Decision on Extending Beer Sales Left To County Commission, Not Referendum

February 25, 2013
by: 
Dwayne Page
County Attorney Hilton Conger

The DeKalb County Commission seems to be in no hurry to take up a proposal to authorize Sunday beer sales or to make it 24-7, the same as the City of Smithville has done for businesses licensed to sell packaged beer.

Some county commissioners would rather the issue be settled by the voters in a public referendum next year. But County Attorney Hilton Conger, during Monday night's county commission meeting, said the Tennessee Attorney General has opined that there is no statutory authority for a local government to hold an advisory or non-binding referendum election. Therefore, if a decision is to be made on extending beer sales in DeKalb County, the county commission, which already has the authority, will have to vote to do it.

Last month local businessman Jewel Redmon, owner of Jewel's Market and Pizza on North Congress Boulevard asked that stores be allowed to sell beer on Sunday. "I would like the county commission to consider letting us sell beer on Sunday," said Redman. "We would just like to have the same opportunity to compete with our competition," said Redmon.

Local minister Bernard Houk asked the county commission not to extend the hours for beer sales. Houk said this issue is personal with him because he has seen how that alcohol has destroyed lives. He urged the commissioners to think about what's best for people rather than somebody's wallet.

County Mayor Mike Foster told WJLE Monday night that the county commission may discuss at next month's all-committee's meeting the possibility of scheduling a public hearing at some future date to give the citizens a chance to express their views on the issue. County officials may also want to take some time to see how the changes made in the city are working out. It would then be up to the county commission as to whether or not to take a vote on extending beer sales for licensed businesses.

In March 2009, Tennessee Attorney General Robert E. Cooper, Jr. issued an opinion in answer to a question as to whether the Hamilton County Commission could, by referendum, seek voter opinion in deciding an issue regarding a Property Tax Freeze Act of 2007.

In his written opinion, Cooper wrote that "there is no general provision in the constitution of this state that authorizes a local government to hold an advisory or non-binding referendum election. The cited provision of the Property Tax Freeze Act of 2007 authorizes the legislative body of any county or municipality to adopt the property tax freeze program by resolution or ordinance," wrote Cooper.

The County Technical Assistance Service (CTAS), which gives advice to county governments, writes that "the power to extend the hours for the sale of beer must be exercised by resolution of the county legislative body."

"Local governments may vote to extend the hours for beer sales, but cannot shorten the hours for businesses licensed to sell beer.

The general law provisions regarding the hours of operation for businesses selling beer prohibits the sale of beer during the following hours:

1. No beer or like beverage shall be sold between the hours of twelve o'clock midnight and 6:00 a.m. Monday through Saturday.

2. No beer or like beverage shall be sold between the hours of twelve o'clock midnight on Saturday and 11:59 p.m. on Sunday.

3. No such beverage shall be consumed, or opened for consumption, on or about any licensed premises, in either bottle, glass, or other container, after 12:15 a.m.

However, county legislative bodies are authorized to extend the hours for the sale of beer in their counties by resolution. The county legislative body has no authority to shorten the hours for the sale of beer. The power to extend the hours for the sale of beer must be exercised by resolution of the county legislative body and cannot be delegated to the beer board.

Regardless of the hours established for the sale of beer, any establishment that has a permit from the Alcoholic Beverage Commission (ABC) to sell liquor or wine for on-premises consumption is allowed to sell beer at any time the establishment is legally authorized to sell liquor or wine provided the establishment has obtained a beer permit.

The hours for the sale of beer in "clubs" must conform to the hours for sale of liquor by the drink as provided in state law and cannot be changed by resolution of the county legislative body.

In counties that have adopted liquor by the drink by countywide referendum, county legislative bodies may fix the hours for the sale of beer within the county, but these hours have no effect on business establishments selling liquor by the drink.

In any jurisdiction that has voted to accept Tennessee River Resort District status under state law and is considered a Tennessee River Resort District , the hours for the sale of beer within the district cannot be less than the hours for the sale of liquor and wine for on-premises consumption.

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