Martin v. Beer Bd. for City of Dickson

• Decision Date: 26 April 1995
• Citation: 908 S.W.2d 941
• Parties: James M. MARTIN, Plaintiff/Appellee, v. BEER BOARD FOR CITY OF DICKSON, Defendant/Appellant.
• Court: Tennessee Court of Appeals

Page 941

908 S.W.2d 941

James M. MARTIN, Plaintiff/Appellee, v. BEER BOARD FOR CITY OF DICKSON, Defendant/Appellant.

Court of Appeals of Tennessee,

Middle Section, at Nashville.

April 26, 1995.

Published Pursuant to Tenn.Ct.App.R. 11.

Michael J. Flanagan, Nashville, for Plaintiff/Appellee.

Jerry V. Smith, Dickson, for Defendant/Appellant.

OPINION

KOCH, Judge.

This appeal involves the constitutionality of the City of Dickson's ordinance prohibiting the sale of beer on Sunday. A convenience store owner filed a petition for writ of certiorari in the Circuit Court for Dickson County requesting review of the beer board's decision to suspend his permit for sixty days for selling beer to a minor and for selling beer on Sunday. The trial court reduced the suspension to thirty days after finding that the ordinance prohibiting the sale of beer on Sunday violated Tenn. Const. art. I, § 3. The city has appealed. We have determined that the ordinance prohibiting the sale of beer on Sunday does not run afoul of either Tenn. Const. art. I, § 3 or Tenn. Const. art. I, § 8. Accordingly, we reverse the trial court's order and reinstate the sixty-day suspension.

I.

James M. Martin owns the Kwik Stop Market on Highway 70 in Dickson. He possesses a permit to sell beer issued by the Dickson City Council that also functions as the city's beer board. After the Dickson Police Department caught one of Mr. Martin's employees selling beer illegally, Mr. Martin was charged with violating two city ordinances prohibiting the sale of beer on Sunday and prohibiting the sale of beer to minors. ¹ The beer board conducted a hearing in September 1992 and suspended Mr Martin's permit for sixty days--thirty days for selling beer to a minor and an additional thirty days for selling beer on Sunday.

Mr. Martin requested the Circuit Court for Dickson County to review the suspension, alleging, among other things, that the ordinance prohibiting the sale of beer on Sunday "discriminates against religions who do not celebrate the sabbath on Sunday" and that the restriction is "arbitrary and capricious." The trial court conducted a hearing in October 1992. In an order filed in December 1992, the trial court affirmed the thirty-day suspension for selling beer to a minor but reversed the suspension for selling beer on Sunday. The trial court found that Dickson's ordinance prohibiting Sunday beer sales was "purely based on religious reasons" and, therefore, that it violated Tenn. Const. art. I, § 3 because Sunday is "recognized as the Christian Sabbath." The city asserts on this appeal that its ordinance is not the type of religious preference that is prohibited by Tenn. Const. art. I, § 3.

II. REGULATION OF THE SALE OF BEER

Alcoholic beverages have always been considered to be dangerous to the community. State ex rel. Saperstein v. Bass, 177 Tenn. 609, 617, 152 S.W.2d 236, 239 (1941). Because of their potential adverse effect on the community's health, safety, and welfare, the State may invoke its police power to prohibit the sale of alcoholic beverages completely or to license and regulate their sale stringently. Barnes v. City of Dayton, 216 Tenn. 400, 407, 392 S.W.2d 813, 816 (1965); Landman v. Kizer, 195 Tenn. 13, 16, 255 S.W.2d 6, 7 (1953).

The State's power over alcoholic beverages 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 the state and federal constitutions. Fentress County Beer Bd. v. Cravens, 209 Tenn. 679, 687, 356 S.W.2d 260, 263 (1962). If the General Assembly decides to legalize alcoholic beverages, it may delegate its power to control their sale and consumption. Young v. Warren County Beer Bd., 195 Tenn. 211, 215, 258 S.W.2d 763, 765 (1953); McCanless v. Klein, 182 Tenn. 631, 638-39, 188 S.W.2d 745, 748 (1945).

After fourteen years of prohibition brought on by the Eighteenth Amendment to the United States Constitution, the General Assembly legalized the sale of beer in Tennessee even before the ratification of the Twenty-First Amendment. ² It established a dual regulatory plan that left the taxing power to the State and the other regulatory powers to local governments. The local governments exercise their control over the sale of beer through their authority to issue permits to persons desiring to sell beer within their respective jurisdictions.

The local governments have primary control over the sale of beer. State ex rel. Amvets Post 27 v. Beer Bd., 717 S.W.2d 878, 881 (Tenn.1986); Claiborne Country Club, Inc. v. City of Tazewell, 872 S.W.2d 685, 687 (Tenn.Ct.App.1993). Incorporated cities have greater control over the sale beer than counties. While counties are limited to enforcing the restrictions in state law, cities may impose additional restrictions on the sale of beer. Howard v. Willocks, 525 S.W.2d 132, 135 (Tenn.1975). The only limits placed on the cities' regulatory powers are found in the state and federal constitutions, the state statutes, and in the requirement that cities cannot exercise their power in an arbitrary or discriminatory manner. Beer Bd. v. Brass A Saloon of Rivergate, Inc., 710 S.W.2d 33, 35 (Tenn.1986); Pantry, Inc. v. City of Pigeon Forge, 681 S.W.2d 23, 23-24 (Tenn.1984).

