|Legal Opinion: |
Text of Document: You have the following question: Is a certain grocery store in a shopping center located in the city
entitled to a beer permit. The boundary line of the city divides the shopping center and a large piece
of county property upon which is located the county jail and a public soccer complex. The grocery
store has applied for a Class B (off site) permit as defined by Section 8-209 of the city's beer ordinance.
In my opinion the answer is yes, but the answer is a close one that could
easily go the other way.
The pertinent part of the city's beer ordinance reads as follows:
8-212. Class B and Class C Permits prohibited within certain areas.
(1) No class B or Class C permits shall be issued to an applicant whose location
(a) Is upon property having a common boundary line with the property upon which a church,
school, public park, or public playground is located.
(b) Is upon property any portion of which is perpendicularly across any street from property
upon which a church, school, public park or public playground is located.
(2) No class B. permits hall be issued to an applicant whose location is within five hundred
(500) feet from any church, school, public park or public playground...
The facts behind your question raise three sub-questions, which
are addressed below.
Because the Soccer Complex is in the County, Does the City's Beer Ordinance
Apply to It?
The answer is yes.
A similar question arose with respect to distance regulations
applied to a church in North Carolina by the Johnson County, Tennessee Beer Board in
Y & M v. Beer Commission or Board of Johnson County, 679 S.W.2d 446 (1984). In that case
Johnson County, Tennessee, adopted an ordinance prohibiting beer establishments within
2,000 feet of a church. The beer permit applicant's establishment was located within 2,000 feet
of a church located in North Carolina, and he was denied a permit. The Tennessee Supreme
Court upheld the denial of the permit on both statutory and policy grounds. With respect to the
former, nothing in the statute establishing distance requirements in counties suggested that the
distance regulations were not to apply outside the state. With respect to the latter, the Court said:
Moreover, we are satisfied the same policy considerations which motivated the legislature to
prohibit the location of an outlet for the sale of beer within 2,000 feet of a church located in
Tennessee applies equally with respect to a church within that distance located outside the state
Y & M seems clearly to bring the soccer complex within the
range of the city's beer ordinance even though it is located in the county.
Do the Grocery Store and the Soccer Complex Share a Common Boundary?
The answer is yes.
The two maps you faxed to me indicate that the only thing that
separates the grocery store and the soccer complex is a road, which serves as an entrance to the
soccer complex, jail and ambulance service, and is denominated "Public Safety Lane." The road
appears to be an integral part of the entire piece of property upon which the soccer complex
sits; it doesn't constitute intervening property that would remove the grocery store from the a
pplication of Section 8-212 of the city's beer ordinance.
Does the Soccer Complex Qualify as a "Public Park" or "Public Playground"
Within the Meaning of the Beer Ordinance?
The answer is no. However, it is here that the answer is a close one.
The terms "public park" and "public playground" have been
defined in numerous cases in the United States. [See Words and Phrases, p. 425 and 428.]
It is difficult to determine which of those definitions the Tennessee Courts would apply to
the question of whether the soccer complex is a public park or playground within the
meaning of the city's beer ordinance. However, the Tennessee courts have defined the term
"public park" in two other contexts.
Does it Qualify as a "Park"?
In Williams v. Town of Morristown, 222 S.W.2d 607 (1949),
a child, and an aunt trying to save the child, drowned in the City of Morristown's water reservoir.
The reservoir grounds had been used for years a popular picnic area. The city argued that the
reservoir was a public park; under Tennessee's governmental tort liability system at the time
the Court's acceptance of the city's argument would have relived it from liability for the drowning.
In holding that the reservoir was not a public park, the Court, citing a New York case and legal
encyclopedias and treatises, said that:
A park is a pleasure ground set apart for recreation of the public, to promote its health and
enjoyment. Williams v. Gallatin, 229 N.Y. 248, 138 N.E. 121, 122, 18 A.L.R. 1238.
