(Who Decides) What Is A Commercial Sex Venue?

But, ya are, Blanche, ya are! From the Sunday edition of the Los Angeles Times California section comes the news that a number of gay sex clubs and bathhouses with names like "Slammer," "Flex" and "Zone" are suing Los Angeles County:

Beginning this month, the county is requiring "commercial sex venues" to obtain a county health license, pay an annual fee of more than $1,000, allow quarterly inspections and provide on-site testing and counseling for HIV and other sexually transmitted diseases for at least 20 hours a week. The county defines a commercial sex venue as a business that "as one of its primary purposes allows, facilitates and/or provides facilities for its patrons or members to engage in any high-risk sexual contact while on the premises." But that definition doesn't fit these nine bathhouses and sex clubs, the lawsuit contends, because they have "always sought to prevent high-risk sex." The suit, filed in Los Angeles County Superior Court, asks a judge to void the regulations or exempt the nine bathhouses and sex clubs.

Although it pains me to say so, I think I must agree with the odious Michael Weinstein, the head of AIDS Healthcare Foundation, the world's largest AIDS services organization, who the article delicately refers to as "an outspoken and sometimes controversial figure in AIDS prevention" (to say the least!). It is highly unlikely that the commercial sex venues are going to succeed in this lawsuit. So, what is the point of the lawsuit? Well, let's look at the history of how we got to this point.

This most recent ordinance was approved by the County Board of Supervisors January 17, 2006 after more than a year and a half of negotiations with the targeted businesses themselves. In September 2004, the Board of Supervisors had approved the original ordinance which led to the most recent regulations which the nine bathhouses and two sex clubs are now suing to say do not apply to them. There's no question in my mind that the definition of "commercial sex venue" defined in the ordinance does indeed allow them to be regulated in this manner (or basically any manner the County sees fit). In fact, Los Angeles County Public Health Officer Jonathan Fielding probably already has the power to close all commercial sex venues as part of a public health emergency. Clearly, the owners of these venues don't want to see this happen.

What these businesses should be doing is not making laughable claims of violations of constitutional freedoms of expression, peaceful assembly and privacy, but instead arguing that the ordinance is excessively overbroad and that they are being subject to unfair prosecution. What business does not have a bathroom? Doesn't a bathroom with a locked door "allow, facilitate and/or provide a facilit[y] for its patrons or members to engage in high-risk sexual contact while on the premises"? Of course, just because a business has an area in which high-risk sexual contact could occur, does not mean that this is "one of the primary purposes" of this business. This is my point. This question is a matter of judgment. Who decides?

I think this argument ("There are lots of businesses one could could construe as a commercial sex venue under this definition, why are you picking on us?") is a more fruitful venue of attack on the County's commercial sex venue regulation than to say that the County is "imposing 'excessive fines and cruel and/or unusual punishment'" on the businesses. How different are "Rage," "Here Lounge," "Circus of Books" or "24 Hour Fitness West Hollywood" different from "the Hollywood Spa" when viewed through the prism of the ordinance's definition of a commercial sex venue?