Sullivan County, Tennessee v. The City Of Bristol, Tennessee

12/27/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 8, 2017 Session

SULLIVAN COUNTY, TENNESSEE ET AL. v.

THE CITY OF BRISTOL, TENNESSEE ET AL.

Appeal from the Chancery Court for Sullivan County

No. B0024737 John C. Rambo, Chancellor

No. E2016-02109-COA-R3-CV

This is one of four separate actions currently before this Court with the common issue of

whether the version of Tennessee Code Annotated § 57-4-306(a)(2)(A) in effect prior to

the July 2014 amendment of that statute required a municipality governed by its own

liquor-by-the-drink referendum and operating its own school system to share one-half of

its liquor-by-the-drink tax revenue with the county in which the municipality was located

when the county had not enacted a liquor-by-the-drink referendum. The county initially

filed separate complaints against the two municipalities involved in this appeal,

requesting declaratory judgment as to the county’s asserted right to a portion of liquor-

by-the-drink tax revenue collected within each municipality. The municipalities each

respectively filed answers denying the county’s claims, as well as counterclaims asserting

that the county owed them a portion of liquor-by-the-drink tax revenue collected from

private clubs located within the county but outside the incorporated limits of the

municipalities. By agreement, the trial court subsequently consolidated the actions.

Upon competing motions for summary judgment, the trial court granted partial summary

judgment in favor of the municipalities and dismissed the county’s claims, finding that

the municipalities were entitled, respectively, to keep all liquor-by-the-drink tax monies

distributed to them by the Tennessee Commissioner of Revenue (“the Commissioner”).

The county filed a motion to alter or amend this judgment, and the municipalities filed a

motion for summary judgment on their counterclaims. In a subsequent order, the trial

court denied the county’s motion to alter or amend and granted summary judgment in

favor of the municipalities on their counterclaims, awarding money judgments against the

county in favor of each municipality. The county has appealed solely the judgment

dismissing its claims against the municipalities. Determining that the municipalities were

not required under the applicable version of the statute to share their liquor-by-the-drink

tax revenues with the county, we affirm the trial court’s judgment.

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

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., and RICHARD H. DINKINS, J., joined.

Daniel P. Street, Blountville, Tennessee, for the appellants, Sullivan County, Tennessee,

and the Sullivan County Board of Education.

K. Erickson Herrin, Johnson City, Tennessee, for the appellees, the City of Bristol,

Tennessee, and the City of Kingsport, Tennessee.

OPINION

I. Factual and Procedural Background

The facts underlying this action are essentially undisputed. Tennessee Code

Annotated § 57-4-301(c) (2013 & Supp. 2017) provides for a tax “to include each and

every retail” of an alcoholic beverage sold for consumption on the premises by various

establishments delineated in section -301, such as restaurants, hotels, sports facilities, and

private clubs. This tax is commonly referred to as a “liquor-by-the-drink tax.” See Tenn.

Code Ann. § 57-4-306 (2013 & Supp. 2017); Copper Cellar Corp. v. Jackson, 762

S.W.2d 560, 562 (Tenn. 1988). Tennessee Code Annotated § 57-4-306, originally

enacted in 1967, prescribes the manner in which proceeds from the liquor-by-the-drink

tax are to be distributed, primarily in support of public education. At issue in this action

is the version of section -306 in effect prior to the Tennessee General Assembly’s 2014

amendment of that statutory section (“2014 Amendment”). See 2014 Tenn. Pub. Acts,

Ch. 901 § 1 (H.B. 1403). Particularly at issue is statutory language added to subsection

-306(a)(2)(A) through an amendment made by the General Assembly in 1982 (“1982

Amendment”). See 1982 Tenn. Pub. Acts, Ch. 942, §§ 1-2 (S.B. 1817).

The Cities of Bristol and Kingsport (collectively, “the Cities”) each passed a

liquor-by-the-drink referendum in 1984. The citizens of Sullivan County (“the County”)

had never had such a referendum put before them at the time this action was commenced.

Prior to 1984 and at least since 1980, private clubs located within the Cities’ boundaries

legally sold liquor-by-the-drink for consumption on the premises, and the Commissioner

distributed one-half of those revenues to the Cities pursuant to Tennessee Code

Annotated § 57-4-306(a). Each of the Cities had continually operated its own separate

school system since at least the 1967 enactment of the liquor-by-the-drink statutory

scheme by the General Assembly. Since passage of the 1984 referendums, the Cities

have continued to receive fifty percent of gross receipt taxes arising from sales of liquor

by the drink. The Cities have not distributed any of their liquor-by-the-drink revenue to

the Sullivan County Schools or to Sullivan County generally.

2

On May 30, 2014, Sullivan County and the Sullivan County Board of Education

(collectively, “the County”) filed separate complaints against, respectively, the City of

Bristol (“Bristol”) and the City of Kingsport (“Kingsport”) in the Sullivan County

Chancery Court (“trial court”), seeking declaratory judgments regarding the rights and

responsibilities of the parties concerning the liquor-by-the-drink tax. The County

requested, inter alia, orders directing each of the Cities to remit to the County “the full

amount of unremitted tax revenues” plus prejudgment interest. The County estimated the

amount of back liquor-by-the-drink tax revenue it was purportedly owed to be at least

$758,239 from Bristol and at least $1,340,037 from Kingsport.

Bristol and Kingsport each filed an answer to the respective complaints on March

16, 2015, asserting, as pertinent to this appeal, that (1) Title 57, Chapter 4 of the

Tennessee Code was not applicable to the County because the County had not authorized

liquor-by-the-drink sales; (2) the County’s complaint failed to state a claim upon which

relief could be granted pursuant to Tennessee Rule of Civil Procedure 12.02(6); and (3)

the County’s claim was prohibited by Section 29 of Article II of the Tennessee

Constitution.1 Each City also denied that Tennessee Code Annotated § 57-4-306(a)

(2013) operated to require any payment of its portion of liquor-by-the-drink tax proceeds

received from the Commissioner to the County’s school system.

Bristol and Kingsport concomitantly filed counterclaims, asserting that, pursuant

to Tennessee Code Annotated § 57-4-306(a) (2013), each municipality was entitled to a

portion of any liquor-by-the-drink tax revenue received by the county trustee that should

have been distributed to all school systems operating within the County “in accord with

the average daily attendance of the students residing within the County, but being

educated at the expense of the municipalities.” Upon Bristol’s and Kingsport’s

subsequent unopposed motions to consolidate the County’s complaints against them and

their counterclaims against the County, the trial court entered an order of consolidation

on August 10, 2015.2

In the meantime, the General Assembly amended Tennessee Code Annotated §

57-4-306(a)(2), effective July 1, 2014, setting forth, inter alia, a detailed process by

1

The Cities also argued, inter alia, that the Sullivan County Board of Education was not a proper party to

initiate and maintain actions against the Cities, filing a motion to dismiss the County Board of Education

as a party on August 24, 2015. Insofar as Sullivan County was itself a party from the inception of this

action, the trial court did not rule on the issue of whether the County School Board was authorized to

commence the action, and this question is not at issue on appeal.

2

The County did file a response to the motions to consolidate, requesting bifurcation of “liability,” as

primarily a determination of statutory interpretation, and “damages.” The trial court did not address the

County’s request to bifurcate the proceedings in its order of consolidation.

