VIP of Berlin, LLC v. Town of Berlin, No. 09-2950 (2d Cir. 2010)

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09-2950-cv VIP of Berlin, LLC v. Town of Berlin 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________________________ August Term, 2009 (Argued: September 15, 2009 Decided: January 25, 2010) Docket No. 09-2950-cv _______________________________ 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 ____________________________________ Before: MINER, STRAUB, and WESLEY , Circuit Judges. ____________________________________ 31 Defendants-Appellants appeal from a July 2, 2009 opinion and order of the United States 32 District Court for the District of Connecticut (Stefan R. Underhill, Judge) preliminarily enjoining 1 The Clerk of Court is respectfully directed to amend the caption to conform to the listing above. 1 1 them from enforcing against Plaintiff-Appellee an ordinance that regulates the operation of 2 sexually oriented businesses. In granting Plaintiff-Appellee s motion for a preliminary 3 injunction, the District Court concluded that Plaintiff-Appellee had shown a clear likelihood of 4 success on the merits of its claim that the ordinance s definition of an adult oriented store was 5 unconstitutionally vague as applied to Plaintiff-Appellee. The preliminary injunction order of the 6 District Court is hereby VACATED and the case is REMANDED for further proceedings 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 consistent with this opinion. Judge MINER dissents in a separate opinion. _________________________________ 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. _________________________________ STRAUB, Circuit Judge: Defendants-Appellants Town of Berlin ( Berlin ) and Denise McNair appeal from a July 25 2, 2009 opinion and order of the United States District Court for the District of Connecticut 26 (Stefan R. Underhill, Judge) preliminarily enjoining them from enforcing Section 14-242 of the 27 Berlin Code of Ordinances against Plaintiff-Appellee VIP of Berlin, LLC ( VIP ). The District 28 Court granted the injunction at issue here because it concluded that VIP had shown a clear 29 likelihood of success on the merits of its claim that the ordinance s definition of an adult 2 1 oriented store was unconstitutionally vague as applied to a zoning application that VIP 2 submitted on March 26, 2009. 3 Berlin s ordinance defines any establishment having a substantial or significant portion 4 of its stock in trade in Adult Books, Adult Videos or Adult Novelties as an adult oriented store. 5 Berlin Code of Ordinances § 14-242 (emphases in original). The District Court did not find the 6 ordinance s definitions of Adult Books, Adult Videos or Adult Novelties unconstitutionally 7 vague. Rather, the District Court held that VIP had shown a clear likelihood of success on the 8 merits of its claim that the phrase substantial or significant portion of its stock in trade was 9 unconstitutionally vague. In sum, the District Court concluded that the ordinance, as applied to 10 VIP s March 2009 zoning application, failed to provide clear enforcement standards and 11 adequate notice that the amount of VIP s proposed adult inventory would qualify VIP as an adult 12 oriented store. The issue before us, therefore, is whether, as applied to VIP s March 2009 zoning 13 application, the phrase substantial or significant portion of a business s stock in trade is 14 unconstitutionally vague. For the reasons set forth below, we hold that the District Court 15 exceeded its allowable discretion by concluding that VIP has shown a clear likelihood of success 16 on the merits of its claim that this phrase, as applied toVIP s March 2009 zoning application, is 17 unconstitutionally vague. 18 FACTUAL AND PROCEDURAL BACKGROUND 19 VIP owns an approximately 15,000 square-foot commercial building located at 717 20 Berlin Turnpike in Berlin, Connecticut. The property is presently zoned for retail use. Because 21 the property is located within 250 feet of a residentially zoned area, however, VIP may not 3 1 operate a retail store at that location if it is classified as an Adult Oriented Store under Berlin s 2 sexually oriented business ( SOB ) ordinance. 3 I. Berlin s Current Ordinance and VIP s March 2009 Zoning Application 4 Berlin s current SOB ordinance defines an Adult Oriented Store as any establishment 5 having a substantial or significant portion of its stock in trade in Adult Books, Adult Videos or 6 Adult Novelties or any combination thereof. Berlin Code of Ordinances § 14-242 (emphases in 7 original). An adult oriented store falls into the category of a Sexually oriented business, which 8 requires an SOB license to operate in Berlin and which may not be located within 250 feet of any 9 residentially zoned land. Id. §§ 14-242, 14-291(c). The stated purpose of Berlin s SOB 10 11 12 13 14 15 16 17 18 19 20 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 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 21 proposed inventory list and proposed floor plan. According to this March 2009 application, 22 twelve percent of the stock in trade at VIP s Berlin store would consist of books, magazines, 23 DVDs, and novelties or products that could be defined as adult videos, adult books, or adult 24 novelties (collectively, adult products) under the Berlin SOB ordinance.2 Of VIP s total 2 As noted earlier, whether the definitions of these adult items are unconstitutionally vague is not before us because the District Court s decision to enjoin enforcement of the 4 1 inventory of 67,237 products, VIP represented that 8,242 of those items could be classified as 2 adult products such as DVDs for rent, DVDs for sale, magazines, sex positive lubricants, and 3 sex positive toys. 4 On May 11, 2009, Berlin s Chief Zoning Enforcement Officer, Hellyn R. Riggins, denied 5 VIP s zoning application on the ground that the Berlin Town Manager, Denise M. McNair, had 6 determined that VIP s proposed use would require an SOB license, which VIP lacked. 