Cooper v. Alcohol Com'n of City of Memphis

• Decision Date: 25 January 1988
• Citation: 745 S.W.2d 278
• Parties: Steve COOPER, d/b/a Club Tiffany, Plaintiff-Appellee, v. ALCOHOL COMMISSION OF the CITY OF MEMPHIS, Defendant-Appellant. Steve COOPER, d/b/a Cherokee Rose, Inc., Plaintiff-Appellee, v. ALCOHOL COMMISSION OF the CITY OF MEMPHIS, Defendant-Appellant. 745 S.W.2d 278
• Court: Tennessee Supreme Court

Page 278

745 S.W.2d 278

Steve COOPER, d/b/a Club Tiffany, Plaintiff-Appellee, v. ALCOHOL COMMISSION OF the CITY OF MEMPHIS,

Defendant-Appellant.

Steve COOPER, d/b/a Cherokee Rose, Inc., Plaintiff-Appellee, v. ALCOHOL COMMISSION OF the CITY OF MEMPHIS,

Defendant-Appellant.

745 S.W.2d 278

Supreme Court of Tennessee at Jackson.

Jan. 25, 1988.

Rex L. Brasher, Jr., Brown and Brasher, Memphis, for plaintiff-appellee.

Walter L. Evans, Asst. City Atty., Memphis, for defendant-appellant.

OPINION

DROWOTA, Justice.

These two consolidated cases involve the review of a decree of the trial court reversing the decision of the Defendant-Appellant, Alcohol Commission of the City of Memphis (the Commission), for failure of the Commission to timely file its record and transcript of the administrative hearing. The Commission had revoked the beer permits of Plaintiff-Appellee, Steve Cooper, at two locations, the Club Tiffany and the Cherokee Rose, for allowing employees to engage in sexual activity. Cooper filed Petitions for Writ of Certiorari and Supersedeas in these cases and the trial court, without a hearing on the merits, reversed the action of the Commission in revoking the beer permits because the Commission had not complied with the requirements of T.C.A. Sec. 57-5-109.

On January 23, 1986, Cooper was given notice to appear before the Defendant Commission on February 5, 1986, to determine if his beer permits in certain establishments should be suspended or revoked. Although there were five cases before the Commission and the Trial Court, on appeal we have only two, the Club Tiffany and Cherokee Rose. Plaintiff was charged, inter alia, with allowing employees to engage in sexual activity involving physical contact in violation of the Commission rules.

At the hearing before the Commission on February 5, after the presentation of the testimony of certain police officers and the general manager of the Club Tiffany, the Commission voted unanimously to revoke the beer permits of the Club Tiffany and Cherokee Rose. On the same date, February 5, Plaintiff filed in both cases his Petitions for Writ of Certiorari and Supersedeas in the Circuit Court of Shelby County. Writs of Certiorari were issued in each case to the Commission requiring it to certify and transmit the entire record and transcript of the February 5 proceedings. On February 5, Writs of Supersedeas also issued staying the orders of revocation by the Commission, pending a de novo trial and determination of the cases. Thus Plaintiff was allowed to continue operating under his current beer permits.

T.C.A. Sec. 57-5-109 governs review and appeals of orders by beer boards and commissions. The trial court found that the Commission failed to comply with this code section. Subsection (d) states that the action of such agency in connection with the issuance of an order of revocation of a permit is "reviewed by statutory writ of certiorari, with a trial de novo as a substitute for an appeal, said petition of certiorari to be addressed to the circuit or chancery court of the county in which any such order was issued." Subsection (e) states that "[i]mmediately upon the grant of the writ of certiorari, the revoking agency shall cause to be made, certified and forwarded to said court, a complete transcript of the proceedings in said cause."

The Writs of Certiorari were granted February 5, 1986, in these two cases. Complete transcripts of the proceedings were filed June 27, 1986, and answers were filed October 13, 1986. The cases came on to be heard before the trial judge on February 23, 1987, approximately 8 months after the transcripts had been filed with the Circuit Court Clerk.

In fairness to the trial judge, he had before him on February 23, 1987, five cases set for trial. In two of these cases which are not before us, the Writs of Certiorari were issued August 20, 1986, and the transcripts were filed February 17, 1987, only six days before trial. In neither case had an answer been filed. At the February 23, 1987 hearing, counsel for Cooper, in discussing the Playboy Club case, which was one of the two cases described above, made a motion to dismiss or, in the alternative, that the case be continued since the transcript had been filed only six days before trial. Counsel for the Commission stated that he had no objection to continuing that case in order to give counsel a chance to review the transcript. In ruling on Cooper's motion, the trial judge treated all five cases in the same manner and dismissed them for failure to comply with T.C.A. Sec. 57-5-109(e) and (f), even though the transcripts in the Club Tiffany and Cherokee Rose cases had been filed eight months before trial.

