Second Circuit says no to sex shop

By John O'Brien | Jan 28, 2010


NEW YORK (Legal Newsline) - A federal appeals court has sided with a Connecticut town in its fight to keep an adult-themed business from opening.

The U.S. Court of Appeals for the Second Circuit on Monday overturned a lower court ruling that said language in the town's ordinance was unconstitutionally vague. Very Intimate Pleasures wants to open a shop in Berlin, but the town -- and state Attorney General Richard Blumenthal -- resisted.

The lower court had ruled that the town's definition of an adult-oriented store was vague and refused to grant a preliminary injunction keeping the business from opening.

The store VIP hopes to use is within 250 feet of a residential neighborhood.

"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," Judge Chester Straub wrote.

Blumenthal began supporting the town in 2007 and filed an amicus brief in the case.

"Berlin is the battleground -- a test case for town authority statewide -- to regulate such businesses within their borders," he said then.

"In every town and every fight involving these businesses, the goal is the same -- to protect citizens from the adverse secondary effects of sexually oriented businesses, including increased crime, lowered property values and a deterioration of the neighborhood."

Judge Roger Miner dissented, saying VIP is likely to succeed on the merits of the case.

"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," Miner wrote.

"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."

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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