|Legal Opinion: |
Text of Document: March 7, 1994
You have the following questions:
1. Is a certain beer permit applicant whose proposed beer establishment is located within 300 feet of a church in entitled to the permit? The answer is probably yes.
The chronological facts you related to me on the telephone are that: Before 1954 a certain beer establishment located within 300 feet of a church; that around 1954 the city by ordinance enacted a 300 foot distance requirement for beer establishments; that in the 1970s a beer permit was issued to a new person for the same establishment. Now the applicant to whom your question applies has asked for a beer permit for an establishment within 300 feet of a church.
Here, let me say that I reviewed the city's beer regulations found in the city's 1982 municipal code. For the most part, it is based on what was contained in the city's beer regulations found in the city's 1959 municipal code. The 300 foot distance regulation is reflected in Section 2-205 of the municipal code.
In my opinion that distance regulation is invalid. Had the city denied a permit in the 1970s to the establishment that located within 300 feet of the church before the city enacted its distance regulation in 1954, it could deny the applicant in question a beer permit. However, because the city issued the beer permit in violation of its own distance regulation, the regulation is invalid as a ground to deny the applicant in question a permit. Discriminatory enforcement of a distance regulation renders invalid the regulation unless and until it is revived by revocation or attrition of the discriminatorily issued permit. [See City of Murfreesboro v. Davis, 569 S.W.2d 805 (Tenn. 1978), Serv-U-Mart, Inc. v. Sullivan County, 527 S.W.2d 121 (Tenn. 1975), Reagor v. Dyer County, 651 S.W.2d 700 (Tenn. 1983).]
Unfortunately, reviving the city's beer distance regulations through revocation or attrition of discriminatorily issued permits is more difficult than it was when the above cases were decided. Those cases were decided before 1993 when the Tennessee General Assembly passed a law codified at Tennessee Code Annotated, section 57-5-109 that says:
A city or county shall not suspend, revoke or deny a permit to a business engaged in selling, distributing or manufacturing beer on the basis of the proximity of the business to a school, church, other place of public gathering if a valid permit had been issued to any business on that same location as of January 1, 1993. This section shall not apply if beer is not sold, distributed or manufactured at that location during any continuous six-month period after January 1, 1993. [Emphasis is mine.]
The city could argue that the permit issued in the 1970s for the establishment located before 1954 within 300 feet of a church was not a "valid" permit because it was in violation of the city's own distance regulation. However, I have no doubt the courts would not interpret the term "valid permit" in that manner. They would find that because the city itself issued the permit it is a valid permit within the meaning of Tennessee Code Annotated, section 57-5-109.
Under Tennessee Code Annotated, section 57-5-109, for all practical purposes the city's 300 foot distance regulation is probably never going to be revived as long as one or more establishment continually operate within 300 feet of a church. If the city wants a distance regulation it might consider passing one of, say, 250 feet.
2. Is it the city's responsibility to insure that a contractor has workers' compensation prior to issuing a building permit?
Technically, no; that responsibility is on the public official who issues building permits. However, from a practical standpoint, the responsibility obviously also falls on the city.
Tennessee Code Annotated, section 13-7-211 (enacted in 1993 and effective January 1, 1994) requires public officials who issue building permits to make sure contractors have a certificate of compliance from the Dept. of Labor or other evidence of workers' compensation coverage, before issuing a permit. Among the forms of evidence of workers' compensation coverage is a certificate of insurance, a workers' compensation policy, or a number from a certificate of compliance. It is a class C misdemeanor to violate that statute. In addition, the public official may also be subject to civil action for failure to comply with that statute.
Needless to say, the city has an investment in making sure that all of its officials comply with the law in every area.
I am enclosing a copy of Tennessee Code Annotated, section 13-7-211 for your use.
3. What remedies does a city have for damage to its streets caused by trucks? In particular, can cities recover damages to streets from truck owners and operators?
I know of no statutory or case law authority that permits a city to recover damages to its streets from the owners or operators of trucks or other vehicles. The truth is, all motor vehicle traffic ultimately damages streets sooner or later. However, municipalities have broad authority to regulate vehicle weights, sizes and routes to protect its streets from damage. Such weight and route limitations generally cannot unduly burden interstate commerce, and cannot make it impossible for trucks and other vehicles to make deliveries and pick-ups from businesses and industries within a municipality. Generally, most municipal weight, size and route limitations prohibit motor vehicles over a certain weight and size from using residential and perhaps other streets and/or restrict them to certain routes through the city.
A particular vehicle weight problem that virtually all cities have from time to time relates to construction vehicles. Generally, municipalities can also regulate the weight, size and route of such vehicles but cannot make it impossible or extremely inconvenient for such vehicles to reach construction sites.
Let me know if I can help you further in any of the above areas.
Sidney D. Hemsley
Senior Law Consultant