New AG's opinion on Local Ordinance Prohibiting Firearms in Establishment with Beer!!

[GLOCKMEISTER]

S T A T E O F T E N N E S S E E

OFFICE OF THE

ATTORNEY GENERAL

PO Box 20207

NASHVILLE, TENNESSEE 37202

June 12, 2009

Opinion No. 09-118

Validity of Local Ordinance Prohibiting Firearms in Establishment with Beer Permit

QUESTION

May a municipality, under the authority of Tenn. Code Ann. § 57-5-106, adopt a local

ordinance that would make it unlawful for any person to bring a firearm onto the premises of an

establishment with a permit to sell beer, in light of the General Assembly’s newly enacted

legislation, found in House Bill 962, which exempts handgun carry permit holders from the

criminal prohibition against possessing a firearm within a building where alcoholic beverages are

served?

OPINION

No. While municipalities have broad discretion to regulate the sale of beer through the

permit process as described in Tenn. Code Ann. § 57-5-106, a local ordinance banning “any

person†other than on-duty law enforcement officers from possessing a firearm in an

establishment with an on-premises beer permit is not the regulation of the sale of beer, but rather

is a local regulation pertaining to the possession of firearms and is therefore prohibited by Tenn.

Code Ann. § 39-17-1314(a).

ANALYSIS

Tenn. Code Ann. § 39-17-1305(a) provides, in applicable part, that “t is an offense for

a person to possess a firearm within the confines of a building open to the public where . . . beer,

as defined in § 57-6-102(1), [is] served for on premises consumption.†However, this general

prohibition has statutory exemptions to allow law enforcement, military, and shopkeepers of the

establishment to lawfully possess firearms in such places, see Tenn. Code Ann. § 39-17-

1305©(1) and (2). The General Assembly has recently passed an additional exemption from

this prohibition for authorized handgun carry permit holders. The language of the new law,

which is to be codified as Tenn. Code Ann. § 39-17-1305©(3), can be found in House Bill 962

and provides that the general criminal prohibition against carrying a firearm in a building where

beer is served shall not apply to a person who is:

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(A) Authorized to carry a firearm under § 39-17-1351 who is not

consuming beer, wine or any alcoholic beverage, and is within the confines of a

restaurant that is open to the public and serves alcoholic beverages, wine or beer.

( As used in this subdivision ©(3), “restaurant†means any public

place kept, used, maintained, advertised and held out to the public as a place

where meals are served and where meals are actually and regularly served, such

place being provided with adequate and sanitary kitchen and dining room

equipment, having employed therein a sufficient number and kind of employees

to prepare, cook and serve suitable food for its guests. At least one (1) meal per

day shall be served at least five (5) days a week, with the exception of holidays,

vacations and periods of redecorating, and the serving of such meals shall be the

principal business conducted.

House Bill 962, Section 1 (passed May 14, 2009, vetoed by Governor on May 28, 2009, veto

over-ridden by House on June 3, 2009 and by Senate on June 4, 2009).

The Metropolitan Government of Nashville and Davidson County (Metro) has a local

ordinance that makes it unlawful for any person to bring prohibited drugs or bring alcoholic

beverages from off-premises without valid identification to any premises issued a beer permit by

Metro and makes it unlawful for anyone under age 21 to possess beer except for legitimate

employment purposes. See Metro Code § 7.08.130 A, B, and C. According to information and

documentation supplied to this Office, legislation has been introduced before the Metropolitan

Council that would amend Metropolitan Code, Chapter 7.08, entitled “Beer and Alcoholic

Beverages.†The amendment is titled “An ordinance amending Chapter 7.08 of the Metropolitan

Code to prohibit firearms in any establishment with an on-premises beer permit†and would add

the additional prohibition:

It is unlawful for any person:

D. To bring, to cause, or to allow to be brought a firearm onto the

premises of any establishment with a retailer’s “on-sale†permit.1 This

prohibition shall not apply to on-duty enforcement officers.

The proposed ordinance further states in the preamble the reasons underlying the

legislation:

WHEREAS, the Tennessee General Assembly recently overrode Governor Phil

Bredesen’s veto of House Bill 962 n order to allow persons with a handgun

carry permit [sic] to bring firearms upon the premises of restaurants that sell

alcoholic beverages; and

WHEREAS, Tennessee Code Annotated § 57-5-106 provides that cities and Class

B counties, which includes the Metropolitan Government, have the authority to

1 We assume “on-sale†permit is synonymous with the more familiar “on-premises†beer permit, which allows the

consumption of beer on the premises of the location issued a beer permit. See Tenn. Code Ann. § 57-5-103.

Page 3

impose additional restrictions on the sale of beer “as will promote public health,

morals and safetyâ€; and

WHEREAS, the Metropolitan Council deems it to be necessary to prohibit

persons from carrying firearms upon premises where beer is sold in order to

protect the public health, safety and welfare.

