Vip of Berlin, LLC v. Town of Berlin

644 F.Supp.2d 151

VIP OF BERLIN, LLC, Plaintiff, v. TOWN OF BERLIN, Herman Middlebrooks, Jr., in his official capacity as Town Manager of the Town of Berlin, and Denise McNair, in her official capacity as the Town Manager of the Town of Berlin, Defendants.

Civil Action No. 3:06cv1811 (SRU).

United States District Court, D. Connecticut.

July 2, 2009.

Order Denying Reconsideration and Stay July 8, 2009.

COPYRIGHT MATERIAL OMITTED

Daniel A. Silver, Law Office of Daniel A. Silver, New Britain, CT, Jennifer M. Kinsley, Sirkin, Pinales & Schwartz, LLP, Cincinnati, OH, for Plaintiff.

Katherine E. Rule, Alexandria L. Voccio, Thomas R. Gerarde, Howd & Ludorf, Jane R. Rosenberg, Attorney General's Office, Hartford, CT, for Defendants.

RULING ON MOTION FOR PRELIMINARY INJUNCTION

STEFAN R. UNDERHILL, District Judge.

Plaintiff VIP of Berlin, LLC ("VIP") seeks a preliminary injunction enjoining the defendant Town of Berlin ("Berlin") and its agents, officers, and representatives from enforcing the definition of "adult oriented store" contained in Berlin Code of Ordinances § 14-242 against VIP to prohibit the operation of a general retail store at VIP's premises in Berlin. VIP contends that the language of Berlin's sexually oriented business ("SOB") ordinance, which defines any retail 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," i.e., an SOB requiring a license, is unconstitutionally vague as applied to VIP's present business plan, which was submitted to Berlin's zoning enforcement officer on March 26, 2009. In its application for a certificate of zoning compliance, VIP stated that it did not intend to operate as an "adult oriented store" because no more than 12% of its stock in trade¹ would be considered "adult videos," "adult novelties," and "adult books," as defined by the Berlin SOB ordinance. Berlin's zoning officer denied VIP's application on the ground that Berlin's town manager, Denise McNair, determined that VIP's proposed use fell within the definition of an SOB, and therefore, required an SOB license before the zoning application could be approved. Because VIP's premises are within 250 feet of a residentially zoned area, Berlin determined it was not eligible for an SOB license and denied the zoning application.

A hearing on the plaintiff's motion for a preliminary injunction was held June 23, 2009. The following are my findings of fact and conclusions of law concerning issues raised by the motion for preliminary injunction. For the reasons that follow, I conclude that, in the absence of a preliminary injunction, VIP will suffer irreparable harm and has demonstrated a clear likelihood of success on the merits of its as-applied vagueness challenge, and therefore, the motion for preliminary injunction is GRANTED.

I. Factual 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.

On July 25, 2006, VIP applied for a certificate of zoning compliance, seeking to open a store for the retail sale of clothing, novelties, books, magazines, films, video cassettes, and DVDs. Pl. Ex. A at 2. VIP stated that less than a majority of its stock in trade would consist of items of an "adult" nature, including books, magazines, films, videos, DVDs, and sex enhancing adult novelties and marital aids. Under Berlin's SOB ordinance in place at that time, the definition of an "Adult Bookstore" or "Adult Video Store" was a retail establishment having a majority of its stock and trade² 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. Despite VIP's representation that no more than 35% of its inventory would be "adult" products, Berlin's zoning officer denied VIP's 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 § 14-242. Adult oriented stores fall into the category of "sexually oriented businesses," which require an SOB license to operate in Berlin. Id.

