Digest of opinions

              Attorney General E. Scott Pruitt
Vol. 47, No. 3 Quarterly December, 2011
Digest
of Opinions
Opinion 2011-17
Anne M. Woody Oct. 7, 2011
Executive Director
Oklahoma Real Estate Commission
1. The substantive regulation of
real estate brokers is a matter of
statewide interest. Pursuant to
the Oklahoma Real Estate Code,
59 O.S.Supp.2010, § 858-201(A),
the Legislature has established the
Oklahoma Real Estate Commission
as the sole governmental body with
the power to substantively regulate
real estate brokers.
2. Under the Oklahoma Municipal
Code the Legislature has granted
municipalities the power to enact
ordinances, rules and regulations
not inconsistent with the Constitu-tion
and State laws for any purpose
mentioned in Title 11 of the Okla-homa
Statutes or for carrying out
their municipal functions. See 11
O.S.2001, § 14-101. Pursuant to
11 O.S.Supp.2010, § 22-106, the
Legislature has carved out for
municipalities, both charter and
non-charter, the authority to levy
and to collect a tax from real estate
brokers and to issue municipal
licenses as evidence of payment of
the tax.
3. Within the Oklahoma Municipal
Code, the Legislature has granted
municipalities the authority to en-act
ordinances deemed necessary
for the protection of the public
health, safety, morals or the general
welfare of the community. See 11
O.S.2001, §§ 22-120, 43-101. Some
municipalities have enacted ordi-nances
establishing rental property
registration programs to address
the problem of blighted and dete-riorated
rental properties owned by
absentee or out-of-county owners.
Depending upon the given munici-pality’s
definition of the term “op-eration”
with respect to the rental
property, the designated individual
referenced within these ordinances
may fall within the definition of a
“real estate broker” under Okla-homa
law and may be required to
be licensed by the Oklahoma Real
Estate Commission.
4. If a municipality’s definition of
“operation” means the rental or
leasing of the rental property or the
solicitation of prospective tenants
for the rental property, and a real
estate broker acting as the desig-nated
individual is performing these
activities for a fee, commission or
other valuable consideration, a mu-nicipality,
charter or non-charter,
cannot require the real estate broker
to attend meetings associated with
the rental property registration pro-gram
or to live in or have an office
in the county where the municipality
is located or in an adjoining county.
The real estate broker acting as the
designated individual is performing
activities that only a licensed real
estate broker can perform under
FYI
You may get copies of Attorney General
Opinions at: www.oag.ok.gov.
Vol. 47, No. 3 Digest of Attorney General Opinions Page 2
Oklahoma law. 59 O.S.Supp.2010, § 858-
102(2).
5. If the real estate broker acting as the
designated individual is leasing the
rental property or soliciting prospec-tive
tenants for the rental property for
no fee, commission or other valuable
consideration, the Real Estate Code is
not implicated. See 59 O.S.Supp.2010,
§ 858-102(2). A municipality, charter or
non-charter, may require the real estate
broker acting as the designated indi-vidual
for no fee to attend meetings or
to live in or have an office in a particular
geographic location.
6. If the given municipality’s definition of
the word “operation” means the physical
upkeep of the rental property or simply
the collection of rental payments for the
rental property, the Real Estate Code
is not implicated, even when the real
estate broker acting as the designated
individual is performing these activities
for a fee. 59 O.S.Supp.2010, § 858-102(2).
A charter or non-charter municipality
may require the real estate broker acting
as the designated individual to attend
meetings and to live in or have an office
in a particular geographic location.
7. If the given municipality’s definition of
the word “operation” means the physical
upkeep of the rental property or the col-lection
of rental payments, even though
a real estate broker acting as the desig-nated
individual is performing activities
for which a real estate broker’s license
is required under Oklahoma law along
with activities for which no such license
is required, a charter or non-charter
municipality may require the real es-tate
broker to attend meetings and to
live in or have an office in a particular
geographic location.
