                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                    February 14, 2002 Session

   COX OIL COMPANY, INC. v. CITY OF LEXINGTON BEER BOARD

                  An Appeal from the Chancery Court for Henderson County
                          No. 14565 Joe C. Morris, Chancellor


                    No. W2001-01489-COA-R3-CV - Filed October 10, 2002


This is an action challenging the denial of a beer permit. The plaintiff business applied for a beer
permit with the defendant beer board. The board denied the permit because plaintiff’s location was
within 500 feet of a church. This proximity to a church was in violation of a city ordinance. The
plaintiff filed a writ of certiorari in the trial court, seeking a reversal of the board’s decision because
the 500-feet ordinance had been applied in a discriminatory manner. The trial court found that the
board had allowed another establishment that was within 500 feet of a church to maintain its beer
permit, and concluded that the board had therefore applied the ordinance in a discriminatory manner.
Consequently, the denial of the plaintiff’s beer permit was reversed. The board now appeals that
order. We affirm, finding that the board had applied the ordinance in a discriminatory manner, and
that the trial court did not err in reversing the denial of the plaintiff’s beer permit.

               Tenn. R. App. P. 3; Judgment of the Chancery Court is Affirmed

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S., AND ALAN E. HIGHERS, J., joined.

Kenneth L. Walker, Lexington, Tennessee, for the appellant, City of Lexington Beer Board.

Stephen M. Milam, Lexington, Tennessee, for the appellee, Cox Oil Company, Inc.

                                               OPINION

        On October 30, 2000, Plaintiff/Appellee Cox Oil Co., Inc. (“Cox Oil”), applied to the
Defendant/Appellant City of Lexington Beer Board (“the Board”) for a permit to sell and store
package beer. In July 1998, the City had adopted a new ordinance, Section 8-210, which states that
a beer permit may not be issued to an applicant located “within five hundred (500) feet of any
hospital, school, church or other place of public gathering.” The ordinance contains a “grandfather
clause,” which states that “[n]o permit shall be suspended, revoked or denied on the basis of
proximity of the establishment to a school, church or other place of public gathering if a valid permit
had been issued to any business on that same location as of January 1, 1993 . . . .” Cox Oil’s
application for a permit reflects on its face that it is located within 60 feet of a church.1

        On November 7, 2000, the Board of County Commissioners, acting as the City of Lexington
Beer Board, heard Cox Oil’s application. Cox Oil’s application for a beer permit was denied, based
on the 500-feet rule. On December 20, 2000, Cox Oil filed a writ of certiorari in the trial court,
seeking a reversal of the Board’s decision because the Board had applied the 500-feet rule in a
discriminatory manner. Cox Oil alleged that, on December 3, 1993, a beer permit was issued to
Lexington Amoco, located adjacent to Cox Oil and also within 500 feet of a church. Cox Oil’s
lawsuit noted that, Lexington Amoco’s beer permit had not been revoked or suspended since the
enactment of the City ordinance, Section 8-210. The trial court found that the Board had allowed
Lexington Amoco to keep its beer permit, and that Lexington Amoco was located within 500 feet
of a church, in violation of the City ordinance. From this, the trial court concluded that the 500-feet
rule was being applied in a discriminatory manner. If the ordinance is applied in a discriminatory
manner, the trial court held, the “ordinance is completely removed as a valid ground for denial of
a beer permit and invalidates the ordinance.” On this basis, the trial court ordered the Board to issue
a beer permit to Cox Oil. The Board now appeals that order.

        On appeal, the Board argues that the trial court erred in relying on the permit issued to
Lexington Amoco as evidence of discriminatory application of the ordinance. The Board notes that
the permit was issued to Lexington Amoco in compliance with a decree of the Chancery Court of
Henderson County because of past discriminatory issuance of permits in violation of the City’s prior
distance ordinance. Because of this, the Board maintains, there was in effect no distance ordinance
in the City of Lexington at the time the permit was issued to the Lexington Amoco. In the
alternative, the Board asserts that the Lexington Amoco beer permit was covered by the grandfather
clause in the new distance ordinance. Finally, the Board claims that the new distance ordinance
promulgated in July 1998 constituted a “new” ordinance that was adopted along with an entirely new
city charter and city code. Therefore, the Board maintains, the new ordinance is not a “post facto”
amendment with which all existing permits must comply.

        We review the decision of the trial court de novo upon the record with a presumption of
correctness of the findings of fact by the trial court. See Tenn. R. App. P. 13(d). We afford the trial
court’s conclusions of law no such presumption. See State v. Levandowski, 955 S.W.2d 603, 604
(Tenn. 1997). The issue in this case is whether the evidence preponderates against the trial court’s
finding that the Board applied its distance ordinance in a discriminatory manner.