3

which counties that were owed funds by municipalities under Tennessee Code Annotated

§ 57-4-306 could seek those funds and negotiate settlements as applicable. See 2014

Tenn. Pub. Acts, Ch. 901 § 1 (H.B. 1403). The 2014 Amendment included a distinction

between the liquor-by-the-drink tax proceeds received by a local political subdivision in

the time period spanning July 1, 2014, until June 30, 2015, and those proceeds received

after July 1, 2015, when, according to the 2014 Amendment, the statute would revert

back to its pre-amendment language. See Tenn. Code Ann. § 57-4-306(b)-(c) (Supp.

2014); 2014 Tenn. Pub. Acts, Ch. 901 § 1 (H.B. 1403). However, the General Assembly

has also amended Tennessee Code Annotated § 57-4-306 each year since the 2014

Amendment, extending the amended language in subsequent years, one year at a time.

See 2015 Tenn. Pub. Acts, Ch. 220 §§ 1, 2 (S.B. 990); 2016 Tenn. Pub. Acts, Ch. 885 §§

1, 2 (H.B. 1691); 2017 Tenn. Pub. Acts, Ch. 346 §§ 1, 2 (S.B. 1262).

Upon the Cities’ motion for summary judgment filed in September 2015 and the

County’s motion for summary judgment filed in November 2015, the trial court

conducted a hearing on December 23, 2015. The court took the matter under advisement,

subsequently entering a “Final Order” on February 2, 2016, granting partial summary

judgment in favor of the Cities and dismissing the County’s complaints. In response to

the Cities’ argument that Title 57, Chapter 4 was inapplicable to the County, the court

found that although under Tennessee Code Annotated § 57-4-103(a), solely local political

subdivisions that had authorized liquor-by-the-drink sales, such as the Cities in this

action, were to receive fifty percent of gross sale tax receipts from the Commissioner,

nothing in subsection -103(a) prevented the Cities from sharing such tax revenue with the

County’s school system. However, the court concluded that the language of Tennessee

Code Annotated § 57-4-306(a) unambiguously did not require the Cities to share the local

political subdivision’s portion of liquor-by-the-drink tax receipts with the County. The

court further determined that even if the language of subsection -306(a) were found to be

ambiguous, “the legislative history supports this Court’s interpretation of the statute that

municipalities operating their own school system are not required to share these funds

with the other local governments.”

On March 3, 2016, the County filed a motion to alter or amend the February 2016

judgment. The Cities filed a motion for summary judgment on their counterclaims on

April 20, 2016. Following a hearing, the trial court entered a “Rule 58 Final Order” on

September 29, 2016, designating the February 2016 order as “interlocutory,” denying

Sullivan County’s motion to alter or amend, and granting summary judgment in favor of

the Cities on their counterclaims. Finding that, pursuant to Tennessee Code Annotated §

57-4-306(a) (2013), “[l]iquor-by-the-drink revenue collected by the State of Tennessee

and distributed to Sullivan County must be placed in the county’s school fund and

apportioned by the county trustee among the county schools and the two municipal

school systems on the basis of average daily attendance,” the court awarded monetary

4

judgments against the County in the stipulated amounts of, respectively, $75,802 in favor

of Bristol and $107,286 in favor of Kingsport. These money judgments awarded on the

Cities’ counterclaims are not at issue on appeal.

The County timely appealed the grant of summary judgment insofar as the

judgment dismissed the County’s complaints against the Cities. Upon a motion to

consolidate filed by the appellants in a separate action sharing the same overarching

question of statutory interpretation, this Court entered an order on May 26, 2017, granting

the motion “only to the extent that these cases shall be set for oral argument on the same

docket and on the same day.”3

II. Issues Presented

Sullivan County presents two issues on appeal, which we have restated as follows:

1. Whether the trial court erred by declining to find that the version of

Tennessee Code Annotated § 57-4-306(a)(2)(A) in effect prior to the

2014 Amendment required the Cities, as municipalities governed by

their own liquor-by-the-drink referendums and operating their own

school systems, to share one-half of their liquor-by-the-drink tax

revenue with the County when the County had not enacted a liquor-

by-the-drink referendum.

2. Whether the trial court erred by declining to find that the pre-2014

version of Tennessee Code Annotated § 57-4-306(a)(2) required that

one-half of all liquor-by-the-drink sales tax revenue received by the

Cities must be distributed in support of education in the same

manner as the County property tax is distributed.

The Cities present an additional issue, which we have similarly restated as

follows:

3. Whether the trial court erred by declining to dismiss the County’s

claims on the basis that redistribution by the Cities of their liquor-

by-the-drink sales tax revenue to the County and for a purpose not

beneficial to the Cities would violate Article II, Section 29 of the

Tennessee Constitution.

3

The other three cases currently before this Court on the same overarching issue are Bradley Cty. Sch.

Sys. by and through the Bradley Cty. Bd. of Educ. v. City of Cleveland, No. E2016-01030-COA-R3-CV;

Blount Cty. Bd. of Educ. v. City of Maryville, No. E2017-00047-COA-R3-CV; and Washington Cty. Sch.

Sys. v. City of Johnson City, No. E2016-02583-COA-R9-CV.

5

III. Standard of Review

The grant or denial of a motion for summary judgment is a matter of law;

therefore, our standard of review is de novo with no presumption of correctness. See Rye

v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015); Dick

Broad. Co., Inc. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013)

(citing Kinsler v. Berkline, LLC, 320 S.W.3d 796, 799 (Tenn. 2010)). As such, this Court

must “make a fresh determination of whether the requirements of Rule 56 of the

Tennessee Rules of Civil Procedure have been satisfied.” Rye, 477 S.W.3d at 250.

“Statutory construction is a question of law that is reviewable on a de novo basis without

any presumption of correctness.” In re Estate of Tanner, 295 S.W.3d 610, 613 (Tenn.

2009).

As our Supreme Court has explained concerning the requirements for a movant to

prevail on a motion for summary judgment pursuant to Tennessee Rule of Civil

Procedure 56:

We reiterate that a moving party seeking summary judgment by attacking

the nonmoving party’s evidence must do more than make a conclusory

assertion that summary judgment is appropriate on this basis. Rather,

Tennessee Rule 56.03 requires the moving party to support its motion with

“a separate concise statement of material facts as to which the moving party

contends there is no genuine issue for trial.” Tenn. R. Civ. P. 56.03. “Each

fact is to be set forth in a separate, numbered paragraph and supported by a

specific citation to the record.” Id. When such a motion is made, any party

opposing summary judgment must file a response to each fact set forth by

the movant in the manner provided in Tennessee Rule 56.03. “[W]hen a

motion for summary judgment is made [and] . . . supported as provided in

[Tennessee Rule 56],” to survive summary judgment, the nonmoving party

“may not rest upon the mere allegations or denials of [its] pleading,” but

must respond, and by affidavits or one of the other means provided in

Tennessee Rule 56, “set forth specific facts” at the summary judgment

stage “showing that there is a genuine issue for trial.” Tenn. R. Civ. P.

56.06. The nonmoving party “must do more than simply show that there is

some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

Co., 475 U.S. [574,] 586, 106 S.Ct. 1348 [(1986)]. The nonmoving party

must demonstrate the existence of specific facts in the record which could

lead a rational trier of fact to find in favor of the nonmoving party. If a

summary judgment motion is filed before adequate time for discovery has

been provided, the nonmoving party may seek a continuance to engage in

6

additional discovery as provided in Tennessee Rule 56.07. However, after

adequate time for discovery has been provided, summary judgment should

be granted if the nonmoving party’s evidence at the summary judgment

stage is insufficient to establish the existence of a genuine issue of material

fact for trial. Tenn. R. Civ. P. 56.04, 56.06. The focus is on the evidence

the nonmoving party comes forward with at the summary judgment stage,

not on hypothetical evidence that theoretically could be adduced, despite

the passage of discovery deadlines, at a future trial.

