Conn. Retailer Loses Round Over SOB Ordinance

Rhett Pardon
BERLIN, Conn. — In a decision of particular interest to adult retailers, the 2nd U.S. Circuit Court of Appeals has ruled that the total adult inventory — not a percentage of total inventory — qualifies a store as an adult business.

Monday’s ruling came after Very Intimate Pleasures said it would carry 8,242 adult items at its 15,000-square-foot store, going over the town of Berlin, Conn.’s 12-percent adult products rule. The store has a total of 67,236 adult and mainstream items.

A panel of the 2nd Circuit was asked to rehear an earlier U.S. District Court decision that determined Berlin’s use of the terms in its 12-percent rule of “significant and substantial” were overly vague.

The town appealed to the 2nd Circuit, which ruled in the town's favor Monday.

Daniel Silver, an attorney representing Very Intimate Pleasures, said the ruling was just a "hiccup along the way." He expects another pending federal lawsuit that Very Intimate Pleasures has brought against Berlin to ultimately clear a path for Very Intimate Pleasures' store.

Silver said he plans to petition the 2nd Circuit’s full panel to review the ruling.

A trial in Very Intimate Pleasures's other case is scheduled for July in U.S. District Court in Bridgeport. In that case, Very Intimate Pleasures contests Berlin's right to regulate an adult-oriented business.

Berlin will argue that it can regulate adult-oriented businesses because they have substantial negative effects on the community, said Thomas Gerarde, a lawyer for the town.

Monday's ruling centered on how to define a business like Very Intimate Pleasures, but the upcoming case challenges Berlin's right to regulate it.

The case is VIP of Berlin LLC vs. Town of Berlin and (town manager) Denise McNair, No. 09-2950.