So you want to open a sex shop in Berlin, Connecticut?

The federal district court in Connecticut enjoined enforcement of a Town law regulating sex shops, as applied to a business that wanted to sell (among other things) sex toys. The Court of Appeals reverses and finds that the Berlin, Connecticut law is not unconstitutionally vague.

The case is VIP of Berlin, LLC v. Town of Berlin, decided on January 25. VIP owns a 25,000 square foot store. It wanted a zoning permit, but the Town decided that the store would violate the Town's "sexually oriented business" ordinance that says you can't situate these stores within 250 feet of a residentially zoned area. What prompted this adverse decision was the fact that the store would have an inventory of about 67,000 products, and about 8,000 of them were adult products in the form of DVDs, magazines and sex toys.

VIP brought a lawsuit claiming the sexually oriented business ordinance was unconstitutionally vague. Laws must be clear, not vague. Here's the basic rule: "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 ordinary intelligence a reasonable opportunity to know what is prohibited and to provide explicit standards for those who apply them.”

The Town law says that a sexually-oriented business is an establishment that has a "substantial or significant portion" of its stock in trade in adult merchandise. What does substantial or significant mean? VIP says this language is too loose to guide any business owner. To answer this question, the Court of Appeals (Straub, Wesley and Miner [dissenting]) looks to various dictionaries that say generally that "substantial" is "of ample or considerable amount or quantity." The majority says language like "substantial" is not vague:

Applying these definitions to the present case, VIP’s proposed 8,242-item adult section clearly falls under the ordinance because the “part” of its stock in trade devoted to adult merchandise is of “considerable quantity” and “of a noticeably or measurably large amount.”

Other federal laws, by the way, use language like "substantial" in regulating corporate and government behavior. This kind of language fits nicely in laws which try to govern the cornucopia of economic and social activity that cannot be regulated more precisely. VIP's constitutional challenge to the Berlin, Connecticut law fails.

Judge Miner dissents. He agrees that the phrase "substantial or significant portion of its stock in trade" is not vague on its face. But he does argue that this language is unconstitutional as applied to VIP. The Town Manager testified that substantial or significant "means meaningful to ... the Town of Berlin ... [b]ut meaningful to either the business or the Town of Berlin. I think of a significant other. ... [I]t's somebody who is meaningful to the other person it's not just a friend so it would have some meaning." This is a subjective judgment. And "meaningful" does not mean "substantial" or "significant." "Significant other" is also vague. The fact that the Town Manager could not supply a mathematical definition and "didn't really look at a percentage" further convinces Judge Miner that this law is unconstitutionally vague as applied to VIP.