|Legal Opinion: |
Text of Document:
August 1, 1995
You asked whether the city could impose new regulations on the sale of beer on existing businesses. Specifically, the city has passed an ordinance prohibiting the sale of beer at drive-in windows. As we discussed, it is my opinion that this is a reasonable regulation and is enforceable against existing permit holders.
Tennessee Code Annotated § 57-5-106(a) regarding the power of cities to pass ordinances governing the issuance and revocation of the sale of beer within their limits provides in part as follows: "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." (emphasis mine). The Tennessee Supreme Court has stated that the only limitation upon this power is that the board must act in good faith and not in a discriminatory manner. Goodlettsville Beer Board v. Brass A Saloon, 710 S.W.2d 33 (Tenn. 1986); See also Barnes v. Dayton, 216 Tenn. 400, 392 S.W.2d 813 (1965); Thompson v. Harriman, 568 S.W.2d 92 (Tenn. 1978); Watkins v. Naifeh, 635 S.W.2d 104 (Tenn. 1982). Also, if as a result of the ordinance, an establishment would be forced to discontinue operation, there is a greater chance that such ordinance would be held to be discriminatory.
The regulation in question has to bear a reasonable relationship to the public health, morals, and safety of the people of the city. See Pantry, Inc. v. City of Pigeon Forge, 681 S.W.2d 13 (Tenn. 1984). Furthermore, the burden is on the party attacking the statute to show that the regulatory measure is not reasonably related to a protectible interest or that it is oppressive in its application. Rivergate Wine and Liquors v. Goodlettsville, 647 S.W.2d 631 (Tenn. 1983). It seems to me that an ordinance prohibiting the sale of beer through a drive-in window would be easily defensible on public safety grounds. It is arguable that it is more difficult to enforce the illegal sale to minors and to determine the sobriety of the person purchasing the beer and it encourages the consumption of beer while operating a motor vehicle.
I was unable to find any cases where this specific issue was addressed. However, the statute provides clear regulatory authority over the sale of beer, and I think it can be inferred from the caselaw that this authority would apply to existing businesses.
Let me know if I can be of any further assistance. Good luck!
MTAS Legal Consultant