                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                            February 12, 2001 Session

HAROLD EUGENE LOVELACE, D/B/A THE LAST CHANCE CLUB, and
UNDERGROUND II, INC., D/B/A THE BOILER ROOM, v. THE CITY OF
            KNOXVILLE, TENNESSEE, ET AL.

                 Direct Appeal from the Chancery Court for Knox County
                Nos. 141142-3 and 141160-3  Hon. Sharon Bell, Chancellor
                                    MARCH 27, 2001

                                No. E2000-01609-COA-R3-CV
                                  FILED MARCH 27, 2001



In this Declaratory Judgment action the Trial Court held portions of a City Ordinance
unconstitutional relative to notice provisions, the term “open for business” and “open display”. We
affirm in part, reverse in part and remand.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirmed in part,
Reversed in part, and remanded.

HERSCHEL PICKENS FRANKS , J., delivered the opinion of the court, in which HOUSTON M. GODDARD,
P.J., and D. MICHAEL SWINEY, J., joined.

Michael S. Kelley, Law Director, Hillary B. Browning, Assistant City Attorney, and Charles
Swanson, Knoxville, Tennessee, for Appellant, City of Knoxville.

Jerrold L. Becker and Samuel W. Brown, Knoxville, Tennessee, for Appellees, Harold Eugene
Lovelace, d/b/a The Last Chance Club, and Underground II, Inc., d/b/a The Boiler Room.



                                           OPINION


                The plaintiffs in this declaratory judgment action, challenged the validity of an
ordinance of the City of Knoxville which prohibits the practice of “brown-bagging” (bringing and
consuming your own alcoholic beverages to a public establishment during certain hours.) Defendant
had previously enacted an “Anti-Brown Bagging” Ordinance which was found to be unconstitutional
by this Court in Underground II, Inc. v. City of Knoxville, 1998 WL 46447 (Tenn. Ct. App. Feb. 4,
1998). Subsequently, defendant adopted another Ordinance which is at issue before the Court, and
reads as follows:

              Section 4.2: Unregulated and Unlicenced Possession and Consumption of Beer
              and Alcoholic Beverages.

                    This section shall make the unregulated and unlicenced possession and
              consumption of beer and alcoholic beverages in a business in the City of Knoxville
              between the hours of 1:00 a.m. and 6:00 a.m. unlawful.

                      a) For the purposes of this section, the term “beer” shall mean all beers, ales
                      and other malt liquors having an alcoholic content of not more than five
                      percent (5%) by weight. For the purposes of this section, the term “alcoholic
                      beverages” shall mean alcohol, spirits, liquor, wince and every liquid
                      containing alcohol, spirits, or wine and capable of being consumed by a
                      human being other than patent medicine or beer there the latter contains an
                      alcoholic content of five percent (5%) or less by weight. For the purposes of
                      this section, an “open container” is a container which has any opening
                      through which its contents may pass in order to be consumed by any person.
                      For the purposes of this section, “Hotel” is defined in T.C.A. § 67-4-1401,
                      being any structure or space, or any portion thereof, which is occupied or
                      intended or designed for occupancy by transients for dwelling, lodging, or
                      sleeping purposes, and includes any hotel, inn, tourist camp, tourist court,
                      tourist cabin, motel, or any place in which rooms, lodgings, or
                      accommodations are furnished to transients for a consideration.

                      b) Between the hours of 1:00 a.m. and 6:00 a.m., it is unlawful for any person
                      to consume beer or an alcoholic beverage not lawfully sold by the business
                      on the premises of any business open for business during these hours in the
                      City of Knoxville.

                      c) Between the hours of 1:00 a.m. and 6:00 a.m., it is unlawful for any person
                      to possess an open container of beer or an alcoholic beverage not lawfully
                      sold by the business on the premises of any business open for business during
                      these hours in the City of Knoxville.

