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MATTER REVOCATION RESTAURANT LIQUOR LICENSE NO. R-5630 AND AMUSEMENT PERMIT NO. AP-6663 v. COMMONWEALTH PENNSYLVANIA (05/20/76)

decided: May 20, 1976.

IN THE MATTER OF REVOCATION OF RESTAURANT LIQUOR LICENSE NO. R-5630 AND AMUSEMENT PERMIT NO. AP-6663, ISSUED TO: MARGARET M. FLEISCHUT
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT



Appeal from the Order of the Court of Common Pleas of Bucks County in case of In The Matter of Revocation of Restaurant Liquor License No. R-5630 and Amusement Permit No. AP-6663, Issued to: Margaret M. Fleischut, No. 330 MM 1974.

COUNSEL

J. Leonard Langan, Assistant Attorney General, with him Harry Bowytz, Chief Counsel, and Robert P. Kane, Attorney General, for appellant.

No appearance for appellee.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 24 Pa. Commw. Page 558]

The sole issue in this appeal is whether the Court of Common Pleas of Bucks County disregarded competent evidence in finding that the entertainment performed at Margaret Fleischut's Lincoln Musical Bar (Appellee), licensee, was not lewd, immoral and improper.*fn1 For reasons hereinafter stated, we find the court below to have erred, and therefore reverse.

Procedurally, this case is uncomplicated. Following investigation by the Pennsylvania Liquor Control Board

[ 24 Pa. Commw. Page 559]

(Board), a citation was issued, and after a hearing on the citation, the Board suspended Appellee's restaurant liquor license. On appeal, the court below reversed the Board's order. Hence, the instant appeal. The sole issue before the Board, the court below and us is whether the evidence presented justified a finding that the entertainment performed on the premises was lewd.

Section 493(10) of the Liquor Code*fn2 in substance provides that it shall be unlawful for a licensee in any circumstance to permit on its premises lewd, immoral or improper entertainment. Violations shall subject the licensee to suspension or revocation.

The leading case interpreting Section 493(10) is Tahiti Bar, Inc. Liquor License Case, 395 Pa. 355, 150 A.2d 112 (1959), wherein upon facts substantially similar to those presented in this appeal, our Supreme Court held that the entertainment in issue was lewd and immoral as defined in Section 493(10), and further, that the section and regulations promulgated thereunder were constitutional.

In Tahiti Bar, the entertainment which occasioned the citations upon which the suspensions were based was described by the Supreme Court as follows:

"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 fast and slow motion.' The same officers visited the ...


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