Tenn.Code Ann. § 57-5-301(b)(1) (Supp.1994) provides that beer shall not be sold "between twelve (12:00) o'clock midnight on Saturday and eleven fifty-nine o'clock p.m. (11:59 p.m.) on Sunday." However, except for several circumstances not relevant in this case, the cities have the statutory prerogative to alter the hours of opening and closing, Tenn.Code Ann. § 57-5-106(a) (Supp.1994), and may even authorize the sale of beer on Sunday within their respective jurisdictions. Tenn.Code Ann. § 57-5-301(b)(3).

The Dickson City Council has enacted an ordinance governing the hours within which beer may be sold within the city limits. Dickson, Tenn., Mun.Code ch. 2, § 2-213(3) provides that permittees may not sell beer between midnight and 8:00 a.m. on any day of the week, on Sunday, or on election day while the polls are open. It is the portion of this ordinance prohibiting the sale of beer on Sunday that Mr. Martin asserts violates the prohibition against religious preferences in Tenn. Const. art. I, § 3 and the substantive due process provision in Tenn. Const. art. I, § 8.

III. THE CONSTITUTIONAL PROHIBITION AGAINST RELIGIOUS PREFERENCES

We turn first to the trial court's conclusion that Dickson's ordinance prohibiting the sale of beer on Sunday violates Tenn. Const. art. I, § 3 because it "operates to give preference to a specific religion." Prohibitions against drinking on Sunday may once have been entirely religiously motivated. They have now taken on a secular character and are not understood as conveying governmental approval of any particular religious belief. Accordingly, the ordinance does not cause the sort of entanglement between church and state that Tenn. Const. art. I, § 3 is intended to prevent.

A.

Tennessee's constitutions have contained Religion Clauses ever since the earliest days of statehood. Despite their importance, these clauses have received relatively little judicial scrutiny. The Tennessee Supreme Court has noted in the most general terms that Tenn. Const. art. I, § 3 "guarantees freedom of worship and separation of church and state," City of Nashville v. State Bd. of Equalization, 210 Tenn. 587, 612 n. 5, 360 S.W.2d 458, 469 n. 5 (1962), ³ and that the separation between church and state is a constitutional imperative equal to the free exercise mandate. Paty v. McDaniel, 547 S.W.2d 897, 905 (Tenn.1977), rev'd on other grounds, 435 U.S. 618, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978). Even though Tenn. Const. art. I, § 3 is "practically synonymous" with the First Amendment, Carden v. Bland, 199 Tenn. 665, 672, 288 S.W.2d 718, 721 (1956); State v. Loudon, 857 S.W.2d 878, 883 (Tenn.Crim.App.1993), the Court has also observed that it contains a substantially stronger guaranty of religious freedom than its federal counterpart. State ex rel. Swann v. Pack, 527 S.W.2d 99, 107, 111 (Tenn.1975), cert. denied, 424 U.S. 954, 96 S.Ct. 1429, 47 L.Ed.2d 360 (1976); Carden v. Bland, 199 Tenn. at 672, 288 S.W.2d at 721.

State constitutions embody fundamental values and articulate the citizens' common aspirations for constitutional governance and the rule of law. Rather than stating inflexible specific rules of conduct, they contain broad principles capable of accommodating societal changes. Cumberland Capital Corp. v. Patty, 556 S.W.2d 516, 530 (Tenn.1977). Constitutional provisions gather meaning from the experience of the people. National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646, 69 S.Ct. 1173, 1195, 93 L.Ed. 1556 (1949) (Frankfurter, J., dissenting). The courts should expect that modern society will mold and shape constitutional principles into new and useful forms.

The courts are society's chief expositors of constitutional principles. Metropolitan Gov't v. Tennessee State Bd. of Equalization, 817 S.W.2d 953, 955 (Tenn.1991); LaFever v. Ware, 211 Tenn. 393, 400, 365 S.W.2d 44, 47 (1963). Since constitutions derive their power and authority from the people, The Judges' Cases, 102 Tenn. 509, 520, 53 S.W. 134, 136 (1899); Stratton Claimants v. Morris Claimants, 89 Tenn. 497, 512-13, 15 S.W. 87, 90 (1891), our articulation of constitutional principles must capture the intentions of the persons who ratified the constitution. These intentions are reflected in the words of the constitution itself, Hatcher v. Bell, 521 S.W.2d 799, 803 (Tenn.1974); Shelby County v. Hale, 200 Tenn. 503, 510, 292 S.W.2d 745, 748 (1956), rather than our own subjective notions of unexpressed constitutional intent. Luehrman v. Taxing Dist., 70 Tenn. 425, 438 (1879).

The courts must...