A San Diego business providing hot tub, sauna and steam room rentals has allegedly denied entrance to a gay couple.

The Tubs, located at 7220 El Cajon Blvd. near the campus of San Diego State University, has been in business for 17 years and features private suites with hourly rental rates. It is licensed as a bathhouse under the San Diego County Code of Regulatory Ordinances, which is monitored by the San Diego County Health Department.

The Tubs owner and president Susan Revis confirmed the business does have an existing policy against allowing same-sex couples into the establishment, and said there is a sign posted in the entrance that reads, “We reserve the right to refuse service to anyone.”

The Gay & Lesbian Times contacted The Tubs by telephone and asked if a male couple can rent a suite. The manager responded: “We don’t allow two men. We’re not a bathhouse.”

Revis said if she allowed same-sex couples into The Tubs, it would make her exclusively heterosexual customers uncomfortable. She said same-sex couples rarely inquire about using The Tubs.

“I would say maybe once every six to eight months,” she said. “I guess because we’ve been there so long it’s kind of an established thing.”

Revis said she first instituted the policy against same-sex couples in 1985 after the city forced The Tubs to classify itself as a bathhouse under the bathhouse ordinance. She said they were opposed to such a classification.

“At the time, there were five gay bathhouses and then there was The Tubs for heterosexuals. At the time, that is how we based our policy from that point on,” Revis said. “The owners at the time had to make a decision whether they were going to go one way or another, which we had up until that time been non-discriminatory.”

The Civil Rights Act of 2005 (AB 1400) authored by Assemblymember John Laird, D-Santa Cruz, amended the Unruh Civil Rights Act and related provisions to clarify that people are protected from discrimination regardless of their sexual orientation, gender identity or marital status. Governor Arnold Schwarzenegger signed AB 1400 on Sept. 29, and it was chaptered by the secretary of state as a statute that same day. The law went into effect on Jan. 1.

“It’s discrimination, and there’s no reason why two men can’t use The Tubs just the same way as a straight couple,” said Robert Dekoven, a professor at California Western School of Law. “They are probably not aware that the California law changed in January, and it’s very specific that businesses cannot discriminate.”

Revis said she did not know the law existed and pertained to her business, and she would change her policy barring same-sex couples if required to do so.

“I would not discriminate and put myself in the way of a lawsuit now at this point,” Revis said. “I can see that, now that I read it and now that I’m aware.”

Dekoven said the three bathhouses in San Diego – Club San Diego, Vulcan Steam & Sauna and 2200 Club – are allowed to restrict entrance to male customers only because they classify themselves as private men’s clubs that are not open to the general public. Membership forms and waivers must be signed upon entrance.

Revis confirmed that The Tubs is not a private club, and patrons pay an hourly rate to rent rooms that contain hot tubs.

“It seems relatively clear. If they [The Tubs] operated as a private business or a club, that might be a different story, but that’s not how they are operating it as,” Dekoven said. “If these are business and they are open to the public, they can’t discriminate. If they want to operate a private club and they want to discriminate on the basis of sexual orientation or gender or whatever, then maybe they should be able to.”

The Unruh Act applies to all business establishments that provide services, goods or accommodations to the public. Shopping centers, mobile home parks, bars and restaurants, schools, medical and dental offices, hotels, motels and condominium homeowners associations are some of the businesses subject to the Unruh Act. Discrimination based on sex, race, color, religion, ancestry, national origin, disability or medical conditions is explicitly prohibited under the Unruh Act.

Courts have held that the categories listed in the Unruh Act should be interpreted broadly to prohibit arbitrary discrimination, including discrimination based on personal characteristics, geographical origin, physical attributes and individual beliefs. By specifically listing sexual orientation and marital status – and providing a definition for the category of sex, which includes gender identity – AB 1400 makes the Unruh Act and related provisions more consistent with other California nondiscrimination laws, such as the Fair Employment and Housing Act, and prevents unnecessary litigation.