Beer and dancing might not be OK

By AMY SATTERWHITE / Staff Reporter for the Southern Standard

DAVENPORT

City officials said this week all is not as it seems in regard to ordinances they appeared to have passed.

Mayor Royce Davenport said Tuesday he learned some ordinances that were said to have passed don’t meet the muster of state law, even though they were declared as “carried” after members of the Board of Mayor and Aldermen voted on them.

The two ordinances apparently affected were a recent request for re-zoning from R-2 to C-2 on Walker Street and a so-called beer ordinance from July that proposed to lift restrictions on dancing in places where beer is sold. Both were being considered on second reading when they appeared to have passed by a 3-2 margin.

Davenport said during those meetings he was referring to procedural advice from Robert’s Rules of Order, a popular method of running meetings, which accepts a majority of the votes actually cast as sufficient, but state law differs from that advice. The law city officials cited this week states “any form of board action shall be passed by a majority of the members present.”

During both votes, five aldermen and Davenport were present, with the mayor electing not to vote. Since he didn’t vote – but was present – the three yes votes wasn’t enough to carry a majority of members present.

“As I understand it, we did not have a majority of those that were present voting for it, including me. I get counted included in the number there, but each vote is different,” Davenport said.

Another state law throws some confusion into the mix, as it states “any member of a local governing body of a county or municipality who abstains from voting for cause on any issue coming to a vote before the body shall not be counted for the purpose of determining a majority vote.”

However City Attorney James Dempster contends the mayor still counts because he was present.

“There was no majority vote,” he said. “It does not change the number of people who were there.”

University of Tennessee Municipal Technical Advisory Service (MTAS) consultant Jim Finance said Wednesday that Dempster’s interpretation is correct. He said abstentions don’t count toward the majority either way, but the person abstaining is still counted as part of the body.

MTAS is a state-funded service to cities in Tennessee that provides technical assistance via consultants who specialize in municipal government and Finance has worked with city officials in the past.

Dempster said the beer ordinance should never have been sent to officials for second reading based on the strict interpretation of the “majority of the members present” law because it had the same vote tally on first reading.

“It should never have gone to second reading. I think mostly everybody was thinking of Robert’s Rules of Order,” Dempster said. “That’s one of those things. A lot of times people pray for sins known and unknown. It was an unknown sin at the time.”

City Recorder Shirley Durham said the official minutes will reflect the ordinances carried as declared by the mayor at the meetings in question, but a notation will be made to account for the discrepancy discovered later.

Dempster said if the ordinances are to be considered, they will have to be voted on again. It was unclear if the items would be taken up Monday at the next Board of Mayor and Aldermen meeting, where it was said one official was reportedly going to be absent, which also affects a majority vote.

“It’s just like starting over again,” Dempster added.

In the meantime, a local business owner who paid $250 to apply for a beer permit and who was granted the permit Aug. 5 is waiting in limbo to see if she will be allowed to continue operations as planned.

Bernadette Doud had planned to open a restaurant or grill where beer is sold on New Smithville Highway Aug. 23. She said Wednesday plans were to offer dancing only on the weekends and owners attended the board meetings before making the decision on whether to spend money on dancing-related equipment.

“We went to the meeting to see if the dancing ordinance was going to pass or not before we actually built the inside. They said it passed, so we have spent thousands of extra money we wouldn’t have if it hadn’t passed,” she said. “I didn’t understand it at all. I was very distraught as far as what we had spent and what we had planned.”