Does Tennessee's 2,000-foot beer-permit buffer around 'places of public gathering' apply to a small cemetery that sells no plots and almost no one visits?

Subject

Opinion No. 12-02, Issuance of Beer Permits Near Cemeteries, January 6, 2012

Plain-English summary

Tennessee counties can ban the sale of beer within 2,000 feet of "places of public gathering" under Tenn. Code Ann. § 57-5-105(b)(1). The statute lists schools and churches by name and adds "or other places of public gathering" as a catch-all. Representative Hensley asked the AG whether a cemetery counts as a place of public gathering when the cemetery does not sell plots and is rarely visited.

The AG didn't rewrite the rule. The 1992 AG opinion (No. 92-51) had already worked through the question by walking through the Tennessee Supreme Court's published Adams v. Monroe County Quarterly Court (1964) decision and the Court's unpublished decision in Allen v. Gibson County Beer Board Commission (1970). The conclusion in 1992 was that whether a specific cemetery is a place of public gathering depends on the facts of the specific case. The AG reaffirmed that conclusion in 2012.

The court precedents pull in two directions. Adams v. Monroe County said a "public place" is one "to which the general public has a right to resort," not necessarily dedicated solely to public use but in fact public rather than private and visited by many. Cemeteries that sell plots and welcome friends and family of the deceased for visiting and decoration arguably fit. The 1991 AG opinion (No. 91-57) said yes, cemeteries are public gathering places, on the theory that "[c]emeteries require public access" and the public has a right to mourn.

But the Allen case from 1970 said the answer turns on facts. The court there said it could not conclude as a matter of law that a cemetery either is or is not a place of public gathering. On the specific facts there (cemeteries that engaged in the sale of lots), the court said the legislature did not intend to sweep them into the statute. So Allen treats lot-selling cemeteries as commercial enterprises distinct from schools and churches.

The 1992 AG opinion split the difference. Given the General Assembly's 1989 declaration that cemetery operation is a public purpose, many cemeteries (especially active, public ones) are dedicated for the benefit and use of the public and look like schools and churches. But not every cemetery, especially small, abandoned, or infrequently visited rural cemeteries, must be treated that way. The factual context matters.

The 2012 opinion does three things on top of that. First, it noted that more than forty years passed since Allen (1970) and twenty years since Op. 92-51, and the legislature has not changed the statute. The AG read that as legislative acquiescence in the fact-driven approach. Freeman Industries (Tenn. 2005); Jones v. D. Canale & Co. (Tenn. 1983). Second, it surveyed other places of public gathering analyses (sports complexes, daycare centers, National Guard armories, museums, privately owned parks). Third, it reminded the requester that the question is one for the trier of fact, not for legal answer at the AG level.

The opinion explicitly limits itself to § 57-5-105 and disclaims any analysis of § 57-5-109 or any specific factual scenario.

Currency note

This opinion was issued in 2012. 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.

The fact-based approach to "places of public gathering" has remained the governing framework. Local beer board practices and county zoning patterns may have evolved, and the General Assembly may have amended specific provisions of the beer law. Verify current statute text before applying.

Background and statutory framework

Tennessee beer regulation framework. Tenn. Code Ann. §§ 57-5-103 to 109. State delegates regulatory authority to counties and municipalities. § 57-5-103(b) divides counties into Class A (non-metropolitan) and Class B (metropolitan and all cities and towns).

The buffer provision. Tenn. Code Ann. § 57-5-105(a) (Class A counties) and (b)(1): "(1) No beer will be sold except at places where such sale will not cause congestion of traffic or interference with schools, churches, or other places of public gathering, or otherwise interfere with public health, safety and morals, the county legislative body having the right to forbid such storage, sale or manufacture at places within two thousand feet (2,000) of such places of public gathering in its discretion."

