Gurkin'S Drive-In Market v. Alcohol And Licensing

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned On Brief February 3, 2003

GURKIN’S DRIVE-IN MARKET v. ALCOHOL AND LICENSING
COMMISSION OF THE CITY OF COLLIERVILLE

Direct Appeal from the Chancery Court for Shelby County
No. CH-01-2581-1 Walter L. Evans, Chancellor

No. W2002-01648-COA-R3-CV - Filed March 21, 2003

Appellant was found by the Beer Board to be in violation of a city ordinance prohibiting the sale of
beer to a minor. The Board suspended Appellant’s beer permit for forty-five days. It is contended
on appeal that the proceedings should be held null and void because the hearing began with a prayer
and further contended that the trial court applied the wrong standard of review. We affirm.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY K. LILLARD, J., joined.

Leslie I. Ballin and James W. Curry, Memphis, Tennessee, for the appellant, Gurkin’s Drive-In
Market.

Edward J. McKenney, Jr., Memphis, Tennessee, for the Collierville Beer Board.

OPINION

This appeal by Gurkin’s Drive-In Market (Gurkin’s) results from a hearing before the Beer
Board of the City of Collierville. Having determined that there had been a violation of the city
ordinance prohibiting the sale of beer to a minor, the board suspended Gurkin’s beer permit for a
period of 45 days.1 Gurkin’s then sought review by the filing of a petition for certiorari and
supercedes in the Chancery Court of Shelby County, Tennessee.

Following a hearing before the chancellor, which included the administrative record and
additional evidence, the court ruled in favor of the respondent beer board and the cause was

1
Section 2-214 of the applicab le ord inance provides that it shall be unlawful for any b eer permit holder to “sell
or allow the sale to or consump tion by any person un der twenty-one (21 ) years o f age.”
dismissed. Gurkin’s perfected a timely appeal to this Court and the issues presented by Appellant
in its brief are as follows:

I. Whether a decision of the Collierville Beer Board should be held null and
void because the hearing at which the Beer Board suspended the Appellant’s
permit began with a prayer, which is in violation of the First Amendment of
the United States Constitution.

II. Whether the Chancery Court of Shelby County committed an error when the
Chancellor failed to apply a de novo standard of review to the decision by the
Collierville Beer Board in reviewing the suspension of Gurkin’s beer permit.

At the hearing before the beer board, it was stipulated that Gurkin’s had a license to sell beer
in Collierville on the date in question, November 27, 2001, issued to Gurkin’s Grocery # 1 located
at 390 East Highway 57. It is further stipulated that the following violations occurred and were
disposed of as follows:

April 21, 1984, sale of beer to a minor, 30 days probation given by the beer board on
May 15, 1984.

November 13, 1998, sale of beer to a minor, fined $600 by the beer board on
December 15, 1998.

November 3, 1999, sale of beer to a minor, $1,500 fine.

April 19, 2001, sale of beer to a minor, $1,500 fine.

Officer Jimmy Brister of the Collierville Police Department testified that he was involved
in a sting operation relative to the sale of beer to minors on November 27, 2001. The operation
involving the Gurkin Store included another individual which Officer Brister described as a
cooperating individual. Officer Brister further testified as follows:

Q. Did you take action with respect to that cooperating individual before the
operation started?

A. Yes, sir.

Q. Tell us what you did.

A. Cooperating individual came to our office; I searched him and removed
anything from his person except his Tennessee driver [sic] license, took his
wallet and his money, placed it in the trunk where he was not to have access.

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 He was then fitted with a wireless transmitter and provided with the money
to buy the alcohol.

Q. After that occurred, did this cooperating individual approach the premises of
Gurkin’s Number 1 at 390 East Poplar?

A. Yes, sir.

Q. Were you with him the entire time from the time you searched him until he
approached that place of business?

A. Yes, sir.

Q. And did he go into the store?

A. Yes, sir.

Q. Did you?

A. Yes, sir.

Q. Tell us what occurred.

A. I entered the store first, stood right by the front door, observed the
cooperating individual walk in then walk back to the beer cooler. He got a
24-ounce can of Bud Light, went to the cash register, handed it to the clerk.
The clerk asked him for his identification, he handed him his Tennessee
driver [sic] license. The clerk looked at it, handed it back to him and then
sold him the beer.

