According to a divided Pennsylvania appeals court, apparently not.
The Commonwealth Court of Pennsylvania has ruled in favor of old-fashioned dining etiquette, deciding that sexual activity is not an “accessory use” to Club Kama Sutra.
The restaurant, which opened in 2000, was ordered to close in 2005 after Philadelphia zoning inspectors said it was breaking the law by offering sex between patrons.
The zoning board 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, a lower court said that just because the city's zoning ordinances do not expressly prohibit sex clubs, it does not mean they are permitted.
Club Kama Sutra 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.”
Club Kama Sutra 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.
MAJ, Club Kama Sutra’s parent company, argued on appeal that it was in compliance with a 2000 zoning 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 permit.
MAJ also maintained that Philadelphia zoning ordinances do not specifically prohibit sexual activity on the premises and that Club Kama Sutra did not fit all zoning code definitions of a “cabaret” because those engaging in sexual activity were not paid performers.
The court’s majority disagreed and said in the ruling 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.”
Judge Renee Cohn Jubelirer further said that if the drafters of the 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.”