Tennessee § 57-5-106 - Licensing powers of cities, towns, and Class B counties.

§ 57-5-106. Licensing powers of cities, towns, and Class B counties.

All incorporated cities, towns and Class B counties in this state are authorized to pass proper ordinances governing the issuance and revocation or suspension of licenses for the storage, sale, manufacture and/or distribution of beer within the corporate limits of the cities and towns and within the general services districts of Class B counties outside the limits of any smaller cities as defined in § 7-1-101 and to provide a board of persons before whom such application shall be made, but the power of such cities, towns and Class B counties to issue licenses shall in no event be greater than the power herein granted to counties, but cities, towns and Class B counties may impose additional restrictions, fixing zones and territories and provide hours of opening and closing and such other rules and regulations as will promote public health, morals and safety as they may by ordinance provide. The ordinance power granted to a municipality by this subsection (a) does not permit a municipality to establish residency requirements for its applicants. The ordinance power granted to a municipality by this section does not permit a municipality to impose training or certification restrictions or requirements on employees of a permittee if those employees possess a server permit issued by the alcoholic beverage commission pursuant to chapter 3, part 7 of this title. Cities, towns and Class B counties may authorize the sale of beer in the rooms of regularly conducted hotels and motels and in regularly incorporated clubs and lodges. Notwithstanding subsection (a), any county that is the owner of property used as a park that is within the corporate boundaries of a municipality within that county has the exclusive authority to issue, revoke, and suspend licenses for the storage, sale, manufacture, and distribution of beer within the boundaries of the park consistent with the county rules governing the issuance, revocation, and suspension of licenses for other locations in the county, except there is no restriction of distance from residences or churches, schools, or other public gathering places. This subsection (c) applies only in counties with a population of not less than one hundred seventy-two thousand three hundred (172,300) nor more than one hundred seventy-two thousand four hundred (172,400), according to the 2010 federal census or any subsequent federal census. Acts 1933, ch. 69, § 10; C. Supp. 1950, § 1191.14; Acts 1965, ch. 321, § 3; T.C.A. (orig. ed), § 57-208; Acts 1981, ch. 377, § 1; 1983, ch. 386, § 6; 1993, ch. 297, § 7; 1993, ch. 451, § 3; T.C.A., § 57-5-108 ; Acts 1995, ch. 396, § 8; 2018, ch. 944, § 1. Compiler's Notes. Former § 57-5-106 , concerning bond requirements for alcoholic beverages warehousemen, dealers and manufacturers, was transferred to § 57-5-110 in 1993. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement. Amendments. The 2018 amendment added (c). Effective Dates. Acts 2018, ch. 944, § 4. May 15, 2018. Cross-References. Prohibited acts, title 57, ch. 5, part 3. Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Intoxicating Liquors, §§ 4, 5, 9. Law Reviews. Administrative Law — 1964 Tennessee Survey (E. Blythe Stason), 18 Vand. L. Rev. 1047. Attorney General Opinions. Constitutionality of Dyersburg City ordinance pertaining to beer, OAG 94-120 (10/10/94). Municipal beer ordinances, OAG 96-020 (2/16/96). Authority of board, committee, or individual members to revoke beer permits, OAG 97-060 (5/1/97). A city controls the traffic of beer within its corporate limits by virtue of its permit-issuing power and the ordinances it passes to delineate and enforce this power; a referendum is not necessary to approve beer sales in an incorporated city and the legislature has not given cities the right to conduct such a referendum, OAG 02-092 (8/28/02). Prohibiting the sale of beer through drive-up windows. OAG 10-113, 2010 Tenn. AG LEXIS 119 (11/18/10). NOTES TO DECISIONS 1. Powers of Municipalities. 