How Much Is 'Too Much'? Berlin Won't Say

BERLIN, Conn.—Back in July, boutique/video retailer VIP of Berlin won a preliminary injunction to prevent the town of Berlin (pronounced BER-lin) from enforcing its existing "sexually oriented business" ordinance, which says that an "adult oriented store" can't locate within 250 feet of any residentially zoned land, whether or not any residence currently sits on the land.

And how does one tell if a business is "sexually oriented"? No one knows—least of all the Second Circuit U.S. Court of Appeals, which on Jan. 25 overturned VIP's injunction. So VIP's 15,000-square-foot location at 717 Berlin Turnpike remains closed.

"When the district court granted the preliminary injunction, that gave us the ability to open," explained First Amendment attorney Jennifer Kinsley, who represents the retailer, "but then the Second Circuit granted a stay of that decision and so the business was never able to open."

At issue is the section of Berlin's ordinance which defines an "adult oriented store" as any establishment which has "a substantial or significant portion of its stock in trade in Adult Books, Adult Videos or Adult Novelties." [Emphasis in original] While the meaning of the term "substantial or significant" has been the subject of much litigation by adult retailers in communities around the country—sometimes successfully, sometimes not—the Second Circuit raised the inherent vagueness of the terms to a new level.

"As one of the most fundamental protections of the Due Process Clause, the void-for-vagueness doctrine requires that laws be crafted with sufficient clarity to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited and to provide explicit standards for those who apply them," the Second Circuit, quoting from Thibodeau v. Portuondo, correctly noted, adding the explanation from Hill v. Colorado, "A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement."

The issue, then, seems fairly clear-cut, especially if one is aware, as the opinion notes, that Berlin town manager Denis McNair testified, when asked her definition of "substantial or significant portion," that they meant "meaningful to either the business or the Town of Berlin. ... It would have import to the business."

"By the list that I saw, there were over 8,000 items that the applicant had said were adult products ... which to me is substantial." McNair also stated, "'Portion' to me means an amount. A portion of something is an amount, a part of something."

"A portion of something is an amount"—doesn't get clearer than that, does it? Or does it?

"Basically what they're saying is that you can construe 'substantial or significant portion' to mean whatever you want if it's for the health, safety and welfare of the town," Kinsley assessed, "so now they're saying 'portion' doesn't mean percentage, it means a raw number, which is troublesome, because you could be a hole-in-the-wall store that sold one dildo and maybe not be substantial, but if you're a humongous store, which this is, and you want to have just a small part devoted to adult, that's too much because your store's big and so that raw number is too big. Even after this decision, I don't understand what 'substantial or significant' means. If we understood, we'd comply."

Indeed, VIP came back to McNair several times with lists of the adult products it expected to carry, starting with 8,242 items out of a total inventory of 67,237, and after that list was rejected, the store reduced the number several times, with subsequent numbers being rejected each time as too "substantial or significant."

The apparent rationale for rejecting VIP's list was the town's alleged purpose in adopting the ordinance in the first place, which was to "promote the health, safety and general welfare of the residents of the town and[,] reduce or eliminate the adverse secondary effects of such sexually oriented businesses, protect residents from increased crime, preserve the quality of life, preserve the property values and the character of surrounding neighborhoods and businesses, deter the spread of blight, and protect against the threat to public health from the spread of communicable and social diseases."

Much of that rationale was not part of the consideration of the justification for the preliminary injunction, though AVN has previously analyzed the claims of the town's "hired gun," UC-Irvine's Dr. Richard McCleary, whose report stated that, for stores like VIP which had no on-site adult viewing booths, they nonetheless posed "large, statistically significant ambient crime victimization risks." McCleary's findings were analyzed by UC Santa Barbara sociologist Dr. Daniel Linz and two criminology professors from the University of Texas and found to reveal "no credible scientific evidence of secondary effects."

"That part of the case was not on appeal," Kinsley noted. "We're still dealing with that at the trial court level. But they're saying you can construe what is meant by 'substantial or significant portion' by what you think is going to cause harm to the neighborhood. It's impossible to know that."

Also apparently not on the table for the preliminary injunction issue was VIP's reputation in Connecticut, as evidenced by its three other stores in the state.

"There are three large successful businesses already in operation, and I think the towns in which they're located would tell you that they're good businesspeople and that they run a clean, nice, upscale business," Kinsley said. "They [the Second Circuit] were saying that the history between the town and this business doesn't really matter, so they were saying that the prior applications and whatever was done doesn't really matter, which I don't think you can look at it as a blank slate like that, because we raised an as-applied challenge versus a facial challenge. When you raise an as-applied challenge, you're arguing that this is unconstitutional as applied to us, so you have to look at the way the town has applied this language historically against this business, and when you do that, it makes no sense; you can't gleam any meaning from it other than 'We just don't want you here, period.'"

The bottom line is, the Berlin VIP store remains closed unless and until an en banc panel of the Second Circuit reverses the three-judge panel's decision, though Kinsley won't say whether she will ask for en banc consideration. If she doesn't, or if an en banc panel upholds the current decision, the next step will be a trial of the case in U.S. District Court, where the company's reputation and the apparent junk science of McCleary's report will be issues for a jury.

In the meantime, perhaps some businessperson in Berlin will attempt to open a store that sells just one type of dildo or vibrator, perhaps to test what the town manager will construe "substantial or significant portion" to mean in that case.