E. SCOTT PRUITT
Oklahoma Attor ney Gener al
AL ECIA A. GEORGE
Asist ant Attor ney Gener al
Opinion 2011-18
The Honorable Jabar Shumate Oct. 19, 2011
State Representative, District 73
1. When a school district borrows funds
by the issuance of bonds for a specific
purpose and the school district later
sells the property, it must either use the
sale proceeds representing the funds
borrowed and applicable interest paid
for the same specific purpose stated in
the bond measure, if possible, or it must
pay back the proceeds into the sinking
fund. Okla. Const. art. X, § 16; 26; 70
O.S.2001, § 15-101; Protest of Reid, 15
P.2d 995, 998 (Okla. 1932); State ex rel.
Grimes v. Bd. of Educ., 99 P.2d 876, 878
(Okla. 1940).
2. There is no time limitation past which
a governmental bond issuer need no
longer account for the proceeds from the
sale or disposal of property financed in
whole or in part by the issuance of bonds.
The limitation on sale proceeds concerns
“the use of the borrowed funds [being]
applicable to subsequent uses as well as
to the first use thereof.” Reid, 15 P.2d at
998; Okla. Const. art. X, § 16.
E. SCOTT PRUITT
Oklahoma Attor ney Gener al
DAVID L. KIN EY
Asist ant Attor ney Gener al
Opinion 2011-19
The Honorable Jeff Hickman Oct. 28, 2011
Speaker Pro Tempore
1. The phrase “routine sick calls within the
county jail” means sick calls that takes
place inside the county jail occurring
in accordance with established proce-dure
set by a sheriff or county jail. 57
O.S.Supp.2010, § 38.3(C). The sheriff of
each county is required to pay for sick
calls of inmates retained in county jails
after judgment and sentencing when
those sick calls take place inside the
county jail and take place in accordance
Vol. 47, No. 3 Digest of Attorney General Opinions Page 3
with the established procedure set by a
sheriff or county jail. Id. The Depart-ment
of Corrections must reimburse
health care providers for the cost of
all sick calls of retained state inmates
other than sick calls that fall within the
meaning of “routine sick calls within the
county jail” as that meaning is deter-mined
by each sheriff or county jail. Id.
Whether or not a “sick call” is of the type
that is in accordance with established
procedure set within a county jail and is,
therefore, routine, constitutes a question
of fact specific to each county jail and is
beyond the scope of an Attorney General
Opinion. 74 O.S.Supp.2010, § 18b(A)(5).
2. To the extent a county expends funds the
county would not otherwise expend in
providing routine sick calls for county
inmates, 57 O.S.Supp.2010, § 38.3(C) is
unconstitutional as it requires counties
to financially support a state penal insti-tution
by requiring counties to pay for
medical care and treatment for inmates
retained after judgment and sentencing.
Id.; Okla. Const. art. XXI, § 1; State ex
rel. Dep’t of Human Serv. v. Malibie, 630
P.2d 310 at 315, 317 (Okla. 1981); A.G.
Opin. 2011-8.
3. To the extent a county expends funds
the county would not otherwise expend
for routine sick calls for county inmates,
Article X, Section 9 of the Oklahoma
Constitution is violated when a county
uses ad valorem tax revenues, directly
or indirectly, to pay for routine sick calls
of retained state inmates as required by
subsection C of Section 38.3. A.G. Opin.
2011-8; Okla. Const. art. X, § 9(a); 57
O.S.Supp.2010, § 38.3(C); Malibie, 630
P.2d at 315-17.
4. Whether a county expends funds the
county would not otherwise expend
when providing routine sick calls for
county inmates in those circumstances in
which the county provides routine sick
calls within the county jail to retained
state inmates constitutes a question of
fact specific to each jail and is beyond the
scope of an Attorney General Opinion.
