Fancy's Entertainment v. City of Enid

• Decision Date: 23 October 2007
• Docket Number: No. 103,588. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.,103,588. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.
• Citation: 2007 OK CIV APP 112,171 P.3d 928
• Parties: FANCY'S ENTERTAINMENT L.L.C., an Oklahoma limited liability company, Lacy McCullough, an individual, and John and Jane Doe, Plaintiffs/Appellants, v. The CITY OF ENID, Defendant/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

171 P.3d 928

2007 OK CIV APP 112

FANCY'S ENTERTAINMENT L.L.C., an Oklahoma limited liability company, Lacy McCullough, an individual, and John and Jane Doe, Plaintiffs/Appellants, v. The CITY OF ENID, Defendant/Appellee.

No. 103,588. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.

Court of Civil Appeals of Oklahoma, Division No. 2.

October 23, 2007.

Appeal from the District Court of Garfield County, Oklahoma; Honorable Mark A. Moore, Trial Judge.

REVERSED

Michael D. Roberts, Roberts Law Office, Enid, OK, for Plaintiffs/Appellants.

Carol Lahman, Kate Naa-Amoah Dodoo, City Attorney's Office, Enid, OK, for Defendant/Appellee.

JOHN F. FISCHER, Presiding Judge.

¶ 1 At issue in this appeal is a City of Enid ordinance prohibiting 18 to 20 year-olds from entering any establishment licensed to sell low-point beer in which nearly nude dancing is permitted. Appellants appeal from the denial of their motion for summary judgment and the grant of the City's motion for summary judgment. This appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(b), 12 O.S. Supp.2006, ch. 15, app. 1, and the matter stands submitted without appellate briefing. Based on our review of the record and applicable law, we find that the ordinance directly conflicts with State law and is, therefore, invalid.

BACKGROUND

¶ 2 Three appellants or classes of appellants are parties to this appeal: (1) Fancy's, an establishment that provides nearly nude dancing and is licensed to sell low-point beer; (2) Ms. McCullough, a twenty year-old dancer employed by Fancy's; and (3) John and Jane Doe, 18 to 20 year-old patrons of the establishment. Appellants challenge Title 3, Chapter 2, Section 3-2B-11 of the Enid Municipal Code, 2004, which prohibits persons under the age of 21 from entering any "establishment which is licensed to sell low-point beer and which allows persons to perform or work in a nearly nude state."¹

¶ 3 In October 2004, appellants brought suit against the City in the district court of Garfield County seeking a judgment declaring the ordinance unconstitutional. Appellants alleged that the ordinance constitutes an impermissible exercise of municipal authority, an unconstitutional deprivation of the right to enjoy the gains of one's industry guaranteed by the Oklahoma Constitution, an unconstitutional restraint on appellants' First Amendment rights and a violation of their Fourteenth Amendment right to the equal protection of the law. Appellants filed a motion for summary judgment to which the City responded and joined with its response the City's own motion for summary judgment. After appellants filed an amended petition, the City filed a second motion for summary judgment supplementing the evidentiary support for its motion. Appellants filed a response to each of the City's motions.

¶ 4 The Trial Court heard arguments on the pending motions on May 30, 2006, and by Journal Entry of Judgment filed June 23, 2006, found that "state law did not prohibit the City of Enid's ordinance; the ordinance was not unconstitutional; and, that summary judgment was appropriate for the City of Enid." It is from this order that the appellants have filed this timely appeal.

STANDARD OF REVIEW

¶ 5 "Summary judgment is appropriate where it appears there is no substantial controversy as to any material fact and one party is entitled to judgment as a matter of law." City of Enid v. Pub. Employees Relations Bd., 2006 OK 16, ¶ 5, 133 P.3d 281, 284-85. See also Crockett v. McKenzie, 1994 OK 3, ¶ 3, 867 P.2d 463, 464; Daugherty v. Farmers Coop. Ass'n, 1984 OK 72, ¶ 5, 689 P.2d 947, 949. "[T]he inquiry on appeal concerning the propriety of the entry of summary judgment is limited to potential controversies concerning any issue raised by the pleadings." Wabaunsee v. Harris, 1980 OK 52, ¶ 9, 610 P.2d 782, 785. "An order that grants summary relief disposes of legal issues and the dispositive issue in this appeal is a question of law. Therefore, on appeal, the review we conduct is de novo." City of Enid, 2006 OK 16 at ¶ 5, 133 P.3d at 285.

