Bosco's Club, Inc. v. City of Oklahoma City
| Decision Date | 11 November 1984 |
| Docket Number | No. CIV 83-2439-R.,CIV 83-2439-R. |
| Citation | 598 F. Supp. 583 |
| Parties | BOSCO'S CLUB, INC., a corporation, Plaintiff, v. CITY OF OKLAHOMA CITY, a municipal corporation, Defendant. |
| Court | U.S. District Court — Western District of Oklahoma |
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Rick Romano, Joel L. Carson, Oklahoma City, Okl., for plaintiff.
Diane L. Davis, Asst. Mun. Counsel, Walter M. Powell, Mun. Counsel, Oklahoma City, Okl., for defendant.
The Plaintiff brought this action against the City of Oklahoma City seeking declaratory and injunctive relief from a newly enacted city ordinance on October 4, 1983. The Plaintiff's motion for a preliminary injunction was denied on October 14, 1983, the Court concluding that the Plaintiff had failed to demonstrate a likelihood of prevailing on the merits. The case then proceeded to a bench trial on February 1, 1984, and was taken under advisement at that time. The Court is now prepared to render judgment and issues this Memorandum Opinion to record its findings of fact and conclusions of law. See Fed.R.Civ.P. 52(a).
The ordinance challenged in this action was promulgated by the City on July 19, 1983 and amended on September 13, 1983.1 As amended, the ordinance supplemented the Oklahoma City Code with, inter alia, the following provisions:
The term "licensed establishment" is defined as "any place of business which is licensed as a private club or has been issued a retail dealer's license." The ordinance also prescribes a fine of up to three hundred dollars for violation of any of these provisions.
As the evidence presented at trial indicates, this ordinance was enacted solely to curtail activity known as the "B girl operation," whereby employees of the licensed establishments solicit patrons to purchase drinks at inflated prices upon the implied promise of sexual favors. A task force was commissioned by the City to study the problem in the Oklahoma City area, and the result was recommendation of the ordinance in question. The ordinance was modeled upon similar statutes adopted in other jurisdictions in response to the proliferation of "B girl" bars.
The Plaintiff, an Oklahoma corporation doing business at 2829 West California Street in Oklahoma City, is licensed by the City as a private club pursuant to the Oklahoma City Code, and by the State of Oklahoma as a retail dealer of non-intoxicating beer pursuant to the Manufacture and Sale of Non-Intoxicating Beverages Act, 37 O.S. 1981 § 163.1—§ 163.23. Thus, the ordinance in question presumably applies to the Plaintiff in each of these capacities and prohibits the conduct mentioned above on the premises of the club.
The Plaintiff challenges the solicitation ordinance on Oklahoma statutory grounds as well as federal constitutional grounds. The Court will consider each of the Plaintiff's claims seriatim.
The Plaintiff's challenge to the ordinance on Oklahoma statutory grounds is based upon the assertion that the Oklahoma legislature has preempted the licensing and regulation of the sale of nonintoxicating beer in Oklahoma. Thus, the Plaintiff argues that the City exceeded its authority by enacting an ordinance regulating the sale of nonintoxicating beer in Oklahoma City.
As a preliminary matter, the Court must determine whether the Plaintiff is entitled to challenge the ordinance both as a private club and as a retail dealer. The City argues that, as the Plaintiff is a private club licensed by the City of Oklahoma City, it is entitled to challenge the ordinance only as a private club. Under this interpretation, the Plaintiff would lack standing to challenge the ordinance as unlawful regulation of the sale of nonintoxicating beer. In support of this proposition the City cites the unpublished opinion of the Oklahoma Court of Criminal Appeals in Scott v. State, No. M-82-518 (Okla.Ct. Crim.App. Aug. 9, 1983).