Id.

Authority to regulate the sale of beer has been statutorily delegated to local governments

and is administered through the permit process.2 Tenn. Code Ann. §§ 57-5-103 et seq. Tenn.

Code Ann. § 57-5-106(a) grants municipalities authority to issue and administer beer permits.

Accordingly, municipalities may pass ordinances “governing the issuance and revocation or

suspension of licenses for the storage, sale, manufacture and/or distribution of beer within the

corporate limits†of the municipality and may establish a board to which permit applications are

to be submitted.

As to the extent of the local government’s authority to administer beer permits, the

General Assembly specifically stated:

[T]he power of such cities, towns and Class B counties to issue licenses shall in

no event be greater than the power herein granted to counties, but cities, towns

and Class B counties may impose additional restrictions, fixing zones and

territories and provide hours of opening and closing and such other rules and

regulations as will promote public health, morals and safety as they may by

ordinance provide. The ordinance power granted to a municipality by this

subsection does not permit a municipality to establish residency requirements for

its applicants. The ordinance power granted to a municipality by this section does

not permit a municipality to impose training or certification restrictions or

requirements on employees of a permittee if those employees possess a server

permit issued by the alcoholic beverage commission pursuant to chapter 3, part 7

of this title.

Tenn. Code Ann. § 57-5-106(a). Based on this statutory grant of authority, this Office has

previously opined that “Tennessee municipalities have extensive powers to regulate the sale,

storage, and manufacture of beer within their corporate limits, even to the extent of completely

banning the sale of beer. See Watkins v. Naifeh, 635 S.W.2d 104 (Tenn. 1982); Thompson v. City

2 This issue involves only the purported regulation of the sale of beer pursuant to the authority granted to local

governments in Tenn. Code Ann. § 57-5-106(a). We note the proposed Metro ordinance would not affect

establishments serving non-beer alcoholic beverages which have not been issued a beer permit by Metro. Licensing

for the sale of “alcoholic beverages,†which includes spirits with an alcoholic content of five percent or more, and

thus is generally applicable to sales of hard liquor and wine, is governed by Tenn. Code Ann. §§ 57-3-101 et seq.

However, permits for the sale of beer are governed by Tenn. Code Ann. §§ 57-5-101 et seq. Thus, while regulatory

authority over the sale and consumption of beer has been statutorily delegated to local governments, “[t]he

Tennessee Alcoholic Beverage Commission has generally been given primary, although not exclusive, responsibility

for regulating the distribution and sale of alcoholic beverages other than beer.†State el rel. Amvets Post 27 v. Beer

Bd. of the City of Jellico, 717 S.W.2d 878, 881 (Tenn. 1986).

Page 4

of Harriman, 568 S.W.2d 92 (Tenn. 1978); Barnes v. City of Dayton, 216 Tenn. 400, 392 S.W.2d

813 (1965).†Op. Tenn. Att’y Gen. No. 02-092 (August 28, 2002). The Tennessee Supreme

Court has declared that “it has long been held in this state that, consistent with T.C.A. § [57-5-

106], municipalities have extensive authority to regulate the sale of beer within their

boundaries.†State ex rel. Amvets Post 27 v. Beer Bd. of the City of Jellico, 717 S.W.2d 878, 881

(Tenn. 1986). Additionally, “[t]he only limits placed on the cities’ regulatory powers are found

in the state and federal constitutions, the state statutes, and in the requirement that cities cannot

exercise their power in an arbitrary or discriminatory manner.†Martin v. Beer Bd. for City of

Dickson, 908 S.W.2d 941, 946 (Tenn. Ct. App. 1995) (citing Beer Bd. v. Brass A Saloon of

Rivergate, Inc., 710 S.W.2d 33, 35 (Tenn. 1986)).

Accordingly, municipalities have broad authority to regulate sales of beer within their

corporate limits through the permit process to promote the public health, morals and safety.

Moreover, in exercising this authority, municipalities also have broad discretion in crafting

ordinances as long as the regulations are exercised in good faith, are not discriminatory or

arbitrary, and do not contradict the state constitution or state statutes. See DeCaro v. City of

Collierville, 373 S.W.2d 466, 469 (Tenn. 1963). However, the proposed ordinance at issue in

this Opinion, amending Chapter 7.08 of the Metropolitan Code to prohibit firearms in any

establishment with an on-premises beer permit, more closely resembles regulation of the

possession of firearms than an appropriate regulation pertaining to the sale of beer as authorized

under Tenn. Code Ann. § 57-5-106(a). The proposed ordinance does not address the conditions

for issuance of a beer permit, which would fall under the regulatory power delegated to Metro,

but instead directly addresses who may carry a firearm and where it may be carried.

