# FILED
December 2, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON
JERI ST. JOHN d/b/a JERI ’S, ) ) Plaintiff/Appellant, ) Henry Chan cery No. 17636 ) VS. ) Appeal No . 02A01-9804-CH- 00095 ) BEER PERMIT BOARD, a division ) of Henry Cou nty, Tennessee, ) ) Defendant/Appellee. ) APPEAL FROM

THE CHANCE RY COURT O F HENRY COUNTY AT PARIS, TENNESSEE THE HONORABLE WALTON WEST, CHANCELLOR

A. RUSSELL L

ARSON Jackson, Tennessee Attorney for Appellant
LEE M. GREER, III GREER & GREER, ATTORNEYS Paris, Tennessee Attorney for Appellee

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: W. FRANK CR

AWFORD, P.J., W.S . HOLLY KIRBY LI LLARD, J. Plainti ff, Jeri St. John (“St. John ” or “Appellant”) appeals the trial court’s judg ment2

in favor of Defendant, Beer Permit Board (“Beer Board” or “Appellee”) denying

St. John a beer permit for her business “ Jeri’s” n/k/a “The Fox

y Lady.”

I. Factual and Procedur al History

St. John operates a business in Paris, Henry County , Tennessee, on Highway 79. In the course of operating her bu siness, St. John filed a req uest with the Henry C ounty Beer Permit Board for a permit to se ll beer on the premises. A hearing w as held on June 5, 1997, at which time a decision was delayed so that additional information could be gathered about the precise location of the proposed est ablishm ent, its proximity to surrounding residences and the traffic situation. On July 1, 1 997, another hearingwas held and the permit was denied. A trial was then held i n Chancery Court.
By stipulation both parties ag reed that the “300 foot rule” authoriz ed by Tenn. Code Ann. §57-5-10 5(g) had been adopted by the Henry County legislative body

in 1976. The “300 foot rule” forbids

the sale of beer

within 300 feet of a residenti al dwelling, prov ided the owner of the residential dwel ling appears in person before the County Beer Board and objects to the issuance of such permit or license. The parties

stipulated further that Mr. and Mrs. G arrigus owned property adjacent to the proposed location, which included a main dwelling house and sev eral trailers, one

of which was on the front po rtion of the property located within 30 0 feet of th e proposed bui lding.
Mrs. Garrigus appear

ed and testified at

the hearing before the Beer Permit Board and at trial, opposing the i ssuance of a beer permit to appellant. Mrs. Garri gus stated that she stayed overnight i n that mobile home sometimes two o r three nights a week during part of the year (six or eigh t months a year) because it was not air conditioned like the main dwelling and it was better for her knees. The property had also been used as a residence byher children, and a friend of her daughter

and other house guests spent the night there on occasion. They also made use of the trailer to entertain com pany by playing cards, etc. Mrs. Garrigus characteri zed the trailer as her “extra bedro om.” The trailer was furni shed3

with a stove, kitchen cabinets , b ed, rocking chair, couch, a couple of tables and a chair. The trailer’s only source of electricity is by an extension cord from the main house and this is done to avoid the expense of a separate meter.

The Appellant ope ned her nigh tclub pr ior to trial. Mrs. Garrigus testified that this caused some traffic problems as the driv eway to her property is cl ose to the driveway of appellant’s property and patrons of the ni ghtclub would pull i nto the Garrigus driv eway by mistake. Chief Deputy Mike Jenki ns testified that there had nev er been a commercial establishment

at that loca

tion before. H e testified a s to some

visibility pr

oblems where the driveway join ed the hi ghway, but that as one moves down the driveway near the edge of the highway there is

not a visibility

problem. He testified he did not see the ingress and egress situation as being a problem sufficient to h ave notified the state highw ay department, although that is not part of a deputy’s routine j ob.

JackHays, a resident of the area with 40 years experience in the highway business testi fied as to plans for construction or change in the highway. A hearsay obje ction wa s sustained. Upon offer of proof he indicated the plans wer e for a four-lane highway divided bya median. He indicated that after t hose changes, negotiating a left turn into the establishment

would involve c rossing over 72 feet of oncoming traffic. Outside the offer of proof, he indicated that his examination of Department of Transpor tation records showed the current 24 hour traffic count at the location in questio n was “7,000 plus.”

After the trial concluded, the chancell or issued a Memorandum o pinion which denied the permit based on the “300 foot rule” and because the proposed site w ould constitute a traffic hazard. This appeal by St. John followed.

II. “Residential Dwelling”

Tennessee Code Annotated §57-5-105 addresses the issuance of beer permitsand4

the process by which such permitsmay be obtained. Section (g) of this statute specifically addresses what is know n as the “300 foot rule.” §57-5-105(g) Class “A” counties, by resolution of their county legislati ve bodies , may forbid the sale of beer w ithin three hundre d feet (300') of a residential dw elling, measured from building to building, provi ded the owner of th e re sidential dwelling appears in person before the county beer board and objects to the issuance of such pe rmit or license . . .
The parties stipulated that this provision had been adopted by the He nry County legislati ve body in 1976. The parties further stipulated that such an objection was properly lodged by Frances Gar rigus and tha t the Garrigus trailer is within 300 feet of St. John’s building. The conflict here t urns on whether the trailer constitutes

a “residential dwel ling” for the purposes of the statute.

