RE: INFORMAL OPINION REQUEST CONCERNING ODFA AG OPIN. 82-081

YOU HAVE ASKED US FOR AN INFORMAL OPINION CONCERNING THE CONTINUING APPLICABILITY OF A.G. OPIN. NO. 82-081 AS IT RELATES TO THE OKLAHOMA DEVELOPMENT FINANCE AUTHORITY IN LIGHT OF THE ENACTMENT OF 74 Ohio St. 5062.1 (1989) ET. SEQ. THESE STATUTES WERE A PART OF HB 1444 WHICH WAS THE ECONOMIC RECOVERY ACT OF 1987. ITS MY UNDERSTANDING THAT YOUR PARTICULAR INTEREST IS WHETHER THE ODFA MAY LEGALLY FINANCE A HOTEL PROJECT.

A.G. OPIN. NO. 82-081 HELD THAT NO PUBLIC TRUST COULD FINANCE A MOTEL/RESTAURANT PROJECT. IT WAS BASED ON AN INTERPRETATION OF 60 Ohio St. 178.4 (1989) WHICH GENERALLY PROHIBITS TRUST FINANCING FOR WHOLESALE OUTLETS, RETAIL OUTLETS AND LIQUOR DISTRIBUTORS. ATTORNEY GENERAL CARTWRIGHT RULED THAT A MOTEL/RESTAURANT WAS A "RETAIL OUTLET" WITHIN THE CONTEMPLATION OF THE STATUTE. THIS WAS BASED ON THE OBSERVATION THAT MOTELS ROUTINELY SOLD, ". . . LODGING, FOOD, ENTERTAINMENT AND SUNDRY GOODS TO THE GENERAL PUBLIC."

WITH THE ENACTMENT OF H.B. 1444, THE FORMER OKLAHOMA DEVELOPMENT AUTHORITY BECAME THE OKLAHOMA DEVELOPMENT FINANCE AUTHORITY. THIS ENTITY, WHICH HAS KEPT ITS STATUS AS A STATE-BENEFICIARY PUBLIC TRUST, HAS BEEN GIVEN SEVERAL ADDITIONAL SPECIFIC POWERS BY STATUTE. THE ODFA HAS THE AUTHORITY TO PROVIDE FINANCING FOR MANY THINGS INCLUDING "INDUSTRIAL ENTERPRISES" AND "RECREATIONAL FACILITIES." 74 Ohio St. 5062.3(C) (1989). IN MY VIEW, A HOTEL PROJECT WOULD NOT BE A "RECREATIONAL FACILITY". A MOTEL MAY BE A PART OF A RECREATIONAL CENTER, BUT A HOTEL BY ITSELF IS MAINLY A PLACE WHERE PEOPLE SPEND THE NIGHT.

ITS POSSIBLE THAT A HOTEL PROJECT COULD COME WITHIN THE DEFINITION OF "INDUSTRIAL ENTERPRISE". 74 Ohio St. 5062.5(12) (1989). THIS DEFINITION IS VERY BROAD BUT THE CLOSEST WORDING WITHIN THIS DEFINITION WOULD BE AS "FACILITIES FOR ANY SERVICE PROFESSION". I SUPPOSE IN THE BROAD SENSE ANY BUSINESS PROVIDING A SERVICE COULD BE A "SERVICE PROFESSION" BUT I AM SKEPTICAL THAT THIS IS WHAT THE LEGISLATURE HAD IN MIND.

BECAUSE THE FINANCING OF A HOTEL PROJECT IS NOT CLEARLY AUTHORIZED IN THE ODFA STATUTES I WOULD BE HARD PRESSED TO SAY THAT THESE STATUTES HAVE, IN EFFECT, REPEALED 60 Ohio St. 178.4 (1989) AS THEY RELATE TO THE ODFA. AS YOU KNOW, STATUTES DEALING WITH THE SAME SUBJECT MATTER ARE SUPPOSED TO BE HARMONIZED, WHERE POSSIBLE. GRAND RIVER DAM AUTHORITY, 645 P.2D 1011, 1019 (OKLA. 1982).

IN MY VIEW, THE ODFA STATUTES WOULD HAVE TO BE AMENDED TO SPECIFICALLY ALLOW IT TO FINANCE HOTEL PROJECTS. THE ONLY OTHER ALTERNATIVE WOULD BE THE POSSIBILITY THAT ATTORNEY GENERAL HENRY WOULD CONSIDER WITHDRAWING A.G. OPIN. NO. 82-081. I HOPE THE DISCUSSION IN THIS LETTER WILL HELP YOU.

(THOMAS L. SPENCER)