Can a Tennessee city sell liquor, wine, or beer at city-owned venues like an events center, pavilion, or golf course?

Subject

Opinion No. 14-03, Sale of Alcoholic Beverages at Locations Owned by the City of Clarksville, January 9, 2014

Plain-English summary

Clarksville's legislators asked nine variations on a single question: can the City of Clarksville sell alcohol, in any form, at city-owned venues like the Wilma Rudolph Events Center, Freedom Point Pavilion, or municipal golf courses? The AG said no to nearly every variation.

The opinion turns on who can hold a license. Tenn. Code Ann. § 57-4-203(i)(1)(A) makes it unlawful "for any person, firm, corporation, partnership, or association to allow the dispensing of alcoholic beverages" without a license from the Tennessee Alcoholic Beverage Commission. The parallel beer-permit statute, § 57-5-103(a)(2), restricts beer permits to a "person, firm, corporation, joint-stock company, syndicate, or association." The AG read that list of entities to exclude municipalities.

The "corporation" question is the linchpin. Cities are technically "municipal corporations," and the City argued that brought them within § 57-4-203(i)(1)(A)'s reference to "corporation." The AG disagreed for three reasons:

1. The Tennessee Supreme Court has held that municipalities are not normally "persons" for statutory purposes absent specific legislation. Johnson City v. Cowles Communications, 477 S.W.2d 750, 753 (Tenn. 1972). The same logic applies to "corporation."
2. Multiple AG opinions dating to 1967 have specifically interpreted the alcohol-licensing statute to exclude municipal corporations. The General Assembly amended the statute many times since 1967 without disturbing that interpretation, and longstanding agency interpretations get great weight under Covington Pike Toyota, Inc. v. Cardwell, 829 S.W.2d 132 (Tenn. 1992).
3. The general principle from Keeble v. Loudon Utilities, 370 S.W.2d 531 (Tenn. 1963), and The Mayor v. Ray, 86 U.S. 468 (1873), is that municipal corporations are public bodies distinct from commercial corporations and ordinarily not embraced by the bare term "corporation."

Workarounds the City proposed and the AG rejected.

• City employee as licensee on the City's behalf. No. An employee acting under City authority cannot do what the City itself cannot. Allmand v. Pavletic, 292 S.W.3d 618, 628-30 (Tenn. 2009): "One cannot do indirectly what is prohibited directly."
• City-controlled nonprofit. No, same reason. A nonprofit "instrumentality" of the City is the City for these purposes.
• Charter authority. No. Even Clarksville's private-act charter cannot grant powers that conflict with the general law. Tenn. Const. art. XI, § 9, gives the General Assembly supremacy over alcohol regulation, and State ex rel. Strader v. Word, 508 S.W.2d 539, 546 (Tenn. 1974), confirms that private-act charters are superseded by general law.

What does work.

• An independent nonprofit not controlled by the City can be licensed to sell liquor-by-the-drink at a qualifying location like a "convention center" or "club" under §§ 57-4-101 and -102, even if the location is City-owned property.
• A licensed caterer can serve at City-owned facilities for private events under Tenn. Code Ann. § 57-4-203(i)(3).
• Note the AG's footnote that the Wilma Rudolph Events Center and Freedom Point Pavilion do not, on their face, fit § 57-4-102's narrow categories. A municipal golf course could qualify as a "club" only if it meets § 57-4-102(8)(A)'s definition (including a non-profit association with at least 100 members).

Currency note

This opinion was issued in 2014. 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.

Tennessee's alcohol licensing statutes in Title 57 have been amended over the years. Anyone applying these rules to a current situation should check the current text of Tenn. Code Ann. Title 57, Chapters 4 and 5, before relying on the categories and definitions described here.

Background and statutory framework

The state's plenary authority. Tennessee courts have repeatedly recognized the General Assembly's plenary authority over alcohol, limited only by state and federal constitutions. Martin v. Beer Bd. for City of Dickson, 908 S.W.2d 941, 945 (Tenn. Ct. App. 1995). No person has an inherent right to sell or serve alcohol. Safier v. Atkins, 199 Tenn. 574, 288 S.W.2d 441 (1955).