The term “resi dential dwell ing” is not defined in the s tatute. In the trial court, the chancellor

opined that if a structure is used or is inte nded t o be used or has the present viable capability of being used as a place o f abode, it would constitute a r esidential dwelling. The chanc

ellor fu rther r

elied on the case

of State v. Berry , 59 8 S.W.2d 828 (Tenn. Cr. App. 1980) which s tated that “there i s no requirement in the law that a house be continually occupied in order to be a dwelling. It is sufficient that it is occasionally occupied for residential pur poses.” The Berry

case goes on to state that w here a person establishesone or mor e homes as a dwelling house, e ach retains the character o f an inhabited dwelling house so long as he intends each to be a pl ace of hab itation for himself, even though he is absent from i t for a period of time. Berry at 830.

It is the policy of the courts, generally, to gi ve to statutory prov

isions regulating the sale of intoxicating liquors a construction liberall y in favor of the regula

tions and the places or institutions which they are designed to pro tect and strictly ag ainst the applicants for beer or liquor licenses or

permits. Y & M v. The Be er Commis sion or Bo ard of Jo hnson Co unty, Tennessee , 679 S.W.2d 446, 447(T enn. 1984). It has been recognized that the needs and d esi res of those in the locality particularly affected by an establishment tha t sells intoxicatingbeverages are important and that the ex istence of such an establishment in5

close proximity to

the property of

others may

adversely a ffect t he value o f their p roperty. Davis v. Blount County Beer Board , 621 S.W.2d 149, 152 (Tenn. 1981).

There was evidence in this case that Mrs. Garrigus has occupied and continues to occupy the trailer on sever

al nightsa week during

the warm months because of her arthritic knees. There was t

estimony th at her chil dren had liv ed in the home

on a periodic basis in the past. The trailer was used as a place to socialize with guests and there w as testimony that guests occasionally spent the night in the trailer.

The Garrigus family uses this trailer for res idential p urposes. The statute was enacted to protect such persons from the effects of an establishment that sells intoxicating beverages in close proximity to their dwelling. Under a liberal construction of the statute, a trailer located wi

thin the curtilage of the main home, which is from time to ti me used as a primary and continuous dwelling, and which is otherwise used intermittently by the family or some part of it as an extension o f the main dwelli ng (i.e. for the p urpose of slee ping, entertaining, and acco mmodating overnight visitors), is clearly a “residential dwelling” withi n the meaning of the statute.

In cases involving

beer permits, ther

e exists on appeal a presumpt ion of the correctness of the findings of the trial judge. Those findings will not be disturbed on appeal unless the evidence preponderates against them. Claiborne County Beer Board v. Poore , 55 6 S.W.2d 87, 88 (Tenn. 1977). For the foregoing r easons, this Court holds that th e evidence does not preponderate against the chancellor’s finding that the Garrig us trailer constituted a residential d welling under Tenn. Code Ann. §57-5-105(g).

III. Traffic Hazard

Tennessee Code Annotated §57-5-105(b)(1) states that “no beer

will be sold exc

ept at places where such sale will not cause cong estion of traffic . . . or otherwise inter fere with public health, safety and morals.” At trial, the Chief Deputy for the Henry County Sheriff’s6

Departmenttestified that visibil ity for egress fromSt. John’s business onto a s tate highway was impaired by

an existing “dir

t bank.” Various photograp hs were introduced depic ting St. John’s dr ive as it con nects to a state high way.

The chancellor held that after evaluating the photog raphic exhibits and considering all evi denc e on the issue, the present embankments along the existing

drive cause an impaired visibility ont

o the highway and res ult in an undue traffic hazard. The chancellor further found that if the embankments along the driv e were lowered so as

to provide a reasonable view of

the highway traffic prior to entering the highway, there would otherwise appear to be no basis for denyi ng the permit on the basis of a tr affic hazard.
Appellantargues that under the holdi ng in Hinkle v. T.E. Montgomery , 596 S.W.2d 800, 801(Tenn. 1980), in order for tr affic congestion to constitute a valid basi s for denying a permit to sell beer in the package it must be shown that the issuance of a permit would cause traffic to be more congested and mor e hazardous than it was prior tothe issuance of the permit. In Hinkle , the trial court denied the permit upon the ground that the issuance of the permit would cause su ch an increase in traffic as to constitute a hazard to the traveling public at the intersecti on. The holding in Hink le therefo re addresses the necessary showing

when the board is denyi ng the permit based on conges tion.

In the case at hand the chancellor denied the p ermit to S t. John based upon the traffic hazard to the traveli ng public on the hi g hway and the patrons leav ing the establishment, due to the impaired visi bility along the eg ress. The chancel lor was not denying the permit based upon the “congestion of traffic” p rovision of the statute, but rather the “public health and safety” provis ion. T he courts do have the authori ty to determine, from evidence in the record, if a particular permit wou ld interf ere with pu blic heal th, safe ty, and morals. Ewin v. Richards on , 399 S.W.2d 318 (Tenn. 1966). Appeals to this Court in cases involving beer

permits are accompanied by a presumption of the correctness of the action of the trial judge. Such action will not be disturbed on appeal unless the evidence preponder ates against it. Coffman v. Hammer , 5 48 S. W.2 d 3 10 , 3 11 (T en n. 19 77 ). We7

do not find that the evidence preponderates against the decision of the chancellor on this question.

IV. Conclusion

The judgment of the trial court is hereby affirmed. Costs of thi s appeal are taxed to Appella nt, for wh ich execut ion may iss ue if nec essary.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

LILLARD, J.