The DeKalb County Beer Board voted 5-2 Thursday night to reject Viva Gail Johnson’s application for a permit to sell beer at Jewel's Market & Pizza on North Congress Boulevard.
Bazel Dick Knowles and Edward Frazier voted in favor of granting the permit.
Board members Frank Thomas, Harrell Tolbert, Robert Rowe, Jim Stagi, and Mac Harney all voted against approval of the the application.
When Hilton Conger, the county’s attorney, was asked to render a legal opinion on the matter, Conger told the board that since surveys show that the store is within 2,000 feet of the new Assembly of God church on Cookeville Highway, and as alcohol regulations set by the county commission in 1939 require that no business can be approved to sell beer if it is within 2,000 feet of a school, church, or other place of public gathering, he did not feel that the board had any legal basis to grant the permit.
"That's been the rule here in the county ever since 1939,” Conger told the board. “The county can change that and make it less than 2,000 feet, but DeKalb County has never chosen to do that."
Concerning how the distance from building to building is to be measured, Conger told the assembly that in a Sullivan County case taken before the Tennessee Supreme Court in the mid-1950s it was ruled that the distance is to be measured in a direct line from building to building.
"That was settled by the Supreme Court in the case of Jones versus the Sullivan County Beer Board,” Conger said.
“That was decided in 1956. The court said that the measurement is to be made in a direct line, the nearest point to the nearest point. From the building to the building. I've seen a survey in this one. In fact I think Mr. Redmon showed me the survey and it is within 2,000 feet."
A previous owner had been licensed to sell beer at the location under the name  of Pop’s Market, but the license lapsed when the store went out of business more than two years ago.
Since the Pop’s Market operation folded, a church has been built within the legal limit for the new owner to obtain a permit to sell spirits.
Conger said that according to statutes, since the store’s permit had been expired for more than six months, there was no legal basis to grandfather Redmon in for a new permit.
"The exception provided is that if the previous permit holder at the location had not been out of business for more than six months,” Conger said, “A church is built or moves in, and someone then purchases the business, it would be grandfathered in. It is my understanding that (in this case) it had been at least two years since there had been a permit there. At any rate, it had been more than six months."
New owner Jewel Redmon asked the board to take consider the fact that the property was tied up in bankruptcy and tax court,  and was not available for purchase during the six-month period that it could have been grandfathered in.
Redmon told the board that he did not feel that he should be punished because of a situation over which he had no control.
"The property was seized by the government for taxes,” Redmon told the board. “Nobody could have gotten a beer license there. There should be exceptions under the circumstances. It should be exempt.
There's nobody here objecting. We have to have a product to sell. That's what people want. So I think the board should take under consideration that it was seized by the government for taxes. No one could have done business there. That's our opinion."
Board member Edward Frazier told the assembly that he felt it was unfair not to award the permit when the store had been licensed to sell beer in the past under a previous owner.
Conger said that there is no room for an exception under the current regulations.
"The question that Mr. Redmon had raised was would there be an exception under the circumstances for this one since the property had been tied up in bankruptcy for a period of time,” Conger said.
“ I don't think there is an exception for that in the statutes. It just says that if there hasn't been a permit holder there within the last six months, then they're not grandfathered in."
The market will apparently not be eligible for a beer license unless the county commission sees fit to change the 62-year-old-law, which they have expressed plans to review in the near future.