Beer Bd. for City of Goodlettsville v. Brass A Saloon of Rivergate, Inc.

• Decision Date: 13 January 1986
• Citation: 710 S.W.2d 33
• Parties: The BEER BOARD FOR the CITY OF GOODLETTSVILLE, Appellant, v. The BRASS A SALOON OF RIVERGATE, INC., Appellee.
• Court: Tennessee Supreme Court

Page 33

710 S.W.2d 33

The BEER BOARD FOR the CITY OF GOODLETTSVILLE, Appellant, v. The BRASS A SALOON OF RIVERGATE, INC., Appellee.

Supreme Court of Tennessee at Nashville.

Jan. 13, 1986.

Rehearing Denied May 5, 1986.

Charles A. High, Jr., Grissim and Hodges, Kimberly K. Whaley, Grissim and Hodges, Nashville, for appellant.

William B. Vest, Hendersonville, for appellee.

OPINION

FONES, Justice.

The Beer Board for the City of Goodlettsville has appealed to this Court pursuant to T.C.A. § 57-5-109(f) from a decree of the Chancery Court of Davidson County setting aside and vacating the Beer Board's revocation of the beer license of appellee, Brass A Saloon of Rivergate, Inc.

On November 13, 1984, after a hearing at which the Brass A was represented by counsel, Beer Board unanimously voted to revoke Brass A's on-premises beer license effective November 20, 1984. The charges against Brass A may be summarized as follows:

(1) Failing to derive at least 51% of its business revenue from the sale of food as required by Goodlettsville Municipal Code § 2-206. ¹

(2) Selling beer and alcoholic beverages to minors and permitting minors to loiter or congregate about the premises in violation of T.C.A. § 57-5-301(a), (c), ² Goodlettsville Municipal Code §§ 2-214(5), (8) ³ and 2-216(2), (4). ⁴

(3) Failing to produce a printed menu as required by Goodlettsville Municipal Code § 2-206.

(4) Permitting disorderly conduct on the premises in violation of Goodlettsville Municipal Code § 2-214(1), (3).

On November 16, 1984, Brass A filed a petition for writ of certiorari in the Chancery Court of Davidson County, alleging that Goodlettsville's 51% rule was unconstitutional because it discriminated against a class of permittees who were incapable of compliance because they were unable to sell high-priced food, and because it bore no relation to public health, morals, or safety. The petition further alleged that there had been no evidence before the Beer Board to support its findings as to any of the aforementioned code violations.

The chancellor heard the matter de novo pursuant to T.C.A. § 57-5-109(d), without the intervention of a jury. At the close of the Beer Board's proof and argument the trial court granted Brass A's motion to dismiss on the ground stated in T.R.C.P. 41.02(2), that the Beer Board had shown no right to relief. The trial court found that Brass A had, in fact, failed to meet Goodlettsville's 51% rule, but that Brass A could not be deemed to have violated the rule because it had made food items available to its customers and so "complied with the spirit" of the rule.

Although the chancellor declined to label the 51% rule "unconstitutional," he nonetheless found its application to be "unreasonable" because the record, in his opinion, failed to disclose a relationship between the 51% figure and the health, morals, or safety of the public. The chancellor concluded that the City failed to prove the other charges by a preponderance of the evidence. The chancellor's decree comes to this Court accompanied by a presumption of correctness and the burden is upon appellant Beer Board to demonstrate that the evidence preponderates against the trial court's findings. Hinkle v. Montgomery, 596 S.W.2d 800 (Tenn.1980).

T.C.A. § 57-5-108(a)(1) authorizes all incorporated cities and towns in the State of Tennessee to pass ordinances governing the issuance and revocation of licenses for the storage, sale, manufacture, and distribution of beer to promote public health, morals, and safety. It has been held that the sale of beer in municipalities is subject to their police power and absolute discretion is given the governing body of the municipality to effect its regulation and control. Watkins v. Naifeh, 635 S.W.2d 104 (Tenn.1982); Ketner v. Clabo, 189 Tenn. 260, 225 S.W.2d 54 (1949).