7 II. 8 9 10 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 ordinance was not grounded on such a basis and no party in this appeal has presented arguments relating to these definitions. However, for ease of reference and completeness, these definitions are included here. Berlin s SOB ordinance defines Adult Videos as films, motion pictures, videocassettes, DVDs, software, slides or other pornographic reproductions that depict, display or describe specified anatomical areas or specified sexual activities as those areas and activities are defined by the Berlin Code. Berlin Code of Ordinances § 14-242. Berlin s SOB ordinance defines Adult Books as any books, magazines, periodicals, pamphlets, or other printed materials that depict, display or describe specified anatomical areas or specified sexual activities as those areas and activities are defined by the Berlin Code. Id. Berlin s definition of Adult Novelties includes oils, lotions, gels or creams that are designed for or marketed primarily for use upon specified anatomical areas and intended for stimulating human genital organs, sexual arousal or as an aid to enhace or promote specified sexual activities. Id. Furthermore, the term Adult Novelties includes instruments, devices, toys, or paraphernalia that are designed for or marketed primarily for stimulating human genital organs, sexual arousal or sadomasochistic use and instruments, devices, gag gifts, toys or paraphernalia that depict, display or are shaped in the form of specified anatomical areas. Id. 5 1 2009 zoning application that is at issue here, VIP previously had applied for a certificate of 2 zoning compliance, in an application dated July 25, 2006, seeking to open an Adult Bookstore[,] 3 including books, magazines, videos, clothing, novelties no on-site presentation of any materials 4 sold. In a letter accompanying this application, VIP stated that less than a majority of its stock 5 and trade would consist of items of an adult nature. Under Berlin s SOB ordinance in place at 6 the time of VIP s first zoning application, the definition of an Adult Bookstore or Adult 7 Video Store was an establishment having a majority of its stock and trade in adult books, 8 magazines, videos, and the like. The ordinance additionally defined an Adult Novelty Store as 9 any establishment having a substantial or significant portion of its stock and trade in adult 10 novelty products. Berlin s zoning officer denied VIP s July 2006 application on the ground that 11 VIP was an SOB and did not have the appropriate license. VIP s subsequent appeal to the Berlin 12 Board of Zoning Appeals was denied. 13 In the meantime, on October 5, 2006, the Berlin Town Council amended its SOB 14 licensing ordinance to create a single category of business known as an Adult Oriented Store, 15 which is defined as any establishment having a substantial or significant portion of its stock in 16 trade in Adult Books, Adult Videos or Adult Novelties or any combination thereof. Berlin Code 17 of Ordinances § 14-242 (emphases in original). It is the language in this version of the ordinance 18 that the District Court held unconstitutionally vague and that is before us on appeal. 19 After Berlin rejected VIP s July 2006 application and amended its ordinance, VIP filed a 20 new application for a zoning permit on March 30, 2007, along with a proposed inventory list, 21 representing that none of its proposed items for sale could be construed as adult use, including 6 1 adult novelty or adult video as defined in the Berlin SOB ordinance. Berlin s Chief Zoning 2 Enforcement Officer, Hellyn R. Riggins, apparently disagreed with VIP s characterization of its 3 inventory. In response to VIP s March 2007 application, Riggins stated: I have carefully 4 reviewed the list of items that you propose to sell [and have] personally viewed these items at 5 your other locations in the state. Riggins concluded that [a] significant or substantial portion 6 of these items constitute adult novelties under the current definitions found in our [SOB] 7 Ordinance. 8 9 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 10 that application, the zoning officer indicated orally to VIP s principal, Dominick DeMartino, that 11 she intended to deny that application for the same reason that she denied the March 30 12 application. As a result, VIP withdrew its June 6 zoning application on June 8, 2007. 13 III. 14 District Court Proceedings and Decision In November 2006, after its first zoning application was denied, VIP brought an action in 15 the District Court pursuant to 42 U.S.C. § 1983, alleging that Berlin s SOB zoning ordinance was 16 unconstitutional. Subsequently, after its March 2009 zoning application was also denied, VIP 17 sought a preliminary injunction to enjoin defendants from enforcing Berlin s SOB ordinance 18 against VIP. In support of its motion for a preliminary injunction, VIP argued that the Berlin 19 ordinance s definition of an SOB an establishment with a substantial or significant portion of 20 its stock in trade in adult merchandise is vague as applied to VIP s March 2009 application 21 because it does not provide sufficiently clear notice or guidance about what portion of 7 1 2 merchandise would allow VIP to operate as a non-SOB. On June 23, 2009, the District Court heard oral argument, as well as testimony from 3 DeMartino and McNair. DeMartino, VIP s principal, testified that he eventually wishes to open 4 an adult store in Berlin pending the outcome of another segment of this litigation. However, he 5 testified that currently he is attempting to comply with the SOB ordinance and does not 6 understand what he needs to do to avoid being classified as an SOB under the ordinance. 7 McNair, Berlin s town manager, testified that she reviews zoning applications on an individual 8 basis and that, in her view, the phrase substantial or significant means meaningful to either 9 the business or the Town of Berlin . . . . It would have import to the business. When asked why 10 she denied VIP s March 2009 zoning application, McNair stated, By the list that I saw, there 11 were over 8,000 items that the applicant had said were adult products . . . . which to me is 12 substantial. McNair stated, Portion to me means an amount. A portion of something is an 13 amount, a part of something. McNair further stated that [t]he ordinance, in the way I m asked 14 to apply it, is to assist in the goals of the town, the security of its people, the health, welfare, and I 15 believe it s necessary to look at the cases individually, not be arbitrary but to really understand 16 and take a look at each application as applied. 17 On July 2, 2009, the District Court granted VIP s motion for a preliminary injunction.3 18 See VIP of Berlin, LLC v. Town of Berlin, 644 F. Supp. 2d 151 (D. Conn. 2009). Specifically, 19 the District Court concluded that VIP showed (1) that it will suffer irreparable harm in the 3 On July 30, 2009, a three-judge panel of our court stayed the District Court s order pending appeal. See Dkt. No. 09-2950-cv, Order of July 30, 2009. 8 1 absence of an injunction because it is being prohibited from exercising its First Amendment 2 rights and (2) a clear or substantial likelihood of success on its claim that the Berlin ordinance s 3 definition of an SOB is unconstitutionally vague as applied to VIP s March 2009 zoning 4 application. With regard to the likelihood of success on the merits, the District Court reasoned 5 that the statute does not give the person of ordinary intelligence a reasonable opportunity to 6 know what portion of stock in trade would not qualify as substantial or significant or provide 7 explicit standards for those who apply it. 8 DISCUSSION 9 We review a district court s decision to grant or withhold a preliminary injunction for 10 abuse of discretion. Vincenty v. Bloomberg, 476 F.3d 74, 83 (2d Cir. 2007). A district court 11 exceeds its allowable discretion if its decision rests on an error of law or a clearly erroneous 12 factual finding, or if its decision cannot be located within the range of permissible decisions. 