October 28, 2022
By: Dwayne Page
A new beer ordinance
During a special called meeting Thursday evening, the Smithville Mayor and Aldermen adopted on second and final reading a new beer ordinance to replace one that had been in effect for several years.
Many provisions in the new ordinance mirror existing regulations such as the 400 feet distance requirement between a business permitted to sell beer and a church or school but one change is the implementation of the Tennessee Responsible Vendors Act, which was adopted by the state in 2006 that municipalities may also enact as part of city regulations for vendors permitted to sell beer.
The Responsible Vendor program is voluntary but requires participating vendors to comply with employee training requirements. In exchange for complying with the program, certified vendors receive reduced punishments for any illegal sales to minors. Once certified, participating vendors are not subject to permit revocation or suspension upon an initial violation. Instead, they are subject to only a civil penalty not exceeding $1,000 per offense of sale to a minor or other offense. Permanent revocation will not be allowable absent two violations within a 12-month period under state law. Nonparticipating vendors face higher civil penalties. A noncompliant vendor guilty of sale to a minor is subject to suspension or revocation or a civil penalty not to exceed $2,500. These discrepancies in punishment provide a major incentive for retail vendors to become certified.
Mayor Josh Miller said the primary reason for the city adopting a new beer ordinance was to include the Tennessee Responsible Vendors Provision.
“The only reason we even brought up the beer ordinance is because of problems in the past with people not selling alcohol legally. When I say that I mean selling illegally to minors. There was some verbage we had to clear up (in the ordinance) and the state’s recommendation and that of MTAS was to put in place the Tennessee Responsible Vendors Act. This gives us teeth to enforce the law,” said Mayor Miller.
The new ordinance was amended with final passage removing “residence” and “place of public gathering” from the 400-foot distance requirement. City attorney Vester Parsley said the word “residence” was not in the old ordinance and was added inadvertently to the new ordinance. He suggested that it be removed. Parsley also advised that the term “place of public gathering”, which was in the old ordinance, be stricken from the new ordinance because it was too vague.
The term “place of public gathering”, as previously included in the ordinance, pertained to all such places as defined by applicable state law along with all public buildings, whether such public buildings are owned by a governmental entity or agency or leased by a governmental entity or agency, a church, or school.
“A place of public gathering can be construed by a lot of people and I actually went to MTAS attorneys today (Municipal Technical Advisory Service) and got opinions from them and they had the same issues with it. Our old ordinance which is #361 did in some ways define public gatherings and that too was a little vague so in order to clarify that it is my recommendation that we take out residence and place of public gathering from our new ordinance by amendment to make it clear for people who in the future want to open a restaurant in the city,” said Parsley.
Under the new ordinance, as adopted by the aldermen Thursday night, the language states that “In no event will a permit be issued authorizing the manufacture or storage of beer, or the sale of beer within 400 feet of any school or church. The distance requirement shall be measured in a straight line from the primary entrance of the establishment seeking a permit to sell beer to the primary entrance of the school or church.
Prior to final passage of the ordinance, Todd Cantrell, a downtown property owner, addressed the mayor and aldermen during a public hearing claiming that the city has previously issued beer permits in violation of the beer ordinance and he specifically mentioned one business in particular, the Harvester Performance and Event Center downtown owned by Bert Driver.
“His (Driver’s) primary business (Harvester) is to sell tickets, rent space, sell liquor and sell beer. He creates a public gathering every time he rents space in his building or joins in the street festivals downtown. The Harvester is not even 300 feet from where the streets are blocked off for the event. The requirement is 400 feet”, said Cantrell.
Cantrell also claims that the Harvester violates another section of a city beer ordinance in that it isn’t considered a restaurant permitted to sell beer.
“According to Section 1(a) of the Ordinance 445 passed on December 12, 2012, in order to have a Class 1 on premises beer permit an establishment must, in addition to meeting the other regulations and restrictions in the Chapter be primarily a restaurant or eating place. The Harvester would have to become a food court for downtown Smithville in order to meet the requirement of being primarily an eating place,” said Cantrell.
As it stands, the beer ordinance does not permit Cantrell to be granted a city beer permit even if he wanted one because the location of his building at 119 West Market Street is within 400 feet of the Smithville Cumberland Presbyterian Church. Cantrell told WJLE earlier this month that he got the idea of possibly opening a small restaurant and serving beer after a tenant in his building recently decided to move to another location on the public square.
City Attorney Parsley said Driver is in compliance with the distance requirement under the beer ordinance, but he did not specifically address Cantrell’s complaint that the Harvester doesn’t qualify for a beer permit because it is not primarily a restaurant or eating place.
“Mr. Driver’s attorney contacted me, and they did a survey (prior to issuance of beer permit) and he is compliance with the 400-foot rule. The issue of public gathering was never brought up (at that time). I understand what Mr. Cantrell is saying about this other provision (Section 1 (a) of Ordinance 445) but he complied with everything in my opinion (related to distance),” said Parsley.
Cantrell accused the city of showing favoritism and requested a public hearing to determine if the Harvester’s beer permit is valid based on the beer ordinance at the time it was issued.
“I have an issue with favoritism, and when I see something resembling a Good Ole Boy Network, I always feel compelled to speak out, no matter how many people it upsets. Eliminating the phrase place of public gathering from the ordinance now seems to only benefit Mr. Driver and the Harvester Performance and Event Center because the Harvester will no longer be in violation of the 400-foot rule going forward,” said Cantrell.
“I request a public hearing to decide if the Harvester was granted a beer permit in violation of Section 1 (a) of Ordinance 445. Anything short of a public hearing on the Harvester’s beer permit will simply prove my case that favoritism is being shown to Mr. Driver and the Harvester,” Cantrell continued.
Alderman Shawn Jacobs said that it is the city beer board’s responsibility to issue permits and ensure compliance.
“The city council does not issue beer permits. That is done by the beer board. We have absolutely nothing to do with that. They are in charge of knowing the ordinances and statutes and any action taken is their responsibility and the city council has nothing to do with that,” said Jacobs.
Going forward the city, at the mayor’s suggestion, will require all future applicants to have a survey done to ensure they comply with minimum distance requirements before being issued a beer permit.
After the meeting Mayor Miller told WJLE that he takes issue with Cantrell’s allegations of favoritism by the city. He said the city does not operate under the good ole boy system and no one is given special treatment or shown favoritism.