USUAL PARLANCE. RIFFE PETROLEUM V. GREAT NATIONAL CORP.. INC. 614 P.2D 576 (OKLA.1980). THE TERM RESTAURANT IS DEFINED VARIOUSLY AS "(A) PLACE WHERE MEALS ARE SERVED TO THE PUBLIC." THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, NEW COLLEGE EDITION (1976), 1108, "AN ESTABLISHMENT WHERE REFRESHMENTS OR MEALS MAY BE PROCURED BY THE PUBLIC; A PUBLIC EATING HOUSE," WEBSTER'S THIRD INTERNATIONAL DICTIONARY (1986) 1936, AND "A PLACE WHERE FOOD IS PREPARED AND SERVED INSIDE TO BE CONSUMED ON TABLES, ALTHOUGH IT MAY BE TAKEN OUT AND CONSUMED IN CARS." 3 ANDERSON, AMERICAN LAW OF ZONING (3 ED. 1986) 185, SECTION 17.65.
THE GENERAL RULE TO BE APPLIED IN THE CONSTRUCTION OF TAX STATUTES REQUIRES THAT THE PRIMARY CONSIDERATION BE TO ASCERTAIN AND GIVE EFFECT TO THE INTENTION OF THE LEGISLATURE. TAX STATUTES ARE TO BE GIVEN A REASONABLE CONSTRUCTION WITH A VIEW TOWARD CARRYING OUT THE LEGISLATIVE PURPOSE AND INTENT, AND SUCH INTENTION IS TO BE DETERMINED FROM THE LANGUAGE OF THE ENTIRE ACT. AFFILIATED MANAGEMENT CORPORATION V. OKLAHOMA TAX COM'N., 570 P.2D 335, 337 (OKLA.1977).
THE PURPOSE OF THIS TAX IS TO PROVIDE FUNDS FOR THE PURPOSE OF PROMOTING OKLAHOMA TOURISM. 68 O.S. 1991, 50014. IT SEEMS CLEAR THAT THE INTENT OF THE LEGISLATURE WAS TO MAKE THOSE ENTITIES ENGAGED IN TOURISM PAY SOME PART OF THE COST OF PROMOTION. WITH THIS PURPOSE IN MIND, I BELIEVE THAT A CLOSE READING OF 68 O.S. 50012(A)(2) DOES, IN FACT, PROVIDE A WORKING DEFINITION OF THE TAXABLE EVENT FOR WHICH THIS TAX IS APPLICABLE.
PURSUANT TO SECTION 68 O.S. 50012, THERE MUST BE A SALE OF FOOD, CONFECTION, OR DRINK. THIS SALE MUST BE MADE BY A HOTEL, RESTAURANT, OR BAR. FINALLY, AND MOST IMPORTANTLY, THE SALE MUST BE MADE FOR "IMMEDIATE CONSUMPTION UPON THE PREMISES OR DELIVERED OR CARRIED AWAY FROM THE PREMISES FOR CONSUMPTION ELSEWHERE." THIS FINAL COMPONENT PROVIDES A WORKING DEFINITION OF THE TERM RESTAURANT AND INCLUDES ESTABLISHMENTS WHICH SELL PREPARED FOOD FOR CONSUMPTION EITHER ON OR OFF PREMISES.
IN MY OPINION, THE DEFINITION OF RESTAURANT FOR PURPOSES OF THE TOURISM PROMOTION ACT IS INTENDED TO INCLUDE ESTABLISHMENTS WHERE PATRONS CONSUME FOOD WHICH HAS BEEN PREPARED ON THE PREMISES. IT ALSO INCLUDES ESTABLISHMENTS WHERE PATRONS HAVE THE ABILITY TO "CARRY OUT" FOOD PREPARED ON THE PREMISES.
IT CANNOT BE DOUBTED THAT SUCH A DEFINITION PRODUCES "GRAY" AREAS AND IT IS DIFFICULT TO FORMULATE A TEST THAT MAY BE USED IN ALL SITUATIONS. HOWEVER, IT IS MY OPINION THAT THE TERM RESTAURANT IS NOT SO BROAD AS TO BE READ TO REFER TO "ALL FOOD SELLERS" SELLING FOOD SIMILAR TO A RESTAURANT. CLEARLY, TAXABILITY REQUIRES A DETERMINATION THAT THE SELLER IS IN FACT A RESTAURANT. WHETHER A PARTICULAR OPERATION IS A RESTAURANT WITHIN THE MEANING OF THE TOURISM PROMOTION ACT DEPENDS UPON THE ANALYSIS OF A GREAT NUMBER OF FACTS AND CIRCUMSTANCES. HOWEVER, USING THE DICTIONARY DEFINITION, THE STATUTORY STRUCTURE AND REVIEWING THE OVERRIDING PURPOSE OF THE ACT, IT IS MY OPINION THAT THE LAW IS SUFFICIENTLY BROAD TO