2. Beer Boards or Committees. 3. Municipal Ordinances. 4. Partially Invalid Ordinance. 5. Regulations of Beer Board or Committee. 6. Mandatory Nature of Section. 7. Construction with § 57-5-105. 8. Clubs. 1. Powers of Municipalities. This section concedes to municipalities very wide discretionary powers in matters relating to the sale of intoxicating beverages, including zoning and restriction of areas, hours of opening and closing and similar matters. Howard v. Christmas, 180 Tenn. 519, 176 S.W.2d 821, 1944 Tenn. LEXIS 317 (1944). The granting of the privilege of selling intoxicating beverages, including beer, in municipalities by state statutes does not preclude municipalities from enacting all reasonable measures deemed desirable for the protection of the morals of its community, even to the extent of prohibition. Howard v. Christmas, 180 Tenn. 519, 176 S.W.2d 821, 1944 Tenn. LEXIS 317 (1944); Gatlinburg Beer Regulation Committee v. Ogle, 185 Tenn. 482, 206 S.W.2d 891, 1947 Tenn. LEXIS 363 (1947); Ketner v. Clabo, 189 Tenn. 260, 225 S.W.2d 54, 1949 Tenn. LEXIS 423 (1949). In all its pronouncements on this chapter the supreme court has recognized that municipalities have very broad powers in the regulation of the sale of beer. Gatlinburg Beer Regulation Committee v. Ogle, 185 Tenn. 482, 206 S.W.2d 891, 1947 Tenn. LEXIS 363 (1947); McHugh v. Morristown, 186 Tenn. 175, 208 S.W.2d 1021, 1948 Tenn. LEXIS 533 (1948). Municipality is not required to issue a beer permit. Ketner v. Clabo, 189 Tenn. 260, 225 S.W.2d 54, 1949 Tenn. LEXIS 423 (1949). Amendment to § 57-5-105 , giving courts the right to review a municipality's refusal of a permit to sell beer through the statutory writ of certiorari, with trial de novo, does not make it mandatory upon a municipality to grant more permits than the city deems advisable. De Caro v. Collierville, 213 Tenn. 254, 373 S.W.2d 466, 1963 Tenn. LEXIS 485 (1963). Under the authority given a municipality by this section, the appropriate board may prescribe such rules and regulations as they think advisable; and the only limitations on the power given is that the board must exercise such power in good faith, not in a discriminatory and arbitrary manner. De Caro v. Collierville, 213 Tenn. 254, 373 S.W.2d 466, 1963 Tenn. LEXIS 485 (1963); Case v. Carney, 213 Tenn. 597, 376 S.W.2d 492, 1964 Tenn. LEXIS 427 (1964). Under this section regulation and control of sale of beer is made a subject of the police power and absolute discretion is given governing body of municipality to effect such regulation and control. Barnes v. Dayton, 216 Tenn. 400, 392 S.W.2d 813, 1965 Tenn. LEXIS 585 (1965). Municipalities are given absolute discretion in the matter of the regulation and control of beer and thus have the authority to revoke a beer license for sale to minors. Richards v. Lewisburg Alcoholic Beverage Com., 543 S.W.2d 852, 1977 Tenn. LEXIS 520 (Tenn. 1977). The city had the right to prohibit the sale of beer near a school or church. Memphis Alcohol Com. v. Randall Memorial Free Will Baptist Church, Inc., 550 S.W.2d 657, 1977 Tenn. LEXIS 539 (Tenn. 1977). Municipalities were not affected by the 1961 amendment to §§ 57-5-105 and 57-5-109 (now § 57-5-108 ) and thus have the continuing right under this section to regulate the sale of beer to the point of prohibition. Thompson v. Harriman, 568 S.W.2d 92, 1978 Tenn. LEXIS 607 (Tenn. 1978). Terms such as “school” and “public meeting place” that have established definitions by a combination of statute and case law must be given uniform application by the cities and counties of this state in exercising the powers granted them by the legislature to regulate the sale of beer. Murfreesboro v. Davis, 569 S.W.2d 805, 1978 Tenn. LEXIS 629 (Tenn. 1978). The power to