If a Nashville-style stadium has 25,000 permanent seats and 5,000 temporary seats, can the city still levy the 'municipal stadium' privilege tax?

Subject

Whether the 30,000-seat threshold in Tenn. Code Ann. § 7-3-202(a)(3) requires that all 30,000 seats be permanently affixed to the stadium structure, or whether the threshold can be met with a combination of permanent and temporary/movable seats.

Plain-English summary

Tennessee law authorizes metropolitan governments (Nashville is the prominent example) to levy a privilege tax on the privilege of attending an event at a "municipal stadium." § 7-3-202(a)(3) defines "municipal stadium" as "a structure that is constructed or improved after July 7, 1977, to contain seats for not less than thirty thousand (30,000) spectators and that is used primarily for sporting events and other related activities."

State Senator Jon Lundberg asked: does the 30,000 have to be permanent seats, or can a structure with 25,000 permanent seats and 5,000 temporary seats qualify? The question matters because new and modernized stadiums often use a mix of fixed seating and reconfigurable / removable seating to support different event types (NFL games, concerts, soccer, expos).

The AG's answer is yes, movable and temporary seats count.

The reasoning is purely textual. The statute uses the verb "contain." When applied to "seats," "contain" means "have or hold (someone or something) within" (citing the New Oxford American Dictionary, an approach the Tennessee Court of Criminal Appeals approved in State v. Clark). A stadium that has, on event day, 30,000 seats inside it (some bolted down, some bolted-on temporary, some movable) contains 30,000 seats.

The AG also applied a default canon of statutory construction: the legislature is presumed to mean what it said and not say what it didn't. Had the legislature wanted to limit the threshold to permanently affixed seats, it would have said "permanent seats" or "fixed seats." It used "contain seats." Reading "permanent" into the statute would impermissibly amend it (citing Gleaves v. Checker Cab Transit Corp., Town of Mount Carmel v. City of Kingsport, and Worley v. Weigels).

Question 2 follows directly: if a stadium has 25,000 permanent seats and 5,000 temporary seats, does the metropolitan government have authority to levy the privilege tax? Yes, assuming all other statutory requirements (post-1977 construction or improvement, primarily sporting events, and the local-government action under § 7-3-202) are met.

The opinion is a clean, six-page textualist exercise. It's significant because it speaks to actual stadium-finance questions facing Nashville's metropolitan government as it considers Nissan Stadium replacement, soccer-stadium development, and similar projects.

What this means for you

Metropolitan government finance officers and attorneys

Under this opinion, the 30,000-seat threshold in § 7-3-202(a)(3) is met by a structure that "has or holds" 30,000 seats, whether or not all of them are permanently affixed. A stadium with 25,000 permanent seats and 5,000 temporary or movable seats contains 30,000 seats and can qualify, "assuming it also satisfies all other applicable statutory requirements." The opinion lists those other requirements (construction or improvement after July 7, 1977, and use primarily for sporting events and related activities) but does not analyze them; it resolves only the seating question.

Stadium developers and operators

The opinion's holding is that a mix of permanent and temporary seating counts toward the threshold, because the statute says "contain seats" rather than "permanent seats." The opinion turns entirely on that word and does not address seat-mix design choices, event configurations, or how the tax is collected.

Ticket buyers and the public

The opinion concerns whether a stadium meets the statutory definition that lets a metropolitan government levy the attendance privilege tax. It holds that movable and temporary seats count toward the 30,000-spectator threshold. It does not address the tax rate, how the tax is calculated, or how it is collected; those are set by the metropolitan government's own ordinance under § 7-3-202.

Common questions

Q: Do temporary or movable seats count toward the 30,000-seat threshold?

Yes. The opinion holds that § 7-3-202(a)(3) requires only that a stadium "contain seats" for at least 30,000 spectators, and "contain" means "have or hold within." If a stadium can seat 30,000 at a given event, it contains 30,000 seats whether or not all of them are permanently affixed.

Q: A stadium has 25,000 permanent and 5,000 temporary seats. Can the metropolitan government levy the privilege tax?

Yes, per the opinion's second holding, because there is no statutory requirement that all 30,000 seats be permanently affixed, assuming the stadium also satisfies the statute's other requirements.

Q: Why didn't the AG read a "permanent seats" requirement into the statute?

The opinion explains that legislative intent comes from the words used, not the words omitted. The General Assembly wrote "contain seats," not "permanent seats." Reading in a permanence requirement would impermissibly restrict the statute beyond its intended scope, which courts decline to do.

Q: Does the opinion resolve whether a particular stadium owes the tax?

