ORDINANCE NO. O99-1794

ENACTED 08/03/1999

ORDINANCE NO. O99-1794

An ordinance to amend Title 7, Chapter 7.08 of the Metropolitan Code of Laws to incorporate amendments to the Tennessee Code affecting the regulation of the sale of beer in Metropolitan Nashville and Davidson County and to conform the regulations to federal and state law.

Whereas, Title 57, Chapters 4 and 5 of the Tennessee Code, has been amended, significantly impacting the regulatory scheme of City ordinances designed to control the sale of beer and alcoholic beverages of less than five percent; and

Whereas, it is the desire of the Metropolitan Council to regulate the sale of beer and alcoholic beverages of less than five percent in a manner consistent with the dictates of the existing federal law and the law of the State of Tennessee; and

Whereas, the law of the State of Tennessee pursuant to TCA § 57-5-104(a) has implemented a privilege tax system governing the privilege of permit holders to sell beer within the state; and

Whereas, it is necessary to make certain housekeeping changes in order to better regulate the sale of beer within Metropolitan Nashville and Davidson County;

Now, therefore, be it enacted by the Council of The Metropolitan Government of Nashville and Davidson County:

Section 1: Delete Section 7.04.040(C) in its entirety and replace with the following:

C. Minutes shall be kept of the meetings in permanent form and a record shall be kept of the action of the board with respect to every application for a permit. The concurring vote of a majority of the quorum shall be necessary to the granting and revoking of permits, or any other action by the board.

Section 2: Section 7.08.010, "Definitions", is amended as follows:

A. Delete the words and numbers "Section 57-5-108" in the definition of "Metropolitan beer permit board" and substitute in lieu thereof "Title 57, Chapter 5",

B. Insert a definition for "Minor" following the term "Metropolitan beer permit board" as follows:

"Minor" with respect to purchasing, consuming or possessing beer means any person who has not attained the age of twenty-one (21) years.

C. Delete "Retailer off-premises permit" and substitute in lieu thereof "retailer off-sale permit".

D. Delete "Retailer on-premises permit" and substitute in lieu thereof "retailer on-sale permit"

Section 3: Section 7.08.030 is amended by adding section "E" and section "F" thereto, as follows:

E. The board may authorize the Executive Director of the Metropolitan beer permit board to issue temporary permits not to exceed 30 days duration in any of the above categories under such terms and conditions as the board may establish not inconsistent with this Title.

F. All permits issued hereunder shall be a mere grant or privilege to carry on the business during the term of the permit subject to all the terms and conditions imposed by the Charter and related laws, applicable provisions of this Title applicable provisions of the Tennessee Code Annotated, and other ordinances of the city relating to these businesses.

Section 4: Section 7.08.040 is amended deleting existing provisions and replacing them with the following:

7.08.040 Application--Requirements and conditions

A. The owner of any business desiring to sell, distribute, manufacture, or store beer within the metropolitan government area shall file in person with the metropolitan beer permit board a written application, under oath, for a permit. The application shall be filed at least ten days prior to the date of hearing said application. The board may waive this 10 day requirement if it deems it appropriate. No permit shall be issued until the board has approved the written application, which shall contain questions necessary to the determination of whether the applicant has met all laws of this state and all provisions of this code and other ordinances of the metropolitan government then in effect. The form of such application shall be prescribed by the board and approved by the metropolitan department of law.

B. To be eligible for a permit, the applicant shall establish the following:

1. That 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; provided however, nothing in this subsection shall apply to places of business that are located in the terminal or main building at public airports serviced by commercial airlines with regularly scheduled flights;

2. That no sale shall be made to persons under twenty-one years of age;

3. That no person, firm, corporation, joint-stock company, syndicate, or association having at least a five percent (5%) ownership interest in the establishment has been convicted of any violation of the laws against possession, sale, manufacture, or transportation of beer or other alcoholic beverages or any crime involving moral turpitude within the past ten (10) years; and,

4. That no sale shall be made for on-premise consumption unless the permit so states.

C. An applicant shall disclose the following information in the application:

1. Name of the applicant;

2. Name of the applicant's business;

3. Location of business by street address or other geographical description to permit an accurate determination of conformity with the requirements of this chapter;

4. If beer will be sold at two (2) or more restaurants or other businesses within the same building pursuant to the same permit as provided in Section 7.08.250(D), and a description of all such businesses;

5. All persons, firms, corporations, joint-stock companies,

syndicates, or associations having at least a five percent (5%) ownership interest in the applicant;

6. Identity and address of a representative to receive annual tax notices and any other communication from the board;

7. Whether any person, firm, corporation, joint-stock company, syndicate, or association having at least a five percent (5%) ownership interest in the applicant or any person employed in the distribution or sale of beer has been convicted of any violation of the laws against possession, sale, manufacture, or transportation of beer or other alcoholic beverages or any crime involving moral turpitude within the past ten (10) years;

8. Whether or not the applicant is seeking a permit which would allow the sale of beer either for on-premises consumption or for off-premises consumption, or both of the foregoing; and,

9. Such other information, relevant and material to the protection of the health, safety and morals of the inhabitants of the metropolitan government area as may be required by the board, in its discretion.

