A Dallas suburb appears to be backing away from its new law banning sex clubs in private homes that a homeowner is challenging as an infringement on the right of adults to engage in private sexual conduct.

The city of Duncanville passed the law in November after receiving complaints from neighbors about the weekend parties at Jim Trulock's split-level home which he hosts for up to 100 members of his “Cherry Pit” swinger's club.

The new Chapter 11B-5(h) of the city's municipal code defines a sex club as “Any premises, person or organization that ... provides permission, an opportunity or an invitation to engage in or to view sexual activity, stimulation or gratification, whether for consideration or not.”

That definition means a sex club that is not a business would be illegal. And according to an injunctive relief suit filed by Trulock, the law is so overbroad that it “criminalizes the behavior of a substantial portion of the population of Duncanville who seek to engage in sexual activity.”

But in an answer to Trulock's suit and a counterclaim for an injunction, the city does not venture a defense of the new ordinance. Instead, it says Trulock has violated Chapter 11A-13 of its code, which prohibits operation of a sexually-oriented business within 1,000 feet of the boundary of a residential neighborhood.

Under that ordinance, a sexually-oriented business is any “commercial enterprise the primary business of which is the offering of a service or the selling, renting, or exhibiting of devices or other items intended to provide sexual stimulation or sexual gratification to the customer.”

Trulock “organizes, manages and controls sexually-oriented events at [his] Premises, and solicits a fee for attendance at the events,” the city's brief says. A hearing on the injunction motions is scheduled for Jan. 25.

By focusing on the Chapter 11A-13 violations, Duncanville may be trying to limit the case to the factual issue of whether Trulock is running a business. He insists that he solicits only voluntary “donations” to cover the cost of food and refreshment.

But if the city had any real confidence in its facts, why would it enact a new law that prohibits sex clubs whether they are operated “for consideration or not?”

The city's argument that the “Cherry Pit” is a public nuisance is also less than convincing. Trulock “does not have any policy or measures in place to safeguard against the spread of sexually-transmittted diseases and, thus, the activities at the Premises pose a risk to the public health,” its brief says.

In the same document, however, the city notes that “condoms are made available if requested by an attendee.” Trulock attorney Edward B. Klein of Carrollton, Texas says wicker baskets filled with condoms are provided in every room.

“That sounds like a policy to me,” he adds.