New York appellate court overrides earlier, more limited injunction
A unanimous five-judge panel of the New York Appellate Division, a court sitting in Manhattan, issued a ruling on July 8 ordering that the Wall Street Sauna be closed down for violation of a provision of the New York State Sanitary Code, which prohibits operating a facility where various sexual activities take place.
The court’s opinion was published in the New York Law Journal on July 12.
The decision reversed a ruling from February 23 by Acting Supreme Court Justice Louis B. York, who had responded to a pre-trial motion by the city’s Department of Health and Mental Hygiene by issuing a preliminary injunction against sexual activity on the premises. The owner of Wall Street Sauna had assured York that a new manager would be cracking down on improper activity, and on that basis York decided not to order the establishment closed and limited the scope of his preliminary injunction.
But city inspectors came in with new evidence about continuing violations of the Sanitary Code, so York issued a new order on May 26, closing down the upper floor of the Sauna, where the activity was said to be taking place.
The Appellate Division panel decided that the continuing problem showed that the management’s promises were not credible.
“The record of proceedings on the original motion establish to our satisfaction that high-risk conduct was so pervasive at this establishment that the new management’s promises cannot be deemed a sufficient safeguard against their continuation,” the panel wrote in a joint opinion. “We note that the court’s limitation of the closing directive in its subsequent order to only a portion of the premises would probably cause the high-risk conduct to migrate to the portion of the premises permitted to remain open, especially in view of the demonstrated unreliability of WSS’s prior representations.”
The provision of state law that the court relied on to order closure of the Sauna is Section 24-2.2 of the state’s Sanitary Code, which provides, “No establishment shall make facilities available for the purpose of sexual activities where anal intercourse, vaginal intercourse, or fellatio take place. Such facilities shall constitute a threat to the public health.”
This regulation was adopted ten years ago over the opposition of some AIDS activists, who protested the failure of the state Department of Health to distinguish between the risks involved in oral sex and those involved in anal or vaginal sex, as well as the failure to take account of the ability to lower risk through the use of barrier contraceptives such as condoms. Although the law has been in effect for ten years, its enforcement against gay bathhouses has been sporadic. Most of the enforcement activity against gay sex venues by the Giuliani and Bloomberg administrations has been instituted under an adult uses zoning provision whose primary motivation was to drastically decrease the number of sex shops in the city.