Ewin v. Richardson
| Decision Date | 31 January 1966 |
| Citation | 399 S.W.2d 318 |
| Parties | Al Clifford EWIN, Sr., v. A. H. RICHARDSON, Chairman, J. W. Jones, James E. Bates, James P. Celia and T. G. DeFord, constituting the membership of the Davidson County Beer Permit Board. 21 McCanless 534, 217 Tenn. 534, 399 S.W.2d 318 |
| Court | Tennessee Supreme Court |
E. C. Yokley, Nashville, for petitioner.
Robert B. Puryear, III, Nashville, for respondents.
Al Clifford Ewin, Sr. (petitioner) filed his application with the Davidson County Beer Board to sell beer at retail. This Board, after a hearing, denied the permit. Petitioner, under T.C.A. 57-209, removed the cause to the Circuit Court of Davidson County where it was heard, de novo, on the evidence adduced before the Board. Petitioner appeals to this Court from the ruling of the Trial Judge as follows:
* * * the Court is presented with the question of whether or not the issuance of the permit applied for would violate the provision of T.C.A. 57-205 that forbids sales which interfere with public health, safety and morals. The transcript of proceedings before the Beer Board reveals that the Magistrate and several residents of the community appeared before the Board in opposition to the permit. This opposition consisted of expressions of concern regarding the consequences of the sale of beer in this community. They took a firm position as to how beer sales would adversely affect the public health, safety and morals. Conditions that prevail in other such rural communities where beer is sold were related, and logical apprehensions about such conditions in this community were expressed, insofar as they would jeopardize the public health, safety and morals of this community * * * it is this Court's opinion from the facts and circumstances presented before it de novo that the sale of beer in this community by the applicant would 'interfere with public health, safety and morals'. (Trial Judge's memo)
The statute at issue here is Section 57-205, T.C.A., which was amended by Chapter 105 of the Public Acts of 1961. In regard to this section (as amended in 1961) in Cantrell v. DeKalb County Beer Board, 213 Tenn. 568, 376 S.W.2d 480 (1964) this Court said:
An applicant seeking a license or permit to sell beer in a county is required to establish, by proof, his application complies with certain conditions and provisions set out in Section 57-205, T.C.A. This statute now requires, if the conditions and provisions therein be met, a license or permit 'shall' be issued: which leaves the judgment to be made on the issue of whether or not an applicant, under the proof, has met all the said conditions and provisions. 213 Tenn. 572, 376 S.W.2d 482.
Section 57-205, T.C.A. requires several conditions and provisions be met in order that one be entitled to a beer permit. It is not disputed petitioner meets all the conditions and provisions of this statute except the following provision:
Third, that no such beverages will be sold except at places where such sale will not cause congestion of traffic or interference with schools, churches, or other places of public gathering, or otherwise interfere with public health, safety and morals; * * *. T.C.A. 57-205
Four witnesses, all residents of the area where the permit would be located, gave their testimony protesting the granting of this permit. The gist of their testimony is as follows:
The first witness was W. C. Carver. This witness testified we (which it would be reasonable to assume included others in the area) do not need or want beer sold in this area. This witness testified to a recent experience when answering a wrecker call on the Lebannon Road. He was required, in answering this call, to go into a place selling beer about 2:00 A.M. on a Sunday morning where he saw a man, partially drunk, drinking beer while his wife and six year old daughter waited in the car outside. This child came into this place, under these circumstances, at the direction of her mother to ask this man (her father) for some candy. This witness further testified about seeing an intelligent man on television warning the United States in regard to the sale of beer and whiskey.
The second witness was Richard Jenkins a Councilman representing the area where this permit would be located. This witness testified, since his constitutents were opposed to the granting of this permit, he had no alternative but to oppose it.
The third witness was D. T. Wright. This witness testified he was a church member and the Church people were opposed to the permit being granted. He further said there was no need for such a place and if there were such a place people would go to it adding to the troubles of the community.
The fourth witness was a Mr. Johnson, Pastor of the Church of God in the area. This witness testified the sale of beer was not needed or wanted in the community and that its sale would be harmful to the community.
Upon the above testimony the Trial Judge found the granting of this permit would interfere with public health, safety and morals under T.C.A. 57-205.
The decision will turn on whether the evidence, digested above, is sufficient to support the finding of the Trial Judge that the sale of beer, at the location proposed, would 'interfere with public health, safety and morals' as this phrase is used in T.C.A. 57-205.
The petitioner in his brief states his position as follows:
A clear reading of the transcript in this cause, which was the proof before the Circuit Judge below, indicated without a shadow of a doubt that the opposition before the Board was based on fears and apprehensions and a disagreement with the legislative policy of admitting the sale of beer under any circumstances. The protestants so stated. It is respectfully submitted that the learned trial judge erred in adopting the fears and apprehensions of those who testified before the board. He had not one scintalla of evidence of any specific manner in which the sale of beer would be contrary to public health, safety or morals, on which to ground his judgment. The transcript before the Beer Board, which was the testimony do novo before the trial judge, is barren of any proof that would sustain a conclusion that the sale of beer by the applicant would be contrary to the public health, safety or morals of the community involved. (petitioner's brief)
The defendant Beer Board takes the position they, and the trial judge upon proper appeal, have discretion in regard to issuing permits interfering with public health, safety and morals under the Third provision of T.C.A. 57-205. This position is correct but discretion will have to be exercised in good faith, without discrimination, upon evidence...
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Martin v. Beer Bd. for City of Dickson
...rests with the General Assembly. Only the General Assembly may legalize the sale of alcoholic beverages, Ewin v. Richardson, 217 Tenn. 534, 539, 399 S.W.2d 318, 320 (1966); Case v. Carney, 213 Tenn. 597, 604, 376 S.W.2d 492, 495 (1964), and the General Assembly's power is limited only by th......
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411 P'ship v. Knox Cnty.
...body charged with adjudicatory responsibility. Harvey v. Rhea County Beer Board, 563 S.W.2d 790 (Tenn.1978); Ewin v. Richardson, 217 Tenn. 534, 399 S.W.2d 318 (1966).The opponents of the landfill attended the public hearing conducted by the board in substantial numbers and voiced strong and......
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Venture Holdings, LLC v. Metro. Gov't of Nashville & Davidson Cnty.
...S.W.2d 663, 666 (Tenn. Ct. App. 1979) (in turn citing Harvey v. Rhea Cty. Beer Bd. , 563 S.W.2d 790 (Tenn. 1978) ; Ewin v. Richardson , 217 Tenn. 534, 399 S.W.2d 318 (1966) )). Similar to waste transfer station applicants, beer permit applicants must meet a number of conditions. See Harvey ......
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411 P'ship v. Knox Cnty., E2010–02390–COA–R3–CV.
...body charged with adjudicatory responsibility. Harvey v. Rhea County Beer Board, 563 S.W.2d 790 (Tenn.1978); Ewin v. Richardson, 217 Tenn. 534, 399 S.W.2d 318 (1966). The opponents of the landfill attended the public hearing conducted by the board in substantial numbers and voiced strong an......