For any gay man who has frequented a gym in any metropolitan area in the last 25 years, it may seem a bit surprising there haven't been more lawsuits filed against gyms for "allowing" men to get frisky in the gym's shower area.

The latest case to hit the press involves a Salt Lake City gym popular among gay men that has won a battle to keep its business license after undercover police arrested two men having oral sex in the steam room.

The Utah Court of Appeals ruled on April 10 that the city could not keep the 14th Street Gym closed, as it had hoped to do.

The city had put the owners on notice over reports of "illicit sexual activity" on the premises, and in late 2000 the gym agreed to hire additional staff to "monitor the premises and guard against improper conduct," a practice common in many gyms around the country, reports the Gay City News.

Still, to test compliance, the city sent undercover police officers into the gym between October 2003 and October 2004. The officers reported observing "various incidents of lewd conduct including masturbation and oral sex," mainly in the steam room.

In an administrative proceeding, the hearing examiner found there had been at least five instances of illicit sexual activity in violation of city ordinances, and that an employee of the gym "condoned, encouraged, or turned a blind eye towards the lewd conduct."

The examiner determined that the gym's ownership had "an opportunity and a duty to know about the lewd conduct occurring at the business," ordered that the gym's license be suspended for 90 days, and provisionally for another 270 days.

The club would lose its license, said the News, "if any problems arise" during the probation period."

The gym did not appeal, but closed down for three months. Once it reopened, the city undercover officers returned and "observed two men engaged in oral sex in the steam room," and the city initiated a permanent license revocation.

The men were arrested and pleaded either guilty or no contest.

The owner of the gym testified he had taken steps to prevent sexual conduct in the gym, but the hearing examiner decided that the one violation was grounds for revoking the license based on the earlier order. The gym lost its license in March 2006.

The gym's appealed to state court but was turned down by a district judge.

But, the court of appeals, under a ruling by William A. Thorne, Jr., determined that the "case arises in the context of a long history of conflict between the Gym and the City over the degree of privacy and freedom of behavior permitted Gym patrons under City ordinances," and noted the "multiple incidents of lewd conduct that have occurred on Gym premises over the years, resulting in both criminal charges against the individuals involved and administrative action against the Gym."

According to Judge Thorne, the 14th Street Gym has operated as a "social club catering to gay males" since 1991. The court was adamant that it was, indeed, a gym, not a bathhouse or sex club.

Thorne found the original 2005 ruling insufficient in vaguely applying a standard of "any problems" in triggering the gym's loss of its business license. The judge also noted that although officers observed two men having sex, there was no testimony that any gym staff members were aware of the activity. In fact, the owner testified that the gym had taken steps to discourage its patrons from engaging in sex.

Short of stationing monitors in the steam room, the judge opined that there was little the gym could do to systematically enforce a rule against sexual activity there.

In the view of the appeals court, "the actual violations" that put the business on probation "were not lewdness offenses committed by patrons, but offenses by the Gym for violations of City ordinances." Salt Lake City's ordinances prohibit a business from allowing or permitting certain kinds of lewd conduct on their premises.

Both the Gym and patrons of the 14th Street Gym are on notice.