Prohibition baseline. Tennessee's "bone dry" laws (former Tenn. Code Ann. § 39-2501 et seq.) prohibited everything by default. Modern law works as a list of legislative permissions on top of that baseline. Unless a particular type of sale or distribution is permitted, it is forbidden. Chadrick v. State, 175 Tenn. 680, 137 S.W.2d 284 (1940).

The licensee list, § 57-4-203(i)(1)(A). "Except with respect to a caterer licensed under this chapter, it is unlawful for any person, firm, corporation, partnership, or association to allow the dispensing of alcoholic beverages except sacramental wines and beer, in any establishment unless such establishment is licensed under this title." Licenses must come from the Tennessee Alcoholic Beverage Commission (§ 57-4-201(b)(1)), and applicants must meet the requirements of §§ 57-3-110, 57-4-101, and 57-4-102.

Definitions. Tenn. Code Ann. §§ 57-4-102, 57-5-502, and 57-5-603 contain the relevant definition sections. Title 57 does not define "person" to include municipalities for liquor or beer purposes, in contrast to, e.g., § 68-221-1102(5).

The municipal-corporation problem. A municipality "is merely a creature of the State" (Metropolitan Development and Housing Agency v. South Central Bell Tel. Co., 562 S.W.2d 438, 443 (Tenn. Ct. App. 1977)) and must comply with state law where the State has exercised its prerogative (City of Bartlett v. Hoover, 571 S.W.2d 291, 293 (Tenn. 1978)). The State has fully occupied alcohol regulation; municipal charters cannot override Title 57.

The 1967 AG opinion line. Starting May 22, 1967, the AG's office advised the Alcoholic Beverage Commission that the term "corporation" in the predecessor of § 57-4-203(i)(1)(A) referred only to private corporations. That interpretation was repeated in subsequent letters in 1969, 1970, etc. The General Assembly has amended § 57-4-203 many times since 1967 without changing that result, which under Covington Pike Toyota, Inc. v. Cardwell, 829 S.W.2d 132 (Tenn. 1992), means the longstanding interpretation gets significant weight.

Beer-permit-specific authority. § 57-5-103(a)(1) makes it unlawful to operate any beer-related business without a permit from the county or city. § 57-5-103(a)(2) restricts permits to "the owner of a business, whether a person, firm, corporation, joint-stock company, syndicate, or association." The same exclusion of municipalities applies.

Caterer carve-out. Tenn. Code Ann. § 57-4-203(i)(3) is the express caterer exception. A licensed caterer can serve alcohol at otherwise unlicensed locations.

Charter supremacy doctrine. Even though Clarksville has a private-act charter under Tenn. Const. art. XI, § 9, the General Assembly's general laws supersede inconsistent private-act provisions. State ex rel. Strader v. Word, 508 S.W.2d 539, 546 (Tenn. 1974). A city ordinance cannot ignore the state's regulatory acts. State ex rel. Beasley v. Mayor & Aldermen of Fayetteville, 196 Tenn. 407, 415-16, 268 S.W.2d 330, 334 (1954).

Common questions

Why is the City of Clarksville treated differently from a private corporation?

Because Tennessee's alcohol-licensing statutes, as construed by the AG and the Alcoholic Beverage Commission for nearly fifty years, restrict licenses to private entities. A municipal corporation is a public body, not a commercial corporation, and falls outside the licensing list.

Could the City lease the events center to a private operator that gets the license?

Yes, in principle. An independent third-party operator at a qualifying location can be licensed. The AG was specific that a City-controlled nonprofit cannot do what the City cannot, but a genuinely independent operator is not the City.

Can a licensed caterer serve alcohol at the Wilma Rudolph Events Center for a wedding?

Yes. § 57-4-203(i)(3) lets licensed caterers serve alcohol at unlicensed locations. That is one practical workaround for City-owned event spaces hosting private events.

Could the General Assembly fix this by statute?

The opinion does not say, but the General Assembly has the constitutional authority to grant or deny licensure to any class of entities, including municipalities. The legislature has historically chosen not to.

Does this apply only to Clarksville?

No. The reasoning applies to any Tennessee municipality. The questions came from Clarksville, but the conclusions about "person, firm, corporation, partnership, or association" are statewide.

What about a county or metro government?

The opinion focuses on municipalities. Counties and metropolitan governments would have to be analyzed separately under the same statutory text. The relevant definitional question is whether a county or metro government qualifies as a licensee under § 57-4-203(i)(1)(A) and § 57-5-103(a)(2).

