BERLIN, Connecticut- from www.newbritainherald.com — Berlin won what town officials say is an important victory Monday in its continuing fight against the opening of a Very Intimate Pleasures store on the Berlin Turnpike.

The Second Circuit Court of Appeals ruled that the total adult inventory, not a percentage of total inventory, qualified the store as an adult business.

Attorney Tom Gerarde of the Hartford firm of Howd & Ludorf, who argued the case for the town, called it “a groundbreaking decision.”

Monday’s ruling came after VIP admitted it would carry more than 8,200 adult items. This amount of inventory, rather than a percentage of inventory, qualified it as a business with a “significant” or “substantial” amount of adult products, according to Monday’s ruling.

Monday’s ruling overturned a decision last summer from U.S. District Court Judge Stefan Underhill in which he determined Berlin’s use of the terms “significant and substantial” were overly vague.

Berlin had denied VIP’s application to open a store as a violation of its sexually oriented businesses ordinance. The ordinance prohibits operation of a sexually oriented business within 250 feet of a residential area, a requirement the proposed VIP location doesn’t meet.

VIP sued to overturn the town’s denial, but Underhill’s decision noted that Berlin’s ordinance was likely unconstitutional, complicating the town’s defense of its denial.

The town has been fighting the opening of the adult store for three years.

After VIP opened a store at 717 Berlin Turnpike last July, the town appealed and Underhill closed the store temporarily.

“What’s left to argue is, ‘Can we regulate this type of business at all?’” said Deputy Mayor Steve Morelli, an attorney. “Are there secondary effects that allow us to regulate this business at all?”

VIP claims that adult products like those sold in book or video stores, and not used on the premises, do not have a negative secondary effect.

Therefore, towns should not be able to regulate these stores or tell them where they can be located.

“We’re arguing that they’re wrong,” Gerarde said. “They do have a negative, secondary effect. They impact real estate values and are likely to increase crime and prostitution.”

Both Gerarde and Morelli insist Monday’s ruling was an important victory.

“If we had lost, the VIP sign would be up tomorrow; the store would be open for business on Wednesday,” said Gerarde. “That can’t happen now unless they achieve a victory at trial.”

A trial date has been set for July 12.

Most towns in Connecticut fighting the opening of a VIP store have used “a 12 percent rule.” If the inventory is more than 12 percent “adult,” then it’s an adult store. Berlin rejected that.

“We knew if we said 12 percent, VIP could come in at 11 [percent],” Morelli said. “In essence, the Second Circuit said that [town manager} Denise McNair’s application of ‘significant and substantial’ standard to the inventory submitted by VIP was proper.”

“We know this is a war of attrition,” Gerarde said.

“If this is a war of attrition, it’s the Town of Berlin that will be worn down,” VIP Attorney Daniel Silver told The Herald.

“This was a minor skirmish in a major battle. This [latest ruling] had nothing to do with the principal issue: that the town had a right to regulate VIP at that location.”

Silver said the trial was held up pending the outcome of this appeal. As to the appeal, he said he and his client, VIP, were disappointed.

But, he pointed out that the latest ruling was “a two-to-one decision of first impression and they [the judges] didn’t address the issues. They didn’t even discuss the principal issue. Our issue was not the number of articles [sexually-oriented items] allowed. The issue in the decision was the proportion in reference to the rest of the inventory. This was the basis of Judge Underhill’s decision. The whole case wasn’t even discussed. They just glossed over it. It’s our opinion that the ruling is contrary to the well-developed law on the subject.”

Silver said he and his client will be filing in the Second Court of Appeals what is called an “enbanc” review petition; i.e., they are asking for a hearing before the entire U.S. District Court of Appeals. Silver is confident of the outcome.

“This decision is contrary to their [the judges’] own rulings,” he said. “The dissenting opinion sets it all out. However, the trial on the important main issue of this case is set for July 12.”

To Silver, what happened Monday was simply “a collateral side issue — never the main issue in the case.” He believes the issue that was lost in the Second Circuit will be rescinded.

“We are comfortable that VIP will still be opening its doors,” he said. “But, it will cost the town of Berlin a lot more money.”

Told that Attorney General Richard Blumenthal had weighed in on the case, Silver laughed. “I thought he was going to the United States Senate,” he said.

Blumenthal ‘pleased’ by court’s decision

Attorney General Richard Blumenthal Monday praised a federal appeals court decision upholding Berlin’s sexually oriented businesses ordinance. He said it strengthened the town’s defense of its decision denying a VIP sex store a zoning permit.

Blumenthal filed a friend-of-the-court brief in support of Berlin’s appeal.

“I am pleased that the appeals court upheld Berlin’s common sense restrictions on sexually oriented businesses, setting the stage for trial later this year,” Blumenthal said in a statement. “The court reaffirmed the right of towns and cities to regulate sexually oriented businesses, keeping them away from residential areas, schools, daycares and houses of worship.”

The attorney general said he would continue fighting to support Berlin’s battle to stop this store, assisting wherever possible during the upcoming trial.

“We need to make VIP’s application DOA, protecting children and residents from the well-documented harms of such businesses, including increased crime and decreased property values,” Blumenthal said. “As sexually oriented businesses proliferate across the state, Berlin is on the front lines, fighting to defend not just its residents, but countless other communities seeking to stave off unsavory establishments. I stand at their side, ready to fight for their right to restrict businesses that bring crime and property devaluation.”