8,000 Adult Items in One Store Found “Substantial” by 2nd Circuit

In VIP of Berlin, LLC v. Town of Berlin, __ F.3d __, 2010 WL 252292 (2nd Cir. Jan. 2010), the Second Circuit Court of Appeals overturned a district court ruling and rejected an as-applied vagueness challenge to a Town of Berlin’s ordinance and in so doing, presented an excellent discussion of the vagueness doctrine and its application to the construction of the term “substantial”.

The Town of Berlin defines an Adult Oriented Store 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.'” (Id. at p. 1.) The plaintiff argued that the definition of “substantial or significant” was impossibly vague because it did not provide him with sufficient guidance to determine exactly how much adult inventory he could stock without being considered an Adult Oriented Store. In rejecting this claim, the Court of Appeal looked to the ordinary meaning of the words “substantial” and “significant” and explained that VIP would fall within the definition of an Adult Oriented Store if “part” of its stock in trade devoted to adult merchandise is of “considerable quantity” and “of a noticeably or measurably large amount.” (Id. at p. 5.)

Over 8,000 items of the store’s inventory of 67,237 items, or 12%, were determined by the Town manager to be “adult” in nature. The court held that 8,000 adult items is clearly a considerable quantity, and therefore “substantial,” because the plain meaning of the ordinance encompasses both the absolute number of adult items and the percentage of adult items in the total inventory. Thus, 8,000 adult items is “substantial” whether these items constitute 100% of the store’s inventory or only 12% as in this instance.

This decision will be helpful for cities using terms such as “regular and substantial” or “substantial and significant” in their adult ordinances. While the Court did not specifically cite to (People v. Superior Court (Lucero) (1989) 49 Cal.3d 14, the California Supreme Court case that first introduced the phrase “regular and substantial” into the lexicon of constitutionally adequate standards for adult business ordinances in California, this opinion affirms both the Lucero standard and the California Supreme Court’s reasoning in a federal appellate decision.

For questions regarding the impact of VIP of Berlin, LLC v. Town of Berlin, contact Deborah Fox.