# FILED October 21, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### ANNA BELLE LYNN, ) ) Plaintiff/Appell

ant, ) Appeal No.

) 01-A-01-9712-CH-00704 vs. ) ) RICHIE BLU

E, et al, ) Humphreys Chancery ) No. 24-098 Defendants/Appel

lees. )

COURT OF APPEALS OF TENNESSEE APPEAL FROM TH

E HUMPHREYS COUNTY CHANCERY COURT AT WAVERLY, TENNESSEE THE HONORABLE ALL EN WALLACE, CIRCUIT JUDGE SITTING AS CHANCELL OR DAVID D. WOLFE 505 West C ollege Dickson, Tennessee 37055 ATTORNEY FOR PLAINTIF F/APPELLANT

JOHN LEE WIL

LIAMS 102 South Court Square Waverly, Tennessee 37185 ATTORNEY FOR DEFENDANTS/APPELLEES

AFFIRMED AND REMANDED

WILLIA M B. CAIN, JUDGE O P I N I O N This is an appeal from the action of the Chancery Court of Humph reys Count

y, Tenn essee upholding a denial by the county bee r board of a beer permit to the applica nt . Tennessee Code Annotated section 57-5-105(e)(Supp. 1998) provides that judicial review of a beer board's denial of an application for a permit to sell beer shall be "in the m anner as authorized under 57- 5-1 08." Tennessee Code Annotated section 57-5-108(d) provides for "review by statutory wr

it of certiorari, with a de novo trial as a substitute for an appeal."-2- It is well to explain at th

e outset why

practically

all of the cases annotated un der Tennessee Code Annotated section 57-5-105 through 57-5-10 9 are supreme

court cases. Prior to Chapter 147 of the

Public Acts of 1989 e

ntitled "Appella

te Court Efficiency Act" section 57- 5-109f provided for direct appeal from the trial court to the supreme court.

After the adoption of the Rules of Appellate Procedure, effective Jul y 1, 1979, the General Assembly ena cted Chapter 449 section 2 of the Public Acts of 1981, amending Tennessee Code Annotated section 57-5-109(f) in a confusing manner which was called to the attention of the General A ssembly by the supreme court in C

ooper v . Alcohol of the City of Memphis, 745 S.W.2d 278 (Tenn. 1988), which opinion was released January 25, 1988. The "Appellate Court Efficiency

Act" of 1989 deleted the provision for appeal to the supreme court

from Tennessee Code Annotated section 57-5-109(f) and any further linger

ing doubt as to the

jurisdiction of the

court of appeals was laid to rest by Chapter 952 of the Public Acts of 1992 entitled "Appellate Co urts' Improvement Act," effective May 1, 1992. See Stewart

Title Guaranty Co. v. McReynolds , 886 S.W.2d 233, 238-239 (Tenn. App. 1994). Under Rule 13(d) of the Rules of Appellate Proce

dure, trial in this c

ourt is de novo with the findings of fact of the trial court presumed to be co rrect u nless the preponderance of the evidence is otherwise. See Metropolitan Beer Permit Bd. v. Jones , 625 S.W.2d 267, 268 (Tenn. 1981). In final dec

ree the chance

llor held: Upon consideration of

the record

of the proceedin

gs had before t

he defendants as certified and f

iled, testimony

of peti tioner and other witnesses r eceived in open court, arg

uments of the solici

tors for the parti

es, and the entire

record in the cause the court finds that the sale of b eer b y petitioner at retail or onpremises con sumption at such location will interfere with the public health, safety and morals of

the community and will result in an increased burden on law enforcement and a permit to sell beer ought to be denied. From this decree

applicant appea

ls. No verbatim transcript of the record, either b efore t he beer board or before the chancellor, appears in the record but a Rule 24(c) statement of the evidence as revised by the chancellor is filed. At the hearing before the chancellor on October 28, 1997 three witnesses testified. First was the pet iti one r, A nna Bell e Lynn ; se con dly, her h usb and Dav id W all s, a nd t hir dly, Humphreys Co

unty Sheriff

Ronnie Toungette

, called as a witne

ss by the def

endants. Petitioner testified that she was a resident of Dickson, Tennessee where she operated "Anna's Upper Deck Lounge" and held a beer pe rmit. She had no violations in Dickson and-3-

