cover_story (2006-21)

When Knoxvillians step out for a beer or a drink of liquor, they have a lot to think about, but not so much as the purveyors of alcoholic beverages, whose activity is regulated by several hundred pages of federal and state laws and regulations and city ordinances.

You can, for example, shoot a game of pool if your favorite establishment has a table, but you can’t dance unless the place has a walled or fenced off space for such pleasures, separate from its alcohol sales area, and you can’t drink where you dance, and you can’t gamble anywhere inside, including betting on a friendly game of pool, without risking a citation.

By a quirk in city regulations, there may not be a liquor store downtown any time soon, as the one proposed for the 400 block of S. Gay Street is hung up over a measurement squabble.

Also locally, you can drink liquor or wine by the glass on Sundays after 10 a.m., but you can’t by a bottle of either at a liquor store, because the package stores are closed all day under state law.

If you’re a minor, under the age of 21, you can’t even enter any premises where alcohol is sold and dancing is allowed, unless you are over 18 and are employed by the holder of the beer permit to sell or dispense beer in the course of your employment.

The situations described above, which may or may not have been influenced by some religious fundamentalists’ proscription against drinking or dancing at all, are part and parcel of the convoluted measures enacted since the 1933 repeal of national Prohibition and the gradual, seemingly grudging official acceptance of alcoholic beverages in Knoxville over the years since.

Knoxville actually preceded the federal Prohibition Amendment of 1919 by a dozen years, voting almost two-to-one in a local referendum to close all of its saloons in 1907.

So, the city and its environs had established a firm tradition of bootlegging even before the federal government got into the act, and though beer came back to town after Prohibition’s repeal, it wasn’t until 1961 that liquor sales were legalized, by the bottle and by state licensees. That was authorized by a narrow majority in a contentious referendum that followed two referendum failures in the 1950s. Bootleggers and preachers combined forces to keep legal liquor out of the city as long as they could. And not until 1972 did another referendum allow for liquor to be sold by the drink, again by state license only.

Those measures were allowed by Tennessee’s post-Prohibition “local option” provisions, where cities and counties could enact their own limitations on alcohol sales, consistent with state and federal law.

Tennessee’s Legislature adopted the local option procedure and established an Alcoholic Beverage Commission to regulate liquor and wine sales, leaving beer sales and its regulation largely to counties and municipalities, each with their own set of preferences.

It was that slowly evolving return to legal sales, possession and consumption of alcoholic beverages under local option that, more than anything else, resulted in the broad inconsistencies and contradictions in beer, wine and liquor controls that occur across the state.

Brown bagging (and not the kind one might see when a habitual drunk takes a pull from a bottle in a paper sack) is still with us, legally. It allows for patrons of establishments not licensed to sell alcoholic beverages to bring their own bottle into a restaurant, but the customer must keep possession of it and can’t legally carry it away.

The brown-bagging practice was prevalent in the years between legalized package sales and the authorization of by-the-drink sales. It’s less common now, but restaurants or taverns that do allow it usually charge a corkage or set-up fee and are charged a tax for providing that service.

Sunday sales by package stores are still banned, although restaurants and taverns are free to serve alcohol to customers in slightly abridged hours. The Sunday sales proscription is an apparent holdover from the Blue Laws that kept almost all retailers shut on Sundays as a religious observance.

Of  any legislative impetus to lift the ban on package store sales on Sundays, state Sen. Tim Burchett says, “There’s been some talk about it, but nobody’s ever made a run at it. If the liquor lobby wanted it, we’d see some push for it. The liquor lobby’s one of the strongest lobbies.” Burchett says that, personally, he’s satisfied with the system the way it is, and that East Tennessee would probably not be the region from which to start such a push, anyway. “People should spend their Sundays in church and with their families,” he says.