The only limitation upon the exercise of power is that the appropriate board must act in good faith and not in a discriminatory and arbitrary manner. DeCaro v. City of Collierville, 213 Tenn. 254, 373 S.W.2d 466 (1963). Thus, the enabling statute has been given the broadest possible construction by this Court. The Pantry Inc. v. The City of Pigeon Forge, 681 S.W.2d 23 (Tenn.1984). This Court will presume the validity of a municipal ordinance; the party challenging it has the burden of showing that it "is not reasonably related to a protectable interest or that it is oppressive in its application." Rivergate Wine and Liquors v. Goodlettsville, 647 S.W.2d 631, 634 (Tenn.1983).

We find that the trial court erroneously placed the burden of proving the reasonableness and validity of Goodlettsville's 51% rule on the Beer Board. Since Brass A moved to dismiss at the conclusion of the Beer Board's proof and elected to present no evidence itself, it manifestly failed to carry its burden of proof on this issue.

We find no merit in Brass A's contention that testimony elicited on cross examination from Timothy J. Myers, Goodlettsville's City Manager, and James S. Freemon, certified public accountant for Brass A, collectively established the unreasonableness and oppressiveness of the 51% rule. Myers explained that the ordinance requires a license "to have a restaurant operation [in which] the sale of alcoholic beverages more or less complements the operation of food sales, instead of being the primary business." Myers expressed the opinion that such a requirement creates "a more wholesome environment from a family standpoint," and we agree. In City of Memphis Alcohol Commission v. Randall Memorial Free Will Baptist Church Inc., 550 S.W.2d 657 (Tenn.1977) we stated:

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 ... 550 S.W.2d at 660.

Myers went on to note the rationale underlying the ordinance: "[p]eople are required to eat along with their drink, so it obviously allows them to ... be a little bit safer." Brass A points out that the Beer Board introduced no data which demonstrated that the ingestion of food along with the consumption of alcoholic beverages tends to reduce the likelihood of intoxication.

We are of the opinion, however, that such proof was not necessary. "Facts which are universally known may be judicially noticed provided they are of such universal notoriety and so generally understood that they may be regarded as forming a part of the common knowledge of every person." Pemberton v. American Distilled Spirits Co., 664 S.W.2d 690 (Tenn.1984). Brass A has simply not demonstrated "that there is no basis in reason for the ordinance." Rivergate Wine and Liquors v. Goodlettsville, supra., at 634.

Nor do we find anything in Freemon's testimony to persuade us that the 51% rule is oppressive as it is applied to Brass A. Freemon explained that Brass A catered to a nineteen to twenty-six year old, blue-collar clientele, which he characterized as being primarily interested in entertainment. He testified that Brass A offered for sale a variety of inexpensive food items, ranging from nachos and fried specialities, such as cheese fingers and clam strips, to a $4.50 pizza. Freemon opined that Brass A would have to sell $7.00 to $9.00 food items in order to attain the 51% figure, and he speculated further that Brass A could not successfully sell such a line of food, given the type of patrons it attracted.

We observed in Rivergate Wine and Liquors that "[a]n exercise of the police power oftentimes burdens one or a few for the public good." 647 S.W.2d at 635. The ordinance in question does not "purport to treat similar businesses differently." Id. at 636. Thus, it follows that there is no discrimination against Brass A.

It was undisputed that Brass A did not, in any month, derive 51% of its business revenue from the sale of food. Freemon indicated that food sales accounted for only 23.64% to 24.7% of Brass A's revenue during a period including the fiscal year preceding the trial and the first six months of the then-current fiscal year. We find nothing in the ordinance to indicate that a licensee's actual noncompliance with the 51% rule is to be excused either by its efforts to make sufficient food items available for purchase by its customers or by its efforts to promote its food line.

We conclude as well that the evidence preponderates against the trial court's findings as to the charges that Brass A sold beer and alcoholic beverages to minors and permitted minors to loiter about the premises. The trial court found the following facts:

8. On some occasions, minors gain admittance to BRASS A by using false identification documents to show their ages to be the age of 19 years or above.

9. On occasions, minors accompanied persons of legal age (age 19 years or older) to the BRASS A and unbeknown to BRASS A, these minors consumed beer purchased by their legal-aged companions.

10. Goodlettsville policemen, while on patrol, frequently entered the premises of BRASS A to see if there were violations of the City of Goodlettsville's municipal code pertaining to the sale of beer. On occasions, these officers found what they believed to be violations of beer ordinances with respect to the sale of beer to minors or minors being on the premises either in the BRASS A building or in the Rivergate Mall parking lot adjacent to BRASS A.

Based upon the foregoing facts, the trial court made the following conclusion of law:

THE BEER...