Article I, § 26 of the Tennessee Constitution provides that: “the citizens of this State have

a right to keep and to bear arms for their common defense; but the Legislature shall have power,

by law, to regulate the wearing of arms with a view to prevent crime.†The Tennessee Supreme

Court has recognized that the legislature has the authority, under this section of the Constitution,

to enact legislation to regulate the wearing and carrying of arms in public “with a view to prevent

crime.†Andrews v. State, 50 Tenn. 165, 181, 3 Heisk. 165, 181 (Tenn. 1871). Most

significantly, in the late 1980’s the legislature clarified that it reserved to itself all authority

pertaining to the regulation of ownership, possession and transportation of firearms. Tenn. Code

Ann. § 39-17-1314(a) states:

No city, county, or metropolitan government shall occupy any part of the field of

regulation of the transfer, ownership, possession or transportation of firearms,

ammunition or components of firearms or combinations thereof; provided, that

the provisions of this section shall be prospective only and shall not affect the

validity of any ordinance or resolution lawfully enacted before April 8, 1986.

Accordingly, the above-cited provision preempts the field of handgun regulation in public places

by a local authority. See also Op. Tenn. Att’y Gen. No. 95-118 (Nov. 28, 1995).

It is well established that a municipality “cannot adopt ordinances which infringe the

spirit of a state law or are repugnant to the general policy of the state.†Capitol News Co., Inc. v.

Metropolitan Gov't, 562 S.W.2d 430, 434 (Tenn. 1978). See also Nichols v. Tullahoma Open

Page 5

Door, Inc., 640 S.W.2d 13, 18 (Tenn. Ct. App. 1982); City of Bartlett v. Hoover, 571 S.W.2d

291, 293 (Tenn. 1978); Op. Tenn. Att’y Gen. No. 98-038 (Feb. 9, 1998). As noted in the

preamble to the proposed Metro ordinance, the amendment to the Metro Code was crafted for the

express purpose of reversing, at least within Metro’s corporate limits, the state legislature’s

newly declared public policy of allowing authorized handgun carry permit holders to possess

firearms within Tennessee establishments serving alcoholic beverages. The proposed Metro

ordinance was expressly designed to counter the law found in House Bill 962, which expands the

rights of authorized handgun carry permit holders to possess firearms in restaurants and bars.

The plain meaning of the language of Tenn. Code Ann. § 39-17-1314(a) leads to the

conclusion that the General Assembly has preempted local governments from any authority to

regulate the possession of firearms except as expressly provided for by statute.3 Accordingly, the

proposed Metropolitan Government ordinance amending Chapter 7.08 of the Metropolitan Code

to prohibit firearms in any establishment with an on-premises beer permit exceeds the authority

delegated to a municipality and would therefore be preempted by the state’s exclusive right to

regulate firearms as stated in Tenn. Code Ann. § 39-17-1314(a). 4

ROBERT E. COOPER, JR.

Attorney General and Reporter

MICHAEL E. MOORE

Solicitor General

GREGORY O. NIES

Assistant Attorney General

3 For example, Tenn. Code Ann. § 39-17-1359 authorizes local government entities to prohibit anyone, even persons

with a valid handgun carrying permit, from carrying weapons at meetings conducted by, or on property owned,

operated, or managed by the local government. Op. Tenn. Att’y Gen. 00-161 (Oct. 17, 2000).

4 All local government “power derives from the State through specific delegation by the General Assembly.†421

Corp. v. Metropolitan Government, 36 S.W.3d 469, 475 (Tenn. Ct. App. 2000) (citing State ex rel. SCA Chem.

Servs. v. Sanidas, 681 S.W.2d 557, 562 (Tenn.Ct.App.1984); Family Golf of Nashville, Inc. v. Metropolitan Gov’t,

964 S.W.2d 254, 257 (Tenn.Ct.App.1997)). A local government cannot effectively nullify state law on the same

subject by enacting ordinances that ignore applicable state laws, that grant rights that state law denies, or that deny

rights that state law grants. See generally State ex rel. Beasley v. Mayor & Aldermen of Fayetteville, 268 S.W.2d

330, 334 (Tenn. 1954).

Page 6

Requested by:

The Honorable Doug Jackson

State Senator

302 War Memorial Building

Nashville, Tennessee 37243-0025

[GLOCKMEISTER]

so it seems the AG agreed with what many of us said here a few weeks ago.

[leroy]

Phillip:___________

Thanks for posting this. Very interesting words. I specifically like this:

No city, county, or metropolitan government shall occupy any part of the field of

regulation of the transfer, ownership, possession or transportation of firearms,

ammunition or components of firearms or combinations thereof; provided, that

the provisions of this section shall be prospective only and shall not affect the

validity of any ordinance or resolution lawfully enacted before April 8, 1986.

