TCA § 57-5-108 — Revocation or suspension of permits or licenses — Civil penalty — Review of orders — Pilot project concerning local and municipal beer boards

Permits or licenses issued under this chapter by any county legislative body or any committee or board created by any county legislative body may be revoked or suspended in accordance with this section by the county legislative body, committee or board which issued the permit or license. Permits or licenses issued under this chapter by any board or commission created by the metropolitan council of any Class B county may be revoked or suspended in accordance with this section by such board or commission. Permits or licenses issued under this chapter by the governmental body of any incorporated city, or by any committee or board created by such governmental body may be revoked or suspended in accordance with this section by the governmental body, committee or board which issued the permit or license. A city, Class A county, or Class B county, or any committee, board, or commission created by these governmental bodies, shall not, pursuant to § 57-5-608, revoke or suspend the permit of a responsible vendor for a clerk's illegal sale of beer to a minor, if the permit or license holder and the clerk making the sale have complied with the requirements of § 57-5-606 as a responsible vendor under this part, but may impose on the responsible vendor a civil penalty not to exceed one thousand dollars ($1,000) for each offense of making or permitting to be made any sales to minors or for any other offense. The prohibition of subdivision (a)(2)(A) concerning the revocation or suspension of the vendor's permit shall not apply to any vendor who is not a responsible vendor under this part, or to a participating vendor, if the vendor or clerk making a sale to a minor fails to comply with the requirements of § 57-5-606. With respect to such permit or license holder, the committee, board, or commission may, at the time it imposes a revocation or suspension, offer the permit or license holder the alternative of paying a civil penalty not to exceed two thousand five hundred dollars ($2,500) for each offense of making or permitting to be made any sales to minors, or a civil penalty not to exceed one thousand dollars ($1,000) for any other offense. Permanent revocation of beer permits may only be applied when the permit holder has at least two (2) violations within a twelve-month period. Revocation of beer permits applies only to that permit holder, or agents of the permit holder, at that location. Revocation of beer permits shall not stay with the property if the property changes hands, nor may a city, Class A county or Class B county, or any committee, board or commission created by these governmental bodies, apply penalties, suspensions or revocations to other beer permits held by the permittee at other locations. Revocation of a beer permit at one (1) location should not be the sole disqualifying factor when considering the issuance of beer permits at other locations. If, at any location that has been affected by permanent beer permit revocation, the property changes hands and no longer belongs to the permit holder, or agents of the permit holder, the new property owner may apply to the beer board for release of revocation. If a civil penalty is offered as an alternative to revocation or suspension, where allowed under subdivision (a)(2)(B), the holder shall have seven (7) days within which to pay the civil penalty before the revocation or suspension shall be imposed. If the civil penalty is paid within that time, the revocation or suspension shall be deemed withdrawn. The holder's payment of a civil penalty shall not affect the holder's ability to seek review of the civil penalty pursuant to subsection (d). A city or county may at any time accept the payment of a civil penalty, not to exceed the amounts set forth in subdivision (a)(2)(B), by a permit or license holder charged with a violation of this chapter, which payment shall be an admission by the holder of the violation so charged and shall be paid to the exclusion of any other penalty that the city or county may impose. No permit or license shall be revoked on the grounds the operator or any person working for the operator sells beer to a minor over the age of eighteen (18) years if such minor exhibits an identification, false or otherwise, indicating the minor's age to be twenty-one (21) or over, if the minor's appearance as to maturity is such that the minor might reasonably be presumed to be of such age and is unknown to such person making the sale. The license or permit may be suspended for a period not to exceed ten (10) days or a civil penalty up to one thousand five hundred dollars ($1,500) may be imposed pursuant to subdivision (a)(3). However, this shall not be construed in any way to relieve the minor from liability for making such illegal purchase as provided in § 57-5-301. Such revocation, suspension, or imposition of civil penalty may be made for any violation of any provision of this chapter or whenever it shall satisfactorily appear that the premises of any person, firm or corporation holding a permit or license under this chapter are being maintained and operated in such manner as to be detrimental to public health, safety or morals. The board in considering the suspension or revocation of a license shall consider repeated violations of any local ordinance or state law involving prohibited sexual contact on the premises of an adult oriented establishment. The action of such agency in connection with the issuance of any order of any kind, including the revocation or suspension of a license or permit, imposition of a civil penalty or the refusal to grant a license or permit under §§ 57-5-105, 57-5-106 and this section, may be reviewed by statutory writ of certiorari, with a trial de novo as a substitute for an appeal, the petition of certiorari to be addressed to the circuit or chancery court of the county in which any such order was issued. Immediately upon the grant of the writ of certiorari, the agency revoking or suspending a license or permit or imposing a civil penalty shall cause to be made, certified and forwarded to the court a complete transcript of the proceedings in the cause. This section shall be the sole remedy and exclusive method of review of any action or order that may have been issued by any county legislative body, or any committee appointed by any county legislative body, or from any board or commission authorized under §§ 57-5-105 and 57-5-106, including the refusal or failure to grant any license or permit or the imposition of a civil penalty. The Tennessee Rules of Civil Procedure shall be applicable in connection with such review. Any party dissatisfied with the decree of the court may, upon giving bond as required in other cases, appeal, where the cause shall be heard upon the transcript of the records from the circuit court. A judge of any court of record shall have the authority to supersede, stay or enjoin any order of an agency revoking, suspending or imposing a civil penalty made under the authority of this chapter for good cause shown on part of the petitioning party thereof. No circuit or chancery judge shall have the authority to grant any such extraordinary writ except the judge of a court of record to which the petition for certiorari is addressed. If a final judgment is entered by the trial court superseding the revocation or suspension order or order imposing a civil penalty, and the cause is appealed by the agency, the final judgment of the trial court shall