# J. Brotton Corp. v. Oklahoma Alcoholic Beverage Laws Enforcement Commission > Supreme Court of Oklahoma · December 3, 1991 · 62 O.B.A.J. 3758 URL: https://www.frixlaw.com/law-library/cases/9530119 ## Case - **Full name:** J. BROTTON CORPORATION D/B/A Chances, Appellee, v. OKLAHOMA ALCOHOLIC BEVERAGE LAWS ENFORCEMENT COMMISSION, Appellant, and Columbo Foods, Inc., Intervenor - **Court:** Supreme Court of Oklahoma - **Decided:** December 3, 1991 - **Citations:** 62 O.B.A.J. 3758; 822 P.2d 683; 1991 OK 126; 1991 Okla. LEXIS 145; 1991 WL 258982 - **Precedential status:** Published - **Opinion:** Dissent by Kauger - **Judges:** Alma Wilson - **Cited by:** 10 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9530119 ## Opinion text KAUGER, Justice, with whom OPALA, Chief Justice, and SIMMS, and DOOLIN, Justices, join, dissenting: Although I might agree with the result reached by the majority opinion, I cannot concur in its legal definition of a “public school.” The majority assigns a meaning to “public schools” which contravenes the Oklahoma Constitution, 1 the Oklahoma statutes, 2 and Oklahoma case law. 3 The majority opinion bases its determination that the term “public school” as used in 37 O.S.Supp. 1985 § 518.2 4 includes institutions for higher education on: 1) The ABLE Commission’s previously unchallenged rule which includes colleges and universities within its art. 2, § 16 definition of “public schools.” 5 and 2) This Court’s pronouncement in Oral Roberts Univ. v. Oklahoma Tax Comm’n, 714 P.2d 1013, 1017 (Okla.1985), that an agency may not unilaterally abrogate a long-standing administrative rule whose substance the Legislature has by inaction accepted. A. We have not felt restrained previously from reviewing rules promulgated by the agency charged with regulation of alcoholic beverage laws within Oklahoma. 6 We *688 should not be so constrained here. In Oklahoma Alcoholic Beverage Control Bd. v. Moss, 509 P.2d 666, 669 (Okla.1973), this Court found that the ABC Board was without authority to make a rule in derogation of a statute providing for suspension of a license when the statute required the license’s revocation. Here, the Legislature has provided that licensed retailers of alcoholic beverages shall not be located within 300 feet of public schools. There is no more authority for the ABLE Commission to expand the meaning of “public schools” here, than there was for it to include unintentional acts within the meaning of a statute requiring intent in Moss . In Oklahoma Alcoholic Beverage Control Bd. v. Welch, 446 P.2d 268, 270-71 (Okla.1968), Wray v. Oklahoma Alcoholic Beverage Control Bd., 442 P.2d 309, 312 (Okla.1968) and in Oklahoma Alcoholic Beverage Control Bd. v. Milam, 393 P.2d 823, 827 (Okla.1964), we held that the ABC Board lacked authority to promulgate a rule making the license of a retail package store licensee subject to suspension solely because of acts of its employees. In addition to its reference to public schools in 37 O.S.Supp. 1985 § 518, the Legislature has also addressed the issue of placement of establishments selling nonintoxicating beverages. 7 Pursuant to 37 O.S.Supp. 1987 § 163.24, it is unlawful to sell nonintoxicating beverages which include 3.2% beer for on-premises consumption within 300 feet of any public school. 8 The ABLE Commission has no authority over licensing of establishments to sell nonalcoholic beverages. 9 Neither § 518 nor § 163.24 refer to colleges or universities. The ABLE Commission’s rule, art. 2, § 16, has no application to nonalcoholic beverages. Had the Legislature intended to include colleges and universities within the purview of the statutes governing either alcoholic or nonalcoholic beverages, it could have done so. It has not. B. The Oklahoma Constitution art. 1, § 5 10 provides for the establishment of public schools in Oklahoma. Only ten years after statehood, this Court defined the term “public schools” in Board of Educ. v. Corey, 63 Okla. 178 , 163 P. 949, 953 (1917). In Corey , the term “public schools” was found to be equivalent to “common schools.” Public schools were defined as those open to all eligible children possessing the necessary educational attainments, free of tuition, and under the control of the board of education. In Corey , we stated that: “No other view is tenable under the Constitution or statutes of this state.” In Regents of Higher Educ. v. Board of Educ., 20 Okla. 809 , 95 P. 429 -30 (1908), this Court determined that the term “public school” used in art. 1, § 5 was synonymous with common schools, and that it did not include a state university. Title 37 *689 O.S.Supp. 1985 § 518.2 provides that a retail package store, mixed beverage establishment or bottle club shall not be located within 300 feet of a public school 11 — it makes no reference to a college or university. Because of the restricted definition of “public school” contained within the Oklahoma Constitution art. 1, § 58 and the Legislature’s reference to public schools in § 518.2, the ABLE Commission may not, through the rule making process, expand the meaning of the term “public school” to include colleges and universities. 