                      d) Between the hours of 1:00 a.m. and 6:00 a.m., it is unlawful for any owner
                      of a business open for business during these hours in the City of Knoxville
                      knowingly or intentionally to permit any person to possess an open container
                      of beer or an alcoholic beverage not lawfully sold by the business or to
                      consume beer or an alcoholic beverage not lawfully sold by the business on
                      the premises of said business. For the purposes of this ordinance, notice to
                      an agent or employee of a business shall constitute notice to the owner of the


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       business.

       e) Between the hours of 1:00 a.m. and 6:00 a.m., the open display by any
       person on the premises of a business open for business during these hours of
       any open container of beer or an alcoholic beverage marked as if for resale
       and not lawfully sold by the business, shall be evidence of a violation of
       subsection (d) above.

       f) Any owner of a business open between the hours of 1:00 a.m. and 6:00
       a.m., having notice, either actual or constructive, prior to 1:00 a.m. that beer
       or alcoholic beverages not lawfully sold by the business are being consumed
       on the premises shall at 1:00 a.m. or within a reasonable time thereafter give
       notice reasonable calculated to inform all persons on the premises that the
       consumption of beer or alcoholic beverages or the possession of an open
       container of beer or an alcoholic beverage on the premises is prohibited by
       this section. Failure of the owner of a business to give notice pursuant to this
       subsection, personally or through an agent or employee, shall be unlawful and
       shall constitute a separate violation of this ordinance. However, such failure
       shall not provide a defense to prosecution of any person under subsections (c)
       or (d) for the unlawful possession of consumption of beer of alcoholic
       beverages.

       g) This section does not prohibit the sale of beer or alcoholic beverages by
       any business which possesses a valid beer permit or alcoholic beverage
       license during such hours authorized by the laws of the State of Tennessee
       and the ordinances of the City of Knoxville nor does this section prohibit any
       other conduct permitted under laws of the State of Tennessee or the
       ordinances of the City of Knoxville. This section does not prohibit the owner
       of a business who resides on the premises of the business from consuming
       beer or alcoholic beverages at any time on the premises of from possessing
       an open container of beer or alcoholic beverages at any time of the premises.
       This section does not prohibit the consumption of beer or alcoholic beverages
       or the possession of any open container of beer or alcoholic beverages by any
       person within the confines of the person’s individual room in any Hotel
       within the City.

       h) The provisions of this section are severable. If any provision of this
       section or its application to any person or circumstance is held invalid, such
       invalidity shall not affect other provisions or applications of this section
       which can be given effect without the invalid provisions or applications.

       SECTION 2: An emergency is declared to exist in that it is necessary for the
preservation of the public peace, property, health, and safety that this Ordinance take


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               effect immediately upon its passage.

                      SECTION 3: This Ordinance shall take effect from and after its passage, the
               welfare of the City requiring it.

                Following trial, the Trial Judge ruled that the City had a legitimate interest in
minimizing the incidents of public drunkenness, intoxicated drivers and other harmful effects of the
consumption of beer and alcoholic beverages, and because the ordinance bore a reasonable
relationship to this interest, it was a valid exercise of the City’s police power. However, the Court
found the Ordinance was unconstitutionally vague as to the notice provision of § 4.2(f) and as to the
term “open for business.” The Court also found that the Ordinance was unconstitutionally overbroad
as to § 4.2(e) concerning “open display.” An order was entered on the Court’s Memorandum,
stating:

               (1) That the Ordinance enacted by the City regulating the unlicenced consumption
               of beer and alcoholic beverages at certain hours and the possession of open
               containers of beer and alcohol at certain hours bears a reasonable relationship to the
               legitimate interest to the City and is valid exercise of its police power; and (2) that
               the Ordinance is not unlawfully discriminatory in that it does not subject like kinds
               of persons or entities to unequal treatment; and (3) that the Ordinance is not
               oppressive in that there is no evidence of actual damage to the Plaintiffs; and (4) that
               the notice provision of § (f) of the Ordinance is unconstitutionally vague and
               therefore shall be stricken from the Ordinance; and (5) the term “open for business”
               if the Ordinance is unconstitutionally vague; and (6) that § (e) of the Ordinance if
               unconstitutionally overbroad and should be stricken from the Ordinance.

