Señor Rattler’s, a restaurant, operated under the terms of a 1988 variance that prohibited entertainment or a dance floor on the premises, and further provided that the premises would not be used for a club. In 2000, after MAJ had acquired the property, MAJ sought and received a use permit to operate a restaurant with accessory “live entertainment and dancing by patrons….” (2000 permit). MAJ opened an establishment called Club Kama Sutra, which offered buffet dining on the first floor, DJ music and dancing on the third floor, and open cubicles with futon mattresses where patrons could engage in sexual activity, as well as watch other patrons so engaged, on the second floor. The club 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. In 2005, the City issued a “Cease Operations Order” to MAJ to cease operating a restaurant not in accordance with its permit, to cease operating a sex club without a permit, and to cease operating a private club without a permit. On MAJ’s appeal to a zoning board, the board concluded that the 1988 variance terms ran with the land and, therefore, bound MAJ. On further appeal, MAJ argued the sexual activity was “live entertainment,” like gambling, and a valid accessory use to the property’s use as a restaurant; therefore, Club Kama Sutra was operating in compliance with the 2000 permit. The trial court ruled that simply because Philadelphia’s zoning ordinances did not specifically prohibit sex clubs did not mean that they were permitted, and held that the use of the property for the sexual activity of patrons was not an accessory use to a restaurant use.
The Commonwealth Court of Pennsylvania affirmed. Even assuming Club Kama Sutra was a restaurant, the accessory use argument failed. On MAJ’s attempt to cite as precedent a case where the state Supreme Court ruled that off-track betting was an accessory use to a restaurant, the court noted that, unlike the situation at bar, legislation had created a custom whereby off-track wagering was associated with fine dining. Further, the use of the property as a sex club did not appear to be subordinate to the facility’s use as a restaurant and was not customarily incidental to that use: “Club Kama Sutra’s visitors seem to have paid primarily for access to the ‘party’ rather than for the buffet.” This interpretation received additional support from the price structure, which the court noted was “wholly unrelated to the amount of food a patron might consume.” The argument that no provision of the city zoning ordinances prohibited MAJ from allowing its patrons to engage in sexual activity was likewise rejected – the ordinance explicitly enumerated “permitted uses.” Merely because a zoning ordinance did not explicitly forbid operation of a sex club did not mean that an individual or corporation could obtain a permit for a different use and operate a sex club.
MAJ Entertainment Inc. v. City of Philadelphia, 2008 WL 1913229 (Pa. Cmwlth. Ct. 5/2/2008 )
The opinion can be accessed at: http://tinyurl.com/4po9td
This case brief was prepared by Sophia Stadnyk of IMLA (International Municipal Lawyers Association) for IMLA News Issue No. 7, May 14, 2008. For more information about IMLA visit www.imla.org