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Jun 19, 2023

A downtown fit? Tattoo controversy still abuzz as leaders work toward solution

ASHLAND In a little strip mall on Roberts Drive in Boyd County, the Midnite

ASHLAND In a little strip mall on Roberts Drive in Boyd County, the Midnite Tattoo Society sits next to a tanning salon.

The asphalt in the lot is faded and the outside of the building looks non-descript, almost like the generic office space found on the outskirts of a major city.

But inside the shop, art lines the walls — there's a reproduction of the infamous Zoltar machine that turned a young adolescent into Tom Hanks in the 1988 classic "Big."

Sitting on the leather couches in the waiting area are Garrett and Kasey Carroll, the husband and wife team who were blocked last week by the Ashland City Commission from setting up shop in a space on Winchester Avenue, right on the main downtown business district.

The Carrolls are hometown souls, having grown up in the area. When they first came back to the area, they had a shop in Olive Hill for six years, before moving into the space on Roberts Drive.

"We kept growing and growing, now we've outgrown this space," Garrett Carroll said. "We found this location (on Winchester) that is 3,000 square feet, which is absolutely phenomenal. I don't think we can grow out of that for a long time."

But it wasn't just the size of the spot that sold them — it was the location.

"That is right in the art district, we've always had dreams of being in the art district," Garrett Carroll said. "This is art. That is what we do."

Kasey chimed in, "Tattooing is just a small portion of what we do. I'm wearing a shirt from the Heart of Summer, an art and music festival we ran when we were out in Carter County. The venue next door is where we run art and music events. We've always done free gallery space for artists and allow artists to sell paintings on the walls, with no commission for us. We just want to support our local artists because we have a lot of talented people here."

The vision for the proposed space would be five tattoo booths, gallery space for artists and a small stage for open mic nights — music, comedy and poetry readings, according to the Carrolls.

Sex shops, medical spas

While no one would bat an eye at a tattoo shop in downtown Huntington or Ironton, in Ashland there is a zoning ordinance on the books that classifies such parlors as adult use. According to the statute, adult use businesses are classified as businesses that require patrons to be over the age of 18 due to either being a retailer of pornography, an 18-plus entertainment venue or providing a personal service adults. The adult use ordinance does not apply to alcohol.

Tattooing — which by state law requires the human canvas to be 18, or 16 with parental permission — falls under the ordinance. Consequently, a business falling under the banner of adult use looking to set up in downtown must apply for a conditional use permit — one of the conditions of that permit is that the business be 500 feet away from residential area, or a place children tend to congregate such as a church, school or park.

Ashland is certainly a locale with a church on every corner — nowhere is that more true than on Winchester.

There's been fervent discussion online since the commission allowed an ordinance exempting body art establishments from the adult use ordinance by not providing a second to open for it discussion. One question that gets brought up is how does Naughty But Nice, formerly known as Adam And Eve, allow to stay in business just one storefront over from a church?

Evidently, it was grandfathered, according to Ashland City Manager Mike Graese.

"It's my understanding that the shop predates the ordinance in place," Graese said.

The ordinance was passed on Oct. 9, 1986 — the Kentucky Secretary of State's Office records show Adam And Eve applied for corporate registration in March 1986. James Perkins, the owner of Naughty but Nice, was contacted for this article but did not call after reporters left a business card with a clerk at his shop.

Local attorney Sonny Martin, who served many years as Ashland's corporate counsel, could not confirm specifically whether or not Adam And Eve was the genesis of the ordinance in question today. However, he did recall that in 1986, the city was undergoing an update to the comprehensive plan, which by statute is required of cities in Kentucky every five years.

"At the time there was concern about businesses selling adult materials and potential massage parlors operating in town," Martin said. "In order to make an effort to curtail those, they came up with the conditional use permits which tattoos happened to fall under."

For context, it should be noted the ordinance in question today is just a small sliver in a 100-plus-page overhaul to the city's zoning ordinances that year. A September 1986 article in The Daily Independent states the total package of zoning laws had been in the works for three years — with eight months of development by the city planning commission prior to being taken up for a first vote in that month.

The adult use portion of the ordinance wasn't even discussed in the article — however, plenty of copy was devoted to the city of Ashland enforcing a ban on skateboarding after a boom in the sport due to "Back to the Future."

One beef the Carrolls have with the city is the fact there are establishments in the downtown zones offering cosmetic tattooing — the tattooing of eyebrows, for example.

"We are kind of confused, they already have tattooing in the city limits," Garrett Carroll said. "And those businesses don't actually fall under the 500-foot rule, either."

Two businesses in the downtown zone offer services along those lines, but aren't considered adult use. Laser Errors Off, a stone's throw away from where the Carrolls want their shop, offers many services typically not available to minors such as botox and microblading. However, they must be done under the care of a medical provider. Same for Ageless Aesthetics, which offers cosmetic tattooing.

Graese confirmed that due to the medical nature of the facilities — Christi Smith, the owner of Ageless Aethestics, is a nurse, while LEO is run by Dr. Jodelle Yount, who holds an M.D. in Osteopathic Medicine from Ohio University.

Yount confirmed the services she offers — which also include hormonal replacement therapy and sexual dysfunction treatments — require medical supervision. She said when she moved into the store space at 1510 Winchester Avenue, she was considered a permitted use and did not have any additional hoops to jump through.

"We've been here for five years," she said. "We're running LASERs here, so we are a medical facility."