Rye, 477 S.W.3d at 264-65 (emphasis in original). Pursuant to Tennessee Rule of Civil

Procedure 56.04, the trial court must “state the legal grounds upon which the court denies

or grants the motion” for summary judgment, and our Supreme Court has instructed that

the trial court must state these grounds “before it invites or requests the prevailing party

to draft a proposed order.” See Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 316

(Tenn. 2014).

IV. Distribution of Liquor-by-the-Drink Tax Revenue

The County contends that the trial court erred by finding that the version of

Tennessee Code Annotated § 57-4-306(a)(2)(A) (2013) in effect prior to the 2014

Amendment did not require the Cities to share one-half of their liquor-by-the-drink tax

revenue with the County’s school system. The Cities assert that the trial court properly

interpreted the governing statute as directing that because the Cities each operated their

own school systems, the portion of their liquor-by-the-drink revenue not paid into the

state’s general education fund was to be split between each City’s respective school

system and the City itself. Upon careful review, we determine that the governing statute

was ambiguous in that the distribution scheme for a city operating its own school system

could be reasonably interpreted in more than one way. Having therefore analyzed the

surrounding statutory scheme, the legislative history, and other applicable authorities, as

well as the record in this action, we conclude that the trial court did not err in determining

that the Cities were not required to share one-half of their liquor-by-the-drink tax revenue

with the County’s school system.

In conducting this analysis, we adhere to the following longstanding principles of

statutory interpretation:

When dealing with statutory interpretation, well-defined precepts apply.

Our primary objective is to carry out legislative intent without broadening

or restricting the statute beyond its intended scope. Houghton v. Aramark

Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In construing

legislative enactments, we presume that every word in a statute has

7

meaning and purpose and should be given full effect if the obvious

intention of the General Assembly is not violated by so doing. In re

C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a statute is clear, we

apply the plain meaning without complicating the task. Eastman Chem.

Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). Our obligation is

simply to enforce the written language. Abels ex rel. Hunt v. Genie Indus.,

Inc., 202 S.W.3d 99, 102 (Tenn. 2006). It is only when a statute is

ambiguous that we may reference the broader statutory scheme, the history

of the legislation, or other sources. Parks v. Tenn. Mun. League Risk

Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998). Further, the language of a

statute cannot be considered in a vacuum, but “should be construed, if

practicable, so that its component parts are consistent and reasonable.”

Marsh v. Henderson, 221 Tenn. 42, 424 S.W.2d 193, 196 (1968). Any

interpretation of the statute that “would render one section of the act

repugnant to another” should be avoided. Tenn. Elec. Power Co. v. City of

Chattanooga, 172 Tenn. 505, 114 S.W.2d 441, 444 (1937). We also must

presume that the General Assembly was aware of any prior enactments at

the time the legislation passed. Owens v. State, 908 S.W.2d 923, 926

(Tenn. 1995).

In re Estate of Tanner, 295 S.W.3d at 613-14.

A. Ambiguity of Tennessee Code Annotated § 57-4-306(a)(2)(A) (2013)

The version of Tennessee Code Annotated § 57-4-306 in effect when this action

was commenced provided in pertinent part:

(a) All gross receipt taxes collected under § 57-4-301(c) shall be

distributed by the commissioner as follows:

(1) Fifty percent (50%) to the general fund to be earmarked for

education purposes; and

(2) Fifty percent (50%) to the local political subdivision as

follows:

(A) One half (½) of the proceeds shall be expended and

distributed in the same manner as the county property

tax for schools is expended and distributed; provided,

however, that except in counties having a population

of not less than twenty-seven thousand nine hundred

8

(27,900) nor more than twenty-seven thousand nine

hundred twenty (27,920), according to the 1980 federal

census or any subsequent federal census, any proceeds

expended and distributed to municipalities which do

not operate their own school systems separate from the

county are required to remit one half (½) of their

proceeds of the gross receipts liquor-by-the-drink tax

to the county school fund; and

(B) The other one half (½) shall be distributed as follows:

(i) Collections of gross receipts collected in

unincorporated areas, to the county general

fund; and

(ii) Collections of gross receipts in incorporated

cities and towns, to the city or town wherein

such tax is collected.

(b) Notwithstanding subdivision (a)(2), the fifty percent (50%) of the

gross receipt taxes allocated to local political subdivisions by

subdivision (a)(2) and collected in a municipality which is a premier

tourist resort shall be distributed to and expended by such

municipality for schools in such municipality.

Tenn. Code Ann. § 57-4-306 (2013).

The applicable version of Tennessee Code Annotated § 57-4-301(c) (2013),

referenced in subsection -306(a), provided:

(c) In addition to the privilege taxes levied in subdivision (b)(1), there is

further levied a tax equal to the rate of fifteen percent (15%) of the

sales price of all alcoholic beverages sold for consumption on the

premises, the tax to be computed on the gross sales of alcoholic

beverages for consumption on the premises for the purpose of

remitting the tax due the state, and to include each and every retail

thereof.4

4

Effective May 9, 2017, the General Assembly amended Tennessee Code Annotated § 57-4-301(c) to

designate the prior version of subsection -301(c) as -301(c)(1) and add a subsection -301(c)(2). See 2017

Tenn. Pub. Acts, Ch. 338 § 4 (S.B. 798).

9

Subsection -301(b)(1) (2013 & Supp. 2017) sets forth privilege taxes to be paid to the

alcoholic beverage commission by “[e]ach applicant for an on-premises consumption

license” during the application process and on an ongoing basis as the privilege is

exercised, according to such criteria as the type of seller, seating capacity, and percentage

of gross sales. Subsection -301(c), in both its prior and current versions, thus adds to the

privilege taxes levied in -301(b)(1) the fifteen-percent, liquor-by-the-drink tax applied to

alcoholic beverages consumed on the premises. Pursuant to subsection -306(a)(1), which

remains unchanged since the version governing here, all of the gross receipt liquor-by-

the-drink taxes are to be distributed by the Commissioner, with fifty percent allocated to

the state’s general fund, where they are earmarked for education purposes. Tenn. Code

Ann. § 57-4-306(a)(1) (2013 & Supp. 2017). Up to this point, the clarity of section -306

is not in dispute.

At issue in this action is the second fifty percent of the gross receipt taxes, which,

under the governing version of the statute, were to be distributed to the “local political

subdivision.” See Tenn. Code Ann. § 57-4-306(a)(2) (2013). Particularly at issue is the

distribution of the twenty-five percent (half of the fifty percent returned to the local

political subdivision by the Commissioner) as set forth in subsection -306(a)(2)(A). The

phrase, “local political subdivision,” is not expressly defined in Title 57, Chapter 4. In

general, a “political subdivision” may be defined as “[a] division of a state that exists

primarily to discharge some function of local government.” BLACK’S LAW DICTIONARY

1197 (8th ed. 2004). For example, within Tennessee’s Governmental Tort Liability Act,

a “governmental entity” is defined in part as “any political subdivision of the state of

Tennessee including, but not limited to, any municipality, metropolitan government,

county, utility district, school district . . . .” Tenn. Code Ann. § 29-20-102(3)(A) (2012 &

Supp. 2017) (emphasis added). Accordingly, the County and each of the Cities are local

political subdivisions of the state. However, whether the applicable version of Title 57,

Chapter 4 applied to a local political subdivision that had not authorized liquor-by-the-

drink sales is a separate question, which we will address in a subsequent portion of this

analysis.

