VIP OF BERLIN, LLC, Plaintiff-Appellee, v. TOWN OF BERLIN and Denise McNair, in her official capacity as Town Manager, Town of Berlin, CT, Defendants-Appellants, Herman Middlebrooks, Jr., in his official capacity as Town Manager, Town of Berlin, CT, Defendant.
Docket No. 09-2950-cv.
United States Court of Appeals, Second Circuit.
Decided: Jan. 25, 2010.
593 F.3d 179
Thomas R. Gerarde (Katherine E. Rule, on the brief), Howd & Ludorf, LLC, Hartford, CT, for Defendants-Appellants.
Jane R. Rosenberg, Assistant Attorney General (Richard Blumenthal, Attorney General for the State of Connecticut, on the brief) Connecticut Attorney General‘s Office, Hartford, CT, for Amicus Curiae State of Connecticut.
Judge MINER dissents in a separate opinion.
STRAUB, Circuit Judge:
Defendants-Appellants Town of Berlin (“Berlin“) and Denise McNair appeal from a July 2, 2009 opinion and order of the United States District Court for the District of Connecticut (Stefan R. Underhill, Judge) preliminarily enjoining them from enforcing Section 14-242 of the Berlin Code of Ordinances against Plaintiff-Appellee VIP of Berlin, LLC (“VIP“). The District Court granted the injunction at issue here because it concluded that VIP had shown a clear likelihood of success on the merits of its claim that the ordinance‘s definition of an “adult oriented store” was unconstitutionally vague as applied to a zoning application that VIP submitted on March 26, 2009.
Berlin‘s ordinance defines any establishment having “a substantial or significant portion of its stock in trade in Adult Books, Adult Videos or Adult Novelties” as an “adult oriented store.”
FACTUAL AND PROCEDURAL BACKGROUND
VIP owns an approximately 15,000 square-foot commercial building located at 717 Berlin Turnpike in Berlin, Connecticut. The property is presently zoned for retail use. Because the property is located within 250 feet of a residentially zoned area, however, VIP may not operate a retail store at that location if it is classified as an “Adult Oriented Store” under Berlin‘s sexually oriented business (“SOB“) ordinance.
I. Berlin‘s Current Ordinance and VIP‘s March 2009 Zoning Application
Berlin‘s current SOB ordinance defines an “Adult Oriented Store” as any establishment having “a substantial or significant portion of its stock in trade in Adult Books, Adult Videos or Adult Novelties or any combination thereof.”
promote the health, safety and general welfare of the residents of the town and[,] reduce or eliminate the adverse secondary effects of such sexually ori
ented 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.
On March 26, 2009, VIP submitted an application for a zoning permit, along with a proposed inventory list and proposed floor plan. According to this March 2009 application, twelve percent of the stock in trade at VIP‘s Berlin store would consist of books, magazines, DVDs, and novelties or products that could be defined as “adult videos,” “adult books,” or “adult novelties” (collectively, “adult” products) under the Berlin SOB ordinance.2 Of VIP‘s total inventory of 67,237 products, VIP represented that 8,242 of those items could be classified as adult products such as DVDs for rent, DVDs for sale, magazines, “sex positive lubricants,” and “sex positive toys.”
On May 11, 2009, Berlin‘s Chief Zoning Enforcement Officer, Hellyn R. Riggins, denied VIP‘s zoning application on the ground that the Berlin Town Manager, Denise M. McNair, had determined that VIP‘s proposed use would require an SOB license, which VIP lacked.