Citations

Constitutional: Tenn. Const. art. XI, § 9; U.S. Const. amend. XXI. Statutory: Tenn. Code Ann. §§ 57-3-110, 57-4-101, 57-4-101(a), 57-4-102, 57-4-102(8)(A), 57-4-201(b)(1), 57-4-201(c)(2), 57-4-201(d)(3), 57-4-203(i)(1)(A), 57-4-203(i)(3), 57-5-103(a)(1), 57-5-103(a)(2), 57-5-103(a)(8), 57-5-502, 57-5-502(5), 57-5-603, 68-221-1102(5). Cases as listed in cases_cited above. Prior AG opinions and letters: Letter from George F. McCanless, AG, to Carl A. Jones, Chairman, Alcoholic Beverage Commission (May 22, 1967); related 1967-1970 letters; Tenn. Att'y Gen. Op. 80-409 (Aug. 14, 1980); Tenn. Att'y Gen. Op. 12-02 (Jan. 6, 2012). Clarksville charter: 1957 Tenn. Priv. Acts, ch. 292, § 5(A)(55), (56), as amended by 1981 Tenn. Priv. Acts, ch. 139, § 1.

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-003.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL

January 9, 2014

Opinion No. 14-03

Sale of Alcoholic Beverages at Locations Owned by the City of Clarksville

QUESTIONS

1. Does Tennessee law prevent or prohibit the City of Clarksville ("City") from selling liquor by the drink, wine, or beer to private party lessees and their guests at City-owned property, including the Wilma Rudolph Events Center, Freedom Point Pavilion, or municipal golf courses?

2. Does Tennessee law prevent or prohibit the City from selling liquor by the drink, wine, or beer to the public generally during public events at City-owned property, including the Wilma Rudolph Events Center, Freedom Point Pavilion, or municipal golf courses?

3. Does Tennessee law allow the City, as a municipal corporation, to obtain a license to sell liquor by the drink at a fixed site owned by the City?

4. If the answer to Question 3 is "no," may the City, through a City employee, such as the Director of the Parks and Recreation Department or some other departmental employee, obtain a license to sell liquor by the drink on behalf of the City at a fixed site owned by the City?

5. If the answer to Question 3 is "no," does Tennessee law allow the City to create a non-profit corporation, through which a license to sell liquor by the drink at a "fixed site" owned by the City could be obtained?

6. Does Tennessee law permit the City, as a municipal corporation, to obtain a beer permit to sell beer at a fixed site owned by the City?

7. If the answer to Question 6 is "no," may the City, through a City employee, such as the Director of the Parks and Recreation Department or some other departmental employee, obtain a permit to sell beer on behalf of the City at a fixed site owned by the City?

8. If the answer to question 6 is "no," does Tennessee law allow the City to create a non-profit corporation, through which a permit to sell beer at a fixed site owned by the City could be obtained?

9. Does the City's private act charter specifically or generally authorize the City to sell liquor by the drink, wine, or beer?

OPINIONS

1. Under state law, the City cannot sell alcoholic beverages or beer to private party lessees and their guests.

2. Under state law, the City cannot sell alcoholic beverages or beer to the public generally.

3. No. As a municipal corporation, the City cannot obtain a license to sell liquor by the drink at any location.

4. No. A City employee cannot do on behalf of the City that which the City itself is prohibited from doing.

5. No. A non-profit corporation created and controlled by the City cannot do on behalf of the City that which the City itself is prohibited from doing. A non-profit corporation that is not an instrumentality of the City could obtain a liquor-by-the-drink license for a site identified in Tenn. Code Ann. § 57-4-101.

6. No. As a municipal corporation, the City cannot obtain a beer permit under Tenn. Code Ann. § 57-5-103(a)(2).

7. No. A City employee cannot do that which the City itself is prohibited from doing.

8. No. A non-profit corporation created and controlled by the City cannot do on behalf of the City that which the City itself is prohibited from doing. A non-profit corporation that is not an instrumentality of the City could obtain a permit to sell beer for consumption on the premises at locations that are approved for licensing under Tenn. Code Ann. § 57-4-101.

9. No. A municipal government cannot do under charter or ordinance that which is not allowed by a Tennessee general statute.