No. It answers only the seating question. It expressly conditions qualification on the stadium also satisfying the statute's other requirements, including construction or improvement after July 7, 1977, and use primarily for sporting events and related activities, which the opinion does not analyze.

Background and statutory framework

§ 7-3-202. Authorizes the legislative body of a Tennessee metropolitan government to levy a tax on the privilege of attending events at a "municipal stadium."

§ 7-3-202(a)(3). Defines "municipal stadium" as "a structure that is constructed or improved after July 7, 1977, to contain seats for not less than thirty thousand (30,000) spectators and that is used primarily for sporting events and other related activities." The opinion takes this definition as given and resolves only whether the 30,000 seats must be permanent.

The textualist canon. The AG's analysis is straight statutory interpretation:

• Gragg v. Gragg (Tenn. 2000): legislative intent prevails.
• Carson Creek Vacation Resorts (Tenn. 1993): plain-and-ordinary meaning controls when text is unambiguous.
• Gleaves v. Checker Cab Transit Corp. (Tenn. 2000): courts construe, don't amend.
• Jackson v. Jackson (Tenn. 1948), Town of Mount Carmel (Tenn. 1965), and Worley v. Weigels (Tenn. 1996): courts may not unduly restrict or expand statutes.
• State v. Clark (Tenn. Crim. App. 2011): dictionaries are usual sources for "natural and ordinary meaning" when not statutorily defined.
• Voss v. Shelter Mut. Ins. Co. (Tenn. Ct. App. 1997) and Coleman v. State (Tenn. 2011): legislative intent comes from words used, not words omitted.
• Loftin v. Langsdon (Tenn. Ct. App. 1991): courts don't supply restrictive language.

The AG's reading: "contain seats" means "have or hold seats within," a capacity-based test that doesn't turn on whether the seats are permanent.

Practical context (2022). Nashville's stadium picture in 2022 included Nissan Stadium (then known as the home of the Tennessee Titans), with discussion ongoing about stadium replacement. Vanderbilt Stadium and other Nashville-area sports facilities have varied seating configurations. The AG opinion provides a generalizable rule that doesn't depend on any specific stadium.