13 Id. (internal quotation marks omitted). The ultimate question . . . remains whether, in light of 14 the applicable standard, the court has abused its discretion; and [i]f the underlying constitutional 15 question is close, therefore, we should uphold the injunction. 4 Id. (quoting Ashcroft, 542 U.S. 16 at 664). Where a party seeks a preliminary injunction that challenges government action taken 4 At least one of our prior cases has suggested that, in reviewing a district court s grant of a preliminary injunction, the constitutionality of a statute is a legal question subject to de novo review. Field Day, LLC v. County of Suffolk, 463 F.3d 167, 176 (2d Cir. 2006) (internal quotation marks omitted). This standard of review, however, is inconsistent with the Supreme Court s instruction in Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 664 (2004) that we should uphold the injunction where the underlying constitutional question is close. In any event, we vacate the preliminary injunction here because the constitutional question at issue is not close and because the District Court s decision cannot be located within the range of permissible decisions. 9 1 in the public interest pursuant to a statutory or regulatory scheme and that would alter, rather 2 than maintain, the status quo, the moving party must demonstrate irreparable harm and a clear 3 or substantial likelihood of success on the merits. Jolly v. Coughlin, 76 F.3d 468, 473-74 (2d 4 Cir. 1996) (internal quotation marks omitted). For the reasons set forth below, the District Court 5 exceeded its allowable discretion when it held that VIP demonstrated a clear likelihood of 6 success on the merits of its as applied vagueness challenge. 7 I. 8 9 Vagueness Doctrine As one of the most fundamental protections of the Due Process Clause, the void-for- vagueness doctrine requires that laws be crafted with sufficient clarity to give the person of 10 ordinary intelligence a reasonable opportunity to know what is prohibited and to provide explicit 11 standards for those who apply them. Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir. 2007) 12 (internal citations and quotation marks omitted). A statute can be impermissibly vague for 13 either of two independent reasons. First, if it fails to provide people of ordinary intelligence a 14 reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even 15 encourages arbitrary and discriminatory enforcement. Hill v. Colorado, 530 U.S. 703, 732 16 (2000). 17 In reviewing a statute s language for vagueness, we are relegated . . . to the words of the 18 ordinance itself, to the interpretations the court below has given to analogous statutes, and 19 perhaps to some degree, to the interpretation of the statute given by those charged with enforcing 20 it. Grayned v. City of Rockford, 408 U.S. 104, 110 (1972) (internal quotation marks and 21 footnotes omitted). The degree of vagueness tolerated in a statute varies with its type: 10 1 economic regulations are subject to a relaxed vagueness test, laws with criminal penalties to a 2 stricter one, and laws that might infringe constitutional rights to the strictest of all. Rubin v. 3 Garvin, 544 F.3d 461, 467 (2d Cir. 2008). When a statute is capable of reaching expression 4 sheltered by the First Amendment, the [vagueness] doctrine demands a greater degree of 5 specificity than in other contexts. 5 Farrell v. Burke, 449 F.3d 470, 485 (2d Cir. 2006) (internal 6 quotation marks omitted). 7 A. 8 9 Berlin s SOB Ordinance Survives an As Applied Vagueness Challenge 1. Notice The first way that a law may be unconstitutionally vague as applied to the conduct of 10 certain individuals is if it fails to provide people of ordinary intelligence a reasonable 11 opportunity to understand what conduct it prohibits. Hill, 530 U.S. at 732. Animating this 12 first vagueness ground is the constitutional principle that individuals should receive fair notice or 13 warning when the state has prohibited specific behavior or acts. Thibodeau, 486 F.3d at 65. 5 Where the only vagueness in the ordinances relates to the amount of sexually explicit activity that may be portrayed before the material can be said to fall within the scope of the ordinances, the Supreme Court has expressed skepticism about whether such ordinances have a significant deterrent effect on . . . First Amendment rights. Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 60-61 (1976) (rejecting a facial vagueness challenge to a zoning ordinance s regulation of adult theaters); see also id. at 70 ( [T]hough we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society s interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate . . . . ). Accordingly, because the only vagueness challenge here relates to the ordinance s definition of how much adult merchandise makes a store adult oriented, the degree of vagueness tolerated in this situation, although slightly unclear from existing case law, may be somewhat greater than if the ordinance regulated other types of more protected speech. Nevertheless, even if the expression at issue here were entitled to full First Amendment protection, the present ordinance s language is sufficiently specific to withstand VIP s as-applied vagueness challenge. 11 1 The relevant inquiry is whether the language conveys sufficiently definite warning as to the 2 proscribed conduct when measured by common understanding and practices. Rubin, 544 F.3d 3 at 467 (internal quotation marks and citations omitted). Condemned to the use of words, we can 4 never expect mathematical certainty from our language. Grayned, 408 U.S. at 110; see also id. 5 at 106, 109-10 (rejecting a facial vagueness challenge to an ordinance that implicated First 6 Amendment rights and prohibited certain demonstrations adjacent to schools that disturb[] or 7 tend[] to disturb the peace or good order of such school session or class thereof . . . ). For this 8 reason, we respectfully disagree with the dissent that it is constitutionally problematic that 9 McNair testified that she was unable to supply a mathematical definition or a percentage to 10 quantify the cutoff point for the amount of adult materials in a store s stock in trade that would 11 qualify it as an SOB. See Dissent, infra, at [3-4]. And, in any event, although the zoning 12 officer s understanding of the ordinance s terms is relevant perhaps to some degree, Grayned, 13 408 U.S. at 110, our inquiry begins with the text of the ordinance. 