J. Brotton Corp. v. Oklahoma Alcoholic Beverage Laws Enforcement Commission

Supreme Court of Oklahoma

J. Brotton Corp. v. Oklahoma Alcoholic Beverage Laws Enforcement Commission

1991 OK 126, 822 P.2d 683, 62 O.B.A.J. 3758, 1991 Okla. LEXIS 145, 1991 WL 258982

CourtSupreme Court of Oklahoma

DecidedDecember 3, 1991

Docket71526

StatusPublished

Cited by13 cases

This text of 1991 OK 126 (J. Brotton Corp. v. Oklahoma Alcoholic Beverage Laws Enforcement Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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J. Brotton Corp. v. Oklahoma Alcoholic Beverage Laws Enforcement Commission, 1991 OK 126, 822 P.2d 683, 62 O.B.A.J. 3758, 1991 Okla. LEXIS 145, 1991 WL 258982 (Okla. 1991).

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Opinions

ALMA WILSON, Justice:

The sole issue in this appeal is whether colleges and universities may be included in the definition of “public school” under 37 O.S.Supp.1990, § 518.2.¹ That statute prohibits the placement of liquor establishments within 300 feet of any public school. This issue arose out of an application filed by the Appellee, J. Brotton Corporation (Brotton). Brotton requested a mixed beverage license for a club named Chances (Chances) owned and operated by Brotton: The location of Chances is directly across the street from Oklahoma State University’s main campus. The ABLE Commission denied the license. The Commission based their decision on § 518.2, which specifically prohibits location of retail package stores, mixed beverage establishments or bottle clubs within 300 feet of a church regularly used for religious purposes or a public school. The focus of this appeal is the ABLE Commission’s definition of “public school.” Pursuant to Article II, section 16 of the Rules and Regulations of the ABLE Commission,² Oklahoma State University is a public school. Brotton challenges the ABLE Commission’s definition of public school. According to Brotton, public schools do not include institutions of higher learning.

Brotton argues that the ABLE Commission should not define public schools to include colleges and universities because the legislature intended to protect children and not adults from the perils of liquor. According to Brotton the primary objective of § 518.2 is to keep establishments that serve liquor at a reasonable distance from institutions in which the best interest and welfare of those attending these institutions may be adversely affected. Brotton urges the Court to look to article .1, § 5³, article XIII, § l⁴ and article XIII-A, § l⁵ of the Oklahoma Constitution in defining the term “public school.” However, it is not clear that the legislature intended Oklahoma statutory provisions providing for the establishment and maintenance of a public school system to be used in defining schools for the purpose of rules and regulations dealing with alcoholic beverages.⁶ In [685]*685Oklahoma there are no reported cases that address the definition of “school” pursuant to the alcoholic beverage statutes.

In determining whether Oklahoma State University is a “public school” within the meaning of § 518.2, legislative intent must be determined, as the legislature did not define the term “public school” within this statute. This Court has established that “[t]he ascertainment of legislative intent is the cardinal rule of statutory construction.” Riffe Petroleum Co. v. Great Nat’l Corp., 614 P.2d 576, 579 (Okla.1980). Section 518.2 prohibits the location of retail package stores, mixed beverage establishments or bottle clubs within 300 feet of any church or school. By enacting this statute the legislature apparently intended to avoid disruption of religious or educational activities. The statute does not provide cause to infer that the legislature' merely intended to protect minors by this legislation.

Section 518.2 is part of the Oklahoma Alcoholic Beverage Control Act amended by the legislature in 1985.⁷ The act itself in § 88 explicitly provides for the protection of persons under twenty-one regarding sales of alcoholic beverages in lounges or bars.⁸ Because a portion of the act protects those under twenty-one, and minors are persons under eighteen years of age,⁹ then the act serves to protect some adults as well. As that fact is evident, it is probable that the legislature intended to protect adults under the age of twenty-one who are students of universities as well. Although this fact is persuasive to this Court, it is not dispositive.