D. No permittee shall open his premises to the public for the sale of beer until the permittee shall have first filed with the board floor plans and diagrams completely disclosing and designating a physical arrangement of the premises, should the board so require of any applicant.

E. The board shall have the right to issue a beer permit to any person, firm, corporation, syndicate, joint-stock company, or association carrying on any other regular business to store and sell, in connection therewith, such beer.

F. If the holder of a beer permit for either off-premises or on-premises consumption desires to change the permit holder's method of sale, the permit holder shall apply to the board for a new permit.

G. An applicant or permit holder shall amend or supplement the information provided in its application promptly if a change in circumstances affects the responses in its application.

H. Any applicant making any false statement in an application shall forfeit his permit, and shall not be eligible to receive any permit for a period of ten (10) years.

Permits shall be issued to the owner of the business, whether a person, firm, corporation, joint-stock company, syndicate, or association.

Section 5: Delete Section 7.08.050 in its entirety and replace it with the following:

7.08.050 Application--Submittal to police department before approval.

A. The Metropolitan beer permit board shall submit the necessary information of each applicant for a permit to the police department for the purpose of ascertaining if the applicant has ever been arrested or convicted of any offense which would prohibit the issuance of a permit.

B. Alternatively, the police department may provide the board with computer access to their records revealing the required information and provide assistance so that the board may conduct its own checks.

Section 6: Delete existing provisions of Section 7.08.060 and replace with the following:

7.08.060 Fees--Application, renewal and change in management

A. All applications for the issuance of permits by the Metropolitan beer permit board shall be accompanied by an application fee of two hundred fifty dollars ($250.00). Said fee shall be used in offsetting the expenses of investigating the applicant and processing the application. No portion of the fee shall be refunded to the applicant whether an application is approved or denied.

B. All permit holders shall pay an annual privilege tax of one hundred dollars ($100) to the Metropolitan Beer Permit Board for the privilege of selling beer within the state, pursuant to T.C.A. § 57-5-104(b)(1).

1. Any person, firm, corporation, joint-stock company, syndicate or association engaged in selling, distributing, storing or manufacturing beer shall remit the tax on January 1, 2000, and each successive January 1 to the Metropolitan Beer Permit Board.

The Metropolitan Beer Permit Board shall mail written notice to each permit holder of the payment date of the annual tax at least thirty (30) days prior to January 1 of each year. Notice shall be mailed to the address specified by the permit holder on its permit application. If a permit holder does not pay the tax by January 31 or within thirty (30) days after written notice of the tax was mailed, whichever is later, then the Metropolitan beer permit board shall notify the permit holder by certified mail that the tax payment is past due. If a permit holder does not pay the tax within ten (10) days after receiving notice of its delinquency by certified mail, then the permit may be suspended, revoked or the permit holder may be given a civil penalty subject to procedures set forth at T.C.A. Section 57-5-108 and Section 7.08.140 of this Title.

3. The Metropolitan Government may use these tax funds for any public purpose.

4. At the time a new permit is issued to any business subject to this tax, the permit holder shall be required to pay the privilege tax on a prorated basis for each month or portion thereof remaining until the next tax payment date.

Section 7: Chapters 7.04, 7.08 and 7.20 are amended by substituting the words "on-sale beer permit" wherever the words "on-premises beer permit" or "on-premises permit" occur, substituting the words "off-sale beer permit" wherever the words "off-premises beer permit" or "off-premises permit" occur and substituting the words "on-sale and off-sale beer permits" wherever the words "on-premises and off-premises beer permits" occur.

Section 8: Chapter 7.08 is amended by repealing Sections 7.08.110 through 7.08.130 and renumbering the remaining sections accordingly.

Section 9: The existing Section 7.08.140(B) is deleted in its entirety and the remaining provisions of 7.08.140 shall be relettered accordingly.

Section 10: Chapter 7.08 is amended by deleting Section 7.08.160 in its entirety and replacing it with the following:

7.08.160 Prohibited Acts- Generally

It is unlawful for any person:

To bring, to cause, or allow to be brought onto the premises of any permitee under the provisions of this chapter any prohibited drugs within the meaning of Tennessee Code Annotated, Sections 53-10-101, et seq., and 39-17-401, et seq.,

To bring, to cause, or allow to be brought onto the premises of any permitee under the provisions of this chapter any intoxicating beverage, the alcoholic content of which is in excess of five percent by weight, unless such permitee is the holder of a valid license issued under the authority of Tennessee Code Annotated, Title 57, Chapter 4;

Being under the age of twenty-one years, to have in his or her possession beer for any purpose, except that any person eighteen years of age or older may transport, possess, sell or dispense alcoholic beverages, wine or beer in the course of his or her employment.

Section 11: Section 7.08.170 is amended by deleting paragraph G, and is further amended by adding the following paragraphs, relettering the remaining paragraphs accordingly:

_ To knowingly allow beer to be passed from a lawful purchaser or possessor to a minor for consumption on the premises of the permit holder. The burden of ascertaining the age of persons who may not lawfully possess beer shall be on the permit holder and his agent or employee.