ANALYSIS

1. Tennessee law expressly provides that "[i]t is lawful to sell wine and other alcoholic beverages as defined in § 57-4-102, and beer as defined in § 57-6-102, to be consumed on the premises" of certain locations listed in § 57-4-101 and defined in § 57-4-102. Tenn. Code Ann. § 57-4-101(a). Further, "[e]xcept with respect to a caterer licensed under this chapter, it is unlawful for any person, firm, corporation, partnership, or association to allow the dispensing of alcoholic beverages except sacramental wines and beer, in any establishment unless such establishment is licensed under this title." Tenn. Code Ann. § 57-4-203(i)(1)(A). The license so required must be obtained from the Tennessee Alcoholic Beverage Commission. Tenn. Code Ann. § 57-4-201(b)(1). In order to obtain a license, the applicant must meet the requirements of Tenn. Code Ann. §§ 57-3-110, 57-4-101, and 57-4-102. Tenn. Code Ann. § 57-4-201(d)(3). Similarly, Tenn. Code Ann. § 57-5-103(a)(8) requires a beer permit from a county or city for the sale of beer for on-premises consumption.

Tennessee courts have recognized the General Assembly's plenary power to regulate the distribution and sale of alcoholic beverages, restricted only by the federal and Tennessee Constitutions, stating:

The State's power over alcoholic beverages rests with the General Assembly. Only the General Assembly may legalize the sale of alcoholic beverages, Ewin v. Richardson, 217 Tenn. 534, 539, 399 S.W.2d 318, 320 (1966); Case v. Carney, 213 Tenn. 597, 604, 376 S.W.2d 492, 495 (1964), and the General Assembly's power is limited only by the state and federal constitutions. Fentress County Beer Bd. v. Cravens, 209 Tenn. 679, 687, 356 S.W.2d 260, 263 (1962).

Martin v. Beer Bd. for City of Dickson, 908 S.W.2d 941, 945 (Tenn. Ct. App. 1995). As this Office has previously explained:

No person has the inherent right to sell or serve alcoholic beverages. Safier v. Atkins, 199 Tenn. 574, 288 S.W.2d 441 (1955); Ketner v. Clabo, 189 Tenn. 260, 225 S.W.2d 54 (1950). The State of Tennessee has the authority to regulate or prohibit the sale and distribution of alcoholic beverages within the state, and this authority is derived from the state's inherent police power to protect the health, safety and welfare of its citizens, as preserved by the Twenty-first Amendment of the United States Constitution. Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35 (1966); Landman v. Kiser, 195 Tenn. 13, 225 S.W.2d 6 (1953).

An analysis of existing liquor legislation must begin from the absolute prohibition which existed with the 'bone dry' laws of this state. Tenn. Code Ann. § 39-2501 et seq. Unless the legislature has elsewhere permitted the sale, distribution or serving of alcoholic beverages, such is not permitted. See, generally, Chadrick v. State, 175 Tenn. 680, 137 S.W.2d 284 (1940). Thus, unless the legislature has permitted, either expressly or implicitly, the type of distribution of liquor contemplated by the nonprofit museum in question, it is not permitted.

Tenn. Att'y Gen. Op. 80-409, at 1 (Aug. 14, 1980). Tennessee's liquor-by-the-drink law reinforces this analysis, providing as follows:

Except with respect to a caterer licensed under this chapter, it is unlawful for any person, firm, corporation, partnership, or association to allow the dispensing of alcoholic beverages except sacramental wines and beer, in any establishment unless such establishments are licensed under this title.

Tenn. Code Ann. § 57-4-203(i)(1)(A) (emphasis added).

A "municipality is merely a creature of the State." Metropolitan Development and Housing Agency v. South Central Bell Telephone Co., 562 S.W.2d 438, 443 (Tenn. Ct. App. 1977). A municipality must comply with state law in matters in which the State has exercised its broad legislative prerogative. City of Bartlett v. Hoover, 571 S.W.2d 291, 293 (Tenn. 1978); Southern Ry. Co. v. Knoxville, 223 Tenn. 90, 96, 442 S.W.2d 619, 621 (1968); State v. Mayor and Aldermen of Town of Fayetteville, 196 Tenn. 407, 415-16, 268 S.W.2d 330, 333-34 (1954). Accordingly, the City must comply with the limitations set forth in Title 57, Chapters 4 and 5, which restrict the sale of alcoholic beverages for consumption on the premises and of beer, respectively.