The Oklahoma Legislature delegated to the ABLE Commission the power to “promulgate rules and regulations, in the manner herein provided, to carry out the purposes of the Oklahoma Alcoholic Beverage Control Act_” 37 O.S.Supp. 1990, § 514 (1985 Okla.Sess.Laws, ch. 6, § 15). While it is well settled that the power to formulate laws within this jurisdiction is legislative, “the power to make rules of a subordinate character in order to carry out that policy and apply it to vary[686]*686ing conditions, although partaking of a legislative character, is in its dominant aspect administrative and can be delegated.” Hart v. Oklahoma Alcoholic Beverage Control Bd,., 412 P.2d 142, 150 (Okla.1966). Further, rules and regulations enacted by the administrative agency in pursuance of legislative authority “are presumed to be reasonable and valid, and the burden of establishing the contrary rests on the complaining party.” Hart, 412 P.2d at 152.

In Peterson v. Oklahoma Tax Comm’n, 395 P.2d 388, 391 (Okla.1964), this Court held “[t]he long-continued construction of a statute by a department of government charged with its execution is entitled to great weight and should not be overturned without cogent reasons; where the legislature has convened many times during this period of administrative construction without expressing its disapproval, such silence may be regarded as acquiescence in or approval of the administrative construction.” The ABLE Commission, and its predecessor, the Oklahoma Alcoholic Beverage Control Board, have used their definition of the term “public school” since 1959.¹⁰

In Oral Roberts Univ. v. Oklahoma Tax Comm’n, 714 P.2d 1013, 1017 (Okla.1985), the Oklahoma Tax Commission attempted to restrict its policy interpretation of the church exemption. In this case of first impression, this Court commented concerning legislative acquiescence to a long standing construction of a statute by an administrative agency:

We as a Court are not required to perceive at this late date the intent of that legislature. The Tax Commission’s own undeviating position for at least 37 years plus the legislature’s disinclination to modify the substance of the statute during that period has now caused the original construction to be so firmly entrenched that the Commission may not with the stroke of a pen undo it. That would be a power reserved only to the legislature.

Like the Oklahoma Tax Commission’s long standing construction of the church exemption, the Oklahoma Alcoholic Beverage Control Board construed the term “public schools” in 1959, and the ABLE Commission adopted the same construction.. If the construction were improper, the legislature has had since 1959 to change the construction by defining the term “public schools” within the liquor laws. But the legislature has chosen not to do so.

Since the legislature has declined to define the term in subsequent legislative action, acquiescence or approval of the ABLE Commission definition can be assumed. Further, “Words employed in the original or antecedent Act will be presumed to be used in the same sense in the amend-atory enactment.” Letteer v. Conservancy District No. 30, 385 P.2d 796, 800-801 (Okla.1963).

In essence, the goals and purpose of § 518.2 would be defeated if the definition of school were limited in the manner urged by Brotton.

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ALMA WILSON, Justice:

The sole issue in this appeal is whether colleges and universities may be included in the definition of “public school” under 37 O.S.Supp.1990, § 518.2.¹ That statute prohibits the placement of liquor establishments within 300 feet of any public school. This issue arose out of an application filed by the Appellee, J. Brotton Corporation (Brotton). Brotton requested a mixed beverage license for a club named Chances (Chances) owned and operated by Brotton: The location of Chances is directly across the street from Oklahoma State University’s main campus. The ABLE Commission denied the license. The Commission based their decision on § 518.2, which specifically prohibits location of retail package stores, mixed beverage establishments or bottle clubs within 300 feet of a church regularly used for religious purposes or a public school. The focus of this appeal is the ABLE Commission’s definition of “public school.” Pursuant to Article II, section 16 of the Rules and Regulations of the ABLE Commission,² Oklahoma State University is a public school. Brotton challenges the ABLE Commission’s definition of public school. According to Brotton, public schools do not include institutions of higher learning.

