Intimate Pleasures: 2nd Circuit Upholds Town’s Definition of Adult-Oriented Business

Connecticut- from www.law.com – Very Like many towns in Connecticut, Berlin is attempting to define “adult-oriented stores” — and keep them from opening up too close to schools and residential neighborhoods.

A Berlin ordinance defines any establishment having “a substantial or significant portion” of its stock in trade in adult books, videos or novelties as an “adult-oriented store.”

When the VIP (short for Very Intimate Pleasures) chain applied to open a store on the Berlin Turnpike, the town’s zoning officials received a list of the store’s proposed inventory. Of the 62,000 items, some 8,200, or 12 percent, were concededly adult books, videos or novelties.

Berlin officials decided 8,200 items were “substantial and significant,” and ruled that VIP of Berlin was not a “non-adult” business. That decision stopped VIP from moving into its preferred location, which officials say is too close to a residential neighborhood.

In response, VIP claimed that the language of the ordinance was unconstitutional, because it was not exact enough to prevent it from being applied arbitrarily.

Last summer, U.S. District Judge Stefan Underhill agreed the adjectives “substantial or significant” were unconstitutionally vague, and issued a preliminary injunction preventing town officials from using that language to deny VIP a license to open.

The town appealed, and in a legally substantial — and significant — win for Berlin, a three-judge panel of the 2nd U.S. Circuit Court of Appeals has just ruled that descriptive language in ordinances, and not just mathematical percentages, can be used to determine when a business can be classified as “adult-oriented.”

The town is represented by Thomas Gerarde, of Hartford’s Howd & Ludorf. “It’s very important,” he said, “that towns are able to use word definitions when deciding what qualifies as an adult use, rather than having to pick a concrete number, such as ‘a business with more than 10 percent adult products.'”

He acknowledged that when First Amendment issues are involved, courts don’t like to give town officials a great deal of discretion. That’s why numerical tests have been seen as more objective and easier to apply evenhandedly.

However, Gerarde’s concern is that when the definition of an adult-oriented store is expressed as a percentage of inventory items, stores can “game” the system by stocking thousands of regular greeting cards, small rocks with painted inscriptions and other innocuous low-cost items.

That explains the proposed 62,000 items in VIP of Berlin, said Gerarde. He added that even with “only” 8,200 admittedly “adult” items, the store owner should have understood that VIP had a “significant or substantial” degree of adult business, and would fall under the town ordinance.

“What they were trying to do was say they have so little adult product [as a percentage of inventory], they don’t meet our definition, and can therefore locate wherever they want,” said Gerarde.

In addition to inventory descriptions, Gerarde included photos of the company’s Manchester store in his brief. “It really does go the whole yardstick,” he said. “There’s some very benign stuff you could buy at Victoria’s Secret at Westfarms Mall. But then the curve bends downward to really, really, really graphic stuff. What they basically have done is like they’ve imported a hole-in-the wall adult bookstore and dropped it into another 15,000-square-foot store.”

He added that his legal research for the case was “quite an education,” and that he found himself at one point explaining to the court the differences between three types of artificial penises.

AGAINST PRECEDENT?

This First Amendment and zoning battle has additional ongoing issues that delay a final answer any time soon.

VIP is being defended by Daniel Silver, of New Britain’s Silver & Silver. He has carved out a niche First Amendment practice defending adult-oriented businesses. Silver said VIP of Berlin will be seeking a re-hearing before the full 2nd Circuit.

“I really believe, with due respect for the Second Circuit, that they have gone against their own precedent,” said Silver.

The majority opinion was written by Judge Chester J. Straub, joined by Richard C. Wesley. Roger J. Miner dissented, on the ground that the Berlin ordinance had no interpretive language that would help a business wanting to open an adult-themed store figure out what was or was not “substantial or significant.”

He cited a ruling by 2nd Second Circuit Judge Sonia Sotomayor, who recently was appointed to the U.S. Supreme Court. Her 2007 opinion in Thibodeau v. Portuondo stated that the issue is “whether the [ordinance] presents an ordinary person with sufficient notice of or the opportunity to understand what conduct is prohibited or proscribed.”

Silver said, “on the basis of that decision, we will be seeking en banc review. You can’t get any better authority than that.”

Gerarde said it would be highly unusual to prevail on a motion for rehearing by the entire 12-judge court.

SECONDARY EFFECTS

VIP of Berlin and the town already have a court date in July on another cutting-edge facet of the case. The town has created a separate zoning district for “sexually-oriented businesses.” Officials say the intent is to protect the rest of the town from the so-called “secondary effects” of strip clubs, adult movie theaters and adult bookstores.

The Berlin ordinance says it seeks to isolate sexually oriented businesses to preserve property values and neighborhood character, and “deter the spread of blight, and protect against the threat to public health from the spread of communicable and social diseases.”

Silver said his expert witness will testify that stores that sell adult books, videos and novelties to “take out” are not the same as an adult nightclub, and that the stores should not be regulated any differently than other retail establishments.

A third issue, in which VIP contested Berlin’s 250-foot setback requirement for adult businesses from residential neighborhoods, was upheld by the state Supreme Court last year as a matter where zoning law and town ordinances properly have concurrent jurisdiction.

Gerarde said the Berlin’s upcoming issues will be closely watched.

“This is a battle that’s being fought all over the country, where the adult bookstore industry is trying to separate itself from the live adult venues,” he said. “They’re saying, `We don’t have secondary effects. We can’t be regulated at all, and can go anywhere that commercial businesses are allowed.”

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