THE INCONSISTENCIES in zoning from community to community trouble Sarah Wunsch, a staff attorney with the American Civil Liberties Union (ACLU), which worked on the case that eventually resulted in the lifting of Massachusetts’s 38-year tattooing ban. She notes that though the ACLU can’t take on each municipality that uses zoning laws to restrict tattooing, a legal challenge is inevitable. " I am disturbed by what’s going on, " she says. " There is no justification for restricting [tattooing] other than they don’t like it. There are other things communities can do to control businesses in commercial districts, such as sign ordinances. You can’t use zoning; it is the same as a ban. "

Tom Lesser, a Northampton lawyer who specializes in First Amendment zoning issues, also believes that a lawsuit will eventually be filed against a Massachusetts city or a town for using zoning to keep tattooing out of commercial districts. In addition to Boston and Somerville, for instance, New Bedford, Salem, and Lowell use zoning to restrict tattoo parlors to the industrial — some would say seedier — areas of town. " Someone will bring [a suit], and then [municipalities] will be liable for attorneys’ fees, " he predicts. " Tattooing is a protected activity according to the Massachusetts Superior Court. To put establishments in industrial districts, in my opinion, will be struck down by the courts. They would have to prove there is a strong government interest. "

Both Lesser and Wunsch point out that nude dancing and other forms of " adult entertainment " have traditionally been the targets of restrictive zoning laws in municipalities. Wunsch notes that the Supreme Court, in a much-criticized decision, ruled that communities could use zoning in this manner as long as they could produce evidence showing that negative " secondary effects " such as an increase in crime would accompany these establishments. But no evidence suggests that crimes such as prostitution — which sometimes springs up in areas surrounding adult-entertainment establishments — would increase around tattoo parlors.

" There is no case study that I am aware of, and no historical background, that shows that tattoo establishments will incite crime or have any negative effect, " asserts Lesser. " The courts are clear: you cannot be speculative about what could happen if certain kinds of businesses are allowed. There are lots of body-art places in Western Massachusetts where there’s been no trouble. I have one right next to my office. It is not an issue [here]. "

Elsbree of the BRA says no evidence of problems with body-art establishments was cited when the agency amended the regulations: " We just thought that if they did not want to go through the [conditional-permitting] process, they could go to the business-only areas. There is less worry there. "

But personal biases against tattooing should not determine how communities regulate body-art establishments, says Lesser. A tattoo parlor " is a purely commercial establishment and should be treated as one, " he says. " It is all about fear. There is a long history in communities of not liking what is different, of people who don’t want to look at other people who look different. It’s an unjustified fear. "

Hannan, meanwhile, thinks that maybe Massachusetts is simply going through a " post-prohibition hysteria " that will pass, and soon tattoo parlors will elicit nothing more than a yawn. " Tattoos have been legal in New York for three, maybe four years now, and everybody’s already over it, " he says. " You get on the subway in New York and nobody stares at you. But maybe that’s just because it’s New York. "