Ban on Sex at Gay Bathhouses Given Tentative OK by Majority of Council

A majority of the San Diego City Council on Thursday tentatively supported the idea of outlawing sexual activity at gay bathhouses as a first step toward possibly closing the establishments and fighting the spread of AIDS.

Five of nine City Council members, either directly or through spokesmen, said they could support a proposal now pending before the Board of Supervisors to require operators of bathhouses to kick out any patrons who engage in “high-risk sexual activity.”

Failure to expel such people could lead to closure of a bathhouse, according to the proposal.

The county Department of Health Services developed the proposal after its director and the county counsel’s office warned that attempting to immediately close the bathhouses is on questionable legal and medical ground.

The county proposal, to be considered by supervisors Feb. 9, would apply only to the unincorporated areas, where there currently are no bathhouses. But part of the proposal would urge a similar measure for San Diego, which has five bathhouses, the only ones in the county.

Led by Supervisor Susan Golding, the county has been prodding the City Council to adopt tough regulations on the bathhouses to eliminate the rampant sexual activity between multiple and anonymous partners that is thought to occur at some of the establishments.

Polled individually Thursday about the county proposal, City Council members Judy McCarty, Wes Pratt and Abbe Wolfsheimer said they could support it. Aides to Councilwoman Gloria McColl and Councilman Ron Roberts expressed similar support on behalf of their bosses.

“If we’re not able to close the bathhouses (immediately), then, yes, I would favor banning sexual activity in them as a statement that all promiscuous sexual activity is dangerous,” McCarty said.

Councilman Bob Filner said he would have to study the idea further, although he added that he believes in “clear and tough regulations” for the bathhouses. Filner is one of three council members who have proposed greater city funding for AIDS programs.

“I’ve taken the position that there should be regulations in terms of health--clear and tough regulations,” Filner said. “If they don’t meet those regulations, then you deal with them that way. You have to set up clear guidelines about the hazards to public health.”

Mayor Maureen O’Connor said that AIDS and the bathhouses are a county--rather than a city--responsibility because the county has jurisdiction over health matters. She said the county should declare the bathhouses a health hazard and close them.

“I will recommend that our council go on record as asking the county to shut them down,” she said. “The county should have the courage to take their chances in court.”

However, she said she would be willing to discuss the two-step proposal at a proposed joint meeting between the council and Board of Supervisors to discuss regional issues such as AIDS, jail overcrowding and growth management. O’Connor is attempting to arrange that meeting with Supervisors Chairman George Bailey.

Councilmen Ed Struiksma and Bruce Henderson could not be reached for comment on Thursday, and aides said they were unsure how the elected officials would react to the proposal.

On Wednesday, the county’s Regional Task Force on AIDS, an advisory group, voted 11-5 to recommend closing the bathhouses outright.

Recommended 2-Step Approach

But county health department Director Dr. J. William Cox said Thursday that he cannot certify that bathhouses themselves contribute to the spread of AIDS, a link that he said he would have to make to have the bathhouses closed as health hazards.

For that reason, Cox has recommended the two-step approach--first banning sexual activity known to spread AIDS, and then closing the bathhouses if that activity persists.

“You have to understand the difference between a place that causes a disease and a behavior that causes a disease,” Cox said. “If we had raw sewage pouring into Mission Bay, or an air conditioner spreading Legionnaires’ disease, we could immediately close the areas involved.

“But that is not the case here,” he said. “It is not the bathhouse per se, it is the activity that occurs in the bathhouse. So you have to go about controlling and regulating that behavior.”

Cox said this approach would be similar to that taken by the city in attempting to wipe out prostitution at massage parlors. Citing the prospect of AIDS, the city attorney’s office recently went to court to close two mid-city massage parlors.

Modeled After Opinion

Deputy County Counsel Arne Hansen, who has researched legal issues involving AIDS and bathhouses, said the county proposal is modeled after a Superior Court opinion pertaining to a San Francisco ordinance. The court threw out that county’s bathhouse closure ordinance, but set up rules under which the establishments could be closed.

The San Diego County proposal would license bathhouses and require them to keep a daily register of patrons and to hire employees for “the sole purpose of observation of activity on the bathhouse premises.” Every part of the premises would have to be monitored every 15 minutes.

The theory behind regulating activity at the bathhouses is that they are quasi-public establishments, and behavior otherwise legal in private can be regulated or curtailed--in the same fashion that sex between consenting adults is legal in private but illegal if done in public.

The proposal makes no exception for the use of condoms, which greatly decrease the chance of spreading AIDS. The plan defines high-risk behavior as anal, oral or vaginal intercourse or contact with urine or feces--all of which have been linked with the spread of the deadly AIDS virus.

The Sheriff’s Department and the health department would make at least two inspections a year. Presumably law enforcement could also engage in undercover surveillance to assure compliance.

Calls for License Revocation

The proposal calls for the revocation of a bathhouse license if the bathhouse does not comply. There is no proposed punishment for patrons who are caught engaging in sex.

Cox said there is considerable precedent for the supervisors to adopt a health regulation for the unincorporated areas and then ask cities to adopt it “by reference.”

As examples, he pointed out regulations involving cleanliness of restaurants, preparation of food in “hot truck” vans that service work sites, and the posting of signs warning pregnant women about the dangers of alcohol.

All were adopted originally by the county and later by cities.

Those issues, however, did not have the volatile political and emotional overtones of AIDS.

Between 1981 and 1988, there were 727 cases of AIDS reported in San Diego County, 394 (54%) resulting in death, according to health department statistics.