specifically provide by statute a method of measurement in enforcing beer permit distance ordinances resides in the legislature, not the cities and counties of this state. Murfreesboro v. Davis, 569 S.W.2d 805, 1978 Tenn. LEXIS 629 (Tenn. 1978). A city does not have more power than a county to issue licenses, but has more power to place restrictions upon the issuance of licenses. Watkins v. Naifeh, 635 S.W.2d 104, 1982 Tenn. LEXIS 416 (Tenn. 1982). This enabling statute has been given the broadest possible construction; nevertheless, the broad grant of power to the city fathers to regulate the sale of beer may not be exercised in a discriminatory or arbitrary manner. Pantry, Inc. v. Pigeon Forge, 681 S.W.2d 23, 1984 Tenn. LEXIS 879 (Tenn. 1984); Fritts v. Wallace, 723 S.W.2d 948, 1987 Tenn. LEXIS 816 (Tenn. 1987). Municipalities have extensive authority to regulate the sale of beer within their boundaries and this includes the authority to limit the number and location of retail outlets, both for on-premises and off-premises consumption. State ex rel. Amvets Post 27 v. Beer Bd. of Jellico, 717 S.W.2d 878, 1986 Tenn. LEXIS 794 (Tenn. 1986). 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). 2. Beer Boards or Committees. A beer regulation committee created by town ordinance has the power and right to make reasonable regulations for those to follow who desire a permit to sell beer. Gatlinburg Beer Regulation Committee v. Ogle, 185 Tenn. 482, 206 S.W.2d 891, 1947 Tenn. LEXIS 363 (1947). In denying a permit to sell beer to a grocery store, based upon the feeling that the morals and general welfare of the city would best be served by limiting the number of permits granted, the municipal beer board did not act arbitrarily and discriminatorily. De Caro v. Collierville, 213 Tenn. 254, 373 S.W.2d 466, 1963 Tenn. LEXIS 485 (1963). 3. Municipal Ordinances. Under this statute a zoning ordinance by the city of Maryville which omitted the location of complainant's business from named streets where beer might be sold was not an unreasonable abridgement of complainant's property rights or an unreasonable discrimination against him but was within the provisions of the statute. Madison v. Maryville, 173 Tenn. 489, 121 S.W.2d 540, 1938 Tenn. LEXIS 32 (1938). Under the statute a municipality could properly pass an ordinance making it unlawful to store, wholesale or retail beer within 2,000 feet of any school, church or lodge building, and persons holding licenses who were thereby affected had no vested or property rights under which they would be entitled to enjoin the enforcement of the ordinance. Cravens v. Storie, 175 Tenn. 285, 133 S.W.2d 609, 1939 Tenn. LEXIS 39 (1939). A city ordinance which prohibited sale of beer was not contrary to the provisions of this chapter regulating beer where city by its charter was authorized to prohibit sale of beer and this chapter authorized municipalities to regulate sale of beer. Grubb v. Morristown, 185 Tenn. 114, 203 S.W.2d 593, 1947 Tenn. LEXIS 310 (1947). City ordinance prohibiting sale of beer was not discriminatory and did not violate any civil right. Grubb v. Morristown, 185 Tenn. 114, 203 S.W.2d 593, 1947 Tenn. LEXIS 310 (1947). A proposed ordinance prohibiting storage and possession of beer was valid under the general police power of the city as it promoted “public health, morals and safety” of the city. McHugh v. Morristown, 186 Tenn. 175, 208 S.W.2d 1021, 1948 Tenn. LEXIS 533 (1948). Town ordinance forbidding sale of beer at any point within 5,000 feet of church or school did not suspend the general law on the ground that less beer would be sold and less revenue earned, since statute authorizing sale of beer is both a revenue and police measure, and, furthermore, ordinance in question was pursuant to general law, as this section authorizes county legislature bodies to forbid sale of beer at any point closer than 2,000 feet to a church or school. Rule