This is a simple question with, as I'm sure you know, a complicated
answer.
As is always the case here, this answer does not constitute legal
advice, but simply a review of relevant laws and cases. If you do
decide to go ahead with your plan, please consult a lawyer first.
Just one more caveat before the answer: I did not link to any porn
sites in my answer, but as some of these sites do focus on
adult-oriented material, there will probably be some material that
might be offensive to some.
Basically, these do not appear completely legal in either NY or NJ.
They don't appear to be "houses of prostitution," but they are
classified in the same nuisance category as such, under "house of
assignation," or "bawdy-house for lewd persons." In both states, you
can be evicted from your property for operating such a business.
That said, there does not appear to be a law in either New York or New
Jersey that specifically addresses for-profit sex clubs. But, if you
do attract the interests of law enforcement or other authorities,
someone is likely to try to apply existing laws to your situation.
First, see this article regarding a new New York law, which will take
effect in the fall:
http://www.observer.com/pages/story.asp?ID=5409
From this:
"In late September, the Giuliani administration rushed a law through
the City Council that would allow the city to close down any clubs or
bars that allow nudity, as well as any video stores or bookstores that
demonstrate “an ongoing focus on sexually explicit material.” The law,
which passed unnoticed in the aftermath of Sept. 11, takes effect in
the fall. But it already has placed Mr. Bloomberg in a political bind,
forcing him to decide between his pro-free-speech posture and his fear
of being pigeonholed as a closet liberal bent on undoing Mr.
Giuliani’s legacy."
But even if you feel that you have a strong legal standing, in that
you are operating a private club and that no promise of sexual
activity is made, and that any sexual activity is otherwise legal and
consentual, you could still run into trouble.
See, for example, this page, which mentions a New Jersey event that
was raided, despite all attempts to ensure its legality:
http://www.ds-arts.com/academy/LegalAffairs.html
And this article, which describes Hollywood, California's attempt to
classify swingers clubs as adult businesses, in response to a
swingers' club that opened there:
http://nasca.com/states/nasca_news.html
Note that classifying this sort of thing as an 'adult business' does
not make it illegal, but does subject it to the commercial codes
regulating adult businesses.
That said, the specific laws are not always completely clear in their
definitions, and as such, are open to several interpretations. There
are several angles this could be approached from:
1. Laws against sex acts by consenting adults. Most states do not have
these anymore, but it never hurts to check.
2. Pandering and prostitution laws. This depends on whether collecting
a fee to run a club that allows or promises sexual contact with other
members can be considered pandering. Unfortunately, the way to find
out these sort of things often comes down to interpretation of the
laws, or, in layman's terms, "Try it and see if you're found guilty."
3. Commerce laws. If you are able to satisfy yourself and law
enforcement that you are not running a house of prostitution, you may
find yourself subject to restrictive laws governing adult business.
If and when you cleared all these hurdles, you'll also need to check
the zoning laws in the area you plan to operate. Often, certain types
of clubs and businesses will be prohibited or restricted. These should
be relatively trivial to check by searching for zoning laws within the
municipality you want to locate in.
Let's get the consensual sex laws out of the way first.
Neither New York nor New Jersey have active laws against sodomy. See
this page at the ACLU for details:
http://www.aclu.org/issues/gay/sodomy.html
New York's Sex Offenses laws are available here:
http://caselaw.lp.findlaw.com/nycodes/c82/a29.html
There is nothing in this code that could reasonably be applied to your
situation.
The next angle is prostitution. This one might be a little stickier.
New York's prostitution law is available here:
http://caselaw.lp.findlaw.com/nycodes/c82/a56.html
"S 230.00 Prostitution.
A person is guilty of prostitution when such person engages or
agrees or
offers to engage in sexual conduct with another person in return for a
fee.
Prostitution is a class B Misdemeanor."
Now, this clearly (to me) does not apply to a situation in which
consenting adults participlate in sexual activities without an
exchange of fees between them.
The code regarding houses of prostitution, however, puts another spin
on the issues:
http://caselaw.lp.findlaw.com/nycodes/c91/a93.html
"Sec. 2320. Houses of prostitution; equipment; nuisance. 1.
Whoever shall erect, establish, continue, maintain, use, own, or
lease any building, erection, or place used for the purpose of
lewdness, assignation, or prostitution is guilty of maintaining a
nuisance."
That 'lewdness' and 'assignation' thing is new, and seems to apply to
your proposed business, which would be classified as both. This means
that your business would be classified a nuisance.
This NY code allows your landlord to kick you out for running a
"bawdy-house" or a "place of assignation for lewd persons":
http://caselaw.lp.findlaw.com/nycodes/c100/a8.html
" 5. The premises, or any part thereof, are used or occupied
as a
bawdy-house, or house or place of assignation for lewd persons, or
for
purposes of prostitution, or for any illegal trade or manufacture,
or
other illegal business."
Same little bit is here as well:
http://caselaw.lp.findlaw.com/nycodes/c99/a7.html
If you're like me, you'll need this page:
http://www.dictionary.com/cgi-bin/dict.pl?term=assignation
which tell us that 'assignation' is "An appointment for a meeting
between lovers; a tryst. See Synonyms at engagement."
