Could Tennessee require beer-permit applicants to have been U.S. citizens or lawful residents for at least one year before applying?

Plain-English summary

In 2015, the Tennessee legislature amended Tenn. Code Ann. § 57-5-103(a) to require local governments to deny a beer permit unless the applicant had been a U.S. citizen or lawful resident for at least one year before applying. A state representative asked whether that rule was constitutional.

The AG concluded the rule was probably unconstitutional. The amendment drew a line based on alienage (lawful residents who had been in the country less than a year) and on national origin (naturalized citizens who had recently completed naturalization). Both classifications are "suspect" under federal equal protection doctrine, which means strict scrutiny applies and the state must show a compelling interest pursued by the least restrictive means. The AG noted that decades of Supreme Court and Tennessee AG opinions had struck down similar alienage-based occupational licensing rules, and it could not identify a compelling state interest that would distinguish this beer-permit rule from those.

Currency note

This opinion was issued in 2016. 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.

Background and statutory framework

Tenn. Code Ann. § 57-5-103 governs the issuance of beer permits for retail resale. The 2015 amendment (Chapter 29 of the Public Acts) added a new subdivision providing that no city or county could issue a permit unless the applicant had been a citizen or lawful U.S. resident for at least one year before applying.

The opinion walked through the equal protection framework. The federal Equal Protection Clause and Tennessee's parallel provisions in article I, § 8 and article XI, § 8, are coextensive (per Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509 (Tenn. 2005)) and "guarantee equal privileges and immunities for all those similarly situated" (Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139 (Tenn. 1993)). Tennessee, like other states, retains broad Twenty-first Amendment authority to regulate alcohol, but as the Sixth Circuit recognized in 37712, Inc. v. Ohio Dept. of Liquor Control, 113 F.3d 614 (6th Cir. 1997), that authority cannot override federal constitutional rights.

The Supreme Court's foundational decision on alienage discrimination, Graham v. Richardson, 403 U.S. 365 (1971), established that lawfully admitted resident aliens are protected by the Equal Protection Clause and that classifications based on alienage trigger strict scrutiny. Classifications based on national origin do as well (Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)).

The AG then collected the long line of decisions, federal and Tennessee, striking down occupational licensing rules that turned on citizenship: In re Griffiths, 413 U.S. 717 (1973) (bar admission); Wong v. Hohnstrom, 405 F. Supp. 727 (D. Minn. 1975) (pharmacist licensing); Kulkarni v. Nyquist, 446 F. Supp. 1269 (N.D.N.Y. 1977) (physical therapy licensing); Examining Board of Engineers, Architects and Surveyors v. Flores de Otero, 426 U.S. 572 (1976) (civil engineer registration); Karla v. State of Minnesota, 580 F. Supp. 971 (D. Minn. 1983) (beer-license citizenship rule struck down on the same theory). It also cited prior Tennessee AG opinions reaching the same conclusion about teacher tenure (77-308), veterinary licensing (82-81), notary citizenship (06-026), and beer-permit citizenship (78-1A, 81-407, 86-85, 88-197, 94-120).

On the national-origin theory, the AG relied on Faruki v. Rogers, 349 F. Supp. 723 (D.D.C. 1972), which struck down a ten-year citizenship requirement for the Foreign Service. The court there explained the discriminatory effect of a durational requirement: birthright citizens automatically satisfy it by age one, so the rule operates only against naturalized citizens. The same was true here. The one-year clock did not meaningfully filter applicants of any age above one, but it did burden naturalized citizens who had recently completed naturalization. The AG could not conceive of a compelling reason for the state to draw a line between someone who became a citizen 366 days ago and someone who became a citizen 364 days ago, and so concluded the rule would fail strict scrutiny on the national-origin axis as well.

Common questions

Q: Did this opinion strike down the statute?
A: No. AG opinions are advisory. The AG predicted that a court would strike the rule down if challenged, and recommended caution to anyone administering it.

Q: Who would be affected by a one-year citizenship/residency rule?
A: Lawful permanent residents who had been in the country less than a year, and naturalized citizens who had recently completed naturalization. Birthright citizens satisfy the durational requirement at age one, so as a practical matter the rule did not filter them.

Q: What level of scrutiny applies to alienage-based classifications?
A: Strict scrutiny, with narrow exceptions not applicable to beer permits. The state must show a compelling interest and that the classification is narrowly tailored to advance it. Per Graham v. Richardson, 403 U.S. 365 (1971), even regulatory privileges like occupational licensing fall within the rule.