We’ve come a long way from Knoxville’s earliest days in the late 1700s, when there were saloons lining the first unpaved streets before a single church was established. Virtually throughout the 19th century, conflict between tipplers and teetotalers raged, with the tipplers winning out. Late in that century, there were more than 100 saloons downtown alone. Liquor distilleries and beer breweries were among the city’s leading industries for about a hundred years and flourished even after the state passed its temperance-movement-driven Pendleton Act in 1887. That odd piece of legislation outlawed the sale of alcohol within four miles of any school. It played legal hell on alcohol in rural areas, but cities, including Knoxville, were exempted in a victory for urban providers and their thirsty customers.

Such anomalies, including some seemingly nonsensical provisions in the regulatory process, continue today.

The state Legislature has just adopted a law requiring beer-sales outlets that deal only with off-premises consumers to check the identification, for purposes of establishing legal age, of any person who wishes to buy beer. Period. That legislation excludes from such a requirement restaurants and taverns who sell for consumption on site, and it allows for the sale of liquor or wine by retail outlets, whether by package or by the drink without the mandatory ID check. All sellers of alcohol are required to sell only to legal-age customers, but they are on their own to determine the customers’ ages without the “any and all” ID mandate.

The new act sets penalties for violation that abrogate the duties allotted to local beer boards, such as Knoxville’s, to some extent, but Steve Hall, the city councilman who chairs the Knoxville Beer Board, says those duties, though spelled out in the City Charter and modified by city ordinances, are mostly mythical anyway by now.

“A lot of these laws contradict themselves,” says Hall, who says the beer board is reduced to issuing permits to qualified applicants, and has no flexibility. The board can’t deny a permit to an applicant who meets all the qualifications, including such separate requirements as fire, health and zoning regulations, and who has no convictions of a variety of spelled-out offenses involving alcohol sales or “moral turpitude.”

“If it weren’t required by the Charter, the permits could be issued administratively,” Hall says, by the lawyers who are appointed by the beer board’s attorney, the city’s law director, as hearing officers who handle all complaints against permit holders and are the only source of permit suspensions or revocations. “We don’t hear those cases, and we don’t decide them,” Hall says, although the board has the ultimate responsibility under the Charter.

The board also hears applications and grants permits to those seeking to sell beer and allow open containers and consumption in public places, indoors and out, for special events, including everything from Sundown in the City and St. Patrick’s Day celebrations to non-profit or political fund-raisers. No sales for outdoor consumption of liquor or wine are permitted, except in confined areas adjacent to establishments licensed for on-premises serving.

“We have no jurisdiction except over beer,” Hall says of the beer board when asked about a current controversy before City Council over the potential opening of a liquor store on Gay Street downtown. He acknowledges that the entire Council was asked to redefine distance requirements for package stores that are set by city ordinance.

The ordinance, part of the 1962 code governing package sales, says that “no retail liquor store shall be within 500 feet, as measured from property line to property line, of any church, school, park, recreational facility, hospital, mortuary or other similar public place or within a residentially zoned area, or within 1,000 feet of any other liquor store or package store….”

The applicant, David Ewan, a downtown-dwelling accountant who is a partner in the Sapphire cocktail lounge at 428 S. Gay St., obtained a change in the ordinance to read from “lease-hold line” to property line to bring his proposed liquor and wine store at 407 S. Gay St. closer to compliance, since the building’s property line is closer to Krutch Park than the actual store would be.

Then, an ordinance to reduce the separation to 400 feet within the downtown’s Central Business Improvement District passed Council by a 7-2 vote on first reading May 9.  Its sponsor, though, Councilman Chris Woodhull, says he expected to obtain Council approval for its withdrawal from consideration this week, after opposition was raised based on “making an exception for one business.” Hall and other Council members, including some who, like Hall, originally voted for it, are wavering.

Woodhull says he is sticking with the idea but wants to “let it rest” until it is better understood and explained. “The 500-foot separation was “intended for suburban situations,” not the downtown, where properties are more jammed together traditionally, Woodhull says.

Councilman Rob Frost, who voiced the “exception” objection and voted against  the code-amending ordinance, says he will continue to oppose the reduction in space requirement. “Let them find a location that complies with the law,” Frost says, adding that he’d want no exception made for the CBID.

Other Council sources say, off the record, that they were heavily lobbied by other liquor retailers to deny the exception by voting against the change. The sources say privately that the argument against making an exception holds true, even if the liquor dealers’ motivation for raising it amounts to an attempt to stifle competition.

