Opinion No. (1985) ( 1985 )

Dear Honorable Cullison,

The Attorney General has received your request for an official opinion, asking:

"1. If an establishment's main purpose is something other than the selling or serving of nonintoxicating beverages for consumption on the premises, such as a bowling alley or a dance hall, is it necessary to maintain a designated bar area?

"2. Can persons under the age of 21 years but over the age of 18 enter an establishment (not the designated bar area) which holds a nonintoxicating beverage license and has as its main purpose something other than selling or serving nonintoxicating beverages for consumption on the premises, such as a bowling alley or a dance hall?

"3. What is the definition of a designated bar area?

"4. Can a person 21 years old purchase a 3.2 beer in a designated bar area and take the beverage out of the designated bar area for his own consumption to the lanes in a bowling alley or to his table in a dance hall?

"5. If a person, 21 years or older, purchases a 3.2 beer in a designated bar area and takes the 3.2 beer out of the area to supply a person under 21 years old, is the person who supplies it liable for supplying beer to a minor? If so, what is the penalty?"

We note at the outset that each of your questions is concerned with the sale or distribution of nonintoxicating beverages. Under Oklahoma law, the term "nonintoxicating beverages" is defined to mean and include "beverages containing more than one-half of one percent (1/2 of 1%) alcohol by volume, and not more than three and two-tenths percent (3.2%) alcohol by weight." 37 Ohio St. 163.2 (1981).

I.

To answer your first question, we must consider several sections of Oklahoma law.

Title 37 Ohio St. 163.11 (1985) provides in part:

"A judge of the district court, upon five (5) days' notice to the person holding such permit [to sell nonintoxicating beverages], shall revoke such permit for any one of the following reasons:

* * *

"(4) Permitting persons under the age of majority in a separate or enclosed bar area which has as its main purpose the selling or serving of nonintoxicating beverages for consumption on the premises unless said person's parent or legal guardian is present, in violation of the provisions of 37 Ohio St. 241 through 37 O.S. 246 of this title." (Emphasis added).

Moreover, 37 Ohio St. 241 (1985) provides in part:

"It shall also be unlawful for any person who holds a license to sell and dispense nonintoxicating beverages for consumption on the premises . . . to permit any person under twenty-one (21) years of age to be admitted to or remain in a separate or enclosed bar area of the licensed premises unless said person's parent or legal guardian is present, which has as its main purpose the selling or serving of nonintoxicating beverages for consumption on the premises." (Emphasis added).

Additionally, 37 Ohio St. 246(B) (1985) states in part:

"If the premises of a holder of a license to sell nonintoxicating beverages contains a separate or enclosed bar area which has as its main purpose the sale or serving of nonintoxicating beverages for consumption on the premises, no person under twenty-one (21) years of age shall enter, attempt to enter, or remain in said area." (Emphasis added).

In construing statutes, harmony is to be sought, and when parts of an act are reasonably susceptible of a construction which will give effect to both and to the words of each, without violence to either, such construction should be adopted. Ind. School Dist. v.Okla. City Fed. of Teachers, 612 P.2d 719, 722 (Okla. 1980).

We note the language in 37 Ohio St. 163.11 and 37 Ohio St. 241 (1985) which states, "in a separate or enclosed area," as well as the language in 37O.S. 246(B) (1985) which states:

"If the premises . . . contains a separate or enclosed bar area. . . ." (Emphasis added).

Reading these statutes in harmony, the Legislature must have intended that the creation of a separate or enclosed bar area would be permissible, but the establishment of such an area would be optional. Whether there is a separate or enclosed bar area is therefore within the discretion of the licensee.

II.

Your second question asks whether persons between 18 and 21 years of age can enter the licensed premises of an establishment that sells nonintoxicating beverages as an incidental service if they do not enter the separate or enclosed bar area (designated bar area). Your question assumes that such a licensed premises has established the designated bar area.

