Opinion
Argued February 3, 1978
March 20, 1978.
Pennsylvania Liquor Control Board — Lewd, immoral or improper entertainment — Liquor Code, Act 1951, April 12, P.L. 90 — Sufficient evidence — Knowledge of activity — Vagueness — Suspension of liquor license.
1. Evidence that a dancer in licensed premises performed with no covering on the upper part of her body and engaged in suggestive badinage with patrons sufficiently supports a finding that the licensee permitted lewd, immoral or improper entertainment justifying the suspension of his liquor license. [273]
2. A suspension of a liquor license for permitting lewd, immoral or improper entertainment on licensed premises in violation of the Liquor Code, Act 1951, April 12, P.L. 90, cannot be avoided by asserting that the licensee was unaware of such activity, particularly when the licensee was present at the time of the alleged violation. [273]
3. The alleged vagueness of the improper entertainment standard in the Liquor Code, Act 1951, April 12, P.L. 90, is immaterial in a liquor license suspension case when the activity found to have taken place on the licensed premises was properly held to constitute lewd and immoral entertainment, as well as improper entertainment. [273-4]
Argued February 3, 1978, before Judges ROGERS, BLATT and DiSALLE, sitting as a panel of three.
Appeal, No. 384 C.D. 1977, from the Order of the Court of Common Pleas of Centre County in case of In the Matter of Revocation of Restaurant Liquor License, No. R-19808 and Amusement Permit No. AP-19361, issued to John Sapia, My-Oh-My Bar, No. 76-2752.
Liquor license suspended by Pennsylvania Liquor Control Board. Licensee appealed to the Court of Common Pleas of Centre County. Appeal dismissed. CAMPBELL, P.J. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Charles J. Weyandt, with him Dunaway, Weyandt, McCormick Jones, for appellant.
J. Leonard Langan, Assistant Attorney General, with him Kenneth W. Makowski, Assistant Attorney General, Harry Bowytz, Chief Counsel, and Robert P. Kane, Attorney General, for appellee.
John Sapia, owner of the My-Oh-My Bar, has appealed from an order of the Court of Common Pleas of Centre County affirming the action of the Pennsylvania Liquor Control Board suspending his restaurant liquor license for three days for permitting lewd, immoral or improper entertainment at his bar in violation of Section 493(10) of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P. S. § 4-493(10).
At a hearing conducted by a Hearing Examiner, two Board enforcement officers described the activities of a woman entertainer in the licensed premises on dates specified in a citation served on the appellant. The Board determined that the evidence had established a violation and ordered the three day suspension of appellant's license. The Court of Common Pleas of Centre County which heard additional evidence affirmed the Board's order. We affirm the order of the court below.
The Board enforcement officers testified that the entertainer in question was a solo dancer who performed at times with no covering whatsoever on the upper part of her body and who while on stage was heard to engage in suggestive badinage with patrons. The appellant's contention that this activity was neither lewd, nor immoral, nor improper, is without merit.
The appellant makes two other points which require only brief consideration. He first contends that he did not know of and therefore did not permit the questioned entertainment. This argument has been frequently advanced and invariably rejected by the courts of this Commonwealth. See Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959); Fraternal Order of Eagles Easton Aerie No. 111 v. Liquor Control Board, 29 Pa. Commw. 646, 372 A.2d 1247 (1977). We additionally note that the appellant's own testimony establishes that he was present in the licensed premises at the time of the alleged violations.
The appellant next contends that certain language in the opinion of the court below implies that it had concluded that the entertainment in question was not lewd and immoral, but only improper. He then says that "improper entertainment" as a ground for suspension establishes an unconstitutionally vague standard. We read the opinion of the court below as expressing its conviction that the entertainment described in the record was lewd and immoral as well as improper. Therefore, "[e]ven if it were conceded that the term 'improper' is too vague to satisfy due process requirements, no such question would arise as to the terms 'lewd and immoral'." Tahiti Bar, Inc. Liquor License Case, 395 Pa. 355, 366, 150 A.2d 112, 118-19 (1959).
Accordingly, we enter the following
ORDER
AND NOW, this 20th day of March, 1978, the order of the Court of Common Pleas of Centre County, dated January 27, 1977, is affirmed.