Swanson v. City of Tulsa , 1981 Okla. Crim. App. LEXIS 264 ( 1981 )

BRETT, Presiding Judge,

dissenting:

I would reverse. Nowhere within § 658 of Title 27 of the Revised Tulsa Ordinances is the possession of a lighted tobacco cigarette a forbidden or prohibited act.¹ Section 658 declares that such an act is a public nuisance, but it does not prohibit nor forbid the possession. Part E of the ordinance makes it a misdemeanor if any person knowingly violates the act. But, because nowhere in the act is possession of a lighted tobacco cigarette a violation, Part E would not apply. Unless an act is prohibited and made punishable by ordinance, it cannot be punished as a crime. 21 O.S.1971, § 3.

Further, this Court has made it clear that due process of law requires that criminal statutes and ordinances be drawn with reasonable specificity in order to inform persons of the conduct that is forbidden. Switzer v. City of Tulsa, 598 P.2d 247 (Okl.Cr.1979). Because Tulsa Revised Ordinance, Title 27, § 658, does not specifically inform persons that possession of a lighted tobacco cigarette on an elevator is forbidden by the ordinance, the judgment and sentence should be reversed.

1 . Section 658 declares, in part, as follows:

A) The possession of lighted tobacco in any form is a public nuisance and dangerous to public health when such possession is in any of the following places used by or open to the public:

1. Elevators;