74 O.S.Supp.2010, § 18b(A)(5).
E. SCOTT PRUITT
Oklahoma Attor ney Gener al
KA RL F. KRAM ER
Assistant Attorney General
Opinion 2011-20
The Honorable Jason Murphey Oct. 28, 2011
State Representative, District 31
1. A city council can not enter into a
contract with an owner of commercial
property to provide the property with an
exclusive exemption from city building
codes and other city ordinances arising
out of the city’s use of its police powers
(e.g. building codes, zoning, health and
safety), because such a contract is con-trary
to the fundamental law of police
powers and is void ab initio. Chicago,
R.I. & P. Ry. Co. v. Taylor, 192 P. 349,
349-50 (Okla. 1920).
2. Title 11 O.S.Supp.2010, § 21-103(A)
empowers a city to annex territory adja-cent
or contiguous to it without consent
of the owners of at least a majority of
the acres to be annexed on conditions
stated therein. A city is limited by Okla.
Const. art. X, § 17 which prohibits a
city from receiving less than adequate
consideration from a property owner for
a consensual annexation when the city
could proceed to force annexation using
its own statutory power for less costs.
3. As long as a city council votes to deter-mine
a specific arrangement or plan
will serve a legitimate public purpose of
promoting the general welfare, economic
security, and prosperity of the city, and
such determination is not manifestly
arbitrary, capricious, or unreasonable,
a city may contract with the owner of
commercial property to pay the owner
compensation equal to a pro-rata share
of additional sales tax revenue collected
as a result a consensual annexation of
the owner’s property. See State ex Rel.
Vol. 47, No. 3 Digest of Attorney General Opinions Page 4
Brown v. City of Warr Acres, 946 P.2d
1140, 1144 - 45 (Okla. 1997).
E. SCOTT PRUITT
Attor ney Gener al of Oklahoma
JOHN CRITTENDEN
Asist ant Attor ney Gener al
Opinion 2011-21
The Honorable Al McAffrey Nov. 8, 2011
State Representative, District 88
1. When the body of a person whose death
occurred in Oklahoma is to be transport-ed
or shipped out of the State, the Office
of the Chief Medical Examiner must
conduct an investigation of the death. 63
O.S.2001, § 938(A)(8). No investigation
is required when the remains of a person
whose death did not occur in Oklahoma
are to be transported or shipped out of
the State.
2. The Chief Medical Examiner determines
the nature, character, and extent of the
investigation of deaths of persons whose
bodies will be transported out of the
State. 63 O.S.2001, § 939. The inves-tigation
may be limited to a review of
the medical records and history of the
deceased, or may also include the col-lection
and testing of specimens and an
autopsy. Id. §§ 941, 944.
3. The fee for the forensic service of “trans-port
out of state investigations” autho-rized
by 63 O.S.2001, § 948.1(A)(2)(b)
and OAC 445:10-1-11(2)(D)(iii) applies
to the fee for out-of-state shipment of
remains referenced in 63 O.S.2001, §
947(D). The Office of the Chief Medi-cal
Examine may charge the “transport
out of state investigations” fee listed in
OAC 445:10-1-11(2)(D(iii) for the in-vestigation
of the death of a body to be
transported out of the State required by
Section 938(A)(8).
4. The investigation fee is distinct from the
“permit for transport of a body out of
state” referenced in Section 947(C). Sec-tion
947(C) refers to the burial-transit
permit issued by the Oklahoma State
Department of Health when a body is to
be transported out of the State via rail-road
or common carrier. 63 O.S.2001,
§ 101.
5. The Office of the Chief Medical Exam-iner’s
duty in Section 1-329.1 of Title
63, to issue a permit for the disposal or
cremation of a body and charge a fee for
the permit does not include the authority
to issue a permit and charge a permit fee
for the out-of-state transport of a body.
Id.; see also id. § 948.1(A)(2)(a).
E. SCOTT PRUITT
Attor ney Gener al of Oklahoma
SAN DRA J. BAL ZER
Asist ant Attor ney Gener al
Opinion 2011-22
The Honorable Sean Burrage Nov. 28, 2011
State Senator, District 2
The Honorable Marty Quinn
State Representative, District 9
1. The word “nonprofit” as used in 25
O.S.Supp.2010, § 307(C)(10), which
grants public bodies authority to hold
executive sessions for purposes of con-ferring
on certain matters pertaining to
economic development, only applies to
foundations and not every public body
listed.