We note that the plain language of Tennessee Code Annotated § 57-4-

306(a)(2)(B) (2013), which disposed of the final twenty-five percent of liquor-by-the-

drink gross receipt taxes, is not in dispute. This subsection provided that twenty-five

percent of gross receipt taxes (or fifty percent of the revenue returned to the local

political subdivision by the Commissioner) would be distributed to a county’s general

fund if the gross receipt taxes were collected in unincorporated areas of the county and to

a city or town if the gross receipt taxes were collected in that city or town. Tenn. Code

Ann. § 57-4-306(a)(2)(B) (2013). The applicable version of subsection -306(b), which

provided for distribution of gross receipt taxes collected in a municipality that was a

premier tourist resort, as that term was defined in Tennessee Code Annotated § 57-4-

10

102(26) (2013), is also not in dispute. The question of statutory interpretation at issue is

thus narrowed to the distribution scheme set forth for twenty-five percent of the gross

receipt taxes from liquor-by-the-drink revenue in subsection -306(a)(2)(A) (2013).

In the applicable version, subsections -306(a)(2)(A) and -306(a)(2)(B) were joined

by a semi-colon and the coordinating conjunction, “and.” Subsection -306(a)(2)(A), up

to the conjunction joining it to -306(a)(2)(B), stated:

One half (½) of the proceeds shall be expended and distributed in the same

manner as the county property tax for schools is expended and distributed;

provided, however, that except in counties having a population of not less

than twenty-seven thousand nine hundred (27,900) nor more than twenty-

seven thousand nine hundred twenty (27,920), according to the 1980

federal census or any subsequent federal census, any proceeds expended

and distributed to municipalities which do not operate their own school

systems separate from the county are required to remit one half (½) of their

proceeds of the gross receipts liquor-by-the-drink tax to the county school

fund; . . . .

The paragraph began with an independent clause, ending with the first semi-colon, which

provided: “One half (½) of the proceeds shall be expended and distributed in the same

manner as the county property tax for schools is expended and distributed; . . . .” This

statement, which stood as its own sentence prior to the 1982 Amendment, was linked in

the applicable version to an additional clause by the semi-colon, beginning with

“provided, however that . . . .”

We note that when the 1982 Amendment was approved by the General Assembly,

“provided” began a new sentence and that the punctuation was subsequently changed to a

semi-colon, apparently during codification of the 1982 Amendment. However, we find

this distinction immaterial to analysis of the statute. The meaning of “provided,” as it

was utilized here as a conjunction, is “[o]n the condition or understanding (that).” See

BLACK’S LAW DICTIONARY at 1261-62. Combined with “however,” “provided”

functioned as a conjunctive adverbial phrase, with the standard function of “join[ing] two

clauses and indicat[ing] the relationship between them.” See generally BRYAN A.

GARNER, THE REDBOOK, A MANUAL ON LEGAL STYLE, 207 (3d ed. 2013).

A semi-colon, when utilized in its non-listing function, separates two independent

but related clauses and “generally signals addition or contrast.” See CHERYL GLENN &

LORETTA GRAY, HODGES’ HARBRACE HANDBOOK 63 (16th ed. 2007). Of course, a

period also separates independent clauses, but one sentence does not follow another in a

vacuum. In this instance, the amended language began with the conjunctive adverbial

11

phrase, “provided, however,” which through its meaning connected the proviso to the

clause preceding it, whether that connection was signaled by a semi-colon, as in the

printed version of the amended statute, or simply through the neighboring proximity of

two sentences and context of those sentences, as in the version of the 1982 Amendment

passed by the legislature. The phrase, “provided, however,” was followed by the

nominalizer, “that,” signaling what was provided, which in this case was the entire clause

up to the end of subsection -306(a)(2)(A). The use of “provided that” thus created a

proviso, or “a provision that begins with the words provided that and supplies a

condition, exception, or addition.” See BLACK’S LAW DICTIONARY at 1262 (emphasis in

original).

Immediately following “provided, however that . . .” the General Assembly

included an exception, narrowly drawn as applying “in counties having a population of

not less than twenty-seven thousand nine hundred (27,900) nor more than twenty-seven

thousand nine hundred twenty (27,920).” Tenn. Code Ann. § 57-4-306(a)(2)(A) (2013).

As the legislative history of the 1982 Amendment indicates, the General Assembly

designed the exception to the proviso to apply solely to Bedford County. Given that the

above population parameters do not apply to Sullivan County, we can, for the purpose of

our analysis, omit the exception, yielding the following:

One half (½) of the proceeds shall be expended and distributed in the same

manner as the county property tax for schools is expended and distributed;

provided, however, that . . . any proceeds expended and distributed to

municipalities which do not operate their own school systems separate from

the county are required to remit one half (½) of their proceeds of the gross

receipts liquor-by-the-drink tax to the county school fund; . . . .

See id.

In other words, one-half of the proceeds were to be expended and distributed in

the same manner as the county property tax for schools on the condition or understanding

that “any proceeds expended and distributed to municipalities which [did] not operate

their own school systems separate from the county [were] required to remit one half (½)

of their proceeds of the gross receipts liquor-by-the-drink tax to the county school fund.”

See id. (emphasis added). The underlined clause functioned as a restrictive relative

clause, restricting the “municipalities” to which this proviso applied to those that did not

operate their own school systems.5

5

Although the relative pronoun, “which,” generally would be used to indicate a nonrestrictive relative

clause while the relative pronoun, “that,” would be used to indicate a restrictive clause, interpreting

“which” as nonrestrictive in this instance would be nonsensical because it would mean that no

municipalities operated their own school systems. We note also that this “which” clause is not marked by

12

The Cities rely in part on this proviso as excluding them from remitting any part of

their liquor-by-the-drink proceeds to the County’s school system, whether in the manner

in which the county property tax for schools is distributed or into the County’s school

fund, because the Cities have each operated their own separate school systems since at

least the 1967 initial enactment of the liquor-by-the-drink tax. We agree that under the

plain language of the applicable version of subsection -306(a)(2)(A), the Cities were

excluded from the proviso of remitting one-half of their proceeds into the County’s

school fund because the Cities operated their own school systems. However, it is not

clear from the structure and plain language of the first part of subsection -306(a)(2)(A)

whether the Cities’ operation of their own school systems excluded them from the

general rule that “one-half of the proceeds [were to] be expended and distributed in the

same manner as the county property tax for schools [was] expended and distributed[.]”

See id.

The statute established this general rule and then set forth a condition or

understanding that applied to municipalities not operating their own schools. This

version of the statute did not clarify whether the opposite of the proviso was true, in other

words, whether a municipality operating its own school system could disregard the

general rule of distribution in the manner of county property tax and instead distribute

one-half of its proceeds to its own school system. Although the placement of the

conjunctive adverb, “however,” following “provided” in subsection -306(a)(2)(A) would

typically indicate that the proviso is in some manner antithetical to the general rule of

distribution in the manner of county property tax, it is not clear from the plain language

of subsection -306(a)(2)(A) how it would be so.

To summarize, it is possible to reasonably interpret the proviso as simply

operating to ensure that a municipality without its own school system would remit one-

half of its liquor-by-the-drink proceeds to the county within which it was located. It is

also possible to reasonably interpret the proviso as operating to require solely those

municipalities not operating their own school systems to remit proceeds to the counties in

which they were located, effectively exempting those municipalities that operated their

own school systems. The latter interpretation utilizes the longstanding maxim of

statutory construction maintaining that “the expression of one thing implies the exclusion

of all things not expressly mentioned.” See Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73,

84 (Tenn. 2001) (citing City of Knoxville v. Brown, 260 S.W.2d 264, 268 (Tenn. 1953)).