Statutory construction principles. Brown v. Tennessee Title Loans, Inc., 328 S.W.3d 850, 855 (Tenn. 2010); Shelby County Health Care Corp. v. Nationwide Mutual Ins. Corp., 325 S.W.3d 88, 92 (Tenn. 2010). Beer regulation construed liberally in favor of protected places, strictly against permit applicants: Tennessee Sports Complex, Inc. v. Lenoir City Beer Board, 106 S.W.3d 33, 35-36 (Tenn. Ct. App. 2003); Youngblood v. Rutherford County Beer Board, 707 S.W.2d 507, 509 (Tenn. 1986).

Defining "public place." Adams v. Monroe County Quarterly Court, 214 Tenn. 270, 276, 379 S.W.2d 769, 772 (1964) (quoting Black's Law Dictionary, 4th ed.): a public place is one "to which the general public has a right to resort, not necessarily a place devoted solely to uses of public, but a place which is in point of fact public rather than private, a place visited by many persons and usually accessible to the neighboring public."

Early Supreme Court guidance on the buffer rule. Wright v. State, 171 Tenn. 628, 639, 106 S.W.2d 866, 871 (Tenn. 1937) (store-filling-station-dance-hall not a "public place" within 2,000 feet of a place of public gathering).

Sample applications. Tennessee Sports Complex (privately owned daycare = public gathering place; privately owned National Guard Armory = not); Boyd's Creek Enterprises (privately owned park occasionally used for public events = fact question); Op. Tenn. Att'y Gen. No. 98-069 (privately owned daycare = public gathering); No. 97-060 (church-owned daycare = public gathering); No. 80-409 (museum generally = public place).

Cemetery precedents specifically. Op. Tenn. Att'y Gen. No. 91-57 (June 10, 1991) (treating cemeteries as public gathering places generally). Allen v. Gibson County Beer Board Commission (Tenn. 1970, unpublished) (lot-selling cemeteries not within the statute on facts). Op. Tenn. Att'y Gen. No. 92-51 (September 16, 1992) (case-by-case fact question, refining 91-57).

Legislative acquiescence. Freeman Industries, LLC v. Eastman Chemical Co., 172 S.W.3d 512, 519 (Tenn. 2005); Jones v. D. Canale & Co., 652 S.W.2d 336, 337-338 (Tenn. 1983).

Common questions

What facts would a beer board look at to decide?

Whether the cemetery sells plots (commercial vs. nonprofit), whether it is active or dormant, frequency of public visits, presence of regular ceremonies or services, hours of public access, whether the public has a legal right to enter, whether the cemetery is dedicated for public benefit under the 1989 legislation. The Adams "public place" definition is the touchstone.

Does a county have to adopt a 2,000-foot rule for the question to come up?

Yes. Section 57-5-105(b)(1) is permissive: the county legislative body "having the right to forbid" sales within 2,000 feet "in its discretion." If the county has not adopted a distance rule, the public-gathering question doesn't arise.

Could a county set a different distance?

The statute caps the county at 2,000 feet. Counties can adopt shorter buffers but not longer ones. The 2,000-foot ceiling is what gave the statute its common name.

Is a private mausoleum a place of public gathering?

The Adams "public place" definition leans toward "no" if access is by permission of the property owner rather than as of right. But under the Allen fact-driven approach, the answer turns on the specific arrangements, history of public use, and whether the legislature meant to sweep in the particular type of cemetery.

What if the cemetery is on church property?

The opinion didn't address that. A church on the same property is a place of public gathering by statute. The cemetery would not need separate analysis if it is within 2,000 feet of the church itself.

Does this apply equally to liquor permits and beer permits?

This opinion is limited to beer permits under § 57-5-105. Liquor permits are governed by different statutes (Title 57, Chapter 3). The analysis is not necessarily transferable.