The Court finds this proposition without merit. First, Scott is distinguishable from the case at bar in that the appellant therein attempted to use his dual status as a private club and a restaurant to avoid statutory regulation in the form of mandatory closing hours. Scott, slip op. at 4. In this case, the Plaintiff seeks to do just the opposite; the Plaintiff attempts to use its dual status to avail itself of statutory regulation that presumably preempts any regulation by the City. Thus, the reasoning in Scott is inapposite to the case at bar. Second, the ordinance in question purports to regulate conduct in both private clubs and retail dealer establishments, and the Plaintiff is clearly in both categories. The Court sees no logic in denying the Plaintiff an opportunity to challenge the ordinance on a statutory basis that is available to other retail dealers, simply because the Plaintiff has also secured licensing as a private club by the City. Third, adoption of the City's proposition would bring about an anomalous result: the Plaintiff, which owes its legal existence in part to statutory authority, would be prevented from challenging the City's ordinance as violative of the very authority by which the Plaintiff exists. Thus, the Court concludes that the Plaintiff is entitled to challenge the solicitation ordinance both as a private club and as a retail dealer.
The remaining issue is thus whether the solicitation ordinance impermissibly regulates the sale of nonintoxicating beer. It is clear that the Oklahoma legislature has preempted the authority of a municipality to regulate the sale of nonintoxicating beer. E.g., 7-Eleven, Inc. v. McClain, 422 P.2d 455, 459-60 (Okla.1967); Allison v. Howell, 204 Okl. 404, 230 P.2d 706, 709 (1951); Ex parte Higgs, 97 Okl.Cr. 338, 263 P.2d 752, 756-7 (1953); Ex parte Gammel, 89 Okl.Cr. 400, 208 P.2d 961, 966-7 (1949); Ex parte Pappe, 88 Okl.Cr. 166, 201 P.2d 260, 263 (1948); Cunningham v. Oklahoma City, 556 P.2d 1078, 1079-80 (Okla. Ct.App.1976). Thus, if the ordinance can be characterized as one which regulates the sale of nonintoxicating beer, it must be held invalid as promulgated in excess of the City's authority.2
It is the opinion of the Court that the solicitation ordinance cannot be so characterized. The evidence presented at trial indicates that the ordinance was enacted solely for the purpose of curtailing the infamous "B girl operation." The City did not intend that the ordinance regulate the sale of nonintoxicating beer; its intent was simply to proscribe and punish morally culpable conduct peculiar to drinking establishments. Further, the ordinance itself is neutral on its face with respect to the sale of nonintoxicating beer.3 No beer sales are prohibited; only solicitation and its attendant consequences are proscribed by the ordinance. Thus, the ordinance cannot be characterized as regulating the sale of nonintoxicating beer in the sense that such regulation is the purpose of the ordinance.
The Plaintiff seems to argue that an unintended impact on the sale of nonintoxicating beer is sufficient to make the ordinance a regulation of such sales. Assuming arguendo that this is so, the Court is persuaded that any unintended impact on the sale of beer by this ordinance is at best negligible. Arguably, beer purchases will decline if patrons cannot be solicited to purchase beer for establishment employees. However, the amount of beer purchased for employees is necessarily small in comparison to the amount of beer purchased by patrons for themselves. And the Plaintiff has failed to persuade the Court that his beer sales have in fact been affected at all by the ordinance. While the Plaintiff's evidences does indicate a general decline in sales over the months preceding trial, such decline may be attributable as much to the City's nude dancing ordinance as to the solicitation ordinance. Thus, the Court concludes that the unintended impact, if any has taken place in this case, is sufficiently de minimis as to be negligible. This being so, the Court cannot conclude that an ordinance not intended to regulate beer sales has become a de facto regulation because of its impact.
In summary, it is the opinion of the Court that the solicitation ordinance does not regulate the sale of nonintoxicating beer. The City therefore has not usurped authority reserved for the Oklahoma legislature, and the Court concludes that the ordinance withstands the Plaintiff's statutory challenge.
The Plaintiff's federal constitutional challenges to the solicitation ordinance focus on the equal protection and due process clauses of the fourteenth amendment and the first amendment guarantee of free speech. A preliminary matter to be determined is whether the Plaintiff has the standing to assert the constitutional rights of its employees and patrons. As the City notes, the general rule is that "one to whom application of a statute is unconstitutional will...
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Mustfov v. Rice
...appropriate state courts; and (3) the interpretation of the enactment given by those who must enforce it. Bosco's Club, Inc. v. City of Oklahoma City, 598 F.Supp. 583 (W.D.Okla.1984) (citing Grayned v. City of Rockford, 408 U.S. 104, 111, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972)). Unfortu......