Foes of Anti-AIDS Ordinance Banning Sex in Bathhouses Prepare to Sue City

Saying that a San Diego city ordinance regulating gay-oriented bathhouses is discriminatory and would not halt the spread of AIDS, opponents of the measure have prepared a lawsuit aimed at preventing its enforcement.

In a suit to be filed today in Superior Court, attorneys for the four bathhouses operating in the city seek to overturn an ordinance passed by the City Council in March that could be used to close the bathhouses if sexual activity occurs at them. The city ordinance, identical to one approved in February by the county Board of Supervisors, takes effect Wednesday.

Both city and county officials have described their respective measures as attempts to control the spread of AIDS, which is transmitted primarily through sexual activity. But bathhouse owners and gay community leaders have denounced the ordinances as attempts to “legislate morality.�

Under the city ordinance, responsibility for regulating bathhouses within the city limits was passed to the county’s Department of Health Services.

“It’s the city’s ordinance, and the fact that they’ve appointed an outside agency to enforce it doesn’t change that,� said attorney Thomas Homann, explaining why the bathhouse owners sued the city rather than the county. Homann and attorney Michael Crowley filed the lawsuit on behalf of Club San Diego, Vulcan Steam & Sauna, Club Mustang and Dave’s Club.

In the lawsuit, the attorneys argue that the city ordinance is not designed to merely regulate bathhouses, but to force their closure. Noting that bathhouse patrons use the facilities “for many reasons other than sexual ones,� the attorneys contend that the ordinance would therefore violate the patrons’ “constitutional right to free association for social, recreational and political purposes.�

Contrary to the ordinance’s stated goal, the lawsuit adds that there is “no evidence that operations of gay bathhouses have caused the spread . . . of AIDS.� In fact, some gay leaders, noting that bathhouses often provide condoms and AIDS education material to their patrons, have argued that closing the private clubs could even worsen the local AIDS problem.

But Dr. William Cox, director of the county’s Department of Health Services, has said that public health officials are convinced that any sexual activity in bathhouses--defined in the ordinance as anal, oral or vaginal sex, with or without condoms--contributes to the spread of acquired immune deficiency syndrome.

“These establishments . . . offer easy accessibility to sexual contact with individuals who are very likely to be carrying the (AIDS) virus,� the city ordinance states. “It is the view of the Department of Health Services that the severe health risks posed by such a situation outweigh any potential harm resulting from restricting the sexual activities occurring in these establishments.�

Monthly Inspections

The ordinance effectively precludes bathhouses from being used for sexual activity through stringent construction, lighting and ventilation regulations, including a one-person limit in any locked room. The measure, to be enforced by monthly inspections, also requires bathhouse operators to “immediately expel . . . all persons engaged in high-risk sexual activity� on the premises.

When county health officials attempted to visit the bathhouses last month for a preliminary review, they were denied access. After that standoff, the health officials sent a letter to the bathhouse owners warning that their annual permits would not be renewed unless the bathhouses are inspected to determine that they conform to the new ordinance.

Pending a final court ruling on the legality of the ordinance, the lawsuit asks for a preliminary injunction preventing the city from enforcing the measure.