ATTORNEY GENERAL LOVING, HAS ASKED ME TO RESPOND TO YOUR REQUEST FOR AN ANSWER TO THE FOLLOWING QUESTIONS:
1. DO THE PROVISIONS OF 37 Ohio St. 163.24 OF TITLE 37 OF THE OKLAHOMA STATUTES PROHIBIT THE SALE OF NON-INTOXICATING BEVERAGES, COMMONLY REFERRED TO AS 3.2 BEER, AROUND FOOTBALL STADIUMS OF STATE SUPPORTED COLLEGES AND UNIVERSITIES?
2. DO OTHER LAWS PRECLUDE SUCH SALES?
THIS IS AN INFORMAL LETTER. ANY OPINION EXPRESSED HEREIN IS THE OPINION OF THE UNDERSIGNED ASSISTANT ATTORNEY GENERAL AND IS NOT TO BE CONSTRUED AS A FORMAL OPINION OF THE ATTORNEY GENERAL.
INTRODUCTION
"NON-INTOXICATING BEVERAGES" STATUTES ARE A PART OF THE INTOXICATING LIQUOR LAWS OF TITLE 37 Ohio St. 163.2 OF THE OKLAHOMA STATUTES. THE TERM "NON-INTOXICATING BEVERAGE" IS DEFINED IN 37 Ohio St. 163.2 (1990) AS FOLLOWS:
(A) NON-INTOXICATING BEVERAGES" MEANS AND INCLUDES BEVERAGES CONTAINING NOT MORE THAN ONE-HALF OF ONE PERCENT (½ OF 1) ALCOHOL BY VOLUME, AND NOT MORE THAN THREE AND TWO-TENTHS PERCENT (3.2%) ALCOHOL BY WEIGHT, INCLUDING BUT NOT LIMITED TO BEER OR CEREAL MALT BEVERAGES OBTAINED BY THE ALCOHOLIC FERMENTATION OF AN INFUSION OF BEER OR OTHER GRAIN, MALT OR SIMILAR PRODUCTS."
THE ALCOHOL CONTENT OF A NON-INTOXICATING BEVERAGE SUCH AS 3.2 BEER MUST BE LESS THAN 3.2% BY WEIGHT AND 1/2 OF 1% BY VOLUME. IN CONTRAST, AN INTOXICATING BEVERAGE CONTAINS MORE THAN THREE AND TWO-TENTHS PERCENT (3.2%) ALCOHOL BY WEIGHT. SEE 37 Ohio St. 163.1 (1990).
IN SUMMARY, YOUR QUESTIONS ASK WHETHER IT IS LAWFUL TO SELL A NONINTOXICATING ALCOHOLIC BEVERAGE, SUCH AS 3.2 BEER, IN THE IMMEDIATE VICINITY OF COLLEGES AND UNIVERSITIES WITHIN THE STATE SYSTEM OF HIGHER EDUCATION.
DISCUSSION
SECTION 37 Ohio St. 163.24 OF THE OKLAHOMA STATUTES, EFFECTIVE NOVEMBER 1, 1987, PROVIDES IN RELEVANT PARTS:
"FROM OR AFTER THE EFFECTIVE DATE OF THIS ACT, IT SHALL BE UNLAWFUL FOR ANY PLACE LICENSED TO SELL NON-INTOXICATING BEVERAGE AS DEFINED IN PARAGRAPH (A) OF 37 Ohio St. 163.2(A) OF THIS TITLE, FOR ON-PREMISE CONSUMPTION TO BE LOCATED WITHIN THREE (300) FEET FROM ANY PUBLIC SCHOOL OR CHURCH . . . PROVIDED IF ANY PUBLIC SCHOOL OR CHURCH SHALL BE ESTABLISHED WITHIN THREE HUNDRED (300) FEET OF ANY PLACE WHICH SELLS NON-INTOXICATING BEVERAGES FOR ON-PREMISE CONSUMPTION AFTER SUCH PLACE HAS BEEN LICENSED, THIS SHALL NOT BE A DETERRENT TO THE RENEWAL OF SUCH LICENSE SO LONG AS THERE HAS NOT BEEN A LAPSE OF MORE THAN SIXTY DAYS."
