2nd Circuit upholds “adult oriented” definition as applied to store with 12% “adult item” inventory
VIP of Berlin v. Town of Berlin, No. 09-2950-cv (2nd Cir. Jan. 25, 2010)
2nd Circuit upholds “adult oriented” definition as applied to store with 12% “adult item” inventory.
The 2nd Circuit held that a Town of Berlin, CT sexually oriented business ordinance, which regulates as “adult oriented stores” any establishment having “a substantial or significant portion of its stock in trade in Adult Books, Adult Videos or Adult Novelties,” provides in its plain meaning adequate notice that VIP of Berlin’s zoning application, proposing a store with an inventory of 8,242 “adult items” (12% of its total inventory) would be denied. The court held that the terms “substantial” and “significant” do not apply only to the percentage of total inventory, but also to the total number of “adult items” offered for sale:
[T]he portion of VIP’s proposed retail establishment that would be devoted to adult merchandise—8,242 items—is so substantial that it potentially eclipses the size of a free-standing store whose sole purpose is to provide adult merchandise . . . Accordingly, even if there were a hypothetical situation that would fall under the ordinance’s “gray” area, the ordinance is sufficiently clear to provide VIP with notice that the proposed inventory in its March 2009 zoning application qualifies it as an SOB.