Moore v. City of Tulsa

• Decision Date: 15 March 1977
• Docket Number: No. 48889,48889
• Citation: 561 P.2d 961,1977 OK 43
• Court: Oklahoma Supreme Court
• Parties: Denver MOORE d/b/a Geisha Lounge & Club, Appellant, v. CITY OF TULSA, Appellee.

Page 961

561 P.2d 961

Denver MOORE d/b/a Geisha Lounge & Club, Appellant, v. CITY OF TULSA, Appellee.

No. 48889.

Supreme Court of Oklahoma.

March 15, 1977.

Boyd & Parks, by Ed Parks, Tulsa, for appellant.

Waldo F. Bales, City Atty., and John S. Morgan, Asst. City Atty., Tulsa, for appellee.

HODGES, Chief Justice.

This case involves the review of an administrative proceeding involving a quasi-judicial hearing before the Board of Commissioners of the City of Tulsa, Oklahoma. The matter arose as a hearing on a license suspension for a private club for alleged violation of city ordinances relating to nude dancing and consumption of alcoholic beverages. ¹ It is asserted on appeal that the ordinance regulating nude dancing, Tulsa, Okl.Rev.Ord. Title XXI, Ch. 21 § 412(b)(3) 1974, is an unconstitutional restriction on first amendment rights, and it is also argued that 37 O.S.1971 § 518(b) precludes licdnsure of private clubs by municipalities. This statute provides in pertinent part:

'. . . Provided this Subsection shall not give any city or town any right to determine or regulate the issuance of any license, except as herein specifically provided, as the Board shall have exclusive authority as to said issuance and regulations of said licenses and no city or town may prescribe rules or regulations in conflict with or additional to the statutes of this State or the rules of the Board. . . .'

We do not agree that the ordinance is an unconstitutional infringement on the first amendment which prohibits the abridgement of freedom of speech nor is it precluded by or in conflict with the cited statute. A city under its charter and for a purpose justifying exercise of its police powers may enact an ordinance not in conflict with statutes on the same subject. A constitutional exercise of such power to promote the public peace, health and welfare must serve those ends in a uniform way and accomplish a result that does not defeat the express purpose of the statute. ² A city which adopts a home-rule charter under the provisions of Okl.Const. art. 18, § 3(a) is accorded full power of local self-government, and as such the city has the power to enact and enforce ordinances to protect the public peace, order, health, morals and safety of its inhabitants even though general statutes exist relating to the same subjects. ³ An ordinance may cover an authorized field of local laws not occupied by general laws and may prohibit acts not prohibited by statute. ⁴ A municipal corporation may exercise police power on subjects of municipal concern which are also proper for statutory regulation, and where the state has not spoken the position of a municipal corporation is analogous to that of the state to the federal government with reference to matters of interstate commerce. ⁵ 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. If either is silent where the other speaks there can be no conflict. ⁶

The Oklahoma Alcoholic Beverage Control Board (Board) controls licensing of manufacturers, retail liquor stores, and distribution of liquor within the state. ⁷ The Board is constitutionally created ⁸ and has the power and duty to supervise, inspect and regulate every phase of the business of manufacturing, importing, exporting, transporting, storing, selling, distributing, and possession for the purpose of sale, all alcoholic beverages. ⁹ The Board has no control over the private consumption of alcohol in the absence of statutory authorization. Because the legislature has not exacted legislation governing the private consumption of liquor, the City of Tulsa, like many other municipalities in the state, has adopted a private club ordinance. ¹⁰ A municipality has the right to license and regulate nudity and the consumption of liquor in private clubs by ordinance for the purpose of protecting the public peace, order, health, morals and safety of its inhabitants under the police power. We do not find that there is any usurpation of state authority or any conflict with statutory provisions or the twenty-first amendment of the United States Constitution which would prohibit the licensing of private premises where liquor is consumed.