Initially, the City cannot obtain a license to sell alcoholic beverages for on-premises consumption. Only a "person, firm, corporation, partnership, or association" can obtain a license to "allow the dispensing of alcoholic beverages except sacramental wines and beer." Tenn. Code Ann. § 57-4-203(i)(1)(A). Similarly, a beer permit is required for the sale of beer for on-premises consumption, and permits may be obtained only by a "person, firm, corporation, joint-stock company, syndicate, or association." Tenn. Code Ann. § 57-5-103(a)(8).

A municipality is not a "person, firm, corporation, partnership, or association" capable of obtaining a license under these statutes. The terms "person, firm, corporation, partnership, or association" are not generally defined by either statute. See Tenn. Code Ann. §§ 57-4-102; 57-5-502; 57-5-603 (definition sections). But cf. Tenn. Code Ann. § 57-5-502(5) (defining "person" as "any individual, partnership, corporation, association, syndicate, or any other combination of individuals" for purposes of part 5 of Chapter 5, Title 57). Although the term "person" is sometimes defined in the Tennessee Code to include municipalities, see, e.g., Tenn. Code Ann. § 68-221-1102(5), no comparable definition is found in Chapters 4 or 5 of Title 57. Many of the references to "person" in these chapters, however, refer only to attributes of individuals. See, e.g., Tenn. Code Ann. § 57-4-201(c)(2) (stating that "persons" to be in actual charge of the sale of alcoholic beverages must be of "good moral character"). In addition, "[o]rdinarily, absent legislation, neither the state, a political subdivision thereof, nor a municipal corporation is a 'person' within the meaning of a statute using the term." Johnson City v. Cowles Communications, Inc., 477 S.W.2d 750, 753 (Tenn. 1972). Thus, the term "person" does not include municipalities, and a municipality would not qualify as a firm, partnership, joint-stock company, syndicate, or association.

Nor is a municipality a "corporation" within the meaning of Tenn. Code Ann. §§ 57-4-203(i)(1)(A) and 57-5-103(a)(8). This Office has opined on numerous occasions that the term "corporation," as used in earlier versions of Section 57-4-203(i)(1)(A), refers only to private, not municipal, corporations. On May 22, 1967, the Attorney General advised the Alcoholic Beverage Commission: "It is my opinion that under the law as it now exists a liquor license may not be granted to a municipal corporation and that the word 'corporation' as used in Section 57-117, Tennessee Code Annotated, refers only to private corporations." Letter from George F. McCanless, Attorney General, to Carl A. Jones, Chairman, Alcoholic Beverage Commission (May 22, 1967). See also Letter from W. Collins Bonds, Assistant Attorney General, to James D. Senter, III (Feb. 3, 1970); Letter from W. Collins Bonds, Assistant Attorney General, to Scott Alden, Director of Alcoholic Beverage Commission (July 23, 1969); Letter from W. Collins Bonds, Assistant Attorney General, to Chester Powell, Mayor, City of South Pittsburgh (June 6, 1969); Letter from Robert F. Hedgepath, Assistant Attorney General, to James H. Epps, III, City Attorney (June 21, 1967).

These opinions remain sound law. It is well-established that the term "corporation" does not include municipalities. See 62 C.J.S. Municipal Corporations § 12 (stating that "[o]rdinarily, the word 'corporation' does not embrace municipal corporations"). See also Keeble v. Loudon Utilities, 370 S.W.2d 531, 535 (Tenn. 1963). The principle that a municipal corporation is instituted for public purposes only and has none of the peculiar qualities of a commercial corporation, except that of acting in a corporate capacity, can be found as early as the United States Supreme Court's decision in The Mayor v. Ray, 86 U.S. 468, 475 (1873), which involved ultra vires actions taken by the mayor and city treasurer of Nashville.

