An opinion from the state attorney general's office says the Hamilton County Commission cannot pass an ordinance to authorize distilleries within the county.
It says the commission must use the petition and referendum method.
Here is the full opinion:
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)(l)(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
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)(l)(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
Page 2
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
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)(l), those provisions do not affect Title 57, Chapter 2 which exclusively governs when a county may authorize the manufacture of intoxicating liquors or drinks.
7,600
11,369
14,300
17.700
- 25,575
26.700
27.100
27.700
29.400
- 33,525
35.900
37.200
39.200
43.100
- 46,800 48,125
51.200
- 53,500
54.400
62.900
71.100
7,700
- 14,400 17,775 18,000 25,650 26,800
- 27,800
29.450
31.200
33.600
36.000
37.300
39.300
43.200
- 46,900
48.200
51,300
52.000
- 54,500
63,000
71,200
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71,300
91,800
- 107,100 126,600 134,700
153,000
182,000 382,000
71,400
91,900
- 107,200 126,700 134,800
153,100
- 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 http://www.tn.gov/ecd/graphics/Economicallv Distressed Counties 2012.png (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.
Requested by: .
The Honorable Bo Watson State Senator 301 6th Avenue North Suite 13 Legislative Plaza Nashville, TN 37243-0231
LYNDSAY F. SANDERS Senior Counsel
WILLIAM E. YOUNG Solicitor General
ROBERT E. COOPER, JR. Attorney General and Reporter
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.