Tattoo parlor sues SC over 22-year-old law requiring distance from churches

COLUMBIA — Whether tattoo artists have a constitutional right to ink near churches and schools is the central question of a federal lawsuit challenging a decades-old state law.

South Carolina became the second-to-last state in the nation to allow tattooing in 2004, ahead of only Oklahoma. The law legalizing the practice set parameters, including that parlors needed to stay at least 1,000 feet away from any nearby churches, schools and playgrounds, and no artist could tattoo on the neck, face or head.

In a lawsuit filed July 17 in federal court, a tattoo shop and two people who want to get inked are arguing those rules violate the First Amendment right of self-expression. The state Department of Public Health and attorney general’s office, named as the defendants, have not yet filed responses.

“Whether artwork appears on canvas, paper, or skin, the Constitution protects both the artist’s right to create it and the customer’s right to receive it,” the lawsuit reads.

Tiny Zaps, a New York City-based tattoo business, wanted to hold a pop-up parlor at a hotel in downtown Charleston, similar to events the business does across the country, owner Sam Kelly recently told the SC Daily Gazette.

“I think it’s a really fun, young, vibrant city and just had a hunch it would be a good fit for Tiny Zaps,” Kelly said. “I think people in Charleston would be happy to have our services there.”

He started looking into the state laws to make sure the event would meet all the required health codes, only to realize he couldn’t hold the event at all because the hotel was within 1,000 of a church.

In the Holy City, getting out of the required distance from a church is very difficult, Kelly said.

“I looked at a map and was like, ‘Oh, yeah, that’s why there’s not a single tattoo shop in downtown Charleston,’” Kelly said.

The shop also wanted to offer small behind-the-ear tattoos, which are very popular but illegal in the state, Kelly said.

Joshua and Stephanie McDonald, a couple from Fountain Inn, are also suing for the right to get tattoos on their heads and necks. Where someone gets a tattoo should be a decision between them and their artist, Kelly said.

“To have to limit that and take it off the table for some rule that, to us, doesn’t seem to have anything to do with the health and safety and sanitation of tattooing just seems pretty off to us,” Kelly said.

Kelly is happy to follow requirements in place for health and safety reasons, he said. But, like the distance from churches, “it seems like there’s no real rhyme or reason for it, other than an outdated stigma around the craft of tattooing,” he said.

Once seen as an “underbelly, niche counterculture,” Kelly said, tattoos are becoming more common and socially accepted.

In a 2023 Pew Research Center survey, nearly one-third of people said they had at least one tattoo. Having ink was most common among women and people in their 30s and 40s, according to the survey.

South Carolina law bans tattoos on anyone under 18.

“I think people of all ages, all walks of life, get tattoos for different reasons,” Kelly said. “Tattooing, at the end of the day, is just a medium.”

South Carolina has close to 200 tattoo parlors, according to the state health department. Still, people sometimes have to travel to another city, or another state, to get the work they want, Kelly said.

“They should be able to get this service in their city,” Kelly said.

Legislators have filed bills for years that would change the laws, but none have gained any traction.

Since his 2022 election to the Statehouse, Rep. Brandon Guffey has repeatedly sponsored bills that would allow churches to sign off on having a tattoo parlor nearby, change the prohibition on head tattoos and let parlors also do piercings or sell artwork.

The Rock Hill Republican has many tattoos, including three on his arm memorializing his son, the victim of a sextortion scam who died by suicide in 2022.

“One of the ways I wanted to honor my son was to get his birthmark done, and I shouldn’t have to drive to Charlotte to get it done,” Guffey said.

Guffey sees the law as government overreach, since it tells businesses where they can and can’t operate, he said.

Opening a liquor store is easier than opening a tattoo parlor in the state, despite many people sharing moral objections to the two, he added. (The distance requirement is hundreds of feet instead of 1,000: State law requires liquor stores inside city limits to be 300 feet from a church, playground or school. Outside of municipalities, they must be 500 feet away.)

“I just think it’s a dumb law, the way South Carolina wrote it,” Guffey said. “It keeps us from having tattoo artists like there are in many other states.”

Although tattoo artists have struggled with the law for years, many don’t have the funds or resources to bring a legal challenge, Kelly said.

Plus, federal court opinions seem to signal a shift in what judges consider covered under the First Amendment, said Dean McGee, an attorney for Pacific Legal Foundation working on the case.

The South Carolina Supreme Court in 2002 ruled the First Amendment does not cover tattoos, which were then illegal in the state. But more recent cases, such as a 2023 U.S. Supreme Court decision protecting website designers’ rights to self-expression, opened up the possibility of a different outcome, McGee said.

“The Supreme Court has rejected the idea that just because someone is doing something professionally doesn’t mean they’re not engaging in protected First Amendment speech,” McGee said.

SC Daily Gazette is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. SC Daily Gazette maintains editorial independence. Contact Editor Seanna Adcox for questions: info@scdailygazette.com.