In California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972) regulations almost identical to those included in this ordinance were promulgated by the California Department of Alcoholic Beverage Control, an administrative agency vested by the California Constitution with primary authority for the licensing of the sale of alcoholic beverages. The United States Supreme Court held in LaRue that the twenty-first amendment to the Constitution of the United States repealing prohibition gave the states the authority to determine that sale of liquor by the drink and lewd or nude dancing should not take place simultaneously. These regulations were determined not to be unconstitutional infringements on first amendment rights because they were adopted in the context of licensing bars and nightclubs to sell liquor by the drink, not in the context of censoring a dramatic performance. Oklahoma does not constitutionally or statutorily permit liquor by the drink, ¹¹ but the premise enunciated in LaRue is equally applicable to the Tulsa ordinance even though the regulation in LaRue related to the sale of liquor by the drink and the pertinent ordinance concerns regulation or premises where alcohol is consumed. Based on the holding in LaRue and the reasons enunciated, we find the ordinance is constitutional.

Appellant also complains that they were denied a fair hearing because the Police and Fire Commissioner participated in the hearing and decision which resulted in the suspension of their license.

Appellant points out the Chief of Police initiated the investigation and filed the complaint in this instance and with the Police and Fire Commissioner participating in the hearing as a member of the Board of Cmmissioners they were denied a fair and impartial hearing. We disagree.

The Chief of Police and the Police and Fire Commissioner are two separate entities with different responsibilities and authority. The Chief of Police has the responsibility of law enforcement. The Police and Fire Commissioner is a member of the Board of Commissioners akin to a city councilman with authority to enact ordinances and make decisions for the operation and management of city government. His special responsibility for the enforcement of police regulations does not per se disqualify him. There being no other allegation of special interest, partiality or perjudice, we find no violation of due process in the Police & Fire Commissioner's participation in the hearing.

AFFIRMED.

LAVENDER, V.C.J., and WILLIAMS, BERRY, BARNES and SIMMS, JJ., concurring.

IRWIN and DOOLIN, JJ., dissenting.

DOOLIN, Justice, dissenting.

The majority seeks to justify a municipal ordinance prohibiting certain conduct in private clubs on the basis that a city may regulate, under the authority of its police power, in the nebulous area of private consumption of alcoholic beverages.

This attempted vindication of a constitutionally impermissible regulation of behavior relies on the principles set forth by the United States Supreme Court in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972). While we applaud the City of Tulsa in its efforts, the contested ordinance, an admitted attempt to proscribe certain behavior in conjunction with the consumption and serving of liquor, is unjustified. The majority finds this ordinance does not violate the Constitution of the United States or the statutes of this sovereign state. I find no authority in LaRue for this conclusion.

The activities and behavior forbidden by the ordinance, unless found to be obscene by a duly empaneled jury and thus a violation of our criminal laws, are protected first amendment freedoms. ¹ This ordinance is not a criminal statute and there has been no adjudication the conduct described in the ordinance is obscene. The ordinance must fall unless some additional power to regulate such behavior is found.

LaRue does create an exception to the necessity of a determination that conduct sought to be prohibited is obscene. That decision held the twenty-first amendment to the Constitution of the United States, repealing prohibition, gave to the states the authority to determine that sale of liquor by the drink and lewd or naked dancing should not take place simultaneously. Because these regulations were proclaimed, not in the context of censoring a dramatic performance but in the licensing by the state of California of bars and nightclubs To sell liquor by the drink, they were held to be constitutional.

The right to make laws regulating importation, distribution and sale of liquor is vested in the states by virtue of the twenty-first amendment. Oklahoma has exercised its twenty-first amendment powers in a completely disparate manner from that of California, in that it does not permit liquor to be sold by the drink.

Oklahoma, by legislative enactment, passed the Oklahoma Alcohol Beverages Control Act, ² creating the Alcohol Beverage Control Board (Board) which is vested with the power to regulate all phases of the sale of alcoholic beverages. Possession of alcoholic beverages by an individual for his personal use if specifically excluded from regulation by § 505 of this act. § 518, as quoted by the majority, provides cities may tax sale of liquor but prohibits a city from further regulation in this area.

The Legislature has thus pre-empted the field of regulation of alcoholic beverages and a city may not enter in a field of legislation reserved to the state except by express permission of the Legislature. In Seven-Eleven Incorporated v. McClain 422 p.2d 455 (Okl.1967), we adopted the reasoning of Ex Parte Higgs, 97 Okl.Cr. 338, 263...