THE TERM "PUBLIC SCHOOL" IS DEFINED IN THE OKLAHOMA SCHOOL CODE AT 70 Ohio St. 1-106.1/70 Ohio St. 1-106 PROVIDES AS FOLLOWS:
"THE PUBLIC SCHOOLS OF OKLAHOMA SHALL CONSIST OF ALL FREE SCHOOLS SUPPORTED BY PUBLIC TAXATION AND SHALL INCLUDE NURSERIES, KINDERGARTENS, ELEMENTARY, WHICH MAY INCLUDE EITHER K-6 OR K-8, AND SECONDARY SCHOOLS, NOT TO EXCEED TWO YEARS OF JUNIOR COLLEGE WORK, NIGHT SCHOOLS, ADULT AND OTHER SPECIAL CLASSES, VOCATIONAL AND TECHNICAL INSTRUCTION AND SUCH OTHER CLASSES AND INSTRUCTION AS MAY BE SUPPORTED BY PUBLIC TAXATION OR OTHERWISE AUTHORIZED BY LAWS WHICH ARE NOT IN EFFECT OR WHICH MAY HEREAFTER BE ENACTED."
IN CONSTRUING OR INTERPRETING ANY STATUTE THE GOAL IS TO DETERMINE AND FOLLOW LEGISLATIVE INTENT. HUMPHREY V. DENNY, 757 P.2D 833 (OKLA. 1988). ANOTHER CARDINAL RULE OF STATUTORY CONSTRUCTION IS THAT WHERE THE LANGUAGE OF A STATUTE IS PLAIN AND UNAMBIGUOUS, AND ITS MEANING CLEAR . . . THE STATUTE WILL BE ACCORDED THE MEANING AS EXPRESSED BY THE LANGUAGE THEREIN EMPLOYED. N CAVE SPRINGS PUBLIC SCHOOL DISTRICT I-30 V. BLAIR, 613 P.2D 1046, 1048 (OKLA. 1980). RULES OF STATUTORY CONSTRUCTION ALSO REQUIRE THAT WHEN A STATUTE DEFINES THE MEANING OF A WORD OR PHRASE, SUCH DEFINITION IS APPLICABLE TO THE SAME WORD OR PHRASE EXCEPT WHEN A CONTRARY INTENTION IS CLEARLY EXPRESSED. DOLESE BROS. CO. V. PRIVETT, 622 P.2D 1081 (OKLA. 1981).
IF THE RULES OF STATUTORY CONSTRUCTION ARE APPLIED, IT IS CLEAR THAT 37 Ohio St. 163.24 PROHIBITS THE SALE OF NON-INTOXICATING BEVERAGES AROUND PUBLIC SCHOOLS (AND CHURCHES) ONLY. THE STATUTE, ON ITS FACE DOES NOT MENTION STATE COLLEGES OR UNIVERSITIES OR ANY OTHER INSTITUTIONS OF HIGHER EDUCATION. FURTHER, THE STATUTORY DEFINITION OF "PUBLIC SCHOOLS" ALTHOUGH BROAD, DOES NOT ENCOMPASS COLLEGES AND UNIVERSITIES. ON THE CONTRARY, THE OKLAHOMA CONSTITUTION HAS SEPARATE PROVISIONS FOR PUBLIC SCHOOLS AND FOR STATE INSTITUTIONS OF HIGHER EDUCATION. ARTICLE I, 5 AND ARTICLEXIII, SECTION 1 ET SEQ OF THE OKLAHOMA CONSTITUTION DEAL WITH PUBLIC SCHOOLS. ARTICLE XIIIA, SECTION 1 OF THE OKLAHOMA CONSTITUTION DEALS WITH HIGHER EDUCATION; IT STATES:
"ALL INSTITUTIONS OF HIGHER EDUCATION SUPPORTED IN PART OR IN WHOLE BY DIRECT LEGISLATIVE APPROPRIATIONS SHALL BE INTEGRAL PARTS OF A UNIFIED SYSTEM TO BE KNOWN AS "THE OKLAHOMA STATE SYSTEM OF HIGHER EDUCATION."
