593 F.3d 179 (2nd Cir. 2010), 09-2950-cv, VIP of Berlin, LLC v. Town of Berlin

Docket Nº:Docket 09-2950-cv.
Citation:593 F.3d 179
Opinion Judge:STRAUB, Circuit Judge.
Party Name: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.
Attorney:Jennifer M. Kinsley, Sirkin Pinales & Schwartz LLP, Cincinnati, OH (Daniel A. Silver, Silver & Silver LLP, New Britain, CT, on the brief), for Plaintiff-Appellee. Thomas R. Gerarde (Katherine E. Rule, on the brief), Howd & Ludorf, LLC, Hartford, CT, for Defendants-Appellants. Jane R. Rosenberg, A...
Judge Panel:Before: MINER, STRAUB, and WESLEY, Circuit Judges. Judge MINER dissents in a separate opinion. MINER, Circuit Judge, dissenting:
Case Date:January 25, 2010
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 179

593 F.3d 179 (2nd Cir. 2010)

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. 1

Docket No. 09-2950-cv.

United States Court of Appeals, Second Circuit.

January 25, 2010

Argued: Sept. 15, 2009.

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[Copyrighted Material Omitted]

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Jennifer M. Kinsley, Sirkin Pinales & Schwartz LLP, Cincinnati, OH (Daniel A. Silver, Silver & Silver LLP, New Britain, CT, on the brief), for Plaintiff-Appellee.

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.

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Before: MINER, STRAUB, and WESLEY, Circuit Judges.

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." Berlin Code of Ordinances § 14-242 (emphases in original). The District Court did not find the ordinance's definitions of " Adult Books, Adult Videos or Adult Novelties" unconstitutionally vague. Rather, the District Court held that VIP had shown a clear likelihood of success on the merits of its claim that the phrase " substantial or significant portion of its stock in trade" was unconstitutionally vague. In sum, the District Court concluded that the ordinance, as applied to VIP's March 2009 zoning application, failed to provide clear enforcement standards and adequate notice that the amount of VIP's proposed adult inventory would qualify VIP as an adult oriented store. The issue before us, therefore, is whether, as applied to VIP's March 2009 zoning application, the phrase " substantial or significant portion" of a business's stock in trade is unconstitutionally vague. For the reasons set forth below, we hold that the District Court exceeded its allowable discretion by concluding that VIP has shown a clear likelihood of success on the merits of its claim that this phrase, as applied to VIP's March 2009 zoning application, is unconstitutionally vague.

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." Berlin Code of Ordinances § 14-242 (emphases in original). An adult oriented store falls into the category of a " Sexually oriented business," which requires an SOB license to operate in Berlin and which may not be located within 250 feet of any residentially zoned land. Id. §§ 14-242, 14-291(c). The stated purpose of Berlin's SOB ordinance is 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

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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.

Id. § 14-241(6).

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

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stock and trade" in adult books, magazines, videos, and the like. The ordinance additionally defined an " Adult Novelty Store" as " any establishment having a substantial or significant portion of its stock and trade" in adult novelty products. Berlin's zoning officer denied VIP's July 2006 application on the ground that VIP was an SOB and did not have the appropriate license. VIP's subsequent appeal to the Berlin Board of Zoning Appeals was denied.

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." Berlin Code of Ordinances § 14-242 (emphases in original). It is the language in this version of the ordinance that the District Court held unconstitutionally vague and that is before us on appeal.

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 42 U.S.C. § 1983, alleging that Berlin's SOB zoning ordinance was unconstitutional. Subsequently, after its March 2009 zoning application was also denied, VIP sought a preliminary injunction to enjoin defendants from enforcing Berlin's SOB ordinance against VIP. In support of its motion for a preliminary injunction, VIP argued that the Berlin ordinance's definition of an SOB-an establishment with " a substantial or significant portion of its stock in trade" in adult merchandise-is vague as applied to VIP's March 2009 application because it does not provide...

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