Tennessee § 57-5-103 - Permit from county or city required — Online sale for curbside pickup — Classification of counties — Purchases of beer “for resale.”

§ 57-5-103. Permit from county or city required — Online sale for curbside pickup — Classification of counties — Purchases of beer “for resale.”

It is unlawful to operate any business engaged in the sale, distribution, manufacture, or storage of beer without a permit issued by the county or city where such business is located under the authority herein delegated to counties and cities. Permits shall be issued to the owner of the business or other entity responsible for the premises for which the permit is sought, whether a person, firm, corporation, joint-stock company, syndicate, association, or local governmental entity where the governing body has authorized such sales of beer. A permit shall be valid: Only for the owner to whom the permit is issued and cannot be transferred to another owner. If the owner is a corporation, a change in ownership shall occur when control of at least fifty percent (50%) of the stock of the corporation is transferred to a new owner; Only for a single location, except as provided in subdivision (a)(4), and cannot be transferred to another location. A permit shall be valid for all decks, patios and other outdoor serving areas that are contiguous to the exterior of the building in which the business is located and that are operated by the business; and Only for a business operating under the name identified in the permit application. Where an owner operates two (2) or more restaurants or other businesses within the same building, the owner may in the owner's discretion operate some or all such businesses pursuant to the same permit. A business can sell beer for both on-premises and off-premises consumption at the same location pursuant to one (1) permit. A permit holder must return a permit to the county or city that issued it within fifteen (15) days of termination of the business, change in ownership, relocation of the business or change of the business's name; provided, that notwithstanding the failure to return a beer permit, a permit shall expire on termination of the business, change in ownership, relocation of the business or change of the business's name. In the case of beer wholesalers, as defined in § 57-6-102, no county or city shall require a permit from a wholesaler unless such wholesaler operates a warehouse in such county or city. Any person, firm, corporation, joint-stock company, syndicate, or association engaged in the sale, distribution, or manufacture of beer without the permit required by this part commits a Class A misdemeanor. Nothing in this chapter shall be construed as granting counties or cities the authority to require the periodic renewal of beer permits. After July 1, 2015, a city or county shall not issue a permit under this chapter unless the applicant has been a citizen or lawful resident of the United States for not less than one (1) year immediately preceding the date upon which the application is made to the city or county. A permit holder may sell beer online for curbside pickup at the permit holder's location. Purchased beer must be delivered to the customer's vehicle, and the vehicle must be located within a paved parking area adjacent to the place of business. Beer sold through an online curbside pickup service must be pulled from the inventory located at the permitted location of the retailer providing the service and may not be pulled from the inventory of another retailer or permitted location. Any employee bringing beer to a vehicle for online curbside pickup must confirm the individual receiving the beer is at least twenty-one (21) years of age. For the purpose of licensing, regulating and controlling the transportation, storage, sale, distribution, possession, receipt and/or manufacture of beer pursuant to this chapter, the counties of the state shall be classified in two (2) categories, one (1) of which is hereby designated Class A counties consisting of those counties not governed by metropolitan governments as defined in § 7-2-101, and the other category is hereby designated Class B counties consisting of those counties governed by metropolitan governments as defined in § 7-2-101. When either “county” or “counties” is used in this chapter, it means counties generally without reference to the classification of counties provided for in this section, and the use of “county” or “counties” shall cause the provision limited by the word “county” or “counties” to apply equally to Class A counties and to Class B counties. When “county legislative body” or “county legislative bodies” is used in this chapter, it means “metropolitan council” or “metropolitan councils” when applicable to Class B counties. It is unlawful for any person to sell, distribute or manufacture beer without having a valid certificate indicating that purchases of beer by that person are “for resale” as that term is used in § 67-6-102(75)(A). Within ten (10) days