### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Februar y 14, 2 002 Session COX OIL COMPANY, INC. v. CITY OF LEXINGTO N BEER BOARD

An Appeal from the Chancery Court for Henderson County

No. 14565 Joe C. Morris, Chancellor

No. W2001-01489-COA-R3-CV - Filed October 10, 2002

This is an action challenging the denial of a beer permit. The plaintiff business applied for a beer permit with the defendant beer board. The board denied the permit because plaintiff’s location was within 5 00 feet of a church. This proximity to a church was in violation of a city ordinance. The plaintiff filed a writ of certiorari in the trial court, seeking a reversal of

the boar d’s deci sion beca

use the 500-feet ordinance had been applied in a discriminatory manne r. The trial court

found that the board had allowed another establishment that was within 500 feet of a church to maintain its beer permit, and concluded that the board had therefor e appliedthe ordinance in a discriminatory manner. Co ns eq ue nt ly, the denial of the plaintiff’s beer permit was reve rsed. The board

now a ppeals that order. We affirm, finding that the board ha d applied the ordin ance in

a discriminatory manne

r, and that the tr ial cour t did not er

r in reve rsing th e denial of the pla

intiff’s beer pe

rmit. Tenn. R. App. P. 3; Judgment of the Chancery Court is Affirmed

H OLLY K IRB Y L ILLARD , J., delivered the o pinio n of th

e cou rt, in whic h W. F RANK C RAWFORD , P.J., W.S., AND A LAN E. H IGHERS , J., joined.
Kenneth L. Walker, L

exington, Tennessee, for the appellant, City of Lexington Beer

Board. Stephen M. Milam, Lexington, Tennessee, for the appellee, Cox Oil Company, I nc.
OPINION

On October 30 , 2000, Plaintiff/Appellee Cox Oil Co., Inc. (“Cox Oil”), applied to the Defendant/Appellant

City of L

exington Beer Board (“the B oard”) for a permit to sell and store package beer. In July

1998, the City had adopted a new ordinance, Section 8-210, which states that
a beer permit may

not be issued to an applicant located “withi n five h undred (500) feet of any hospital, school, churchor other place of public gathering .” The ordinance contains a “grandfather clause,” which states that “[n]o permit shall be suspended, revoked or denied on the basis of proximity of the establishment to a

school, church or other place of public gather ing if a valid per mit1 The record reflects that Cox Oil’s property is adjacent t o the United Method ist Church.
-2- had been issued to any business on that sa me location as of

January 1, 1993 . . . .” Cox Oil’s application for a permit reflects on its face that it is located within 60 fe et of a church. 1

On November 7, 2000, the Board of County Commissioners, acting as the City of L exington Beer Board, heard Cox Oil’s application. Cox Oil’s application for a beer permit was denied, based
on the 500-fee t rule. On Decemb er 20, 20 00, Cox Oil fil ed a writ of cert iorari in the trial court, seeking a reve rsal of the Board’s decision because the Board had applied the 500-feet rule in a discriminatory

manner. Cox Oil alleged that, on Dec ember 3, 1993, a beer pe rmit was is sued to Lexington

Amoco, located adjacent to Cox Oil and also within 500 feet of a church. Cox Oil’s lawsuit noted that, Lexington A moco’s b eer permit had not been revoked or suspende d since the enactment

of the City ordinance, Section 8-210. The trial court found that the Board had allowed Lexington

Amoco to k

eep its be er perm

it, and that Lexington Amoco was locate d within 500 feet of a church, in violatio n of the Cit y ordinance. From this, the trial court concluded that the 500-feet rulewas being applied

in a discr iminatory manner. If th

e ordina nce is applied in a discriminatory
manner , the t rial court held, the “ordinance is completely removed as a valid ground for denial of
a beer permit and invalidates the ordin ance.” On this bas is, the trial court ordered the Board to issue a beer permit to Cox Oil. The Board now appeals that order.

On appeal, the Board arg ues that the trial court erred in re lying on the

permit iss ued to Lexington

Amoco as evidence

of discriminatory applica tion of the ordinance. The Board notes that the per mi t wa s i ss ued to Le x ington Amoco in compliance with a decree of the Chancery

Court of Henderson County because of past discriminatory issuance of permits in violation of the City’s prior distance ordinanc e. Bec ause of t his, the Board maintains, there was in effect no distance ordinance in the City

of Le xington at

the time the permit was issue d to the Lexington Amoco. I n the alternative, the Board asserts that the L exington Amoco beer permit was covered by the grandfather clause in the new di s tance ordinance. Finally , the Board claims that the new distance ordinance promulgated

in July 1998 constituted a “new” ordinance that was adopted along withan entirely ne w city charte r and cit y c ode. The

refore , the Boa

rd mainta ins, the new ordinance is not a “post facto” amendment with which all existing permits must comply.

