Linda Kissell d/b/a Full Moon Sports Bar and Driving Range v. McMinn County Commission - Dissenting

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.
Chancery Court for McMinn County
No. 22093 Jerri S. Bryant, Chancellor
No. E2004-02938-COA-R3-CV - FILED AUGUST 19, 2005
Charles D. Susano, Jr., concurring.
I agree with the result reached by the majority. I write separately to point out that the
applicable statute, Tenn. Code Ann. § 57-5-105, expressly provides that an application for a beer
permit “shall disclose” that “no . . . person to be employed . . . has been convicted of any violation
of the laws [pertaining to beer or other alcoholic beverages] or any crime involving moral turpitude
within the past ten (10) years.” Tenn. Code Ann. § 57-5-105(c)(7). In addition to this requirement
pertaining to the contents of the application, Tenn. Code Ann. § 57-5-105(b), dealing with what “an
applicant must establish,” contains a proof requirement using the same language. See Tenn. Code
Ann. § 57-5-105(b)(4).
It is sometimes difficult to determine whether an offense involves “moral turpitude” or not.
See Gibson v. Ferguson, 562 S.W.2d 188, 189 (Tenn. 1976). For this reason, a question on an
application that uses phraseology such as that now before us – “any crime (other than minor traffic
violations)” – while broadly stated, is an appropriate question to “flesh out” all crimes that do not
fall within the category of minor traffic violations. Then, equipped with the knowledge of all such
offenses, a governmental entity can determine whether any of these crimes involve moral turpitude.
If the question is phrased in the language of the statute, i.e. “moral turpitude,” such a question will
frequently require a lay person to decide what is essentially a legal question. It is more appropriate
for this judgment to be made by the governmental body, with the advice of its counsel, rather than
by an applicant, who may or may not have the assistance of counsel. While most laymen understand
the concept of a “crime” and the concept of “minor traffic violations,” the same cannot be said of
the concept of “moral turpitude.”
The answer to the subject question in this case was admittedly false. The statutory penalty
for making a false statement is “forfeit[ure]” of the permit. Tenn. Code Ann. § 57-5-105(d). I
disagree with the appellant’s argument that the language – “shall forfeit such applicant’s permit” –
means that this section only applies to an applicant who already has a permit. The statutory scheme
as reflected in Tenn. Code Ann. § 57-5-105 applies to anyone seeking a beer permit. This being the
case, I cannot interpret the “forfeit[ure]” language as only applying to one who already holds a beer
permit. While the subject language, viewed in a vacuum, arguably could be construed as suggested
by the appellant, the wording must be read in the context of a statutory scheme that pertains broadly
to all beer permit applications. Furthermore, it is a strained construction of the statute to construe
it as providing for a 10-year prohibition against eligibility for a beer license for one seeking a
renewal of a beer permit, and no penalty for a false statement on an initial application. In the
absence of an express statement in the statute setting forth such a dichotomy, I decline to read the
statute as urged by the appellant.
The McMinn County Commission acted within its statutory authority when it denied the
appellant’s request for a beer permit. I agree with the majority that the appellant failed to act
“promptly” to correct her false statement. See Tenn. Code Ann. § 57-5-105(c)(9). A change in the
trial court of what was admittedly a false statement before the Commission comes too late.
I concur.
________________________
CHARLES D. SUSANO, JR.
-2-