Our state legislates and regulates smokers, snake handlers, tax breaks and atheists—but not boozing passengers or neighborhood hunters. Where did the quirks and loopholes come from?
by Bill Carey, Nashville Scene
All told, the Volunteer State has 29 volumes of rules and regulations totaling about 14,500 pages (not including the Tennessee Constitution). Included among them are many laws that law enforcement officials willfully ignore, plus others that state legislators should have known were unenforceable when they wrote them in the first place.
There is a law against "obscene or patently offensive" bumper stickers. There is a law against sighted pedestrians using "blaze orange" leashes, a regulation meant to help recognize blind people and that will come as a great shock to UT fans, whose favorite color is dangerously close to blaze orange. Tennessee also has a law requiring pizza delivery vehicles—even those owned by employees—to be marked with the name and logo of the business.
Tennessee has a law against dogs chasing deer; a law against handling snakes in a way that might endanger someone else; a law requiring employers to provide private places other than a rest room for female employees to breast feed their children. There's a law that prohibits the sale of alcoholic beverages on Labor Day, but not one that prohibits their sale on Memorial Day. There is a law that bans hunting from all roads and highways, and another that spells out the circumstances under which a disabled person can hunt from roads and highways.
Of course, the world is a complicated place. The reason there are so many laws is that the Legislature sets everything from the legal rules of evidence to the procedures under which barbers must register. But it's safe to say that Tennessee could get by without quite so many rules. Among Tennessee's more egregiously ridiculous laws, in no particular order, are these top 10 humdingers.
1. Take My Martini; I'm Driving
Tennessee is one of the few states in the country where it's perfectly legal to have open alcoholic containers in a moving vehicle—so long as the driver isn't drinking it. Because open containers are legal, people who drink and drive at the same time know that if they are pulled over, all they need to do is simply pass the bottle to the passenger, or even stick the bottle in a "closed glove compartment"—as the law specifically states—and the police will have a hard time proving that they were breaking the law.
The Department of Safety and the state's police forces would love to see the "pass-the-bottle" exemption replaced with a law that bans all open alcoholic containers in moving vehicles. But every time the bill comes up at the Legislature, it gets shot down in House subcommittee. Why? Mostly because lawmakers don't want to interfere with the right of people to drink on buses en route to University of Tennessee football games.
Sen. Randy McNally, an Oak Ridge Republican, has repeatedly proposed bills that would outlaw open containers in moving vehicles. "The way the law reads now, the only way for a policeman to pull a driver over is if he actually sees the driver taking a sip as opposed to just having the beer in his hand," McNally says. "Because of this, I've tried to get it changed to outlaw all open containers. But the alcohol industry keeps it from getting through. It's frustrating."
2. Ready, Aim, Shoot the House!
In recent years, some Tennessee residents who live in suburban areas have complained about hunters firing weapons dangerously close to their houses. Their concerns reached the ears of Rep. Gary Odom, a Nashville Democrat, who proposed a bill last year that would require hunters to have permission of homeowners before firing weapons on private property and within 100 yards of someone's home. Odom's bill was rejected in a House subcommittee. And as it turns out, it's completely illegal for a local government in Tennessee to regulate hunting in any way.
In other words, Knoxville or Nashville governments have no say about those bullets flying through the air. Odom is now trying to pass a bill authorizing local governments to regulate hunting if they choose. "I occasionally hunt myself, but this is not about gun rights and it is not about hunting rights," Odom says. "This is about the idea of bringing some sense to a ridiculous situation. We have subdivisions in Nashville where people are deer hunting close to people's houses and scaring people to death. The way the state law reads now, you can hunt big game in a suburban neighborhood on quarter-acre lots if you want to. Cities like Nashville should be able to regulate this, and at least make hunters get your permission if they are firing a weapon within 100 yards of your house."
Odom has received letters from all over the state supporting his effort, and his measure has the endorsement of the Tennessee Municipal League, which represents city and county governments. But lobbying against it is the Tennessee Wildlife Resources Agency, the pro-hunting state agency that regulates all public lands in the state. "We aren't in favor of Odom's measure for several reasons, not the least of which is that we believe that many communities would ban hunting, and we don't want to see any lands taken away that hunters can currently use," says TWRA lobbyist Allen Gebhardt.
"We also believe that if communities ban hunting we might have some problems with species management. Those areas that might ban hunting are probably the most likely to have complaints if deer populations get out of control."
Gebhardt also says that state law currently prohibits hunting while drinking and "reckless endangerment" while hunting. "The current law is adequate," he says.