In addition, these various Attorney General's opinions and the Alcoholic Beverage Commission's reliance on them date back to 1967, when the sale of liquor by the drink was first permitted in Tennessee after Prohibition. Since 1967, the General Assembly has made numerous amendments to Section 57-117, Tennessee Code Annotated (now Tenn. Code Ann. § 57-4-203), but the General Assembly has not amended the law to specify that it should be read to include municipal corporations. In Covington Pike Toyota, Inc. v. Cardwell, 829 S.W.2d 132 (Tenn. 1992), the Supreme Court stated that "administrative interpretations of statutes by the agency charged with enforcement or administration are entitled to great weight in determining the intention of the legislature." Id. at 134 (citing Nashville Mobilphone Co., Inc. v. Atkins, 536 S.W.2d 335, 340 (Tenn. 1976)); see also SunTrust Bank, Nashville v. Johnson, 46 S.W.3d 216, 226 (Tenn. Ct. App. 2000). The Court further stated that "[t]his is especially true where the administrative interpretations are unchallenged over a long period of time." Id. (citing Gallagher v. Butler, 214 Tenn. 129, 140, 378 S.W.2d 161, 166 (1964)). The longstanding administrative interpretation of Tenn. Code Ann. § 57-4-203 thus bolsters the conclusion that municipalities are not entities entitled to obtain a liquor license or beer permit in Tennessee.

2. For the reasons stated above in response to Question 1, the City as a municipal corporation could not obtain permits to sell liquor-by-the-drink, wine, or beer to the public generally.

3. For the reasons stated above in response to Question 1, the City, as a municipal corporation, could not obtain a license to sell liquor by the drink at a fixed site owned by the City.

4. If a City employee sought to obtain a liquor-by-the-drink license and conduct the business of selling alcoholic beverages at one of the locations in question "on behalf of the City," that employee would not be acting as a private person but rather under authority delegated by the City. Generally, a municipal officer or employee or a municipality's agent cannot do that which is forbidden to the municipality itself by statute or charter. The Tennessee Supreme Court, in finding that the City of Ripley was prohibited from entering into contracts that exceeded the authority granted to it by charter or statute, Allmand v. Pavletic, 292 S.W.3d 618, 628 (Tenn. 2009), also held that the city's gas department was prohibited from entering into such ultra vires contracts. Id. at 630 ("One cannot do indirectly what is prohibited directly."); see also The Mayor v. Ray, 86 U.S. at 476-77. Here, the City is barred by both Tenn. Code Ann. §§ 57-4-102 and 57-4-203 from obtaining a license to sell alcoholic beverages at the locations in question, and thus any City employee acting as such would be barred as well, in that the employee cannot do under authority delegated by the City what the City itself cannot do.

5. For the same reason, the City also could not create a City-controlled not-for-profit corporation to obtain a license to sell liquor by the drink at a location owned by the City. Again, it is a "well settled principle of law that one cannot do indirectly what cannot be done directly." Bennett v. Visa U.S.A., Inc., 198 S.W.3d 747, 752-53 (Tenn. Ct. App. 2006) (quoting Haynes v. City of Pigeon Forge, 883 S.W.2d 619, 622 (Tenn. Ct. App. 1994)). Nevertheless, the City could allow a non-profit corporation that is not controlled by the City to sell liquor-by-the drink at a site designated by statute. Although a municipality itself cannot obtain a liquor-by-the-drink license, state law allows the sale of alcoholic beverages on city-owned property by an appropriate permit holder if that property qualifies as a "convention center," "club," "restaurant," or other facility eligible for a liquor-by-the-drink license under Tenn. Code Ann. §§ 57-4-101 and -102 or when sales are made by a caterer under Tenn. Code Ann. § 57-4-203(i)(3). Neither the Wilma Rudolph Event Center nor Freedom Point Pavilion appears to fall within any of the narrowly defined categories in Tenn. Code Ann. § 57-4-102. A City-owned golf course would qualify as a "club" only if it meets the definition of "club" in Tenn. Code Ann. § 57-4-102(8)(A), which requires among other things the existence of a non-profit association with at least 100 members.

6. An earlier opinion by this Office described the extent of the State's regulatory control over the sale of beer and the State's ability to delegate that authority to municipalities, stating:

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).

Tenn. Att'y Gen. Op. 12-02, at 1 (Jan. 6, 2012).

Although the State has delegated considerable authority over the sale of beer to counties and municipalities in Title 57, Chapter 5, that authority is limited by the requirements for obtaining a beer permit set forth in Tenn. Code Ann. § 57-5-103, which provides that it is "unlawful to operate any business engaged in the sale, distribution, manufacture, or storage of beer without a permit issued by the county or city where such business is located under the authority herein delegated to counties and cities." Tenn. Code Ann. § 57-5-103(a)(1). This section further provides that "[p]ermits shall be issued to the owner of a business, whether a person, firm, corporation, joint-stock company, syndicate, or association." Tenn. Code Ann. § 57-5-103(a)(2).

