Callaway v. City of Edmond

• Decision Date: 24 April 1990
• Docket Number: No. M-89-83,M-89-83
• Citation: 791 P.2d 104,1990 OK CR 25
• Parties: Ed CALLAWAY, Appellant, v. CITY OF EDMOND, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 104

791 P.2d 104

Ed CALLAWAY, Appellant, v. CITY OF EDMOND, Appellee.

No. M-89-83.

Court of Criminal Appeals of Oklahoma.

April 24, 1990.

Rehearing Denied May 31, 1990.

An Appeal from the District Court of Oklahoma County; Karl Gray, District Judge.

Ed Callaway, appellant, was convicted in the District Court of Oklahoma County, for violation of Chapter 4.32.010 of the Edmond Municipal Code, (IV Counts), which prohibits the admission of persons under eighteen years of age to enter any pool hall, snooker parlor, billiard parlor, or similar place of business. He was fined $70.00 for each count, with all fines and costs

suspended. REVERSED and REMANDED with instructions to DISMISS.

Charles W. Stubbs, Stubbs and Goodman, Oklahoma City, for appellant.

Stephen T. Murdock, John E. Dorman, Edmond, for appellee.

OPINION

JOHNSON, Judge:

Appellant, Ed Callaway, was convicted in the District Court of Oklahoma County, Case No. CA-87-132, for violation of Chapter 4.32.010 of the Edmond Municipal Code, (IV Counts), which prohibits the admission of persons under eighteen years of age to enter any pool hall, snooker parlor, billiard parlor, or similar place of business. He was fined $70.00 for each count, with all fines and costs suspended.

On the evening of September 18, 1987, Edmond Police Officers Jeff Brewer and Tony Fike were sent to an establishment in Edmond known as the "Tiger's Den," to investigate a complaint that minors were on the premises, in violation of Chapter 4.32.010 of the Edmond Municipal Code. Such Chapter provides:

It shall be an offense for any person or persons owning or operating for pay or for commercial purposes a pool hall, snooker parlor, billiard parlor, or similar place of business within the corporate limits of the City of Edmond, to permit any person under the age of eighteen years of age to enter such place of business or room where such games are played or are being played. Under no conditions shall a person under eighteen years of age be allowed to play any such game in such establishment within this City.

Upon entry, the officers observed several young persons, many of whom were playing pool. The officers detained several of the individuals and after determining that they were in fact under eighteen years of age, issued appellant the citations which are the subject of this appeal.

Appellant argues that the city ordinance is unconstitutional because it denies persons under the age of eighteen their right to freedom of association. We disagree.

In City of Dallas v. Stanglin, 490 U.S. 19, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989), the Supreme Court held that a Dallas city ordinance, which restricted the ages of admission to a certain class of dance halls to persons between the ages of 14 and 18, did not violate the patrons' associational rights under the Federal Constitution. In Stanglin, the Supreme Court noted two different sorts of "freedom of association" that are protected by the United States Constitution. The first is the choice to enter into and maintain certain intimate human relationships. The second is the right to associate for the purpose of engaging in those activities protected by the First Amendment--speech, assembly, petition for the redress of grievances, and the exercise of religion. Id., 109 S.Ct. at 1594, 104 L.Ed.2d at 25. The Supreme Court found that the patrons were not engaged in the sort of intimate human relationships envisioned by the Constitution nor were the patrons taking positions on public questions or performing any similar expressive association protected by the Constitution. In conclusion, the Court held that the Constitution does not recognize a generalized right of "social association" that included, as in that case, chance encounters in dance halls. Id.

Applying the principle of Stanglin to the facts of this case, we likewise find that the patrons of the "Tiger Den" have not been denied their constitutional right of association. Clearly, the association in the "Tiger Den" in the present case would be classified as a social association because the patrons were not involved in an activity that qualifies as a form of intimate association or expressive association protected by the Federal Constitution.

The appellee contends that Chapter 4.32.010 is a valid exercise of municipal authority pursuant to 11 O.S.1981, § 22-108 which grants municipalities the power to restrict or prohibit gaming and gambling within their corporate limits. Citing Ex Parte Draughn, 55 Okl.Cr. 139, 26 P.2d 437 (1933), Whitson v. City of Ada, 171 Okl 491, 44 P.2d 829 (1935), Whitson v. City of Cherokee, 173 Okl. 208, 46 P.2d 907 (1935), and Whitson v. City of Kingfisher, 176 Okl. 145, 54 P.2d 616 (1936), appellee claims that the courts of this State have long upheld similar municipal ordinances enacted pursuant to the same statute. However, a review of those cases reveals that the city ordinances in question prohibited any operation of pool halls within the city limits. Thus, the ordinances relied upon by appellee are distinguishable from the ordinance in this case in that they constituted a total ban on pool halls and not a limitation on who could play.

Justice Opala stated in Black v. Ball Janitorial Service Inc., 730 P.2d 510, 512 (Okl.1986) that "We recognize at the outset that there is a strong presumption which favors the constitutionality of legislative acts. The reviewing court will uphold the statute unless it is clearly, palpably and plainly inconsistent with our fundmental law." The Justice also held that there must be a "... reasonable relation to the legitimate objectives and purposes of the legislation." Ball supra. The question then is if the ordinance has such a rational relationship to a legitimate state purpose or objective.

While we agree with appellee that 11 O.S.1981, § 22-108 grants municipalities the authority to suppress gaming and gambling within their city limits, any ordinance enacted pursuant to the statute cannot run afoul of constitutional guarantees. While the Oklahoma Constitution does not contain a provision identical to the equal protection clause in the federal constitution, it is well established that a like guarantee exists within our state constitution's due process clause. ¹ See Fair School Finance Council of Oklahoma, Inc. v. State of Oklahoma, 746 P.2d 1135, 1148 (Okl.1987). Furthermore, Oklahoma has adhered, since 1908, to a more sensitive view of the XIVth Amendment's Equal Protection Clause. See Chicago, R.I. & P. Ry. Co. v. Mashore, 21 Okl. 275, 96 P. 630, 634-635 (1908); Oligschlager v. Stephensen, 24 Okl. 760, 104 P. 345 (1909); Keaton et. al. v. Branch, 104 Okl. 287, 231 P. 289 (1925); and Parkhill Truck Company v. Reynolds, 359 P.2d 1064, 1067-1068 (Okl.1961). See also Thayer v. Phillips Petroleum Co., 613 P.2d 1041, 1045 (Okl.1980). After a review of the Edmond city ordinance, we find that it violates the due process clause of the Oklahoma...