On Wednesday evening, the Zoning Board of Adjustment (ZBA) voted to revoke the fraternal organization permit for the Philly Music Hall, a recently-opened, sex-positive community association located in the historic Tacony Music Hall.

The Tacony Civic Association, represented by Matthew McClure of Ballard Spahr, argued that the application to open their space as a “fraternal use” was fraudulent and that the ZBA should review and revoke it.

“Sexual activity is not an accessory use to a fraternal organization,” said McClure. “I’m a member of AOH [Ancient Order of Hibernians], my granddad was in Sons of Italy. I don’t remember anything like that ever occurring in any of those events.”

Defending its decision to grant the permit, Philadelphia’s city solicitor’s office argued that McClure and his clients were effectively asking the city to interrogate applicants for the details of their fraternal organization when they applied for the permit. The Law Department’s Leonard Reuter said such a practice would be unconstitutional.

“In another time and place, are we going to ask what is the racial composition of your membership,” asked Reuter. “What religion do they subscribe to? The Supreme Court has consistently stated that sexual activity is a protected activity under the first amendment, the right of association.”

McClure counter-argued that his clients weren’t disputing freedom of association. If the members of the Philly Music Hall were just getting together to talk, hold classes, and throw events, then, McClure contended, there would be no problem.

“If they want to have a rock-’n-roll concert or a potluck dinner, God bless, this is America they are allowed to do it,” said McClure. “But when they go to various uses regulated by the code, that’s when the City of Philadelphia gets involved. It’s not about speech, it’s about uses.”

The controversy over the music hall dates back to the early spring. In March, PlanPhilly reported that organizers associated with Philly Music Hall wanted to open a club for those of alternative sexual identity and practice.

The idea was to offer people a safe space to gather and practice a variety of activities, away from warehouse parties and grimy bars where such communities had been relegated. Alcohol and drugs were banned from the space, but they still sought a private club license and special exemption for “live entertainment for over 50 people.”

Many residents of Tacony, a working-to-middle class community in lower Northeast Philadelphia, expressed strong reservations about the club from the very beginning. At a community meeting in late March with the Tacony Civic Association and Councilman Bobby Henon — who signed on to the appeal but was not represented by McClure — neighbors voted 88-to-31 against supporting their special exemption request.

At the meeting, neighbors pressed club representatives to say that sex would never occur in the club, but Philly Music Hall’s lead organizer, Deborah Rose Hinchey, said that she could not offer such a guarantee.

After that, Philly Music Hall abandoned their initial plan and decided to register as a fraternal organization instead, which would require no special exception or variance. The club is members-only, and its membership decided against holding events that are open to the public. The Department of License and Inspections promptly awarded the permit, which, in turn, the Tacony Civic Association promptly appealed.

Early on during the ZBA hearing, it became clear that the commissioners viewed the Philly Music Hall dubiously, as well as the City of Philadelphia’s case. As evidence, the civic association offered early advertisements for the sex club, from when it was still seeking a live-entertainment permit. Circulated online, the flyers announced demonstrations of S&M and a dungeon, among other features.

ZBA chair Frank DiCicco repeatedly inquired about the dungeon — particularly whether the club was using the basement in addition to the second and third floors that they have leased from the owner. The group stated categorically that they have only used the basement for storage of a few boxes and a couch — no dungeons or anything else.

DiCicco remained skeptical. “A couch has many uses,” replied the chairman.

The commissioners returned to the advertisements periodically, some of which featured images of scantily-clad individuals. The civic association argued they clearly showed that the Philly Music Hall’s activities would actually constitute an “adult-oriented use,” which would prohibit it from being housed in its current redbrick Victorian mansion, which also hosts a daycare on the first floor.

Even before the commissioners ruled, it became apparent that they weren’t exactly open-minded to the sex-positive club’s arguments. Recalling Club Karma Sutra on South Street, which shut down years ago, DiCicco suggested Philly Music Hall’s struggle to stay open wasn’t worth it.

“It’s a practical business decision,” said DiCicco, turning to the Philly Music Hall’s lawyer, Justin Krik. “Your client may want to look for another venue is all I’m saying.”

The ZBA hearing room was packed with several rows of Philly Music Hall supporters, who quietly fumed as the case evidently slipped away from them. When McClure stipulated that an advertised event offered $20 admittance to non-members, the supporters shook their heads, saying that no such event ever took place. The city’s lawyer countered that McClure presented information that predated the club’s shift towards non-profit fraternal organization status.

“They are allowed to change their plans,” said Reuter from the city solicitor’s office. “This is a dangerous place to put the city…. If you have a complaint about what’s happening in the building, just call L&I and deal with it that way.”

But, in the end, the Zoning Board voted unanimously to revoke the permit. Philly Music Hall plans to appeal the ruling.