                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON


JERI ST. JOHN d/b/a JERI’S,              )
                                         )                                    FILED
             Plaintiff/Appellant,        ) Henry Chancery No. 17636
                                         )                             December 2, 1998
VS.                                      ) Appeal No. 02A01-9804-CH-00095
                                         )                             Cecil Crowson, Jr.
BEER PERMIT BOARD, a division            )                             Appellate C ourt Clerk
of Henry County, Tennessee,              )
                                         )
             Defendant/Appellee.         )


           APPEAL FROM THE CHANCERY COURT OF HENRY COUNTY
                         AT PARIS, TENNESSEE
               THE HONORABLE WALTON WEST, CHANCELLOR




A. RUSSELL LARSON
Jackson, Tennessee
Attorney for Appellant



LEE M. GREER, III
GREER & GREER, ATTORNEYS
Paris, Tennessee
Attorney for Appellee




AFFIRMED




                                                              ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

HOLLY KIRBY LILLARD, J.
    Plaintiff, Jeri St. John (“St. John” or “Appellant”) appeals the trial court’s judgment
in favor of Defendant, Beer Permit Board (“Beer Board” or “Appellee”) denying St. John a

beer permit for her business “Jeri’s” n/k/a “The Foxy Lady.”



                            I. Factual and Procedural History



       St. John operates a business in Paris, Henry County, Tennessee, on Highway 79.

In the course of operating her business, St. John filed a request with the Henry County

Beer Permit Board for a permit to sell beer on the premises. A hearing was held on June

5, 1997, at which time a decision was delayed so that additional information could be

gathered about the precise location of the proposed establishment, its proximity to

surrounding residences and the traffic situation. On July 1, 1997, another hearing was held

and the permit was denied. A trial was then held in Chancery Court.



       By stipulation both parties agreed that the “300 foot rule” authorized by Tenn. Code

Ann. §57-5-105(g) had been adopted by the Henry County legislative body in 1976. The

“300 foot rule” forbids the sale of beer within 300 feet of a residential dwelling, provided the

owner of the residential dwelling appears in person before the County Beer Board and

objects to the issuance of such permit or license. The parties stipulated further that Mr. and

Mrs. Garrigus owned property adjacent to the proposed location, which included a main

dwelling house and several trailers, one of which was on the front portion of the property

located within 300 feet of the proposed building.



       Mrs. Garrigus appeared and testified at the hearing before the Beer Permit Board

and at trial, opposing the issuance of a beer permit to appellant. Mrs. Garrigus stated that

she stayed overnight in that mobile home sometimes two or three nights a week during part

of the year (six or eight months a year) because it was not air conditioned like the main

dwelling and it was better for her knees. The property had also been used as a residence

by her children, and a friend of her daughter and other house guests spent the night there

on occasion. They also made use of the trailer to entertain company by playing cards, etc.

Mrs. Garrigus characterized the trailer as her “extra bedroom.” The trailer was furnished



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with a stove, kitchen cabinets, bed, rocking chair, couch, a couple of tables and a chair.

The trailer’s only source of electricity is by an extension cord from the main house and this

is done to avoid the expense of a separate meter.



       The Appellant opened her nightclub prior to trial. Mrs. Garrigus testified that this

caused some traffic problems as the driveway to her property is close to the driveway of

appellant’s property and patrons of the nightclub would pull into the Garrigus driveway by

mistake. Chief Deputy Mike Jenkins testified that there had never been a commercial

establishment at that location before. He testified as to some visibility problems where the

driveway joined the highway, but that as one moves down the driveway near the edge of

the highway there is not a visibility problem. He testified he did not see the ingress and

egress situation as being a problem sufficient to have notified the state highway

department, although that is not part of a deputy’s routine job.



       Jack Hays, a resident of the area with 40 years experience in the highway business

testified as to plans for construction or change in the highway. A hearsay objection was

sustained. Upon offer of proof he indicated the plans were for a four-lane highway divided

by a median. He indicated that after those changes, negotiating a left turn into the

establishment would involve crossing over 72 feet of oncoming traffic. Outside the offer of

proof, he indicated that his examination of Department of Transportation records showed

the current 24 hour traffic count at the location in question was “7,000 plus.”



       After the trial concluded, the chancellor issued a Memorandum opinion which denied

the permit based on the “300 foot rule” and because the proposed site would constitute a

traffic hazard. This appeal by St. John followed.




                               II. “Residential Dwelling”



       Tennessee Code Annotated §57-5-105 addresses the issuance of beer permits and



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the process by which such permits may be obtained. Section (g) of this statute specifically

addresses what is known as the “300 foot rule.”

              §57-5-105(g) Class “A” counties, by resolution of their county
              legislative bodies, may forbid the sale of beer within three
              hundred feet (300') of a residential dwelling, measured from
              building to building, provided the owner of the residential
              dwelling appears in person before the county beer board and
              objects to the issuance of such permit or license . . .


       The parties stipulated that this provision had been adopted by the Henry County

legislative body in 1976. The parties further stipulated that such an objection was properly

lodged by Frances Garrigus and that the Garrigus trailer is within 300 feet of St. John’s

building. The conflict here turns on whether the trailer constitutes a “residential dwelling”

for the purposes of the statute.