2. City councils and public trusts created
pursuant to 60 O.S.2001 & Supp.2010,
§§ 178 – 180.4, including those with a
municipality as a beneficiary, may hold
executive sessions for purposes of con-ferring
on certain matters pertaining to
economic development pursuant to 25
O.S.Supp.2010, § 307(C)(10).
3. If a public body determines an execu-tive
session is necessary to protect the
development of products or services or
to protect the confidentiality of a busi-ness,
and if the public body has given
proper notice of the proposed execu-tive
session under 25 O.S.Supp.2010, §
311(B)(2), then the public body may
vote and enter into executive session for
Vol. 47, No. 3 Digest of Attorney General Opinions Page 5
purposes of conferring on certain mat-ters
of economic development pursuant
25 O.S.Supp.2010, § 307(C)(10).
E. SCOTT PRUITT
Attor ney Gener al of Oklahoma
GEOFFREY D. LONG
Asist ant Attor ney Gener al
Opinion 2011-23
The Honorable Ron Justice Dec. 12, 2011
State Senator, District 23
1. The road mileage of municipal streets
or roads that the county has agreed to
construct, improve, repair or maintain
pursuant to 11 O.S.Supp.2010, § 36-
113(E) shall not be included as part of
the county road mileage for purposes
of state tax revenues apportioned to the
county. Section 36-113(E) is controlling
over 69 O.S.Supp.2010, § 316, which
contains conflicting language, as Section
36-113(E) was enacted later in time and
is more specific.
2. Counties may enter into agreements
pursuant to 11 O.S.Supp.2010, § 36-113
to construct, improve, repair or main-tain
municipal streets or roads without
violating either, Okla. Const. art. X, §
20 prohibiting the imposition of state
taxes for county or local purposes, or
Okla. Const. art. X, § 9 prohibiting the
use of county ad valorem taxes for state
purposes.
3. The Oklahoma Motor Fuel Tax Code, 68
O.S.2001 & Supp.2010, § 500.1 – 500.64,
governs the distribution of taxes levied
upon certain motor fuels among the vari-ous
counties of the State for purposes
including constructing and maintaining
county roads. This statute does not gov-ern
how county commissioners divide
county road funds among the districts
in the individual counties.
4. A board of county commissioners is re-quired
to act on behalf of the county as
a whole rather than each commissioner
acting on behalf of his or her district. Bd.
of Comm’rs v. Landrum, 21 P.2d 736, 737-
38 (Okla. 1933). See also 69 O.S.2001,
§ 201 (holding that it is the duty of the
board of county commissioners in each
county to construct and maintain those
roads which best serve the most people
of the county).
E. SCOTT PRUITT
Attor ney Gener al of Oklahoma
SAN DRA D. RINEHA RT
Senior Asist ant Attor ney Gener al
Opinion 2011-24
The Honorable Sean Roberts Dec. 15, 2011
State Representative, District 36
The advertisement, offering for sale and
sale of merchandise below cost, as defined
by the Unfair Sales Act, at a short-term
promotional event violate the Unfair Sales
Act unless: (i) the merchandise is priced
below cost in a good faith effort to meet the
prices of the retailer’s competition so as to
satisfy the requirements of the “safe harbor”
provided in 15 O.S.2001, § 598.7, or (ii) the
event meets the literal requirements of one
of the following statutory exceptions as set
forth in 15 O.S.2001, § 598.6:
(1) bona fide clearance sales of seasonal
merchandise, if advertised and sold as
such;
(2) sales of perishable goods that must be
sold promptly to avoid losses;
(3) sales of imperfect, damaged or discon-tinued
goods, if advertised and sold as
such;
(4) final liquidation sales;
(5) goods sold for charitable purposes or to
relief agencies;
(6) goods sold per contracts with govern-ment
departments or institutions;
(7) court-ordered sales;
(8) bona fide auction sales.
E. SCOTT PRUITT
Attor ney Gener al of Oklahoma
ETHAN SHAN ER
Asist ant Attor ney Gener al