II. VIP‘s Prior Zoning Applications and Berlin‘s Prior Ordinance
Although the District Court determined only that Berlin‘s current ordinance is unconstitutionally vague as applied to VIP‘s March 2009 zoning application, the District Court considered the parties’ prior dealings in making that determination. Before submitting the March 2009 zoning application that is at issue here, VIP previously had applied for a certificate of zoning compliance, in an application dated July 25, 2006, seeking to open an “Adult Bookstore[,] including books, magazines, videos, clothing, novelties—no on-site presentation of any materials sold.” In a letter accompanying this application, VIP stated that “less than a majority of its stock and trade” would consist of items of an “adult” nature. Under Berlin‘s SOB ordinance in place at the time of VIP‘s first zoning application, the definition of an “Adult Bookstore” or “Adult Video Store” was an establishment having a “majority of its
In the meantime, on October 5, 2006, the Berlin Town Council amended its SOB licensing ordinance to create a single category of business known as an “Adult Oriented Store,” which is defined as any establishment having “a substantial or significant portion of its stock in trade in Adult Books, Adult Videos or Adult Novelties or any combination thereof.”
After Berlin rejected VIP‘s July 2006 application and amended its ordinance, VIP filed a new application for a zoning permit on March 30, 2007, along with a proposed inventory list, representing that none of its proposed items for sale could be construed as “adult use,” including “adult novelty” or “adult video” as defined in the Berlin SOB ordinance. Berlin‘s Chief Zoning Enforcement Officer, Hellyn R. Riggins, apparently disagreed with VIP‘s characterization of its inventory. In response to VIP‘s March 2007 application, Riggins stated: “I have carefully reviewed the list of items that you propose to sell [and have] personally viewed these items at your other locations in the state.” Riggins concluded that “[a] significant or substantial portion of these items constitute adult novelties under the current definitions found in our [SOB] Ordinance.”
In June 2007, VIP resubmitted its zoning application with a revised inventory list that eliminated some of the items that were of concern to the town zoning officer. After submitting that application, the zoning officer indicated orally to VIP‘s principal, Dominick DeMartino, that she intended to deny that application for the same reason that she denied the March 30 application. As a result, VIP withdrew its June 6 zoning application on June 8, 2007.
III. District Court Proceedings and Decision
In November 2006, after its first zoning application was denied, VIP brought an action in the District Court pursuant to
On June 23, 2009, the District Court heard oral argument, as well as testimony from DeMartino and McNair. DeMartino, VIP‘s principal, testified that he eventually wishes to open an adult store in Berlin pending the outcome of another segment of this litigation. However, he testified that currently he is attempting to comply with the SOB ordinance and does not understand what he needs to do to avoid
On July 2, 2009, the District Court granted VIP‘s motion for a preliminary injunction.3 See VIP of Berlin, LLC v. Town of Berlin, 644 F.Supp.2d 151 (D.Conn.2009). Specifically, the District Court concluded that VIP showed (1) that it will suffer irreparable harm in the absence of an injunction because it is being prohibited from exercising its First Amendment rights and (2) a clear or substantial likelihood of success on its claim that the Berlin ordinance‘s definition of an SOB is unconstitutionally vague as applied to VIP‘s March 2009 zoning application. With regard to the likelihood of success on the merits, the District Court reasoned that “the statute does not give the person of ordinary intelligence a reasonable opportunity to know what portion of stock in trade would not qualify as substantial or significant or provide explicit standards for those who apply it.”
DISCUSSION
We review a district court‘s decision to grant or withhold a preliminary injunction for abuse of discretion. Vincenty v. Bloomberg, 476 F.3d 74, 83 (2d Cir. 2007). A district court exceeds its allowable discretion if its decision “rests on an error of law” or a “clearly erroneous factual finding,” or if its decision “cannot be located within the range of permissible decisions.” Id. (internal quotation marks omitted). “The ultimate question ... remains whether, in light of the applicable standard, the court has abused its discretion; and ‘[i]f the underlying constitutional question is close, therefore, we should uphold the injunction.’ ”4 Id. (quoting Ashcroft, 542 U.S. at 664, 124 S.Ct. 2783). Where a party seeks a preliminary injunction that challenges “government action taken in the public interest pursuant to a statutory or regulatory scheme” and that would “alter, rather than maintain, the status quo,” the moving party must demonstrate irreparable harm and a “clear” or
I. Vagueness Doctrine
“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.” Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir.2007) (internal citations and quotation marks omitted). “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.” Hill v. Colorado, 530 U.S. 703, 732 (2000).