14 In the present case, Berlin s ordinance defines a sexually oriented business, or SOB, as an 15 establishment that has a substantial or significant portion of its stock in trade in adult 16 merchandise. VIP asserts that this definition is so vague that it fails to provide VIP with notice 17 that its proposed inventory of 8,242 adult items approximately twelve percent of its total 18 inventory of 67,237 items would qualify it as an SOB. VIP further argues that, because the 19 statute uses the words substantial or significant portion, it would be inappropriate to look at the 20 absolute number of adult items being sold, as opposed to the proportion of the store that is adult- 21 oriented, when determining whether a business is an SOB. Such a reading, however, ignores the 12 1 common, ordinary meaning of the ordinance s words. See generally Perrin v. United States, 444 2 U.S. 37, 42 (1979) ( A fundamental canon of statutory construction is that, unless otherwise 3 defined, words will be interpreted as taking their ordinary, contemporary, common meaning. ). 4 One of the common definitions of the term substantial is of ample or considerable amount 5 [or] quantity. 15 OXFORD ENGLISH DICTIONARY 67 (2d ed. 1989); see also WEBSTER S THIRD 6 NEW INT L DICTIONARY 2280 (1993) (defining substantial as considerable in amount ). 7 Similarly, one common definition of the term significant is of a noticeably or measurably 8 large amount. Merriam-Webster Online Dictionary, http://www.merriam- 9 webster.com/dictionary/significant (last visited Jan. 22, 2010); see also WEBSTER S THIRD NEW 10 INT L DICTIONARY 2116 (1993) (defining significant as important, weighty, notable ). 11 Portion simply means a part of something. WEBSTER S THIRD NEW INT L DICTIONARY 12 1768 (1993). Applying these definitions to the present case, VIP s proposed 8,242-item adult 13 section clearly falls under the ordinance because the part of its stock in trade devoted to adult 14 merchandise is of considerable quantity and of a noticeably or measurably large amount. 6 6 In addition to the plain meaning of the phrase, upon analyzing the phrase s application in other legislative contexts, it is clear that substantial or significant portion of its stock in trade should be considered in light of the absolute number of items offered for sale, not just the percentage of items offered for sale. In enacting 47 U.S.C. § 941, for example, Congress found that a significant portion of all material available on the Internet is related to pornography, Pub. L. No. 107-317, 116 Stat. 2766, 2766 (2002) (emphasis added), even though it has been said that only [a] little more than 1 percent of all [searchable] Web pages (amounting to approximately 275 million to 700 million Web pages) are sexually explicit, Am. Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775, 788 (E.D. Pa. 2007) (finding the phrase harmful to minors in 47 U.S.C. § 231 unconstitutionally vague). Because only one percent of web pages are sexually explicit, but the absolute number of sexually explicit web pages reaches into the millions, Congress s finding that a significant portion of the internet is sexually explicit likely contemplated the absolute amount, not just the percentage, of sexually explicit material available 13 1 Congress has used similar phrasing in many other statutory contexts, including various 2 portions of the patent laws, securities laws, environmental laws, and civil rights laws.7 The 1964 3 Civil Rights Act, for example, applies to a business if, inter alia, a substantial portion of the 4 food which it serves . . . has moved in commerce. 42 U.S.C. § 2000a(c) (emphasis added). 5 Despite repeated attacks on the Civil Rights Act s validity under the Commerce Clause, it 6 appears that no litigant ever thought to challenge the phrase substantial portion of the food 7 which it serves as unconstitutionally vague. Although these statutes do not regulate First 8 Amendment activity, and are thus subject to a lower required level of specificity in the face of a 9 vagueness challenge, it is nonetheless worth noting that the legislature has used the phrase 10 11 substantial portion to organize our society in a wide variety of contexts. In addition to the plain meaning of the ordinance s wording, which has been used in a on the internet. 7 The phrase substantial portion appears in the following categories of federal statutes: Banks and Banking, 12 U.S.C. § 1749aaa-5(3); Civil Rights Act of 1964, 42 U.S.C. § 2000a(c); Crimes and Criminal Procedure, Federally Protected Activities, 18 U.S.C. § 245(b)(3); Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1107(e)(1)(B), (C) and 1403(b)(2); Endangered Species Act Amendments of 1982, 16 U.S.C. § 1539(b)(2)(B); Farm Housing, 42 U.S.C. § 1484(f)(3); Foreign Relations and Intercourse, 22 U.S.C. §§ 3651(2) and 3984(a); Housing of Persons Engaged in National Defense, 42 U.S.C. § 1581(d)(4); Internal Revenue Code, 26 U.S.C. §§ 280G(b)(2)(A)(ii)(II), 4252(b)(2), 7507(a), 7701(a)(36)(A); Investment Companies, 15 U.S.C. §§ 80a-2(a)(5) and 80b-2(a)(2); Judiciary and Judicial Procedure, 28 U.S.C. §§ 456(d), (e) and 460(b); Navigation and Navigable Waters, 33 U.S.C. § 1286(f)(1); Newspaper Preservation Act, 15 U.S.C. § 1802(4); Petroleum Marketing Practices, 15 U.S.C. § 2821(11); Public Health Service, 42 U.S.C. § 300e-1(4)(C); Public Works Acceleration Program, 42 U.S.C. § 2642(f)(3); Securities Exchanges, 15 U.S.C. § 78c(a)(6); Student Assistance, 20 U.S.C. § 1087-2(q)(2)(A); Water Resources, 42 U.S.C. § 1962d-14a(g)(1), (h). See also United States v. Clark, 912 F.2d 1087 (9th Cir. 1990) (finding that substantial portion as used in the Marine Mammal Protection Act, 16 U.S.C. § 1361, et seq., was not unconstitutionally vague). 14 1 wide variety of statutory contexts, the ordinance s stated purpose preventing the adverse 2 secondary effects associated with the presence of SOB s provides additional clarity and 3 guidance. See Grayned, 408 U.S. at 112 (noting that [a]lthough the prohibited quantum of 4 disturbance is not specified in the ordinance, it is apparent from the statute s announced purpose 5 that the measure is whether normal school activity has been or is about to be disrupted 6 (emphases added)). Given the ordinance s stated purpose, as well as the plain meaning of the 7 ordinance s words, the phrase substantial or significant portion clearly encompasses not only 8 the percentage of adult items sold, but also the absolute number of adult items sold. It would 9 make little sense to allow this store with an 8,242-item adult section to operate as a non-SOB 10 when a similarly located 8,242-item store devoted solely to adult merchandise would be required 11 to obtain an SOB license and locate itself elsewhere. The neighborhood is no less likely to 12 experience detrimental effects if the 8,242 adult items were sold through a small stand-alone 13 business rather than through a large store s adult department equally substantial in size. 14 Despite the ordinance s plain meaning and stated purpose, the District Court agreed with 15 VIP that the ordinance was impermissibly vague. Specifically, the District Court noted that the 16 language substantial or significant portion of its stock in trade suggests that a retail 17 establishment could have something more than zero percent adult media and adult products 18 without being classified as an adult oriented store. VIP of Berlin, LLC v. Town of Berlin, 644 19 F. Supp. 2d 151, 162 (D. Conn. 2009). The District Court concluded that it is not readily 20 apparent from the face of the ordinance what amount of stock in trade would qualify as a 21 substantial or significant portion. Id. We have previously noted that, [t]he evaluation of 15 1 whether [a statute] . . . is vague as applied to [a litigant] must be made with respect to [the 2 litigant s] actual conduct and not with respect to hypothetical situations at the periphery of the 3 [statute s] scope. Perez v. Hoblock, 368 F.3d 166, 175 (2d Cir. 2004); see also Rubin v. Garvin, 4 544 F.3d 461, 468 (2d Cir. 2008) ( Because we must examine the complainant s conduct before 5 analyzing other hypothetical applications of the law, we turn first to his as-applied challenge. 