:


_____________________________________
Rebecca White Berch, Chief Justice


_____________________________________
A. John Pelander, Justice


_____________________________________
Robert M. Brutinel, Justice




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