In reviewing a statute‘s language for vagueness, “we are relegated ... to the words of the ordinance itself, to the interpretations the court below has given to analogous statutes, and perhaps to some degree, to the interpretation of the statute given by those charged with enforcing it.” Grayned v. City of Rockford, 408 U.S. 104, 110 (1972) (internal quotation marks and footnotes omitted). “The degree of vagueness tolerated in a statute varies with its type: economic regulations are subject to a relaxed vagueness test, laws with criminal penalties to a stricter one, and laws that might infringe constitutional rights to the strictest of all.” Rubin v. Garvin, 544 F.3d 461, 467 (2d Cir.2008). When a statute “is capable of reaching expression sheltered by the First Amendment, the [vagueness] doctrine demands a greater degree of specificity than in other contexts.”5 Farrell v. Burke, 449 F.3d 470, 485 (2d Cir.2006) (internal quotation marks omitted).
A. Berlin‘s SOB Ordinance Survives an “As Applied” Vagueness Challenge
1. Notice
The first way that a law may be unconstitutionally vague as applied to the conduct of certain individuals is “if it fails
In the present case, Berlin‘s ordinance defines a sexually oriented business, or SOB, as an establishment that has a “substantial or significant portion” of its stock in trade in adult merchandise. VIP asserts that this definition is so vague that it fails to provide VIP with notice that its proposed inventory of 8,242 adult items—approximately twelve percent of its total inventory of 67,237 items—would qualify it as an SOB. VIP further argues that, because the statute uses the words “substantial or significant portion,” it would be inappropriate to look at the absolute number of adult items being sold, as opposed to the proportion of the store that is adult-oriented, when determining whether a business is an SOB. Such a reading, however, ignores the common, ordinary meaning of the ordinance‘s words. See generally Perrin v. United States, 444 U.S. 37, 42 (1979) (“A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.“). One of the common definitions of the term “substantial” is “of ample or considerable amount [or] quantity.” 15 OXFORD ENGLISH DICTIONARY 67 (2d ed.1989); see also WEBSTER‘S THIRD NEW INT‘L DICTIONARY 2280 (1993) (defining substantial as “considerable in amount“). Similarly, one common definition of the term “significant” is “of a noticeably or measurably large amount.” Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/significant (last visited Jan. 22, 2010); see also WEBSTER‘S THIRD NEW INT‘L DICTIONARY 2116 (1993) (defining significant as “important, weighty, notable“). “Portion” simply means a “part” of some-thing. WEBSTER‘S THIRD NEW INT‘L DICTIONARY 1768 (1993). Applying these definitions to the present case, 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.”6
In addition to the plain meaning of the ordinance‘s wording, which has been used in a wide variety of statutory contexts, the ordinance‘s stated purpose—preventing the adverse secondary effects associated with the presence of SOB‘s—provides additional clarity and guidance. See Grayned, 408 U.S. at 112 (noting that “[a]lthough the prohibited quantum of disturbance is not specified in the ordinance, it is apparent from the statute‘s announced purpose that the measure is whether normal school activity has been or is about to be disrupted” (emphases added)). Given the ordinance‘s stated purpose, as well as the plain meaning of the ordinance‘s words, the phrase “substantial or significant portion” clearly encompasses
Despite the ordinance‘s plain meaning and stated purpose, the District Court agreed with VIP that the ordinance was impermissibly vague. Specifically, the District Court noted that the “language ‘substantial or significant portion of its stock in trade’ suggests that a retail establishment could have something more than zero percent adult media and adult products without being classified as an ‘adult oriented store.’ ” VIP of Berlin, LLC v. Town of Berlin, 644 F.Supp.2d 151, 162 (D.Conn.2009). The District Court concluded that “it is not readily apparent from the face of the ordinance what amount of stock in trade would qualify as a substantial or significant portion.” Id. We have previously noted that, “[t]he evaluation of whether [a statute] ... is vague as applied to [a litigant] must be made with respect to [the litigant‘s] actual conduct and not with respect to hypothetical situations at the periphery of the [statute‘s] scope.” Perez v. Hoblock, 368 F.3d 166, 175 (2d Cir.2004); see also Rubin v. Garvin, 544 F.3d 461, 468 (2d Cir.2008) (“Because we must examine the complainant‘s conduct before analyzing other hypothetical applications of the law, we turn first to his as-applied challenge.” (internal quotation marks and citation omitted)). To be clear, a court may analyze whether a reasonable person would understand that the litigant‘s conduct was prohibited. See Hill, 530 U.S. at 732. However, in the context of an as-applied vagueness challenge, a court‘s analysis should be confined to the litigant‘s actual conduct, and a court should not analyze whether a reasonable person would understand that certain hypothetical conduct or situations violate the statute. See Perez, 368 F.3d at 175; see also Farrell, 449 F.3d at 494.