6 (internal quotation marks and citation omitted)). To be clear, a court may analyze whether a 7 reasonable person would understand that the litigant s conduct was prohibited. See Hill, 530 8 U.S. at 732. However, in the context of an as-applied vagueness challenge, a court s analysis 9 should be confined to the litigant s actual conduct, and a court should not analyze whether a 10 reasonable person would understand that certain hypothetical conduct or situations violate the 11 statute. See Perez, 368 F.3d at 175; see also Farrell, 449 F.3d at 494. 12 Here, although its decision related only to VIP s as-applied vagueness challenge, the 13 language and logic of the District Court at times slipped into hypothetical analysis, questioning 14 where in general the line between adult and non-adult businesses is drawn. The pertinent issue, 15 however, is not whether a reasonable person would know what amount of adult merchandise, in 16 general, would qualify a business as adult oriented. Rather, the issue in this particular as-applied 17 challenge is whether a reasonable person would know that a proposed inventory of 8,242 adult 18 items would qualify VIP as an adult oriented store. Whether or not the ordinance provides a 19 bright line rule about the specific amount of adult media that would qualify a store as adult 20 oriented in hypothetical applications, there is no doubt that, as applied to VIP, the language of 16 1 the SOB ordinance covers VIP s March 2009 zoning application.8 As noted earlier, the portion 2 of VIP s proposed retail establishment that would be devoted to adult merchandise 8,242 3 items is so substantial that it potentially eclipses the size of a free-standing store whose sole 4 purpose is to provide adult merchandise. One could analogize VIP to a department store, such as 5 Macy s, whose individual shoe department is so large that it exceeds the size of many stand- 6 alone shoe stores. Even if Macy s shoe department constituted only twelve percent of Macy s 7 total stock in trade, one would hardly call it an insubstantial or insignificant portion of the 8 Macy s store. Accordingly, even if there were a hypothetical situation that would fall under the 9 ordinance s gray area, the ordinance is sufficiently clear to provide VIP with notice that the 10 proposed inventory in its March 2009 zoning application qualifies it as an SOB.9 8 The District Court expressly considered VIP s vagueness challenge as applied to VIP s present business plan, which was submitted to Berlin s zoning enforcement officer on March 26, 2009 and did not hold that the ordinance was vague as applied to VIP s previous zoning applications. Given that the District Court s decision addressed VIP s vagueness challenge as applied to VIP s March 2009 zoning application, VIP s prior zoning applications are of limited relevance. VIP s first zoning application was denied in 2006 pursuant to an ordinance whose wording differs from the present ordinance s language. Furthermore, VIP explicitly stated in that 2006 application that it intended to operate as an Adult Bookstore. In addition, the denial of VIP s March 2007 zoning application appeared to center, in part, around a dispute about whether certain items were adult or not. See supra [p. 7]. The District Court s decision was not based on a finding that the ordinance s definitions of adult merchandise were vague or overbroad and, therefore, those issues are not before us. 9 In addition, even if the District Court had been correct to engage in some facial analysis, it is not clear that its conclusion from that analysis is correct, as the majority of courts that have considered a facial challenge to similar language have reached the opposite conclusion. See, e.g., Ill. One News, Inc. v. City of Marshall, 477 F.3d 461, 465 (7th Cir. 2007) (finding that the definition of adult bookstore as [a]n establishment having a substantial or significant portion of its stock in trade in adult merchandise was not facially vague and noting that [i]t is all but impossible to write a law or regulation without some qualitative words such as substantial ); Doctor John s, Inc. v. City of Roy, 465 F.3d 1150, 1157, 1160 (10th Cir. 2006) 17 1 In addition to slipping into hypothetical analysis in the midst of determining whether the 2 ordinance was vague as applied to VIP s March 2009 zoning application, the District Court relied 3 on several inapposite cases in reaching its conclusion. In particular, of the three state supreme 4 court cases relied upon by the District Court, two involved language different from the language 5 at issue here. In 105 Floyd Road, Inc. v. Crisp County, 613 S.E.2d 632, 634 (Ga. 2005), the issue 6 was whether the phrase substantial business purpose was unconstitutionally vague. The court 7 noted that [n]umerous courts have upheld statutory language against vagueness challenges 8 where substantial has modified matters such as stock in trade or interior business. Id. at 634- 9 35 (emphasis added). Specifically distinguishing those decisions, the court then found the phrase 10 substantial business purpose unconstitutionally vague because it does not look to stock in 11 trade, gross sales, floor space or some other readily quantifiable standard. Id. at 635 (emphases (noting that to prevail on a facial vagueness challenge, a party must show, at a minimum, that the challenged law would be vague in the vast majority of its applications and that the phrase significant or substantial portion of its wares devoted to adult material survives Dr. John s facial vagueness challenge ); ILQ Invs., Inc. v. City of Rochester, 25 F.3d 1413, 1419 (8th Cir. 1994); 511 Detroit St., Inc. v. Kelley, 807 F.2d 1293, 1295-97 (6th Cir. 1986); Mom N Pops, Inc. v. City of Charlotte, 979 F. Supp. 372, 393-94 (W.D.N.C. 1997); 15192 Thirteen Mile Rd., Inc., v. City of Warren, 626 F. Supp. 803, 819-21 (E.D. Mich. 1985); City of Chi. v. Scandia Books, Inc., 430 N.E.2d 14, 18 (Ill. App. Ct. 1981) ( The word substantial as used in the definition of adult bookstores is not so indefinite as to render the Ordinance void and unenforceable. ); Dandy Co., v. Civil City of South Bend, County-City Complex, 401 N.E.2d 1380, 1386 (Ind. Ct. App. 1980) ( The definition[s] of [substantial or significant] must necessarily be determined on a caseby-case basis and are therefore not capable of precise mathematical calculation. ); Golden Triangle News, Inc. v. Corbett, 689 A.2d 974, 984-85 (Pa. Commw. Ct. 1997) (rejecting the argument that the phrase substantial or significant portion is impermissibly vague under Pennsylvania s state constitution). But see City of Knoxville v. Entm t Res., LLC, 166 S.W.3d 650, 652, 656 (Tenn. 2005) (holding the phrase substantial or significant portion of its stock and trade unconstitutionally vague and relying heavily on the fact that the officers charged with enforcing the ordinance [are unable] to define its key terms ). 