Gibbs v. Blount County Beer Board

BROCK, Justice,

dissenting.

Respectfully, I dissent from the majority opinion. The record indicates that the applicant for the beer permit in this case has complied with every provision of T.C.A., § 57-5-105, which controls the issuance of beer permits. In such a case we have held over and over in recent years that the permit should be granted. Harvey v. Rhea County Beer Bd., Tenn., 563 S.W.2d 790 (1978); Lones v. Blount County Beer Bd., Tenn., 538 S.W.2d 386 (1976); Coffman v. Hammer, Tenn., 548 S.W.2d 310 (1977); City of Memphis, Etc. v. Randall Mem., Etc., Tenn., 550 S.W.2d 657 (1977); McCarter v. Goddard, Tenn., 609 S.W.2d 505 (1980). Nevertheless, the majority opinion reverses the decision of the trial court ordering that the permit be issued. The only reason advanced for denying the permit is that in a portion of the building in which the applicant operates a grocery market and in which beer would be sold for consumption off the premises applicant’s husband operates a gun repair shop in a space approximately 9' X 12' which is separated from the market by a 4 feet high display case and a wall. It is claimed that because the grocery market and the gun repair shop are located in the same building the issuance of a beer permit would somehow infringe T.C.A., § 39-6-1717, which provides:

“No person shall intentionally, knowingly, or recklessly carry on or about his person while inside the confines of the building of any establishment licensed to sell beer, wine or any other alcoholic beverage, for consumption on or off the premises, any weapon prohibited by § 39-6-1701 for the purpose of going armed.” (Emphasis added.)

Although no evidentiary basis is cited in support thereof, the majority draws the following conclusion:

“If this license is granted the customers of the gun shop will clearly be ‘inside the confines of the building’ where alcoholic beverages will be sold. We are entitled to assume that most, if not all of them, will be carrying weapons prohibited by T.C.A., § 39-6-1701.” (Emphasis added.)

I cannot make such an assumption. First, there is no basis whatever for assuming that those who come to the gun shop to purchase a gun or to have one repaired will be carrying one of the weapons prohibited by T.C.A., § 39-6-1701, and, if so, would be carrying such a weapon with the intent to go armed. T.C.A., § 39-6-1701, provides:

“(a) Any person who shall carry in any manner whatever, with the intent to go armed, any razor, dirk, bowie knife or other knife of like form, shape, or size, sword cane, ice pick, sling shot, blackjack, brass-knucks, Spanish stiletto, or a fountain pen pistol or gun, or like instrument containing a firing pin capable of shoots ing tear gas or pistol cartridges, or any pistol or revolver of any kind whatever, except the army or navy pistol which shall be carried openly in the hand, or any other dangerous weapon, shall be guilty of a misdemeanor.”

There is simply no evidence that the applicant and her husband would permit such violations to occur. The law presumes that they would not do so.

Moreover, the carrying of a weapon to a shop for repairs or for any other than the purpose of going armed is not prohibited by the statute. As I see it, there is no more reason to deny the permit in this case because the small gun shop happens to be in the same building as the grocery market where the beer would be sold than there would be to deny the permit because a shoe shop rather than a gun shop were located in the same building as the market.

Therefore, I most respectfully dissent. I would affirm the judgment of the trial court.