|Legal Opinion: |
Text of Document: I have researched your question as to the authority and propriety of a beer board issuing a three-day temporary beer permit for a fair. For the reasons set forth below, I believe such an action is lawful. As we discussed, the legislature has granted both county and municipal beer boards plenary authority to regulate beer sales.
For example, T.C.A. 57-6-103 contemplates isolated sales of beer by wholesalers to consumers not in the ordinary course of business without a retail beer permit. Subsection (a) refers to wholesale sales "to retailers and other persons." Subsection (c ) provides: "For the purpose of this chapter all sales made by wholesalers at their places of business shall be deemed to be wholesale sales and the tax herein imposed shall be collected on all such sales." Subsection (d) refers to "the tax on all other sales [except those made to licensed retailers] made at the wholesaler's place of business."
The above-quoted language contemplates occasional sales by the wholesaler at his place of business to persons other than retailers. It should be emphasized that such sales must be occasional and isolated. Wholesalers are not allowed to obtain licenses as retailers, yet they are permitted to make occasional retail sales. Of course, T.C.A. 57-6-103 is clear that the tax is payable on all sales.
T.C.A. 57-5-104(a) requires retailers as well as manufacturers and wholesalers to obtain a permit from the county and/or city where such business is to be conducted. The qualifications for a county permit and the provisions pertaining to the granting of a temporary beer permit are set out in T.C.A. 57-5-105 . A city may set its own qualifications pursuant to T.C.A. 57-5-108, as long as they are not arbitrary or unreasonable. T.C.A. 57-5-108(a)(1) authorizes cities to pass ordinances governing the issuance and revocation of beer permits, but the power granted to cities can "in no event, be greater than the power granted counties, but cities may impose additional restrictions...and such rules and regulations as will promote public health, morals and safety as they may by ordinance provide."
It is well established in Tennessee that municipalities have extremely broad powers to regulate the sale of beer, even to the point of prohibiting same. Watkins v. Naifeh, 635 S.W.2d 104, 107 (Tenn.1982); Thompson v. City of Harriman, 568 S.W.2d 92, 93 (Tenn.1978); Richards v. Lewisburg Alcoholic Beverage Commission, 543 S.W.2d 852, 853 (Tenn.1976); Barnes v. City of Dayton, 216 Tenn. 400, 408, 392 S.W.2d 813 (1965). The only limitation is that the municipality must act in good faith and not in a discriminatory or arbitrary manner. DeCaro v. City of Collierville, 213 Tenn. 254, 259, 373 S.W.2d 466 (1963). I believe that a three-day permit to allow the sale of beer would not be considered arbitrary or discriminatory so long as the beer board treats all similar applicants for similar permits in the same manner. A reading of the statutes in question seems to contemplate an ordinance allowing the beer board to issue temporary permits in accordance with their own rules and regulations.
In summary there is no state prohibition against the issuance of a three-day permit for the sale of beer. Therefore if the local beer board has by ordinance allowing for such, it would appear to be permissible.