18 1 added). Similarly, the issue in City of Columbia v. Pic-A-Flick Video, Inc., 531 S.E.2d 518, 522- 2 23 (S.C. 2000) was whether the phrase principal business purpose was unconstitutionally 3 vague. Because the language at issue here is substantial or significant portion of its stock in 4 trade, these two state supreme court cases are of limited applicability. Furthermore, one of the 5 primary federal cases relied upon by the District Court, Wisconsin Vendors, Inc. v. Lake County, 6 152 F. Supp. 2d 1087, 1094-95 (N.D. Ill. 2001) ( Wisconsin Vendors I ), is also of limited 7 persuasive value. See id. (finding that plaintiff had shown a likelihood of success on the merits 8 of its as-applied and facial vagueness challenge to the phrase substantial or significant portion 9 of its business ). Shortly after Wisconsin Vendors I was issued, the Seventh Circuit held in 10 Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988, 996-97 (7th Cir. 2002), that the language 11 significant or substantial portion of its stock-in-trade was not unconstitutionally overbroad on 12 its face. After the Seventh Circuit decided Pleasureland, the same District Court that decided 13 Wisconsin Vendors I issued a new decision that rejected plaintiff s facial and as-applied 14 vagueness challenges [i]n light of Pleasureland. Wisconsin Vendors, Inc. v. Lake County, No. 15 99 C 8340, 2003 WL 366580, at *4 (N.D. Ill. Feb. 19, 2003). 16 In sum, the plain meaning and stated purpose of Berlin s ordinance, as applied to VIP s 17 March 2009 zoning application, provide adequate notice that the size of VIP s proposed 18 inventory would qualify it as an adult-oriented store under the ordinance. In concluding to the 19 contrary, the District Court s decision at times slipped into hypothetical analysis ill suited for 20 analyzing an as-applied vagueness challenge and failed to consider that the plain meaning of the 21 ordinance encompasses not only the percentage of adult inventory items, but also the absolute 19 1 number of adult inventory items. 2 2. 3 Sufficiently Clear Enforcement Standards The second way in which a statute can be found unconstitutionally vague is if the statute 4 does not provide explicit standards for those who apply [it]. Thibodeau v. Portuondo, 486 F.3d 5 61, 65 (2d Cir. 2007) (internal quotation marks omitted). When analyzing this issue, a court may 6 determine that a statute provides adequate guidance if either: (1) the statute as a general matter 7 provides sufficiently clear standards to eliminate the risk of arbitrary enforcement; or (2) even 8 in the absence of such standards, the conduct at issue falls within the core of the statute s 9 prohibition, so that the enforcement before the court was not the result of the unfettered latitude 10 that law enforcement officers and factfinders might have in other, hypothetical applications of the 11 statute. Farrell v. Burke, 449 F.3d 470, 494 (2d Cir. 2006). 12 For the same reasons that it gave VIP adequate notice regarding its March 2009 13 application, the language here, which defines an SOB as an establishment that has a substantial 14 or significant portion of its stock in trade in adult merchandise, does not encourage or authorize 15 arbitrary enforcement. The plain meaning of the ordinance, as discussed earlier, is not vague and 16 clearly applies to VIP because the adult merchandise portion of VIP s proposed retail 17 establishment is so substantial that it potentially exceeds the size of some stand-alone stores. 18 In addition to a statute s plain meaning and stated purpose, courts should determine 19 whether a statute provides sufficiently clear enforcement standards by analyzing perhaps to 20 some degree . . . the interpretation of the statute given by those charged with enforcing it. 21 Grayned v. City of Rockford, 408 U.S. 104, 110 (1972). In the present case, McNair, Berlin s 20 1 town manager, testified that she reviews zoning applications on an individual basis and that, in 2 her view, the phrase substantial or significant means meaningful to either the business or the 3 Town of Berlin . . . . It would have import to the business. When asked why she denied VIP s 4 March 2009 zoning application, McNair stated, By the list that I saw, there were over 8,000 5 items that the applicant had said were adult products . . . . which to me is substantial. McNair 6 stated, Portion to me means an amount. A portion of something is an amount, a part of 7 something. McNair further stated that [t]he ordinance, in the way I m asked to apply it, is to 8 assist in the goals of the town, the security of its people, the health, welfare, and I believe it s 9 necessary to look at the cases individually, not be arbitrary but to really understand and take a 10 look at each application as applied. McNair s testimony is consistent with the stated purpose 11 and plain meaning of the ordinance as described earlier in this opinion. McNair s statement that 12 she reviews zoning applications on an individual basis and that the ordinance s terms do not 13 necessarily trigger a specific percentage of stock in trade or a specific absolute number of trade 14 items does not alter that conclusion. See Grayned, 408 U.S. at 114 (noting that enforcement 15 requires the exercise of some degree of . . . judgment ). 16 Furthermore, even if, as the dissent asserts, Berlin s ordinance did not provide sufficiently 17 clear enforcement standards, VIP s as-applied vagueness challenge still fails. As noted earlier, 18 even if a statute does not include clear enforcement standards, it may still survive a void-for- 19 vagueness challenge if the conduct at issue falls within the core of the statute s prohibition. 