J. Brotton Corp. v. Oklahoma Alcoholic Beverage Laws Enforcement Com'n

• Decision Date: 03 December 1991
• Docket Number: No. 71526,71526
• Citation: 822 P.2d 683,1991 OK 126
• Parties: 71 Ed. Law Rep. 1172, 1991 OK 126 J. BROTTON CORPORATION d/b/a Chances, Appellee, v. OKLAHOMA ALCOHOLIC BEVERAGE LAWS ENFORCEMENT COMMISSION, Appellant, and Columbo Foods, Inc., Intervenor.
• Court: Oklahoma Supreme Court

Page 683

822 P.2d 683

71 Ed. Law Rep. 1172, 1991 OK 126

J. BROTTON CORPORATION d/b/a Chances, Appellee, v. OKLAHOMA ALCOHOLIC BEVERAGE LAWS ENFORCEMENT COMMISSION, Appellant and Columbo Foods, Inc., Intervenor.

No. 71526.

Supreme Court of Oklahoma.

Dec. 3, 1991.

ON CERTIORARI FROM THE COURT OF APPEALS, DIVISION 4

J. Brotton Corporation applied to the Oklahoma Alcoholic Beverage Laws Enforcement Commission (ABLE Commission) for a mixed beverage license for a club named Chances, owned and operated by Brotton. The license was denied on the ground that the club was located within 300 feet of a public school. Brotton appealed the decision to the district court, which ruled that Oklahoma State University was not a "public school" for the purposes of 37 O.S.Supp.1990, § 518.2 (1985 Okla.Sess.Laws, ch. 6, § 68). The Commission appealed the judgment of the trial court. The Court of Appeals affirmed the judgment in a summary opinion. Certiorari was previously granted. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF APPEALS VACATED; JUDGMENT OF THE TRIAL COURT REVERSED.

W. Kurt Morgan, Oklahoma City, for appellant, Oklahoma Alcoholic Beverage Laws Enforcement Com'n.

James E. Weger, Jones, Givens, Gotcher, Bogan & Hilborne, for appellee, J. Brotton Corp.

ALMA WILSON, Justice:

The sole issue in this appeal is whether colleges and universities may be included in the definition of "public school" under 37 O.S.Supp.1990, § 518.2. ¹ That statute prohibits the placement of liquor establishments within 300 feet of any public school. This issue arose out of an application filed by the Appellee, J. Brotton Corporation (Brotton). Brotton requested a mixed beverage license for a club named Chances (Chances) owned and operated by Brotton. The location of Chances is directly across the street from Oklahoma State University's main campus. The ABLE Commission denied the license. The Commission based their decision on § 518.2, which specifically prohibits location of retail package stores, mixed beverage establishments or bottle clubs within 300 feet of a church regularly used for religious purposes or a public school. The focus of this appeal is the ABLE Commission's definition of "public school." Pursuant to Article II, section 16 of the Rules and Regulations of the ABLE Commission, ² Oklahoma State University is a public school. Brotton challenges the ABLE Commission's definition of public school. According to Brotton, public schools do not include institutions of higher learning.

Brotton argues that the ABLE Commission should not define public schools to include colleges and universities because the legislature intended to protect children and not adults from the perils of liquor. According to Brotton the primary objective of § 518.2 is to keep establishments that serve liquor at a reasonable distance from institutions in which the best interest and welfare of those attending these institutions may be adversely affected. Brotton urges the Court to look to article I, § 5 ³, article XIII, § 1 ⁴ and ARTICLE XIII-A, § 1 OF THE OKLAHOMA CONSTITUTION⁵ in defining the term "public school." However, it is not clear that the legislature intended Oklahoma statutory provisions providing for the establishment and maintenance of a public school system to be used in defining schools for the purpose of rules and regulations dealing with alcoholic beverages. ⁶ In Oklahoma there are no reported cases that address the definition of "school" pursuant to the alcoholic beverage statutes.

In determining whether Oklahoma State University is a "public school" within the meaning of § 518.2, legislative intent must be determined, as the legislature did not define the term "public school" within this statute. This Court has established that "[t]he ascertainment of legislative intent is the cardinal rule of statutory construction." Riffe Petroleum Co. v. Great Nat'l Corp., 614 P.2d 576, 579 (Okla.1980). Section 518.2 prohibits the location of retail package stores, mixed beverage establishments or bottle clubs within 300 feet of any church or school. By enacting this statute the legislature apparently intended to avoid disruption of religious or educational activities. The statute does not provide cause to infer that the legislature merely intended to protect minors by this legislation.