Title 37 Ohio St. 241 (1985) provides that it is unlawful for a licensee or his agent, servant or employee to sell, barter, or give to any person under 21 years of age any beverage defined as a nonintoxicating beverage. This section also states in part:

"The provisions of this section shall not prohibit persons under twenty-one (21) years of age from being admitted to an area which has as its main purpose some objective other than the sale or serving of nonintoxicating beverages, in which sales or serving of said beverages are incidental to the main purpose, as long as persons under twenty-one (21) years of age are not sold or served said beverages; however, the incidental service of food in the bar area shall not exempt a licensee, agent, servant, or employee from the provisions of this section."

The previously quoted 37 Ohio St. 246(B) sets forth a similar prohibition against the sale or service of nonintoxicating beverages to a person under 21 in the enclosed bar area and also provides in part:

"The provisions of this subsection shall not prohibit persons under twenty-one (21) years of age from entering or remaining in an area which has as its main purpose some objective other than the sale or serving of nonintoxicating beverages, in which sales or serving of said beverages are incidental to the main purpose, if the persons under twenty-one (21) years of age are not sold or served or do not consume nonintoxicating beverages anywhere on the premises however, the incidental service of food in the bar area shall not exempt persons under twenty-one (21) years of age from the provisions of this subsection. Any person convicted of violating the provisions of this subsection shall be guilty of a misdemeanor and punished by a fine not to exceed One Hundred Dollars ($100.00)."

Where language of a statute is plain and unambiguous, there is no room for construction of such statute and the statute will be accorded meaning as expressed by language therein employed. Cavettv. Geary Bd. of Ed., 587 P.2d 991 (Okla. 1978).

While you specifically ask about persons between 18 and 21 years of age clearly, any person under the age of 21 may enter and remain in an area or establishment which has as its main purpose some objective other than the sale or serving of nonintoxicating beverages, in which sales or serving of such beverages are incidental to the main purpose; provided, no person under the age of 21 may be sold, served or consume nonintoxicating beverages anywhere on the premises.

III. Your third question asks what is the definition of a designated bar area.

House Bill No. 1405 did not specifically define a designated bar area. However, whatever is necessarily or plainly implied in a statute is as much a part of it as that which is expressed. Hawaiian Ocean View Estatesv. Yates, 564 P.2d 436 (Hawaii 1977). Throughout the act, reference is made to a separate or enclosed bar area which is prohibited to persons under 21 years of age and the act also refers to areas which have as the main purpose some objective other than the sale or serving of nonintoxicating beverages. In the latter, persons under 21 years may be admitted. Accordingly, in HB 1405, the Legislature must have intended a designated bar area to be a separate or enclosed bar area which has as its main purpose the selling or serving of nonintoxicating beverages.

IV. Your fourth question asks whether a person 21 years or older may purchase a nonintoxicating beverage in the designated bar area and take the beverage out of the designated bar area for his/her own consumption. We find no statutory language that would restrict the consumption of nonintoxicating beverages by an individual 21 years or older to the designated bar area.

As entire premises are licensed and not just the designated bar area, a person is not restricted by statute from purchasing a nonintoxicating beverage in the designated bar area and taking that beverage to other areas in the licensed establishment. Thus, your fourth question can be answered in the affirmative.

V.

There are several statutes that have potential application to your fifth question which relates to the possible liability where a person 21 years or older supplies a minor with a nonintoxicating beverage.

Title 37 Ohio St. 241 (1985) provides in pertinent part:

"It shall be unlawful for any person who holds a license to sell and dispense nonintoxicating beverages, as defined in 37 Ohio St. 163.2 of this title, or any agent, servant, or employee of said license holder to sell, barter, or give to any person under twenty-one (21) years of age any beverage containing more than one-half of one percent (1/2 of 1%) of alcohol measured by volume and not more than three and two-tenths percent (3.2%) of alcohol measured by weight." (Emphasis added).

Clearly, the person holding a license to sell or dispense nonintoxicating beverages, or that person's agent, servant or employee, is prohibited from selling, bartering or giving to a person under the age of twenty-one (21) nonintoxicating beverages.

