### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE October 10, 2001 Se ssion OLIVER RANDOLPH, ET AL V. COFFEE COUNTY BEER BOARD, ET AL. Appeal from the Circuit Court for Coffee County No. 30,24 1 Judge John W . Rollins

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

This is an app eal by the

Coffee C ounty Bee

r Board f rom a dec ision of the

Coffee C ounty Circuit Courtorderin g the Bee

r Board to issue per mits 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 wa s void b ecause of discriminatory application of this regulation. The County has appealed this decision insisting that it had uniformly enforced its distance rule including a grandfathe r provision which authorized the reissuance of permits to nonconforming locat ions 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. D ANIEL , S P
. J., delivered the opinion of the court, in which B EN H. C ANTRELL , P. J., M.S., and P ATRICI A J. C OTTRELL , J, joined.
Robert Fulton Hazard, Tullahoma, Tennessee, for the Appellants, Coffee County Bee

r Board, et al.
William C. Reider, Tullahoma, Tennessee, for the Appellee s, 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 resolution2

which provided

that “No p ermit sha

ll b e issue d for the

sale, sto rage or manufacture of b eer at a location which is within two thousand feet of any church, school, or other plac e of public gathering.” Between June 9, 1976 andJanuary 11, 1980, the Coffee C ounty Bee

r Board is sued bee

r permitsto at least fou r locatio ns which w ere with in the two t

housand f eet proh ibition fr om a chur ch or school, in violation of

their regu lation. In

an effo rt to ree stablish th

e enfor ceabilit y and vali dity of the

ir regulation, on February 25, 1980, the Coffee County Board of Count y C ommissioners adopted a re solution which cited Tenn. Code Ann. § 57-205 as its statutory authority and provide d that th e 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, f rom 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 re ferred to as the County’s grandfather cla use. Since the adoption of the 1980 resolution, the Coffee County Beer Board has compl

ied with all the requirements of the resolution, including the grandfather clause. The grandfather

clause has been complied with by the C ounty 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 a ny noncomplying permits.
On January 18, 2000, Oliver Randolph a

pplied to th

e Beer Bo ard for

a permit t

o 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 f

oot rule. On Janua

ry 25, 200 0, Mary Su san 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. Nicho ls’s appli cation wa s also den ied on the basis of th

e two thou sand foot rule

. Neither Mr. Rando lph’s nor

Ms. Nicho ls’s appli cations d ealt with location s that enjo yed perm its issued for the sale of bee r prior to the 1980 resolution. Therefore, the sole basis for de nial 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 cou rt erre d in finding that the Coffee County’s 1980 “d istance resolution” prohibiting beer sales within two thousand feet of a school or ch ur ch, was void because of discriminatory application. Intertwine d withthe initia

l issue is whether

the Coffee County r

esolution 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 novowith no presumption of correctness. Stein v. Davidson Ho tel Co. , 945 S.W.2d 714, 716 (Tenn. 1997);3

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 ordi nance was invalid because of prior discriminatory enforcement of that ordinance. Discriminatory e nforcement of Beer Board ordinances in the issuance of licenses is illegal and violates the equal protection rights of those who are denied su ch a per

mit. When

permits a

re issue d in violati on of the o rdinanc e’s lim

i tation 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, 1976and January 11, 1980, the Coffee C ounty Beer Board engaged in the discriminatory issuance of beer per mits to locations that did not com

ply with the

distance resolutio n. Once d

iscrimina tory enf orceme nt of bee r permit dista nce ordinanc es has be en estab lished, th ose ordin ances c annot be r ectifie d by post

fact o amendme nts. Restorat

ion of the validity of

a distanc e ordina

nce can only be achieved by revocation or other elimination, such as attrition, of th e discriminatorily issued permits and licenses. Rutherford County Beer Boa

rd v. Ada ms , 571 S.W.2d 830 (Ten n. 1978); City of Murfr

eesboro v. Davis , 569 S.W.2d 805, (Te

nn. 1978) ; Seay v. Knox County Quarter Court , 541 S.W.2d 946 (Ten n. 1976); Serv. U. Mart, Inc. v. Sullivan County, 527 S.W.2d 121 (Tenn. 1975).
Clearl y, in these s tipulated facts, Co ffee Cou

nty was a ttempting t

o restor e the val idity of the

ir distance ordinanc e by the County Commiss ion’s res olution in 1 980. The r esolution attempte d to reinstitu te the distance ordinance, however, this could only be ac complished by the revocation of noncomplying licenses or other elimination of such licenses by attrition. Revocation was the means in which the

county reestablish

ed a dista nce limit ation in the cases of Henry v. Blount Cty. Beer Bd. , 617 S.W.2 d 888 (Tenn. 19 81) 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 li m itation in these cases. The Court in Needham , id . at 231, emphasized that since the discrimin atorily