We do not find this maxim dispositive in this instance, however, because the statute is

ambiguous regarding whether the general rule of distribution in the manner of the

paired commas as a nonrestrictive relative clause normally would be. The drafters appear simply to have

made the very common grammatical error of using “which” rather than “that” as a restrictive relative

pronoun. See generally GARNER, THE REDBOOK, A MANUAL ON LEGAL STYLE at 188-90.

13

property tax for schools would still apply to municipalities to which the proviso does not

apply. Because the requirement in Tennessee Code Annotated § 57-4-306(a)(2)(A)

(2013) that municipalities without school systems must remit proceeds to counties can be

reasonably interpreted in more than one way when municipalities that do operate their

own school systems are at issue, we determine this requirement in the applicable version

of the statute to be ambiguous. See Bryant v. HCA Health Servs. of N. Tenn., Inc., 15

S.W.3d 804, 809 (Tenn. 2000) (“A statute is ambiguous if the statute is capable of

conveying more than one meaning.”).

B. Consideration of Statutory Framework, Legislative History, and Other Sources

Having determined that Tennessee Code Annotated § 57-4-306(a)(2)(A) (2013)

was ambiguous with regard to whether municipalities with their own school systems were

required to remit a portion of liquor-by-the-drink tax proceeds to the counties in which

they were located, we now consider the statutory framework, legislative history, and

other sources surrounding the version of the statute governing this action. See Arden v.

Kozawa, 466 S.W.3d 758, 764 (Tenn. 2015) (“Where statutory language is ambiguous,

we may decipher legislative intent in other ways, including consideration of the broader

statutory scheme, legislative history, and other sources.”). We begin with the Cities’

assertion that Tennessee Code Annotated § 57-4-103(a)(1) (2013) operated to render

subsection -306 inapplicable to a county, such as Sullivan County, that had not passed a

liquor-by-the-drink referendum. Upon careful review, we conclude that because

subsection -103(a)(1) set forth the effectiveness of the entire statutory chapter in which

the applicable version of subsection -306(a) was located, subsection -103(a)(1) operated

to classify a “local political subdivision” receiving liquor-by-the-drink taxes from the

Commissioner as one that had passed a liquor-by-the-drink referendum. We further

conclude, however, as did the trial court, that this did not necessarily exempt the Cities

from the general requirement of subsection -306(a)(2)(A) of distributing one-half of their

respective liquor-by-the-drink revenue in the manner of county property tax distribution.

Title 57 of the Tennessee Code is entitled, “Intoxicating Liquors.” Chapter 4 of

Title 57 is entitled, “Consumption of Alcoholic Beverages on Premises,” and it consists

of three parts: Part 1 – “General Provisions,”; Part 2 – “Administration, Enforcement,

Prohibited Acts”; and Part 3 – “Taxes and Fees.” This overall structure has remained

unchanged since the present action was commenced, as has the language of Tennessee

Code Annotated § 57-4-103(a)(1), which provides within the general provisions of Title

57:

This chapter shall be effective in any jurisdiction which authorizes the sale

of alcoholic beverages for consumption on the premises in a referendum in

the manner prescribed by § 57-3-106; provided, that, in addition to any

14

other method authorized for holding an election pursuant to § 57-3-106, an

election may be held for such sales upon adoption of a resolution by a two-

thirds (2/3) vote of the legislative body of a county or municipality.

We determine this language regarding the effectiveness of Chapter 4 to be clear

and unambiguous. Because Part 3 is within Chapter 4, Part 3 is effective in any

jurisdiction that has authorized liquor-by-the-drink sales by referendum. See In re Estate

of Tanner, 295 S.W.3d at 614 (“Any interpretation of the statute that ‘would render one

section of the act repugnant to another’ should be avoided.”) (quoting Tenn. Elec. Power

Co. v. City of Chattanooga, 114 S.W.2d 441, 444 (Tenn. 1937)). Although the statutory

scheme regarding alcoholic beverages does not provide a definition of “jurisdiction” as it

is used in subsection §-103(a)(1), we further determine that the generally accepted

definition of jurisdiction as it applies to governmental authority is applicable within the

context of a jurisdiction’s authorization of alcoholic beverage sales. Black’s Law

Dictionary defines “jurisdiction” within this context of governmental authority as a

“government’s general power to exercise authority over all persons and things within its

territory,” “geographic area within which political . . . authority may be exercised,” or

“political . . . subdivision within such an area.” BLACK’S LAW DICTIONARY at 867.

Therefore, at the time this action was commenced, Part 3 of Chapter 4 was effective in

the jurisdiction of each of the Cities, which had authorized liquor-by-the-drink sales, but

was not effective in the jurisdiction of the County, which had not authorized such sales.

The Cities argue that the ineffectiveness of Tennessee Code Annotated § 57-4-

306(a) (2013) in the jurisdiction of the County means that the Cities were not required to

remit any portion of their liquor-by-the-drink proceeds distributed by the Commissioner

to the County. However, we do not agree that this conclusion automatically follows from

subsection -103(a)(1) because the Cities, as jurisdictions having authorized the sale of

alcoholic beverages for consumption on the premises, see Tenn. Code Ann. § 57-4-

103(a)(1), and thereby local political subdivisions receiving liquor-by-the-drink gross

receipt taxes from the Commissioner, see Tenn. Code Ann. § 57-4-306(a)(2), were

required to follow the requirements of Chapter 4. This analysis leads us back to the

ambiguity previously identified in subsection -306(a)(2)(A) but does not clarify it. It is

still possible to reasonably interpret the proviso of subsection -306(a)(2)(A) as either

simply ensuring that a municipality without its own school system would remit one-half

of its liquor-by-the-drink proceeds to the county within which it was located or as

actually exempting municipalities with their own school systems, such as the Cities of

Bristol and Kingsport, from the general requirement of distributing one-half of their

liquor-by-the-drink revenue in the manner of county property tax distribution.

Inasmuch as Tennessee Code Annotated § 57-4-306(a)(2)(A) (2013) provided that

“[o]ne half (½) of the proceeds shall be expended and distributed in the same manner as

15

the county property tax for schools is expended and distributed,” it is important to

consider the statutory scheme for expenditure and distribution of the county property tax

for schools. Tennessee Code Annotated § 49-3-315(a) (2016) provides in pertinent part:

For each LEA [local education agency] there shall be levied for current

operation and maintenance not more than one (1) school tax for all grades

included in the LEA. Each LEA shall place in one (1) separate school fund

all school revenues for current school operation purposes received from the

state, county and other political subdivisions, if any. . . . All school funds

for current operation and maintenance purposes collected by any county . . .

shall be apportioned by the county trustee among the LEAs in the county

on the basis of the WFTEADA [weighted full-time equivalent average daily

attendance] maintained by each, during the current school year. For the

purposes of making the apportionment of local school funds as set forth in

this subsection (a), and in defining the WFTEADA for the current school

year, the county director of schools and the county trustee shall be guided

by the following procedure: . . . .6

The above statute goes on to delineate the procedure by which the county director

of schools shall certify to the county trustee the weighted full-time equivalent average

daily attendance (“WFTEADA”) during the preceding school year and, in progressive

fashion, estimate “the WFTEADA in the schools of the LEAs in the county” for

successive quarters of the current and upcoming years. See Tenn. Code Ann. § 49-3-

315(a)(1)-(5). Although the statutory procedure for determining the WFTEADAs

involves county officials, the Cities, as local political subdivisions receiving liquor-by-

the-drink tax revenue, would be able to remit a portion of those gross receipt taxes

received from the Commissioner to the County’s school fund, which arguably could then

be distributed by the County according to the procedure delineated in the above statute.

