Moore v. City of Tulsa

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 is 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 P.2d 752 (1953), and held in regulating the sale of alcoholic beverages, municipalities have only such power as are conferred upon them by the Legislature, and ordinances must be strictly construed against the municipalities.

LaRue recognizes a state may legislate in this area. California’s legislation granted the Department of Alcoholic Beverage Control (Department), an administrative agency, primary authority to license the sale of alcoholic beverages in California, permitting it to base the granting of a liquor license on compliance with its regulations. These California regulations are almost identical to those promulgated by the City of Tulsa as a basis for licensing of private clubs. By granting to the California Department of Alcoholic Beverage Control the right to regulate the sale of liquor in any form, California has therefore authorized it to regulate the conditions under which liquor is sold.

The importation, distribution and sale of liquor are not involved in the Tulsa ordinance. Because of the posture of the liquor laws in this state as opposed to those in California, the exception created by LaRue has no application to the ordinance in question. The Oklahoma Legislature has given no equivalent power to regulate sale of liquor to a municipality. This is not a regulation of the Board, an administrative arm of the state, but rather a city ordinance. This is not a liquor license that has been suspended; there is no way under our laws that appellant could obtain a liquor license.

The ordinance, if constitutionally permitted to stand, must be premised on the authority of a city under its police power to regulate “private consumption” of alcoholic beverages. Nowhere in our constitutional or statutory scheme is any municipality given such a power. The twenty-first amendment does not deal with private consumption and our statutes forbid such governmental control.

The majority seeks to broaden the LaRue exception to include regulation of private consumption. This is unjustified and without authority. LaRue did not hold the twenty-first amendment supersedes all other provisions of the United States Constitution in the area of liquor regulations. The Court stated: “While we agree that at least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression, the critical fact is that California has not forbidden these performances across the board. It has merely proscribed such. performances in establishments that it (the State) licenses to sell liquor by the drink.”³

The United States Supreme Court has recently limited the reach of the twenty-first amendment and the scope of LaRue by its decision in Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). In that decision certain Oklahoma statutes were held to be unconstitutional because they discriminated between eighteen year old males and eighteen year old females in the purchase of 3.2% beer. The State of Oklahoma argued the twenty-first amendment under LaRue strengthened its authority to enforce state policies concerning sale and distribution of alcohol and should therefore withstand constitutional challenge. The Court stated: “Once passing beyond consideration of the Commerce Clause, the relevance of the Twenty-first Amendment to other constitutional provisions becomes increasingly doubtful.”⁴ The Court commented that nothing in the history of the twenty-first amendment suggests it qualified individual rights protected by the Bill of Rights.

I agree with another recent federal decision, Salem Inn, Inc. v. Frank, 364 F.Supp. 478 (E.D.N.Y.1973), aff’d 501 F.2d 18 (2nd Cir. 1974). There the United States District Court granted a preliminary injunction against a city to restrain it from enforcing an ordinance prohibiting “topless dancing.” The district court said, on its face without considering it in the light of LaRue and the twenty-first amendment, an ordinance that prohibits conduct that has not been shown to be obscene is violative of first amendment rights. Obviously LaRue, which is predicated upon powers of a state liquor authority, has no relevance to the constitutionality of the present city ordinance.

In a companion case, Salem Inn, Inc. v. Frank, 522 F.2d 1045 (2nd Cir. 1975), the court stated: “Twenty-first Amendment does not justify regulatory control over places that serve only food or which provide entertainment but not alcoholic beverages.”

As in the Salem Inn cases, the ordinance here, although an admitted attempt to regulate consumption and service of liquor, would regulate all private clubs. I thus conclude the ordinance also fails because its application is too broad to be constitutional. See Yauch v. State and City of Tucson, 19 Ariz.App. 175, 505 P.2d 1066 (1973).

I do not deny a city, operating under a charter form of government, may under its police power, adopt ordinances which are necessary for the preservation of public health, safety, morals and general welfare of society.⁵ I do not dispute the right of a municipality to require a licensee to obey both the liquor and obscenity laws of this state under penalty of license revocation.

Certainly the Tulsa police have the right to arrest any participants for a violation of liquor or obscenity laws. But a city may not act beyond its authority. And without the authority generated by the power to regulate alcoholic beverages under the twenty-first amendment, a city’s exercise of the police power must conform to strict requirement of first amendment protections. If the Tulsa ordinance is to be given effect, the question of the obscenity of the behavior described by the ordinance must be tried to a jury.

At this point I feel constrained to comment on the legal fiction upon which this opinion is premised. Art. 27 § 4 of the Constitution of the State of Oklahoma precludes sale of liquor by the drink, whether in private or public, by any person, partnership, corporation or association. Although “sale” and “serving” of liquor are not technically synonymous,⁶ it is common knowledge in Oklahoma that this absolute constitutional restriction is “more honored in the breach than the observance.” It is folly to fail to recognize the sale of alcoholic beverages at the Geisha Club is patently precluded in Oklahoma. City’s meretricious regulations are not merely aimed at regulating conduct where liquor is “consumed.” They are concededly directed at controlling activities taking place in an establishment where the law is broken and alcoholic beverages are illegally sold. As such these regulations are aimed at control of an illegal act which has no basis in law and must not stand. California and other states where liquor by the drink is not unlawful have the constitutional tools to enact these regulations; Tulsa does not.

For the above and foregoing reasons, I respectfully dissent.

1 . Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).

2 . 37 O.S.1971 § 502 et seq.

3 . California v. LaRue, supra 409 U.S. at p. 118, 93 S.Ct. at p. 397, 34 L.Ed.2d at p. 352.

4 . Craig v. Boren, supra at 97 S.Ct. 461.

5 . Art. 18 § 3(a) Constitution of State of Oklahoma; Ex Parte Gammel, 89 Okl.Cr. 400, 208 P.2d 961 (1949); Jack’s Supper Club, Ltd. v. City of Norman, 361 P.2d 291 (Okl.1961).

6 . See Harrell v. State, 97 Okl.Cr. 204, 359 P.2d 610 (1961) which adopts the view of the Florida Court in State ex rel. Ben & Protective Order of Elks, Lodge No. 1529 v. Livingston, 159 Fla. 63, 30 So.2d 740, 741 stating “. . . the serving of liquor by a bona fide social club is a ‘sale’ within the meaning and definition of the Constitution . . . .”