Here, although its decision related only to VIP‘s as-applied vagueness challenge, the language and logic of the District Court at times slipped into hypothetical analysis, questioning where in general the line between adult and non-adult businesses is drawn. The pertinent issue, however, is not whether a reasonable person would know what amount of adult merchandise, in general, would qualify a business as adult oriented. Rather, the issue in this particular as-applied challenge is whether a reasonable person would know that a proposed inventory of 8,242 adult items would qualify VIP as an adult oriented store. Whether or not the ordinance provides a bright line rule about the specific amount of adult media that would qualify a store as “adult oriented” in hypothetical applications, there is no doubt that, as applied to VIP, the language of the SOB ordinance covers VIP‘s March 2009 zoning application.8 As noted earlier,
In addition to slipping into hypothetical analysis in the midst of determining whether the ordinance was vague as applied to VIP‘s March 2009 zoning application, the District Court relied on several inapposite cases in reaching its conclusion. In particular, of the three state supreme court cases relied upon by the District Court, two involved language different from the language at issue here. In 105 Floyd Road, Inc. v. Crisp County, 279 Ga. 345, 613 S.E.2d 632, 634 (2005), the issue was whether the phrase “substantial business purpose” was unconstitutionally
In sum, the plain meaning and stated purpose of Berlin‘s ordinance, as applied to VIP‘s March 2009 zoning application, provide adequate notice that the size of VIP‘s proposed inventory would qualify it as an “adult-oriented” store under the ordinance. In concluding to the contrary, the District Court‘s decision at times slipped into hypothetical analysis ill suited for analyzing an as-applied vagueness challenge and failed to consider that the plain meaning of the ordinance encompasses not only the percentage of adult inventory items, but also the absolute number of adult inventory items.
2. Sufficiently Clear Enforcement Standards
The second way in which a statute can be found unconstitutionally vague is if the statute does not “provide explicit standards for those who apply [it].” Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir.2007) (internal quotation marks omitted). When analyzing this issue, a court may determine that a statute provides adequate guidance if either: (1) the “statute as a general matter provides sufficiently clear standards to eliminate the risk of arbitrary enforcement;” or (2) “even in the absence of such standards, the conduct at issue falls within the core of the statute‘s prohibition, so that the enforcement before the court was not the result of the unfettered latitude that law enforcement officers and factfinders might have in other, hypothetical applications of the statute.” Farrell v. Burke, 449 F.3d 470, 494 (2d Cir.2006).