As previously discussed, the list "person, firm, corporation, partnership, or association" in Tenn. Code Ann. § 57-4-203(i)(1)(A) does not include municipal corporations. For this reason, the City as a municipal corporation does not come within the list in Tenn. Code Ann. § 57-5-103(a)(2) and is not eligible to obtain a beer permit.

7 & 8. For the reasons stated above in response to Questions 4 and 5, neither a City official nor a not-for-profit corporation created and controlled by the City would be eligible to obtain a beer permit.

9. As stated above, the City may not obtain a license to sell alcoholic beverages for consumption on the premises at any location, and neither a City employee nor a not-for-profit corporation created and controlled by the City may obtain such a license on the City's behalf.

All of these conclusions emanate from the restrictions the State has imposed on the sale of alcoholic beverages and beer, a subject over which the State's authority is supreme. The City's charter, regardless of its wording, cannot grant to the City any authority to pass an ordinance or regulation that conflicts with the general law of Tennessee. See, e.g., City of Bartlett v. Hoover, 571 S.W.2d 291, 292 (Tenn. 1978).

Section 5(A)(55) of the City's charter grants to the City the following powers:

Adoption and enforcement of ordinances not specifically enumerated. To adopt and enforce such further ordinances, rules and regulations, whether or not specifically enumerated in this act, as may be deemed necessary or proper for the good government, function and administration of the corporation, and for the accomplishment of its objects and purposes.

1957 Tenn. Priv. Acts, ch. 292, § 5(A)(55), as amended by 1981 Tenn. Priv. Acts, ch. 139, § 1. Section 5(A)(56) of the charter grants to the City the following additional powers:

Powers granted herein not restrictive. To exercise and enjoy all other powers, functions, rights, privileges and immunities necessary or desirable to promote or protect the safety, health, peace, security, good order, comfort, convenience, morals and general welfare of the city and its inhabitants, and all implied powers necessary to carry into execution all powers granted in this act as fully and completely as if such powers were fully enumerated herein. No enumeration of particular powers in this act shall be held to be exclusive of others nor restrictive of general words and phrases granting powers, but shall be held to be in addition to such powers unless expressly prohibited to cities under the constitution or applicable public acts of the state.

1957 Tenn. Priv. Acts, ch. 292, § 5(A)(56), as amended by 1981 Tenn. Priv. Acts, ch. 139, § 1.

A municipality may not act in conflict with the general law. Even though a municipality created before the 1953 amendments to the Tennessee Constitution, Tenn. Const. art. XI, § 9, may have a charter enacted by private act, such private acts are superseded to the extent necessary to give effect to a general statutory plan. State ex rel. Strader v. Word, 508 S.W.2d 539, 546 (Tenn. 1974). Further, the City would have to pass an ordinance authorizing it to request from the appropriate licensing authority either a license for the sale of alcohol or a beer permit at one of the locations in question. However, a city "may not pass an ordinance which ignores the State's own regulatory acts." State ex rel. Beasley v. Mayor & Aldermen of Fayetteville, 196 Tenn. 407, 415-16, 268 S.W.2d 330, 334 (1954). See also City of Bartlett v. Hoover, 571 S.W.2d at 292.

Accordingly, an ordinance granting the City the power to obtain a license for the sale of alcoholic beverages or a beer permit for one of the locations in question would violate the provisions of Title 57 strictly limiting the granting of such licenses and permits.

ROBERT E. COOPER, JR.
Attorney General and Reporter

BARRY TURNER
Deputy Attorney General

JONATHAN N. WIKE
Senior Counsel

Requested by:

The Honorable Mark Green
State Senator
4 Legislative Plaza
Nashville, Tennessee 37243

The Honorable Curtis Johnson
State Representative
15 Legislative Plaza
Nashville, Tennessee 37243

The Honorable Joe Pitts
State Representative
32 Legislative Plaza
Nashville, Tennessee 37243

The Honorable John Tidwell
State Representative
22 Legislative Plaza
Nashville, Tennessee 37243