Food and sex do not mix –- at least according to a Pennsylvania appeals court which ruled that “semi-public sexual activity” between patrons is not a "customary and incidental" form of entertainment at a restaurant.

The menu at Philadelphia's Club Kama Sutra had included not only buffet dining and dancing to DJ music but also sex acts in open cubicles furnished with futon mattresses. The restaurant's use permit allowed accessory “live entertainment and dancing by patrons.”

Under the City of Philadelphia code, an accessory use of a property is “subordinate to and on the same lot as the main use on a lot and customarily incidental to the main use.”

But the city shut Club Kama Sutra down in 2005 for violating the permit. And earlier this month, a 6-1 majority of the Pennsylvania Commonwealth Court ensured that the futons will not be back in action any time soon.

“[T]he use of the Property as a venue for its patrons to engage in sexual activity is certainly not customary and incidental to its use as a restaurant,” the opinion said, denying the appeal of the restaurant's owner, MAJ Entertainment.

In a dissent, Judge Rochelle S. Friedman said the “consensual, non-commercial, adult sexual activity” at Club Kama Sutra was analogous to other forms of entertainment such as “audience participation in a burlesque act at a dinner theater’s Las Vegas-style Revue or audience participation in a murder mystery dinner show.”

“The patrons 'get into the act' and the act may have a sexual component,” she noted.

In Southco, Inc. v. Concord Township, 713 A.2d 607 (1998), the Pennsylvania Supreme Court court said off-track betting was an accessory use to a high-end “Turf Club” restaurant. “As to the exclusively adult nature of the entertainment at MAJ's place, the entertainment is of the same general character as that at a restaurant with off-track betting,” Friedman concluded.

MAJ will petition the Supreme Court for review. “Some people get moral issues and legal issues confused,” said its attorney, Kenneth A. Young.

Before the city issued the cease operations order, Club Kama Sutra charged couples and single men $100 for admission, but single women only $25. “This pricing structure seems geared more toward maintaining a felicitous gender balance for the operation of a swingers’ club than to the operation of a restaurant,” Judge Renée Cohn Jubelirer wrote for the appeals court majority.

She said Southco does not apply to Club Kama Sutra because it was based on legislation which only allows off-track betting in facilities that also have high-end restaurants. “Currently, we are aware of no such legislation associating semi-public sexual activity with haute cuisine,” she added.

But Friedman cited the city zoning code's definition of a “cabaret” as “an adult club, restaurant, theater, hall or similar place” which features entertainers “performing specified sexual activities.”

That definition, she reasoned,

is legislation associating “semi-public sexual activity” with restaurants. The majority’s reluctance to acknowledge as much suggests that, even if there were a hundred lawful “cabarets” in the City, the majority would not recognize the live performance of sexual activities as an accessory use to a restaurant.

Philadelphia's City Paper published a graphically detailed cover story on Club Kama Sutra in February 2004, describing it as a "lifestyle club."

By Matthew Heller
5/8/08