Q: Hadn't the AG addressed beer permits and citizenship before?
A: Yes. The opinion catalogs at least five prior AG opinions, going back to 1978, all reaching the same conclusion: conditioning a beer permit on U.S. citizenship raises serious equal protection problems unless the state can carry the heavy strict-scrutiny burden.

Q: What does "narrowly tailored" mean in this context?
A: It means the classification must be the least restrictive means of achieving the state's compelling interest. The AG cited Faruki v. Rogers for the proposition that even a strong interest (there, ensuring the competence of Foreign Service officers) will not save a durational citizenship rule when other, less discriminatory tools (like a competence exam) are available.

Citations and references

Statutes and acts (as cited in the opinion):

• Tenn. Code Ann. § 57-5-103(a)
• 2015 Tenn. Pub. Acts, ch. 29 (SB 185/HB 145, 109th Gen. Assem.)
• U.S. Const. amend. XIV
• Tenn. Const. art. I, § 8; art. XI, § 8

Key cases:

• Graham v. Richardson, 403 U.S. 365 (1971), alienage is a suspect class
• Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), national origin triggers strict scrutiny
• In re Griffiths, 413 U.S. 717 (1973), bar admission citizenship rule struck down
• Examining Bd. v. Flores de Otero, 426 U.S. 572 (1976), civil engineer citizenship rule struck down
• Karla v. State of Minnesota, 580 F. Supp. 971 (D. Minn. 1983), beer-license citizenship rule struck down
• Faruki v. Rogers, 349 F. Supp. 723 (D.D.C. 1972), durational citizenship rule struck down on national-origin grounds

Prior AG opinions on the same issue:

• Tenn. Att'y Gen. Op. 78-1A (Jan. 3, 1978)
• Tenn. Att'y Gen. Op. 81-407 (July 10, 1981)
• Tenn. Att'y Gen. Op. 86-85 (Apr. 9, 1986)
• Tenn. Att'y Gen. Op. 88-197 (Nov. 10, 1988)
• Tenn. Att'y Gen. Op. 94-120 (Oct. 10, 1994)
• Tenn. Att'y Gen. Op. 12-94 (Oct. 8, 2012)
• Tenn. Att'y Gen. Op. 13-29 (Mar. 27, 2013)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2016/op16-009.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
March 4, 2016
Opinion No. 16-09
Constitutionality of 2015 Tenn. Pub. Acts, ch. 29, imposing durational citizenship/residency
requirement for issuance of beer permits
Question
Does 2015 Tenn. Public Acts, ch. 29 (SB 185/HB 145, 109th Gen. Assem. (2015)), which
amended Tenn. Code Ann. § 57-5-103(a) to prohibit local governments from issuing a permit for
the resale of beer to an applicant who has not been a citizen or a lawful resident of the United
States for at least one year violate the federal or Tennessee Constitution?

Opinion
Yes. The durational citizenship/residency requirement imposed by Chapter 29 for the
issuance of a beer permit is unlikely to pass constitutional muster. By discriminating based on
alienage and national origin the amended statute raises equal protection concerns. If challenged,
it would be subject to strict judicial scrutiny since it targets members of a "suspect class." And
because the statute does not appear to serve a compelling state interest, it is likely to be found
violative of the equal protection guarantees of both the Tennessee and the United States
Constitutions. Even if the statute could be justified as furthering a compelling state interest, it is
not sufficiently narrowly tailored to survive a constitutional challenge.

ANALYSIS

Tennessee Code Ann. § 57-5-103 governs the issuance of permits for purchases of beer for
resale. Section 57-5-103(a) was amended by 2015 Tenn. Public Acts, ch. 29, to add the following
new subdivision:

After July 1, 2015, a city or county shall not issue a permit under this chapter unless
the applicant has been a citizen or lawful resident of the United States for not less
than one (1) year immediately preceding the date upon which the application is
made to the city or county.

By thus conditioning the issuance of a beer permit on the duration of the applicant's U.S.
citizenship or the applicant's lawful residency in the U.S., Tenn. Code Ann. § 57-5-103(a), as
amended, discriminates against persons who have been U.S. citizens or lawful residents in the U.S.
for less than a year. In other words, the statute discriminates in the first instance against a certain
class of citizens and in the second instance against a certain class of lawful residents.