Brotton argues that the ABLE Commission should not define public schools to include colleges and universities because the legislature intended to protect children and not adults from the perils of liquor. According to Brotton the primary objective of § 518.2 is to keep establishments that serve liquor at a reasonable distance from institutions in which the best interest and welfare of those attending these institutions may be adversely affected. Brotton urges the Court to look to article .1, § 5³, article XIII, § l⁴ and article XIII-A, § l⁵ of the Oklahoma Constitution in defining the term “public school.” However, it is not clear that the legislature intended Oklahoma statutory provisions providing for the establishment and maintenance of a public school system to be used in defining schools for the purpose of rules and regulations dealing with alcoholic beverages.⁶ In [685]*685Oklahoma there are no reported cases that address the definition of “school” pursuant to the alcoholic beverage statutes.

In determining whether Oklahoma State University is a “public school” within the meaning of § 518.2, legislative intent must be determined, as the legislature did not define the term “public school” within this statute. This Court has established that “[t]he ascertainment of legislative intent is the cardinal rule of statutory construction.” Riffe Petroleum Co. v. Great Nat’l Corp., 614 P.2d 576, 579 (Okla.1980). Section 518.2 prohibits the location of retail package stores, mixed beverage establishments or bottle clubs within 300 feet of any church or school. By enacting this statute the legislature apparently intended to avoid disruption of religious or educational activities. The statute does not provide cause to infer that the legislature' merely intended to protect minors by this legislation.

Section 518.2 is part of the Oklahoma Alcoholic Beverage Control Act amended by the legislature in 1985.⁷ The act itself in § 88 explicitly provides for the protection of persons under twenty-one regarding sales of alcoholic beverages in lounges or bars.⁸ Because a portion of the act protects those under twenty-one, and minors are persons under eighteen years of age,⁹ then the act serves to protect some adults as well. As that fact is evident, it is probable that the legislature intended to protect adults under the age of twenty-one who are students of universities as well. Although this fact is persuasive to this Court, it is not dispositive.

The Oklahoma Legislature delegated to the ABLE Commission the power to “promulgate rules and regulations, in the manner herein provided, to carry out the purposes of the Oklahoma Alcoholic Beverage Control Act_” 37 O.S.Supp. 1990, § 514 (1985 Okla.Sess.Laws, ch. 6, § 15). While it is well settled that the power to formulate laws within this jurisdiction is legislative, “the power to make rules of a subordinate character in order to carry out that policy and apply it to vary[686]*686ing conditions, although partaking of a legislative character, is in its dominant aspect administrative and can be delegated.” Hart v. Oklahoma Alcoholic Beverage Control Bd,., 412 P.2d 142, 150 (Okla.1966). Further, rules and regulations enacted by the administrative agency in pursuance of legislative authority “are presumed to be reasonable and valid, and the burden of establishing the contrary rests on the complaining party.” Hart, 412 P.2d at 152.

In Peterson v. Oklahoma Tax Comm’n, 395 P.2d 388, 391 (Okla.1964), this Court held “[t]he long-continued construction of a statute by a department of government charged with its execution is entitled to great weight and should not be overturned without cogent reasons; where the legislature has convened many times during this period of administrative construction without expressing its disapproval, such silence may be regarded as acquiescence in or approval of the administrative construction.” The ABLE Commission, and its predecessor, the Oklahoma Alcoholic Beverage Control Board, have used their definition of the term “public school” since 1959.¹⁰

In Oral Roberts Univ. v. Oklahoma Tax Comm’n, 714 P.2d 1013, 1017 (Okla.1985), the Oklahoma Tax Commission attempted to restrict its policy interpretation of the church exemption. In this case of first impression, this Court commented concerning legislative acquiescence to a long standing construction of a statute by an administrative agency:

We as a Court are not required to perceive at this late date the intent of that legislature. The Tax Commission’s own undeviating position for at least 37 years plus the legislature’s disinclination to modify the substance of the statute during that period has now caused the original construction to be so firmly entrenched that the Commission may not with the stroke of a pen undo it. That would be a power reserved only to the legislature.