Citations

• Tenn. Code Ann. § 57-5-105(b)(1)
• Tenn. Code Ann. § 57-5-105(a)
• Tenn. Code Ann. § 57-5-105
• Tenn. Code Ann. § 57-5-109
• Tenn. Code Ann. § 57-5-103(b)
• Tenn. Code Ann. §§ 57-5-103 to 109
• Exxon Corp. v. Metropolitan Government, 72 S.W.3d 638 (Tenn. 2002)
• American Show Bar Series, Inc. v. Sullivan County, 30 S.W.3d 324 (Tenn. Ct. App. 2000)
• Brown v. Tennessee Title Loans, Inc., 328 S.W.3d 850 (Tenn. 2010)
• Shelby County Health Care Corp. v. Nationwide Mutual Ins. Corp., 325 S.W.3d 88 (Tenn. 2010)
• Tennessee Sports Complex, Inc. v. Lenoir City Beer Board, 106 S.W.3d 33 (Tenn. Ct. App. 2003)
• Youngblood v. Rutherford County Beer Board, 707 S.W.2d 507 (Tenn. 1986)
• Wright v. State, 171 Tenn. 628, 106 S.W.2d 866 (Tenn. 1937)
• Adams v. Monroe County Quarterly Court, 214 Tenn. 270, 379 S.W.2d 769 (1964)
• Boyd's Creek Enterprises, LLC v. Sevier County, 2002 WL 185474 (Tenn. Ct. App. Feb. 6, 2002)
• Freeman Industries, LLC v. Eastman Chemical Co., 172 S.W.3d 512 (Tenn. 2005)
• Jones v. D. Canale & Co., 652 S.W.2d 336 (Tenn. 1983)
• Op. Tenn. Att'y Gen. No. 91-57 (June 10, 1991)
• Op. Tenn. Att'y Gen. No. 92-51 (September 16, 1992)
• Op. Tenn. Att'y Gen. No. 98-069 (March 25, 1998)
• Op. Tenn. Att'y Gen. No. 97-060 (May 1, 1997)
• Op. Tenn. Att'y Gen. No. 80-409 (August 14, 1980)
• Op. Tenn. Att'y Gen. No. 10-113 (November 18, 2010)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-002.pdf

Original opinion text

January 6, 2012
Opinion No. 12-02
Issuance of Beer Permits Near Cemeteries

QUESTION

Is a cemetery considered a place of public gathering under Tenn. Code Ann. § 57-5-105(b)(1), if the cemetery does not sell plots and is infrequently visited by the public?

OPINION

As this Office opined in Tennessee Attorney General Opinion 92-51 (September 16, 1992), whether a particular cemetery constitutes a place of public gathering in the context of Tenn. Code Ann. § 57-5-105(b)(1) is a question of fact, to be determined by the trier of fact.

ANALYSIS

It is well established that the sale of beer is subject to control by the State of Tennessee pursuant to the State's police power. The State may delegate this power to counties and municipalities, which are given extremely broad powers to regulate the sale of alcoholic beverages within their boundaries. Exxon Corp. v. Metropolitan Government, 72 S.W.3d 638, 642 (Tenn. 2002); American Show Bar Series, Inc. v. Sullivan County, 30 S.W.3d 324, 332 (Tenn. Ct. App. 2000).

The State of Tennessee has established an extensive regulatory framework that delegates to counties and municipalities the authority to regulate by permit the sale of beer. Tenn. Code Ann. §§ 57-5-103 to 109. Local governments are divided into two broad categories for the purposes of regulating beer, those being (1) Class A counties and (2) Class B counties, cities and towns. Class A counties are defined as counties not governed by metropolitan governments, whereas Class B counties consist of all counties governed by a metropolitan government and all cities and towns. Tenn. Code Ann. § 57-5-103(b). See also Tenn. Att'y Gen. No. 10-113 (November 18, 2010).

This opinion request seeks clarification on the narrow issue of whether a cemetery is a "place of public gathering" for purposes of determining whether a Class A county may issue a beer permit within the county defined distance of the place of public gathering. These regulatory provisions state in relevant part as follows:

(a) The owner of a business desiring to sell, distribute, manufacture, or store beer in any Class A county outside the limits of any incorporated city or town shall file an application for a permit with the county legislative body or committee appointed by the county legislative body.

(b) In order to receive a permit, an applicant must establish that:

(1) No beer will be sold except at places where such sale will not cause congestion of traffic or interference with schools, churches, or other places of public gathering, or otherwise interfere with public health, safety and morals, the county legislative body having the right to forbid such storage, sale or manufacture at places within two thousand feet (2,000) of such places of public gathering in its discretion ...