_ For a retailer to knowingly sell to a lawful purchaser who purchases beer for consumption by a minor. The burden of ascertaining the age of persons who may lawfully possess beer shall be on the permit holder and his agent or employee.

Section 12: Chapter 7.08, Article I, is amended to add a new section as follows:

7.08.___. Suspension and revocation of permit - civil penalty options.

A. The Metropolitan Beer Permit Board may, at the time it imposes a revocation or suspension, offer a permit holder the alternative of paying a civil penalty not to exceed one thousand five hundred dollars ($1,500) for each offense of making or permitting to be made any sales to minors or a civil penalty not to exceed one thousand dollars ($1,000) for any other offense. If a civil penalty is offered as an alternative to revocation or suspension, the holder shall have seven (7) days within which to pay the civil penalty before the revocation or suspension shall be imposed. If the civil penalty is paid within that time, the revocation or suspension shall be deemed withdrawn. Payment of the civil penalty shall constitute an admission of the violation(s) charged.

Revocation, suspension or imposition of a civil penalty may be made where it appears satisfactorily that the premises of any person, firm or corporation holding a beer permit under this chapter are being operated in such manner as to be detrimental to public health, safety and morals.

C. The action of the board in connection with the issuance of any order revoking or suspending a beer permit or imposition of a civil penalty may be reviewed by statutory writ of certiorari, with a trial de novo as a substitute for an appeal, the petition of certiorari to be addressed to the circuit or chancery court of Davidson County. The procedures in TCA §57-5-108 are the sole method for review of decisions under this Section, as they may be amended.

Where a permit is revoked, no new license shall be issued to permit sale of beer on the same premises until the expiration of one (1) year from the date the revocation becomes final and effective. The board may, in its discretion, determine that issuance of a license or permit before the expiration of one (1) year from the date of revocation becomes final is appropriate, if the individual applying for such issuance is not the original holder of the license or any family member who could inherit from such individual under the statute of intestate succession, or, if any new owner is not in any way associated with the owner whose permit was revoked.

E. The board may revoke or suspend a permit or impose a civil penalty on any beer retailer who is found to possess beer on which the state beer barrelage tax and the county wholesale beer tax has not been paid. The burden of proof shall be on the permit holder to show the taxes on the beer have been paid by showing that the beer was purchased from a Tennessee beer wholesaler by providing a bill of sale or invoice showing name and address of the retailer and wholesaler and the number of containers of each brand purchased, and which shall be signed by the retailer.

Section 13: Chapter 7.08, Article II, is amended by deleting Section 7.08.240 and replacing it with the following:

7.08.240 Return of Beer Permit upon termination of business

A permit holder must return his permit to the board within fifteen (15) days of termination of the business, change in ownership, relocation of the business or change of the businesses name; provided that, regardless of the failure to return a beer permit, a permit shall expire upon termination of the business, change in ownership, relocation of the business or change of the business's name.

Section 14: Chapter 7.08, Article II, is amended to add a new Section to read as follows:

7.08.2__ Valid Permit- Limitations

A permit shall be valid:

A. Only for a single location, except as provided in subsection D, and cannot be transferred to another location. A permit shall be valid for all decks, patios and other outdoor serving areas that are contiguous to the exterior of the building in which the business is located and that are operated by the business. However, a permit holder for a business that is subject to the distance requirements set forth in this chapter, at Section 7.08.090, may not sell beer at a deck, patio and/or other outdoor serving area that is built after the date of the issuance of the permit.

B. Only for a business operating under the name identified in the application.

C. Only for the owner to whom the permit is issued and cannot be transferred to another owner. Should the ownership of a location change, the new owner shall apply for a new permit in accordance with Article I of Chapter 7.08. If the owner is a corporation, a change in ownership shall occur when control of at least fifty percent (50%) of the stock of the corporation is transferred to a new owner.

Where an owner operates two (2) or more restaurants or other businesses within the same building, the owner may at the owner's discretion operate some or all such businesses pursuant to the same permit.

A business can sell beer for both on-premises and off-premises consumption at the same location pursuant to one (1) permit.

Section 15: Chapter 7.08, Article II is further amended to add a new section as follows:

7.08.2__ Hotels and Motels

A. Any hotel or motel licensed under this chapter may dispense beer to adult guests through locked, in-room units.

B. No minor shall be issued or supplied with a key by any hotel or motel for these units."

Section 16: Chapter 7.20 is amended by deleting Section 7.20.010 in its entirety, deleting the words "Article I General Provisions" and "Article II Wholesalers and Manufacturers", inserting the words "Wholesalers and Manufacturers’ at the beginning of the title of existing section 7.20.030, and renumbering all the sections accordingly.

Section 17: This Ordinance shall take effect from and after its passage, the welfare of The Metropolitan Government of Nashville and Davidson County requiring it.

LEGISLATIVE HISTORY
Introduced:	July 6, 1999
Passed First Reading:	July 6, 1999
Referred to:	Budget & Finance Committee Public Safety Committee
Passed Second Reading:	July 20, 1999
Amended:	August 3, 1999
Passed Third Reading:	August 3, 1999
Approved:	August 11, 1999
By: