                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     July 12, 2005 Session

    LINDA KISSELL d/b/a FULL MOON SPORTS BAR AND DRIVING
         RANGE v. McMINN COUNTY COMMISSION, ET AL.

                    Appeal from the Chancery Court for McMinn County
                         No. 22093    Jerri S. Bryant, Chancellor



                 No. E2004-02938-COA-R3-CV - FILED AUGUST 19, 2005


This case involves the Petitioner’s application for a permit to sell beer both on and off-premises of
her proposed business establishment. The trial court affirmed the Appellee McMinn County
Commission’s decision to deny the permit, pursuant to Tenn. Code Ann. § 57-5-105, on grounds that
Petitioner’s application contained a false statement. Petitioner contends on appeal that she should
have been granted the permit because she did not know the statement was false at the time she made
it, and because she attempted to amend the application to correct the false statement prior to the
hearing before the McMinn County Chancery Court. We affirm the judgment of the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
                                     Case Remanded

SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., joined.
CHARLES D. SUSANO , JR., J., filed a separate concurring opinion.

John W. Cleveland, Sweetwater, Tennessee, for the Appellant, Linda Kissell d/b/a Full Moon Sports
Bar and Driving Range.

Thomas E. LeQuire and Robert C. Denny, Chattanooga, Tennessee, for the Appellee, McMinn
County Commission.

                                            OPINION

       On or about April 29, 2004, Linda G. Kissell (“Petitioner”) applied to the McMinn County
Commission (“the Commission”) for a permit to sell beer for both on-premises and off-premises
consumption at her proposed business establishment, the Full Moon Sports Bar and Driving Range.
In response to the question on the application requesting the name of any manager other than the
applicant, Petitioner answered “Darrell Lee Crisp.” In response to the question “[h]as. . .any
manager listed in response to question 14 above, or any other employee of the business, been
convicted of any violation of the beer or alcoholic beverage laws or any crime (other than minor
traffic violations) within the past ten (10) years,” Petitioner responded “No.” In fact, Mr. Crisp had
been convicted in 1998 of reckless endangerment with a weapon and of spotlighting deer.

         The Commission considered and denied Petitioner’s application on May 20, 2004. Petitioner
filed a petition for writ of certiorari in the McMinn County Chancery Court on May 28, 2004. In its
amended response to the petition, the Commission alleged that Petitioner had made a false statement
on her application by stating that Mr. Crisp had not been convicted of any crime other than a minor
traffic violation in the past ten years.

        Both parties filed motions for summary judgment. Following a hearing on the motions, the
trial court on November 2, 2004 entered an order granting the Commission summary judgment and
upholding its denial of the beer permit.

     Petitioner appeals, raising the issue of whether the trial court erred when it granted the
Commission’s motion for summary judgment.

        Our standard of review regarding summary judgment is well settled. A motion for summary
judgment should be granted when the movant demonstrates that there are no genuine issues of
material fact and that the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P.
56.04. The party moving for summary judgment bears the burden of demonstrating that no genuine
issue of material fact exists. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). On a motion for
summary judgment, the court must take the strongest legitimate view of the evidence in favor of the
nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing
evidence. Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993).

        There is no dispute between the parties regarding the facts in this case. Because this appeal
involves a question of law, we undertake our de novo review with no presumption of correctness as
to the trial court's conclusions of law. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91
(Tenn.1993); I & L Investments, LLC v. Cagle's Const., LLC, No. E2005-00654-COA-R3-CV, 2005
WL 1798772 at *4 (Tenn. Ct. App. E.S., filed July 28, 2005).

       As a general rule, Tennessee courts “give to statutory provisions regulating the sale of
intoxicating liquors a construction liberally in favor of the regulations and the places or institutions
for which they are designed to protect and strictly against the applicants for beer or liquor licenses
or permits.” Y & M v. Beer Commission or Board of Johnson City, 679 S.W.2d 446, 447 (Tenn.
1984); Tennessee Sports Complex, Inc. v. Lenoir City Beer Bd., 106 S.W.2d 33, 35 (Tenn. Ct. App.
2003).

       Tenn. Code Ann. § 57-5-105, the applicable and governing statute in this case, sets forth the
requirements for an applicant who requests a beer permit in a Class A county, such as McMinn
County. After listing the information an applicant must disclose on his or her application, Tenn.
Code. Ann. § 57-5-105(c), the statute mandates that “[a]ny applicant making a false statement in the
application shall forfeit such applicant’s permit. . .” Tenn. Code Ann. § 57-5-105(d).