               The parties filed Motions to alter or amend, and in response to these Motions the Trial
Could held:

               (1) The Defendant City of Knoxville’s Motion for Alteration and Amendment of
               Judgment is denied: (2) that the notice provision of § (f) of the Ordinance is neither
               integral nor essential to the Ordinance and may be elided from same; that the
               presumption contained in § (e) of the Ordinance is neither integral not essential to the
               Ordinance and may be elided from same; that the term “open for business,” appearing
               is §§ (b) (c) (d), and (e) of the Ordinance is integral and essential to the Ordinance
               and may not be elided, and therefore, the Ordinance in its entirety is
               unconstitutionally vague; (3) that the Plaintiff’s Underground II, Inc., d/b/a The
               Boiler Room and Harold Eugene Lovelace, d/b/a/ The Last Chance Club’s Motion
               to Alter or Amend is granted, to the extent as set forth herein; (4) that § 4-2 of the
               Knoxville City Code is void and unenforceable; and (5) that the trial court’s Order
               of Judgment entered January 6, 2000, was incorporated by reference.

The parties have appealed, raising numerous issues.


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                Our review of this case is de novo upon the record, with a presumption of correctness
as to any factual determinations made by the Trial Judge, unless the evidence preponderates
otherwise. Rule 13(d), T.R.A.P.; Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.
1993). The Trial Court’s conclusions of law, however, are accorded no such presumption. Campbell
v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996). Construction of a statute or ordinance is
a question of law to be reviewed de novo. Roseman v. Roseman, 890 S.W.2d 27, 29 (Tenn. 1994).

                It is argued that the Ordinance is void for vagueness. It is a basic principle of due
process that an enactment is void for vagueness if its prohibitions are not clearly defined. Grayned
v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298 (1972); Davis-Kidd Booksellers, Inc.,
v. McWherter, 866 S.W.2d 520, 531 (Tenn. 1993). The test for vagueness is whether the statute is
so vague that men of common intelligence must necessarily guess at its meaning and differ as to its
application. Connally v. General Construction Co., 269 U.S. 385, 391, 146 S.Ct. 126, 127 (1926);
Davis-Kidd.

               The reason for the vagueness doctrine is twofold.

               First, because we assume that man is free to steer between lawful and
               unlawful conduct, we insist that laws give the person of ordinary
               intelligence a reasonable opportunity to know what is prohibited, so
               that he may act accordingly. Vague laws may trap the innocent by not
               providing fair warning. Second, if arbitrary and discriminatory
               enforcement is to be prevented, laws must provide explicit standards
               for those who apply them. A vague law impermissibly delegates
               basic policy matters to policemen, judges, and juries for resolution on
               an ad hoc and subjective basis, with the attendant dangers of arbitrary
               and discriminatory application.

Grayned, 408 U.S. at 108-109, 92 S.Ct. at 2298-2299; see also Davis-Kidd at 531.

               Section (f) of the Ordinance requires an owner to give notice to its patrons at 1:00
a.m. or a “reasonable time thereafter,” in a manner “reasonably calculated to inform,” that the
consumption of beer or alcohol, or the possession of an open container is a violation of the city
ordinance. The failure to give notice constitutes a separate violation of the ordinance. The Trial
Court struck this notice provision as unconstitutionally vague.

                In Underground II, Inc., we held the Ordinance to be unconstitutionally vague,
because it failed to “establish minimal guidelines to govern law enforcement.” In Davis-Kidd, the
Court emphasized the importance of the requirement that a legislature provide minimum guidelines
to govern law enforcement. 866 S.W.2d at 531. The notice provision in the Ordinance before use
does not establish any guidelines for determining when notice is “reasonably calculated to inform”
or “within a reasonable time.” Under the Ordinance, the owner of a business will not necessarily
know what conduct is required of them, and such decision will be left to the discretion of police


                                                -5-
officers, judges and juries.

