On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 01-cv-01207) District Court Judge: Honorable John P. Fullam.
The opinion of the court was delivered by: Fuentes, Circuit Judge.
Before: FUENTES, STAPLETON and ALARCÓN,*fn1 Circuit Judges.
The operator of a club in Philadelphia that features semi-nude dancing, as well as two of its dancers, challenge a Pennsylvania Liquor Code statute and regulation that prohibit "lewd" entertainment at any licensed establishment. Plaintiffs argue that the statute and regulation are unconstitutional both on their face and as applied to plaintiffs. We conclude that the statute and regulation are facially invalid because they are substantially overbroad, punishing a significant amount of protected speech in relation to their legitimate scope.
Plaintiff Conchatta, Inc. operates Club Risque, a Philadelphia bar where erotic "striptease" performances are shown, and plaintiffs Gail Baker and Sabrina Barrar are dancers who have performed at Club Risque. During the performances, the dancers take off their clothes, leaving only G-strings, liquid latex covering their nipples, and high-heeled shoes. Club Risque prohibits physical contact between the dancers and patrons.
In March 2001, plaintiffs (hereinafter "Conchatta") filed suit in the United States District Court for the Eastern District of Pennsylvania against the Commissioner of the Pennsylvania State Police (hereinafter "the Commissioner"),*fn2 seeking preliminary and permanent injunctive and declaratory relief as to the enforcement of 47 Pa. Cons. Stat. Ann. § 4-493(10) (2005) (hereinafter "the Statute"), which provides that it shall be unlawful:
for any licensee, under any circumstances, to permit in any licensed premises or in any place operated in connection therewith any lewd, immoral or improper entertainment . . . .
Conchatta also sought relief as to one of the Statute's implementing regulations, 40 Pa. Code § 5.32(b) (2006) (hereinafter "the Regulation"), which provides in pertinent part:
A licensee may not permit an employee, servant, agent, event/tournament/contest participant or a person engaged directly or indirectly as an entertainer in the licensed establishment or a room or place connected therewith, to be in contact or associate with the patrons in the establishment, room or place for a lewd, immoral, improper or unlawful purpose.
Under Pennsylvania law, violation of the Statute is a misdemeanor that can result in a fine of up to five thousand dollars and imprisonment for a period of three months to one year, as well as to suspension or revocation of the liquor license. See 47 Pa. Cons. Stat. Ann. § 4-494(a), (b) (2005). Violation of the Regulation can also result in a fine and license suspension or revocation. The Commissioner asserts that there have been no criminal convictions under the challenged portions of the Statute and Regulation, and that they are enforced solely through a civil regulatory process.
In the District Court, Conchatta alleged that the Statute and Regulation (collectively, the "Challenged Provisions") are unconstitutional under the First Amendment because they are impermissibly overbroad and vague on their face. Conchatta also alleged that the Challenged Provisions are unconstitutional as applied to it. Following an evidentiary hearing, the District Court denied Conchatta's motion for a preliminary injunction in April 2001, concluding that Conchatta had demonstrated neither a likelihood of success on the merits nor that it would suffer irreparable harm without an injunction. The Court declined to address Conchatta's overbreadth and vagueness claims. In anticipation of a decision related to the Statute ...