Moore v. City of Tulsa

1977 OK 43, 561 P.2d 961

• Court: Supreme Court of Oklahoma
• Decided: March 15, 1977
• Docket: 48889
• Status: Published

Opinions

HODGES, Chief Justice.

This case involves the review of an administrative proceeding involving a quasi-judicial hearing before the Board of Commissioners of the City of Tulsa, Oklahoma. The matter arose as a hearing on a license suspension for a private club for alleged violation of city ordinances relating to nude dancing and consumption of alcoholic beverages.¹

It is asserted on appeal that the ordinance regulating nude dancing, Tulsa, Okl.Rev.Ord. Title XXI, Ch. 21, § 412(b)(3) 1974, is an unconstitutional restriction on first amendment rights, and it is also argued that 37 O.S.1971 § 518(b) precludes licensure of private clubs by municipalities. This statute provides in pertinent part:

“. . . Provided this Subsection shall not give any city or town any right to determine or regulate the issuance of any license, except as herein specifically provided, as the Board shall have exclusive authority as to said issuance and regulations of said licenses and no city or town may prescribe rules or regulations in conflict with or additional to the statutes of this State or the rules of the Board.

We do not agree that the ordinance is an unconstitutional infringement on the first amendment which prohibits the abridgement of freedom of speech nor is it precluded by or in conflict with the cited statute. A city under its charter and for a purpose justifying exercise of its police powers may enact an ordinance not in conflict with statutes on the same subject. A constitutional exercise of such power to promote the public peace, health and welfare must serve those ends in a uniform way and accomplish a result that does not defeat the express purpose of the statute.² A city which adopts a home-rule charter under the provisions of Okl.Const. art. 18, § 3(a) is accorded full power of local self-government, and as such the city has the power to enact and enforce ordinances to protect the public peace, order, health, morals and safety of its inhabitants even though general statutes exist relating to the same subjects.³ An ordinance may cover an authorized field of local laws not occupied by general laws and may prohibit acts not prohibited by statute.⁴ A municipal corporation may exercise police power on subjects of municipal concern which are also proper for statutory regulation, and where the state has not spoken the position of a municipal corporation is analogous to that of the state to the federal government with reference to matters of interstate commerce.⁵ In order for there to be a conflict between a state enactment and a municipal regulation, both must contain either express or implied conditions which are inconsistent and irreconcilable with one another. If either is silent where the other speaks there can be no conflict.⁶

The Oklahoma Alcoholic Beverage Control Board (Board) controls licensing of manufacturers, retail liquor stores, and distribution of liquor within the state.⁷ The Board is constitutionally created⁸ and has the power and duty to supervise, inspect and regulate every phase of the business of manufacturing, importing, exporting, transporting, storing, selling, distributing, and possession for the purpose of sale, all alcoholic beverages.⁹ The Board has no control over the private consumption of alcohol in the absence of statutory authorization. Because the legislature has not enacted legislation governing the private consumption of liquor, the City of Tulsa, like many other municipalities in the state, has adopted a private club ordinance.¹⁰ A municipality has the right to license and regulate nudity and the consumption of liquor in private clubs by ordinance for the purpose of protecting the public peace, order, health, morals and safety of its inhabitants under the police power. We do not find that there is any usurpation of state authority or any conflict with statutory provisions or the twenty-first amendment of the United States Constitution which would prohibit the licensing of private premises where liquor is consumed.

In California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972) regulations almost identical to those included in this ordinance were promulgated by the California Department of Alcoholic Beverage Control, an administrative agency vested by the California Constitution with primary authority for the licensing of the sale of alcoholic beverages. The United States Supreme Court held in LaRue that the twenty-first amendment to the Constitution of the United States repealing prohibition gave the states the authority to determine that sale of liquor by the drink and lewd or nude dancing should not take place simultaneously. These regulations were determined not to be unconstitutional infringements on first amendment rights because they were adopted in the context of licensing bars and nightclubs to sell liquor by the drink, not in the context of censoring a dramatic performance. Oklahoma does not constitutionally or statutorily permit liquor by the drink,¹¹ but the premise enunciated in LaRue is equally applicable to the Tulsa ordinance even though the regulation in LaRue related to the sale of liquor by the drink and the pertinent ordinance concerns regulation of premises where alcohol is consumed. Based on the holding in LaRue and the reasons enunciated, we find the ordinance is constitutional.

