ENCINITAS — In a 3-1 vote, the Planning Commission refused to lift a restriction placed on the owner of a Cardiff-by-the-Sea tattoo parlor May 1, which prevents the transfer of the minor-use permit with the sale of the business.

The owner, Gary Hernandez, requested a minor-use modification in order to transfer the ability to operate a tattoo parlor to the new owner should he decide to sell the business.

Hernandez signed an unusual nontransferability clause in 2003 according to City Planner Kerry Kusiak. “Typically, use permits run with the land,” Kusiak said.

Commissioner Gene Chapo said the stipulation was placed with the owner in order to have personal accountability in this case.

Concerns from residents were communicated to staff beginning last summer via e-mail that the business had already been sold, that the windows were too dark not allowing the lobby to be visible and that loitering was occurring in the small shopping center at the corner of San Elijo Avenue and Aberdeen Drive.

Kusiak said an additional complaint was filed with county health officials last year regarding the safety of the procedures at the business. However, all code violations with the city were either unsubstantiated or were corrected to the satisfaction of code enforcement officials.

What began as Body Temple Tattoo changed its name to Black Magic Tattoo in 2007 when Hernandez sought to sell the business. The buyer filed a fictitious business name application, but no money ever changed hands according to Hernandez.

After he filed preliminary paperwork to sell the business, Hernandez claimed to be unaware of the restriction until he was notified by a city official that the permit did not run with the land but with the owner.

Commissioner Tom McCabe spoke as a private citizen after recusing himself from the proceedings due to a conflict of interest. He recalled the original application in 2003 and the controversy that surrounded the tattoo parlor. “I think it’s ironic that he (Hernandez) doesn’t recall the restriction,” McCabe said.

Other residents also addressed the commission with concerns about the atmosphere around the tattoo parlor. Kathryn Bailey, a Cardiff-by-the-Sea resident who manages the Rancho Coastal Humane Society Thrift Shop, said changes happened when a new owner brought in new staff and changed the name of the business. “They’ve adversely affected the shopping center,” Bailey said. “The type of people they have hanging out there now is not what we want.”

Bailey urged the panel to deny the modification. “My thing is, if you required it to start with, it was a stipulation in the permit, you shouldn’t roll over on it now,” Bailey said.

Laurie Greene of Encinitas unsuccessfully appealed the original decision of the commission in 2003 to award a minor-use permit. She said she lodged a complaint with county health officials last year when she got an infection after receiving a second ear piercing at the business.

Commissioners expressed concern that the business had already been sold and that Hernandez claimed not to know about the restriction. “We don’t have any evidence that it was sold,” Kusiak told the panel.

“I feel like we haven’t seen good faith on the part of the owner,” Chapo said.

Commissioner Paul Van Slyke said he visited the business the day of the meeting and thought it appeared to be in compliance. He took issue with the restrictive nature of the condition on the sale. “It would bother me if I couldn’t sell my business,” Van Slyke said.

However, he cited past code violations as a reason to leave the restriction in place.

As a result of the commission’s vote, the new owner would have to apply for a minor-use permit to operate a tattoo parlor.