The penalty for violation of this statute is found in 37 Ohio St. 163.11 (1985), supra, wherein it is provided that a judge could revoke the permit to sell nonintoxicating beverages of such an individual.

Additionally, 21 Ohio St. 856 (1981) provides:

"Every person who shall knowingly or willfully cause, aid, abet or encourage a minor to be, to remain, or to become a delinquent child, as defined herein, shall, for the first offense, be guilty of a misdemeanor and punishable by imprisonment in a county jail not to exceed six (6) months, or by a fine not to exceed Five Hundred Dollars ($500.00), or by both such fine and imprisonment.

"Every person who shall be guilty of a second or any succeeding violation of this act shall be guilty of a felony and punishable by imprisonment in the State Penitentiary not to exceed three (3) years, or by a fine not exceeding Three Thousand Dollars ($3,000.00), or by both such fine and imprisonment."

21 Ohio St. 857(2) defines a minor as a person under the age of 18 and 21O.S. 857(4) of that title defines a delinquent child as a minor who has or is violating any penal statute.

This delinquency criminal statute becomes important because of37 Ohio St. 246(A) (1985). This statute provides in pertinent part:

"No person under twenty-one (21) years of age shall (1) consume or (2) possess with the intent to consume nonintoxicating beverages, as defined in 37 O.S. 163.2 of this title, in any public place. Any person violating any of the provisions of this section shall be guilty, upon conviction, of a misdemeanor and punished by a fine not to exceed One Hundred Dollars ($100.00) or by appropriate community service not to exceed twenty (20) hours. Provided, the provisions of this section shall not apply when such persons are under the direct supervision of their parent or guardian, but in no instance shall this exception be interpreted to allow such persons to consume such beverages in any place licensed to dispense nonintoxicating beverages as provided in 37 O.S. 163.11 of this title."

Potentially, one could violate 21 Ohio St. 856 (1981) by providing nonintoxicating beverages to a person under eighteen (18) years of age, thereby causing that person to violate the criminal statute of 37 Ohio St. 246(A) (1985).

It is, therefore, the official opinion of the Attorney Generalthat:

1. Title 37 Ohio St. 163.11, 37 Ohio St. 241 and 37 O.S. 246 (1985) do not expressly require that a person holding a license to sell or dispense nonintoxicating beverages must maintain a separate or enclosed bar area (designated bar area). However, the statutory language indicates that the option to maintain a separate or enclosed area is permissible. Such an option would be within the discretion of the person holding the license.

2. Persons under the age of 21 may enter and remain in the "non-bar" area of an establishment which has as its main purpose some objective other than the sale or serving of nonintoxicating beverages, in which sales or serving of said beverages are incidental to the main purpose. However, no person under the age of 21 may be served or sold, or consume nonintoxicating beverages anywhere on the premises.

3. Title 37 Ohio St. 241 et seq. (1984), as amended, do not specifically define a designated bar area, but the Legislature must have intended that a designated bar area be a separate, enclosed bar area which has as its main purpose the selling or serving of nonintoxicating beverages.

4. Title 37 Ohio St. 241 et seq. (1984), as amended, do not prohibit a person 21 years or older from taking a nonintoxicating beverage from the separate or enclosed bar area (designated bar area) to other areas of the establishment.

5. Title 37 Ohio St. 241 (1985) prohibits a licensee and/or his/ her agent, servant or employee from selling or giving a nonintoxicating beverage to a person under the age of 21 years; the potential penalty for such action is revocation of the license to sell nonintoxicating beverages. Title 21 Ohio St. 856 (1981) prohibits a person from contributing to the delinquency of a minor, and applies a potential penalty of six months in the county jail and/or a Five Hundred Dollar ($500) fine. Whether, in any particular instance, providing non-intoxicating beverages to such a minor constitutes a violation of this statute is a question of fact beyond the scope of an Attorney General Opinion.

MICHAEL C. TURPEN, ATTORNEY GENERAL OF OKLAHOMA

BETTY E. HUNTER, ASSISTANT ATTORNEY GENERAL