Only about 50 feet keep the 407 S. Gay location from being far enough from the park to qualify, says Ewan, who says the downtown and its residents should be accorded a wine and liquor outlet. “That’s the only suitable location I could find,” he says.

The irony of the 500-foot requirement is that his own cocktail lounge is much closer to the park, and Macleod’s restaurant and tavern, selling beer and mixed drinks, is right across the Market Street from the park’s Market Square entrance and three more by-the-drink licensees are nearby, well within the 500-foot package store limit. The previous liquor store on the square, which has been closed for several years, was also closer to the park, but it would have been grandfathered into compliance had it survived.

There may be no place, given downtown’s density, that isn’t within 500 feet of a “protected” feature.

“It seems pretty arbitrary,” Councilman Bob Becker, who also voted for the change, says of the distance requirements in the existing code, with its 500-foot, 300-foot and 50-soot mandatory separation features. “ I honestly don’t know what we’d do if we had to start from scratch,”

And Barbara Pelot, who also voted in favor of the amendment on first reading, says she’s not one to automatically oppose new businesses, especially when “we’re talking about the urban core. This is the CBID, and it’s infill. When we’re talking about infill, it isn’t a perfect world….The whole regulatory process for the CBID needs review, in my opinion.’ She says she thinks such a review would allow for shorter distance requirements.

Beer can be sold legally for on-site consumption 300 or more feet from a school, church, hospital or funeral home, according to the same code section governing package liquor stores, but there is no mention of parks in that requirement, nor are parks considered in the 50-foot requirement for selling beer for carryout only. Restaurants selling beer, wine or liquor are not addressed specifically in the ordinance, but may be governed by the on-premises requirement or by separate state law.

The city code says a beer permit “cannot be refused…solely on the basis of objections of residents in the adjacent area or neighborhood,” and that the 300-foot beer-sales-for-consumption separation requirement does not apply to any establishment, such as a restaurant or tavern, holding a state license to sell liquor by the drink. That leaves Krutch Park in the middle of a bunch of places that serve liquor and wine, along with beer, but the long-awaited package store downtown is still in jeopardy.

State law touches on dancing, too, but of another form. The law prohibits employees of licensees from dancing with customers. That probably includes lap dancing, but that’s another story. The city’s beer code instructs the beer board to “revoke the beer permit of any permittee who permits”…it really says that…”any person to appear…on the premises who….” It goes on to list a lengthy litany of public and open performance of real and suggested sex acts or exposure or simulated exposure of a pruriently appealing set of organs, parts of organs and erogenous zones. Those are not easy things to ban under the U.S. Constitution, but a quick canvass of Knoxville’s striptease bars reveals that none are openly selling alcohol around the performances of their erotic dancers.

Most states class beer and wine together, allowing for their sale in grocery stores, drug stores and other retail outlets that sell food products. That makes sense in that beer and wine are often consumed with food at mealtime, where liquor usually is not, being a before- and after-meal specialty with higher alcohol content.

Some other states sell liquor only in “state stores,” owned by the government, but few class wine with liquor or include beer in state sales.

An attempt several years back to pass a bill allowing for wine sales in groceries, foodstores and drug stores was beaten back decisively, opposed as it was by the powerful liquor lobby, backed by what’s left of the temperance crowd and those campaigning to stop driving under the influence of alcohol.

Tennessee’s state laws and ABC rules govern liquor sales down to the letter, literally, including rules for advertising signage, billboards, and television and radio ads.

The state prevents manufacturers, meaning distillers and wineries, and distributors, from giving anything of value, including alcoholic beverages themselves or money, to liquor retailers or their employees. It sets the rules and rates for liquor licenses to private clubs and special resort areas, and it performs its own inspections.

Package stores must sell almost nothing else but liquor and wine. One must go to another store to buy mixes, if one thinks those are needed. Even sale of a corkscrew is prohibited in a package wine and liquor outlet—but those stores are allowed to sell chances in the state lottery. That’s true, even though gambling in other forms is generally proscribed elsewhere, including in other retail alcohol outlets, where lottery machines are allowed and advertised.