Q. What did you - - what did he do after that?

A. Placed the receipt and the beer inside of a bag. The informant walked outside
to his car. I walked out behind him retrieved the beer from him, checked him
again to make sure he did not have any other identification on him, secured
the beer in my car and myself and my partner, Gary Highland, then went back
into the store and issued a misdemeanor citation to the clerk.

....

Q. Did you observe the Tennessee driver [sic] license of the cooperating
individual?

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 A. Yes, sir.

Q. And did it reflect that he was over or under the age of 21?

A. He was under the age of 21. It even stated, [“]Under 21 years of age[”] on the
license.

Q. Do you remember the year of his birth?

A. It was 1983.

Q. Do you know the other dates?

A. I don’t remember the month offhand, no, sir.

MR. CATES: That is all.

MR. HOFFMAN: I have a question. How did the license state he was
under 21?

OFFICER BRISTER: It says in red letters “under 21" on the license.

MR. HOFFMAN: And that was the license presented?

OFFICER BRISTER: Yes, sir.

Our standard of review is set forth in Sigler v. Metropolitan Beer Permit Bd., 62 S.W.3d 732
(Tenn. Ct. App. 2001), as follows:

In a case involving a beer permit, the Board’s decision may be appealed to
circuit or chancery court per section 57-5-108 of the Tennessee Code. On appeal to
circuit or chancery court, additional proof may be presented, and the statute provides
for a trial de novo, which, in this context, means that the cause is tried as if it
originated in circuit or chancery court, and the trial judge is required to make an
independent judgment on the merits, substituting his or her judgment for that of the
Board. See Metropolitan Gov’t of Nashville & Davidson County v. Martin, 584
S.W.2d 643 (Tenn. 1979). On appeal from the circuit court, we review the trial
court’s findings of fact de novo with a presumption of correctness unless the
preponderance of the evidence is otherwise. Regarding questions of law, our review
is de novo with no presumption of correctness. Tenn. R. App. P. 13(d).

Id. at 734.

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 The Appellant contends that because the hearing before the Beer Board was opened with a
prayer, this constitutes a violation of the First Amendment of the Constitution of the United States.2
It is argued that this violation results in the action of the Beer Board becoming a nullity. The
Appellant admits that it has cited no case law directly on point, but argues previous opinions may
be applied by inference. In support of this argument, Appellant cites United Christian Scientists
v. Christian Science Bd. of Directors, 616 F. Supp. 476, 477 (D.D.C. Cir. 1985), aff’d 829 F.2d
1152 (D.C.Cir. 1987). In that case, the U.S. District Court held a private copyright law
unconstitutional and that decision was affirmed by the District of Columbia Circuit of the U.S. Court
of Appeals. The issue before the Court was the constitutional validity of a private law which granted
an extended copyright to Christian Science Board of Directors of the First Church of Christ,
Scientists on all editions of a writing which is the central theological text of the Christian Science
faith. The District Court found that both the purpose and effect of the private law were to aid
religion which contravened the Establishment Clause. The Appellate Court concluded that the
private law offended fundamental principles of separation of church and state and affirmed. The
Appellant in the present action does not contend that the decision by the Beer Board was
unconstitutional, but that the fact that a prayer was given prior to the hearing and ultimate rendering
of a decision casts a pall on the entire proceedings, thus rendering the decision a nullity. Appellant
does not challenge the ordinance under which the Beer Board operates.

In Marsh v. Chambers, 463 U.S. 783 (1983), a member of the Nebraska Legislature sought
injunctive relief against that body’s practice of beginning each session with a prayer by a chaplain
paid by the State with the Legislature’s approval. The Court held that this practice did not violate
the establishment clause. Speaking through Chief Justice Berger, a majority of the Court held as
follows:

(a) The practice of opening sessions of Congress with prayer has continued
without interruption for almost 200 years ever since the First Congress drafted the
First Amendment, and a similar practice has been followed for more than a century
in Nebraska and many other states. While historical patterns, standing alone, cannot
justify contemporary violations of constitutional guarantees, historical evidence in
the context of this case sheds light not only on what the drafters of the First
Amendment intended the Establishment Clause to mean but also on how they thought
that Clause applied to the chaplaincy practice authorized by the First Congress. In
applying the First Amendment to the states through the Fourteenth Amendment, it
would be incongruous to interpret the Clause as imposing more stringent First
Amendment limits on the states than the draftsmen imposed on the Federal
Government. In light of the history, there can be no doubt that the practice of
opening legislative sessions with prayer has become part of the fabric of our society.