Tenn. Code Ann. § 57-5-105(a) & (b)(1).

For purposes of this opinion request, the county legislative body is assumed to have adopted a requirement that the sale of beer cannot be made within a defined distance of places of public gathering.[1]

Our review of this regulatory process is guided by well-established principles of statutory construction. Thus, the primary objective in reviewing these statutes is to determine and implement the Legislature's intent without limiting or expanding the statute's coverage beyond what the Legislature intended. Brown v. Tennessee Title Loans, Inc. 328 S.W.3d 850, 855 (Tenn. 2010); Shelby County Health Care Corp. v. Nationwide Mutual Insurance Corp. 325 S.W.3d 88, 92 (Tenn. 2010). In the case of regulatory provisions governing the sale of intoxicating liquor, courts will generally construe such regulatory provisions liberally in favor of the places of the places or institutions they are designed to protect, and strictly against the applicants for beer or liquor licenses or permits. Tennessee Sports Complex, Inc. v. Lenoir City Beer Board, 106 S.W.3d 33, 35-36 (Tenn. Ct. App. 2003) (citing Youngblood v. Rutherford County Beer Board, 707 S.W.2d 507, 509 (Tenn. 1986)).

Tennessee courts and this Office have addressed on several occasions the meaning of the term "places of public gathering" as used in Section 57-5-105(b)(1). In an early opinion by the Tennessee Supreme Court in 1937, a county had forbidden the sale of beer and other alcoholic beverages within 2,000 feet of public gatherings. The Court found the store, filling station and dance hall selling alcoholic beverages was not a "public place" and was not located within 2,000 feet of a "place of public gathering," and accordingly the Court overturned the owner's conviction of selling beer in violation of local resolutions. Wright v. State, 171 Tenn. 628, 639, 106 S.W.2d 866, 871 (Tenn. 1937).

In a later case, the Tennessee Supreme Court found that a baptismal site located on private property was not a public gathering place, concluding as follows:

The record shows that the public has no right to use the site indicated for baptismal purposes, and according to the proof such site was used with and by permission and consent of the owner which would, of course, take away from it any element of being a public place. It is, in fact, private property to which access has been given to the public on occasions over a long period of time, but this permission has not ripened into an absolute right to use the same as a baptismal place by the general public so as to make it a public gathering place.

Adams v. Monroe County Quarterly Court, 214 Tenn. 270, 276, 379 S.W.2d 769, 772 (1964). (Emphasis in original).

In so holding, the Court defined a "public place" as follows:

A place to which the general public has a right to resort, not necessarily a place devoted solely to uses of public, but a place which is in point of fact public rather than private, a place visited by many persons and usually accessible to the neighboring public. People v. Whitman 178 App. Div. 193, 165 N.Y.S. 148, 149. Roach v. Dugene, 23 Or. 376, 31 P. 825.

Id. (quoting Black's Law Dictionary, 4th ed.). See also Tennessee Sports Complex, Inc., 106 S.W.3d at 34-36 (finding that a privately owned daycare center, which was part of a sports complex, was a place of public gathering but a privately owned National Guard Armory whose primary mission was to support the United States Army and to train and house the National Guard was not a place of public gathering); Boyd's Creek Enterprises, LLC v. Sevier County, 2002 WL 185474 (Tenn. Ct. App. Feb. 6, 2002) (finding it was a question of material fact as to whether a privately owned park which was occasionally used for public events, such as a youth soccer league, was a place of public gathering); Op. Tenn. Att'y Gen. No. 98-069 (March 25, 1998) (finding a privately owned daycare center was a place of public gathering); Op. Tenn. Att'y Gen. No. 97-060 (May 1, 1997) (finding a daycare center owned by a church meets the definition of public gathering); Op. Tenn. Att'y Gen. No. 80-409 (August 14, 1980) (noting that generally a museum would be regarded as a public place).

This Office has twice addressed the specific question presented in this opinion request, that being whether a cemetery is a place of public gathering. In 1991, this Office opined that a small public cemetery constituted a public gathering place, noting as follows:

Cemeteries require public access. The friends and relatives of the deceased wish to visit their gravesides and decorate their graves. It would be just as offensive to those mourners to have beer sold nearby as it would for churchgoers to have beer sold near a church. ...