remain in force until final appellate disposition of the cause. In instances involving only wholesale beer permits or licenses, or certificates of registration, the order of the agency suspending, revoking or failing to renew such wholesale beer permits or licenses or certificates of registration or imposing civil penalties shall as a matter of law be stayed or superseded, and the order will not be effective until final judicial review, including all available appeals, of the matter. In instances where no appeal is taken or perfected by the wholesaler within the required time as prescribed by law, the order of the agency shall become effective. The remedy provided by this section shall be the only method of reviewing orders of county legislative bodies, governing bodies or municipal corporations, boards or committees revoking or suspending licenses issued under this chapter or imposing civil penalties. Where a permit or license is revoked, no new license or permit shall be issued to permit the sale of beer on the same premises until after the expiration of one (1) year from the date the revocation becomes final and effective. The board, in its discretion, may determine that issuance of a license or permit before the expiration of one (1) year from the date of revocation becomes final is appropriate, if the individual applying for such issuance is not the original holder of the license or any family member who could inherit from such individual under the statute of intestate succession. Powers to suspend, revoke, or impose civil penalties conferred in this section upon county legislative bodies and governmental bodies of incorporated cities and any committees, commissions, or boards created by such bodies and/or governmental bodies are likewise conferred upon the commissioner of revenue as they may relate to certificates of registration and transportation permits issued by the commissioner under this chapter to any licensed brewer, wholesaler or distributor for the failure of any such person to file with the commissioner any report required by this chapter, or for the filing of a false report, or the failure to pay tax due by any such licensee under this chapter and rules and regulations promulgated pursuant thereto, or for the receipt, possession, storage or transportation of beer in violation of this chapter, or any rule and regulation promulgated by the commissioner thereunder, and for no other reason. The remedy provided by this section shall likewise be the only method of reviewing orders of the commissioner revoking or suspending certificates of registration and transportation permits issued under this chapter or imposing civil penalties. Any county, municipal or metropolitan beer board or committee may, at its discretion, revoke or suspend the permit of or impose a civil penalty pursuant to subdivision (a)(3) on any beer retailer within its jurisdiction who is found to possess beer on which the state beer barrelage tax, imposed by § 57-5-201, and the city and county wholesale beer tax, imposed by § 57-6-103, has not been paid. The burden of proof shall be upon the retail beer permit holder to show that the two (2) taxes on the beer in the permit holder's possession have been paid by showing that the beer was purchased from a Tennessee beer wholesaler, which fact shall be shown by the retailer providing a bill of sale or invoice for the beer which shall include the name and address of the wholesaler, the name and address of the retailer, the number of containers of each brand of beer purchased by the retailer, and which shall be signed by the retailer. As a pilot project to terminate July 1, 2014, unless extended by the general assembly, when a local or municipal beer board responsible for controlling the sale of beer or malt beverages within any county included within subsection (p), finds violations, as defined in this chapter, in the sale of beer or malt beverages consumed on-premises of an establishment located within the local or municipal beer board's jurisdiction that result in the beer board suspending the operation of or revoking the permit of the establishment where the violation occurred, the beer board is authorized to notify the executive director of the alcoholic beverage commission by certified mail, return receipt requested, of the action taken by the beer board. Such notice shall include the record of evidence and the determination made by the beer board in suspending or revoking the permit. Upon receipt of such notice, the executive director of the alcoholic beverage commission shall take the actions required pursuant to § 57-4-202(b) with respect to violations as defined in chapter 4 of this title related to the license for the sale of alcoholic beverages for consumption on the premises at the location where the violation of this chapter occurred. The suspension or revocation decision of the beer board made pursuant to subdivision (n)(1)(A) is final, and any party aggrieved thereby may appeal the decision of the beer board in accordance with the appeal procedures of this chapter. As a pilot project to terminate July 1, 2014, unless extended by the general assembly, if, pursuant to § 57-4-202(c), the alcoholic beverage commission sends a certified letter, return receipt requested to the local or municipal beer board responsible for controlling the sale of beer or malt beverages within any county included within subsection (p), providing notice that the commission has suspended or revoked the license of an establishment for a violation of chapter 4 of this title, upon receipt of the certified letter, the beer board shall: Schedule a hearing for the next regularly scheduled meeting of the beer board to be held at least fourteen (14) days following the date the beer board receives the certified letter to provide an opportunity for the permit holder to appear and show cause why the permit to sell beer on the premises should not be suspended or revoked for violations of this chapter based on actions taken by the alcoholic beverage commission pursuant to § 57-4-202(c); and Notify the individual or business entity, which is listed as the permit holder at the same location where the alcoholic beverage license had been suspended or revoked, of the date and time of the hearing. If the beer board finds that a sufficient violation or violations of this chapter have occurred at such location, then the beer board shall suspend or revoke the permit to the same extent and at least for the same period of time as the alcoholic beverage commission has suspended or revoked the license of the establishment pursuant to § 57-4-202(c). If the permit holder fails to appear or decides to surrender the permit to the beer board in lieu of appearing at the hearing, the permit shall be suspended or revoked by the beer board, and no permit to sell beer or malt beverages on the premises shall be issued by the beer board to any person for the location where the alcoholic beverage commission had suspended or revoked the license pursuant to § 57-4-202(c) for the period of time included in the decision of the alcoholic beverage commission. The decision of the beer board is final, and any party aggrieved thereby may appeal the decision of the beer board in accordance with this chapter. The pilot project established by subsections (n) and (o) shall only apply in counties having a population, according to the 2010 federal census or any subsequent federal census, of: not less than nor more than 6,800 6,900 19,100 19,150 22,600 22,675 32,200 32,300 35,600 35,700 51,400 51,500 56,800 56,900 336,400 336,500 432,200 432,300