IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 10, 2001 Session

OLIVER RANDOLPH, ET AL V. COFFEE COUNTY BEER BOARD, 

ET AL.

 Appeal from the Circuit Court for Coffee County

No. 30,241 Judge John W. Rollins

No. M2001-00077-COA-R3-CV - Filed March 7, 2002

This is an appeal by the Coffee County Beer Board from a decision of the Coffee County

Circuit Court ordering the Beer Board to issue permits to Oliver Randolph and Susan Nichols. The

trial court concluded that the Coffee County Beer Board regulation prohibiting the issuance of a beer

permit to an applicant within two thousand feet of a school or church was void because of

discriminatory application of this regulation. The County has appealed this decision insisting that

it had uniformly enforced its distance rule including a grandfather provision which authorized the

reissuance of permits to nonconforming locations who had enjoyed such a privilege prior to the

readoption of the county resolution in 1980. For the reasons stated in this opinion, we affirm the trial

court’s decision and remand the case. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed and

Remanded

J.S. DANIEL, SP. J., delivered the opinion of the court, in which BEN H. CANTRELL, P. J., M.S., and

PATRICIA J. COTTRELL, J, joined.

Robert Fulton Hazard, Tullahoma, Tennessee, for the Appellants, Coffee County Beer Board, et al.

William C. Reider, Tullahoma, Tennessee, for the Appellees, Oliver Randolph and Susan Nichols.

OPINION

I.

FACTS

There is no dispute as to the facts in this particular case. At the trial of this matter the parties

stipulated the facts and exhibits. In 1940 the Coffee County Quarterly Court enacted a resolution
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which provided that “No permit shall be issued for the sale, storage or manufacture of beer at a

location which is within two thousand feet of any church, school, or other place of public gathering.”

Between June 9, 1976 and January 11, 1980, the Coffee County Beer Board issued beer permits to

at least four locations which were within the two thousand feet prohibition from a church or school,

in violation of their regulation. In an effort to reestablish the enforceability and validity of their

regulation, on February 25, 1980, the Coffee County Board of County Commissioners adopted a

resolution which cited Tenn. Code Ann. § 57-205 as its statutory authority and provided that the

Coffee County Beer Board, “not issue any permit for sale of beer for any location that lies less than

two thousand feet, measured straight from point to point, from any church or school . . . .” The 1980

resolution also contained the following provision, “Further resolved that this resolution shall in no

way affect any location that has been issued a permit and is on this date in operation.” Throughout

these proceedings, this last sentence has been referred to as the County’s grandfather clause. 

Since the adoption of the 1980 resolution, the Coffee County Beer Board has complied with

all the requirements of the resolution, including the grandfather clause. The grandfather clause has

been complied with by the County Beer Board issuing beer permits to new owners of the

grandfathered locations and the County Beer Board refusing to issue permits to all other locations

within two thousand feet of a school or church. However, the county did not revoke any

noncomplying permits. 

On January 18, 2000, Oliver Randolph applied to the Beer Board for a permit to sell beer at

a location within two thousand foot of a church or school. Mr. Randolph’s application was denied

on the basis of the two thousand foot rule. On January 25, 2000, Mary Susan Nichols also applied

to the Beer Board for a permit to sell beer at a location that was within two thousand foot of a church

or school. Ms. Nichols’s application was also denied on the basis of the two thousand foot rule.

Neither Mr. Randolph’s nor Ms. Nichols’s applications dealt with locations that enjoyed permits

issued for the sale of beer prior to the 1980 resolution. Therefore, the sole basis for denial of the

permits was that the locations failed to be more than two thousand feet from a church or school. 

II. 

ISSUE

The issue for consideration and determination in this case is whether the trial court erred in

finding that the Coffee County’s 1980 “distance resolution” prohibiting beer sales within two

thousand feet of a school or church, was void because of discriminatory application. Intertwined

with the initial issue is whether the Coffee County resolution has a valid grandfather provision which

complies with Tenn. Code Ann. § 57-5-109, thereby validating the action of the Board.

III.

DECISION

Our review in this case with respect to the trial court’s legal conclusions is de novo with no

presumption of correctness. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997);
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Pursell v. First American Nat’l Bank, 937 S.W.2d 838, 840 (Tenn. 1996); Cook v. Spinnaker’s of

Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994); Tenn. R. App. P. 13(d).

The trial court found that the Beer Board ordinance was invalid because of prior

discriminatory enforcement of that ordinance. Discriminatory enforcement of Beer Board

ordinances in the issuance of licenses is illegal and violates the equal protection rights of those who

are denied such a permit. When permits are issued in violation of the ordinance’s limitation on

distance, such permits destroy the validity of the ordinance. Seay v. Knox County Quarterly Court,

541 S.W.2d 946, (Tenn. 1976). 

The stipulated facts in this case establish that between June 9, 1976 and January 11, 1980,

the Coffee County Beer Board engaged in the discriminatory issuance of beer permits to locations

that did not comply with the distance resolution. Once discriminatory enforcement of beer permit

distance ordinances has been established, those ordinances cannot be rectified by post facto

amendments. Restoration of the validity of a distance ordinance can only be achieved by revocation

or other elimination, such as attrition, ofthe discriminatorily issued permits and licenses. Rutherford

County Beer Board v. Adams, 571 S.W.2d 830 (Tenn. 1978); City of Murfreesboro v. Davis, 569

S.W.2d 805, (Tenn. 1978); Seay v. Knox County Quarter Court, 541 S.W.2d 946 (Tenn. 1976); Serv.