2
Freedom of religion, of speech, of the press and right of petition. Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof; or abridging the freed om of speech, or of the press;
or the right of the peo ple peac eably to assemble, and to p etition the governm ent for a redress o f grievances.

U.S. Const. amend. I, § 1.

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 To invoke divine guidance on a public body entrusted with making the laws is not,
in these circumstances, a violation of the Establishment Clause; it is simply a
tolerable acknowledgment of beliefs widely held among the people of this country.

(b) Weighed against the historical background, the facts that a clergyman of
only one denomination has been selected by the Nebraska Legislature for 16 years,
that the chaplain is paid at public expense, and that the prayers are in the Judeo-
Christian tradition do not serve to invalidate Nebraska’s practice.

Id. at 783.

In Bogen v. Doty, 598 F.2d 1110 (8th Cir., 1979), citizens and taxpayers brought action
seeking to enjoin the County Board of St. Louis County, Minnesota, from adhering to a resolution
which provided for an opening invocation of its public meetings. The resolution provided that each
board meeting be preceded by a prayer given by an invited local clergyman. The lower court had
held that this practice was not in violation of the Establishment Clause and the Circuit Court
affirmed. The opinion noted Engel v. Vitale, 370 U.S. 421 (1962), wherein the State of New York
published a prayer and directed that it be said daily in each public school classroom. This was held
to be unconstitutional. The Court stated: “It is clear that the Supreme Court was particularly
influenced in Engel v. Vitale by the fact that the state had written a specific prayer and directed its
recitation. The present case does not mirror that practice.” Bogen, 598 F.2d at 1113.

In Lincoln v. Page, 241 A.2d 799 (N.H. 1968), the plaintiff, a resident taxpayer and voter
of the Town of Meredith, New Hampshire, petitioned for an injunction to restrain the town and its
moderator from the practice of inviting various local clergy to open town meetings with an
invocation. The court noted that the invocation is neither composed, selected or approved by the
defendant. The Supreme Court of New Hampshire found no violation of the Establishment Clause.
Assuming arguendo that the Appellant is correct, the trial court conducts a review de novo of the
beer board’s decision which “means that the cause is tried as if it originated in circuit or chancery
court, and the trial judge is required to make an independent judgment on the merits, substituting his
or her judgment for that of the Board.” Sigler v. Metropolitan Beer Permit Bd., 62 S.W.3d 732, 734
(Tenn. Ct. App. 2001).

In Marsa v. Wernik, 430 A.2d 888 (N.J. 1981) (cert. denied by 454 US. 958), the plaintiff
was challenging the constitutionality of a nondenominational invocation or silent meditation at the
beginning of meetings of the town council. The plaintiff was a regular attendee at such meetings,
a resident and taxpayer of the municipality, and an atheist. Following roll call, the mayor asked
those who wished to rise for an invocation or silent mediation, which was then delivered by a
particular member of the council. The member determined the contents and the court noted that
there was nothing to suggest that it was in any way subject to the approval of any other official or
person. The plaintiff contended that this practice may have the effect of dissuading himself and
others from attending council meetings. In holding that this practice did not violate the
Establishment Clause, the court noted that the United States Supreme Court dictated what has

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become known as the tripartite test in Committee for Public Education and Religious Liberty v.
Nyquiste, 413 U.S. 756 (1973), wherein the Court said:

[T]o pass muster under the Establishment Clause the law in question, first, must
reflect a clearly secular legislative purpose, second, must have primary effect that
neither advances nor inhibits religion, and, third, must avoid excessive entanglement
with religion.

Marsa, 430 A.2d at 893 (quoting Nyquiste, 413 U.S. 756 at 772-773).

In determining that the case before them met constitutional muster, the Marsa court
concluded as follows:

Several factors, to summarize, merge and coalesce in this case to permit the
challenged practice to survive the First Amendment attack made upon it. These
involve the secular purpose of the practice, the neutral content of most of the
invocations, the lack of a denominational tone or sectarian emphasis, and the absence
of a religious or quasi-religious setting or the involvement of clergy. Additionally,
the lack of a formal official authorization of the contents of the practice, the
nonreligious context of its use as part of a legislative meeting and its relatively
incidental role in the public meeting, as well as the nonmandatory participation of
adults, as opposed to children, and its grounding in a longstanding tradition, all
contribute to the conclusion that the First Amendment has not been offended.

Marsa, 430 A.2d at 899.

