Same cases in Superior Court: 186 Pa. Super.Ct. 214 and 186 Pa. Super.Ct. 223.
Edwin P. Rome, with him Morris L. Weisberg, and Blank, Rudenko, Klaus & Rome, for appellant.
Lois G. Forer, Deputy Attorney General, with her George G. Lindsay, Assistant Attorney General, Russell C. Wismer, Special Assistant Attorney General, and Thomas D. McBride, Attorney General, for Pennsylvania Liquor Control Board, appellee.
Stanley M. Greenberg, with him Bernard S. Ochman, for appellant.
Russell C. Wismer, Special Assistant Attorney General, with him Horace A. Segelbaum, Assistant Attorney General, and Thomas D. McBride, Attorney General, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
These appeals challenge the legality and propriety of the action of the Pennsylvania Liquor Control Board (herein called the Board) in suspending*fn1 the liquor licenses and amusement permits of the appellants, Tahiti Bar, Inc. and Lehigh Casino, Inc., for alleged violations of the Liquor Code*fn2 and a regulation of the Board enacted pursuant thereto. The citations upon which the suspensions were based charged that appellants "1.... by [their] servants, agents or employes permitted lewd, immoral and/or improper entertainment on the licensed premises ..." in violation of section 493 of the Code, and "2. ... by [their] servants, agents or employes permitted entertainers to contact and/or associate with patrons on the licensed premises ..." in violation of the Board's Regulation 110. The suspensions were affirmed on separate appeals to the Court of Quarter Sessions for the County of Philadelphia and the Superior Court.*fn3 Because of the important constitutional issues raised by appellants, we granted an allocatur.*fn4
We will initially consider appellants' objections to Section 493 of the Code. Section 493 (47 PS § 4-493) provides in material part that it shall be unlawful "(10) ... for any licensee, under any circumstances, to permit in any licensed premises any lewd, immoral or improper entertainment, regardless of whether a permit to provide entertainment [required by this section] has been obtained or not ... Any violation of this clause shall ... subject the licensee to suspension or revocation of his permit and his license." (Emphasis supplied) Enforcement officers of the Board stated that they visited the Tahiti Bar on April 3, 1956 and April 4, 1956. They testified in substance that on those two occasions they observed seven "strip acts" which involved the removal of substantially all of the female performers' apparel, and that "bumps and grinds" were performed by "moving the lower part of [their] body backwards and forward [in] both a fast and slow motion." The same officers visited the Lehigh Casino on May 24, 1956 and May 26, 1956. The performances were similar to those observed at the Tahiti Bar. Neither appellant contradicted nor questioned the enforcement officers' factual description of the performances. Appellants admit that the performances in both establishments were almost identical, involving in some instances, the same performers.
Appellants urge that Section 493 violates the First and Fourteenth Amendments of the U.S. Constitution*fn5 in that it abridges freedom of speech and expression and
that the terms "lewd, immoral and/or improper" are so vague and indefinite as to permit punishment for incidents falling fairly within the protection of free speech in contravention of the due process clause of the Fourteenth Amendment. Appellants assume, without discussion, that Section 493 is primarily directed toward prohibiting and restricting certain types of entertainment when such entertainment falls within the term expression as included within the free speech guarantee of the First and Fourteenth Amendments. In so doing, appellants misconceive the basic issue upon which the validity of Section 493 rests. The significant and determinative question is whether or not a state in its regulation of the privilege of dispensing alcoholic beverages may condition that privilege by prohibiting types of conduct and action that in another setting might be constitutionally protected. It is within this narrow framework that Section 493 must be reviewed.
There is perhaps no other area of permissible state action within which the exercise of the police power of a state is more plenary than in the regulation and control of the use and sale of alcoholic beverages.See: Goesaert v. Cleary, 335 U.S. 464, 465, 69 S.Ct. 198. Bearing in mind the "alleged noxious qualities and extra-ordinary evils" traditionally assigned to the use of alcoholic beverages, it is no longer open to question that a state may prohibit the manufacture, gift, purchase, sale, possession or transportation of alcoholic beverages within its borders. This power of prohibition includes the lesser power of regulation, and a state may adopt such measures as are reasonably appropriate or needful to render the exercise of that power effective. See: Crane v. Campbell, 24 ...