CCLU

Connecticut Civil Liberties Union Foundation
32 Grand Street  Hartford, CT 06106
860-247-9823  Fax 860-728-0287

October 28, 2002


Janis Small Esq.
Corporation Counsel, Town of East Hartford
Town Hall
740 Main Street
East Hartford, CT  06108-3114

Re: Stereo Surgeons, Inc. and Ken Bernacky

Dear Ms. Small:

We are writing on behalf of Ken Bernacky, owner of Stereo Surgeons at  1195
Main Street in East Hartford.  We understand the pertinent facts to be as follows.  Mr. Bernacky had affixed a sign, to the interior of his store window, that bore the message,
"Geno is God."   "Geno" refers to Geno Auriemma, head coach of the University of Connecticut's women's basketball team, of which Mr. Bernacky is a staunch fan.
Communicants at a church across the street objected to the sign, deeming it blasphemous,
And Mr. Donald Vigneau, the Town's Director of Inspections and Permits, instructed Mr.
Bernacky to remove it.  Mr. Vigneau's stated reason for the removal order, as set forth in
A "cease and desist" letter dated October 18, 2002, was that the sign celebrated the
National championship that Mr. Auriemma and his team had won last spring; that this
made it  "temporary sign," i.e., a sign that advertised a "special event," under the Town's
Zoning Regulations; and that such signs could not remain in place for longer than sixty days after the "event" (in this case, the winning of the championship) had occurred. Mr.
Bernacky has removed the sign pending the outcome of our discussions.

           We believe that the zoning regulations are unconstitutional as applied to Mr.
Bernacky, and that the cease and desist order is unconstitutional as well.  It seems plain
that the stated reason for the order was a pretext, and that the true purpose was to
accommodate objections, to the content of the sign, by persons associated with the church. This is apparent from the fact that the sign makes no reference to the championship, or to any other past occurrence; instead, it refers only to "Geno"
[Auriemma], who is still the women's basketball coach. In addition, Mr. Vigneau did not order the removal of another sign, which Mr. Bernacky had placed in the same window,
that reads,  "We love Uconn women basketball."  Suppressing expression on the basis of
audience reaction to the perceived content of the expression is the clearest imaginable
First Amendment violation.  Boos v. Barry, 485 U.S. 312, 321 (1988);  Capitol Square
Review & Advisory Bd. v. Pinette,  515 U.S. 753 (1995)

           We also believe that the pertinent portions of the zoning regulations themselves,
as interpreted and implemented by Mr. Vigneau, are unconstitutional on their face.  See
Beal v. Stern, 184 F.3d 117, 127 (2d Cir.  1999),  quoting Ward v. Rock Against Racism,
491 U. S. 781, 795-96 (1989) ("Administrative interpretation and
implementation are highly relevant in evaluating a [First Amendment] facial
challenge").  Mr. Vigneau states, in his October 18 letter, that he understands the
regulations to allow the permanent placement of business signs in store windows, but not
the permanent placement of non-commercial signs such as Mr. Bernacky's.  Thus, the
regulations, as authoritatively interpreted and implemented by Mr. Vigneau, invert First
Amendment priorities by elevating commercial above non-commercial speech.
Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981); National Advertising Co. v.
Town of Niagara, 942 F.2d 145, 151 (2d Cir. 1991); National Advertising Co. v. Town of Babylon, 900 F.2d 551, 556-57 (2d Cir. 1990).  Furthermore, the regulations apparently leave inspectors at large to interpret sign content subjectively, as is evidenced in the
instant matter, wherein Mr. Vigneau interpreted a sign that contains no reference to any past occurrence as somehow pertaining to a "special event,"  The regulations,
accordingly, lack sufficient precision to provide the clear guidance, to law enforcement
officials, that the First Amendment requires, and are hence void for vagueness.  Chicago
v. Morales,  119 S.Ct. 1849, 1861-62 (1999); Kolender v. Lawson,  461 U.S.352, 357
(1983).

           Finally, we believe that the cease and desist order violates the zoning regulations
themselves.  We do not understand why the order explicitly cites Sections 210.5(e)
("Portable signs") and implicitly invokes Section 210.5(d)(1) (Temporary signs by Civic
and non profit organizations), when Mr. Bernacky's sign falls into neither category.
Rather, his sign is governed by Section 210.5(b)(2) (allowing the display of permanent
interior window signs, in business districts, without prior approval, as long as such signs do not cover more than 25 per cent of the window area).  The easiest and, we submit, the correct solution to the current problem is for the Town to interpret the last-quoted section
as entitling Mr. Bernacky to display his sign provided that it conforms, as we believe it
does, to the space requirement.  Interpreting the regulations in this manner would be in
keeping with the courts' consistent practice of construing statutes and regulations to
avoid even the possibility of constitutional taint.  Stern v. U.S. Gypsum, Inc., 547 F.2d
1329, 1344 (7th cir. 1977), cert denied  434 U.S. 975 (1977) ("courts must seek any
reasonable construction so as to avoid serious constitutional doubt"); State v. Campbell 224 Conn.  168, 175 (1992); Negron v. Warden,  180 Conn. 153, 166 (1980).

           In event of litigation, the Town, if unsuccessful, would be liable for Mr.
Bernacky's damages and attorneys' fees. Additionally, we believe that town officials
who have participated or collaborated in the issuance of enforcement of the order could
be personally liable, not only for these sums, but for punitive damages as well, based
upon their having disregarded Mr. Bernacky's clearly settled rights.  The pertinent
authorities on immunity and liability are surely well known to us both and require no
elaboration here.

           We look forward to your early response.

Yours truly,


Martin B. Margulies
Cooperating Attorney

Philip D. Tegeler
Legal Director, Connecticut Civil Liberties Union Foundation

P.S. After this letter was drafted, Mr. Bernacky reported to us that Mr. Vigneau entered
his store on the afternoon of Friday October 25 and reproached him for going to the
newspapers.  We respectfully solicit your written assurance that the Town does not
condone such behavior by its officials, and that Mr. Bernacky will suffer no harassment
in the future for having exercised First Amendment rights.

Ken Bernacky  Kenneth Bernacky  Stereo Surgeons  Stereo Surgeons, Inc  Stereo Surgeons, Inc.  Arff Bernacky  Stereo Surgeons Inc  Stereo Surgeons Inc.