|Legal Opinion: |
Text of Document: MEMORANDUM
FROM: Sid Hemsley, Senior Law Consultant
DATE: December 18, 2001
RE: Pool Room Regulation
In connection with your review of the Municipal Code, one of the things you asked me to do was review Title 9, Chapter 5, entitled Pool Rooms and Amusement Places. I have done so and have the following comments, in addition to the earlier opinion that I gave to you that the permit and fee system for amusement devices was probably illegal, based on certain Tennessee Attorney General’s Opinions.
First, while a number of cities still have pool and billiard parlor regulations, many provisions in them, and perhaps the entire regulations themselves, would not withstand legal scrutiny today. A significant number of cases have upheld various regulations governing such establishments, such as restrictions on places they can operate, hours of operation, and permit and taxing requirements, but those cases are almost without exception old ones. [See 100 A.L.R.3d 252] I am not sure that courts today would uphold many such regulations. Even where such regulations were upheld over 75 years ago, some courts pointed out that billiard parlors and pool rooms were no longer the danger to the public health and welfare of citizens they had been in earlier times. Even the Tennessee Supreme Court in Erwin Billiard Parlor v. Buckner, Sheriff, 300 S.W. 565 (1927) in striking down a 1925 private act, as amended, making illegal the operation of pool rooms in counties within certain population brackets, declared that, “By the provision of these statutes the prosecution of a business by private individual, not harmful in and of itself, and not made unlawful by the general laws of the state, is prohibited [in the affected counties].” [At 566]
That case did not hold that pool rooms were beyond regulation by municipalities. The Tennessee Supreme Court in Craig v. Mayor and Aldermen of Town of Gallatin, Tennessee, 79 S.W.2d 553 (1935), considered the question of whether a city ordinance requiring pool and billiard rooms to close between the hours of 6:00 P.M. and 7:00 A.M. was legal. Holding that it was not, the Court said, “The sole question presented is whether or not the ordinance in question with respect to the hours fixed is reasonable.” [at 553] Declaring that it was not, the Court reasoned that:
It appears from the record that persons in Gallatin are, in the main, at work during the daylight hours, and are without opportunity to play pool or billiards during the daylight hours. Thus the ordinance requirement that pool rooms close at 6 p.m. has the effect of denying to petitioner a patronage that he might otherwise enjoy. No particular conditions in and around Gallatin are shown in the record justifying the closing of pool rooms at 6 p.m. The question is not whether pool rooms should be abolished, or whether their complete extinction would be for the general welfare. The question is whether the state having provided for the licensing of pool rooms, and thereby recognized their legality, the town of Gallatin can, by, ordinance, to a large degree destroy the value of the privilege conferred...[At 553-54]
Likewise, the conviction of a person for permitting a minor to play pool in a pool parlor without written permission of a parent or guardian was upheld in Rhodes v. State, 102 S.W. 899 (1907).
It is also said in 104 L.Ed.2d 1078, Governmental Regulation of Place of Amusement, Entertainment, or Recreation as Violating Rights of Owner or Operator Under Equal Protection Clause of Federal Constitution’s Fourteenth Amendment-Supreme Court Cases [Annotation], that:
The right of a state or a municipality to regulate, control and supervise places of public amusement under the state’s police power has been generally acknowledged. As a rule, the power to regulate places of amusement includes the power to control and supervise them in all matters that are essential to the public place, morals, safety, health and sanitation, convenience, and general welfare. Moreover, certain places of public amusement, because of their tendency to promote idleness, disorder, or immorality, or otherwise to subvert the public welfare, have been regarded by the courts and particularly within the power of the state or its political subdivisions to suppress or prohibit. [At 1080]
The authority of municipalities in Tennessee to regulate pool rooms is based on the police power of the state delegated to municipalities. All police power regulations must be reasonable. That is the same rule stated in Erwin Billiard Parlor, above. However, what was a reasonable regulation in 1935, and in 1907, may not be a reasonable regulation today.
A major factor in whether regulations pertaining to pool halls are reasonable depends upon whether those establishments sell beer. I note that under Title 8, Chapter 2, of your Municipal Code, the city authorizes the sale of beer only in restaurants that presently hold a beer permit. [' 8-212]I assume that pool halls in the city do not qualify as restaurants, although that assumption may not be accurate; 8-213(11) prohibits the pool or billiard playing in the game room where beer is sold and/or consumed. For that reason, in theory, a restaurant could have pool and billiard tables.
Let us look at the reasonableness of each operative section of Title 9, Chapter 5:
A major problem with the entire ordinance is that it is far too broad. It does not regulate only pool and billiard halls, but also amusement places. There is an amusement place within the meaning of that ordinance in virtually every mall in America. Those amusement places cater to children of ages far below 18. It is difficult today to argue that such places present any danger to the health and welfare of citizens, unless, of course, such places are combination pool halls and amusement places.
The sections dealing with permits for amusement devices have probably been adequately covered in the Tennessee Attorney General’s opinions I sent earlier. Those opinions appear to be correctly reasoned.
Section 9-503, contains special requirements for electrical devices. I am not sure those special requirements are reasonable. I think that if such devices and the electrical fixtures that supply them with electricity meet the standards contained in the 1996 National Electrical Code, which apparently is proposed for adoption in Title 12, Chapter 3, of the proposed new municipal code, there is not even a need for this provision.
Section 9-504 provides for a 1,000 ft. separation of pool halls and amusement places, and playgrounds and schools. What I said above with respect to amusement places also applies here. I can find no cases dealing with distance regulations for pool halls, but I doubt that such a regulation, especially 1,000 feet, will fly today, except where such establishments sell beer, and the distance regulations for beer establishments would apply.
Section 9-505 prohibits the emanation of noise from amusement places and pool halls. Why is noise from such places any different than noise from, say, a tire repair shop, or a garage?
Section 9-506 authorizes the chief of police to adopt regulations to enforce the chapter. The courts do not like a delegation of such authority without any standards, and there are no such standards contained in the chapter.
Section 9-518 requires amusement places and pool halls from allowing persons under 18 to play any games during school hours. This might be a reasonable rule under Erwin Billiard Parlor, above, but I am not sure that is true today. Many minors legally drop out of school at younger ages. A state statute used to govern the conditions under which a minor could play pool, and it was that statute at issue in Rhodes v. State, above. However, that statute was repealed in the late 1980s, over 80 years after that case was decided. But the municipal police power to regulate the admission of minors to such establishments probably still exists today, although to what extent is not clear. My best guess is that this regulation would stand. The U.S. Supreme Court in Dallas v. Stanglin, 490 U.S 19 (1989) upheld an ordinance that restricted admission to dance halls of persons between the ages 14 and over and 18 and under, for reasons that well could apply to the admission of minors to amusement places and pool halls during school hours.