                Defendant’s Police Chief’s testimony reflects that there is no concrete standard for
determining when an owner will be cited for failing to “give reasonable” notice, leaving wide
discretion to the investigating officer. As we said in Underground:

               [I]f the Chief of Police is unable to articulate any objective guidelines to be followed
               in enforcement of the ordinance, then it must be assumed ‘the ordinary people
               can[not] understand what conduct is prohibited an in a manner that does not
               encourage arbitrary and discriminatory enforcement.’

Underground, 1998 WL 46447 at *6. We conclude the notice provision is unconstitutionally vague
and we agree with the Trial Judge that the notice provision is severable from the Ordinance and
section (f) will be deleted from the Ordinance.

               Sections (b) and (c) of the Ordinance prohibit consumption of and possession of an
open container of beer or alcoholic beverages “not lawfully sold by the business on the premises of
any business open for business” between the hours of 1:00 am and 6:00 am. The Trial Court found
the term “open for business” as used in the Ordinance to be unconstitutionally vague. The Court
relied heavily upon the testimony of Chief Keith for this ruling. While the Trial Judge could
consider the Chief’s testimony as evidence of how a reasonable person would understand the
Ordinance, the ultimate decision of whether an ordinance is vague is a question of law and in the sole
province of the Court. See Roseman. While the Chief could not articulate a precise definition of
when a business was open, he did testify that he believed it to be commonly understood when a
business was open or closed.

                The vagueness doctrine does not invalidate every statute which a reviewing court
believes could have been drafted with greater precision, especially in the light of the inherent
vagueness of many English words. State v. Lyons, 802 S.W.2d 590, 592 (Tenn. 1990). There is no
specific definition in the Ordinance of the phrase “open for business,” but we think ordinary people
can understand when and where an establishment is open for business, and when and where
consumption or possession of alcoholic beverages would be prohibited under this ordinance. We
therefore find the Trial Court to be in error in finding the phrase “open for business” to be vague.

                Section (d) of the Ordinance makes it unlawful for an owner of a business to
“knowingly or intentionally” permit the possession or consumption of an “open container” of beer
or an alcoholic beverage. Section (e) provides that an “open display” of an open container of beer
or alcohol shall be evidence of a violation of Section (d). The Trial Court found that § (e) of the
Ordinance, relating to “open display,” was unconstitutionally overbroad. In Underground, we noted
that the 1996 Ordinance did not require that the owner have knowledge or intent that a customer
possess alcohol, so that simple possession, whether known to the owner or not, would subject the
owner to liability. Here, the defendant assumes that if a container is “openly displayed”, the owner,
or agent of the owner, must have seen it, and intentionally and knowingly allowed it. The fallacy


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of this approach, is the Ordinance does not define the term “open display,” and it is not clear on the
face of the Ordinance what is meant by the term. Accordingly, Section (e) can place absolute
liability on the owner, regardless of whether he or his agent had any actual knowledge or intent.

                 Defendant argues that the Trial Judge neglected to consider the intent requirement
of section (d) which states that a business owner may only be cited for a violations if the City proves
knowledge or intent. The defendant claims that the only significance of the “open display” provision
is that it be admissible in evidence, but it is not sufficient to establish liability. However, the words
of the Ordinance state that the open display “shall be evidence of a violation of subsection (d)
above.” At a minimum, the Ordinance creates a presumption of knowledge and intent that would
be difficult for the owner to overcome. This is particularly true in light of the fact that the Ordinance
does not define “open display” or offer any guidelines for law enforcement. Accordingly, we
conclude that reasonable persons could differ on their understanding of “open display.” And
without “minimal guidelines to govern law enforcement,” the Ordinance creates confusion and forms
a basis for arbitrary or discriminatory application.

               The Ordinance creates the very real potential of imposing absolute liability upon the
owner, without considering the owner’s knowledge or intent. For all of these reasons, the “open
display” section of the ordinance is overbroad, and unduly vague. Accordingly, Section (e) will b
e elided from the Ordinance.

              While considering the overbreadth doctrine, we also look to the fact that the
ordinance extends to all businesses, and not just those that are considered to be brown-bagging clubs.