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     In its amended response to the petition for writ of certiorari, dated July 1, 2004, the
Commission asserted the following:

              Question 14 on Petitioner’s application lists Darryl [sic: Darrell] Lee
              Crisp as a manager of the proposed business. Question 15 asks if any
              manager listed in question 14 has been convicted of any crime other
              than a minor traffic violation within the past ten years. In response
              to question 15 the applicant stated “no.” In fact, [Darrell] Lee Crisp
              was convicted of reckless endangerment with a weapon on January
              16, 1998 in McMinn County [General] Sessions Court and was
              convicted of spotlighting deer on September 1, 1998 in General
              Sessions Court of McMinn County. Therefore, the applicant made a
              false statement in the application and is not entitled to the permit as
              requested.

        In her affidavit supporting her summary judgment motion, dated September 7, 2004,
Petitioner stated as follows:

              Prior to completing said application on April 29, 2004,. . .I asked
              Darrell Crisp if he had been convicted of any violation of the beer or
              alcoholic beverage laws or any crime (other than minor traffic
              violations) within the past ten (10) years, and he assured me that he
              had not. On April 29, 2004, I believed that Darrell Crisp was a
              truthful person, who gave a truthful answer regarding his having no
              convictions, and I was aware that his reputation in the community for
              truthfulness was good.
                              *              *               *
              By signing my application on April 29, 2004, I certified that “this
              application contains true information to the best of my knowledge and
              belief,” and when I filed my APPLICATION FOR A BEER PERMIT on
              April 29, 2004, the best of my knowledge and belief was that Darrell
              Crisp had not ever been convicted of any crime.
                              *              *               *
              To the extent that I have a continuing obligation to amend or
              supplement my APPLICATION FOR A BEER PERMIT with information
              that is already known to the McMinn County Commission, I hereby
              amend and supplement my answer to question 15 of my Application
              for a Beer Permit by deleting my answer in its entirety and
              substituting therefor the following answer, “Yes, Darrell Lee Crisp,
              misdemeanor Reckless Endangerment-Weapon and Spotlighting
              Deer, both in McMinn County General Sessions Court on 6/21/98 and
              9/1/98 respectively.”



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The record also contains affidavits of Dennis Kissell (Petitioner’s husband), and Darrell Crisp, that
substantially agree with and reiterate the above attestations.

       The trial court conducted a hearing on November 2, 2004. By order entered November 12,
2004, the trial court granted the Commission summary judgment and upheld the denial of the beer
permit application.

        We are of the opinion that the language of Tenn. Code Ann. § 57-5-105(d) is clear and
unequivocal in expressing the legislature’s intent that an applicant who makes a false statement in
a beer permit application shall not be entitled to receive the permit. We believe the statute provides
the Commission authority to deny a permit in such an event, and the Commission was within its
discretion to do so.

        Petitioner cites the case of McCarter v. Goddard, 609 S.W.2d 505 (Tenn. 1980) in support
of her argument. The Court in McCarter stated as follows:


               The final issue presented by the Board is whether the application was
               subject to rejection because it contained a false statement. The
               application originally submitted to the Board stated that the appellee
               had no partners. At this time, the appellee was discussing a
               partnership arrangement with Mrs. Helen Broyles, but no money had
               as yet changed hands. Mrs. Broyles subsequently became a partner,
               although the appellee was to remain in charge of the actual operation
               of the business. At the hearing before the Board held three weeks
               later, the appellee fully informed the Board of the arrangements made
               since the filing of the application. Under these facts, we hold that the
               appellee did not falsify his application.


McCarter, 609 S.W.2d at 508.


         The McCarter case is factually distinguishable because, as the Court held, the petitioner’s
application did not contain a statement that was actually false, whereas in the present case, it is
undisputed that the information provided by Petitioner in her application was false at the time it was
made. Moreover, the false statement was not corrected prior to its consideration by the Commission.
Nor was the application filed in the County Clerk’s office amended by an affidavit filed in the Clerk
& Master’s office in support of a motion for summary judgment. We are not inclined to move away
from the established general principle, set forth by our Supreme Court, of strictly construing the beer
permit statutes against those applying for such a permit. Y & M v. Beer Commission or Board of
Johnson City, 679 S.W.2d 446, 447 (Tenn. 1984); Youngblood v. Rutherford County Beer Bd., 707
S.W.2d 507, 509 (Tenn. 1986). The statute does not make a distinction between an intentionally
false statement and an unintentionally false statement. It is our opinion that the Commission and the


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trial court acted within its discretion in determining that a false statement was made in the
application, and therefore that a beer permit should not issue.


        For the aforementioned reasons, we affirm the judgment of the trial court. Costs on appeal
are assessed against the Appellant, Linda Kissell d/b/a Full Moon Sports Bar and Driving Range.



                                             ___________________________________
                                             SHARON G. LEE, JUDGE




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