Zoning Board revokes 'sex positive' club permit

Tacony's "sex positive" club may be no more.

After an hour of testimony that included discussion of whether a club operator had a sex dungeon in its basement and talk of constitutional rights to sexual expression, the city's Zoning Board of Appeals voted 3-0 on Wednesday to revoke Philadelphia Music Hall's permit to operate as a fraternal organization in the former Tacony Music Hall.

Club leaders say they offer a safe space for sexual programming, discussion, and parties, so their members don't need to meet at dangerous or unlicensed spaces, such as warehouses or underground bars. Sexual activity is not encouraged on the second and third floors of the building at 4815 Longshore Ave., but it is not prohibited.

A group of residents in the neighborhood  have vigorously opposed the club, though none who testified at the hearing have reported any issues to the city's Department of Licenses and Inspections.

At issue was whether the fraternal organization designation should stand. The club met all the city's requirements for registering as a fraternal organization, which are minimal: a registered nonprofit open to "bona fide, annual dues-paying members and their occasional guests."

The group was not required to provide a description of its purpose or activities in its application to L&I to become a fraternal organization.

But attorney Matthew McClure of Ballard Spahr, who represented residents opposed to the club, argued that the sexual activity in the club aligned it more appropriately with an adult entertainment venue. (An adult entertainment permit would mean the club would need to relocate, because the site is not zoned for adult use.)

"We believe that the permit that was issued by L&I was really the result of a novel argument at best, but really a sham … . This fraternal organization is a venue for … sexual activities, sexual education, explicit sexual uses, as well as a sexual play space," McClure told the board.

Attorney Leonard Reuter, who represented L&I, which granted the permit, said the city does not require detailed information on the usage of a fraternal organization. To ask about activities or membership and then approve or deny based on those factors could be unconstitutional.

"Are we going to ask, What's the racial composition of your members? What religion do you practice? What do you believe in?" Reuter asked. "Sexual expression is protected under the First Amendment."

The board was not swayed by the constitutional argument.

"The community is not in favor of what the fraternal organization is using that label for," chair Frank DiCicco said shortly before voting.

Music Hall executive director Deborah Hinchey said her group will appeal the decision to Common Pleas Court.

The city's law department allows organizations to operate without a permit while an appeal is pending unless there are safety issues, L&I spokeswoman Karen Guss said.

"They have 30 days to file an appeal, so during that period we want to make sure they get the benefit of the appeal, and we have no plans to shut it down," Guss said.

McClure, who runs the law firm's zoning and land-use team, distributed binders filled with clippings about the group and photos pulled from the group's website, including images of people in bondage.

He made frequent mention of S&M practiced in the club and to a sex dungeon, which led to a series of questions about whether the basement was being used as a sex dungeon. It isn't, Hinchey said.

At one point, Reuter argued that a billiards club, dance club, or theater club goes through the same permitting process, and the only difference was that the sex club's activities were offensive to some.

Zoning board member Carol Tinari interjected, holding up a picture of a naked man with a gag in his mouth. "Is this singing or dancing?" Tinari asked. "Come on, Leonard."

Reuter responded that the city shouldn't be picking and choosing between activities.

"With all due respect," Reuter said. "I think you're making our point."