February 23, 2001
Re Beer License and Proximity to Day Care Center
You have asked about an application for a beer license that has been filed (or is about to be filed) for a location that is across a four lane road in a sports complex that is set back from the highway a substantial distance. You’ve related that among several services offered by the complex is a day care center. I assume it is properly licensed. There is authority stating that mere proximity to a day care center is enough to deny a license, while there is also authority that would require a showing of real harm that might come from such proximity
There are two Attorney General’s opinions that conclude that a day care center is a “place of public gathering” and that if a day care center is located within the proscribed distance, the application to sell beer should be denied. A private day care center owned and operated by a church was “a place of public gathering according to Tenn. Op. Atty. Gen. 97-060. The Attorney General cited Wright v. State, 106 S.W.2d 866 (1937)for its discussion of places to whom the prohibition would apply as being “of a like sort to schools and churches.” Id. The General contrasted that conclusion with Adams v. Monroe County Quarterly Court, 379 S.W.2d 796 (Tenn. 1964), which held that a popular baptismal site on a river used by several churches for years, but which was owned by a private person (incidentally the applicant for the beer license),was not “a place of public gathering.” The Supreme Court noted that the applicant-owner could easily bar the churches from using his property as a baptismal site. It also discussed what a “public place” is, using Black’s Law Dictionary:
A place to which the general public has a right to resort, not necessarily a place devoted solely to the uses of the public, but a place which is in point of fact public rather than private, a place visited by many persons and usually accessible to the neighboring public.
This opinion also cautioned against the discriminatory application of distance requirements. If a beer board seeks to use the limitation to deny a permit to one applicant, it is well-advised to be sure there are no other similar establishments (i.e., churches or schools) near any other place which sells beer.
The Attorney General cited Opinion 97-060 in a later opinion, which arose from a situation in Loudon County. There the applicant’s location was less than 300 feet of a privately owned and operated licensed day care center, which was deemed to be “a place of public gathering” with virtually no discussion. Tenn. Op. Atty. Gen. 98-069. This opinion seemed to emphasize the fact that the center was licensed, while there was no mention of a license in the 1997 opinion.
Whether the day care center in the sports complex is licensed could be a factor in the Beer Board’s decision, as would be the amount of time the children actually spend there. It is not clear to me whether or not children attend this day care center for an entire day, as is usual with most day care centers, or just for a hour or two the parents might spend while attending an event in the sports complex. Language in Green v. City of Memphis,1990 WL 66527 hints that the amount of time the children spend at the center might influence whether or not the center would be considered a place of “public gathering” with sufficient policy concerns to justify the denial of a beer license. In that case, there were “ several churches, a library, a boys’ club and several schools in the area” of an permit applicant’s premises. The Court of Appeals stated:
We are not ready to deny a beer permit in every instance where children walk on the public sidewalk in close proximity to a proposed outlet for the sale of beer. We think it apparent that there can be a different impact upon public health, safety, and morals from the sale of beer at a tavern where alcoholic beverages are the principal commodity sold, and the sale of beer at a family-style restaurant , where food is the principal commodity and beer is sold only to complement the food, and the sale of beer at the neighborhood grocery store where small children delight to go. Green, at 3-4.
The Green case also points out the necessity of having factual evidence about any adverse effects sale of beer might have on nearby establishments. An unsupported “expression of fears, speculations and apprehensions” about the sale of beer is “immaterial.” Id., p. 3.
A similar type of analysis is found in Captain v. Knox County Beer Board, 1991 WL 119291. Here, the Court found the Beer Board could not justify its denial of the license where there was no evidence of traffic congestion in the immediate vicinity. A nearby church was allowing the public to use its parking lot as a shortcut to get to a neighboring shopping center. The chancellor had upheld denial of the license on the basis that increased traffic to and from the store selling beer would lead to congestion in the church parking lot and would create “a danger to the children and churchgoers regularly to be found therein.” Id. at 3. The Court of Appeals reversed, saying there was no evidence to support the argument of congestion and danger, and even if there were, the church could control access to its own premises and avoid any “perceived danger.”
The statutes and case law also delve into the manner of how to measure the distance between an applicant’s premises and neighboring schools, churches, or other places of public gathering. Section 8-211 of the Lenoir City Code states that the distance limitation is three hundred feet, and that the distance shall be measured “in a straight line from the nearest point on the property line upon which sits the building from which the beer will be manufactured, stored or sold to the nearest point on the property line of the hospital, school, church, or other place of public gathering.” Your Code, incidentally, cites Watkins v. Naifeh, 625 S.W.2d 104 (Tenn. 1982), which contains an extensive discussion of how distances are to be measured, and upheld the distance requirement in the case. The Watkins Court also noted that it is up to the legislature to determine how the distance is to be measured, even though municipalities are given wide latitude in regulating the sale of beer.
To summarize, I believe the day care center would be considered “a place of public gathering” although there may be arguments that 1)the children don’t spend the entire day at the center, or 2) that the center is not a licensed facility. Please let me know if you have other questions.
Donna M. Leydorf