(CN) – An ordinance banning adult businesses in a Connecticut town is constitutional, the 2nd Circuit ruled, overturning an order barring its enforcement.
Specialty store VIP of Berlin sued the town of Berlin, Conn., after the town denied its March 2009 zoning application. The store apparently needed a license to operate as a sexually oriented business, because it sold a substantial amount of adult materials.
In July 2009, the district court issued a preliminary injunction banning the town from enforcing the ordinance, ruling that the definition of an “adult-oriented store” was unconstitutionally vague. The term was applied to any store with a “substantial or significant portion of its stock in trade” consisting of adult items. The lower court said the ordinance was unclear as to what portion of the store’s inventory would qualify it as an adult-oriented store.
VIP has a proposed inventory of more than 8,000 adult items-including books, magazines, DVDs and sex toys-making up 12 percent of its 67,000-item inventory.
Writing for the 2-1 appellate panel, Judge Chester Straub ruled that VIP should have known it qualified as a sexually oriented business.
“VIP’s proposed 8,242-item adult section clearly falls under the ordinance because the ‘part’ of its stock in trade devoted to adult merchandise is of ‘considerable quantity’ and ‘of a noticeably or measurably large amount,” Straub wrote.
The ordinance is not too vague, the Manhattan-based appeals court ruled, and it served the purpose of preventing the negative secondary impacts associated with sexually oriented businesses.
The 2nd Circuit vacated the injunction and remanded.
Dissenting Judge Roger Miner found the ordinance unconstitutionally vague because it didn’t provide a specific number or percentage of inventory that qualified a store as a sexually oriented business.
He noted that the store’s owner couldn’t pin down an actual number for “substantial,” and that the town manager’s determination that 8,000 adult items triggered the ordinance was subjective.