Appellant also complains that they were denied a fair hearing because the Police and Fire Commissioner participated in the hearing and decision which resulted in the suspension of their license.

Appellant points out the Chief of Police initiated the investigation and filed the complaint in this instance and with the Police and Fire Commissioner participating in the hearing as a member of the Board of Commissioners they were denied a fair and impartial hearing. We disagree.

The Chief of Police and the Police and Fire Commissioner are two separate entities with different responsibilities and authority. The Chief of Police has the responsibility of law enforcement. The Police and Fire Commissioner is a member of the Board of Commissioners akin to a city councilman with authority to enact ordinances and make decisions for the operation and management of city government. His special responsibility for the enforcement of police regulations does not per se disqualify him. There being no other allegation of special interest, partiality or prejudice, we find no violation of due process in the Police & Fire Commissioner’s participation in the hearing.

AFFIRMED.

LAVENDER, V. C. J., and WILLIAMS, BERRY, BARNES and SIMMS, JJ., concurring. IRWIN and DOOLIN, JJ., dissenting.

1 . Tulsa, Okl.Rev.Ord., Title XXI, Ch. 21, § 412(b)(3) (1974) provides:

“It shall be grounds for the revocation or suspension of a license issued hereunder for any private club or operator, partner or manager, or person having supervisory control thereof, or employee, to do or permit to be done on or about the licensed premises, any of the following:

‘The actual or simulated displaying of the pubic hair anus, vulva or genitals.’ ”

See note 10, supra, for ordinance pertaining to licensure of private clubs where alcoholic beverages are consumed.

2 . Spartan’s Industries, Inc. v. Oklahoma City, 498 P.2d 399, 401 (Okl.1972).

3 . Sparger v. Harris, 191 Okl. 583, 131 P.2d 1011, 1013 (1943).

4 . City of Harlan v. Scott, 290 Ky. 585, 162 S.W.2d 8, 9 (1942); City of Birmingham v. West, 236 Ala. 434, 183 So. 421, 423, cert. den. 306 U.S. 663, 59 S.Ct. 787, 83 L.Ed. 1058 (1938).

5 . Consumer’s Coal Co. v. City of Lincoln, 109 Neb. 51, 189 N.W. 643, 646 (1922).

6 . Ray v. City and County of Denver, 109 Colo. 74, 121 P.2d 886, 888, 138 A.L.R. 1485 (1942); Clemons v. Wilson, 151 Kan. 250, 98 P.2d 423, 427 (1940).

7 . The kinds of licenses and permits which may be issued by the Board pursuant to 37 O.S.1971 § 518 include: licenses for brewers, distillers, winemakers, Oklahoma winemakers, rectifiers, wholesalers, Class B wholesalers, agents, employees, industrial carriers, private carriers, bonded warehouse, storage, non-resident sellers, and manufacturers.

There is no statutory provision for licensure of private premises where alcoholic beverages are consumed.

8 . See Okl.Const. art. 27, § 1.

9 . 37 O.S.1971 § 514.

10 . The pertinent enactment, Tulsa, Okl.Rev. Ord., Title XXI, Ch. 21, § 401 (19 ) provides:

“A private club for the purpose hereof is defined as any person, firm, corporation or association, leasing, licensing or otherwise furnishing to or for the use of its members any premises or place whereon such members may engage in the consumption of alcoholic beverages, as defined by the Statutes of the State of Oklahoma, either for a fee, or for any other considerations, including the sale of food, mixers, ice or any other fluids for use or consumption with alcoholic beverages or wherein the space for storage of alcoholic beverages is furnished. The term ‘private club’ shall be deemed to include key clubs, bottle clubs, locker clubs, pool clubs, country clubs, business clubs, social clubs, or any other kind of club or association which excludes the general public from its premises or place of meeting or congregating and which exercises control over any place where persons are permitted to consume alcoholic beverages other than in a private home.”

11 .The sale of liquor by the drink and operation of open saloons are expressly forbidden by Okl.Const. art. 27, § 4 and 37 O.S.1971 § 537(a)(8).