For the same reasons that it gave VIP adequate notice regarding its March 2009 application, the language here, which defines an SOB as an establishment that has a “substantial or significant portion” of its stock in trade in adult merchandise, does not encourage or authorize arbitrary
In addition to a statute‘s plain meaning and stated purpose, courts should determine whether a statute provides sufficiently clear enforcement standards by analyzing “perhaps to some degree ... the interpretation of the statute given by those charged with enforcing it.” Grayned v. City of Rockford, 408 U.S. 104, 110 (1972). In the present case, McNair, Berlin‘s town manager, testified that she reviews zoning applications “on an individual basis” and that, in her view, the phrase “substantial or significant” means “meaningful to either the business or the Town of Berlin.... It would have import to the business.” When asked why she denied VIP‘s March 2009 zoning application, McNair stated, “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 stated, “‘Portion’ to me means an amount. A portion of something is an amount, a part of something.” McNair further stated that “[t]he ordinance, in the way I‘m asked to apply it, is to assist in the goals of the town, the security of its people, the health, welfare, and I believe it‘s necessary to look at the cases individually, not be arbitrary but to really understand and take a look at each application as applied.” McNair‘s testimony is consistent with the stated purpose and plain meaning of the ordinance as described earlier in this opinion. McNair‘s statement that she reviews zoning applications “on an individual basis” and that the ordinance‘s terms do not necessarily trigger a specific percentage of stock in trade or a specific absolute number of trade items does not alter that conclusion. See Grayned, 408 U.S. at 114 (noting that “enforcement requires the exercise of some degree of ... judgment“).
Furthermore, even if, as the dissent asserts, Berlin‘s ordinance did not provide sufficiently clear enforcement standards, VIP‘s as-applied vagueness challenge still fails. As noted earlier, even if a statute does not include clear enforcement standards, it may still survive a void-for-vagueness challenge if the “conduct at issue falls within the core of the statute‘s prohibition.” Farrell, 449 F.3d at 494. In Farrell, a convicted sex offender challenged a condition of his supervised release that prohibited him from possessing “pornography,” arguing that the term pornography was unconstitutionally vague on its face and as applied to him. Although we did “not disagree with Farrell‘s argument that the term ‘pornography’ is inherently vague,” and “[a]lthough the actors in Farrell‘s case had divergent views on what constituted ‘pornography’ and why,” id. at 490, we nevertheless rejected Farrell‘s vagueness challenge, id. at 492. We reasoned that “[w]hether or not the term ‘pornography’ is inherently vague,” the items possessed by Farrell fit “within any reasonable understanding of the term,” id. at 490, and “[n]o reasonable officer could have doubted that Farrell‘s possession ... violated the terms of his parole agreement,” id. at 494.
Here, because the portion of VIP‘s business devoted to adult merchandise is so substantial, VIP‘s proposed retail establishment falls under the “core” of the ordinance‘s prohibition. For the reasons discussed above, VIP‘s proposed 8,242-item adult inventory, which constitutes twelve percent of its stock in trade, falls “within any reasonable understanding of the [ordi-
CONCLUSION
For the reasons stated above, the preliminary injunction order of the District Court is VACATED and the case is REMANDED for further proceedings consistent with this opinion.
MINER, Circuit Judge, dissenting:
My dissent is prompted by my opinion that VIP is likely to succeed on its claim that Berlin‘s ordinance was unconstitutionally vague as applied to the zoning application that VIP submitted on March 26, 2009.
I accept the proposition that the phrase “substantial or significant portion of its stock in trade” is not unconstitutionally vague on its face. This is so because that phrase generally does not “fail[ ] to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits” and because it does not “authorize[ ] or even encourage[ ] arbitrary and discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000). The phrase may be unconstitutional as applied, however, because
there may be instances where an adult bookstore would be unsure of whether its stock, floorspace, or revenue is made up of a “significant or substantial portion” of adult material, [and] there are myriad instances in which it would not. If, for example, Victoria‘s Secret sold a few copies of an adult magazine along with its regular stock of lingerie, it certainly would not wonder if the ordinance applied to it. Or, if the store chose to carry nothing but adult videos and toys, it would have no doubt that it was required to obtain an SOB [sexually oriented business] license to do so. In short, in many situations, “people of ordinary intelligence” would clearly understand whether or not the ordinance applied to them.