        It is well settled in Tennessee that, once discriminatory enforcement of a distance ordinance
has been established, the ordinance is invalid and is completely removed as a proper ground for
denial of a beer permit. See City of Murfreesboro v. Davis, 569 S.W.2d 805, 808 (Tenn. 1978); see
also Reagor v. Dyer County, 651 S.W.2d 700, 701 (Tenn. 1983); Seay v. Knox County Quarterly
Court, 541 S.W.2d 946, 947 (Tenn. 1976); Serv-U-Mart, Inc. v. Sullivan County, 527 S.W.2d 121,


       1
           The record reflects that Cox Oil’s property is adjacent to the United Method ist Church.

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123 (Tenn. 1975). When a permit is granted to one or more businesses in violation of the
ordinance’s distance parameters, while such a permit is denied to others similarly situated, this is
discriminatory application of the distance ordinance. “Any discriminatory application violates the
rule.” Reagor, 651 S.W.2d at 701. Once the ordinance has been applied in a discriminatory manner
and is thereby invalidated, the invalidity of the ordinance cannot be rectified by a post facto
amendment to the ordinance. Rather, the validity of the ordinance can be restored only “by
revocation or other elimination, such as attrition, of the discriminatorily-issued permits and licenses.”
City of Murfreesboro, 569 S.W.2d at 808. Thus, if a beer permit is valid at the time it is issued, but
later becomes violative of an amended ordinance, the Board must revoke or suspend the permit that
is in violation in order to maintain the validity of the amended ordinance. See id.

         The Board argues that the Lexington Amoco permit should not be the basis for a finding of
discriminatory application because it was ordered in compliance with a court order. The Board,
however, cites no case law in support of this position. Indeed, it was made clear in City of
Murfreesboro that, if a board allows any permit or license that violates the city’s distance ordinance
to remain in effect, then the ordinance becomes invalid and cannot be relied upon to deny a permit
or license to other applicants. See City of Murfreesboro, 569 S.W.2d at 808. Regardless of the
reason for the issuance of Lexington Amoco’s permit, the Board did not revoke or suspend
Lexington Amoco’s permit after the new distance ordinance went into effect. Thus, Lexington
Amoco was allowed to retain its permit in violation of the distance ordinance, while Cox Oil was
denied a permit based on the same ordinance. Such action constitutes discriminatory application,
and the ordinance, therefore, is invalid. See Serv-U-Mart, 527 S.W.2d at 123 (stating that “there can
be no discriminatory application of a [distance] rule before or after adoption of a resolution
embracing the rule. . . . After adoption, a finding of discretionary application will invalidate the
rule.”).

        The Board also argues that Lexington Amoco’s permit falls within the grandfather clause of
the new distance ordinance, and therefore cannot be the basis of a finding of discriminatory
application. Assuming arguendo that this argument is valid, the record in this cause does not support
the Board’s assertion that Lexington Oil’s beer permit falls within the grandfather clause of the
ordinance. The ordinance provides that “[n]o permit shall be suspended, revoked or denied on the
basis of proximity . . . if a valid permit had been issued to any business on that same location as of
January 1, 1993.”2 The parties agree that Lexington Amoco received a valid permit on December
3, 1993, pursuant to a chancery court order. This fact shows that the Lexington permit falls outside
the parameters of the grandfather clause at issue. There is no evidence to the contrary in the record.
The Board has the burden of bringing before this Court all of the information needed to support its
position on appeal. See Reagor, 651 S.W.2d at 701. Because the record does not include evidence
to support the Board’s assertion, we find this argument to be without merit.


         2
          In a memorandum filed in the trial court, the Boa rd alleges that “[i]t is believed that January 1, 1993 is a
typographical error and sh ould be 1994 , due to the fact that it was meant to ‘grandfather’ the Amoco permit.” However,
the Board d oes not raise this issue on appeal, and there is no evidence in the record indicating that such a typographical
error was m ade. The refore, that argument is not considered in this appeal.

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        Apparently to distinguish this case from City of Murfreesboro, the Board notes that the City
of Lexington enacted a new distance ordinance rather than adopting a “post facto amendment” of
an existing ordinance. See City of Murfreesboro, 569 S.W.2d at 808 (“Discriminatory enforcement
of a beer permit distance ordinance cannot be rectified by post facto amendments.”). However, the
Board acknowledges that the new distance ordinance was adopted because the prior distance
ordinance was rendered invalid by discriminatory application. The Board cites no case law
supporting its argument that the enactment of a new distance ordinance should be considered
distinguishable from the adoption of a post facto amendment under these circumstances. Indeed,
City of Murfreesboro made it clear that “[r]estoration of the validity of a distance ordinance can only
be achieved by revocation or other elimination, such as attrition, of the discriminatorily-issued
permits and licenses.” Id. Thus, this argument must be rejected as well.

       The decision of the trial court is affirmed. Costs are to be assessed to the appellant, City of
Lexington Beer Board, and its surety, for which execution may issue, if necessary.




                                                       ___________________________________
                                                       HOLLY KIRBY LILLARD, JUDGE




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