no revocations o

r other problems. She had long familiarity with the premises for which she sought a beer permit in Humphreys County. The building wa s located at Hurricane Mills near the intersection of Tennessee Highway 13 and Interstate Highway 40. She proposed to nam e it "Anna's Country Place" and would manage the business herself with two female employees and her husband David Walls as "security". She planned eight tables c apable of seatingan d serving thi rty t o fifty

persons and planned a music band on weekend nights to help draw crowds. She had worked fo r the previous own

ers of the proper

ty and in 1989 was arrested and convictedfor assault and destruction of private property, for which she was placed on probation for a period of eleven months and twenty-nine day s. She married David Walls in 1996, aware that he had previously been convicted of bank robbery in New Mexico in 1980 and had served tim e in the pen ite nti ary. David Walls testified that in addition to the bank robbery charges he had prior disorderly conduct and trespassing charges in Florida. With this testimony petitioner rested her case. Sheriff

Toungette testified

that he had been Sh

eriff of Humphre

ys County

for sixteen yearsand tha t petit

ioner's proposed business location was in the Buffalo Community which was unincorporated. He described thesurrounding area as a mixture of residential and commercial areas with amotel and restaurant located behind the property in issue. He testified that the area was located sixteen miles fromthe sheriff's office and that no other police or law enforcement agency patrolledthe area. Sheriff T oungette testif

ied at length con

cerning prior p

roblems with the property no

w owned by th

e p etitioner. It had been a beer joint since 1985 with constant complaints

of fighting, thr

eats and people u

rinating in the pa

rking lot. In 1991, an application for a beer perm

it by previous owner had been denied. I n 1993, the property reopened with a beer permit under new ownership but more com plaints o ccurred abou t marijuan a smoking, fighting, and other disorderly conduct. During portions of this time the petitioner Anna Lynn hadworked for Charlie Shanes and Barbara Warren, previous owners of theproperty, and was awareof previous problems. The sheriff also testified there were no other taverns in the vicinity of the Buffalo Co

mmunity of Hum

phreys Count

y and that he

could not provide c

ounty wide police patrols an

d could only respond

to requests for aid as conservators of the peace and to investigate

criminal violations in accordance with his statutory duties. He testified that the time required to rea ch the Buffalo Community enhanced the potential danger to persons and property resulting from disorderly acts that commonly occur at a beer tavern in an unpatrolled, rural, remote location. In rebuttal petitioner ack nowl edged that she had worked as an employee for prior owners but had no c

ontrol over the ac

tions of such owner

s or managers.-4- Upon the foregoing evidence the chancellor found by a preponderance of

the evidence that the issuance of a

beer permit would

be contrary

to the public

health, safety and welfare of the cou nty. While it is t

rue that a building, per se, cannot have a bad reputation ( Lones v. Blount County Beer Board

, 538 S.W.2d 386 (Tenn. 1976)), it is equally true that the reput ati on and past history of the

pe rsons proposing t

o operate the bus

iness on such premi

ses are subject t

o legitimate inquiry. Tippit v. Obion County , 651 S.W.2d 211 (Tenn. 1983). Tennessee Code Annotated section 57-1-105(b)(1) places the burden on the applicant to establish

that "[n]o beer will be sold except a

t places where such sale

will not . . . otherwi

se interferewith public health, safety and morals." The Tennessee Supreme Court has held that a permit to sell beer can be denied because the propose d site is unsuitable. See Hughes v. Little , 213 Tenn. 574, 580; 376 S.W.2d 482, 485 (Tenn. 1964). It is likewise true tha

t t he distance between the proposed business location and the nearest police authority is material to the beer board and to the ch ancellor in c onsidering an application for a beer permit. Tippit v. Obion County , 651 S.W.2d 211, 213 (Tenn. 1983). Giv en the limited record that is before us and making allowances for the superio r position of the trial judge on credibility issues, ex rel. Balsinger v. Town of Madisonville , 435 S.W.2d 803, 807 (Tenn. 1968), we cannot say that the evidence preponder ates against the decision of the chancellor. The judgment of the trial court is af firmed w ith costs of the app eal assessed ag

ainst appellant.

____________ __________

_____________

_ WILLIA M B. CAIN, JUDGE CONCUR:

_________________________________________ BEN H. CANTRELL, PRESIDI NG JUDGE,M.S.

_________________________________________ WILLIA M C. KOCH, JR., JUDGE-5-