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Reviewed Date: May 30, 2017
Beer--Licenses and permits
Businesses--Licenses and permits
Beer Permit for a Grocery Store in a Shopping Center
MTAS was asked whether a certain grocery store in a shopping center located in the city is entitled to a beer permit since 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.
Knowledgebase-Beer Permit for a Grocery Store in a Shopping CenterYou 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 of Tennessee.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 application 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 the 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. Sincerely, Sidney D. Hemsley Senior Law ConsultantSDH/