On March 30, 2007, VIP filed a new application for a certificate of zoning compliance along with a proposed inventory list, stating that none of its proposed items for sale could be construed as "adult novelty" or "adult video" as defined in the Berlin SOB ordinance. Pl. Ex. C. In April 2007, Berlin denied the application, stating that a significant and substantial portion of VIP's proposed inventory list consisted of adult novelties, thus making VIP an SOB and that an SOB license would be required before the zoning application could be approved. Pl. Ex. D. VIP resubmitted its application on June 6, 2007, with a revised inventory list that eliminated some of the items that were of concern to the town zoning officer. Second DeMartino Aff. at ¶ 6. 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 and, therefore, VIP withdrew its June 6 zoning application on June 8, 2007. Id.

On March 26, 2009, VIP submitted a new application for a certificate of zoning compliance, along with a proposed inventory list and proposed floor plan. VIP's application and inventory list indicated that 12% of VIP's Berlin store's stock in trade would consist of books, magazines, DVDs, and novelties or products that could be defined as "adult videos," "adult books," or "adult novelties" as defined by the Berlin SOB ordinance. Pl. Ex. F. Out of 67,237 products VIP intended to stock in its Berlin store, the proposed inventory list identified 8,242 adult products such as DVDs for rent,³ DVDs for sale, magazines,⁴ sex positive lubricants,⁵ and sex positive toys.⁶ Id. DeMartino testified that, in practice, he planned to stock approximately 10% adult items at the Berlin store in order to give himself some leeway in complying with his certificate of zoning compliance in the event of a shortage of non-adult inventory. 6/23/09 Tr. at 19-20, 37-38.

On May 11, 2009, Berlin's Chief Zoning Enforcement Officer, Hellyn Riggins, denied VIP's zoning application on the ground that the Berlin Town Manager, Denise McNair, had determined that VIP's proposed use would require an SOB license.⁷ Pl. Ex. G. McNair testified that she made her determination by consulting VIP's application, the proposed inventory list, and its proposed floor plan. 6/23/09 Tr. at 64-65. According to McNair, "based on those items and [her] own experience" she determined that VIP's proposed use required an SOB license. Id. at 71. She conceded that she never viewed the actual products firsthand but stated that she had "knowledge" of such items and that she had "seen" sexually explicit media before. Id. at 80.

McNair testified that she did not employ a mathematical definition for determining that the adult products on VIP's proposed inventory list represented a substantial or significant portion of its stock in trade. Id. at 67, 71-72. McNair testified that, although she did not have an absolute number of adult items in mind that would necessarily trigger the need for an SOB license, she nevertheless determined that VIP's proposed 8,000-plus adult items were "definitely" a substantial or significant portion of its stock in trade because those items were "a significant portion of . . . what was important in [VIP's] particular application." Id. at 72, 74-75. She could not say whether there was a number or percentage of adult items below which VIP would not need an SOB license to operate. Id. at 72, 75.

When pressed to explain how a new business seeking to open in Berlin would know whether it would require an SOB license to commence operations, McNair testified that she believed most businesses would know one way or the other. Id. at 78-79. McNair acknowledged that there were no published guidelines or any publicly available instructions or other guidance that businesses could review in advance of applying for a zoning compliance certificate other than the ordinance itself. Id. at 75. Although she "found it hard to believe that [a business] wouldn't be sure" whether it required an SOB ordinance, she testified that a prospective business would know whether it would need an SOB license either "after speaking to [her] or after reading the ordinance." Id. at 72, 78-79.

When asked to define "substantial or significant," McNair testified that "substantial or significant" means "meaningful to either the business or the Town of Berlin. . . . It would have import to the business. It would have meaning to the town under the ordinance." Id. at 73. McNair defined portion as "an amount, a part of something." Id. at 76. According to McNair, the ordinance's terms do not trigger a specific percentage of stock in trade or an absolute number of trade items for her. Id. at 74. By way of example, she stated that a substantial or significant portion of a sandwich "can be a bite. It can be almost the whole sandwich" depending on whose sandwich it was—"if you're starving and someone takes two bites of your sandwich, it could be significant to the person who's starving." Id. at 76-77.

Her practice is to evaluate each application "for what it actually is" and that it was necessary to examine each case "individually . . . to really...