In each of the above cases in which an opening prayer was found not to be in violation of the
Establishment Clause, with the possible exception of Marsa v. Wernick, the petitioners sought
injunctive relief to prohibit this practice.3 The petitioners in the present case did not seek injunctive
relief. The cases cited above involved various prayer givers such as a chaplain paid by the state,
invited local clergy, various local clergy, and members of the body. In the present case, after calling
the meeting to order, the Chair stated “I will ask Mr. Harrison if he would give the invocation
tonight.” Mr. Harrison is not identified further in this record. Following recitation of the prayer by
Mr. Harrison, roll was called and the Board heard two other matters prior to hearing the matter at
issue here. The record further does not disclose whether meetings of the Beer Board are normally
opened with prayer, or Mr. Harrison’s profession or relationship with the Board. We presume from
the roll call that he is not a member of the Beer Board. While we may presume from the nature of
the proceedings that the content of the prayer was within Mr. Harrison’s discretion, there is certainly
nothing in this record to indicate that the invocation was composed or selected by the Board. Based
upon the record before this Court, we find no violation of the Establishment Clause.

3
The opinion in Marsa v. Wernick states that an action was brought challenging an invocation, prayer or silent
med itation at the com mencement of public m eetings o f a municipal go verning body.

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 The Appellant next contends that the chancellor applied the wrong standard of review as
evidenced by statements made when he rendered his oral ruling from the bench. They point to the
following: “[f]actual issues are reviewed upon a standard of substantial and material evidence and
not upon a broad de novo review.”; “And it is clear based on the numerous cases the Court does not
weigh the evidence presented before the Board.”; “Also the court is not satisfied that the petitioner
has carried the burden of showing that the Board acted arbitrarily or capricious in this action.”
While we agree with Appellant that these statements are in error, the order entered by the trial court
states in part pertinent as follows:

[T]he Court, after reviewing the administrative record, considering the additional
testimonial and documentary evidence offered by Petitioner, considering the
arguments of counsel and the applicable law, finds that, based upon the stipulations
announced in open court and the undisputed facts as set forth in the administrative
record, Petitioner violated the Collierville Beer Ordinance by selling beer to a minor
on November 27, 2001; that this was Petitioner’s second violation of said Ordinance
within twelve months, its fourth violation of said Ordinance within a three year
period of time and its fifth violation overall; that the Collierville Ordinance allows
the past record of the permit holder to be considered and allows penalties to be
imposed ranging from probation to revocation of the permit; that, under the
circumstances, this Court considers the imposition of a [forty-five] day suspension
to be reasonable.

It is a well-established principle of law in this jurisdiction that: “[a] Court speaks only
through its written judgments, duly entered upon its minutes. Therefore, no oral pronouncement is
of any effect unless and until made a part of a written judgment duly entered.” Evans v. Perkey, 647
S.W.2d 636, 641, (Tenn. Ct. App. 1982); also see In re Adoption of E.N.R., 42 S.W.3d 26, 31
(Tenn. 2001); City of Newport v. Masengill Auction Co., 19 S.W.3d 789, 795 (Tenn. Ct. App.
1999)(quoting Evans v. Perkey, 647 S.W.2d 636 (Tenn. Ct. App. 1982)). The trial court’s order
states that the court reviewed the administrative record, considered the additional testimony and
documentary evidence offered by Petitioner and found based upon said stipulations and the
undisputed facts set forth in the administrative record, that the Petitioner had violated the ordinance
by the sale of beer to a minor. The order indicates that the trial court did conduct a de novo review
as it was required to do.

It is the duty of this Court to likewise conduct a de novo review of the trial court’s findings
of fact with the presumption of correctness unless the preponderance of the evidence is otherwise.
Our review of questions of law is de novo with no presumption of correctness. Sigler v.
Metropolitan Beer Permit Bd., 62 S.W.3d 732, 734 (Tenn. Ct. App. 2001).

The testimony of Officer Brister was unchallenged and the past violations of the permit
holder, as heretofore stated, were stipulated. Section 2-223(8) of the ordinance allows the Beer
Board, in assessing a penalty, to consider the past record of the permit holder and location. Having
conducted a de novo review, we have determined that the judgment of the trial court is supported

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by a preponderance of the evidence and the judgment is affirmed. The costs of this appeal are taxed
to the Appellant, Gurkin’s Drive-in Market, and its surety.

___________________________________
DAVID R. FARMER, JUDGE

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