Accordingly, the above-cited provision preempts the field of handgun regulation in public places

by a local authority. See also Op. Tenn. Att’y Gen. No. 95-118 (Nov. 28, 1995).

It is well established that a municipality “cannot adopt ordinances which infringe the

spirit of a state law or are repugnant to the general policy of the state.†Capitol News Co., Inc. v.

Metropolitan Gov't, 562 S.W.2d 430, 434 (Tenn. 1978). See also Nichols v. Tullahoma Open

I live near Knoxville in Knox County. Metro Knoxville contains enough politicos, fringe hippies, and socialists to do similarly to what was attempted in Nashville. Looks like this opinion will but the kebash on "local ordinances" in the state.

Thanks again for posting this valuable info.

Kind regards,

LEROY

[Fallguy]

Good deal

[Guest pws_smokeyjones]

does anyone have a link to the original text of this AG opinion?

[TGO David]

Senator Jackson told me this was coming when I met him this past Saturday. I'm glad to see it out there for public record now.

[Guest stovepipe]

Geeze, a simple "yes" or "no," from the AG, would have sufficed!

[Fallguy]

does anyone have a link to the original text of this AG opinion?

AG Opinion 09-118

[Falcon1]

does anyone have a link to the original text of this AG opinion?

Untitled Document

Click on OP0118.

[E4 No More]

Geeze, a simple "yes" or "no," from the AG, would have sufficed!

Have you ever known a lawyer to give you a simple yes or no?

[Guest abailey362]

wouldn't this also apply to park carry then?

[Fallguy]

wouldn't this also apply to park carry then?

No.

The park carry bill amended 39-17-1314 to expressly give local governments the power, by resolution, to ban carry in parks under their control.

[RinTN]

S T A T E O F T E N N E S S E E

OFFICE OF THE

ATTORNEY GENERAL

PO Box 20207

NASHVILLE, TENNESSEE 37202

June 12, 2009

Opinion No. 09-118

Validity of Local Ordinance Prohibiting Firearms in Establishment with Beer Permit

QUESTION

May a municipality, under the authority of Tenn. Code Ann. § 57-5-106, adopt a local

ordinance that would make it unlawful for any person to bring a firearm onto the premises of an

establishment with a permit to sell beer, in light of the General Assembly’s newly enacted

legislation, found in House Bill 962, which exempts handgun carry permit holders from the

criminal prohibition against possessing a firearm within a building where alcoholic beverages are

served?

OPINION

No. While municipalities have broad discretion to regulate the sale of beer through the

permit process as described in Tenn. Code Ann. § 57-5-106, a local ordinance banning “any

person†other than on-duty law enforcement officers from possessing a firearm in an

establishment with an on-premises beer permit is not the regulation of the sale of beer, but rather is a local regulation pertaining to the possession of firearms and is therefore prohibited by Tenn. Code Ann. § 39-17-1314(a).

...

This is pretty much exactly what I said when the issue came up from the Nashville commission. It's VERY nice to see it stated as an official opinion by the AG!

[Guest pws_smokeyjones]

AG Opinion 09-118

Thanks Fallguy

[GLOCKMEISTER]

btw.. I copied and pasted it, so it was an original.

[Guest pws_smokeyjones]

I wasn't doubting you at all glockmeister. I was wanting to send a link to another person.

[GLOCKMEISTER]

yea I thought about it after I posted it... but I didnt have the link, I got it from a member of the legislator thats a friend of mine.

Next time I'll post a link.

[GKar]

http://www.tennessee.gov/attorneygeneral/op/2009/OP/OP118.pdf

[leroy]

Geeze, a simple "yes" or "no," from the AG, would have sufficed!

I completely agree! Evidently, it aint possible for a lawyer to give a "yes"/ "no" answer without fully explaining everything.

LEROY

PS -- WE'LL TAKE IT ANYWAY !! HEHEHE

[ki4otd]

Great news.

I want to see the faces of the local guberments after reading this!!

[Falcon1]

Of course, some of them may go ahead and enact ordinances anyway, only to have them struck down at taxpayer expense in the state courts, like seven cities in Pennsylvania (although I suppose a state court might have a different opinion than the Attorney General).

I hope the voters remember who cost the taxpayers a lot of needless expense come election time.

[Guest db99wj]

Great, thanks, copied, printed, going in my law binder.

[cadillacdude1975]

i will be taking a copy of this to the Red Bank City Council meeting on July 7th. they might be able to ban carry in the parks in Red Bank, this this is sure footing that they can not take the beer permit excuse as a reason to ban firearms. it is going to probably piss them off, but i really do not give a flip. it puts the regulation of the firearms back in the establishments.