Link to Case
Keywords: First Amendment, Vagueness, Preliminary Injunction
Panel: Miner, Straub, and Wesley
Opinion by: Straub, Dissent by: Miner
Appeal from: D. Conn. (Underhill, USDJ)
Result below: Granted injunction against enforcement of ordinance regulating sexually oriented business
Result: Vacated
How much is "substantial portion" of smutty products?
Berlin, CT, “the geographic center of Connecticut,” apparently doesn’t like smutty stores. Section 14-242 of the Berlin Code of Ordinances prohibits any “Adult Oriented Store” from operating within 250 feet of any residentially zoned land. An Adult Oriented Store is one that derives “a substantial or significant portion of its stock and trade in Adult Books, Adult Videos, or Adult Novelties, or any combination thereof.” Plaintiff VIP of Berlin, Inc. (“VIP”) admittedly sells adult products, but they account for only 12% of its stock in trade (8,242 of 67,237 products). VIP contends that the ordinance is unconstitutionally vague and restricts expression sheltered by the First Amendment.
The majority of the panel holds that a “substantial or significant portion” is equivalent to “considerable quantity” or “a noticeable or measurably large amount” and therefore clearly applies to VIP, and that the discretion given to the town manager (who was generally unable to articulate any clear standard) did not constitute improperly “unfettered latitude” such as to void the ordinance. Accordingly, the district court erred in granting an injunction against enforcement of the ordinance.
Judge Miner dissents on the ground that the ordinance, while not unconstitutionally vague on its face, is applied by the town manager in an idiosyncratic, subjective manner that does not give fair notice to zoning permit applicants. “Under the test applied by the Town Manager, what is required is unknowable” and the ordinance “has been applied in an arbitrary way, without explicit and knowable standards”.
In our view, the dissent has the stronger argument.