v. Etowah, 195 Tenn. 634, 263 S.W.2d 498, 1953 Tenn. LEXIS 388 (1953). Ordinance prohibiting sale of beer without permit, making sale for on-premises consumption illegal, prohibiting issuance of permit where beer board was of opinion that beer business would cause traffic congestion or otherwise be hazardous to public health, morals or welfare, limiting package store permits to two, prohibiting sale within certain area of city and regulating hours of sale was constitutional. Barnes v. Dayton, 216 Tenn. 400, 392 S.W.2d 813, 1965 Tenn. LEXIS 585 (1965). Although this section vested city with broad authority to limit the number of beer permits, that authority could be exercised only through the enactment of proper ordinances so providing, and absent such ordinance the denial of an application for a beer permit was arbitrary and capricious. Brooks v. Garner, 566 S.W.2d 531, 1978 Tenn. LEXIS 554 (Tenn. 1978). Discriminatory enforcement of a beer permit distance ordinance cannot be rectified by post facto amendments. Murfreesboro v. Davis, 569 S.W.2d 805, 1978 Tenn. LEXIS 629 (Tenn. 1978). Once discriminatory enforcement of a distance ordinance is established, such ordinance is completely removed as a valid ground for denial of a beer permit. Murfreesboro v. Davis, 569 S.W.2d 805, 1978 Tenn. LEXIS 629 (Tenn. 1978). Restoration of the validity of a distance ordinance which has been discriminatorily enforced can only be achieved by revocation or other elimination, such as attrition, of the discriminatorily-issued permits and licenses. Murfreesboro v. Davis, 569 S.W.2d 805, 1978 Tenn. LEXIS 629 (Tenn. 1978). 4. Partially Invalid Ordinance. City ordinance cannot prohibit possession of beer but where it was included in ordinance prohibiting sale of beer the possession part would be elided and the ordinance held valid. Helms v. Richardson, 191 Tenn. 280, 231 S.W.2d 1019, 1950 Tenn. LEXIS 553 (1950). 5. Regulations of Beer Board or Committee. A regulation of a beer committee requiring that an application for a permit to retail beer must be accompanied by an agreement for such sale signed by two thirds of the property owners within a radius of 300 feet of the place of the proposed business is a valid regulation. Gatlinburg Beer Regulation Committee v. Ogle, 185 Tenn. 482, 206 S.W.2d 891, 1947 Tenn. LEXIS 363 (1947). Finding of chancellor of “adequacy of the premises” did not constitute a finding that the issuance of a license would not “interfere with the public health, safety and morals.” Case v. Carney, 213 Tenn. 597, 376 S.W.2d 492, 1964 Tenn. LEXIS 427 (1964). Where, upon review of action of city beer permit board under the provisions of § 57-5-109 (now § 57-5-108 ) providing for statutory certiorari, chancellor did not weigh the evidence but merely found that the board did not act “illegally, capriciously or unreasonably” in refusing permit, the case was reversed and remanded for a trial de novo of the issues had upon such proof as the parties might desire to introduce pursuant to the provisions of § 27-9-111 . Case v. Carney, 213 Tenn. 597, 376 S.W.2d 492, 1964 Tenn. LEXIS 427 (1964). 6. Mandatory Nature of Section. Statutes prescribing how delegated police power may be exercised by municipalities are mandatory and exclusive. Brooks v. Garner, 566 S.W.2d 531, 1978 Tenn. LEXIS 554 (Tenn. 1978). 7. Construction with § 57-5-105. This section was not implicitly repealed by the 1961 amendment to § 57-5-105 that provided for judicial review of beer license denials. De Caro v. Collierville, 213 Tenn. 254, 373 S.W.2d 466, 1963 Tenn. LEXIS 485 (1963); Case v. Carney, 213 Tenn. 597, 376 S.W.2d 492, 1964 Tenn. LEXIS 427 (1964). 8. Clubs. A club which has a license for on-premises consumption of alcoholic beverages and beer from the state does not have an absolute right to a beer permit from a city beer board. State ex rel. Amvets Post 27 v. Beer Bd. of Jellico, 717 S.W.2d 878, 1986 Tenn. LEXIS 794 (Tenn. 1986).