after being issued a permit to sell, distribute or manufacture beer, a person shall file with the county or city issuing the permit and with each person from whom the person buys beer a copy of a valid certificate indicating that the purchases of beer are “for resale” as that term is used in § 67-6-102(75)(A), and shall subsequently maintain at all times a valid resale certificate on file with the county or city issuing the permit and with each person from whom the person buys beer. A city or county is authorized to seek criminal history background or fingerprint checks on applicants. Criminal background checks may include fingerprint checks against state and federal criminal records maintained by the Tennessee bureau of investigation and the federal bureau of investigation. The Tennessee bureau of investigation is authorized to assess fees for the searches in accordance with the fee schedule established by the bureaus. Notwithstanding any law to the contrary, no city or county shall deny the issuance or renewal of a permit upon the basis that the lease between the business and its municipal landlord includes a provision whereby gross sales, which may include or exclude liquor sales, are considered in the determination of a percentage rent or other rent calculation provision. Acts 1933, ch. 69, § 9c; C. Supp. 1950, § 1191.12; Acts 1963, ch. 76, § 1; 1965, ch. 321, § 1; 1974, ch. 478, § 2; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 57-204; Acts 1983, ch. 386, § 1; 1987, ch. 254, § 1; 1991, ch. 424, § 1; 1993, ch. 297, § 4; T.C.A., § 57-5-104 ; Acts 1996, ch. 641, § 2; 2009, ch. 314, § 1; 2010, ch. 1002, § 1; 2014, ch. 754, § 1; 2015, ch. 29, § 1; 2018, ch. 944, § 3; 2019, ch. 377, § 3; 2020, ch. 704, § 1. Compiler's Notes. Former § 57-5-103 , concerning permits to aliens, was transferred to § 57-5-104 in 1993. Pursuant to Article III, Section 18 of the Constitution of Tennessee, Acts 2014, ch. 754 took effect on April 21, 2014. Amendments. The 2018 amendment substituted “local governmental entity” for “governmental entity” in (a)(2). The 2019 amendment added (f). The 2020 amendment added (a)(11). Effective Dates. Acts 2018, ch. 944, § 4. May 15, 2018. Acts 2019, ch. 377, § 4. May 10, 2019. Acts 2020, ch. 704, § 2, June 22, 2020. Cross-References. Penalty for Class A misdemeanor, § 40-35-111 . Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Intoxicating Liquors, §§ 5-7, 9, 10, 16, 21. Law Reviews. Judicial Review and the Uniform Administrative Procedures Act (Toxey H. Sewell), 6 Mem. St. U.L. Rev. 253. Attorney General Opinions. A clubhouse or restaurant beer permit holder located on a golf course cannot sell beer to individuals on the course itself, away from the building, under any circumstances, OAG 01-117 (7/24/01). Prohibiting the sale of beer through drive-up windows. OAG 10-113, 2010 Tenn. AG LEXIS 119 (11/18/10). As a municipal corporation the city of Clarksville cannot obtain a license to sell liquor by the drink at any location or sell alcoholic beverages or beer to either private party lessees and guests or to the general public; no city employee or nonprofit corporation created or controlled by the city may obtain a permit to sell liquor by the drink or obtain a beer permit on behalf of the city. OAG 14-03, 2014 Tenn. AG LEXIS 5 (1/9/14) The durational citizenship/residency requirement imposed by 2015 Tenn. Pub. Acts, Chapter 29 for the issuance of a beer permit is unlikely to pass constitutional muster. OAG 16-09, 2016 Tenn. AG LEXIS 9 (3/4/2016). NOTES TO DECISIONS 1. Nature of Permit. 2. Persons Required to Obtain Permit. 3. Issuance of Permit. 4. —Hearing. 5. —Mandamus. 6. — —Attorney's Fees. 7. —Review. 8. Use of Another's Permit. 9. Transferability of Permits. 10. State's Power to Regulate Establishments Holding a Permit. 1. Nature of Permit. A permit to engage in the manufacture or sale of beer or other intoxicating liquors is in the nature of a mere permit which creates no vested or property rights, and the traffic is at all times subject to the control of the state, or by delegation of its power to its political subdivisions such as counties or municipalities, in the exercise of the police power. Henderson v. Grundy County Beer Committee, 176 Tenn. 397, 141 S.W.2d 901, 1939 Tenn. LEXIS 130 (1940). 2. Persons Required to Obtain Permit. Person employed by licensee to operate business in consideration of 50 percent of profits realized from business was not required to obtain a license, since sharing in profits was not sufficient to change status from that of employee to that of partner. Stewart v. State, 190 Tenn. 334, 229 S.W.2d 504, 1950 Tenn. LEXIS 489 (1950). 