We review the decision of the trial court de novo upon the record with a presumption of
correc tness of the findings of fact by the trial court. See Tenn. R. App. P. 13(d). We afford the trial court’s conclusions of

law no such presumption. See State v. Levandowski , 955 S.W.2d 603, 604 (Tenn. 1997). The issue in this cas e is whether the evidence prepondera tes against the trial court’s finding that the Board applied its distance ordinance in a discriminatory manner

. It is well settled in Tennessee that, once discriminatory enforcement of a distance ordinance has been est

ablished , the ordi nance isinvalid a nd is c ompletely

remo ved as a proper ground for denial of a beer permit. See City of Murfrees boro v. Da vis , 569 S.W.2d 8 05, 808 (T enn. 1978 ); see also Reagorv. Dyer

County , 651 S.W.2d 700, 701 (Tenn. 1983); Seay v. Kno x County Quar

terly Court , 541 S.W.2d 94 6, 947 (Te nn. 1976) ; Serv-U-

Mart, Inc. v

. Sullivan Count

y , 527 S.W.2d 121,2 In a mem orand um filed in the trial court, the Boa rd alleges that “[i]t is believed that January 1 , 1993 is a

typographi cal error and sh ould be 1 994 , due to the fact that it was meant to ‘grandfat her’ the Amoco permit.” However, the Board d oes not raise thi s issue on appeal, and there is no ev idence i n the r ecord indi cati ng that such a t ypographic al
erro r was m ade . The refore , that argu men t is not co nside red in th is app eal.
-3- 123 (Tenn. 1975). When a permit is granted to o n e or more businesses in violation of the ordinance’s di stance p aramete rs, while such a pe

rmit is den

ied to othe

rs similar ly s ituated, this is discriminatory

application of the distance ordinance. “Any discriminatory application violates the rule.” Reagor , 651 S.W.2d at 701. Once the ordinance has been applied in a discriminatory manner and is thereby invalidated, the invalidity of the ordina nce canno t be rec tified by a post fa

cto amendment

to the ordinance. Rather, the validity of the ordinan ce can be restored only “by revocat ion or other elimination, such as att rition, of the discriminatorily-issued permits and lice nses.” City of Murfre esboro , 569 S.W.2d a t 808. Thus , if a bee

r permit is valid at the time it is issued, but later becomes violative of an amended ordinance, the B oard must revoke or suspend the permit that is in violation in order to maintain the validity of the amended or dinance. See id.

The Board argues that

the Lexington Amoco permit should not be the basis for a f inding of discriminatory

application because it was ordered in compliance with a court order. The Boa rd, however, cites no case law in support of this position. Indeed, it was made clear in City of Murfrees boro that, if a board allows any permit or license that violates the city ’s distance ordinance to remain in effect, then

the ordinance becomes invalid and cannot be re lied upon to deny

a permit
or license to oth er applicants. See City of Murfrees boro , 569 S.W.2d at 808. Regardless of the
reason for the issuance of Le xington Amoco’s permit , the Board did not revoke or suspend Lexington

Amoc o’s perm

it after the new distance ordinance w ent into effect. Thus, Lexington Amoco was allowed to retain its permit in violation of the distance ordinance, w h ile Cox Oil was denied a permit based on the same ordinance. Such action constitutes discriminatory application, and the ordinance, therefore, is invalid. See Serv -U-Mart , 527 S.W.2d at 123 (stating that “there can be no discriminatory application of a [dist ance] rule before or after a doption of a resolution embracing the rule. . . . After adoption, a finding of discretionar y appl ication will invalidate the rule.”).

The Board a

lso argues that L

exington A

moco’s pe

rmit falls within the grandfather clause of the new distance ordinance, and theref ore cannot be the basis of a finding of discriminatory application. Assuming arguendo that this argument is valid, the record in this cause does not support the Board’ s asserti on that L exington O il’s beer

permit fa

lls within the grandfather clause of the ordinance. The ordinance provides that “[n]o permit shall be suspended, revoked or denied on the basis of proximity . . . if a valid permit had been issued to any business on thatsame location as of January 1, 1993.” 2 The par

ties ag ree tha t Lexing ton Amoco

receiv ed a vali d permit

on December 3, 1993, pursuant

to a chancery

court order. This fact shows that the L exington permit falls outside the parameters of the

grandfather clause a

t issue. There is no evidence to the contrary in the record. The Board h as the bur

den of br inging before this Court a

ll of the in

formatio n neede d to suppor t its position on appeal. See Reagor , 651 S.W.2d at 701. Because the record does not include evidence to support

the Boa rd’s ass ertion, w e find thisargume nt to be wit

hout merit

.-4-

Appare ntly to disting uish this ca se from City of Murfre esboro , the Board notes tha t the City of Lexington enacted a new distance ordinance rather than adopting a “post facto a mendment” of
an existing ordinance. See City of Murfrees boro , 569 S.W.2d at 808 (“Discriminatory enforcement of a beer permit distance ordinance ca nnotbe rectified by

post facto amendments.”). However, the Board acknowledges that the new distance or dinance was adopted because the pr ior distance ordinan ce was rendered invalid by discriminatory application. The Board cites no ca se la w support ing its argument that the enactment of a new distance ordinance should be considered distingu ishable from the adopt ion of a post facto amendment under these circumstanc es. Indeed, City of Murfre esboro made it cl ear tha t “[r]estor ation of th e validity of a dista nce ordinance c an only be achieved by

revocation or other elimination, such as attrition, of the discriminatorily-issued permits and licenses.” Id. Thus, this argument must be rejected as well.

The decision of the trial court is affirmed. Costs are to be asse ssed to the

appella nt, City of Lexington Beer B oard, and its surety, f or which execution may issue, if ne cessary
.

___________________________________ HOLL Y KIRBY L

IL LARD, JUDGE