In 14 C. J. S. Cemeteries § 1 it is further stated: "A public cemetery is as much a public place as a courthouse or a market." From these principles it must be concluded that even if the cemetery in question is on private property, the owner does not have the right to forbid its use for cemetery purposes. Therefore, the County Commission's two-thousand foot (2,000 foot) rule would apply.

Op. Tenn. Att'y Gen. No. 91-57, at 1-2 (June 10, 1991).

However, in 1992, this Office clarified its prior opinion based upon a review of an unpublished Tennessee Supreme Court decision, finding that whether a particular cemetery is a place of public gathering is dependent on the facts of the particular case. Op. Tenn. Att'y Gen. No. 92-51 (September 16, 1992).

The Tennessee Supreme Court case relied upon by this Office in its 1992 opinion was an unpublished decision issued in 1970.[2] In this case, the Court concluded that on the specific facts presented the cemetery in question was not a place of public gathering, finding as follows:

In this case, we cannot conclude that a cemetery is, or is not, as a matter of law, a "place of public gathering". However, when the phrase in question, "places of public gathering" is considered in context, it must follow that the cemeteries in this case are not within the meaning of the statute. Schools and churches are institutions which are dedicated and intended for the use and benefit of the general public. The cemeteries in question both engage in the sale of lots to those wishing to be interred there. We do not believe it was the intention of the Legislature to include such enterprises as places of public gathering.

Allen v. Gibson County Beer Board Commission, Gibson Law, at p. 6 (Tenn. 1970). (Emphasis added).

Opinion No. 92-51, after consideration of the Allen case, found there may exist circumstances where cemeteries may not be places of public gathering, depending on the facts presented. This finding is particularly appropriate given the innumerable small cemeteries existing throughout the State of Tennessee which may no longer be in use and rarely are visited by the public. The opinion nonetheless observed that, since the issuance of the Allen case in 1970, the General Assembly's adoption of extensive regulation of public and private cemeteries was a recognition that cemeteries were generally dedicated for the benefit and use of the public. The opinion thus concluded:

Since the General Assembly has declared through an Act adopted in 1989 that the operation of a cemetery is a public purpose and that maintenance of a cemetery serves a public purpose, we conclude that like schools and churches, many cemeteries could be considered dedicated for the use and benefit of the public. In addition, the reasoning of the Tennessee Supreme Court's published decision supports that conclusion. As the unpublished opinion demonstrates, however, not all cemeteries must be considered public gathering places in the context of T.C.A. § 57-5-105(a)(3). Thus, a determination as to whether a particular cemetery constitutes a "public gathering place" is dependent on the relevant facts.

Op. Tenn. Att'y Gen. No. 92-51, at 5-6.

The Tennessee Supreme Court issued its ruling on cemeteries as public gathering places in 1970, over forty years ago, and this Office issued its opinion on this issue in 1992, almost twenty years ago. The General Assembly has not acted to change these interpretations, which is persuasive evidence of legislative adoption of the Court's and this Office's construction that the question of whether a particular cemetery is a public gathering place remains dependent on the relevant facts, to be determined by the trier of fact. See Freeman Industries, LLC v. Eastman Chemical Co., 172 S.W.3d 512, 519 (Tenn. 2005); Jones v. D. Canale & Co., 652 S.W.2d 336, 337-338 (Tenn. 1983).

[1] This opinion is therefore limited to an interpretation of Tenn. Code Ann. § 57-5-105 and does not address other issues, including any possible application of Tenn. Code Ann. § 57-5-109 to the facts presented.

[2] Rule 4 of the Tennessee Supreme Court specifically notes that, except between the parties, an unpublished opinion shall be considered merely persuasive, rather than controlling, authority. Tenn. Sup. Ct. R. 4(G).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

Requested by:
The Honorable Joey Hensley, M.D.
State Representative
106 War Memorial Building
Nashville, Tennessee 37243