Tattooed Man Takes Mall Policy to Court
THOSE who walk the aisles of the Mall Internacional in Alajuela these days have a certain look, and it is not punk hair, large tattoos, multiple piercings, or anything mall security guards decide makes a person look like a bathroom vandal or gang member.
Fulton Arias is a tattooed and pierced 25-year-old man who visited the Mall Inter-nacional almost daily until the beginning of January, when a security guard barred his entrance because of a new mall policy.
When he tried to enter, accompanied by his wife, a guard told him that people like him were not allowed. He thought it was a fluke – he had visited the place so often he was friends with some of the shop owners and guards, and had once been hired for a performance there, the painful task of laying down on a bed of nails.
“WHAT do you mean ‘people like me,’ I asked him,” Arias said. “And he said people with tattoos and piercings.”
Several weeks later, Arias returned to the mall with a lawyer, Roy Rodríguez. Again he was blocked at the door by a guard.
“He told Roy that people like me rob stores and make the mall look ugly,” Arias said.
Arias decided to file a discrimination case before the Constitutional Chamber of the Supreme Court (Sala IV) in late January. Against his expectations, the court agreed to review it.
Arias says he is not one of the kids who carve up bathroom stalls, nor is he part of a gang. He is married, owns an advertising agency called Nitro Art, builds and sells houses, and is inclined to hire a lawyer to press charges.
A lawyer in Rodríguez’s firm, Alvaro Sagot, now represents Arias in the case. Incidentally, he also has a tattoo, though his is on his back and is normally hidden beneath a shirt.
“I consider the fact that they barred his entry a violation of the human right to equality and the right to bear living art.
Those are rights that our Constitution guarantees in Article 33, which states that we are all equal before the law,” Sagot said.
It is clear that businesses cannot reject people because of their race, sex or other such conditions over which a person has no control.
But since people can choose whether or not to sit under a hot needle in a tattoo parlor, are policies that discriminate against them not the same as the “no shirt, no shoes, no service” signs and other such dress codes?
“Electing to get a tattoo is like choosing a religion,” Sagot answers. “As a business owner, I would have the right to manage the place how I want. But people who look different, who dress differently, they’re different from people who damage my property. Each case should be taken separately, rather than discriminating against all people who look a certain way.”
THE administrative committee of the Mall Internacional does not agree. Though other large malls, including the SanPedroMall and the new Terra Mall, do not have such policies, lawyer Armando Céspedes, who sits on the Mall Internacional’s committee, defends the mall’s right to admit only the people who conform to its image.
“It’s a family shopping center,” he said. “We reserve the right as a private enterprise to implement dress codes. It’s the same as our other policies – we don’t allow people who carry weapons or who behave in destructive ways, or who don’t wear shoes, for example.”
He clarified, however, that the media has misrepresented the mall’s policy. It is not against people who have tattoos. Some of the business owners there have them and one of the businesses in the mall is a tattoo parlor.
“WE are talking about people who send very strong messages with their appearances – their hair, their clothes, and their piercings and tattoos. It’s absurd to think that all people with tattoos are the same. But, sadly, we have had to make some rules. It’s not the mothers shopping with their children who paint graffiti in the bathroom stalls,” Céspedes said.
The decision as to who may enter is a judgment call left up to the security guards. Arias said the policy is not carried out fairly. The guards reject young men more often than young women, he said, adding that he does not think they would reject foreigners.
“When a person is eccentric there is always a price to pay,” Céspedes said. “The price of losing friends, of not being able to find work, and of not being allowed in certain places.”
Arias said he thinks that point is moot because tattoos and piercings are in style, and not necessarily signs of delinquency.
“The subject is very delicate and very dangerous,” he said. “That man has to wake up and realize that he lives in 2004. Professionals have tattoos.”
THE Sala IV decision, which Sagot said he expects in three to six months, could have a deceptively far-reaching impact in the context of security and gang violence. Céspedes mentioned a rise in gang activity during the last eight years since the Mall Internacional has opened, and associated tattoos with gang membership.
The most common gangs in Costa Rica, called barras deportivas, associate themselves with a soccer team and have gained a reputation for violence and vandalis.
THE advent in the 1990’s of the maras, violent gangs in El Salvador, Guatemala and Honduras, has prompted some severe legislation in those countries.
Members of those gangs often bear tattoos that proclaim their gang affiliation, and some young men are painted literally from head to toe.
Honduras recently passed a law that mandates up to 12 years in prison for membership in such gangs, and it is policy for police to round up people with the telltale markings – whether or not there is evidence they have committed a crime.
The San José-based children’s rights advocacy group Casa Alianza and the Center for Justice and International Law this week presented their concerns for human rights violations against those thousands of jailed youth to the Inter-American Commission of Human Rights in Washington D.C.
“WE consider that the new anti-gang laws approved by Honduras and El Salvador, and being considered by Guatemala, are contrary to the rights of children as defined by the American Convention on Human Rights,” said Bruce Harris, regional director of Casa Alianza. “Furthermore, countries should be taking the measures needed in order to give the children opportunities, not jailing them without evidence other than a tattoo.”
Sagot agrees with Harris that the Honduran gang laws violate human rights.
“Thank God in Costa Rica there is more tolerance,” he said.
If the Court decides in favor of Arias, Céspedes said that he will respect the decision, he does not share the belief that the mall’s policy is a violation.
“Every business must have the right to decide who can enter and who cannot,” he said.
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