By Bill Short
The Millington Board of Mayor and Aldermen has unanimously passed an ordinance on final reading that amends the Municipal Code regarding the sale of alcoholic beverages.
Board members took the action during their Sept. 11 regular monthly meeting on a motion offered by Alderman Mike Caruthers and seconded by Alderman Don Lowry.
The ordinance was unanimously passed on first reading at the board’s Aug. 14 meeting.
It states that the Tennessee Code Annotated empowers the city to pass proper ordinances governing the issuance, revocation or suspension of a permit for the storage, sale, manufacture and/or distribution of beer within the city limits.
The ordinance amends Title 8, Chapter 2 of the Municipal Code by deleting Section 8-205 and replacing it with revised language.
At the Aug. 14 meeting, City Attorney Gerald Lawson said he made some “modifications and updates” to the Beer Ordinance.
He said he originally added revisions to Section 8-215, which allows a civil penalty in lieu of suspension or revocation of a beer permit.
Lawson said the ordinance previously allowed a maximum fine of $1,500 for anyone selling beer to minors and a $1,000 maximum fine for any other violation.
While noting that he re-examined the relevant state statute, Lawson said the city cannot exceed a $1,000 fine for the other violations. But it can assess a $2,500 maximum fine for sale to minors.
He said the ordinance did not previously have any language regarding how the Beer Board conducts a hearing and other matters. So, he “modified and revised” Section 8-205, which formerly listed the powers and duties of the board.
Although he left the “original language” in the first paragraph, Lawson said he added the next part, which states that all matters brought before the Beer Board will be heard in a specific order.
He noted that it describes:
(1) the procedures for a hearing
(2) how a permit holder will be given at least five days’ notice of the charges
(3) how witnesses will be handled
(4) whether hearsay evidence is admissible
(5) how transcripts will be dealt with; and
(6) other issues that may arise during the hearing.
While acknowledging that some of the information is “a little bit duplicated,” Lawson said it is important that the added sections “clarify” for suspension, termination and also ensure that the board is following the state law regarding appeals.
He noted that, upon receiving an adverse ruling by the board, an applicant or permit holder can either accept the decision and penalty or file a writ of certiorari in the Shelby County Circuit or Chancery courts.
Lawson said the assessed revocation or suspension will take effect at 12:01 a.m. on the 15th day after the board’s decision and will be continuously enforced.
If a permit holder requests a re-hearing or files a writ of certiorari, the enforcement period will become effective upon completion of the re-hearing or disposition of the writ.
“Some of these things weren’t clearly identified and laid out in your ordinance,” Lawson said. “So, we kind of had to make some room to put them in there.”
Alderman Bethany Huffman asked whether the ordinance contains a “time limit” within which an applicant or permit holder must file a writ of certiorari.
While noting that it is “clearly identified” in the T.C.A., Lawson said he believes it is 30 days.
Typically, he said, a person would file the writ before he paid the penalty. So, it would be “held in suspension” until the writ. The person would “take the record” and have a new hearing.
But Lawson said even the 15 days does not affect the person’s 30-day right to file an appeal. He can pay the penalty and still file.
In a related action at the Sept. 11 meeting, the board unanimously adopted a resolution that establishes an “informal policy” for violations of the city’s beer ordinance.
The resolution states that the board desires to “provide direction” to beer permit holders within the city and to encourage their participation in the Tennessee Responsible Vendor Program.
Permit holders who are not “participants in good standing” in the program can be fined $1,500 for a first offense of selling beer to minors and $2,500 for a second offense. In the case of a third offense, the permit can be suspended for 30 days.
First and second offenses for violations other than sale to minors can each be assessed a $1,000 fine, while a third offense can result in a 30-day permit suspension.
The resolution notes that, under Ordinance 8-205.9, the Beer Board can consider the permit holder’s “past record and location” in assessing a penalty.
If a previous violation occurred more than 24 months from the date of the current one, the board has the option to decide that the previous one will not be used against the permit holder.
When a permit is issued, the holder will receive a copy of this informal policy, as well as the city’s beer ordinance and information regarding the Responsible Vendor Program.
During discussion shortly before the vote, Caruthers asked whether the board will be “tiptoeing in a mine field” if it establishes a fine without considering that the offense could involve “extenuating circumstances.”
“When I was in the military,” he recalled, “they always told me that you cannot set the same fine for everything. You have to talk to whoever the perpetrator was and set the fine based on the circumstances.”
Lawson said that is why this is in a policy and not an amendment to the ordinance.
But Caruthers said he thinks the board will “incur legal problems” if it sets the fine at $1,500. He said he would be “more comfortable” if the policy allowed for “an amount up to $1,500.”
While noting that the beer ordinance gives the board “flexibility,” Lawson said the policy does not “bind” it to “doing less or more.”
“You can take the permit away, or you can give no fine,” he concluded. “This is just a direction, so that you have more of an informal policy that you would generally follow.”
By Bill Short