|Legal Opinion: Measuring Methods Used in Beer Distance Regulations public.doc|
Text of Document: September 10, 2008
Dear City Recorder,
The city's beer ordinance in question is contained in Title 8, Chapter 2, of the Municipal Code, specifically ' 8-209(6), which provides that:
No permit for the retail sale of beer shall be issued to any person who shall engage in the business of the retail sale of beer at a location within two hundred fifty (250) feet of any school, church, public playground or park.
That ordinance provision obviously does not provide whether the 250 feet is measured from property lines or buildings. For that reason, it likewise does not provide where on the measuring points [nearest places on the property line, nearest places from building to building, etc.] the distance is to be measured. You have the following questions:
1. What are the measuring points from which the beer distance regulation is calculated?
2. From where on the measuring points are the distance regulations calculated?
The answer to Question 1 appears to be: the buildings from which beer is sold. The obvious problem with that conclusion is that under ' 8-209(6) of your beer ordinance, while schools and churches may reflect buildings, public playground and parks may not reflect buildings. For that reason, let me strongly suggest here that the city amend ' 8-209(6) and specify the measuring points, particularly if it desires that those points be property lines not buildings.
The answer to Question 2 appears to be the nearest distances on the measuring points.
The journey to deciding those answers when the beer ordinance does not specify them is not an easy one to make. The best place to begin is Watkins v. Naifeh, 635 S.W.2d 104 (Tenn. 1982). In that case, the city in question had passed an ordinance which required beer establishments be 200 feet from churches and schools, measured from the closest property lines. The trial court held that the distance could not be measured between property lines, that it was required to be measured from building to building. The Tennessee Supreme Court overturned the trial court on that issue.
Watkins successfully argued to the trial court that while under the city's ordinance the 200 foot distance was required to be measured between property lines, the state law required the distance to be measured from building to building. His argument was based on the 1966 case of Ewin v. Richardson, 399 S.W.2d 318 (Tenn.), in which the Tennessee Supreme Court had stuck down a county beer regulation that required its distance regulation to be measured between property lines. Indeed, at that time both Ewin v. Richardson and Watkins v. Naifeh were handed down, Tennessee Code Annotated, ' 57-205 provided two pertinent things:
- Class A counties had the authority to "forbid the sale of beer within three hundred (300) feet of a residential dwelling, measured from building to building...." [What is now Tennessee Code Annotated, ' 57-5-105(f)]
- That with respect to counties,
- ... no such beverages [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 court having the right to forbid such storage, sale or manufacture at places within two thousand (2,000) feet of such places of public gathering in its discretion. [Emphasis is mine.] [What is now Tennessee Code Annotated, ' 57-5-105(a)(3)
Ewin v. Richardson, interpreted that language this way:
It would require a strain of the imagination to conclude that petitioner's restaurant business would or could be conducted anywhere except in the restaurant building. Wherefore, it must be concluded and it is so held that the 'place of sale' is the building in which petitioner's restaurant is conducted and this, according to the application is 'off Central Pike' and not the point where the driveway intersects Central Pike, nor the gate at the far end of the driveway of petitioner's property.... The County Court of Davidson County had adopted a resolution which, insofar as applicable to the case at bar, would require measurement to be made for petitioner's property line rather than the building on this property. This would be in conflict with the above section of T.C.A. 57-205 and in effect is a regulation beyond the provisions of the statute. [At 321] [Citation omitted by me.].
As noted above, the two pertinent provisions of Tennessee Code Annotated, ' 57-205 were subsequently changed, respectively, to Tennessee Code Annotated, ' 57-5-105(f) Tennessee Code Annotated, ' 57-5-105(a)(3), but those two provisions have contained substantially the same language from Watkins v. Naifeh to the present day.
Let me note here that ' 8-209(6) of your beer ordinance applies the distance regulation to any "school, church, public playground or park," which, presumably, would exclude any other kind of place of public gathering.
