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Tennessee Advisory Opinions January 01, 2012: TN Att. Gen. Op. 12-93

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Collection: Tennessee Attorney General Opinions
Date: Jan. 1, 2012

Advisory Opinion Text

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


October 3, 2012


Opinion No. 12-93


Manufacture of Intoxicating Liquors in Hamilton County


QUESTION


May Hamilton County permit the manufacture of intoxicating liquors or intoxicating drinks within its boundaries by means of a resolution adopted by its Board of Commissioners pursuant to Tenn. Code Ann. § 57-2-103(d) in lieu of seeking to obtain such authorization by means of a referendum as set forth in Tenn. Code Ann. §§ 57-2-103(a)-(c)?


OPINION


No. Tenn. Code Ann. § 57-2-103(d) authorizes county legislative bodies to adopt resolutions authorizing the manufacture of intoxicating liquors and intoxicating drinks in counties that (1) have approved both retail package sales and liquor by the drink or are included in the Tennessee River resort district as defined by Tenn. Code Ann. § 57-4-102 and (2) meet the population requirements set forth in Tenn. Code Ann. § 57-2-103(d)(1)(B). Hamilton County does not come within these statutory requirements and, therefore, the county must follow the petition and referendum procedure set forth in Tenn. Code Ann. § 57-2-103(a)-(c) before the manufacture of intoxicating liquors and intoxicating drinks may be permitted in the county.


ANALYSIS


Tenn. Code Ann. § 57-2-103 generally governs the manufacture of intoxicating liquors in Tennessee. Under that statute, such manufacture is permitted in any county where the majority of voters have, by referendum, approved a resolution permitting it within the county. See State ex rel. Motlow v. State , 173 Tenn. 81, 89-90, 114 S.W.2d 800, 803-04 (1938). Tenn. Code Ann. § 57-2-103(a)-(c) sets forth the procedure that is followed to determine whether such a referendum may be presented to the voters. If 10% of the qualified voters in a county sign a petition to present the question whether the manufacture of liquor will be permitted within a county, the county commission must call an election on the question. Tenn. Code Ann. § 57-2- 103(a)-(b). If a majority of the votes are cast in favor of the question, then the manufacture of liquor is permitted within that county. Tenn. Code Ann. § 57-2-103(c).


Prior to 2009, a county that chose to exercise its local option to permit or prohibit the manufacture of intoxicating liquors within its borders could do so only by referendum under

Tenn. Code Ann. § 57-2-103.1 In 2009, the General Assembly enacted Public Chapter 524, which added subsection (d) to Tenn. Code Ann. § 57-2-103. Subsection (d) provides in relevant part:


(d)(1)(A) Notwithstanding subsections (a)-(c), it shall be lawful to manufacture intoxicating liquors or intoxicating drinks, or both, within the boundaries of those counties included in subdivision (d)(1)(B), if both retail package sales and liquor- by-the-drink have been approved through voter referendum within the county or if the county is included in the Tennessee River resort district as defined in § 57-4- 102 and retail package sales have been approved through voter referendum within the county.


(B) This subsection (d) shall apply in any county having a population, according to the 2000 federal census or any subsequent federal census, of:


not less than

nor more than

7,600

7,700

11,369

11,450

14,300

14,400

17,700

17,775

17,900

18,000

25,575

25,650

26,700

26,800

27,100

27,200

27,700

27,800

29,400

29,450

31,100

31,200

33,525

33,600

35,900

36,000

37,200

37,300

39,200

39,300

43,100

43,200

44,200

44,300

46,800

46,900

48,125

48,200

51,200

51,300

51,900

52,000

53,500

53,600

54,400

54,500

62,900

63,000

71,100

71,200

  1. Chapter 3 of Title 57, specifically Tenn. Code Ann. § 57-3-106, also contains provisions related to local option elections in counties and municipalities to permit or forbid the manufacture, receipt, sale, storage, transportation, distribution and possession of intoxicating liquors. However, pursuant to Tenn. Code Ann. § 57-3-103(a)(1), those provisions do not affect Title 57, Chapter 2 which exclusively governs when a county may authorize the manufacture of intoxicating liquors or drinks.


    71,300

    71,400

    91,800

    91,900

    105,800

    105,900

    107,100

    107,200

    126,600

    126,700

    134,700

    134,800

    153,000

    153,100

    182,000

    182,100

    382,000

    382,100


    and in any county having a population of more than five hundred thousand (500,000) according to the 2000 federal census or any subsequent federal census.


    Tenn. Code Ann. § 57-2-103 (d)(1).2


    In order for subsection (d)(1)(A) to apply to a particular county, the county population must fall within one of the population classifications contained in subsection (d)(1)(B). Hamilton County’s total population, according to the 2000 Federal Census was 307,896 and the population according to the 2010 Federal Census was 336,463, neither of which falls within the



  2. “Tennessee River resort district” is defined by Tenn. Code Ann. § 57-4-102(35) as:


a club, hotel, motel, restaurant or limited service restaurant located within a jurisdiction that has elected Tennessee River resort district status pursuant to the provisions of § 67-6-103(a)(3)(F); provided, that for the purposes of this chapter, such district shall only extend inland for three (3) miles from the nearest bank of the Tennessee River.


Tenn. Code Ann. § 67-6-103(a)(3)(F) provides:


(F)(i) A county ranking in the first quartile of county economic distress in the United States for fiscal year 2006, as determined pursuant to subdivision (a)(3)(F)(v) and bordering on, or crossed by, the Tennessee River, may elect to be a “Tennessee River resort district” for purposes of this chapter. A municipality within such county and located within three (3) miles of the nearest bank of the Tennessee River, may also elect to be a “Tennessee River resort district” for purposes of this chapter. . .This subdivision (a)(3)(F)(i) shall also apply in any county that has a population of less than ten thousand (10,000), according to the 2000 federal census or any subsequent federal census, and borders the Tennessee River and a county included within the Tennessee River resort district. This subdivision (a)(3)(F)(i) shall also apply in any county having a population of not less than twelve thousand three hundred sixty-nine (12,369) nor more than twelve thousand four hundred fifty (12,450) and in any county having a population of not less than seventeen thousand nine hundred (17,900) nor more than eighteen thousand (18,000), all according to the 2000 federal census or any subsequent federal census, and that border the Tennessee River;


Tenn. Code Ann. § 67-6-103. According to the map published by the Department of Economic and Community Development found at (last viewed September 17, 2012), Hamilton County does not qualify as an economically distressed county, nor does it meet the population parameters in subsection (F)(i), therefore Hamilton County does not qualify as a Tennessee River resort district. Furthermore, Hamilton County has never qualified for or elected into Tennessee River resort district status according to information this Office obtained from the Department of Revenue.

population groups that are set forth in that subsection. Therefore, Tenn. Code Ann. § 57-2- 103(d) does not apply to Hamilton County, and the county is limited to the referendum process set forth in Tenn. Code Ann. §§ 57-2-103(a)-(c) in order to exercise its local option to permit the manufacture of intoxicating liquors within its borders.


ROBERT E. COOPER, JR.

Attorney General and Reporter


WILLIAM E. YOUNG

Solicitor General


LYNDSAY F. SANDERS

Senior Counsel


Requested by:


The Honorable Bo Watson State Senator

301 6th Avenue North Suite 13 Legislative Plaza Nashville, TN 37243-0231