20 Farrell, 449 F.3d at 494. In Farrell, a convicted sex offender challenged a condition of his 21 supervised release that prohibited him from possessing pornography, arguing that the term 21 1 pornography was unconstitutionally vague on its face and as applied to him. Although we did 2 not disagree with Farrell s argument that the term pornography is inherently vague, and 3 [a]lthough the actors in Farrell s case had divergent views on what constituted pornography 4 and why, id. at 490, we nevertheless rejected Farrell s vagueness challenge, id. at 492. We 5 reasoned that [w]hether or not the term pornography is inherently vague, the items possessed 6 by Farrell fit within any reasonable understanding of the term, id. at 490, and [n]o reasonable 7 officer could have doubted that Farrell s possession . . . violated the terms of his parole 8 agreement, id. at 494. 9 Here, because the portion of VIP s business devoted to adult merchandise is so 10 substantial, VIP s proposed retail establishment falls under the core of the ordinance s 11 prohibition. For the reasons discussed above, VIP s proposed 8,242-item adult inventory, which 12 constitutes twelve percent of its stock in trade, falls within any reasonable understanding of the 13 [ordinance s language]. 10 Id. at 490. Accordingly, even if the ordinance did not provide clear 10 One might argue that VIP s March 2007 application does not fall under the core of Berlin s ordinance because VIP represented in that application that zero percent of its inventory would be adult merchandise. However, from the record it seems to be an open question whether or not the inventory was actually zero percent adult. Riggins, one of Berlin s officals, certainly disagreed with the way that VIP had characterized its inventory. Furthermore, and more importantly, it is VIP s March 2009 zoning application that is at issue here, and VIP represents in that application that more than 8,000 items of VIP s proposed inventory would constitute adult items. In this regard, we note that, when looking to whether Berlin s ordinance provided sufficiently clear enforcement standards, the testimony of VIP s principal that he did not know what substantial or significant portion of stock in trade means in an actual number is of only marginal value. See Dissent, infra at [6]. First, the First Amendment does not require that ordinances provide mathematical certainty when describing the conduct they prohibit. See Grayned, 408 U.S. at 110. Second, the more relevant question for DeMartino in this as-applied challenge is whether he knew that the proposed inventory in VIP s March 2009 application would cause the store to fall within the purview of Berlin s SOB ordinance. Objectively 22 1 enforcement standards, the decision to classify VIP as an SOB was not the result of unfettered 2 latitude that law enforcement officers and factfinders might have in other, hypothetical 3 applications of the statute. Id. at 494. 4 5 6 CONCLUSION For the reasons stated above, the preliminary injunction order of the District Court is VACATED and the case is REMANDED for further proceedings consistent with this opinion. 7 speaking, the inquiry could yield only one reasonable answer: yes. Put another way, VIP s March 2009 application fit comfortably within the core of the ordinance s prohibition. 23 1 2 MINER, Circuit Judge, dissenting: My dissent is prompted by my opinion that VIP is likely to 3 succeed on its claim that Berlin s ordinance was 4 unconstitutionally vague as applied to the zoning application 5 that VIP submitted on March 26, 2009. 6 I accept the proposition that the phrase substantial or 7 significant portion of its stock in trade is not 8 unconstitutionally vague on its face. 9 phrase generally does not fail[] to provide people of ordinary 10 intelligence a reasonable opportunity to understand what conduct 11 it prohibits and because it does not authorize[] or even 12 encourage[] arbitrary and discriminatory enforcement. 13 Colorado, 530 U.S. 703, 732 (2000). 14 unconstitutional as applied, however, because 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This is so because that Hill v. The phrase may be there may be instances where an adult bookstore would be unsure of whether its stock, floorspace, or revenue is made up of a significant or substantial portion of adult material, [and] there are myriad instances in which it would not. If, for example, Victoria s Secret sold a few copies of an adult magazine along with its regular stock of lingerie, it certainly would not wonder if the ordinance applied to it. Or, if the store chose to carry nothing but adult videos and toys, it would have no doubt that it was required to obtain an SOB [sexually oriented business] license to do so. In short, in many situations, people of ordinary intelligence would clearly understand whether or not the ordinance applied to them. 29 Doctor John s, Inc. v. City of Roy, 465 F.3d 1150, 1158 (10th 30 Cir. 2006) (emphasis supplied). 31 situation at hand lies somewhere in between the examples given in Many is not all, and the 1 1 the quoted excerpt: 2 but that number represents but 12% of its stock in trade. 3 VIP may have 8,000 adult items on hand, Continuing with its analysis of the facial validity of an 4 ordinance similar to the one at hand, the Tenth Circuit opined: 5 6 7 8 9 10 In the same way, in many cases the ordinance cannot be said to permit arbitrary enforcement. . . . There may be occasions where arbitrary enforcement might occur, but the standard given to officials satisfies this court that such a risk is not present to such a degree as to justify facial invalidation. 11 12 Id. (emphasis supplied). This is a case in which a person of ordinary intelligence 13 would not clearly understand whether the ordinance applied to him 14 and where arbitrary enforcement has occurred, all due to the 15 manner in which the decision-maker treated VIP s application. 16 examining the as-applied vagueness challenge before us, we are 17 constrained to determine whether (1) the ordinance gives a 18 reasonable opportunity to one of ordinary intelligence to know 19 what is required; and (2) to consider whether the ordinance 20 provides explicit standards that govern its application. 21 Rubin v. Garvin, 544 F.3d 461, 468 (2d Cir. 2008). 22 In See In applying the ordinance to VIP, the decision-maker, Denise 23 McNair, Town Manager for the Town of Berlin, reworked the 24 ordinance so as to provide her own spin to the phrase 25 substantial or significant portion of its stock in trade, 26 resulting in a decision having no reference to the ordinance 27 itself. Her testimony also demonstrated considerable confusion 2 1 about the meaning of the ordinance. 2 as follows: 3 4 5 6 7 8 9 10 11 12 For example, she testified I think that substantial or significant means meaningful to someone, myself or the Town of Berlin, I should say, not myself. But meaningful to either the business or the Town of Berlin. I think of a significant other. I think I said that in my deposition. When I hear these words, it s somebody who is meaningful to the other person it s not just a friend so it would have some meaning. It would have import to the business. It would have meaning to the town under the ordinance. 13 To Ms. McNair, meaningful entails a subjective judgment. 14 Indeed, it is a word that is vitalized only in the eye of the 15 beholder. 