But the problems with applying Ewin v. Richardson to cites was that it: expressed the measuring points rule for counties, that it held that the measuring point with respect to the place where beer was sold was the building in which beer was sold, and that it said nothing about the measuring point of the school, church other place of public gathering. We will see shortly, that even to the present day, the third problem still exists.
At the time Watkins v. Naifeh was handed down, Tennessee Code Annotated, ' 57-5- 108 authorized cities and Class B counties to pass beer ordinances governing the "storage, sale and manufacture of beer" within their corporate limits, and further provided that
but the power of such cities, towns and Class B counties to issue licenses shall in no event be greater than the power herein granted to counties, but cities and 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 is mine.]
Tennessee Code Annotated, ' 57-5-108 was subsequently changed to ' 57-5-106, but it also remains substantively the same.
Watkins argued that the requirement that measurement be made from building to building contained in Tennessee Code Annotated, 57-5-105(f), which applied to county beer distance regulations, must be read into Tennessee Code Annotated, ' 57-5-108 [now ' 57-5- 106], that beer distance regulations were required by case law to have uniform application, and that the power to set beer distance regulations resides in the Legislature, not cities and counties. The trial court agreed, pointing to Jones v. Sullivan County Beer Board, 292 S.W.2d 185 (1956) and to Serv-U.-Mart, Inc. v. Sullivan County, 527 S.W.2d 121 (Tenn. 1975), which contained language that said so.
The trial court also used a peculiar method of measuring the distance between buildings. In the Tennessee Supreme Court's own words, it measured "from the closest point of Cedar
Grove Baptist Church to the front (not the closest corner of Watkin's store in arriving at a distance of over 200 feet between the buildings..."[At 109]
But the Tennessee Supreme Court rejected both Watkin's argument and the trial court's reading of the law governing the measuring points. It declared that:
The City of Mason has not attempted to circumvent the straight- line method of measurement. It has merely exercised its express statutory power to "fix zone" by stating the distances which shall be required and defining the points to which the straight- line method of measurement shall be applied. The city could easily have used buildings as points and provided for a greater distance than the 200 feet specified in Ordinance No. 102.... [At 109] [Emphasis is mine.]
On the peculiar use of the trial court's measuring points, the Court said:
This decision on the part of the trial court resulted in a arbitrary method of measurement and constituted a departure from the standard, accepted measurement between the closest points in question. By arbitrarily choosing any point on Watkin's store which would result in a distance of over 200 feet, the trial court violated the holding in City of Murfreesboro v. Davis, supra. If a line were drawn 200 feet from the closest corner of the church, it would cut through a large portion of Watkin's building. Even if measurements had to be between buildings rather than between property lines, the closest point on Watkin's building was shown to be less than 200 feet from the church, and he still would not have been entitled to a permit. [At 109]
Watkins v. Naifeh stands for the clear propositions that:
1. The beer distance regulations must be measured in a straight line;
2. A city, under its powers to "fix zones" in which beer can be sold can specify the measuring points that apply to the beer distance regulations;
3. The standard, accepted means of measurement of distance is the closest distance between the measuring points.
It seems clear from both Watkins v. Naifeh and Ewin v. Richardson that where a city has not exercised its right to select "zones" in which beer can be sold by providing measuring points from property line to property line, the measuring points remain the measuring points that apply to counties. The measuring point from the place of the beer sale for counties is the building where beer is sold, but, as pointed out above, it is not entirely clear that the measuring point at the school, church or other place of public gathering is the building. Presumably, however, it is the building; generally, "places" of public gathering reflect buildings with respect to schools and churches. In the case of Tennessee Sports complex, Inc. v. Lenoir City Beer Board, 106 S.W.3d 33 (Tenn. Ct. App. 2003), a sports complex containing a daycare center was found to be a "place of public gathering," which obviously reflected a building. However, as pointed out above, a "building to building" rule may not work very well with respect to some public playgrounds or parks as is provided by ' 8-209(6) of your ordinance. Such places may not have a building, at least one that makes sense with regard to a beer sales distance rule.
Again, the city's ordinance should be amended to reflect the measuring points and the closest distance on the measuring points.
Sidney D. Hemsley
Senior Law Consultant