See Tenn. Code Ann. § 49-3-315(a) (“Each LEA shall place in one (1) separate school

fund all school revenues for current school operation purposes received from the state,

county and other political subdivisions . . . .”) (emphasis added).

The question arises as to whether, if the County were successful in the present

action, funds remitted by the Cities to the County’s school fund would in turn be partially

apportioned to schools operated by the Cities as LEAs geographically existing within the

County. This Court recently interpreted Tennessee Code Annotated § 49-3-315(a) in

light of whether a county was required to apportion funds from its “educational capital

projects fund” to the school boards of cities located within the county. See City of Athens

Bd. of Educ. v. McMinn Cty., 467 S.W.3d 458, 459-60 (Tenn. Ct. App. 2014), perm. app.

6

The definitions in brackets are provided pursuant to Tennessee Code Annotated §§ 49-1-103(2) (2016)

(LEA) and 49-3-302(18) (2016) (WFTEADA).

16

denied (Tenn. May 14, 2015). This Court noted that, with one exception for

transportation levies not relevant here, “[a]ll school funds for current operation and

maintenance purposes collected by any county . . . shall be apportioned by the county

trustee among the LEAs,” including those LEAs operated by the cities located in the

county. Id. at 460 (quoting Tenn. Code Ann. § 49-3-315(a)) (emphasis in City of Athens).

Because the funds at issue in City of Athens had been collected by the county through

levying “a special tax designated for a capital projects fund,” this Court held that the

funds had not been collected “for current operation and maintenance purposes” and

therefore did not fall under the purview of Tennessee Code Annotated § 49-3-315(a).

City of Athens, 467 S.W.3d at 465-66 (affirming the trial court’s grant of summary

judgment in favor of the county).

In the current analysis, the County is requesting that this Court interpret the

language of Tennessee Code Annotated § 57-4-306(a)(2)(A) (2013) to mean that twenty-

five percent (half of the amount returned to the local political subdivision by the

Commissioner) of the gross receipt liquor-by-the-drink taxes collected within the

incorporated limits of the Cities would be paid in the manner of the county property tax

to the county school fund for distribution to all of the LEAs in the County, including

those located within each of the Cities. Because such a distribution within the County of

funds obtained from a “local political subdivision” such as each of the Cities is possible,

see Tenn. Code Ann. § 49-3-315(a), we do not find the statutory scheme for expenditure

and distribution of the county property tax for schools to be dispositive of the ambiguity

previously identified in Tennessee Code Annotated § 57-4-306(a)(2)(A) (2013).7

However, we do find the legislative history surrounding the 1982 Amendment,

which added the ambiguous language at issue to Tennessee Code Annotated § 57-4-

306(a), to be instructive of the General Assembly’s intent. Prior to the 1982 Amendment,

the subject statutory section, then codified at § 57-162, provided in full:

Distribution of collections.—All gross receipt taxes collected under

subdivision (b) of § 57-157 shall be distributed by the commissioner of

revenue as follows:

7

The County also requests that this Court compare the language of the statute at issue to that utilized by

the General Assembly when enacting the local option sales tax in 1963. See Tenn. Code Ann. § 67-6-

712(a) (2013); 1963 Tenn. Pub. Acts, Ch. 329 § 4. The County asserts that because the local sales tax

statute demonstrated a disbursement method involving the county property tax for schools according to

weighted average daily attendance of students, this Court should conclude that proceeds from the liquor-

by-the-drink gross receipts were intended to be distributed solely as in the county property tax for

schools. Finding such a foray to be far afield from the statute at issue, we decline the County’s invitation

to superimpose the local sales tax statutory scheme upon the proviso effected within the liquor-by-the-

drink statutory scheme by the 1982 Amendment to Tennessee Code Annotated § 57-4-306(a)(2)(A).

17

(a) Fifty percent (50%) to the general fund to be earmarked for

education purposes; and

(b) Fifty percent (50%) to the local political subdivision.

(1) One half (½) of the proceeds shall be expended and

distributed in the same manner as the county property

tax for schools is expended and distributed.

(2) The other one half (½) shall be distributed as follows:

(a) Collections of gross receipts collected in

unincorporated areas, to the county general

fund; and

(b) Collections of gross receipts in incorporated

cities, towns, to the city or town wherein such

tax is collected.

Tenn. Code Ann. § 57-162 (1968).

Regarding the original enactment of the statute, the County posits that because the

statute was initially effective solely in “those counties with population in excess of

235,000,” see Tenn. Code Ann. § 57-164 (1968) (emphasis added), the legislature could

not have meant for municipalities to be considered local political subdivisions under the

statute in that municipalities, initially those with a population of at least 110,000, were

not added until a 1971 amendment, see 1971 Tenn. Pub. Acts, Ch. 59 § 1. We note,

however, that by the time of the 1982 Amendment’s enactment, the General Assembly

was well aware that municipalities had been statutorily authorized to adopt liquor-by-the-

drink sales through referendum for several years. See In re Estate of Tanner, 295 S.W.3d

at 614. (“We also must presume that the General Assembly was aware of any prior

enactments at the time the legislation passed.”). Moreover, having determined the

relevant ambiguity to be contained in the proviso of the 1982 Amendment, we further

determine the County’s argument regarding the initial exclusion of municipalities in 1967

to be unavailing.

In introducing the applicable Senate bill to the Finance, Ways and Means

Committee in March 1982, Senator Albright explained the bill’s purpose as follows:

Right now, the law provides that one-half of one percent of the gross

receipts by liquor by the drink tax goes to the, to, into the school system –

18

provide into the school system – goes to the city for the school systems. In

many counties, the cities do not operate a school system. They have been

turning this over to the county because the county provides that school

system for the city. There has been some. There was a couple of ‘em. I

have a whole bunch of little cities around Chattanooga. There was a couple

of them that did not want to return this money over. They simply asked for

an Attorney General’s ruling that the legislative intent was that that’s where

it would go in the school system. And they didn’t have a school system,

they shouldn’t be getting the money. That’s an Attorney General ruling.

Our county simply said rather than have an Attorney General’s ruling,

which – cause they would like to put this in legislation. And this just

provides, however, then if proceeds expanding or distribution to

municipalities which do not operate their own school system separate from

the county, are required to remit one-half of their proceedings from the

gross receipts liquor by the drink tax to the county school fund. And that is

where it is intended to go anyway.

As the sponsoring legislator, Senator Albright then engaged in the following exchange

with a committee member, Senator Crouch:

Senator Crouch: In other words, if, uh, we [are] still operating a city

school system it doesn’t affect –

Senator Albright: It doesn’t affect you at all. It goes to the city –

Senator Crouch: They’re still getting their . . . percent?

Senator Albright: See the legislation . . . says for the school fund.

That’s what the –

Senator Crouch: Okay.

Senator Albright thus assured Senator Crouch that if a municipality were operating its

own school system, the provision added by the 1982 Amendment would not affect the

municipality because the liquor-by-the-drink taxes returned by the commissioner would

still go “to the city.”

