Tahiti Bar, Inc., In re

• Decision Date: 25 March 1959
• Citation: 395 Pa. 355,150 A.2d 112
• Parties: In re TAHITI BAR, INC., Appellant. COMMONWEALTH v. LEHIGH CASINO, Inc., Appellant.
• Court: Pennsylvania Supreme Court

Page 112

150 A.2d 112

395 Pa. 355

In re TAHITI BAR, INC., Appellant.

COMMONWEALTH v. LEHIGH CASINO, Inc., Appellant.

Supreme Court of Pennsylvania.

March 25, 1959.

No. 355:

Edwin P. Rome, Morris L. Weisberg, Blank, Rudenko & Klaus, Philadelphia, for appellant.

Lois G. Forer, Deputy Atty. Gen., Russell C. Wismer, Sp. Deputy Atty. Gen., George G. Lindsay, Asst. Atty. Gen., Thomas D. McBride, Atty. Gen., for appellee.

No. 352:

Ochman & Greenberg, Bernard S. Ochman, Stanley M. Greenberg, Philadelphia, for appellant.

Russell C. Wismer, Sp. Asst. Atty. Gen., Horace A. Segelbaum, Asst. Atty. Gen., Thomas D. McBride, Atty. Gen., for appellee.

Before CHARLES ALVIN JONES, C. J., BELL, MUSMANNO, BENJAMIN R. JONES and COHEN, JJ.

BENJAMIN R. JONES, Justice.

These appeals challenge the legality and propriety of the action of the Pennsylvania Liquor Control Board (herein called the Board) in suspending ¹ the liquor licenses and amusement permits of the appellants, Tahiti Bar, Inc. and Lehigh Casino, Inc., for alleged violations of the Liquor Code ² 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. ³ Because of the important constitutional issues raised by appellants, we granted an allocatur. ⁴

We will initially consider appellants' objections to Section 493 of the Code. Section 493 (47 P.S. § 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 ⁵ in that it abridges freedom of speech and expression and that the terms 'lewd, immoral 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, 93 L.Ed. 163. 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, 245 U.S. 304, 38 S.Ct. 98, 62 L.Ed. 304 [and cases therein cited]; State Board of Equalization of California v. Young's Market Co., 299 U.S. 59, 63, 57 S.Ct. 77, 81 L.Ed. 38; Ziffrin, Inc. v. Reeves, 308 U.S. 132, 138, 60 S.CT. 163, 84 L.Ed. 128. A state may, and generally does, require a license conditioned upon compliance with certain specified general requirements and personal qualifications before it will authorize an individual to sell alcoholic beverages. The license so issued is not absolute, and may be terminated or suspended by a state even though it may have been valid when initially issued. Mahoney v. Joseph Triner Corp., 304 U.S. 401, 58 S.Ct. 952, 82 L.Ed. 1424; Premier-Pabst Sales Co. v. Grosscup, 298 U.S. 226, 56 S.Ct. 754, 80 L.Ed. 1155. Our present inquiry is directed toward determining whether or not a state in exercising this power is limited and restricted by the constitutional guarantee to each individual of his right to freedom of speech and expression.

In view of the historical background giving the state virtually an absolute control over the business of dispensing alcoholic beverages, the mere statement of the question compels a negative reply. An individual has no constitutional right to engage in the business of selling alcoholic beverages. The conduct of such a business is lawful only to the extent that it is made so by the Liquor Code. Cavanaugh v. Gelder, 364 Pa. 361, 364, 72 A.2d 85, certiorari denied 340 U.S. 822, 71 S.Ct. 55, 95 L.Ed. 604; Com. v. Bienkowski. 137 Pa.Super. 474, 9 A.2d 169. See: Crane v. Campbell, supra. Section 493 does not purport per se to control, regulate, sanction or censor the type of entertainment an establishment may present to its patrons. Section 493 merely provides that, if a certain type of entertainment is presented, the privilege of dispensing alcoholic beverages, to which an individual has no constitutional right, will be withdrawn. This does not constitute a mere semantic distinction. Section 493 is a regulation of the liquor business, and, as such, is required only to bear a reasonable relation to the evil sought to be controlled; the right of the individual to freedom of speech and expression is not involved. ⁶ This section does not constitute an abridgement of the freedom of speech of the individual, but rather, an abridgement of a privilege granted solely by the state. That in order to secure and retain this privilege, an individual may be incidentally required to modify the exercise of certain rights does not constitute an unconstitutional deprivation of those rights by the issuing authority.

In Cavanaugh v. Gelder, supra, this Court upheld a regulation of the Board which required liquor licensees to obtain an amusement permit as a pre-requisite to the use of television in licensed establishments and to pay one-fifth of the annual liquor license fee for the privilege of presenting such entertainment. Although the issue of free speech was apparently not directly raised, the language of the opinion is most germane in rejecting appellants' present contention. We therein approved the following language of the court below, (364 Pa. at pages 363-366, 72 A.2d at page 87): "(Plaintiffs' contentions are) predicated on the fallacy that the license required for the privileges of providing televised, and no other form of entertainment, in establishments licensed under the Liquor Control Act is in a category entirely separate and distinct from the license required to be held for the privilege of selling intoxicating liquors. With this we cannot agree. On the contrary, it is the restaurant licensee who is granted under the Liquor Control Act the additional privilege, upon the payment of a further license fee, of offering certain forms of entertainment to his patrons. The legislature had the power to deny this additional entertainment privilege to the Board's licensees * * * just as under the Act of July 9, 1881, P.L. 162, (47 P.S. § 181), it denied licenses for the sale of spirituous or malt liquors to proprietors of any theater, circus, meseum or other place of amusement or to premises for the sale of such liquors which had a passage or communication to or with the same. * * * 'The power of the state to regulate the sale of intoxicating liquors, and, in the exercise of that power, to authorize the granting of licenses to fit persons under such conditions as the legislature may impose is too well settled to be open to discussion.' Accordingly, since the state may absolutely forbid or may license the sale of intoxicating liquors, it may impose such conditions upon the granting of licenses as it sees fit, and one who accepts such license must be deemed to consent to all proper conditions and restrictions which have been or may be imposed by the legislature in the interest of the public morals or safety * * *. 'A transaction which is...