The County Beer Board
The county legislative body may, but is not required to, appoint a committee (known as the “beer board”)
to administer the laws relating to the sale of beer in the county. If the county legislative body does not
appoint a beer board, the county legislative body acts as the beer board. The beer board is authorized
to act on behalf of the county in all matters relative to the administration of the beer laws. However, the
county legislative body retains the sole authority to adopt distance rules or to extend hours for the sale
of beer. T.C.A. § 57-5-105. A county beer board has the same discretionary power in the issuance and
revocation of beer permits as the county legislative body which appoints it. Attorney General Opinion
82-325 (6/24/82). Sample resolution establishing a beer board.
The statutes do not establish who will serve on the beer board, how many members the board will have,
a term of office for board members or whether the members of the board will be compensated for their
time. If the county legislative body chooses to establish a county beer board, there should be a resolution
of the county legislative body setting out specific information concerning the appointment procedure,
qualifications of members,
county beer board serves at the will and pleasure of the county legislative body which appointed it; therefore, the county legislative body has the power to discharge the board and replace its members. Attorney General Opinion 82-325 (6/24/82). While there is no prohibition against a member of a county beer board
obtaining or holding a license to sell beer, the Attorney General has opined that it is “undesirable” for a
beer board member to obtain a beer permit as it presents an appearance of impropriety. Attorney General
Opinion 84-209 (6/27/84).
Once appointed, the county beer board may exercise the same discretion as the county legislative body to grant, deny, suspend or revoke permits to sell beer, and to impose civil penalties, within the limits of the authority granted by the statutes (and any distance rules or extended hours of operation which may have been established by resolution of the county legislative body). In discussing the exercise of such discretion, the courts make no distinction between the county legislative body and the county beer board. State ex rel. Simmons v. Latimer, 186 Tenn. 577, 212 S.W.2d 386 (1948). However, the beer board is not authorized to establish distance rules or to extend the hours for the sale of beer; this authority may be exercised only by resolution of the county legislative body. T.C.A. § 57-5-105. The county legislative body is authorized to impose training or certification restrictions or requirements on employees of beer permit holders. Only the county legislative body, and not the beer board, is authorized to impose these requirements. These requirements cannot be applied to any employee who holds a valid server permit issued by the ABC under Title 57, Chapter 3, Part 7 (the Alcohol Server Responsibility and Training Act of 1995). T.C.A. § 57-5-105(j). Once these requirements have been established by resolution of the county legislative body, the beer board has the authority to administer the provisions of the resolution within the limits of the authority granted by the resolution. However, counties have no authority to impose a tax or fee on servers or sellers of beer, for training or for any other purpose, except as expressly provided by state law. Attorney General Opinions U96-009 (2/8/96) and 97-077 (5/21/97). A county beer board has the authority to conduct investigations of beer permit holders. In an unpublished opinion of the Tennessee Court of Appeals, the court found that a beer board was empowered to employ an undercover investigator after the county sheriff had refused to conduct an investigation concerning illegal sales of beer to minors. Jackson v. Franklin County Beer Board, 1993 WL 46524 (Tenn. Ct. App. 1993). Relying on this opinion, the Attorney General also opined that the beer board may hire a private
Tenn. Code Ann. § 57-5-105
Current through the 2018 Regular Session.
57-5-105. Licenses or permits to sell outside of town or city limits — Applications — Temporary permits — Hearings.
(a) The owner of a business desiring to sell, distribute, manufacture, or store beer in any Class A county outside the limits of any incorporated city or town shall file an application for a permit with the county legislative body or a committee appointed by the county legislative body.
