When a Tennessee county changes the beer-permit distance rule mid-application, which rule does the beer board apply?

Plain-English summary

Tennessee law lets counties require that beer-selling establishments be located a minimum distance away from schools, churches, or other public gathering places. Under Tenn. Code Ann. § 57-5-105(b)(1) (Supp. 2009), the cap is 2,000 feet. The county sets its own number within that cap. The county beer board enforces the rule when it considers beer permit applications.

Rep. Eddie Bass asked three practical questions about what happens when the county changes the distance requirement mid-application or when the board makes a mistake.

Question 1: If the county increases the distance requirement after the application is filed but before the board votes on it, which rule applies? The board applies the rule in effect when it votes, not the rule in effect when the application was filed. Coffman v. Washington County Beer Bd., 615 S.W.2d 675, 676-77 (Tenn. 1981), is the controlling case. The reasoning is the general rule that the law in effect at a particular time governs actions taken at that time. Filing an application does not freeze the legal landscape; you have no vested right to be judged by the law that existed at filing.

Question 2: If the board mistakenly applied the shorter (old) requirement and issued a permit when it should have applied the longer (new) one and denied, what happens to future applications? The mistake does not automatically discriminate-invalidate the requirement. Under the line of cases starting with City of Murfreesboro v. Davis, 569 S.W.2d 805 (Tenn. 1978), and developed in Reagor v. Dyer County, 651 S.W.2d 700 (Tenn. 1983), a distance requirement becomes unenforceable when a board has discriminatorily allowed some non-conforming establishments to operate while denying others. A mere error in measurement is not discrimination if it is not intentional. Needham v. Beer Bd. of Blount County, 647 S.W.2d 226, 231 n.3 (Tenn. 1983), expressly excludes mistakes in measurement from the discriminatory-enforcement doctrine. But once the board is aware of the error, the board must act to revoke the erroneously issued permit or eliminate it in another way (most commonly by attrition, where the permit is not renewed when its term expires). If the board fails to act after discovering the error, the rule has effectively been waived for this address and cannot be enforced against other applicants going forward.

Question 3: Is the erroneously issued permit automatically invalid? No. Tennessee beer permits are revocable but not self-voiding. Tenn. Code Ann. § 57-5-108(c) (Supp. 2009) provides that a permit issued contrary to law is subject to revocation by the beer board. The board has to act through the formal revocation process. Until it does, the permit holder can continue operating.

The structural takeaway: the no-discrimination doctrine works both ways. A board cannot pick and choose which establishments to enforce the distance requirement against, but a single innocent error does not destroy the rule for everyone forever. The cure is for the board to clean up the error (revoke the bad permit or let it expire and not renew) within a reasonable time.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Tenn. Code Ann. § 57-5-105 has been amended at various points since 2010, and the 2,000-foot cap may have changed. The discriminatory-enforcement case law remains binding Tennessee Supreme Court doctrine, but later Court of Appeals decisions have continued to refine its application. Anyone advising a Tennessee county beer board on a current distance-requirement question should check the current statute and current case law.

Common questions

Q: What is a Tennessee county beer board?
A: A board appointed by the county legislative body to administer beer permits in unincorporated areas of the county. Cities have their own beer boards for permits inside city limits. The county beer board considers each application, checks compliance with state-law and county-rule requirements (including the distance requirement), and grants or denies the permit.

Q: What is the distance requirement?
A: A county can require that beer-selling establishments be a minimum distance from schools, churches, and other public gathering places. The state-law cap (as of 2009-2010) was 2,000 feet (Tenn. Code Ann. § 57-5-105(b)(1)). Each county picks its own distance within that cap. Common distances range from 200 to 500 feet, with 2,000-foot rules being unusual.

Q: Why does the rule at vote-time control, not the rule at filing-time?
A: Because the legal action that grants the permit is the board's vote, not the applicant's filing. The general principle is that the law in effect when an action is taken governs that action. Filing an application is a request; the legal effect (grant or denial) happens when the board votes. Coffman v. Washington County Beer Bd., 615 S.W.2d 675 (Tenn. 1981), applied that principle to beer permits.

Q: Doesn't that seem unfair to applicants?
A: It does have rough edges. An applicant who files in good faith under the old rule could be defeated by a rule change. But the Tennessee Supreme Court has consistently held that no one has a vested right in current law just by filing an application. The rule serves predictability in the opposite direction: applicants know that if the county wants to tighten its rules, it can do so up until the vote.

Q: What is "discriminatory enforcement" of a distance requirement?
A: When a beer board has issued permits to some establishments that violate the distance rule while denying others that violate the same rule. The legal effect is that the distance rule itself is invalidated and cannot be enforced against future applicants until the discriminatorily issued permits are revoked or eliminated. The doctrine traces to City of Murfreesboro v. Davis, 569 S.W.2d 805 (Tenn. 1978).