                 A Statute is overbroad when, based upon its text in actual fact there are a substantial
number of instances where the law cannot be applied constitutionally. New York State Club Assoc.,
v. City of New York, 487 U.S.1 14 108 S.Ct. 22-25, 22-34, 101 L.Ed.1 (1988). State v. Lyons, 802
S.W.2d 590-593 (Tenn. 1990). The overbreadth doctrine not only prohibits a statute from
criminalizing constitutionally protected activity, but may also render a statute unconstitutional, if its
sweep has a chilling effect upon constitutionally protected conduct, even though the statute does not
directly forbid protected activity. See United States v. McKinnin Bridge Co., Inc., 514 F.Supp. 546-
548 (M.D. Tenn (1981), (citing Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d 916, 927
(6th Cir. 1980). A statute is not, however, vulnerable to the overbreadth challenge simply because
unconstitutional applications can be imagined. When a statute regulates economic conduct, its
overbreadth must be real as well as substantial when judged in relation to its plainly legitimate
sweep. See McKinnon Bridge Co. Inc., (citing Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct.
2908, 2917, 37 L.Ed2d 830 (1973)). The purpose behind the Ordinance clearly relates to the
“brown-bagging” clubs, such as those operated by plaintiff. However, the City’s Ordinance is not
limited in application to such establishments, but applies to “any business” that is open between the
hours of 1:00 and 6:00 a.m. This would include restaurants, businesses that hold grand opening
parties at night and, as mentioned during arguments, it might even include an attorney who decides
to have a beer while working in his law office during those hours. Nevertheless, for an ordinance


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to be struck down on its face, the overbreadth must be real and substantial. Accordingly, we are
unpersuaded that this overbreadth reaches a level of being substantial.

               We hasten to add, however, as the Broadrick Court noted:

               [W]here conduct and not merely speech is involved, we believe that the overbreadth
               of a statute must not only be real, but substantial as well, judged in relation to the
               statute’s plainly legitimate sweep. It is our view that § 818 is not substantially
               overbroad and that whatever overbreadth may exist should be cured through case-by-
               case analysis of the fact situations to which its sanctions, assertedly, may not be
               applied.

93 S.Ct. p.2918.

                Accordingly, we hold this provision is facially valid, but that is not to say, however,
that it cannot be constitutionally challenged as to some factual situations as the Broadrick Court
cautions.

               We find no merit in the issue that the Ordinance is unreasonable, oppressive, and
discriminatory. See Rivergate Wine & Liquors, Inc., v. City of Goodlettsville, 647 S.W.2d 631
(Tenn. 1983).

                Finally, the City has raised on appeal its objection to the Trial Court admitting the
testimony of Chief Keith, on the grounds that the Ordinance speaks for itself, and that any question
about its constitutionality is a question of law to be decided by the Court. Without considering the
Chief’s testimony, the ordinance is vague and overbroad because it does not provide guidelines for
enforcement. On its face, the Ordinance is clearly vague as to the notice that is required to be given
by business owners, providing that it must be “reasonably calculated to inform” and must be “within
a reasonable time” from 1 a.m. Ordinary people will understand the idea of “reasonable notice” in
very different ways, and it will vary depending upon the existing circumstances.

               The “open display” provision is likewise unconstitutional on its face, as it allows for
imposition of absolute liability on the owner. Ordinary people could differ on their understanding
of what constitutes an “open display” and without guidance, owners are placed under a great burden
to determine whether its patrons are in possession of beer or alcoholic beverages.

              To the extent that some of the Chief’s testimony should not have been admitted, it
is deemed harmless error. Tenn. R. App. P. Rule 35.

                Accordingly, we affirm the Trial Court’s Judgment as to the sections of the Ordinance
ordered deleted, but reverse its determination on the term “open for business”, which we find
sufficiently clear. We remand for entry of a Judgment consistent with this Opinion, and assess the
costs one-half to the plaintiffs and one-half to the defendant.


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      _________________________
      HERSCHEL PICKENS FRANKS , J.




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