(b) In order to receive a permit, an applicant must establish that:
(1) No beer will be sold except at places where such sale will not cause congestion of traffic or interference with schools, churches, or other places of public gathering, or otherwise interfere with public health, safety and morals, the county legislative body having the right to forbid such storage, sale or manufacture at places within two thousand feet (2,000′) of such places of public gatherings in its discretion. Nothing in this subdivision (b)(1) shall apply to places of business that are located in the terminal or main building at public airports serviced by commercial airlines with regularly scheduled flights;
(2) No sale shall be made to minors;
(3) No person, firm, corporation, joint-stock company, syndicate, or association having at least a five percent (5%) ownership interest in the applicant has been convicted of any violation of the laws against possession, sale, manufacture, or transportation of beer or other alcoholic beverages, or the manufacture, delivery, sale or possession with intent to manufacture, deliver or sell any controlled substance or controlled substance analogue, or any crime involving moral turpitude within the past ten (10) years;
(4) No person employed by the applicant in such distribution or sale has been convicted of any violation of the laws against possession, sale, manufacture, or transportation of beer or other alcoholic beverages, or the manufacture, delivery, sale or possession with intent to manufacture, deliver or sell any controlled substance that is listed in Schedules I through V in title 39, chapter 17, part 4, or the manufacture, delivery, sale or possession with intent to manufacture, deliver or sell any controlled substance analogue, or any crime involving moral turpitude within the past ten (10) years; and
(5) No sale shall be made for on-premise consumption unless the application so states.
(c) An applicant shall disclose the following information in the application:
(1) Name of the applicant;
(2) Name of
(3) Location of business by street address or other geographical description to permit an accurate determination of conformity with the requirements of this section;
(4) If beer will be sold at two (2) or more restaurants or other businesses pursuant to the same permit as provided by § 57-5-103(a)(4), a description of all such businesses;
(5) Persons, firms, corporations, joint-stock companies, syndicates, or associations having at least a five percent (5%) ownership interest in the applicant;
(6) Identity and address of a representative to receive annual tax notices and any other communication from the county legislative body or its committee;
(7) That no person, firm, joint-stock company, syndicate, or association having at least a five percent (5%) ownership interest in the applicant nor any person to be employed in the distribution or sale of beer has been convicted of any violation of the laws against possession, sale, manufacture, or transportation of beer or other alcoholic beverages or any crime involving moral turpitude within the past ten (10) years;
(8) Whether or not the applicant is seeking a permit which would allow the sale of beer either for on-premises consumption or for off-premises consumption, or both of the foregoing. If a holder of a beer permit for either off-premises consumption or on-premises consumption desires to change the permit holder’s method of sale, the permit holder shall apply to the county legislative body or committee appointed by such body for a new permit; and
(9) Such other relevant information as may be required by the county legislative body or its committee. An applicant or permit holder shall be required to amend or supplement its application promptly if a change in circumstances affects the responses provided in its application.
(d) Any applicant making a false statement in the application shall forfeit such applicant’s permit and shall not be eligible to receive any permit for a period of ten (10) years.
(e) Any applicant seeking a license or permit under this section and who complies with the conditions and provisions of this section shall have issued to such applicant the necessary license or permit, and in the event the license or permit is refused, the applicant shall be entitled to a hearing on the application for the issuance of a license or permit. The refusal to grant a license or permit, or the refusal to grant a hearing upon a person’s application for a license or permit, may be reviewed by the circuit or chancery court in the manner as authorized under § 57-5-108.
(f) Before any county legislative body or committee appointed by the county legislative body shall issue a license or permit under this section, it may cause to be published in a newspaper of general circulation a notice in which the name of the applicant and the address of the location for such license or permit, whether the application is for the sale of alcoholic beverages for on-premises consumption and the date and time of its meeting at which such application shall be considered. Such meeting shall be a public hearing for the purpose of hearing the statement of any person or such person’s attorney on any application for a license or permit.
(1) Temporary beer licenses or permits not to exceed thirty (30) days’ duration may be issued at the request of the applicant upon the same conditions governing permanent permits. Such a temporary license or permit shall not allow the sale, storage or manufacture of beer on publicly owned property.
(2) Notwithstanding the prohibition concerning beer sales on publicly owned property in this subsection (g), in Class B counties and counties having a population in excess of three hundred thousand (300,000), according to the 2000 federal census or any subsequent federal census a temporary permit authorizing the sale of beer on public property may be issued to a bona fide charitable or nonprofit or political organization as defined in § 57-4-102, subject to the approval of the appropriate governmental authority charged with the management of such publicly owned property and the approval of the county beer board.
(3) Notwithstanding the prohibition concerning beer sales on publicly owned property in this subsection (g), a county authorized to issue a permit under § 57-5-106(c) may issue a temporary permit authorizing the sale of beer on public property.