Q: Is a single mistake "discrimination"?
A: No. Under Needham v. Beer Bd. of Blount County, 647 S.W.2d 226, 231 n.3 (Tenn. 1983), an error in measurement is not discrimination. Discrimination requires either intent or a pattern of selective enforcement after the error is discovered. A board that catches its mistake and revokes the bad permit (or refuses to renew it) has not discriminated.

Q: How is "attrition" used to fix the error?
A: The board does not renew the erroneously issued permit when its term ends. Tennessee beer permits run for fixed terms (typically one year). When the term ends, the permit lapses unless renewed. The board can decline to renew an erroneously issued permit without the procedural fight of revocation. The result is the same: the non-conforming establishment loses its permit, and the distance rule stays enforceable against other applicants.

Q: Can the holder of an erroneously issued permit just keep operating?
A: Until the permit is revoked or expires, yes. The permit is not automatically invalid. But the board has authority to revoke under Tenn. Code Ann. § 57-5-108(c), and the discriminatory-enforcement doctrine creates pressure on the board to do so quickly. If the board sits on the mistake, the rule becomes unenforceable.

Background and statutory framework

The beer permit framework. Tennessee regulates beer (and certain other low-alcohol beverages) separately from spirits. Beer permits are issued by county or city beer boards under Tenn. Code Ann. tit. 57, ch. 5. The distance requirement (§ 57-5-105) is the most common county-level regulation and has generated substantial litigation.

The distance rule cap. Tenn. Code Ann. § 57-5-105(b)(1) (Supp. 2009) lets counties require beer-selling establishments to be at least up to 2,000 feet away from schools, churches, or other public gathering places. The county chooses the exact distance within that cap. Each county's choice is in its beer-board regulations.

Coffman (1981): which rule controls when the rule changes mid-process. The Tennessee Supreme Court in Coffman v. Washington County Beer Bd., 615 S.W.2d 675 (Tenn. 1981), held that the beer board applies the rule in effect at the time of its vote, not the rule in effect when the application was filed. The reasoning is the general no-vested-rights-in-current-law principle: filing does not freeze the legal landscape.

Murfreesboro and Reagor: discriminatory enforcement. City of Murfreesboro v. Davis, 569 S.W.2d 805 (Tenn. 1978), and Reagor v. Dyer County, 651 S.W.2d 700 (Tenn. 1983), establish that a beer board cannot selectively enforce the distance requirement. If the board has allowed some non-conforming establishments to operate while denying others, the rule is invalidated and unenforceable until the discriminatory permits are revoked or eliminated.

Cox Oil and Boyd's Creek: applications of the doctrine. Cox Oil Co. v. City of Lexington Beer Bd., No. W2001-01489-COA-R3-CV, 2002 WL 31322533 (Tenn. Ct. App. Oct. 10, 2002), and Boyd's Creek Enterprises, LLC v. Sevier County, No. E2001-01975-COA-R3-CV, 2002 WL 185474 (Tenn. Ct. App. Feb. 6, 2002), are Court of Appeals applications of the discriminatory-enforcement doctrine. Boyd's Creek held that an investigation that found no violation (where there was genuine uncertainty about whether a privately-owned park was a "place of public gathering") was not discrimination.

Needham: errors in measurement are not discrimination. Needham v. Beer Bd. of Blount County, 647 S.W.2d 226, 231 n.3 (Tenn. 1983), expressly excludes good-faith errors in measurement from the discriminatory-enforcement doctrine. A board that miscalculates distances has not discriminated; the issue is fixed by correcting the measurement and revoking or non-renewing the erroneously issued permit.

The revocation mechanism, § 57-5-108(c). Tennessee beer permits are revocable. The board can revoke a permit issued contrary to law. The revocation is a formal procedure with notice and hearing rights. Permits are not self-voiding even if erroneously issued; they exist until the board acts to revoke them or until they expire.

The synthesis applied to the question. Putting these pieces together: (1) Mid-process rule changes are governed by the rule at vote-time, not at filing-time. (2) An honest mistake in applying the rule does not invalidate the rule, but creates an obligation to fix the mistake. (3) The fix is revocation under § 57-5-108(c) or non-renewal at term-end (attrition). (4) Failing to fix the mistake within a reasonable time invalidates the rule under the discriminatory-enforcement doctrine.

Citations and references

Statutes:
- Tenn. Code Ann. § 57-5-105(b)(1) (beer permit distance requirement)
- Tenn. Code Ann. § 57-5-108(c) (beer permit revocation)

Cases:
- Coffman v. Washington County Beer Bd., 615 S.W.2d 675 (Tenn. 1981)
- City of Murfreesboro v. Davis, 569 S.W.2d 805 (Tenn. 1978)
- Reagor v. Dyer County, 651 S.W.2d 700 (Tenn. 1983)
- Cox Oil Co. v. City of Lexington Beer Bd., No. W2001-01489-COA-R3-CV, 2002 WL 31322533 (Tenn. Ct. App. Oct. 10, 2002)
- Needham v. Beer Bd. of Blount County, 647 S.W.2d 226 (Tenn. 1983)
- Boyd's Creek Enterprises, LLC v. Sevier County, No. E2001-01975-COA-R3-CV, 2002 WL 185474 (Tenn. Ct. App. Feb. 6, 2002)

Related Tennessee AG opinions:
- Op. Tenn. Att'y Gen. No. 01-157 (October 25, 2001)
- Op. Tenn. Att'y Gen. No. 04-012 (February 3, 2004)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-098.pdf

Original opinion text

September 15, 2010

Opinion No. 10-98

Implementation of Beer Permit Distance Requirement

QUESTIONS

1. If a county increases the distance requirement for a beer permit after a beer permit application is filed but before the application is considered, which distance requirement should the county beer board apply?