THE INFERENCE IS CLEAR FROM THESE SEPARATE PROVISIONS OF THE OKLAHOMA CONSTITUTION THAT PUBLIC SCHOOLS ARE TO BE DISTINGUISHED FROM STATE INSTITUTIONS OF HIGHER EDUCATION. THE ANSWER TO YOUR FIRST QUESTION, THEREFORE, IS THAT 37 Ohio St. 163.24 (1990) DOES NOT PROHIBIT SALE OF NON-INTOXICATING LIQUORS AROUND FOOTBALL STADIUMS OF STATE COLLEGES AND UNIVERSITIES.
YOUR SECOND QUESTION ASKS WHETHER ANY OTHER LAWS PROHIBIT THE SALE OF NON-INTOXICATING BEVERAGES IN OR AROUND STATE COLLEGES AND UNIVERSITIES. OUR RESEARCH INDICATES THAT THERE ARE NO OKLAHOMA STATUTES THAT SPECIFICALLY PROHIBIT THE SALE OF NON-INTOXICATING BEVERAGES AROUND OR IN THE VICINITY OF STATE INSTITUTIONS OF HIGHER EDUCATION.
THE OKLAHOMA CONSTITUTION, AS OF 1984, NOW EXCLUDES 3.2% BEER AND SIMILAR NON-INTOXICATING BEVERAGES FROM COVERAGE OF THE OKLAHOMA ALCOHOLIC BEVERAGE LAWS CONTAINED IN ARTICLE XXVIII AND ITS ENABLING LEGISLATION. SEE, ARTICLE XXVIII, SECTION 2 OKLA. CONST. THIS PROVISION READS AS FOLLOWS:
"THE TERMS AND PROVISIONS OF THIS AMENDMENT, AND LAWS ENACTED BY THE LEGISLATURE PURSUANT HERETO, SHALL NOT INCLUDE NOR APPLY TO ANY BEER OR CEREAL MALT BEVERAGE CONTAINING NOT MORE THAN THREE AND TWO-TENTHS PERCENT (3.2%) OF ALCOHOL BY WEIGHT(.)"
PRIOR TO 1984, ARTICLE XXVII, SECTION 8 OF THE OKLAHOMA CONSTITUTION DEALT WITH THE OKLAHOMA ALCOHOLIC BEVERAGE LAWS. SECTION 8 OF THAT PROVISION PROHIBITED THE STATE, ITS AGENCIES, BOARDS, COMMISSIONS AND EMPLOYEES FROM ENGAGING IN ANY PHASE OF THE ALCOHOLIC BEVERAGE BUSINESS. IN 1984 THE OKLAHOMA CONSTITUTION WAS AMENDED BY A REFERENDUM. THAT AMENDMENT REPEALED AND REPLACED ARTICLE XXVII, CREATING ARTICLE XXVIII. SECTION 8 OF ARTICLE XXVIII ALSO CONTAINS A SIMILAR PROHIBITION AGAINST A STATE ENTITY FROM ENGAGING IN THE ALCOHOLIC BEVERAGE BUSINESS. SECTION 8 SHOULD BE READ IN CONJUNCTION WITH SECTION 3 WHICH EXCLUDES 3.2 BEER FROM COVERAGE OF ARTICLE XXVIII, AND ITS ENABLING LEGISLATION.
RULES OF STATUTORY CONSTRUCTION REQUIRE THAT ALL PROVISIONS OF AN ACT BE READ TOGETHER AND HARMONIZED SO AS TO GIVE EFFECT AND MEANING TO EACH. DANA P. V. STATE, 656 P.2D 253 (OKLA. 1982). IT IS THE UNDERSIGNED ASSISTANT ATTORNEY GENERAL'S OPINION THAT ARTICLE XXVIII, SECTION 8 DOES NOT PROHIBIT THE SALE OF 3.2 BEER AND SIMILAR BEVERAGES AROUND FOOTBALL STADIUMS OF STATE INSTITUTIONS OF HIGHER EDUCATION.
(YASODHARA MOHANTY)