Opinion No. (1991) Ag ( 1991 )

ATTORNEY GENERAL HENRY HAS RECEIVED YOUR LETTER DATED JANUARY 8, 1991, REQUESTING AN OPINION ON THE ISSUE OF-WHETHER A RESTAURANT OWNER HOLDING A LICENSE FROM THE ABLE COMMISSION MAY SERVE AS A MEMBER OF A MUNICIPAL BOARD OR COMMISSION SUCH AS A TRAFFIC COMMISSION OR A STATE BOARD OR COMMISSION SUCH AS THE HUMAN RIGHTS COMMISSION. DUE TO REASONS WHICH ARE EXPLAINED BELOW, IT IS NEITHER NECESSARY NOR APPROPRIATE TO RESPOND TO YOUR REQUEST BY WAY OF FORMAL OPINION OF THE ATTORNEY GENERAL. I APOLOGIZE FOR THE DELAY BUT DUE TO THE FACT WE GENERALLY DO NOT VENTURE OPINIONS ON PENDING LEGISLATION, I HAVE BEEN WAITING FOR THE FATE OF S.B. 12 TO BE DETERMINED.

ON SEPTEMBER 18, 1990, THE CITIZENS OF OKLAHOMA VOTED TO ADOPT STATE QUESTION 638 WHICH ELIMINATED THE CONSTITUTIONAL PROHIBITION (ARTICLE XXVIII, SECTION 8) AGAINST AGENTS OR EMPLOYEES OF THE STATE AND POLITICAL SUBDIVISIONS FROM ENGAGING IN ANY PHASE OF THE ALCOHOLIC BEVERAGE BUSINESS. THE AMENDMENT ALSO PROVIDES THAT THE LEGISLATURE "MAY ENACT LAWS RESTRICTING THE INVOLVEMENT OF OFFICERS AND EMPLOYEES OF THE STATE AND POLITICAL SUBDIVISIONS THEREOF IN THE ALCOHOLIC BEVERAGE BUSINESS". (EMPHASIS ADDED)

A CLEAR READING OF THE AMENDMENT REVEALS ITS INTENT TO RESERVE THE POWER TO PROHIBIT CERTAIN STATE OR LOCAL OFFICERS AND EMPLOYEES FROM ENGAGING IN THE ALCOHOLIC BEVERAGE BUSINESS EXCLUSIVELY TO THE LEGISLATURE. IN THE CURRENT SESSION, FOR EXAMPLE, S.B. 12 AMENDS 37 O.S. 511(D) (1990), WHICH WOULD PROHIBIT ONLY JUDGES, DISTRICT ATTORNEYS, PEACE OFFICERS, AND CERTAIN TAX COMMISSION EMPLOYEES FROM ENGAGING IN THE ALCOHOLIC BEVERAGE BUSINESS. I HAVE BEEN INFORMED BY COUNSEL FOR THE A.B.L.E. COMMISSION THAT THEY ARE UNAWARE OF ANY CURRENT STATUTORY PROVISIONS OTHER THAN 37 O.S. 511(D) (1990) WHICH PROHIBIT STATE OR LOCAL OFFICERS OR EMPLOYEES FROM ENGAGING IN THE ALCOHOLIC BEVERAGE BUSINESS. DUE TO THE FACT THAT THE AMENDMENT TO ARTICLE XXVIII, SECTION 8 RESERVES THE RIGHT OF PROHIBITION TO THE LEGISLATURE, ONLY THOSE PROHIBITIONS CONTAINED IN 2 OF S.B. 12, UPON APPROVAL BY THE GOVERNOR, WOULD LIMIT THE ABILITY OF AN OFFICER OR EMPLOYEE TO BE ENGAGED IN THE BUSINESS.

(DOUGLAS B. ALLEN)