The term "personal services" in the ordinance is defined as a "distinguished by the customer obtaining a household or bodily service; and such activities include, among others: barber, cosmetologist, manicurist, hairdresser, individual tailoring and tanning salon."

Not a ‘footloose’ town

At the time of the commission vote (or lack thereof), the positions were made clear by the commissioners. Commissioner Amanda Clark had to abstain due to a conflict of interest, Commissioner Josh Blanton was in favor of repealing the ordinance in order to promote business growth, Commissioner Cheryl Spriggs was against a change due to "unintended consequences," and Commissioner Marty Gute was against it because he felt like having adult use establishments all over downtown wouldn't jive with "promoting a family-friendly atmosphere."

Now that a week has passed, Blanton — who appeared to entertain a text amendment to shrink the radius a shop can operate near a school or church — said he thinks the best thing is for the Carrolls to restart the process and "see what other routes are available."

"The process did happen, now we need to follow the process again and see what different options there are out there," Blanton said. "We will continue to work on it."

When asked what other options there are for the Carrolls, Blanton said they would have to work with the city staff to come up with a solution.

City Attorney Jim Moore said now that the commission blocked a proposal to make personal services permitted, an ordinance exempting body art would have to wait a year by state law before it could be taken up again.

In the meantime, Moore said the other options for the Carrolls are: A) find a different space downtown that is not within 500 feet of a library, school, park or residence; B) Perform a line text amendment to shrink the radius; or C) Rezone the district to make the conditional uses permitted.

The Carrolls confirmed they are restarting the process and they're going to see where it goes from there. In addition, they started an online petition — with 4,000 towards a 5,000 signature goal and counting — to send to the commission, as well as a GoFundMe page for legal fees and to pay landlord Paul Castle for holding the space open for them.

If the effort fails, they said they may sue the city over the ordinance, on First Amendment grounds, Kasey Carroll said.

"Tattooing is protected by the First Amendment. So there is that. Anyone who has ever fought this particular type of ordinance in court has won because it is protected," Carroll said.

According to multiple law reviews, tattoos themselves are protected under the First Amendment as free speech. However, the act of tattooing is still up in the air, although more courts are beginning to rule in favor of tattoo shops bringing these concerns in recent years.

Currently, the 9th Circuit Court of Appeals — which encompasses the West Coast east to Montana and Arizona — and the 11th Circuit Court of Appeals that covers Alabama, Georgia and Florida, have ruled that the act of tattooing is protected by the First Amendment.

Other jurisdictions may still look at the act of tattooing as falling under "police powers," which covers statutes that deal with morality, public health and the like.

The Carrolls believe the decision to retain the status quo by Gute and Spriggs may have been motivated by those commissioners' religious beliefs or affiliations. Gute, a Baptist minister, said that couldn't be further from the truth.

"Religion is off-limits in my decision-making," Gute said. "You can't discriminate on what somebody believes or doesn't believe or anything like that. I look at what's in front of me and I believe the adult use ordinance is written in such a way that respects everybody, regardless of religion. When you consider the Roger Brooks model of promoting family-friendly venues, it just doesn't work if you have places that are 18 and up."

Gute said the ensuing public discussion, as well as media reports, have misrepresented the commission's decision.

"It makes it look like we're in the footloose era, but there's a contingent of people who aren't on social media that believe this ordinance is the right thing," he said. "We're not a bunch of old fuddie-duddies. This ordinance protects business owners who have invested millions of dollars into downtown from having the area saturated with adult use businesses."

Gute added, "As I've said before, I am not against tattoos. My children have tattoos. It's not about that. It's about the ordinance."

Gute also said there are spaces just around the corner of the proposed spot that they could move into that wouldn't run afoul of the 500-foot rule.

For his part, Gute said he would support an amendment to the ordinance that deals specifically with body art.

"I would like to see the distance shortened only for body art to maybe 250-300 feet," Gute said.

Spriggs too said religious sentiment played no part in her decision — she said she's in favor in keeping the government out of people's personal lives as much as possible.

"I don't have any problem with tattoos and I'm all for more personal liberties," Spriggs said. "I don't want the government in people's lives more than it has to. I've never been against tattoos; it's not the circus with a bunch of drunken sailors."

Spriggs added, "But we don't want other things coming here that don't fit. That's why the ordinance, as it was presented to me, seemed too broad. I hated to turn them down, but it wasn't about them. They have their heels dug in on that particular spot."

Spriggs said she is committed to fixing the problem by shrinking the radius as well. But it won't be instantaneous.

"It's going to be another ordinance for them, so they have to go through the planning board, which meets once a month, then it has to go for legal and if Jim (Moore) can get it written up in time it would have to go up to the commission for a first and second reading. If that all started now, it would take until August."

However, Spriggs said changing a zoning ordinance can be tricky.

"You and I know both know that things change in our society and so do ordinances. But I want to represent all the people in Ashland," Spriggs said. "It's not an easy job. So you have to think about it and look ahead and make sure you're not doing things that could lead to something you don't want down the road."

The Carrolls, for their part, said they believe there may be a bit of a culture clash going on here.

"We want to help Ashland embrace its weird — look at Point Pleasant with the Mothman Shop. We could have that sort of thing here," Garrett Carroll said.

"We have a lot of cool, spooky history, things like that, but they don't want to embrace that," Kasey Carroll said.

Garrett added, "It feels like cultures are clashing here. But we don't add negatively to the culture, we only add positively."

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