ATTORNEY GENERAL LOVING HAS ASKED ME TO RESPOND TO YOUR RECENT REQUEST FOR AN INFORMAL OPINION ON THE FOLLOWING QUESTION:
1. DO SECTIONS 3A O.S. 204 AND 3A O.S. 205.2 OF TITLE 3A OF THE OKLAHOMA STATUTE, AS AMENDED BY SECTIONS 3 AND 5, RESPECTIVELY, OF ENROLLED SENATE BILL NO. 862 OF THE 2ND SESSION OF THE 43RD OKLAHOMA LEGISLATURE, AS AMENDED BY SECTIONS 17 AND 18, RESPECTIVELY OF ENROLLED SENATE BILL NO. 935 OF THE 2ND SESSION OF THE 43RD OKLAHOMA LEGISLATURE, AND SECTION 6 OF ENROLLED SENATE BILL NO. 862 OF THE 2ND SESSION OF THE 43RD OKLAHOMA LEGISLATURE, AS AMENDED BY SECTION 19 OF ENROLLED SENATE BILL NO. 935 OF THE 2ND SESSION OF THE 43RD OKLAHOMA LEGISLATURE, PROHIBIT ANY ENTITY, OTHER THAN THOSE WHO HAD A LICENSE LAST YEAR, FROM APPLYING FOR A NON-PARI-MUTUEL LICENSE THIS YEAR?
IN ACCORDANCE WITH YOUR REQUEST, WE PROVIDE THE FOLLOWING INFORMAL OPINION, WHICH IS THE OPINION OF THE UNDERSIGNED COUNSEL.
WITH THE ENACTMENTS OF SENATE BILLS 862 AND 935 OF THE 2ND SESSION OF THE 43RD OKLAHOMA LEGISLATURE, THE LEGISLATURE RETURNED TO THE OKLAHOMA RACING COMMISSION JURISDICTION OVER THE LICENSURE AND REGULATION OF NONPARI-MUTUEL RACING. BECAUSE RACE TRACK LICENSES — ORGANIZATION LICENSES — ARE GRANTED ON A CALENDAR YEAR BASIS, AND BECAUSE JURISDICTION OVER NONPARI-MUTUEL RACING WAS RESTORED TO THE COMMISSION IN MID-CALENDAR YEAR 1992, THE LEGISLATURE ENACTED SPECIFIC PROVISIONS FOR THE LICENSURE OF NONPARI-MUTUEL RACE TRACKS FOR 1992. AS LAST AMENDED, THE LAW DEALING SPECIFICALLY WITH 1992 NONPARI-MUTUEL LICENSES IS SET FORTH IN SECTION 19 OF SENATE BILL 935 OF THE 2ND SESSION OF THE 43RD OKLAHOMA LEGISLATURE. THAT SECTION READS:
"FOR THE 1992 CALENDAR YEAR, ANY APPLICANT FOR AN ORGANIZATION LICENSE TO CONDUCT HORSE RACING WITHOUT THE PARI-MUTUEL SYSTEM OF WAGERING THAT HAS HAD AN ORGANIZATION LICENSE SOMETIME DURING 1991 OR THE TWELVE (12) MONTHS PRECEDING THE EFFECTIVE DATE OF THIS ACT SHALL BE ISSUED AN ORGANIZATION LICENSE FOR THE 1992 CALENDAR YEAR WITHIN FIVE (5) DAYS OF THE EFFECTIVE DATE OF THIS ACT."
UNDER THE PROVISIONS OF THE SECTION, ANY APPLICANT FOR A 1992 NONPARI-MUTUEL LICENSE, WHO HAD A LICENSE SOMETIME DURING 1991, MUST BE ISSUED AN ORGANIZATION LICENSE WITHIN FIVE (5) DAYS OF THE EFFECTIVE DATE OF THE ACT.
THE QUESTION YOU POSE IS WHETHER THE LEGISLATURE, IN ENACTING THIS SECTION, INTENDED TO PROHIBIT THOSE WHO DID NOT HAVE A 1991 NONPARI-MUTUEL LICENSE FROM BEING LICENSED IN 1992.
THE SHORT ANSWER TO YOUR QUESTION IS THAT THE LEGISLATURE IMPOSED NO SUCH PROHIBITION. PERTINENT PROVISIONS OF SENATE BILL 935 RESTORE NONPARI-MUTUEL JURISDICTION TO THE COMMISSION, GIVING THE COMMISSION SUPERVISION OVER "ALL RACE MEETINGS HELD IN THE STATE." 3A O.S. 204 (AS AMENDED BY SECTION 17 OF SENATE BILL 935 OF THE 2ND REGULAR SESSION OF THE 43RD OKLAHOMA LEGISLATURE). THE SAME SECTION AUTHORIZES THE COMMISSION TO PROMULGATE RULES AND REGULATIONS FOR THE GRANTING OR REFUSING OF LICENSES, INCLUDING NONPARI-MUTUEL LICENSE. FURTHER, 3A O.S. 205.2 (AS AMENDED BY SECTION 18 OF SENATE BILL 935 OF THE 2ND REGULAR SESSION OF THE 43RD OKLAHOMA LEGISLATURE) AUTHORIZES THE COMMISSION TO EXERCISE DISCRETION IN ISSUING LICENSES TO QUALIFIED APPLICANTS.
IN RESTORING THE COMMISSION'S POWER TO ISSUE NONPARI-MUTUEL LICENSES, THE LEGISLATURE VESTED THE COMMISSION WITH DISCRETION IN ISSUING SUCH LICENSES, EXCEPT IN ONE INSTANCE: WHEN AN APPLICANT FOR A 1992 LICENSE HELD A 1991 LICENSE; THEN A LICENSE MUST ISSUE. IN ALL OTHER INSTANCES, THE COMMISSION'S DISCRETION CONTROLS.
THUS, WE SEE THAT FOR CALENDAR YEAR 1992, THE LEGISLATURE HAS CREATED TWO CLASSES OF APPLICANTS: (1) THOSE WHO MUST BE GRANTED A LICENSE WITHIN FIVE DAYS, BY VIRTUE OF HAVING BEEN LICENSED IN 1991, AND (2) ALL OTHER APPLICANTS. WITH RESPECT TO THE FIRST CLASS, ASSUMING THE REQUIREMENT IS CONSTITUTIONAL, THE COMMISSION MUST ISSUE A LICENSE. WITH RESPECT TO THE SECOND CLASS OF APPLICANTS, THE COMMISSION MAY EXERCISE ITS NORMAL STATUTORY DISCRETION. HAVING PROVIDED FOR THESE TWO CLASSES OF APPLICANTS FOR 1992 NONPARI-MUTUEL LICENSING, IT WAS NOT THE INTENT OF THE LEGISLATURE TO EXCLUDE CLASS 2 APPLICANTS FROM LICENSURE IN 1992.
FOR THE REASONS STATED ABOVE, IT IS THE OPINION OF THE UNDERSIGNED COUNSEL THAT UNDER THE PROVISIONS OF SECTION 19 OF SENATE BILL 935 OF THE 2ND REGULAR SESSION OF THE 43RD OKLAHOMA LEGISLATURE, THE OKLAHOMA RACING COMMISSION MAY ISSUE 1992 NONPARI-MUTUEL ORGANIZATION LICENSES TO ANY QUALIFIED APPLICANT WHETHER OR NOT THAT APPLICANT HAD A 1991 NONPARI-MUTUEL LICENSE.
(NEAL LEADER)