3. Live Free and Smoke
If Knoxville City Council—or any other local governing body in the state of Tennessee—were to pass a law regulating the use of tobacco products in restaurants, bars, malls, office buildings or private colleges, the ordinance would violate state law and be invalid. Why? Because in 1994, when the Legislature was passing a series of laws meant to reduce teen smoking, tobacco industry lobbyists quietly slid in an amendment effectively preventing local governments from passing "any law or regulation of tobacco products."
The tobacco industry wanted the local preemption law passed so that it wouldn't have to worry about local ordinances all over the state (which it does in many states, most notably California).
Today, clean-air lobbyists say that they have disliked the "local preemption" law ever since it passed. They say that they haven't tried hard to get it changed because they were too busy trying to get some portion of the national tobacco settlement set aside for smoking prevention (a battle they lost last year). "We would absolutely love to get rid of the preemption law," says John Williams, who represents the Campaign for a Healthy and Responsible Tennessee (CHART). "This law strikes at the heart of the local governments' right and obligation to pass laws that are appropriate and right for the people of their city and county."
Many private business owners have voluntarily taken steps to ban smoking in malls and certain parts of restaurants, but Williams says that his group would like local communities to be able to ban smoking in bars and restaurants if they choose.
"They have done this in California, and we believe it has worked out well," he says. "It has especially worked out well for people who work in bars and who have to deal with second-hand smoke in those places."
But former tobacco industry lobbyist Cleve Smith says that the tobacco preemption is a good law. "What the law says is that private property owners can decide for themselves what to do about smoking," he says. "If a restaurant owner wants to ban smoking, let them. If a mall wants to ban smoking, let them. But in California, local governments were banning smoking all over the place, putting a lot of folks out of business in the process."
4. Protect Smokers' Rights, By God
Tennessee has a law that says you can't be fired for smoking. Actually, it never mentions cigarettes, but it says that a person can't be fired for "the use of an agricultural product not regulated by the Alcoholic Beverage Commission that is not prohibited by law." That, of course, means tobacco.
Given the skyrocketing cost of health insurance and the fact that it costs more money to insure a smoker than it does to insure a nonsmoker, why can't someone be fired for smoking? After all, what if a chain smoker is increasing the cost of health care for everyone else in the company?
Secondly, even if it is wrong to fire someone for smoking, why does Tennessee need this law? There are already plenty of laws protecting the rights of employees. Since there aren't laws that protect people from being fired if they are obese or for being sloppy, why does the state need one that says you can't be fired for smoking?
The "Smoker Employment Protection Act," as it has become known colloquially, was passed in 1990 as part of a bill prohibiting the firing of "whistleblowers"—people who refuse to take part in or be silent about illegal activities. Twelve years later, it's difficult to understand the circumstances under which smoking was made a fundamental right of employees. But it's safe to say that it won't be repealed anytime soon.
Many legislators are careful not to offend the tobacco industry; some, such as Rep. Ken Givens, a Rogersville Democrat, and Sen. Bob Rochelle, a Lebanon Democrat, are positively anxious to help tobacco farmers and tobacco companies. Williams, the lobbyist for CHART, says his organization has enough to deal with in the area of local preemption and can't very well take on a battle over smoking rights.
All of this is distressing to lobbyist Rob Ikard of the National Federation of Independent Businesses. "This is one of those many arcane restrictions on employers that makes it more difficult for them to have employees in the first place," he says. "I can easily imagine how an employee's smoking habit can cause problems, and it's unfortunate that in this state, the employer's hands are tied in that situation."
5. Taxing This, But Not That
Whether Tennessee needs to change its tax system from one that is mostly dependent on sales taxes to one that is dependent on a combination of income and sales taxes has been the talk of lawmakers for four years now. Regardless how that debate turns out, one thing is certain: Tennessee's sales tax exemptions are sometimes preposterous and often arbitrary. For starters:
Baby food is taxed in Tennessee, but horse food is not. Condoms bought in a condom machine are exempt, but condoms bought from a retailer are taxed. Video games are exempt if you play them in an arcade, taxed if you buy them in a store and play them at home. Lunches bought at school are exempt, but school lunch food bought at a grocery store is not. Dead animals that are stuffed are exempt; dead animals that are eaten by animals are exempt; dead animals that are eaten by humans are taxed. Satellite dish service is fully taxed; the first $15 of cable service is exempt. Daily and weekly newspapers such as The News-Sentinel and The Wall Street Journal are exempt; monthly magazines such as Forbes are taxed.
Guns bought at Wal-Mart are taxed. Guns sold by non-professional gun dealers at non-profit gun shows are exempt. (On the other hand, books sold by non-professional book dealers at non-profit book shows are taxed.) Admission fees to beauty pageants that have existed in the same city for 30 years or more are exempt; admission fees to beauty pageants that have been organized during the last 30 years are taxed.