(h) Where a permit or license has been refused three (3) times, the applicant shall not be allowed to apply again for a permit or license on the same premises until after the expiration of one (1) year from the date of the third refusal and only if the circumstances have substantially changed. Nothing in this subsection (h) shall be construed as prohibiting or in any manner limiting the right of any refusal to be reviewed by the circuit or chancery court in the manner as authorized under § 57-5-108.
(i) Class A counties, by resolution of their county legislative bodies, may forbid the sale of beer within three hundred feet (300′) of a residential dwelling, measured from building to building; provided, that the owner of the residential dwelling appears in person before the county beer board and objects to the issuance of such permit or license. This subsection (i) shall not apply to locations where beer permits or licenses have been issued prior to the date of adoption of such a resolution by the county legislative body, or to an application for a change in the licensee or permittee at such locations.
(j) A county legislative body may impose training or certification restrictions or requirements on employees of a permit holder, but such restrictions or requirements shall not apply to any employee who is possessed of a server permit issued by the alcoholic beverage commission pursuant to chapter 3, part 7 of this title.
(k) When a permit or license has been denied based on the testimony of a person at the hearing which caused the county to deny the permit or license, the beer board or other appropriate governing body shall notify the person who testified if the applicant seeks a permit or license again at the same location within twelve (12) months. The person who testified may submit the person’s remarks in writing to the beer board or
Tenn. Code Ann. § 57-5-108
Current through the 2018 Regular Session.
57-5-108. Revocation or suspension of permits or licenses — Civil penalty — Review of orders — Pilot project concerning local and municipal beer boards.
(a) (1) (A) Permits or licenses issued under this chapter by any county legislative body or any committee or board created by any county legislative body may be revoked or suspended in accordance with this section by the county legislative body, committee or board which issued the permit or license.
(B) Permits or licenses issued under this chapter by any board or commission created by the metropolitan council of any Class B county may be revoked or suspended in accordance with this section by such board or commission.
(C) Permits or licenses issued under this chapter by the governmental body of any incorporated city, or by any committee or board created by such governmental body may be revoked or suspended in accordance with this section by the governmental body, committee or board which issued the permit or license.(2)
(A) A city, Class A county, or Class B county, or any committee, board, or commission created by these governmental bodies, shall not, pursuant to § 57-5-608, revoke or suspend the permit of a responsible vendor for a clerk’s illegal sale of beer to a minor, if the permit or license holder and the clerk making the sale have complied with the requirements of § 57-5-606 as a responsible vendor under this part, but may impose on the responsible vendor a civil penalty not to exceed one thousand dollars ($1,000) for each offense of making or permitting to be made any sales to minors or for any other offense.
(B) The prohibition of subdivision (a)(2)(A) concerning the revocation or suspension of the vendor’s permit shall not apply to any vendor who is not a responsible vendor under this part, or to a participating vendor, if the vendor or clerk making a sale to a minor fails to comply with the requirements of § 57-5-606. With respect to such permit or license holder, the committee, board, or commission may, at the time it imposes a revocation or suspension, offer the permit or license holder the alternative of paying a civil penalty not to exceed two thousand five hundred dollars ($2,500) for each offense of making or permitting to be made any sales to minors, or a civil penalty not to exceed one thousand dollars ($1,000) for any other offense.
(C) Permanent revocation of beer permits may only be applied when the permit holder has at least two (2) violations within a twelve-month period.
(D) Revocation of beer permits applies only to that permit holder, or agents of the permit holder, at that location. Revocation of beer permits shall not stay with the property if the property changes hands, nor may a city, Class A county or Class B county, or any committee, board or commission created by these governmental bodies, apply penalties, suspensions or revocations to other beer permits held by the permittee at other locations.
(E) Revocation of a beer permit at one (1) location should not be the sole disqualifying factor when considering the issuance of beer permits at other locations.
(G) If a civil penalty is offered as an alternative to revocation or suspension, where allowed under subdivision (a)(2)(B), the holder shall have seven (7) days within which to pay the civil penalty before the revocation or suspension shall be imposed. If the civil penalty is paid within that time, the revocation or suspension shall be deemed withdrawn. The holder’s payment of a civil penalty shall not affect the holder’s ability to seek review of the civil penalty pursuant to subsection (d).