In introducing the bill to the committee, Senator Albright referenced a “ruling” of

the attorney general. At this point in time, the attorney general had issued two opinions

interpreting the distribution scheme set forth in Tennessee Code Annotated § 57-4-306,

the first in September 1980 (“1980 AG Opinion”), see Tenn. Op. Atty. Gen. 80-457, 1980

19

WL 103875 (Sept. 19, 1980), and the second in April 1981 (“1981 AG Opinion”), see

Tenn. Op. Atty. Gen. 81-270, 1981 WL 142843 (Apr. 27, 1981). We note that “although

opinions of the Attorney General may be persuasive authority, they are not controlling.”

Beacon4, LLC v. I & L Invs., LLC, 514 S.W.3d 153, 173 (Tenn. Ct. App. 2016).

However, we do afford such opinions “‘considerable deference,’” particularly because

“‘government officials rely upon them for guidance.’” See id. (quoting State v. Black,

897 S.W.2d 680, 683 (Tenn. 1995)). As to the statutory section at issue in this action, a

series of three attorney general’s opinions, released from 1981 to 1983, are informative

concerning the situation surrounding the 1982 Amendment. Moreover, insofar as

legislators indicated while introducing and explaining the 1982 Amendment that they

were responding to various municipalities’ reliance on the attorney general’s 1980 and

1981 opinions, those opinions are integral to the legislative history as well.

The question proffered in the 1980 AG Opinion focused on the situation presented

when a municipality had passed a liquor-by-the drink referendum but the county in which

the municipality was located had not. See Tenn. Op. Atty. Gen. 80-457, 1980 WL

103875, at *1. The attorney general opined:

It is the opinion of this office that if a municipality but not the county has

approved by referendum the sale of alcoholic beverages for consumption on

the premises the fifty percent (50%) distribution, under T.C.A. § 57-4-

306(2), of the gross receipts tax collected would go entirely to the local

municipality.

Id. The attorney general further concluded:

[I]f there has been no countywide election approving the sale of alcoholic

beverages for consumption on the premises in accord with T.C.A. § 57-4-

103, then the provisions of Chapter 4 dealing with both the imposition of

the tax and the distribution of the tax would have no application to such

county and it would not be entitled to a distribution of any amounts under

T.C.A. § 57-4-306(2) which go to the local political subdivision. Such

local political subdivision, i.e., the city or town, would then be required to

expend one half of the amount received in the same manner as the county

property tax for schools would be expended within the city or town.

Id. at *2 (emphasis added). Thus, according to the 1980 AG Opinion, a municipality

acting as the local political subdivision receiving gross receipt liquor-by-the-drink taxes

would be required to expend and distribute one-half of the monies returned by the

commissioner solely to the schools located within the municipality.

20

The 1980 AG Opinion did not address the distinction between a municipality that

operated its own school system and one that utilized a county school system to educate its

students. However, this question was the focus of the 1981 AG Opinion, with the

attorney general opining: “[T]hose municipalities which do not operate their own school

system separate from the county would be required to remit one-half of [their] proceeds

of the gross receipts liquor-by-the-drink tax to the county school fund.” Tenn. Op. Atty.

Gen. No. 81-270, 1981 WL 142843, at *1. Building on the prior analysis of Tennessee

Code Annotated § 57-4-306 in the 1980 AG Opinion, the attorney general reasoned as

follows:

If the local municipality does not operate a separate school system,

the one-half of the proceeds expended and distributed in the same manner

as the county property tax for schools as mandated by subparagraph (A)

would naturally have to be remitted to the county school fund.

It appears clear that the purpose of the statute is to earmark a certain

percentage of the proceeds of such taxes for the purpose of local education.

This objective could be accomplished by the remittance of such amount to

the county school fund where the municipality itself does not operate its

own school system.

Tenn. Op. Atty. Gen. No. 81-270, 1981 WL 142843, at *1.

In introducing to his committee the Senate bill that became the 1982 Amendment,

Senator Albright expressed an intent to codify the attorney general’s opinion, requiring

municipalities not operating their own school systems “to remit one-half of their

proceedings from the gross receipts liquor by the drink tax to the county school fund.” In

sponsoring the bill during a March 4, 1982 session of the entire Senate, Senator Albright

stated in pertinent part:

This bill . . . just puts into law what’s been the practice. And it says that

one-half of the proceeds of the gross receipt liquor by the drink to the

county school system where the city does not provide one.

The following exchange occurred in response:

Senator Darnell: Senator Albright as I understand it this is to make sure

that the funds actually go to, to the county for schools

– is that the intent of the bill? Or is that just a

peripheral sort of thing that’s involved here?

21

Senator Albright: This just makes sure – right some of, in my area in

Chattanooga – we’ve had a couple of them that had to

be told, you don’t have your own school system – the

county permits this – the statute says – can I just read

one brief sentence –

Senator Darnell: --they won’t turn over the money to the county?

Senator Albright: This would make it that they have to turn it over.

This exchange demonstrates that when he stated previously that a city would have to

distribute gross receipt taxes to the county in which it was located “where the city does

not provide one,” Senator Albright meant a city that does not provide a school system.

At the close of the March 4, 1982 session, the Senate approved the bill as sponsored by

Senator Albright.

We determine that as presented to and adopted in the Senate, the legislative intent

of the 1982 Amendment was to correct a situation in which some municipalities that did

not operate their own school systems were failing to distribute the statutorily required

portion of liquor-by-the-drink gross receipt taxes to the counties whose school systems

they utilized. As explained by the Senate sponsor, the intent was not to require

municipalities that operated their own school systems to distribute liquor-by-the-drink

revenue to the corresponding counties.

Subsequently, Representative Davis introduced the companion bill to the House

Calendar and Rules Committee on April 7, 1982, by stating in relevant part:

Mr. Chairman and Members of the Committee House Bill 2277 provides

that if, provides that in the distribution of liquor, local liquor by the drink

taxes that it will be distributed as it is now in the same fashion that local

property taxes is distributed for education. In the event that the

municipality affected operates a school system, right now the, the reason

for division in the law originally was for this percentage of the money to go

[to] education – fifty percent to the county, fifty percent to the municipality

involved. There are municipalities such as the one involved in my county

that are collecting this tax but that are, that are not operating school

systems. This simply changes the law to provide that in the event the city

does not operate a, a, the school system, that the money will go to the

county.

22

In response to a committee member’s question regarding under what circumstances the

proviso added by the 1982 Amendment would be “activated,” Representative Davis

replied:

If there’s, if a municipality is operating its own system it’ll continue to get

its share of the liquor by the drink money. Uh, only if it’s not operating a

school system and thereby using the county school system uh, will the

money that has been going to the municipality for education go instead to

the county.

The House approved the bill, with an amendment added to exclude Bedford

County, in a vote taken during a full session conducted on May 5, 1982.8 In introducing

the bill to the House as a whole during an April 8, 1982 session, Representative Davis

presented it as a remedy to a situation in which “[a]t the present time, there is no

provision . . . that those municipalities that do not operate school systems will permit the

money – which is to go to education from the liquor by the drink tax – to go to the

county.” The Senate subsequently adopted the bill as amended by the House without

further discussion.

Upon thorough review of the language of the statute in light of the statutory

framework, legislative history, and attorney general’s opinions referenced by the

legislative history, we hold that the General Assembly’s intent in enacting the 1982

Amendment to Tennessee Code Annotated § 57-4-306(a)(2)(A) was to require solely

those municipalities that did not operate their own school systems to share liquor-by-the-

drink tax proceeds with the counties in which they were located. This conclusion is also

supported by an opinion issued by the attorney general in January 1983, six months

following enactment of the 1982 Amendment (“1983 AG Opinion”). See Tenn. Op. Atty.