16 purpose: capable of being understood or interpreted: requiring or 17 done with understanding and intent. 18 DICTIONARY 1399 (1981). 19 not illuminate the phrase in question. 20 does not serve as a synonym for substantial or significant as 21 a modifier of a portion of its stock in trade, because a 22 meaningful portion of its stock in trade establishes no 23 objective standard at all. 24 McNair s formulation of substantial or significant as meaningful 25 to either the business or the town. (emphasis supplied). 26 the term significant other is especially inappropriate to an 27 assessment of compliance with the ordinance, since it is defined 28 as a person who is important to one s well-being; especially: a 29 spouse or one in a similar relationship. The dictionary defines it as having a meaning or WEBSTER S THIRD NEW INT L Having a meaning or purpose surely does Moreover, meaningful This is especially so in light of Ms. 3 And MERRIAM -WEBSTER ONLINE 1 DICTIONARY, at http://www.merriam-webster.com (last visited Jan. 2 22, 2010) (emphasis omitted). 3 To compound her unconstitutional application of the 4 ordinance, Ms. McNair insisted that she was unable to supply a 5 mathematical definition and didn t really look at a 6 percentage, although the ordinance clearly revolves around a 7 measure of quantity, i.e. what portion of stock in trade is 8 allowed to consist of adult items. 9 whether there were any publicly available instructions or other 10 guidance that would be helpful to an applicant, the Town Manager 11 answered: Other than the ordinance, I don t believe so. 12 13 14 15 16 17 18 19 20 In answer to an inquiry as to Ms. McNair described her methodology for examining VIP s application as follows: Basically I looked at the application. I looked at the list of what I would have called inventory that was attached to the application. I read our ordinance, as it was fairly new to me in my position as well as to the town. And I, based on those items and my own experience, I determined that it did need a license for a sexually oriented business. 21 Such a methodology cannot be said to provide a reasonable 22 opportunity to VIP to know what is required. 23 applied by the Town Manager, what is required is unknowable. 24 Under the test The lack of any instructions or guidance for interpreting 25 the substantial or significant language of the ordinance makes 26 for a sharp contrast between the administration of the Berlin 27 ordinance and similar ordinances in other municipalities. 4 The 1 amicus brief filed by the Connecticut Attorney General takes note 2 of numerous municipalities in the State of Connecticut that 3 specify anything over 10% of the stock in trade in adult items as 4 sufficient to designate a business as sexually oriented. 5 here that VIP is seeking to maintain an inventory of adult items 6 at 12% but would stock only 10% to provide a 2% buffer, according 7 to the testimony of Dominick DeMartino, owner of VIP. 8 9 I note Also by way of contrast, I refer to the zoning ordinance of the City of New York insofar as it governs adult bookstores. The 10 ordinance refers to such stores as having a substantial portion 11 of its stock-in-trade in adult items. 12 Hommes, 94 N.Y.2d 267, 270 (1999) (internal quotation marks 13 omitted). 14 form of an Operations Policy and Procedure Notice issued by the 15 Department of Buildings. 16 that [if] at least 40 percent of the book store s total stock 17 accessible or available . . . is comprised of adult materials, 18 then the book store has a substantial portion of its stock in 19 adult materials. 20 has held that the specific guidelines thus provided govern the 21 allowable stock-in-trade. 22 See City of N.Y. v. Les However, New York City has provided guidance in the This administrative regulation provides Id. at 271. The New York Court of Appeals And in a challenge to the zoning requirement by a sexually 23 oriented business in New York City on the ground that the 24 ordinance s distance requirements are too vague because they do 5 1 not include a statement indicating the precise standard for 2 measurement, the New York Court of Appeals noted the following: 3 4 5 6 7 8 9 To the extent that this aspect of the ordinance s provision leaves room for confusion, the problem is procedurally remediable through administrative application and rule making. Notably, there is no indication on the present record that the City s enforcement of the distance rules will be arbitrary or uneven. 10 Stringfellow s of New York, Ltd. v. City of N.Y., 91 N.Y.2d 383, 11 405-06 (1998). 12 generated by the phrase at issue through administrative 13 application or rule making, and the record here indicates that 14 the enforcement of the ordinance is arbitrary and uneven. 15 The Town of Berlin has not remedied the confusion In determining whether the regulation challenged here is 16 constitutional as applied to the plaintiff, we are required to 17 determine whether the [ordinance] presents an ordinary person 18 with sufficient notice of or the opportunity to understand what 19 conduct is prohibited or proscribed. 20 486 F.3d 61, 67 (2d Cir. 2007) (Sotomayor, J.). 21 connection, I refer to the uncontroverted testimony of Mr. 22 DiMartino: Thibodeau v. Portuondo, In this 23 24 25 Q. Do you know what substantial or significant portion of stock in trade means in terms of an actual number? 26 A. No. 27 28 29 Q. Has anyone from the town ever told you an actual number that substantial or significant portion of stock in trade means? 6 1 A. No. 2 3 4 5 Q. And in denying your application, did the town provide you any information as to how you could come into compliance with that definition? 6 A. No, they did not. 7 Although Ms. McNair responded in the affirmative to the question 8 of whether she believe[d] [that] most people will know one way 9 or the other (emphasis supplied) what is meant by substantial 10 and significant, it is apparent that Mr. DeMartino never was 11 able to acquire such knowledge, either one way or the other. 12 I can only conclude from the foregoing that the Berlin 13 ordinance is unconstitutionally vague as applied to VIP because: 14 it has been applied in an arbitrary way, without explicit and 15 knowable standards; that a person of ordinary intelligence has no 16 opportunity to know what is required; and that the interpretation 17 by the Town Manager is inconsistent with the intent and purpose 18 of the ordinance to establish some measure for determining what 19 numerical proportion of a store owner s inventory of adult items 20 may be carried in a retail establishment not located in an area 21 zoned for sexually oriented businesses. 22 also informed by the past dealings between VIP and the Town of 23 Berlin and the First Amendment implications of the ordinance. 24 25 These conclusions are For the foregoing reasons, I would affirm the Order of the District Court. 7

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