So, you can be evicted in New York for this.
It's pretty much the same deal in New Jersey. The relevant statute is
here:
http://www.njleg.state.nj.us/cgi-bin/om_isapi.dll?clientID=122239&Depth=2&TD=WRAP&advquery=prostitution&depth=4&expandheadings=on&headingswithhits=on&hitsperheading=on&infobase=statutes.nfo&rank=&record={12467}&softpage=Doc_Frame_PG42&wordsaroundhits=2&x=51&y=16&zz=
"46:8-8. Forfeiture of lease of premises used for prostitution or
assignation
If the lessee of any dwelling house or other premises situate in
this state shall use the same for purposes of prostitution or
assignation, the lease or agreement for letting the same shall
thereupon become immediately void, and the landlord may enter
thereon, and shall have the same remedies to recover possession as
are given by law when a tenant holds over after the expiration of his
lease."
And here's the New York obscenity law, although this only applies to
performances, videos, publications, etc.:
http://caselaw.lp.findlaw.com/nycodes/c82/a57.html
And here's New Jersey's definitions of "sexually oriented business":
http://www.njleg.state.nj.us/cgi-bin/om_isapi.dll?clientID=122239&Depth=2&TD=WRAP&advquery=sexual&depth=4&expandheadings=on&headingswithhits=on&hitsperheading=on&infobase=statutes.nfo&rank=&record={1587}&softpage=Doc_Frame_PG42&wordsaroundhits=2&x=36&y=13&zz=
I've grouped these two together because they both address "sexual
performances." It is probable that the argument could be made that
your private club offered performances. Both New York and New Jersey
laws declare such businesses "nuisances."
As for the business aspect, this is the stickiest yet. It might be
illegal, according to this article:
http://www.timeoutny.com/features/316/316.ft.sex.laws.html
"Am I breaking any laws if I throw an orgy at my apartment?
As long as all free-lovers arrive of their own free will, things
should be on the up-and-up. But if you expect participants to pay an
entrance fee, you should ask for a "contribution" to avoid being
charged with running an illegal business. Also, the landlord may have
rules as to how many people are allowed to gather in your space
(though we wouldn't recommend asking for permission)."
This article seems to ignore the "place of assignation" and
"bawdy-house for lewd persons" elements of New York law, and focus
instead on the profit aspects.
Now, that's all clear as mud, right?
Perhaps the best route to understanding not just the laws, but how
they are enforced, is to look at existing businesses.
Here, too, you'll find conflicting evidence.
This webpage describes a bondage club in New York, and mentions strict
sex laws in the state:
http://www.planetrapido.com/mondo/top_ten/htm/hellfire/
From this page:
"Most extreme bits?
Rules are strict and no penetration or fellatio is allowed, largely
due to New York's ultra strict sex laws."
This likely refers to the regulations regarding adult businesses,
which regulate 'performances,' as well as to the general crackdown
atmosphere in NYC since Guiliani's very publicized 'cleanup' efforts.
(I'm assuming you're familiar with this already, but if not, please
feel free to ask for a clarification, and I'll provide you with more
detail.)
Note that this club's rules apply to patrons, not performers. (Or as
well as performers.)
However, there are several swingers' clubs currently operating in both
New York and New Jersey.
Here's a link to a listing of swingers clubs in New York City:
http://www.naughtynightlife.com/new_york/new_york_city_swingers.shtml
And here are links at the same site for New Jersey clubs:
http://www.naughtynightlife.com/new_jersey/new_jersey_swingers.shtml
I have requested information from some of these clubs, asking if their
profit status and their understanding and interpretation of the laws.
I haven't heard back from them yet, but I will post a clarification if
I do.
Essentially, even if your activities are legal, that doesn't mean that
you may not be targeted.
See this article on increasing crackdowns on consensual activities
within the gay community:
http://www.indegayforum.org/articles/miller35.html
For example, from this article:
"Many victims of police sex raids fare even worse. Outside the big
cities, it’s common for newspapers to publish the names of men taken
into custody during police stings, making no distinction between those
arrested in private commercial establishments (sex clubs, closed video
booths in adult porn stores) and those arrested in public restrooms or
public parks."
Finally, here's a link to a site with a "Law & Sex" category covering
various aspects of sex laws:
http://www.bigeye.com/sexeducation/adultbusinesslaw.html
New York and New Jersey aren't listed under 'State Laws' here, but the
'Circuit Courts' section provides some good general information on the
sort of cases that have arisen surrounding these issues:
http://www.bigeye.com/sexeducation/adultbuscircuit.html
I realize this may seem like a non-answer, but unfortunately, the law
isn't always as clear as we might like.
If you'd like more information on any of these aspects, or if you feel
as though there's something I've left out, please feel free to ask for
a clarification, and I'll see what else I can find for you. I know I
thought this answer would be a lot easier when I first started working
on it.
Good luck,
Lisa. |
