Cunningham v. Oklahoma City, 48188

• Citation: 556 P.2d 1078
• Decision Date: 24 August 1976
• Docket Number: No. 2,No. 48188,48188,2
• Parties: Lester L. CUNNINGHAM, Appellee, v. OKLAHOMA CITY, a Municipal Corporation, and Judy Watson, Supervisor of the License Division of the City of Oklahoma City, Appellants
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 1078

556 P.2d 1078

Lester L. CUNNINGHAM, Appellee, v. OKLAHOMA CITY, a Municipal Corporation, and Judy Watson Supervisor of the License Division of the City of Oklahoma City, Appellants.

No. 48188.

Court of Appeals of Oklahoma, Division No. 2.

Aug. 24, 1976.

Rehearing Denied Sept. 16, 1976.

Certiorari Denied Nov. 16, 1976.

Released for Publication by Order of Court of Appeals Nov. 18, 1976.

Appeal from the District Court of Oklahoma County; Homer Smith, Trial judge.

Action for writ of mandamus directing city official to issue license to sell 3.2 beer in a tavern. From trial court's judgment directing that license be issued, city appeals. AFFIRMED.

Charles A. Shadid, and George R. Hanks, Oklahoma City, for appellee.

Walter M. Powell, Municipal Counselor by Patricia Sellers, Asst. Municipal Counselor, and John M. Williams, Asst. Municipal Counselor, Oklahoma City, for appellants.

BRIGHTMIRE, Judge.

Under attack, in this mandamus action, is a judgment directing the licensing officer of Oklahoma City to issue Lester Cunningham a city license to operate a beer tavern located within 600 feet of a metropolitan public elementary school.

I

On November 14, 1974, Cunningham signed a three-year lease on the taproom property. By December 11, 1974, he had obtained both a state and county beverage license. On December 27 the would-be saloonkeeper presented a written application for a city license to the municipality's License Division. It was summarily rejected that same day by division supervisor, Judy Watson, who wrote on the margin: 'Application denied due to Planning Department's requirements.'

The following month this lawsuit was filed seeking a writ of mandamus compelling the city to issue the requested beer license. At the close of a hearing, the court issued the writ upon finding that the applicant had complied with all precedential requirements of law, save an Oklahoma City ordinance prohibiting the sale of beer within 600 feet of a public school--an enactment which the trial court declared 'unconstitutional' and therefore inoperative.

The city appeals contending the decision is wrong because: (1) the ordinance in question is a valid 'zoning ordinance,' not an impermissible attempt to regulate a 'nonintoxicating beverage'; (2) one does not, by obtaining a state and county beer license, thereby become entitled to a city license until he complies with applicable zoning laws; (3) there is a difference between consuming beer on the seller's premises and elsewhere; and (4) subject ordinance is compatible with state statutory law regulating the sale of beer.

These four 'propositions' are but segments of a primary question: May a municipality prohibit the sale of 3.2 beer within 600 feet of a public school absent statutory authorization to do so? We hold it may not and that the trial judge reached the right result. We shall not, however, consider whether his premise ¹ is correct because of our conclusion that subject ordinance in effect regulates the sale of 3.2 beer and therefore unlawfully invades an area of lawmaking the state legislature has reserved exclusively for itself.

II

The operative facts are undisputed. At trial it was stipulated that (1) the proposed tavern site is in the proper zone, 'E' Local Commercial District, and (2) the site is within 600 feet of a public elementary school. The ordinance proviso city seeks to enforce is called a 'Use regulation' and pertains to business...