DISCUSSION

I. The Summary Judgment Record

¶ 6 Appellants' motion for summary judgment contains a statement of undisputed facts. However, with one exception, there is no reference in the motion to any evidentiary material supporting appellants' factual contentions. Rule 13 of the Rules for District Courts requires a party moving for summary judgment to file evidentiary material with the motion showing the absence of any controversy as to any fact material to the movant's position. Further, "[r]eference shall be made in the statement to the pages and paragraphs or lines of evidentiary materials that are pertinent to the motion." Okla. Dist. Ct. R. 13(a), 12 O.S. Supp.2002, ch. 2, app.

¶ 7 The City's combined response and motion for summary judgment did not "set forth and number each specific material fact [asserted by the appellants] which [the City] claimed to be in controversy." Rule 13(b). However, both of the City's motions are supported by reference to evidentiary material. Although the appellants responded to each motion, their efforts to dispute the City's factual assertions are not supported by independent evidentiary material as required by Rule 13. Nonetheless, a party opposing a motion for summary judgment may rely on the evidentiary materials submitted by the opposing party. Id. From this, we conclude that properly supported evidentiary material in the City's submissions may be considered in determining the appellants' motion as well as the motions filed by the City.

¶ 8 At the time the Trial Court heard argument on the summary judgment motions, the pertinent undisputed facts were as follows: (1) Enforcement of underage drinking laws is difficult in low-light establishments; (2) The purpose of the ordinance is to reduce underage drinking and other undesirable behavior; (3) No City ordinance prohibits 18 to 20 year-olds from performing or watching nearly nude dancing in Enid as long as the establishment does not sell low-point beer; (4) Fancy's is licensed to sell low-point beer, segregates the area in which it sells low-point beer from the rest of its establishment and does not allow persons under the age of twenty-one to enter that area; and (5) The main purpose of the area outside the designated bar area is not the sale of low-point beer.² It is on the basis of this record that the parties' motions for summary judgment must be decided.

II. The Summary Judgment Motions

¶ 9 Appellants' joint motion for summary judgment asserts four arguments: the ordinance is preempted by Oklahoma law, the ordinance violates the Oklahoma Constitution's guarantee to the benefits of one's labor, the ordinance violates the First Amendment and the Equal Protection clause of the Fourteenth Amendment to the United States Constitution.³ The City's motion argues that the ordinance is authorized by Oklahoma law and that it does not violate either the First or the Fourteenth Amendment.

A. The Conflict with State Law Argument

¶ 10 It is well settled that "[a]n ordinance may cover an authorized field of local laws not occupied by general laws and may prohibit acts not prohibited by statute." Moore v. City of Tulsa, 1977 OK 43, ¶ 2, 561 P.2d 961, 963. This, however, is not such an area of the law. The general laws of Oklahoma regulate all aspects of the manufacture, distribution, sale, possession and consumption of low-point beer. See generally Title 37 O.S.2001 §§ 1-608. Sections 241,⁴ 243⁵ and 246⁶ of Title 37 specifically regulate the age at which persons may be admitted to establishments that sell low-point beer, including those establishments that segregate the bar area from the remainder of the establishment.

¶ 11 Nonetheless, "municipalities of this state may under our Constitution adopt charters in which they reserve unto themselves the full power of local self-government." Sparger v. Harris, 1942 OK 418, ¶ 11, 191 Okla. 583, 131 P.2d 1011, 1013. Underage drinking, while a matter of legitimate concern to local officials, is not exclusively a local matter. See Application of Kay, 1959 OK CR 72, 341 P.2d 284, (control of liquor traffic comes within State's police powers). Underage drinking is, in fact, illegal because State law declares it so. Sections 241 and 246 prohibit the sale to and consumption by underage persons of low-point beer. "Charter provisions, which have the force of a city's fundamental law, supersede state law only when they affect a subject that is deemed to lie exclusively within municipal (or local) concern." Simpson v. Dixon, 1993 OK 71, ¶ 21, 853 P.2d 176, 186. Consequently, underage drinking is not a purely local matter regarding which the City may enact ordinances that conflict with and supersede State law.

¶ 12 Municipal ordinances must give way where they conflict with the general laws of the state, and "while they may run concurrent with the general laws of the state they must not run counter thereto." Ex parte Gammel, 89 Okl.Cr. 400, 408, 208 P.2d 961, 965 (Okla.Crim.App.1949). However, "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." Moore v. City of Tulsa, 1977 OK 43, ¶ 2, 561 P.2d 961, 963.

¶ 13 The relevant State statutes are section 241(B), section 243 and section 246(B) of Title 37. These statutes permit 18 to 20 year-old patrons and employees to enter establishments licensed to sell low-point beer if the establishment segregates the area in which low-point beer is sold and does not allow 18 to 20 year-olds to enter or remain in that bar area. Fancy's argues that it segregates its bar area from the rest of its establishment and that the ABLE Commission, the State agency licensed to regulate such matters, has approved the non-segregated area of its...