Doctor John‘s, Inc. v. City of Roy, 465 F.3d 1150, 1158 (10th Cir.2006) (emphasis supplied). “Many” is not “all,” and the situation at hand lies somewhere in be-
Continuing with its analysis of the facial validity of an ordinance similar to the one at hand, the Tenth Circuit opined:
In the same way, in many cases the ordinance cannot be said to permit arbitrary enforcement.... There may be occasions where arbitrary enforcement might occur, but the standard given to officials satisfies this court that such a risk is not present to such a degree as to justify facial invalidation.
Id. (emphasis supplied).
This is a case in which a person of ordinary intelligence would not clearly understand whether the ordinance applied to him and where arbitrary enforcement has occurred, all due to the manner in which the decision-maker treated VIP‘s application. In examining the as-applied vagueness challenge before us, we are constrained to determine whether (1) the ordinance gives a reasonable opportunity to one of ordinary intelligence to know what is required; and (2) to consider whether the ordinance provides explicit standards that govern its application. See Rubin v. Garvin, 544 F.3d 461, 468 (2d Cir.2008).
In applying the ordinance to VIP, the decision-maker, Denise McNair, Town Manager for the Town of Berlin, reworked the ordinance so as to provide her own “spin” to the phrase “substantial or significant portion of its stock in trade,” resulting in a decision having no reference to the ordinance itself. Her testimony also demonstrated considerable confusion about the meaning of the ordinance. For example, she testified as follows:
I think that substantial or significant means meaningful to someone, myself—or the Town of Berlin, I should say, not myself. But meaningful to either the business or the Town of Berlin. I think of a significant other. I think I said that in my deposition. When I hear these words, it‘s somebody who is meaningful to the other person it‘s not just a friend so it would have some meaning. It would have import to the business. It would have meaning to the town under the ordinance.
To Ms. McNair, “meaningful” entails a subjective judgment. Indeed, it is a word that is vitalized only in the eye of the beholder. The dictionary defines it as “having a meaning or purpose: capable of being understood or interpreted: requiring or done with understanding and intent.” WEBSTER‘S THIRD NEW INT‘L DICTIONARY 1399 (1981). “Having a meaning or purpose” surely does not illuminate the phrase in question. Moreover, “meaningful” does not serve as a synonym for “substantial” or “significant” as a modifier of “a portion of its stock in trade,” because a “meaningful portion of its stock in trade” establishes no objective standard at all. This is especially so in light of Ms. McNair‘s formulation of substantial or significant as “meaningful to either the business or the town.” (emphasis supplied). And the term “significant other” is especially inappropriate to an assessment of compliance with the ordinance, since it is defined as “a person who is important to one‘s well-being; especially: a spouse or one in a similar relationship.” MERRIAM-WEBSTER ONLINE DICTIONARY, at http://www.merriam-webster.com (last visited Jan. 22, 2010) (emphasis omitted).
To compound her unconstitutional application of the ordinance, Ms. McNair insisted that she “was unable to supply a mathematical definition” and “didn‘t really look at a percentage,” although the ordinance clearly revolves around a measure of quantity, i.e. what portion of stock in trade is
Ms. McNair described her methodology for examining VIP‘s application as follows:
Basically I looked at the application. I looked at the list of what I would have called “inventory” that was attached to the application. I read our ordinance, as it was fairly new to me in my position as well as to the town. And I, based on those items and my own experience, I determined that it did need a license for a sexually oriented business.
Such a methodology cannot be said to provide a reasonable opportunity to VIP to know what is required. Under the test applied by the Town Manager, what is required is unknowable.
The lack of any instructions or guidance for interpreting the “substantial or significant” language of the ordinance makes for a sharp contrast between the administration of the Berlin ordinance and similar ordinances in other municipalities. The amicus brief filed by the Connecticut Attorney General takes note of numerous municipalities in the State of Connecticut that specify anything over 10% of the stock in trade in adult items as sufficient to designate a business as sexually oriented. I note here that VIP is seeking to maintain an inventory of adult items at 12% but would stock only 10% to provide a 2% buffer, according to the testimony of Dominick DeMartino, owner of VIP.
