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City of Knoxville v. Ponce-Carpio

Court of Appeals of Tennessee, Knoxville

February 25, 2015

CITY OF KNOXVILLE
v.
CARLOS GEOVANNY PONCE-CARPIO

Assigned on Briefs December 10, 2014

Appeal from the Circuit Court for Knox County No. 164611 Dale C. Workman, Judge

A. Philip Lomonaco, Knoxville, Tennessee, for the appellant, Carlos Geovanny Ponce-Carpio.

Alyson A. Eberting, Knoxville, Tennessee, for the appellee, City of Knoxville.

John W. McClarty, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., C.J., and Thomas R. Frierson, II, J., joined.

OPINION

JOHN W. MCCLARTY, JUDGE

I. BACKGROUND

The appellant, Carlos Geovanny Ponce-Carpio ("Owner"), was the owner of the Copa Cabana Sports Bar and Night Club, LLC d/b/a Copa Cabana, located at 2619 Chapman Highway in Knoxville, Tennessee. On October 28, 2011, Owner was cited by Police Officer Michael Price of the Knoxville Police Department's Inspections Unit for violating section 4-70 of the Knoxville City Code in failing to have the club's beer permit posted in a conspicuous location. Owner had been issued a beer permit on August 26, 2008.

The permit on its face states that "[t]his document must be displayed in a conspicuous place as proof that appropriate Beer Board action was taken granting a permit and a valid permit exists." Specifically, Knoxville City Code, section 4-70 provides:

Sec. 4-70. Display.
Each holder of a beer permit issued pursuant to the provisions of this article shall display and keep displayed such permit in a conspicuous place on the premises where he is authorized by that permit to conduct business.

On October 28, 2011, the Knox County District Attorney's Office issued a nuisance petition for the Copa Cabana to be shut down. Thereafter, a number of representatives from the District Attorney's office as well as Officer Price and other police officers traveled to the club to initiate the directives of the petition. Upon their arrival, a number of employees of the club were preparing for a concert to be held that evening at the establishment. Officer Price entered the premises in order to seize Copa Cabana's beer permit, but he was unable to locate it. On previous visits, he had viewed the permit posted on the wall near the club's entrance. However, it was not posted on this occasion. After a search, the permit was located on a desk in a back office under a large stack of paperwork. The record before us reveals that an employee reported the beer permit had been off the wall for several days. Officer Price thereafter seized the permit to close the club as directed by the nuisance petition.

Citation A466704 concerning the violation of Knoxville City Code section 4-70 was initially heard in Municipal Court on November 10, 2011. Owner was found guilty and subsequently appealed the matter to Circuit Court, where a de novo trial was held on February 10, 2014.

Owner's defense is that the club had no customers at the time of the raid and was not open. He contends the officer could only inspect when the establishment was open for business. Owner acknowledges that if the club had been open with customers and no permit was posted, the citation would have been proper. The City contends the uncontroverted evidence reveals that the beer permit had not been posted in a conspicuous place for several days, and, according to the testimony of Officer Price, the permit was found in a back office under a pile of documents on a desk. The City asserts the club was accessible to receive deliveries of food and drink, including beer, even when it was not "open" to customers. According to the City, Owner's argument is contrary to the express language set forth in section 4-70 that the permit holder "shall display and keep displayed" the permit in "a conspicuous place on the premises . . . ." The City observes that while ...


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