Document Type

Article

Publication Date

1-25-2010

Abstract

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.

Comments

593 F.3d 179 (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.

Argued: September 15, 2009.

Decided: January 25, 2010.

New York Law School location: File #3855, Box #154

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