2. If the beer board applied the shorter distance requirement and issued the permit, but the board should have applied the longer distance requirement and denied the application, which distance requirement should the board apply to subsequent applications?

3. If the beer board applied the shorter distance requirement and issued the permit, but the board should have applied the longer distance requirement and denied the application, is the applicant's beer permit automatically invalid?

OPINIONS

1. The beer board should apply the distance requirement in effect at the time the board votes on the application.

2. In this scenario, the beer board mistakenly applied the wrong distance requirement when issuing the permit. The board's error was not made with the intent to discriminate, so the actual distance requirement was not invalidated by the issuance of that permit. However, once the board is aware of the error, it must act to revoke the erroneously issued permit or eliminate it in another manner, such as through attrition. If the board fails to do so, the actual distance requirement is invalidated and cannot be enforced against other applicants.

3. In this scenario, the erroneously issued beer permit is not automatically invalid. The beer board must take action to revoke the permit or eliminate it in another manner, such as through attrition.

ANALYSIS

1. Pursuant to Tenn. Code Ann. § 57-5-105(b)(1) (Supp. 2009), counties generally may require beer-selling establishments to be located up to 2,000 feet away from schools, churches, or other public gathering places. When determining whether a beer permit applicant's establishment satisfies the distance requirement, the Tennessee Supreme Court has held that a beer board must apply the requirement in effect at the time it votes on the application rather than the one in effect at the time the application was filed. Coffman v. Washington County Beer Bd., 615 S.W.2d 675, 676-77 (Tenn. 1981). This is consistent with the general principle that the law in effect at a particular time governs actions taken at that time. One does not by filing an application obtain any right to be governed by the law in effect at the time of filing. Accordingly, if a county increases the distance requirement for a beer permit after a beer permit application is filed but before the application is considered, the county beer board should apply the new, longer distance requirement.

2. As discussed in previous opinions of this Office, if a beer board has discriminatorily enforced a distance requirement, the requirement is invalidated and can be restored only by the revocation or other elimination, such as through attrition, of the discriminatorily issued permits. See Op. Tenn. Att'y Gen. Nos. 01-157 (Oct. 25, 2001) and 04-012 (Feb. 3, 2004). Generally, a beer board acts discriminatorily if it issues permits to some establishments in violation of the distance requirement while denying others also in violation and then takes no action to revoke or eliminate those permits. See City of Murfreesboro v. Davis, 569 S.W.2d 805, 807-08 (Tenn. 1978); Reagor v. Dyer County, 651 S.W.2d 700, 701 (Tenn. 1983); and Cox Oil Co. v. City of Lexington Beer Bd., No. W2001-01489-COA-R3-CV, 2002 WL 31322533 (Tenn. Ct. App. Oct. 10, 2002). A beer board has not discriminatorily enforced the requirement if it "was in error in the manner in which it measured distances." Needham v. Beer Bd. of Blount County, 647 S.W.2d 226, 231 n.3 (Tenn. 1983). A board has not acted discriminatorily if it performed an investigation and found no evidence of a distance requirement violation where there was uncertainty as to whether the place from which the distance was being measured, a privately-owned park, constituted a "place of public gathering." Boyd's Creek Enterprises, LLC v. Sevier County, No. E2001-01975-COA-R3-CV, 2002 WL 185474, *2 (Tenn. Ct. App. Feb. 6, 2002).

In the instant fact scenario, the beer board mistakenly applied the wrong distance requirement and issued the permit. The board made an error, but it did not intend to proceed contrary to the distance requirement. Thus, the distance requirement was not invalidated by the issuance of that permit. However, once the board is aware of the error, it must act to revoke the permit or eliminate it in another manner, such as through attrition. If the board fails to do so, the distance requirement is invalidated and may not be invoked to deny a permit to other applicants.

3. A beer permit that is issued contrary to the law is not automatically invalid, but it is subject to revocation by the beer board. Tenn. Code Ann. § 57-5-108(c) (Supp. 2009). As discussed above, a beer board must act to revoke the permit or eliminate it in another manner; otherwise, the distance requirement will be invalid.

ROBERT E. COOPER, JR.
Attorney General and Reporter

BARRY TURNER
Deputy Attorney General

NICHOLAS G. BARCA
Assistant Attorney General

Requested by:

The Honorable Eddie Bass
State Representative
War Memorial Office Building
Nashville, Tennessee 37243