(3) A city or county may at any time accept the payment of a civil penalty, not to exceed the amounts set forth in subdivision (a)(2)(B), by a permit or license holder charged with a violation of this chapter, which payment shall be an admission by the holder of the violation so charged and shall be paid to the exclusion of any other penalty that the city or county may impose.
(b) No permit or license shall be revoked on the grounds the operator or any person working for the operator sells beer to a minor over the age of eighteen (18) years if such minor exhibits an identification, false or otherwise, indicating the minor’s age to be twenty-one (21) or over, if the minor’s appearance as to maturity is such that the minor might reasonably be presumed to be of such age and is unknown to such person making the sale. The license or permit may be suspended for a period not to exceed ten (10) days or a civil penalty up to one thousand five hundred dollars ($1,500) may be imposed pursuant to subdivision (a)(3). However, this shall not be construed in any way to relieve the minor from liability for making such illegal purchase as provided in § 57-5-301.
(c) Such revocation, suspension, or imposition of civil penalty may be made for any violation of any provision of this chapter or whenever it shall satisfactorily appear that the premises of any person, firm or corporation holding a permit or license under this chapter are being maintained and operated in such manner as to be detrimental to public health, safety or morals. The board
(d) The action of such agency in connection with the issuance of any order of any kind, including the revocation or suspension of a license or permit, imposition of a civil penalty or the refusal to grant a license or permit under §§ 57-5-105, 57-5-106 and this section, may be reviewed by statutory writ of certiorari, with a trial de novo as a substitute for an appeal, the petition of certiorari to be addressed to the circuit or chancery court of the county in which any such order was issued.
(e) Immediately upon the grant of the writ of certiorari, the agency revoking or suspending a license or permit or imposing a civil penalty shall cause to be made, certified and forwarded to the court a complete transcript of the proceedings in the cause.
(f) This section shall be the sole remedy and exclusive method of review of any action or order that may have been issued by any county legislative body, or any committee appointed by any county legislative body, or from any board or commission authorized under §§ 57-5-105 and 57-5-106, including the refusal or failure to grant any license or permit or the imposition of a civil penalty. The Tennessee Rules of Civil Procedure shall be applicable in connection with such review. Any party dissatisfied with the decree of the court may, upon giving bond as required in other cases, appeal, where the cause shall be heard upon the transcript of the records from the circuit court.
(g) A judge of any court of record shall have the authority to supersede, stay or enjoin any order of an agency revoking, suspending or imposing a civil penalty made under the authority of this chapter for good cause shown on part of the petitioning party thereof. No circuit or chancery judge shall have the authority to grant any such extraordinary writ except the judge of a court of record to which the petition for certiorari is addressed.
(h) If a final judgment is entered by the trial court superseding the revocation or suspension order or order imposing a civil penalty, and the cause is appealed by the agency, the final judgment of the trial court shall remain in force until final appellate disposition of the cause.
(i) In instances involving only wholesale beer permits or licenses, or certificates of registration, the order of the agency suspending, revoking or failing to renew such wholesale beer permits or licenses or certificates of registration or imposing civil penalties shall as a matter of law be stayed or superseded, and the order will not be effective until
(j) The remedy provided by this section shall be the only method of reviewing orders of county legislative bodies, governing bodies or municipal corporations, boards or committees revoking or suspending licenses issued under this chapter or imposing civil penalties.
(k) Where a permit or license is revoked, no new license or permit shall be issued to permit the sale of beer on the same premises until after the expiration of one (1) year from the date the revocation becomes final and effective. The board, in its discretion, may determine that issuance of a license or permit before the expiration of one (1) year from the date of revocation becomes final is appropriate, if the individual applying for such issuance is not the original holder of the license or any family member who could inherit from such individual under the statute of intestate succession.
(l) Powers to suspend, revoke, or impose civil penalties conferred in this section upon county legislative bodies and governmental bodies of incorporated cities and any committees, commissions, or boards created by such bodies and/or governmental bodies are likewise conferred upon the commissioner of revenue as they may relate to certificates of registration and transportation permits issued by the commissioner under this chapter to any licensed brewer, wholesaler or distributor for the failure of any such person to file with the commissioner any report required by this chapter, or for the filing of a false report, or the failure to pay tax due by any such licensee under this chapter and rules and regulations promulgated pursuant thereto, or for the receipt, possession, storage or transportation of beer in violation of this chapter, or any rule and regulation promulgated by the commissioner thereunder, and for no other reason. The remedy provided by this section shall likewise be the only method of reviewing orders of the commissioner revoking or suspending certificates of registration and transportation permits issued under this chapter or imposing civil penalties.