As stated earlier, subsection (e) requires the revoking agency to "immediately ... cause to be made, certified and forwarded to said court, a complete transcript of the proceedings in said cause". In the trial court and in this Court the meaning of this subsection has been questioned. Also called into question are which Rules of Procedure apply--the Rules of Civil Procedure or the Rules of Appellate Procedure. The trial judge held that the Rules of Appellate Procedure apply and require that the record and the transcript of the hearing from the administrative board be filed within 45 days from the filing of the case in the Circuit Court, and "although the statute says immediately, the outside limit would be 45 days under the Rules of Appellate Procedure". He thus found noncompliance with the statute in all five cases before him. In making his ruling, he did not address the question of whether Plaintiff had been prejudiced by the late filing of the transcripts, particularly in the Club Tiffany and the Cherokee Rose cases.

Before addressing the meaning of subsection (e), we will discuss the question of which rules of procedure apply in beer board cases appealed to the circuit or chancery courts. Rule 1 of the Rules of Civil Procedure, effective Jan. 1, 1971, states that "these rules shall govern the procedure in the circuit and chancery courts of Tennessee." Rule 1 of the Rules of Appellate Procedure, effective July 1, 1979, states that "these rules shall govern procedure in proceedings before the Supreme Court, Court of Appeals, and Court of Criminal Appeals." Obviously the Rules of Civil Procedure should apply to beer board cases in the circuit or chancery court; however, in 1981, Chapter 449, Sec. 2, of the Tennessee Public Acts, amended T.C.A. Sec. 57-5-109(f) by substituting the following emphasized sentence for the former sentence, which read: "[t]he provisions of Secs. 27-901--27-913 shall be applicable in connection with such review":

"(f) The provisions of this section shall be the sole remedy and exclusive method of review of any action or order that may have been issued by any county legislative body, or any committee appointed by any county legislative body, or from any board or commission authorized under Secs. 57-5-105 and 57-5-108, including the refusal or failure to grant any license or permit. The provisions of the Tennessee Rules of Appellate Procedure shall be applicable in connection with such review. Any party dissatisfied with the decree of the court may, upon giving bond as required in other cases, appeal to the Supreme Court, where the cause shall be heard upon the transcript of the records from the circuit court." T.C.A. Sec. 57-5-109(f) (emphasis added).

Why did the Legislature in 1981 substitute the Rules of Appellate Procedure to control review of beer board cases in the trial courts, for the former procedural statutes governing "Review of Boards and Commissions" found in Secs. 27-901--Secs. 27-914, now Secs. 27-9-101, et seq.? With the adoption of the Rules of Appellate Procedure in July 1979, many acts and parts of acts conflicted with or were inconsistent with the new Appellate Rules; therefore, the Legislature felt it was desirable to pass a general repealer statute to conform these sections of the code to the new appellate rules in order to eliminate possible confusion and ambiguity. We feel it was unnecessary for the Legislature to amend Sec. 57-5-109(f), because the review described in Sec. 109(d), (e) and (f) deal with review in the circuit or chancery courts, not in the appellate courts. The application of rules designed for appellate courts creates problems when one attempts to apply them to trial courts. The Legislature should consider amending subsection (f). Having said this, we must nevertheless agree with Plaintiff's counsel that under the present statute the Rules of Appellate Procedure are applicable to circuit and chancery courts in reviewing beer board cases.

A well established rule of statutory construction is that a specific provision of a statute controls over the general. The specific mandates of Sec. 57-5-109 shall therefore take precedence over the general provisions of the appellate rules. ¹ Section 57-5-109, subsection (d) specifies that the review will be "by statutory writ of certiorari, with a trial de novo as a substitute for an appeal." Rule 13(d), T.R.A.P. discusses the standard of review and burden of proof to be used in appellate courts, "[u]nless otherwise required by statute". In this case we have such a statute, and the meaning of a trial de novo is determined from the terms of the statute in which it is used. Section 109(d) specifically requires review by statutory writ of certiorari, with a trial de novo in beer board reviews.

Since review is by statutory writ of certiorari, with a trial de novo, the parties question the necessity of transcripts of the proceedings. Perhaps the answer can be found in other comparable statutes. The beer board review statute and the statute involving tenured state university faculty members are quite similar. Both provide for de novo review and both require the filing of a transcript of the proceedings. ² In Frye v. Memphis State Univ., supra 671 S.W.2d at 469 and 470, this Court...