A park is defined in 39 Am.Jur. 803, Parks, Squares, and Playgrounds, Section 2:
The term 'park,' as now commonly understood in this country, means a piece of ground
acquired by a city, town, or other public authority, for ornament, and as a place for the resort
of the public for recreation and amusement.
The same Am.Jur. definition of "park" is found today in 59 Am.Jur.2d,
Parks, Squares, and Playgrounds, section 1, but another sentence follows that may or may not
have been in the earlier Am.Jur. definition: "It is usually laid out in walks, drives and recreation
grounds, as to afford pleasure to the eye as well as opportunity for open-air recreation."
In addition, 10A Mc Quillen, Municipal Corporations, section 30.05 says:
A park may be described as a piece of ground in a city kept for ornament and recreation or as a
tract of land set apart and maintained for public use and designed and landscaped so as to provide
for pleasant scenery as well as an opportunity for open air recreation.
Those definitions seems to require that in order to qualify as a park
the purpose of the property must be both to appeal to the eye and serve recreational purposes.
But what of the common practice of calling a baseball field a "ball park." Under that practice it
is probably as logical to call a soccer complex a "ball park." However, it is probably stretching the
above legal definitions of "park" to denominate either a ballfield or soccer complex a "park."
Standing alone, they generally do not serve both an ornamental as well as a recreational purpose.
They may be in or a part of a park, but their bare existence may not qualify them as a park; otherwise,
every football, baseball and soccer field and every tennis court, etc. anywhere would be a park.
Many such fields and courts are on the same grounds as a recreation center of some kind, but even
those facilities are not generally understood to be "parks."
Apparently, neither the soccer complex nor the piece of property
upon which it sits was acquired by the county for "ornament," including as it does the jail and
ambulance service. While such facilities themselves can be attractive, and are often found
in governmental centers denominated as "parks," it would probably be stretching the meaning
of that term to call a piece of property upon which such facilities sit a park within the meaning
of the city's beer ordinance.
Johnson City v. J.E. Cloninger, 372 S.W.2d 281 (1963) confuses
the issue over what can be a park. There the question was whether the city could condemn
property for a golf course under its power of eminent domain for a "public park purposes."
In response to the plaintiff's argument that a golf course was not included within those purposes,
the Court reviewed the city's power to condemn property for parks, playgrounds and recreational
purposes, and decided that:
The terms of T.C.A. 11-902 clearly encompass a municipal golf course, as acquired for
"said recreational purposes." Even if the terms of this section were not clear, it would be
unreasonable to exclude a municipal golf course as a part of a park from the general term
"park purposes." The word "park" is defined in Webster's Third New International Dictionary,
unabridged, as 'a tract of land maintained by a city or town as a place of beauty or of public
recreation.' A park is a pleasure ground for the recreation of the public to promote its health
and enjoyment. Booth v. City of Minneapolis 163 Minn. 223, 203 N.W.625, 626; Williams
v. Gallatin, 229 N.Y. 248, 128 N.E. 121, 122 [18 A.L.R. 1238]." Black, Law Dictionary
(4th Ed. 1957).
The word 'park' is certainly broad enough, in the every day sense of the word to include a golf
course as well as a swimming pool, croquet court, baseball diamond, band shall, zoo and a host
of other recreational facilities to which the public normally turn for relaxation and recreation.
[Emphasis is mine.]
If the term "park" is broad enough to include those purposes,
why not a soccer complex? In addition, Cloninger suggests a park can be "a place of
beauty or public recreation." Under that definition ornamental and recreational purposes do not
have to be married.
The problem with the Cloninger definition of "park" is that it was
applied in the eminent domain context. Moreover, the golf course was apparently to be an
addition to an already existing golf course, which itself was a part of a municipal park that
included other recreational facilities. The courts might not use such a broad definition in the
beer control context. I have a difficult time believing that the courts would hold that
every recreational facility contemplated by Cloninger, standing by itself, is a park within the
meaning of Section 8-212 of the city's beer ordinance.
