Wednesday, July 26, 2006
Judge Allows Challenge to Bathhouse Ordinance to Go Forward
By a MetNews Staff Writer
Los Angeles Superior Court Judge Ronald Sohigian has overruled a demurrer by the City of Los Angeles and Los Angeles County to a suit by bathhouse owners challenging the enforcement of Los Angeles city and county ordinances regulating their businesses.
In a ruling filed Monday, however, the judge struck substantial parts of the complaint, including the plaintiffs’ allegations that the ordinance violates substantive and procedural due process rights and the First and Eighth Amendments. The plaintiffs were given leave to amend.
The ordinances require every “commercial sex venue” to obtain an operating permit, and give broad authority to the county health officer to enact and periodically revise regulations, violation of which may result in revocation of a permit. Los Angeles, like most cities in the county, lacks its own health department and delegates authority for the enforcement of its health ordinances to the county.
The plaintiffs in the suit claim the county is unfairly targeting them, trying to label them as commercial sex venues when they are not. Sohigian agreed that the plaintiffs adequately pled claims that they are not commercial sex venues under the ordinances.
A “commercial sex venue” is defined as “any establishment that charges patrons or members a fee for admission or membership and which 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.”
The bathhouses insisted in their complaint that they “always have sought to prevent high risk sex and prevent transmission of disease” by posting warning signs, providing condoms and “safe sex materials” and requiring patrons to acknowledge in writing that such conduct is prohibited, and banning violators from their premises.
Those allegations, Sohigian said, are sufficient to state a cause of action for declaratory relief as to whether the plaintiffs are subject to the ordinance. But “on all the other bases for relief sought by plaintiffs this court is persuaded by the arguments of defendants,” the judge said.
The plaintiffs pled that their First Amendment rights to freedom of speech and association are being trampled upon, as the county seeks to inhibit their ability to offer “a venue for the exercise of constitutional rights of Freedom of Association, Freedom of Speech through social and political discourse and the Pursuit of Happiness, predominantly accessed by members of the gay community wishing to afford themselves of a safe, secure, clean, sensitive and supporting environment for such.”
But those rights must be balanced against the government’s compelling interest in stopping the spread of AIDS and other sexually transmitted diseases, Sohigian said.
The judge did, however, reject the defense arguments that the plaintiffs lack standing because they have not applied for permits. They have standing as taxpayers, the judge said, even if they have not suffered injury.
Copyright 2006, Metropolitan News Company