None of these are huge exemptions from a state budgetary point of view, but they add up. The biggest sales tax exemption in Tennessee is for services of all kinds: health care services, construction services, legal services, accounting services, public relations services, advertising services and real estate commissions. They are all exempt from sales taxes in Tennessee, as they are in most states.
In some cases, there is a good reason for exemption. It may very well be that industrial machinery should be exempt from taxes. (As it turns out, industrial machinery is exempt from taxes in most other states, which means that Tennessee would be at a competitive disadvantage if it taxed industrial machinery.) But many exemptions were written into law for strange reasons, or at a time when the world was a different place. Because the Legislature didn't attach "sunset clauses" to exemptions as they passed, which would have given them a finite life, the entire tax code is a hodgepodge of some new—and some desperately outdated—breaks for various industries. Intellectually honest lawmakers agree the tax code needs to be reviewed—by people intelligent enough to see both sides of an issue, even if only one side is presented to them.
6. Fine Print in the Tennessee Constitution
We know, we know, the Tennessee Constitution isn't a law, per se. It's more than a law; it's the state's guiding document—much more difficult to revise than an ill-conceived bill. Taken as a whole, it's viewed as pretty solid. But some state lawmakers think Tennessee badly needs a constitutional convention so that parts of it can be thrown out or reworded. Certain articles are routinely violated or are contrary to what most Tennessee residents would consider fair. Consider the following:
 Article II, Section 22 says that "The doors of each House and of committees of the whole shall be kept open, unless when the business shall be such as ought to be kept secret." This clause has historically been used to justify routine closed-door meetings of the House and Senate finance committees. Those private meetings may, in fact, be authorized by the state constitution, but they are widely considered to be bad for public policy. Every meeting with a quorum of House or Senate committee members should be open to the public—at least, that was the founding fathers' idea of open government.
Article II, Section 24 says, "in no year shall the rate of growth of appropriations from state tax revenues exceed the estimated rate of growth of the state's economy as determined by law." Actually, this is a worthy mandate. In short, it is a directive to live within the state's means. But the Legislature completely ignored the spirit of this law a few years ago when it projected more tax revenue dollars than its own economists predicted so it could pass a "balanced" budget without raising taxes.
Article II, Section 28 deals with the authority of the Legislature to tax. A sentence near the end of the section says that the legislature "shall have power to levy a tax upon incomes derived from stocks and bonds that are not taxed ad valorem." This sentence has been interpreted by previous state Supreme Courts to prohibit a state income tax. (Whether those Supreme Courts interpreted Section 28 accurately is a subject of continuous debate.)
Article II, Section 31 states that "the credit of this state shall not hereafter be loaned or given to or in aid of any person, association, company, corporation or municipality." The deal to bring the NFL to Nashville, under which the state floated 30-year bonds to build a stadium for a for-profit football team and bankrolled street improvements around the area, would appear to have violated the spirit of this law.
Article III, Section 6 gives the governor the power to pardon people. The actions of former Tennessee Gov. Ray Blanton and former President Bill Clinton have demonstrated that this is a power executives have been known to abuse. Maybe it's time to reduce the pardon power to simply the power to commute death sentences.
Article IX, Section 2 says atheists and people who don't believe in heaven and hell can't hold office in Tennessee. No joke. "No person who denies the being of God, or a future state of rewards and punishments, shall hold any office in the civil department of this state." If someone were to challenge this clause in court, it would obviously be declared unconstitutional and thrown out. But let's get it out of the Tennessee Constitution first.
Article X, Section 3 says that "any elector who shall receive any gift or reward for his vote, in meat, drink, money or otherwise, shall suffer such punishment as the laws shall direct." This clause seems to imply that it is illegal for a candidate to even give away free food. Since it's hard to imagine Tennessee politics without coon suppers, rabbit suppers, free hot dogs and barbecue, it might be time to strike this clause.
7. Buckle Up, Sort Of
Tennessee's seat belt law is curious in many ways. Even though state law requires you to wear a seat belt, the law specifically prohibits a police officer from pulling you over solely for not wearing one. Police officers can only ticket someone for not wearing a seat belt if the person is also issued a citation for doing something else, like speeding.
The seat belt law also specifically exempts salesmen or mechanics who are "employed by an automobile dealer who test drives a motor vehicle if such dealership customarily test drives 50 or more motor vehicles a day." And it doesn't require governments to provide seat belts for school buses. So what's the point in having a seat belt law if it doesn't apply to kids on their way to school?
There have been numerous legislative attempts to change the seat belt law to a primary offense law, so that a police officer can pull over someone for not wearing a seat belt. "If we were serious about preventing death, we'd require people to buckle up," says Rep. Henri Brooks, a Memphis Democrat who has sponsored unsuccessful bills to make the seat belt law a primary offense law. "But around here, many people have an attitude that anything the government requires you to do is like Big Brother requiring you to do it."