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 coun ty contends that they had established an attrition policy for the elimination of these permits. The trial court made a finding that

the County

Beer Boa rd had an attrition policy, a lthough the

re appe ars to be no such written policy in the record. The County asserts that their attrition policy was that if there was a cessa

tion of the

sale of b eer at o ne of the grandfa thered l ocations , th at location would no longer qualify f or a per mit. It app ears f

rom the record, that four of the locations which did not complywith the distance regulations under the 1940 regulation, have been sold and new b eer per

mits 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.4

Attrition is defined in Webster’s Collegiate Dictionary 75 (10 th ed. 1993) , as a reducti on in numbers usually as a result of resigna tion, reti rement o r death. Attrition, as defined in the unwritten county policy, ha s resulte d in the removal of no location that received a discriminatorily granted beer permit through resignation, retirement, death or otherwis e. Ther

efore, Coffee C ounty’s a

ttrition 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 discrimin atorily

issued permits in order for a county to restore val idi ty to its dista nce reg ulations.

The Legislature has provi ded assur ances to those busi nesses who possessa valid beer licen se that those licenses will not be revoked by city or county because of the proximity of the business t

o a school o r reside

nce through the pa ssage of Tenn. Cod

e Ann. § 57 -5-109. T

his statute

became effec tive Janu ary 1, 19 93 and sta tes as fo llows:
“A city or county sha

ll not suspe

nd, revoke or den

y a permitto a business engaged in selling, distributing, or manufacturing beer on the basis of the proximity of the business to a schoo l, res idence, church o r other p lace of

public ga thering if a valid permit had been issued to any business on the same location as of January 1, 1993. This s ection s hall 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 p

reviousl y had an o

pportunit y to constr

ue 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 busines ses that h ad valid p ermits if those permits “had been issued to any business on that same location as of January 1, 1993.” Th erefor e, we mus t conside

r whethe r this statute affords Coffee County the

right, und

er its gra ndfathe r clause , to contin

ue issuing

beer pe rmit s to th ese nonconforming locations.
This statute

is applicable and only gives the county relief if the permits in question are valid. It would be p ossible

to have va

lid permit s issued to lo cations w hich fai led to mee

t the cur rent cou nty distance require

ment. This could

occur where the beer per mit had been issued to a

location which complied with the c ounty’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 pe rmit prec edes the

entry of the use which the d

istance require ment is mea sured fr

om. Another way in which a valid permit could exist is if the original permit had complied with the then existing county dis t an ce requirement and thereafte r 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 p ermit was issued. In situations such as these the permit had been validly issued and the legislature, through Tenn. Code Ann. § 57-5-109 ha s provided t he business owner wi

th assura nce that the city or county could not suspend, revoke or denythe busine ss location’s permit for the continuation of beer sales at that location absent a complete cessation of the sale of b eer for

six contin

uous months

.5

This is not the situation presented in this case. Wha t has occurred i n this case is the perpetuation of the discriminatorily issued beer permits that preceded the 1980 re solution. We conclu de that the 1980 resolution and its grandfather provision failed to remedy the prio r discriminatory issuance of beer permits byrevocation or attrition and, ther efore, the Coffee County grandfather

clause p erpetua

ted that d iscrimina tion and pe

rmits issued und

er the gr andfath er clau se are invalidly issued. Theref ore, the protect ion of this s tatute is n ot availa ble to the county to justify the continuation of this discriminatory practice.
We conc lude that

the trial court pr operly applied t he law in t

his case to t

he stipula ted fac ts and the trial

court’s determin ation is af firmed. T

his case is to be re

manded to

the Coffee County Circuit Cou

rt for ex ecution o f a judgme nt and the issuance of the pe rmits.

___________________________________ J.S. DANIEL, SPECIAL JUDGE