As in most other regulatory situations, federal law and regulations take precedence, with the Bureau of Alcohol, Tobacco and Firearms, bearing the main enforcement load. Fairly wide jurisdiction is granted to states to set their own regulations and, in Tennessee’s case, the local option feature and beer regulation is left to local governments.

Enforcement of all of the provisions under the various levels of law, regulation and ordinance is a challenge, and although the Knoxville Police Department assigns officers as beer inspectors to serve the beer board and its hearing officers, a police spokesman says most enforcement, except sales to minors or after-hour sales or consumption, is conducted “by the state.”

That may be a good thing. One adult who attended a private office party at an Old City nightclub recently was told that his teen-aged daughter could not enter the premises with him, even though she and her friends regularly eat and drink soft drinks at other downtown clubs that serve alcohol. He says the officer at the door told him the fine would be $10,000 if she were caught inside the party. A violation may have occurred, as the Old City club does permit dancing in a part of the establishment, but the city code’s penalty for such a misdemeanor, assuming the minor consumed no alcohol, is limited to $50.

Another police officer, a veteran of 27 years with the KPD, says he’s embarrassed to concede it on the record, but for a long time he issued warnings to Knoxville bartenders not to drink alcohol behind the bar. “Then I found out there’s no law against it,” he says, apologizing anonymously for all of those he may have hassled, even though their employers’ work rules likely barred them from drinking on the job in many cases.

Randy Nichols, the Knox County attorney general whose office prosecutes state-law violations governing alcoholic beverages, says his office does not handle any city cases, which go to Municipal Court and are prosecuted solely by police officers without attending legal counsel on the city’s side. The Municipal Court judge’s jurisdiction limits the court to $50 fines for code violations. If state law has been violated, the cases go to General Sessions Courts.

Nichols says his office’s alcohol prosecutions, besides driving under the influence, are mainly underage possession or consumption of alcoholic beverages, public intoxication or disorderly conduct, the latter based on alcohol or drugs.

“I get a million underage consumption cases, partly because UT is here,” says Nichols. “Those cases lead the pack, month in and month out.” He says he does get some cases of alcohol sales to minors “mainly through stings” run by law enforcement officers, but he says his prosecutions have not included cases where laws conflict or laws contradict.

With “the people we see on a day-to-day basis,” Nichols says, describing the circumstances surrounding all crimes his office prosecutes in General Sessions or Criminal Courts, [involvement of] “drugs and alcohol is approaching 100 percent of our cases. I used to say 75 percent, but it has grown that much.

“Alcohol is No. 1; prescription drugs are No. 2; and illegal drugs are No. 3,” Nichols says. “Alcohol is the cause of most other violations. People are doing things they wouldn’t think of doing sober.”

Still, alcoholic beverages are legal. Adults aged 21 and over can buy and consume them legally, as long as they don’t get into some other trouble.

Temperance is still a good thing, says Nichols, and the vast majority of people who drink do so sensibly. Impairment of some motor functions from alcohol consumption sets in a blood-alcohol level of about .04 percent, or a hair over one beer for a 200-pound male , although individual metabolism varies somewhat, according to federal authorities. A level of .08 percent now constitutes drunk driving. The federal government threatened to withhold highway funding from any state that did not establish that .08 limit several years ago, and states complied.

Mental impairment is more difficult to measure than motor functions, but if what Nichols says about crime in general is true, sensible drinking and careful use of only the most needed prescription drugs is essential for getting along legally in today’s world.

It’s a far cry from frontier Knoxville and its experience through its first century, when crimes of violence peaked along with alcohol consumption, and the city’s murder rate was seven or eight times higher per capita, per year, than it is today.

Maybe it’s working through all the machinations necessary to determine how to sell it legally and how where and when to consume it safely, including the crackdown on DUIs the last 20 years, that has instilled a new spirit of moderation among most members of the drinking class.

If so, here’s to the new temperance. It makes more sense than many of the arcane and contradictory regulations.