12 The Oklahoma Constitution distinguishes colleges and universities from public schools by authorizing the existence of institutions of higher education. Art. 13-A, § 1 provides for the creation of a unified system of higher education. If colleges and universities were considered “public schools,” it would have been unnecessary to provide for separate treatment under the guise of art. 13-A, § l. 13 The facts presented here differ significantly from those found in Oral Roberts Univ. In Oral Roberts Univ., the Oklahoma Tax Commission attempted to apply the sales tax to a church supported school. The Tax Commission in Oral Roberts Univ. had on two separate occasions assured administrators of the college that it was exempt from the payment of Oklahoma sales and use taxes. Nine years after the last representation to the university, the Tax Commission reversed its position on the tax exemption. We refused to allow the Tax Commission to unilaterally reverse its prior interpretation of the sales tax statute. In so doing, we recognized that the duly enacted rules and regulations of an administrative agency are entitled to deference. The facts here do not reveal any prior representation by the ABLE Commission which would result in reliance on its definition of public schools found in art.- 2, § 16. 14 The sale of liquor for consumption by the drink has been legal in Oklahoma only since November 6, 1984. On that date, the people adopted art. 28, § 4 of the Oklahoma Constitution allowing individual counties to approve retail sale of liquor by the individual drink. 15 ABLE Commission Rules and Regulations have existed as ABLE Commission rules only since 1984. Prior to 1984, the regulating agency was the Oklahoma Alcoholic Beverage Control Board (ABC Board). 16 This case was filed on December 11, 1987. Certiorari was granted on October 18, 1990 to determine whether “public schools” within the meaning of 37 O.S.Supp. 1985 § 518.2 17 and the ABLE Commission rule, art. 2, § 16 18 include colleges and universities. This is the first time this issue has been presented for review. *690 Art. 13, § 1 of the Okla.Const. mandates that education in the public schools is to be free. 19 Taken to the extreme, the majority opinion could mandate, free tuition at all colleges and universities. I cannot concur because the term “public schools” is not only a term of art, but also a term with a constitutional definition. . The Okla. Const, art. 1, § 5 provides: "Provisions shall be made for the establishment and maintenance of a system of public schools, which shall be open to all the children of the state and free from sectarian control; and said schools shall always be conducted in English: Provided, that nothing herein shall preclude the teaching of other languages in said public schools.” . Title 37 O.S.Supp. 1985 § 518.2 provides in pertinent part: “The location of a retail package store, mixed beverage establishment or bottle club shall be subject to the nondiscriminatory zoning ordinances of the town or city in which located, and the location of such entities is specifically prohibited within three hundred (300) feet from any church property primarily and regularly used for worship services and religious activities, or public school_” See also, 70 O.S.1981 § 1-106 providing: “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 (2) years of junior college work, night schools, adult and other special classes, vocational and technical instruction and such other school classes and instruction as may be supported by public taxation or otherwise authorized by laws which are now in effect or which may hereafter be enacted." The majority opinion would use § 1-106 as support for the proposition that colleges and universities are included within the meaning of 37 O.S.Supp.1985 § 518.2. In reaching this conclusion, the opinion provides that the explicit listing of junior colleges within § 1-106 necessitates the inclusion of colleges and universities within the meaning of § 518.2. This grouping of colleges and universities in a statute prescribing a specific list of institutions ignores the maxim, expressio