8. Pawn Shops Have Rights Too
Two years ago, the state's law enforcement agencies asked the legislature to pass a law requiring every person doing business with a pawn shop to be fingerprinted first. They claimed that it would greatly expedite the recovery of stolen property throughout the state. Last year, the mayors of Tennessee's larger cities (including Bill Purcell) expressed their support for such a measure. Among its more vocal critics at the Legislature was Rep. Rob Briley, a Nashville Democrat who argued that it would be inherently unfair to require pawnshop customers to be fingerprinted, but not customers of other types of second-hand stores, such as antique stores and flea markets.
"The measure was ill-conceived, not well thought out and very impractical," Briley says. "The more I learned about it, the more convinced I became that its implementation was probably [infringing] on people's constitutional rights to be left alone."
The state's pawnshop industry managed to hold back the fingerprint bill for a while, but last year a bill was passed that allowed only the cities of Memphis and Knoxville to have fingerprint laws.
This represented an off sort of compromise. If the purpose of the fingerprint law is to develop a statewide network of people who use pawnshops, what good is a law that only applies to two cities? On the other hand, if the law is unconstitutional, as Briley and others argued, then how can it be legal for Memphis and Knoxville?
9. Pigeon Forge and Gatlinburg Are Sitting Pretty
One of the least known tax breaks in the state of Tennessee is the one that benefits Gatlinburg and Pigeon Forge, the two cities bordering the Great Smoky Mountains.
Twenty-three years ago, Gatlinburg needed to raise revenue and didn't want to have to raise property taxes to do it. What it did instead was ask the Legislature to allow the city to keep a small portion of the sales taxes collected in that city that otherwise would be turned over to the state. Gatlinburg's argument was that the city needed more money to build roads and infrastructure than other cities because it had such a small population base, but such a large number of visitors—and produced such a disproportionately large amount of sales tax dollars.
The obvious flaw in this argument is that Gatlinburg's status as a major tourist destination gives the city one of the best hotel-motel tax collections in the state. Flaws aside, the Legislature bought it, passing legislation declaring Gatlinburg a "premier-type tourist resort." In 1986, lawmakers amended the "premier-type tourist resort" law to benefit Pigeon Forge as well.
Today, the law is one of the most complicated on the state's books. But the bottom line is this: Between the two cities, Gatlinburg and Pigeon Forge get to keep about $5 million more in sales tax dollars annually than they would if those cities were treated like every other. As a result, Gatlinburg and Pigeon Forge have been able to build many things, such as schools, roads and new tourist attractions, while maintaining low property taxes.
Last year, House Speaker Pro Tem Lois DeBerry spoke against the Gatlinburg/Pigeon Forge arrangement on the House floor. Lobbyists Nelson Biddle and John New, who represent the two communities, are fighting hard to keep it in state law. "I've been fighting to keep it for 17 years," Biddle says. "That law has paid for itself many times over. Just last year, it helped the city of Gatlinburg contribute $17 million toward the new aquarium there. During the first year of that aquarium's operation, the state picked up an additional $1.6 million in sales taxes."
10. Just What Is A "Newspaper of General Circulation?"
State law requires that governments give official notice of upcoming elections by running advertisements in a "newspaper of general circulation." Attorneys who represent recently deceased individuals or people who have declared bankruptcy also have to run advertisements to let creditors know how they can settle financial claims against that person.
The law that defines "newspaper of general circulation" is a curious one—and an important one if you happen to be in the newspaper business. According to Tennessee law, a newspaper of general circulation must come out at least once a week and must have been in existence for at least a year. There are no requirements related to circulation numbers.
For example, largely because of the requirements of the state law, Nashville's legal notice business goes to two publications: the Nashville Record and the Nashville Business Journal. The Record gets most of that business. The Record is owned by Gannett, the largest newspaper company in the country, which also owns the Nashville Tennessean. But the Record has a circulation of only 1,300. It has a minimal editorial staff. In fact, it's hard to find a copy of the Record unless you work in downtown Nashville or have a subscription.
The reason public notice exists in the statute is to let as many people as possible in a community know about something. So what's the purpose of a statute that effectively gives attorneys a way to meet the letter of the law by advertising in a newspaper that has almost no circulation? "The concept of legal notice is to inform the public, but it has become a fallacy," says Gary Cunningham, publisher of the local Nashville paper The Green Hills News and its four sister publications, which get a small amount of legal notice business.
March 14, 2002 * Vol. 12, No. 11
© 2002 Metro Pulse
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