(m) Any county, municipal or metropolitan beer board or committee may, at its discretion, revoke or suspend the permit of or impose a civil penalty pursuant to subdivision (a)(3) on any beer retailer within its jurisdiction who is found to possess beer on which the state beer barrelage tax, imposed by § 57-5-201, and the city and county wholesale beer tax, imposed by § 57-6-103, has not been paid. The burden of proof shall be upon the retail beer permit holder to show that the two (2) taxes on the beer in the permit holder’s possession have been paid by showing that the beer was purchased from a Tennessee beer wholesaler, which fact shall be shown by the retailer providing a bill of sale or invoice for the beer which shall include the name and address of the wholesaler, the name and address of the retailer, the number of containers of each brand of beer purchased by the retailer, and which shall be signed by the retailer.
(n) (1) (A) As a pilot project to terminate July 1, 2014, unless extended by the general assembly, when a local or municipal beer board responsible for controlling the sale of beer or malt beverages within any county included within subsection (p), finds violations, as defined in this chapter, in the sale of beer or malt beverages consumed on-premises of an establishment located within the local or municipal beer board’s jurisdiction that result in the beer board suspending the operation of or revoking the permit of the establishment where the violation occurred, the beer board is authorized to notify the executive director of the alcoholic beverage commission by certified mail, return receipt requested, of the action taken by the beer board. Such notice shall include the record of evidence and the determination made by the beer board in suspending or revoking the permit.(B) Upon receipt of such notice, the executive director of the alcoholic beverage commission shall take the actions required pursuant to § 57-4-202(b) with respect to violations as defined in chapter 4 of this title related to the license for the sale of alcoholic beverages for consumption on the premises at the location where the violation of this chapter occurred.
(2) The suspension or revocation decision of the beer board made pursuant to subdivision (n)(1)(A) is final, and any party aggrieved thereby may appeal the decision of the beer board in accordance with the appeal procedures of this chapter.
(o) (1) As a pilot project to terminate July 1, 2014, unless extended by the general assembly, if, pursuant to § 57-4-202(c), the alcoholic beverage commission sends a certified letter, return receipt requested to the local or municipal beer board responsible for controlling the sale of beer or malt beverages within any county included within subsection (p), providing notice that the commission has suspended or revoked the license of an establishment for a violation of chapter 4 of this title, upon receipt of the certified letter, the beer board shall:
(A) Schedule a hearing for the next regularly scheduled meeting of the beer board to be held at least fourteen (14) days following the date the beer board receives the certified letter to provide an opportunity for the permit holder to appear and show cause why the permit to sell beer on the premises should not be suspended or revoked for violations of this chapter based on actions taken by the alcoholic beverage commission pursuant to § 57-4-202(c); and
(B) Notify the individual or business entity, which is listed as the permit holder at the same location where the alcoholic beverage license had been suspended or revoked, of the date and time of the hearing.
(2) If the beer board finds that a sufficient violation or violations of this chapter have occurred at such location, then the beer board shall suspend or revoke the permit to the same extent and at least for the same period of time as the alcoholic beverage commission has suspended or revoked the license of the establishment pursuant to § 57-4-202(c).
(3) If the permit holder fails to appear or decides to surrender the permit to the beer board in lieu of appearing at the hearing, the permit shall be suspended or revoked by the beer board, and no permit to sell beer or malt beverages on the premises shall be issued by the beer board to any person for the location where the alcoholic beverage commission had suspended or revoked the license pursuant to § 57-4-202(c) for the period of time included in the decision of the alcoholic beverage commission.
(4) The decision of the beer board is final, and any party aggrieved thereby may appeal the decision of the beer board in accordance with this chapter.
(p) The pilot project established by subsections (n) and (o) shall only apply in counties having a population, according to the 2010 federal census or any subsequent federal census, of:
not less than…………………nor more than