Section 518.2 is part of the Oklahoma Alcoholic Beverage Control Act amended by the legislature in 1985. ⁷ The act itself in § 88 explicitly provides for the protection of persons under twenty-one regarding sales of alcoholic beverages in lounges or bars. ⁸ Because a portion of the act protects those under twenty-one, and minors are persons under eighteen years of age, ⁹ then the act serves to protect some adults as well. As that fact is evident, it is probable that the legislature intended to protect adults under the age of twenty-one who are students of universities as well. Although this fact is persuasive to this Court, it is not dispositive.

The Oklahoma Legislature delegated to the ABLE Commission the power to "promulgate rules and regulations, in the manner herein provided, to carry out the purposes of the Oklahoma Alcoholic Beverage Control Act...." 37 O.S.Supp. 1990, § 514 (1985 Okla.Sess.Laws, ch. 6, § 15). While it is well settled that the power to formulate laws within this jurisdiction is legislative, "the power to make rules of a subordinate character in order to carry out that policy and apply it to varying conditions, although partaking of a legislative character, is in its dominant aspect administrative and can be delegated." Hart v. Oklahoma Alcoholic Beverage Control Bd., 412 P.2d 142, 150 (Okla.1966). Further, rules and regulations enacted by the administrative agency in pursuance of legislative authority "are presumed to be reasonable and valid, and the burden of establishing the contrary rests on the complaining party." Hart, 412 P.2d at 152.

In Peterson v. Oklahoma Tax Comm'n, 395 P.2d 388, 391 (Okla.1964), this Court held "[t]he long-continued construction of a statute by a department of government charged with its execution is entitled to great weight and should not be overturned without cogent reasons; where the legislature has convened many times during this period of administrative construction without expressing its disapproval, such silence may be regarded as acquiescence in or approval of the administrative construction." The ABLE Commission, and its predecessor, the Oklahoma Alcoholic Beverage Control Board, have used their definition of the term "public school" since 1959. ¹⁰

In Oral Roberts Univ. v. Oklahoma Tax Comm'n, 714 P.2d 1013, 1017 (Okla.1985), the Oklahoma Tax Commission attempted to restrict its policy interpretation of the church exemption. In this case of first impression, this Court commented concerning legislative acquiescence to a long standing construction of a statute by an administrative agency:

We as a Court are not required to perceive at this late date the intent of that legislature. The Tax Commission's own undeviating position for at least 37 years plus the legislature's disinclination to modify the substance of the statute during that period has now caused the original construction to be so firmly entrenched that the Commission may not with the stroke of a pen undo it. That would be a power reserved only to the legislature.

Like the Oklahoma Tax Commission's long standing construction of the church exemption, the Oklahoma Alcoholic Beverage Control Board construed the term "public schools" in 1959, and the ABLE Commission adopted the same construction. If the construction were improper, the legislature has had since 1959 to change the construction by defining the term "public schools" within the liquor laws. But the legislature has chosen not to do so.

Since the legislature has declined to define the term in subsequent legislative action, acquiescence or approval of the ABLE Commission definition can be assumed. Further, "Words employed in the original or antecedent Act will be presumed to be used in the same sense in the amendatory enactment." Letteer v. Conservancy District No. 30, 385 P.2d 796, 800-801 (Okla.1963).

In essence, the goals and purpose of § 518.2 would be defeated if the definition of school were limited in the manner urged by Brotton. Since the interpretation of the statute is reasonable and legislative intent is supported by the definition of school adopted by the ABLE Commission it is the duty of this Court to uphold article II, § 13 of the ABLE Commission Rules and Regulations.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF APPEALS VACATED; JUDGMENT OF THE TRIAL COURT REVERSED.

HODGES, V.C.J., and LAVENDER, HARGRAVE and SUMMERS, JJ., concur.

OPALA, C.J., and SIMMS, DOOLIN and KAUGER, JJ., dissent.

DOOLIN, Justice, dissenting: I dissent because state universities and colleges are not "public schools."

KAUGER, Justice, with whom OPALA, Chief Justice, and SIMMS, and DOOLIN, Justices, join, dissenting:

Although I might agree with the result reached by the majority opinion, I cannot concur in its legal definition of a "public school." The majority assigns a meaning to "public schools" which contravenes the Oklahoma Constitution, ¹ the Oklahoma statutes, ² and Oklahoma case law. ³

The majority opinion bases its determination that the term "public school" as used in 37 O.S.Supp. 1985 § 518.2 ⁴ includes institutions for higher education on: 1) The ABLE Commission's previously unchallenged rule which includes colleges and universities within its art. 2, § 16 definition of "public schools." ⁵ and 2) This Court's pronouncement in Oral Roberts Univ. v. Oklahoma Tax Comm'n, 714 P.2d 1013, 1017 (Okla.1985), that an agency may not unilaterally abrogate a long-standing administrative rule whose substance the Legislature has by inaction accepted.

A.

We have not felt restrained previously from reviewing rules promulgated by the agency charged with regulation of...