3. Issuance of Permit. Refusal of beer committee to sign or authorize the issuance of a beer license did not invade the constitutional rights of the individual seeking such license. State ex rel. Cravens v. Delk, 175 Tenn. 614, 136 S.W.2d 524, 1939 Tenn. LEXIS 81 (1940). There is nothing in this chapter making it mandatory upon any beer board or licensing authority to issue a beer permit or whiskey license to anyone. Grubb v. Morristown, 185 Tenn. 114, 203 S.W.2d 593, 1947 Tenn. LEXIS 310 (1947); Ketner v. Clabo, 189 Tenn. 260, 225 S.W.2d 54, 1949 Tenn. LEXIS 423 (1949). See State ex rel. Camper v. Pollard, 189 Tenn. 86, 222 S.W.2d 374, 1949 Tenn. LEXIS 404 (1949), superseded by statute as stated in, Howard v. Willocks, 525 S.W.2d 132, 1975 Tenn. LEXIS 652 (Tenn. 1975). Municipality has absolute discretion in regulation and control of beer permits. Ketner v. Clabo, 189 Tenn. 260, 225 S.W.2d 54, 1949 Tenn. LEXIS 423 (1949). A city does not have more power than a county to issue licenses, but does have more power to place restrictions upon the issuance of licenses. Mapco Petroleum, Inc. v. Basden, 774 S.W.2d 598, 1989 Tenn. LEXIS 393 (Tenn. 1989). 4. —Hearing. Applicant for beer permit was not entitled to a formal hearing before beer committee since legislature, by providing for hearing on revocation of permit and not providing for a hearing on an application for a permit, indicated that it did not intend to grant applicant a hearing on application for a permit. State ex rel. Camper v. Pollard, 189 Tenn. 86, 222 S.W.2d 374, 1949 Tenn. LEXIS 404 (1949), superseded by statute as stated in, Howard v. Willocks, 525 S.W.2d 132, 1975 Tenn. LEXIS 652 (Tenn. 1975). 5. —Mandamus. Mandamus would not lie to force the beer committee of a county legislative body to authorize the issuance of a beer license where there was no showing that the committee acted illegally or arbitrarily. State ex rel. Cravens v. Delk, 175 Tenn. 614, 136 S.W.2d 524, 1939 Tenn. LEXIS 81 (1940). Mandamus to compel county beer committee to issue license was refused where there was no evidence showing an abuse of discretion by beer committee in refusing license. State ex rel. Simmons v. Latimer, 186 Tenn. 577, 212 S.W.2d 386, 1948 Tenn. LEXIS 583 (1948). Beer committee cannot be compelled to issue beer permit by a writ of mandamus. State ex rel. Camper v. Pollard, 189 Tenn. 86, 222 S.W.2d 374, 1949 Tenn. LEXIS 404 (1949), superseded by statute as stated in, Howard v. Willocks, 525 S.W.2d 132, 1975 Tenn. LEXIS 652 (Tenn. 1975); Ketner v. Clabo, 189 Tenn. 260, 225 S.W.2d 54, 1949 Tenn. LEXIS 423 (1949). 6. — —Attorney's Fees. Attorney representing beer committee on appeal of proceeding in mandamus by applicant who was refused a permit was required to present matter of fee to county legislative body since county was not before the supreme court. State ex rel. Camper v. Pollard, 189 Tenn. 86, 222 S.W.2d 374, 1949 Tenn. LEXIS 404 (1949), superseded by statute as stated in, Howard v. Willocks, 525 S.W.2d 132, 1975 Tenn. LEXIS 652 (Tenn. 1975). 7. —Review. Beer committees and similar boards and commissions are vested with large discretion and the courts will not review their action unless it appears that they have acted arbitrarily or illegally. State ex rel. Cravens v. Delk, 175 Tenn. 614, 136 S.W.2d 524, 1939 Tenn. LEXIS 81 (1940); State ex rel. Burkhart v. Coldwell, 185 Tenn. 572, 206 S.W.2d 795, 1947 Tenn. LEXIS 358 (1947). The issuance or denial of beer permits, either by the county legislature bodies, or committees appointed by such bodies, or municipalities, or investigating boards, shall not be reviewed by a de novo hearing in the circuit or chancery courts of the state. Owings v. Wasson, 188 Tenn. 416, 219 S.W.2d 908, 1949 Tenn. LEXIS 354 (1949). The action of a board or commission in denying an application for a permit to sell beer, pursuant to this chapter may be reviewed only by the common-law writ of certiorari, and not by the statutory writ provided in title 27, ch. 9. Owings v. Wasson, 188 Tenn. 416, 219 S.W.2d 908, 1949 Tenn. LEXIS 354 (1949). 8. Use of Another's Permit. Sale of beer by defendant under a permit issued another person who had formerly operated place did not make defendant's sale of beer legal. McBride v. State, 195 Tenn. 308, 259 S.W.2d 533, 1953 Tenn. LEXIS 341 (1953). 9. Transferability of Permits. A permit to sell beer is not transferable by merger and does not pass to a surviving corporation, and a new permit must be sought in the name of the new entity. Mapco Petroleum, Inc. v. Basden, 774 S.W.2d 598, 1989 Tenn. LEXIS 393 (Tenn. 1989). 10. State's Power to Regulate Establishments Holding a Permit. The state has the power to prohibit certain acts involving exposure of parts of the body and to restrict the area where performers may perform in establishments holding a beer license, under U.S. const., amend. 21, and under New York State Liquor Auth. v. Bellanca, 452 U.S. 714 , 101 S. Ct. 2599 , 69 L. Ed. 2 d 357, 1981 U.S. LEXIS 119 (1981). PP & C, Inc. v. Metropolitan Beer Permit Bd., 833 S.W.2d 90, 1992 Tenn. App. LEXIS 91 (Tenn. Ct. App. 1992). A metropolitan government need only have a rational basis for its decision to prohibit certain acts in establishments selling beer when the same prohibition does not extend to all public places. PP & C, Inc. v. Metropolitan Beer Permit Bd., 833 S.W.2d 90, 1992 Tenn. App. LEXIS 91 (Tenn. Ct. App. 1992).