Gen. No. 83-36, 1983 WL 166853 (Jan. 18, 1983). Concluding that “the 1982

amendment to the statute was merely a codification of our opinion dated April 27, 1981,”

the attorney general opined in pertinent part:

It is the opinion of this office that the proper distribution of the liquor-by-

the-drink gross receipt privilege taxes under T.C.A. § 57-4-306(2)(A)

depends upon whether a municipality maintains a separate school system,

when the municipality but not the county has approved by referendum the

sale of alcoholic beverages for consumption on the premises.

***

8

During the April 7, 1982 House Calendar and Rules Committee meeting, Representative Phillips from

Bedford County explained that his county was requesting an exception because a municipality within the

county owned and paid expenses on buildings operated by the county’s school system.

23

If the municipality does operate a separate school system, it would be

entitled to the fifty percent of the liquor-by-the-drink gross receipts

privilege tax collected under T.C.A. § 57-4-306(2)(A).

Id. at *1. Although opinions of the attorney general are but persuasive authority, see

Beacon4, 514 S.W.3d at 173, we conclude that the 1983 AG Opinion merits considerable

deference given its issuance contemporaneously with the General Assembly’s enactment

of the 1982 Amendment and its consistency with the 1980 and 1981 opinions referenced

by legislators who sponsored the 1982 Amendment. See id.

C. 2014 Amendment to Tennessee Code Annotated § 57-4-306

Having concluded that the General Assembly’s intent in enacting the 1982

Amendment was to require solely those municipalities that did not operate their own

school systems to share liquor-by-the-drink tax proceeds with the counties in which they

were located, we further determine that nothing in the General Assembly’s adoption of

the 2014 Amendment contradicts this conclusion. It is undisputed that the 2014

Amendment was not adopted with retroactive application. When analyzing legislative

intent, we may view a subsequent, non-retroactive amendment as “‘declaratory of the

original legislative intent.’” See Sneed v. City of Red Bank, 459 S.W.3d 17, 32 (Tenn.

2014) (quoting Fretwell v. Chaffin, 652 S.W.2d 755, 757 (Tenn. 1983)). However, being

mindful of the thirty-two-year time span between the 1982 and 2014 Amendments, we

determine that the best indicator of legislative intent in this instance is the legislative

history surrounding the 1982 Amendment itself.

Moreover, although the 2014 Amendment provided for a process by which

counties that were owed funds by municipalities under Tennessee Code Annotated § 57-

4-306 could seek those funds and negotiate settlements as applicable, nothing in the

amended statutory language provided that municipalities operating their own

kindergarten through twelfth-grade school systems, separate from the counties in which

the municipalities were located, owed such funds to the corresponding counties. See

Tenn. Code Ann. § 57-4-306 (Supp. 2014); 2014 Tenn. Pub. Acts, Ch. 901 § 1 (H.B.

1403). As amended in 2014, Tennessee Code Annotated § 57-4-306(a) provided:

(a) All gross receipt taxes collected under § 57-4-301(c) shall be

distributed by the commissioner of revenue as follows:

(1) Fifty percent (50%) to the general fund to be earmarked for

education purposes; and

24

(2) The other fifty percent (50%) to be distributed to local

political subdivisions as follows:

(A) Collections for privileges exercised in an incorporated

municipality shall be distributed by the commissioner

to the city recorder; and

(B) Collections for privileges exercised in an

unincorporated area of the county shall be distributed

by the commissioner to the county trustee.

Subsection (a) was thus amended to expressly provide for more than one local political

subdivision, with distribution of collections for privileges exercised to be sent to the city

recorder for those collections originating from a municipality and to the county trustee

for those collections originating from unincorporated areas of a county. See Tenn. Code

Ann. § 57-4-306(a) (Supp. 2014). Subsections (b) through (h) then provided a

distribution scheme for liquor-by-the-drink proceeds received from July 1, 2014, until

June 30, 2015. See id. at -306(b)-(h).9 Although we find a detailed analysis of this

distribution scheme unwarranted in an analysis of the prior version of the statute, we have

examined the distribution scheme of the 2014 Amendment and determined that it

essentially follows the ongoing intent of the General Assembly to have a portion of the

proceeds from the liquor-by-the-drink tax benefit children who attend school within the

jurisdiction, incorporated municipality or unincorporated county, wherein the gross

receipts originated. See id. Insofar as the County argues that the 2014 Amendment

demonstrates a contrary legislative intent underlying the 1982 Amendment, the County’s

argument is unavailing.

Finally, the County references the trial court’s decision being appealed in one of

the other three cases currently before this Court on the same underlying issue,

Washington Cty. Sch. Sys. v. City of Johnson City, No. E2016-02583-COA-R9-CV, as

supporting the County’s general position that public policy regarding funding education

equally for all students supports the conclusion that a municipality must share its liquor-

by-the-drink tax revenue with the county in which it is located. We note, however, that

Tennessee Code Annotated § 57-3-106(a) (2013 & Supp. 2017) provides for a local

option election in any county wherein the voters may decide to either permit or forbid

“the manufacture, receipt, sale, storage, transportation, distribution and possession of

alcoholic beverages . . . .” Even in counties, such as the County in this action, that have

9

As noted previously, the General Assembly has amended Tennessee Code Annotated § 57-4-306 each

year since the 2014 Amendment, extending the amended language in subsequent years, one year at a time.

See 2015 Tenn. Pub. Acts, Ch. 220 §§ 1, 2 (S.B. 990); 2016 Tenn. Pub. Acts, Ch. 885 §§ 1, 2 (H.B.

1691); 2017 Tenn. Pub. Acts, Ch. 346 §§ 1, 2 (S.B. 1262).

25

not approved a liquor-by-the-drink referendum, students benefit from the distribution of

fifty percent of liquor-by-the-drink gross receipt taxes to the state’s general fund,

earmarked for education. See Tenn. Code Ann. § 57-4-306(a)(1).

Moreover, such an argument concerning perceived fairness of the tax distribution

scheme provided by the statute would properly be directed to the General Assembly

rather than to this Court. See, e.g., City of Athens Bd. of Educ., 467 S.W.3d at 466

(“However compelling this argument [regarding the city’s receiving its “fair share” of

property taxes designated for county capital improvements] may be, it is properly

directed to others, e.g., the General Assembly, not to this Court.”). Inasmuch as we must

apply Tennessee Code Annotated § 57-4-306 as it was amended in 1982 and as the

General Assembly intended the amendment, we hold that, as a matter of law, the

applicable version of the statute did not require the Cities to share their liquor-by-the-

drink proceeds with the County. The trial court did not err in granting summary

judgment in favor of the Cities on this issue.

V. The Cities’ Constitutional Issue

In support of their position, the Cities raise an additional issue, arguing that if this

Court were to adopt the County’s interpretation of Tennessee Code Annotated § 57-4-306

(2013) and hold that a privilege tax collected in the Cities should have benefitted citizens

of another jurisdiction, such a holding would render the statute in violation of Article II,

Section 29 of the Tennessee Constitution. Having determined that the applicable version

of Tennessee Code Annotated § 57-4-306 did not require the Cities to share their liquor-

by-the-drink proceeds with the County, we further determine the Cities’ constitutional

argument to be pretermitted as moot.

VI. Conclusion

For the reasons stated above, we affirm the trial court’s judgment. This case is

remanded to the trial court, pursuant to applicable law, for enforcement of the trial court’s

judgment and collection of costs assessed below. The costs on appeal are assessed

against the appellants, Sullivan County, Tennessee, and the Sullivan County Board of

Education.

_________________________________

THOMAS R. FRIERSON, II, JUDGE

26