       The term “residential dwelling” is not defined in the statute. In the trial court, the

chancellor opined that if a structure is used or is intended to be used or has the present

viable capability of being used as a place of abode, it would constitute a residential

dwelling. The chancellor further relied on the case of State v. Berry, 598 S.W.2d 828

(Tenn. Cr. App. 1980) which stated that “there is no requirement in the law that a house

be continually occupied in order to be a dwelling. It is sufficient that it is occasionally

occupied for residential purposes.” The Berry case goes on to state that where a person

establishes one or more homes as a dwelling house, each retains the character of an

inhabited dwelling house so long as he intends each to be a place of habitation for himself,

even though he is absent from it for a period of time. Berry at 830.



       It is the policy of the courts, generally, to give to statutory provisions regulating the

sale of intoxicating liquors a construction liberally in favor of the regulations and the places

or institutions which they are designed to protect and strictly against the applicants for beer

or liquor licenses or permits. Y & M v. The Beer Commission or Board of Johnson County,

Tennessee, 679 S.W.2d 446, 447(Tenn. 1984). It has been recognized that the needs and

desires of those in the locality particularly affected by an establishment that sells

intoxicating beverages are important and that the existence of such an establishment in



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close proximity to the property of others may adversely affect the value of their property.

Davis v. Blount County Beer Board, 621 S.W.2d 149, 152 (Tenn. 1981).



       There was evidence in this case that Mrs. Garrigus has occupied and continues to

occupy the trailer on several nights a week during the warm months because of her arthritic

knees. There was testimony that her children had lived in the home on a periodic basis in

the past. The trailer was used as a place to socialize with guests and there was testimony

that guests occasionally spent the night in the trailer.



       The Garrigus family uses this trailer for residential purposes. The statute was

enacted to protect such persons from the effects of an establishment that sells intoxicating

beverages in close proximity to their dwelling. Under a liberal construction of the statute,

a trailer located within the curtilage of the main home, which is from time to time used as

a primary and continuous dwelling, and which is otherwise used intermittently by the family

or some part of it as an extension of the main dwelling (i.e. for the purpose of sleeping,

entertaining, and accommodating overnight visitors), is clearly a “residential dwelling” within

the meaning of the statute.



       In cases involving beer permits, there exists on appeal a presumption of the

correctness of the findings of the trial judge. Those findings will not be disturbed on appeal

unless the evidence preponderates against them. Claiborne County Beer Board v. Poore,

556 S.W.2d 87, 88 (Tenn. 1977). For the foregoing reasons, this Court holds that the

evidence does not preponderate against the chancellor’s finding that the Garrigus trailer

constituted a residential dwelling under Tenn. Code Ann. §57-5-105(g).



                                      III. Traffic Hazard



       Tennessee Code Annotated §57-5-105(b)(1) states that “no beer will be sold except

at places where such sale will not cause congestion of traffic . . . or otherwise interfere with

public health, safety and morals.” At trial, the Chief Deputy for the Henry County Sheriff’s



                                               5
Department testified that visibility for egress from St. John’s business onto a state highway

was impaired by an existing “dirt bank.” Various photographs were introduced depicting St.

John’s drive as it connects to a state highway.



       The chancellor held that after evaluating the photographic exhibits and considering

all evidence on the issue, the present embankments along the existing drive cause an

impaired visibility onto the highway and result in an undue traffic hazard. The chancellor

further found that if the embankments along the drive were lowered so as to provide a

reasonable view of the highway traffic prior to entering the highway, there would otherwise

appear to be no basis for denying the permit on the basis of a traffic hazard.



       Appellant argues that under the holding in Hinkle v. T.E. Montgomery, 596 S.W.2d

800, 801(Tenn. 1980), in order for traffic congestion to constitute a valid basis for denying

a permit to sell beer in the package it must be shown that the issuance of a permit would

cause traffic to be more congested and more hazardous than it was prior to the issuance

of the permit. In Hinkle, the trial court denied the permit upon the ground that the issuance

of the permit would cause such an increase in traffic as to constitute a hazard to the

traveling public at the intersection. The holding in Hinkle therefore addresses the

necessary showing when the board is denying the permit based on congestion.



       In the case at hand the chancellor denied the permit to St. John based upon the

traffic hazard to the traveling public on the highway and the patrons leaving the

establishment, due to the impaired visibility along the egress. The chancellor was not

denying the permit based upon the “congestion of traffic” provision of the statute, but rather

the “public health and safety” provision. The courts do have the authority to determine,

from evidence in the record, if a particular permit would interfere with public health, safety,

and morals. Ewin v. Richardson, 399 S.W.2d 318 (Tenn. 1966). Appeals to this Court in

cases involving beer permits are accompanied by a presumption of the correctness of the

action of the trial judge. Such action will not be disturbed on appeal unless the evidence

preponderates against it. Coffman v. Hammer, 548 S.W.2d 310, 311 (Tenn. 1977). We



                                              6
do not find that the evidence preponderates against the decision of the chancellor on this

question.



                                     IV. Conclusion



      The judgment of the trial court is hereby affirmed. Costs of this appeal are taxed to

Appellant, for which execution may issue if necessary.




                                                              HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




LILLARD, J.




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