Like the Oklahoma Tax Commission’s long standing construction of the church exemption, the Oklahoma Alcoholic Beverage Control Board construed the term “public schools” in 1959, and the ABLE Commission adopted the same construction.. If the construction were improper, the legislature has had since 1959 to change the construction by defining the term “public schools” within the liquor laws. But the legislature has chosen not to do so.

Since the legislature has declined to define the term in subsequent legislative action, acquiescence or approval of the ABLE Commission definition can be assumed. Further, “Words employed in the original or antecedent Act will be presumed to be used in the same sense in the amend-atory enactment.” Letteer v. Conservancy District No. 30, 385 P.2d 796, 800-801 (Okla.1963).

In essence, the goals and purpose of § 518.2 would be defeated if the definition of school were limited in the manner urged by Brotton. Since the interpretation of the statute is reasonable and legislative intent is supported by the definition of school adopted by the ABLE Commission it is the duty of this Court to uphold article II, § 13 of the ABLE Commission Rules and Regulations.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF APPEALS VACATED; JUDGMENT OF THE TRIAL COURT REVERSED.

HODGES, V.C.J., and LAVENDER, HARGRAVE and SUMMERS, JJ., concur. OPALA, C.J., and SIMMS, DOOLIN and KAUGER, JJ., dissent. [687]*687DOOLIN, Justice, dissenting: I dissent because state universities and colleges are not “public schools.”

⁶

. The dissent would engraft constitutional and statutory provisions regarding the establishment and maintenance of a public school system with the provisions of 37 O.S.Supp.1990, § 518.2 (1985 Okla.Sess.Laws, ch. 6, § 68), which provides for the protection of certain educational activities. The dissent would make a term of art out of the phrase “public schools” and cites 70 O.S.1981, § 1-106. That statute provides: "The public schools of Oklahoma shall consist of all free schools supported by public taxation and shall include either K-6 or K-8, and secondary schools, not to exceed two (2) years of [685]*685junior college work, night schools, adult and other special classes, vocational and technical instruction and such other school classes and instruction as may be supported by public taxation or otherwise authorized by laws which are now in effect or which may hereafter be enacted.” The language of this statute explicitly permits the inclusion of junior colleges and its language is broad enough to include universities that are supported by public taxation or otherwise authorized by law, which would include Oklahoma State University (70 O.S.Supp.1991, § 3201, 70 O.S.1981, § 3210). But the purpose of the Oklahoma School Code (70 O.S.1981, §§ 1-101 through 1-121) was "to provide for a state system of public school education and for the establishment, organization, operation and support of such state system,” (70 O.S.1981, § 1-102) not to define "public schools” wherever the term is found within our statutes. The definition was not written for the purpose of aiding in the enforcement of the liquor laws.

The dissent also cites case law to support a more limited definition of public schools. In Regents of University of Oklahoma v. Board of Education, 20 Okla. 809, 95 P. 429 (1908), this Court determined that "public schools” as used in article 13, § 1 of our constitution did not include in its meaning, the University of Oklahoma. The issue in that case involved whether the authority of the Board of Education to control and regulate public schools as provided by article 13, § 1, included all schools supported by public funds, including the University of Oklahoma or whether the legislature had the authority to place the Board of Regents in control of the university, to the exclusion of the Board of Education. After defining "public schools” to exclude the Board of Education from control of the university, this Court added: "We do not lay down as a rule to which there is no exception that the terms ‘public schools' and ‘common schools’ are always interchangeable terms. There may be circumstances under which the term ‘public schools' might be conceived to include the University or other institutions of higher learning in the state.” 95 P. at 432. Such a circumstance is now before this Court.

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1991 OK 126, 822 P.2d 683, 62 O.B.A.J. 3758, 1991 Okla. LEXIS 145, 1991 WL 258982, Counsel Stack Legal Research, https://law.counselstack.com/opinion/j-brotton-corp-v-oklahoma-alcoholic-beverage-laws-enforcement-commission-okla-1991.

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