Of Morals, Mores and Malt Liquor

Denying Beer Permits Based on Moral Turpitude 

"I know only that what is moral is what you feel good after and what is immoral is what you feel bad after."
" Ernest Hemingway
 
As is the case with most diversions " or life's necessities, depending on your tastes "   the transportation, storage, sale, distribution, possession, and manufacture of beer in this state is regulated under the statutes set out in Tenn. Code Ann., Title 57, Chapter 5.  
  
"Beer is" defined by our legislature to mean "beer, ale or other malt beverages having an alcoholic content of not more than five percent by weight. All businesses engaged in the sale, distribution, manufacture and storage of beer are required to obtain a permit from the county or city where the business is located.[1]  
  
Consequently, cities and counties across Tennessee have created beer boards, comprised of either the sitting body politic or appointees thereof.[2]  

The Moral Dilemma

One of the more challenging issues facing local government entities in Tennessee that issue permits to sell beer, concerns those applicants suspected of having committed crimes of moral turpitude. The use of the term "suspected" is purposeful, due to the fact that there exists precious little interpretive case law upon which legal counsel may rely when advising beer permit applicants or local beer boards in such matters. Tenn. Code Ann.  § 57-5-301 prohibits certain persons from owning or being employed by a business regulated under Title 57, Chapter 5 of the Tenn. Code Ann., entitled "Intoxicating Liquors." Specifically, Tenn. Code Ann.  § 57-5-301(a)(1) provides the following prohibition: "[n]either the person engaging in such business nor persons employed by that person shall be a person who has been convicted of any violation of the laws against possession, sale, manufacture and transportation of intoxicating liquor or any crime involving moral  
turpitude within the last ten (10) years" (emphasis added). The fact that the Tennessee General Assembly failed to define, with any specificity, the term "moral turpitude" is vexing indeed.

The State Perspective

For those litigants who turn to the Tennessee Supreme Court for a bright line test to assist them in determining whether or not a particular Tennessee offense is or is not a crime involving moral turpitude, they are sure to come away wanting. In Gibson v. Ferguson, 562 S.W.2d 188, 189 (Tenn. 1976) the Tennessee Supreme Court candidly pointed out what many attorneys theretofore suspicioned: "[i]t is unfortunate that the legislature used the language, 'crime involving moral turpitude,' for it has no satisfactory definition."[3] More recently, the Tennessee Court of Appeals has stated: "It is sometimes difficult to determine whether an offense involves 'moral turpitude' or not."[4]  
  
The venerable Black's Law Dictionary defines "moral turpitude" to mean 'the act of baseness, vileness, or depravity.'[5] Interestingly, our legislature has failed to establish objective criteria useful for determining if the elements of crimes not already addressed by the courts are indicative of an "act of baseness, vileness, or depravity."[6]
  
The absence of a bright line rule, coupled with the willingness of our courts to concede that attempting to define moral turpitude is difficult at best, raises the question, "What's a lawyer to do?" How does a private attorney respond to her client when asked, "I had this little problem a few years ago. Do you think it's moral turpitude?" What of the local government attorney who is asked by his or her board or commission, "This applicant has a criminal record; can we deny the permit based on moral turpitude?" It is rare indeed when attorneys on opposite sides of a case have a common enemy, especially when that enemy is one that reasonable minds can't seem to define.  
  
The Tennessee Attorney General has astutely pointed out that Tennessee courts have determined that the following Tennessee crimes are crimes that do indeed involve moral turpitude: vehicular homicide, assault to commit murder, theft, alteration of a cable box to receive the HBO channel free, larceny and burglary.[7] Interestingly, the crimes that Tennessee courts have determined do not involve "moral turpitude" include the following: rolling high dice for a coke and failure to release 17 bluegill fish, dishonorable discharge, overtime parking at a city parking meter and failure to stop at a stop sign, driving under the influence, bootlegging, simple possession of marijuana, escape, vagrancy and public drunkenness, and inciting children under age 18 to leave school.[8]

The Federal Perspective

If counsel is inclined to look to federal legislation or case law for clarity, further disappointment is in the offing. Our federal courts have likewise come up short, if you will, when attempting to categorize crimes presumed to involve moral turpitude.  
  
Congress, like the Tennessee Legislature, has failed to define the term "crime involving moral turpitude" when it included the phrase into the Immigration Act. Mei v. Ashcroft, 393 F.3d 737, 739 (7th Cir. 2004). It was the Tennessee Attorney General who wryly noted, "While concluding the term moral turpitude 'defies a precise definition,' the federal courts nonetheless delve into 'the amorphous morass of moral turpitude law,' and usually concede that the Board of Immigration Appeals' (BIA) stated definition is as workable as any: 'moral turpitude [is] conduct that is inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed other persons, either individually or to society in general.'" Partyka v. Attorney General, 417 F.3d 408, 409-13 (3rd Cir. 2005).[9]

Summary

It appears that the vagaries surrounding the crime of moral turpitude will continue to vex counsel on both sides of the beer permitting scheme for years to come. Until ourcourts provide counsel with a bright line rule that clearly and concisely defines crimes involving moral turpitude, attorneys will continue to be haunted by that stinging criticism of Jeremy Bentham "The power of the lawyer is in the uncertainty of the law."  

Notes

1. Tenn.. Code Ann.  § 57-5-101(b) defines beer as "beer, ale or other malt beverages, or any other beverages having an alcoholic content of not more than five percent (5 percent) by weight.
  
2. The county legislative body may, but is not required to, appoint a committee (known as the beer board) to administer the laws relating to the sale of beer in the county. If the county legislative body does not appoint a beer board, the county legislative body acts as the beer board. The beer board is authorized to act on behalf of the county in all matters relative to the administration of the beer laws. However, the county legislative body retains the sole authority to adopt distance rules or to extend hours for the sale of beer. Tenn. Code Ann.  § 57-5-105.
  
3. For a superb analysis of the moral turpitude dichotomy, see Op. Tenn. Att'y Gen. No. 08-108. The aforementioned was, in part, the inspiration of this piece, portions of which appear herein.
  
4. Kissell v. McMinn County Commission, 2005 WL 1996621, at *4 (Tenn. Ct. App. 2005) (J. Susano, concurring).
  
5. Black's Law Dictionary (6th ed. 1990).
  
6. See Brooks v. State, 213 S.W.2d 7, 11 (Tenn. 1948).
  
7. Op. Tenn. Att'y Gen. No. 08-108
  
8. Id.
  
9. Id. see Brooks v. State, 213 S.W.2d 7, 11 (Tenn. 1948), is the generally accepted definition in federal case law. See, e.g., Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1165 (9th Cir. 2006) (relying on this same definition and citing to Knapik v. Ashcroft, 384 F.3d 84, 89 (3rd Cir. 2004)).

Joseph G. Jarret JOSEPH G. JARRET is the chief deputy Knox County law director, a federal and state mediator and a former active duty United States Army Combat Arms Officer. An award-winning writer who has published more than 85 articles in various professional journals, he lectures frequently on behalf of the University of Tennessee College of Law and the Howard Baker Jr. Center for Public Policy and is the 2009 recipient of the Florida Association of County Attorneys Gordon Johnston Award for Excellence in the Practice of Local Government Law.