PA- Having Sex With Your Entree? Not So Fast, Says Court

Commonwealth Court of Pennsylvania rules against Club Kama Sutra in dispute with city of Philadelphia

5-5-2008 Pennsylvania:

A divided Commonwealth Court of Pennsylvania has ruled in favor of old-fashioned dining etiquette, ruling that sexual activity is not an accessory use to a restaurant.

The split seven-judge panel upheld a trial court's ruling against Club Kama Sutra in Philadelphia.

In MAJ Entertainment Inc. v. the City of Philadelphia, the panel consisting of President Judge Bonnie Brigance Leadbetter and Judges Renée Cohn Jubelirer, Robert Simpson and Doris A. Smith-Ribner -- with Judges Dan Pellegrini and Mary Hannah Leavitt concurring -- ruled that the MAJ-owned Club Kama Sutra violated its restaurant permit by providing an area on the premises where patrons could openly engage in sexual activity with one another.

Judge Rochelle S. Friedman dissented.

The majority ruling maintained the trial court's decision, which supported the original decision of the Philadelphia Zoning Board of Adjustment denying MAJ's appeal from a cease operations order issued by the city's Department of Licenses & Inspections.

According to the majority opinion, penned by Cohn Jubelirer, Club Kama Sutra's property was previously occupied by a restaurant called Señor Rattler's, which had operated under a 1988 provisos of a variance stipulating that the club would not provide live entertainment, that there would not be a dance floor on the property and that the owner would not apply for a license to operate the restaurant as a club.

When MAJ acquired the South Street property in 2000, it obtained a permit to operate a restaurant with accessory "live entertainment and dancing by patrons." MAJ then opened Club Kama Sutra, which featured a buffet on the first floor, dancing on the third floor and, according to the opinion, "open cubicles with futon mattresses where patrons could engage in sexual activity, as well as watch other patrons so engaged, on the second floor."

According to the majority opinion, the cease operations order was issued in 2005. MAJ appealed to the board, which found that the 1988 provisos of variance ran with the land and, therefore, bound MAJ to the same stipulations that had been imposed upon Señor Rattler's.

The board also found that allowing patrons to engage in sexual relations with one another was not a use customarily incidental to a restaurant. Without taking any additional evidence, the trial court affirmed these conclusions on appeal, adding that even if the 1988 provisos had not been binding to MAJ, the owner still was not using the property according to the guidelines of the 2000 permit.

--Dinner, eaten by two dating persons, cannot be a sexual experience, so sayeth the court! How long has it been since the justices have dated?

The trial court also said that just because the city's zoning ordinances do not expressly prohibit sex clubs, it does not mean they are permitted.

On appeal to the Commonwealth Court, MAJ argued that it was in compliance with the 2000 permit because sexual activity on the property was "live entertainment," making it an accessory use to the restaurant, and therefore MAJ had a vested interest in the 2000 permit. The owner also maintained that Philadelphia zoning ordinances do not specifically prohibit sexual activity on the premises.

The majority challenged MAJ's attempt to prove its first argument by citing as precedent a case where the state Supreme Court ruled that off-track betting was an accessory use to a restaurant. In this case, the Commonwealth Court concluded, the ruling was based on the Race Horse Industry Reform Act, which only permits off-track betting in facilities that also have high-end restaurants.

"In effect, this legislation created a custom whereby off-track wagering was associated with fine dining," said Cohn Jubelirer. "Currently, we are aware of no such legislation associating semi-public sexual activity with haute cuisine."

According to the majority, another reason the Supreme Court ruled in favor of allowing off-track betting in a dining establishment is that in that particular restaurant, gambling was subordinate to dining because the betting area accounted for much less of the building space.

The majority said sexual activity was not subordinate to dining at Club Kama Sutra because the establishment's pricing structure seemed more in keeping with that of a sex club than that of a traditional buffet-style restaurant.

According to testimony from the board hearing by MAJ's president, as quoted in the majority opinion, the establishment charged $100 per couple on Saturday nights, $75 per couple on Friday nights, $25 for a single woman to attend on either night and $100 for single men, who were only allowed in on Friday nights.

"This pricing structure seems geared more toward maintaining a felicitous gender balance for the operation of a swingers' club than to the operation of a restaurant," Cohn Jubelirer wrote.

The majority also said that at the time it was opening Club Kama Sutra, MAJ would have been better off applying for a permit to operate a "cabaret," which by city zoning ordinance definition is "[a]n adult club, restaurant, theater, hall or similar place which features topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators or similar entertainers exhibiting specified anatomical areas or performing specified sexual activities."

--Am I reading this correctly?

Cohn Jubelirer wrote that if the drafters of this zoning code had considered sexual activity to be an acceptable form of live entertainment for a restaurant, "there would have been no need to either define cabarets as a separate use, or to provide that a restaurant could be a cabaret."

On the issue of whether MAJ had a vested interest in the 2000 permit, the majority concluded that it did not because it failed to exercise due diligence and exhibit good faith when it failed to disclose on its permit application or any time thereafter that Club Kama Sutra would include an area specifically designated for sexual activity by its patrons.

The majority refuted MAJ's final argument, in which it said it had operated within its rights because city zoning ordinances did not expressly prohibit sex clubs, by ruling that because city zoning ordinances did not expressly allow for sex clubs, MAJ was in violation.

In her dissenting opinion, Friedman argued that in Club Kama Sutra's case, sexual activity is a form of entertainment for the patrons who engage in it and can therefore be considered akin to other disparate but permissible forms of entertainment like off-track betting and karaoke.

Friedman also wrote that she believed MAJ had exercised due diligence by seeking advice from the Department of Licenses & Inspections once it realized, a year after opening, that it was not allowed to operate a sex club with the permit it had obtained. She maintained that even if MAJ knowingly continued to operate Club Kama Sutra in violation of its permit, the department also had full knowledge of what was happening on the premises and it still allowed sexual activity to continue there until 2005. It is for this reason that she said she believed MAJ acted in good faith.
Finally, she said Club Kama Sutra did not fit all city zoning code definitions of a "cabaret" because those engaging in sexual activity were not paid performers.

MAJ's attorney, Kenneth A. Young of Kenneth A. Young and Associates, said he and his client would "definitely" be "filing an allocatur brief."

"Some people get moral issues and legal issues confused," he said of the Commonwealth Court's ruling.

Cheryl Lorraine Gaston, a lawyer for the city, could not be reached at press time. ..more.. by Zack Needles, The Legal Intelligencer