The federal Equal Protection Clause provides that "no State shall make or enforce any law
which shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S.
Const. amend. XIV. The Tennessee Constitution, article I, section 8, and article XI, section 8, also
"guarantee[s] equal privileges and immunities for all those similarly situated." Tennessee Small
Sch. Sys. v. McWherter, 851 S.W.2d 139, 152 (Tenn. 1993). Tennessee's equal protection
guarantee is coextensive with the equal protection provisions of the United States Constitution.
Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 518 (Tenn. 2005).

States generally retain, in addition to their inherent police powers, broad powers under the
Twenty-first Amendment to the United States Constitution to regulate the sale of alcoholic
beverages within their borders, but they may not do so in violation of a person's federal
constitutional rights. 37712, Inc. v. Ohio Dept. of Liquor Control, 113 F.3d 614, 618 (6th Cir.
1997). In the equal protection context, "person" "encompasses lawfully admitted resident aliens
as well as citizens of the United States and entitles both citizens and aliens to the equal protection
of the laws of the State in which they reside." Graham v. Richardson, 403 U.S. 365, 371 (1971).

When a state limitation is challenged as violative of a person's equal protection rights, both
Tennessee and federal courts will apply one of three levels of scrutiny depending on the nature of
the right asserted: strict scrutiny; intermediate scrutiny; or "rational basis" scrutiny. Tenn. Small
Sch. Sys., 851 S.W.2d at 153. Equal protection analysis "requires strict scrutiny of a legislative
classification only when the classification interferes with the exercise of a 'fundamental right'
(e.g., right to vote, right of privacy), or operates to the peculiar disadvantage of a 'suspect class'
(e.g., age or race)." State v. Tester, 879 S.W.2d 823, 828 (Tenn. 1994).

Aliens (non-United States citizens) are a "suspect class" for equal protection purposes, and,
with narrow exceptions not applicable here, laws that discriminate on the basis of alienage are
subject to strict scrutiny. Graham v. Richardson, 403 U.S. 365, 372 (1971). Like classifications
based on alienage, classifications based on national origin are also subject to strict judicial scrutiny.
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).

To survive strict scrutiny, the state must show that it has a compelling state interest
justifying the discrimination. If there is no compelling interest, that ends the inquiry and the
discriminatory law fails. If there is a compelling interest, the state must then show that the
challenged law furthers that interest by the least restrictive means practically available. Graham
v. Richardson, 403 U.S. 365, 372 (1971). Even if there is a compelling state interest to justify the
discriminatory law, if the law is not narrowly tailored to further that interest, then the law will be
struck down as unconstitutional. Id.; see also Tenn. Att'y Gen. Op. 86-85 (Apr. 9, 1986); Tenn.
Att'y Gen. Op. 12-94 (Oct. 8, 2012).

The residency and citizenship requirements of Chapter 29 discriminate on the basis of
alienage and national origin, each a "suspect class." Accordingly, any equal protection challenge
to the statute would be subject to strict scrutiny.

For example, the U.S. Supreme Court struck down a state rule that excluded resident aliens
from admission to the state bar. In re Griffiths, 413 U.S. 717 (1973). Although the state had a
substantial interest in ensuring that persons admitted to the practice of law were qualified, the state
failed to show that the classification based on alienage was necessary to promoting or safeguarding
that interest. Id. at 727. A statutory requirement of United States citizenship for registration as a
pharmacist has been struck down as an equal protection violation. Wong v. Hohnstrom, 405 F.
Supp. 727 (D. Minn. 1975). See also Kulkarni v. Nyquist, 446 F. Supp. 1269 (N.D.N.Y. 1977).

The Supreme Court also nullified a Puerto Rico statute that required an applicant for
registration as a civil engineer to be a United States citizen. Examining Board of Engineers,
Architects and Surveyors v. Flores de Otero, 426 U.S. 572 (1976).

A state limit on the issuance of a license to sell beer based on alienage has also been found
to violate equal protection. A permanent resident (non-U.S. citizen) brought an equal protection
challenge to a statute that limited licenses to sell beer to U.S. citizens. The statute did not survive
strict scrutiny. Karla v. State of Minnesota, 580 F. Supp. 971, 973 (D. Minn. 1983).