U. Mart, Inc. v. Sullivan County, 527 S.W.2d 121 (Tenn. 1975).

Clearly, in these stipulated facts, Coffee County was attempting to restore the validity of their

distance ordinance by the County Commission’s resolution in 1980. The resolution attempted to

reinstitute the distance ordinance, however, this could only be accomplished by the revocation of

noncomplying licenses or other elimination of such licenses by attrition. Revocation was the means

in which the county reestablished a distance limitation in the cases of Henry v. Blount Cty. Beer

Bd., 617 S.W.2d 888 (Tenn. 1981) and Needham v. Beer Bd. of Blount Cty., 647 S. W. 2d 226

(Tenn. 1983). The Court approved of revocation as the method of reinstituting the distance

limitation in these cases. The Court in Needham, id. at 231, emphasized that since the

discriminatorily issued beer permits had been eliminated by revocation that the county’s regulation

was restored to it’s validity. Key to the restoration of the distance ordinance is the elimination of

the discriminatorily issued permits, and this may be accomplished by revocation or attrition.

Coffee County never revoked any of the discriminatorily issued permits. The county

contends that they had established an attrition policy for the elimination of these permits. The trial

court made a finding that the County Beer Board had an attrition policy, although there appears to

be no such written policy in the record. The County asserts that their attrition policy was that if there

was a cessation of the sale of beer at one of the grandfathered locations, that location would no

longer qualify for a permit. It appears from the record, that four of the locations which did not

comply with the distance regulations under the 1940 regulation, have been sold and new beer permits

issued to the new owners after the 1980 resolution. The record does not establish the removal of any

noncomplying location by attrition as the result of cessation of the sale of beer. 
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Attrition is defined in Webster’s Collegiate Dictionary 75 (10th ed. 1993), as a reduction in

numbers usually as a result of resignation, retirement or death. Attrition, as defined in the unwritten

county policy, has resulted in the removal of no location that received a discriminatorily granted beer

permit through resignation, retirement, death or otherwise. Therefore, Coffee County’s attrition is

an illusion, and in reality this policy has lent itself to a perpetuation of the discriminatorily issued

permits. Such a policy violates the holding of the Supreme Court which requires the elimination of

discriminatorily issued permits in order for a county to restore validity to its distance regulations.

The Legislature has provided assurances to those businesses who possess a valid beer license

that those licenses will not be revoked by city or county because of the proximity of the business to

a school or residence through the passage of Tenn. Code Ann. § 57-5-109. This statute became

effective January 1, 1993 and states as follows: 

“A city or county shall not suspend, revoke or deny a permit to a business engaged

in selling, distributing, or manufacturing beer on the basis of the proximity of the

business to a school, residence, church or other place of public gathering if a valid

permit had been issued to any business on the same location as of January 1, 1993.

This section shall not apply if beer is not sold, distributed or manufactured at that

location during any continuous six month period after January 1, 1993."

This Court has previously had an opportunity to construe this statute in the case of Exxon Corp. v.

Metro. Gov’t, 2001 Tenn. App. LEXIS 44, Tenn. App. MS, Jan. 24, 2001, No. M2000-00614-COAR3-CV. In examining the legislative intent, we concluded that the legislature intended to provide

protection to businesses that had valid permits if those permits “had been issued to any business on

that same location as of January 1, 1993.” Therefore, we must consider whether this statute affords

Coffee County the right, under its grandfather clause, to continue issuing beer permits to these

nonconforming locations. 

This statute is applicable and only gives the county relief if the permits in question are valid.

It would be possible to have valid permits issued to locations which failed to meet the current county

distance requirement. This could occur where the beer permit had been issued to a location which

complied with the county’s then existing distance requirements and thereafter a church and/or school

was built within two thousand feet from the establishment enjoying the license. In such a case, the

validly issued permit precedes the entry of the use which the distance requirement is measured from.

Another way in which a valid permit could exist is if the original permit had complied with the then

existing county distance requirement and thereafter the county, by a different resolution, changed

its distance requirement to a distance that was closer to a church or school than had existed in the

ordinance under which the original permit was issued. In situations such as these the permit had

been validly issued and the legislature, through Tenn. Code Ann. § 57-5-109 has provided the

business owner with assurance that the city or county could not suspend, revoke or deny the business

location’s permit for the continuation of beer sales at that location absent a complete cessation of the

sale of beer for six continuous months.
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This is not the situation presented in this case. What has occurred in this case is the

perpetuation of the discriminatorily issued beer permits that preceded the 1980 resolution. We

conclude that the 1980 resolution and its grandfather provision failed to remedy the prior

discriminatory issuance of beer permits by revocation or attrition and, therefore, the Coffee County

grandfather clause perpetuated that discrimination and permits issued under the grandfather clause

are invalidly issued. Therefore, the protection of this statute is not available to the county to justify

the continuation of this discriminatory practice.

We conclude that the trial court properly applied the law in this case to the stipulated facts

and the trial court’s determination is affirmed. This case is to be remanded to the Coffee County

Circuit Court for execution of a judgment and the issuance of the permits.

___________________________________ 

J.S. DANIEL, SPECIAL JUDGE