Citations

• Tenn. Code Ann. § 7-3-202 (metropolitan government's privilege tax on stadium attendance)
• Tenn. Code Ann. § 7-3-202(a)(3) (definition of "municipal stadium," 30,000-seat threshold)
• Gragg v. Gragg, 12 S.W.3d 412 (Tenn. 2000) (legislative-intent rule)
• Carson Creek Vacation Resorts, Inc. v. State, Dep't of Revenue, 865 S.W.2d 1 (Tenn. 1993) (plain-meaning rule)
• Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799 (Tenn. 2000) (no judicial amendment)
• Jackson v. Jackson, 186 Tenn. 337 (1948) (court construes as written)
• Town of Mount Carmel v. City of Kingsport, 217 Tenn. 298 (1965) (no statutory alteration)
• Worley v. Weigels, Inc., 919 S.W.2d 589 (Tenn. 1996) (no expansion or restriction beyond intended scope)
• State v. Clark, 355 S.W.3d 590 (Tenn. Crim. App. 2011) (dictionary for ordinary meaning)
• Voss v. Shelter Mut. Ins. Co., 958 S.W.2d 342 (Tenn. Ct. App. 1997) (intent from words used)
• Coleman v. State, 341 S.W.3d 221 (Tenn. 2011) (no reading in of language)
• Loftin v. Langsdon, 813 S.W.2d 475 (Tenn. Ct. App. 1991) (courts don't supply restrictive words)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2022/op22-15.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
December 12, 2022
Opinion No. 22-15
Seating Requirements for a "Municipal Stadium" Under Tenn. Code Ann. § 7-3-202
Question 1
Does Tenn. Code Ann. § 7-3-202, which authorizes the legislative body of a metropolitan
government to levy a tax on the privilege of attending an event at a "municipal stadium" that is
"constructed or improved after July 7, 1977, to contain seats for not less than thirty thousand
(30,000) spectators," require any or all the seats to be permanently affixed to the stadium?
Opinion 1
No, there is no requirement that any or all the seats be permanently affixed to the stadium.
A structure that has 30,000 seats or more—whether all or some of those seats are permanently
affixed—meets the definition of a "municipal stadium" for purposes of Tenn. Code Ann. § 7-3-
202(a)(3), assuming it also satisfies all other applicable statutory requirements.
Question 2
Could a metropolitan government levy the privilege tax if a municipal stadium has 25,000
permanent seats and 5,000 temporary seats?
Opinion 2
Yes. Since there is no statutory requirement that all 30,000 seats be permanently affixed,
a metropolitan government could levy the privilege tax if a municipal stadium has 25,000
permanent seats and 5,000 temporary seats.
ANALYSIS
Under Tenn. Code Ann. § 7-3-202, the legislative body of a metropolitan government is
authorized to levy a tax on the privilege of attending an event at a "municipal stadium." A
"municipal stadium" is defined in relevant part as "a structure that is constructed or improved after
July 7, 1977, to contain seats for not less than thirty thousand (30,000) spectators and that is used
primarily for sporting events and other related activities …." Tenn. Code Ann. § 7-3-202(a)(3)
(emphasis added).
The primary rule of statutory construction is that the intention of the General Assembly
must prevail. Gragg v. Gragg, 12 S.W.3d 412, 415 (Tenn. 2000); Carson Creek Vacation Resorts,
Inc. v. State, Dep't of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993). When the language of a statute is
unambiguous, legislative intent is to be ascertained from the plain and ordinary meaning of the
statutory language. Carson Creek Vacation Resorts, 865 S.W.2d at 2. The court's duty is to
construe the statute as written. Gleaves v. Checker Cab Transit Corp., Inc., 15 S.W.3d 799, 803
(Tenn. 2000); Jackson v. Jackson, 186 Tenn. 337, 342, 210 S.W.2d 332, 334 (1948). The court
may not alter or amend the statute, Town of Mount Carmel v. City of Kingsport, 217 Tenn. 298,
306, 397 S.W.2d 379, 382 (1965), nor may it unduly restrict or expand the statute's coverage
beyond its intended scope, Worley v. Weigels, Inc., 919 S.W.2d 589, 593 (Tenn. 1996).
The statutory definition of a "municipal stadium" is plain and clear and unambiguous with
respect to seating requirements: The statute requires only that the stadium "contain seats" for at
least 30,000 spectators; it does not require that those 30,000 seats be permanently affixed to the
stadium. Tenn. Code Ann. § 7-3-202(a)(3) (emphasis added). When the verb "contain" is used
with an object, such as "seats," "contain" is generally understood to mean "have or hold (someone
or something) within." New Oxford American Dictionary 374 (3d ed. 2010); see State v. Clark,
355 S.W.3d 590, 593 (Tenn. Crim. App. 2011) (a dictionary is the usual and accepted source for
the "natural and ordinary meaning" of statutory language when the General Assembly has not
otherwise defined a statutory term).
Thus, to qualify as a "municipal stadium" subject to the levy of the privilege tax, the
stadium must be a structure that has or holds seats for not less than 30,000 spectators. Even if
some or all of the seats in a stadium are moveable, as long as the stadium can seat at least 30,000
spectators at any given event, the stadium has or holds within it—i.e., contains—seats for 30,000
spectators.
Moreover, the intention of the General Assembly is to be derived from the words that it
has used, not words that it has chosen not to include, Voss v. Shelter Mut. Ins. Co., 958 S.W.2d
342, 345 (Tenn. Ct. App. 1997), and the General Assembly did not include any language that
requires the seats to be permanently affixed. See Tenn. Code Ann. § 7-3-202(a)(3). Had the
General Assembly intended to limit "municipal stadium" to include only structures with 30,000
permanent seats it would have done so explicitly. But the General Assembly did not do so, and
courts decline to read language into a statute that the General Assembly did not place there.
Coleman v. State, 341 S.W.3d 221, 240 (Tenn. 2011) (citation omitted). Reading into the statute
a requirement that the 30,000 seats be permanently affixed would impermissibly alter or amend
the statute by restricting its coverage beyond its intended scope—i.e., by limiting the definition of
"municipal stadium" in a way that the legislature did not. See Gleaves, 15 S.W.3d at 803 (it is not
for courts to alter or amend statute); Loftin v. Langsdon, 813 S.W.2d 475, 480 (Tenn. Ct. App.
1991) (unless "manifest injustice" would result, a court does not supply words to a statute that
would limit the statute's meaning).
In sum, a structure that has 30,000 seats or more—whether all or some of those seats are
permanently affixed to the structure—meets the definition of a "municipal stadium" for purposes
of Tennessee Code Annotated § 7-3-202(a)(3), assuming it also satisfies all other applicable
statutory requirements. And since there is no statutory requirement that all 30,000 seats be
permanently affixed, a metropolitan government could levy the privilege tax if a municipal
stadium has 25,000 permanent seats and 5,000 temporary seats.
JONATHAN SKRMETTI
Attorney General and Reporter
ANDRÉE SOPHIA BLUMSTEIN
Solicitor General
LAURA T. KIDWELL
Assistant Solicitor General
Requested by:
The Honorable Jon Lundberg
State Senator
425 Rep. John Lewis Way N.
Suite 744
Nashville, Tennessee 37243