Also by way of contrast, I refer to the zoning ordinance of the City of New York insofar as it governs adult bookstores. The ordinance refers to such stores as having a “substantial portion” of its “stock-in-trade” in adult items. See City of N.Y. v. Les Hommes, 94 N.Y.2d 267, 270 (1999). However, New York City has provided guidance in the form of an Operations Policy and Procedure Notice issued by the Department of Buildings. This administrative regulation provides that “[if] at least 40 percent of the book store‘s total stock accessible or available ... is comprised of adult materials, then the book store has a ‘substantial portion’ of its stock in adult materials.’ ” Id. at 271. The New York Court of Appeals has held that the specific guidelines thus provided govern the allowable stock-in-trade.
And in a challenge to the zoning requirement by a sexually oriented business in New York City on the ground “that the ordinance‘s distance requirements are too vague because they do not include a state-ment indicating the precise standard for measurement,” the New York Court of Appeals noted the following:
To the extent that this aspect of the ordinance‘s provision leaves room for confusion, the problem is procedurally remediable through administrative application and rule making. Notably, there is no indication on the present record that the City‘s enforcement of the distance rules will be arbitrary or uneven.
Stringfellow‘s of N.Y., Ltd. v. City of N.Y., 91 N.Y.2d 383, 405-06 (1998). The Town of Berlin has not remedied the confusion generated by the phrase at issue through administrative application or rule making, and the record here indicates that the enforcement of the ordinance is arbitrary and uneven.
In determining whether the regulation challenged here is constitutional as applied to the plaintiff, we are required to determine “whether the [ordinance] presents an ordinary person with sufficient notice of or
Q. Do you know what substantial or significant portion of stock in trade means in terms of an actual number?
A. No.
Q. Has anyone from the town ever told you an actual number that “substantial or significant portion of stock in trade” means?
A. No.
Q. And in denying your application, did the town provide you any information as to how you could come into compliance with that definition?
A. No, they did not.
Although Ms. McNair responded in the affirmative to the question of whether she “believe[d] [that] most people will know one way or the other” (emphasis supplied) what is meant by “substantial and significant,” it is apparent that Mr. DeMartino never was able to acquire such knowledge, either “one way or the other.”
I can only conclude from the foregoing that the Berlin ordinance is unconstitutionally vague as applied to VIP because: it has been applied in an arbitrary way, without explicit and knowable standards; that a person of ordinary intelligence has no opportunity to know what is required; and that the interpretation by the Town Manager is inconsistent with the intent and purpose of the ordinance—to establish some measure for determining what numerical proportion of a store owner‘s inventory of adult items may be carried in a retail establishment not located in an area zoned for sexually oriented businesses. These conclusions are also informed by the past dealings between VIP and the Town of Berlin and the First Amendment implications of the ordinance.
For the foregoing reasons, I would affirm the Order of the District Court.
Notes
Berlin‘s SOB ordinance defines “Adult Videos” as “films, motion pictures, videocassettes, DVDs, software, slides or other pornographic reproductions that depict, display or describe specified anatomical areas or specified sexual activities” as those areas and activities are defined by the Berlin Code. Berlin Code of Ordinances § 14-242.
Berlin‘s SOB ordinance defines “Adult Books” as “any books, magazines, periodicals, pamphlets, or other printed materials that depict, display or describe specified anatomical areas or specified sexual activities” as those areas and activities are defined by the Berlin Code. Id.
Berlin‘s definition of “Adult Novelties” includes “oils, lotions, gels or creams that are designed for or marketed primarily for use upon specified anatomical areas and intended for stimulating human genital organs, sexual arousal or as an aid to enhace or promote specified sexual activities.” Id. Furthermore, the term “Adult Novelties” includes “instruments, devices, toys, or paraphernalia that are designed for or marketed primarily for stimulating human genital organs, sexual arousal or sadomasochistic use” and “instruments, devices, gag gifts, toys or paraphernalia that depict, display or are shaped in the form of specified anatomical areas.” Id.