Does it Qualify as a "Playground"?
There is a possibility the soccer complex qualifies as a "playground"
within the meaning of Section 8-212 of the city's beer ordinance, but even that qualification is too
questionable to deny the applicant a beer permit.
As far as I can determine, the term "playground" has not been
defined in Tennessee law. However, it was defined in two very recent Pennsylvania cases
in the alcohol establishment distance regulations context, involving facts similar to those
behind your question. In Pennsylvania Liquor Control Board v. Roscoe, 431 A.2d 1119
(Pa. Cmwlth), the Court overturned the denial by the state liquor control board of the
plaintiff's application for a license. The Pennsylvania Liquor Control Act prohibited
a liquor establishment within 300 feet of a "public playground." The Act did not define
the term "public playground," and the Liquor Control Board denied the applicant's license on
the ground that his establishment was within 300 feet of both a park and a ballfield.
The Court turned to Webster's Third International Dictionary for t
he definition of both "playground," and "park" which it said were:
1: 'A piece of ground used for and usu. having special facilities for recreation esp. for children.'
[The Court's emphasis.] The pertinent definition of 'park' from the same source is '2: a tract
of land maintained by a city or town as a place of beauty or of public recreation.'
Then the Court turned to the actual use of both the park and the
ballfield. The park was directly across the street from a busy boulevard from the applicant's
premises. It was used by the community for outdoor gatherings, including weddings and
picnics, at which alcohol was often served. [My emphasis.] There was an ordinance against
liquor in the park, but the city selectively enforced it. The ballfield was nearby, and it was
mostly used by adult and high school teams and was surrounded by a eight-foot fence.
The term "park" and "playground" were different, said the Court:
While parks and playgrounds fall under the common heading of recreational areas and facilities,
they are readily distinguishable in that parks are designed for the public generally, playgrounds
are designed for minor children exclusively.
Finally, concluded the Court, the word "park" was a more
comprehensive word than "playground." A park could contain one or more playgrounds or
ballfields, but the reverse could not so readily be said, declared the Court.
The same Court continued the distinction between "park" and
"playground" in K & K Enterprises v. Pennsylvania Liquor Control Board, 602 A.2d 476 (1992).
Citing Roscoe, the Court, held, among other things, that a park located within 300 feet of a
proposed liquor store was not a playground within the meaning of the Pennsylvania statute
prohibiting liquor stores within 300 feet of public playgrounds. Black Oak Park in this case was
not a playground because there was testimony that it was:
... an open space which contains trees and benches and walkways and a structure with a bathroom
and storage area...There were no swings in that park and that ballplaying was not permitted. Thus,
the park does not contain separate recreational facilities for children.
Because Black Oak Park lacks separate recreational facilities for children, Black Oak Park is
not a "public playground" as defined by the Roscoe case.
Under Roscoe and K & K Enterprises, a piece of property has to
contain separate recreational facilities designed exclusively for children to qualify as a
playground. My own lengthy experience with soccer indicates that in America it is primarily a
sport of young children. It is played by some older children and adults, but generally it
surrenders to football, baseball and other sports by the time children reach high school.
If that assessment is correct, the city has an argument that the soccer complex is a separate
ecreational facility designed exclusively for children, therefore is a playground. However,
it is probably difficult to argue that most soccer complexes containing full-size soccer fields
were designed exclusively for children. Generally, such complexes are designed for, and used
by, by both children and adults. [AYSO soccer uses full size adult fields even for young
children; AYS uses short fields designed specifically for children.] If the Tennessee courts
adopted the very narrow definition of playground used by the Pennsylvania courts,
the soccer complex probably would not qualify as a playground.
I am not sure the Tennessee courts would go that far, but because
the question is such a close one I advise the city to issue the permit.
Sidney D. Hemsley
Senior Law Consultant