## Facts

- The Commonwealth sought to abate two Philadelphia adult bookstores as public nuisances under the Uses of Property Act.
- Each store sold sexually explicit books, magazines, and video tapes and maintained coin-operated video viewing booths.
- Investigators found that multiple booth walls contained roughly three-by-five-inch holes between adjacent booths, permitting sexual activity between patrons in separate booths.
- At one location, investigators observed a “California Couch Dancing” area with lewd strip-tease performances and an offer of sex for money.
- The Commonwealth presented expert testimony that sexual activity in the booths created conditions conducive to the transmission of HIV/AIDS, posing a risk to public health.
- The trial court entered temporary restraining orders and, after a hearing, granted preliminary injunctions halting operation of the video booths (and the couch-dancing area as configured and used).
- The defendants appealed the preliminary injunctions.

## Issues

1. Whether the evidence supported a finding that the premises were used in a manner constituting a public nuisance under the Uses of Property Act, warranting preliminary injunctive relief.
2. Whether a demonstrated risk of HIV/AIDS transmission from sexual activity on the premises constitutes interference with a right common to the public (public health and safety) sufficient to support a public-nuisance injunction.
3. Whether enjoining the operation of booths and related areas at adult bookstores violates the First Amendment when the order targets non-expressive conduct occurring on the premises.

## Decision

- The Commonwealth Court of Pennsylvania affirmed the orders granting preliminary injunctions.
- The court held the Commonwealth showed a likelihood of success that the premises were used for lewdness, prostitution-like activity, and assignation-type conduct within the Uses of Property Act’s scope.
- The court accepted the public-health evidence that the sexual activity created a serious risk of HIV/AIDS transmission, supporting irreparable harm and public interest justifications for immediate relief.
- The court rejected First Amendment objections because the injunction addressed non-expressive conduct and harmful use of property, not the sale of expressive materials.

## Legal Principles

- A public nuisance is an interference with a right common to the public; threats to public health and safety may qualify as such an interference.
- Under the Uses of Property Act, property used for prostitution, lewdness, or related conduct may be abated through equitable relief, including injunctions directed at the offending use.
- Preliminary injunctive relief is proper where the plaintiff shows a reasonable probability of success, irreparable harm not adequately compensable by damages, and that the public interest and equities favor restraint.
- Regulation or abatement aimed at unlawful, non-expressive conduct on premises that also engage in expressive activity does not violate the First Amendment when the remedy targets conduct and property use rather than speech.

## Conclusion

The court upheld preliminary injunctions shutting down video booths and related areas used for sexual activity at adult bookstores, treating the conduct and property configuration as a public nuisance that threatened public health through increased risk of HIV/AIDS transmission, and concluding that the relief regulated conduct rather than protected expression.


Commonwealth v. Danny’s New Adam & Eve Bookstore, 625 A.2d 119 (Pa. Commw. Ct. 1993)