This Office, too, has opined that various Tennessee statutes preventing aliens from
obtaining professional licenses violate the right to equal protection. See Tenn. Att'y Gen. Op. 77-
308 (Sept. 7, 1977); Tenn. Att'y Gen. Op. 82-81 (Feb. 22, 1982); Tenn. Att'y Gen. Op. 06-026
(Feb. 7, 2006). In particular, this Office has repeatedly opined that a citizenship requirement for
a permit to sell beer and alcoholic beverages violates the right to equal protection. See, e.g., Tenn.
Att'y Gen. Op. 78-1A (Jan. 3, 1978); Tenn. Att'y Gen. Op. No. 81-407 (July 10, 1981); Tenn.
Att'y Gen. Op. No. 86-85 (Apr. 9, 1986); Tenn. Att'y Gen. Op. 88-197 (Nov. 10, 1988); Tenn.
Att'y Gen Op. 94-120 (Oct. 10, 1994); Tenn. Op. Att'y. Gen. No. 13-29 (Mar. 27, 2013).

In short, absent a showing of a compelling state interest in prohibiting lawful residents of
less than one year from holding a beer permit, Chapter 29 will likely be held unconstitutional, if
challenged. Even if there is a compelling state interest to justify the discrimination based on
alienage, it is highly doubtful that the statute would be viewed as the least restrictive means for
furthering that interest.

Chapter 29 discriminates not only on the basis of alienage, but also on the basis of national
origin, which is, like alienage, a "suspect" classification. Adarand Constructors, Inc. v. Pena, 515
U.S. 200, 227 (1995). The prohibition on the issuance of permits to persons who have been citizens
for less than one year is, in effect, discrimination against naturalized citizens. A birthright citizen
would not be affected by the statute because he or she would satisfy the one-year durational
citizenship requirement at age one. Since a beer permit holder must be well over a year old, the
statute would not in practice burden a birthright citizen with a durational citizenship requirement.

For example, a statute imposing a ten-year citizenship requirement for Foreign Service
applicants was invalidated because the durational requirement had the effect of discriminating
against naturalized citizens, as does Chapter 29. Faruki v. Rogers, 349 F. Supp. 723 (D.D.C.
1972). In analyzing the issue, the court explained the discriminatory effect of a durational
citizenship requirement:

[H]ere the Government grants citizenship to an immigrant and then, solely on the
basis of his original foreign status, proceeds to give him second-class, more
burdensome treatment. Classifications of this sort have the defect of denying the
promise of equal opportunity which this country has traditionally and proudly held
open to the millions of immigrants who have literally built America in the hope that
they could share fairly in its benefits. Worse, in our mind, such classifications, like
those based on race, have about them an odor of prejudice against and oppression
of poorly represented minority groups.

Id. at 729. The government had a strong interest, namely one of insuring that its Foreign Service
officers were "highly competent." Id. at 730. But the court held that the statute was not narrowly
tailored to serve that interest, because the durational requirement had no nexus to the individual's
qualifications for the Foreign Service and the objective could be served by less restrictive means,
for example, through a competitive examination process. Id. at 731.

We are not aware of and cannot conceive of a compelling state interest in discriminating
between naturalized citizens and birthright citizens, or for that matter between naturalized citizens
who have been citizens for 366 days and naturalized citizens who have been citizens for 364 days
for the purposes of selling beer. Absent a compelling state interest to justify the discriminatory
effects, the one-year U.S. citizenship requirement of Chapter 29 would not survive an equal
protection challenge under either the federal or the Tennessee Constitution.

In sum, the durational citizenship/residency requirement imposed by Chapter 29 for the
issuance of a beer permit is unlikely to pass constitutional muster. By discriminating based on
alienage and national origin the amended statute raises equal protection concerns. If challenged,
it would be subject to strict judicial scrutiny since it targets members of a "suspect class." And
because the statute does not appear to serve a compelling state interest, it is likely to be found
violative of the equal protection guarantees of both the Tennessee and the United States
Constitutions. Even if the statute could be justified as furthering a compelling state interest, it is
not sufficiently narrowly tailored to survive a constitutional challenge.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE S. BLUMSTEIN
Solicitor General

BROOKE K. SCHIFERLE
Assistant Attorney General

Requested by:
The Honorable Martin Daniel
State Representative
109 War Memorial Building
Nashville, TN 37243