unius est exclusio alterius, mention of one thing in a statute implies exclusion of another. In re Arbuckle Master Conservancy Dist., 474 P.2d 385, 391-92 (Okla.1970);' McCullick v. State, 682 P.2d 235 -36 (Okla.Crim.1984). Hence, colleges and universities are not included. . In Regents of Higher Educ. v. Board of Educ., 20 Okla. 809 , 95 P. 429 -30 (1908), this Court determined that the term “public school” did not include within its meaning a state university. Although the Court indicated in Regents that under proper circumstances the term "public school” might include colleges and universities, the Legislature did not indicate that any special meaning was to be accorded "public schools” pursuant to § 518.2, see note 2, supra. . Title 37 O.S.Supp.1985 § 518.2, see note 2, supra. . ABLE Commission Rules and Regulations art. 2, § 16 (1985) provides: “The term ‘public school,’ as used in these Rules and Regulations, shall include all schools supported, in whole or in part, by taxation of any kind or character within the State of Oklahoma, and shall also include all schools which may be attended by the public offering educational instruction equivalent to that offered in public grade schools, public high schools, public preparatory schools, and colleges and universities having authority to award recognized degrees.” . The agency so charged is now the ABLE Commission. Its predecessor was the ABC Board, see discussion at 686, infra. The Okla.Const. art. 28, § 1 provides in pertinent part: “There is hereby created the Alcoholic Beverage Laws Enforcement Commission. The Purpose of the Commission shall be to en *688 force the alcoholic beverage laws of the State, and the Commission shall have such power and authority to enforce such laws, rules and regulations as shall be prescribed by the Legislature. . . ." .Title 37 O.S.Supp.1990 § 163.2 provides in pertinent part: "In the administration of this act the following words and phrases are given the meanings respectively indicated: (a) ‘Nonintoxicating beverages’ means and includes beverages containing 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 barley or other grain, malt or similar products...." . Title 37 O.S.Supp.1987 § 163.24 provides in pertinent part: “From and after the effective date of this act, it shall be unlawful for any place licensed to sell nonintoxicating beverages as defined in paragraph (a) of Section 163.2 of this title, for on-premise consumption to be located within three hundred (300) feet from any public school ..." . The Okla.Const. art. 28, § 2 provides in pertinent part: "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 ...” . The Okla.Const. art. 1, § 5, see note 1, supra. . Title 37 O.S.Supp. 1985 § 518.2, see note 2, supra. . The instant cause differs from the one presented in Lowery v. Oklahoma Alcoholic Beverage Control Bd., 584 P.2d 720, 722 (Okla.1978), in which we found that a statute promulgated by the Legislature and included within the Oklahoma Alcoholic Beverage Control Act, 37 O.S.1981 § 502 et seq., need not encompass the same definition of a city block as did the real property statutes. An agency rule was not at issue in Lowery and no constitutional provision existed controlling the definition of a city block. . The Okla.Const. art. 13-A, § 1 provides: "All institutions of higher education supported wholly or in part by direct legislative appropriations shall be integral parts of a unified system to be known as "The Oklahoma State System of Higher Education.’ ” . ABLE Commission Rules and Regulations art. 2, § 16 (1985), see note 5, supra. . The Okla.Const. art. 28, § 2 provides in pertinent part: "... Retail sale of alcoholic beverages by the individual drink or on-premises consumption is hereby authorized within a county if the voters of such county have previously approved such retail sale at an election." . The Okla.Const. art. 27, § 1 provides in pertinent part: ‘There is hereby created the Oklahoma Alcoholic Beverage Control Board, the members of which shall be appointed by the Governor, with the advice and consent of the State Sen-ate_” Art. 27, §§ 1-11 were repealed by State Question No. 563, Initiative Petition No. 319, adopted at the election held on September 18, 1984. . Title 37 O.S.Supp.1985 § 518.2, see note 2, supra. . ABLE Commission Rules and Regulations art. 2, § 16 (1985), see note 5, supra. . The Okla.Const. art. 13, § 1 provides: "The Legislature shall establish and maintain a system of free public schools wherein all the children of the State may be educated." --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9530119. Public record. Not legal advice.