BEFORE THE CITY OF KNOXVILLE BEER BOARD h CITY OF KNOXVILLE, Plaintiff, PERMIT NO. P082322006 ARAMARK SPORTS AND ENTERTAINMENT SERVICES, LLC D/B/A NEYLAND STADIUM-ARAMARK BOWL 1300 Phillip Fulmer Way Knoxville, TN 37916 Permittee. CITY OF KNOXVILLE’S RESPONSE TO PERMITTEE’S MOTION TO STRIKE COMES the City of Knoxville, by and through counsel, and requests that the Hearing Officer deny the Permittee’s Motion to Strike Certain Allegations and Counts of City of Knoxville’s Non-Compliance Complaint filed on November 4, 2022 and order the Permittee to fully and completely answer the Complaint as required by Section 4-86 of the City Code. First and foremost, as counsel for the Permittee has acknowledged, the Tennessee Rules of Civil Procedure and Rules of Evidence do not apply to administrative hearings before the City Beer Board Hearing Officer. As sueh, there is no statutory or procedural authority for the Permittee to request that any portion of the City’s Non-Compliance Complaint be stricken. See Section 4- 89 of the Knoxville City Code and the Rules of Procedure for Suspension or Revocation Hearings attached as Exhibit A to this Response, Moreover, the pleadings which the Permittee is requesting be stricken are not only relevant to these Proceedings, but are in fact, necessary information for the Hearing Officer to consider as per the express language set forth in Chapter 4 of the Knoxville City Code, in particular Section 4-78(e) and Section 4-73.Second, the Permittee, while objecting to a number of Counts in the Non-Compliance Complaint, has failed to even provide an answer to the allegations set forth in numbered paragraphs 71 through 91 of the Complaint, addressing the three underage violations for which the City Beer Board referred the Permittee to a suspension/revocation hearing. It appears that the Permittee wrongly believes that the remedial plan and fine previously paid in accordance with Section 4-78 of the Code prevents the Hearing Officer from further action, which is expressly contrary to the language set forth in the Code. The Hearing Officer not only has the authority, but the obligation to consider previous sanctions imposed against Aramark, and is expected to “exercise all available option, including revocation of the permit. .. .” See Section 4-78(e). History of Permittee Is Required to Be Considered Per Section 4-78(e) of the City Code. In this case, the Permittee (Aramark Sports and Entertainment Services, LLC) received its initial beer permit for Neyland Stadium in 2019. As the City’s Non-Compliance Complaint sets forth, the Permittee “reapplied” for two subsequent beer permits based on technicalities ~ in the first instance because they had a new “Safe Serve Policy” and in the second case, due to “Expansion of the premises.” At all times, the applicant for the permit was the same owner and permittee: Aramark Sports and Entertainment Services, LLC. When one reviews the applications submitted by Aramark submitted (page 1 of Exhibits 11 and 18 to the City’s Non-Compliance Complaint), Aramark itself acknowledged it was NOT a “new business,” but marked “Other” in. the portion of the form as to why it was reapplying. Contrary to the assertions of counsel, simply having a new permit number does not erase the previous violations committed by Aramark, nor should they be ignored when considering what sanctions the Hearing Officer should take, To that end, Section 4-78(e) provides that the Hearing Officer “shall consider the effectiveness of any sanctions previously imposed against the permittee.” Furthermore, theHearing Officer is required to consider certain aggravating factors including but not limited to the “(b) sales by different agents or employees of the permittee, (c) sales on different dates... . and (g) failure of the permittee to conform to the terms of remedial plans prepared by the permittee.” Nothing in the Code states that the Permittee’s previous history under a different permit number is precluded from being considered. To the contrary, the history of the Aramark’s previous violations under Chapter 4 is not only relevant, but required to be considered by the Hearing Officer in determining what sanctions are appropriate in this matter. Previous violations by the Permittee, and the actions that occurred following those violations are not “scandalous” or “immaterial” but rather informative to the Hearing Officer as to whether a fine or suspension is an adequate sanction on Aramark, or rather a more serious action, such as revocation, is in order. In this case, the proof will show that requiring repeated submittals of remedial plans and the issuance of fines did nothing to prevent Aramark employees and representatives from continuing to sell beer to underage individuals, and this is one of the primary reasons that the City has requested more severe sanctions against the Permittee. Hearing proof of the history of Aramark’s previous activities as a beer permitholder in the City is clearly relevant to this matter, and the City should not be precluded from presenting evidence of these previous violations, Therefore none of the Counts in the Non-Compliance Complaint should be stricken as immaterial or irrelevant. Evidence of Violations of Laws on the Premises Must Be Considered By Hearing Officer Per Section 4-73(c) of the City Code. ‘The Permittee has also requested that Count V of the City’s Non-Compliance Complaint be stricken because the allegations in the Complaint relate to violations of laws that did not involve the sale of beer by Aramark, and were unrelated to alcohol. Per the language set forth in Section 4-73 of the City Code, the City is not required to prove that the violations on the Premises were related to the sale of beer or alcohol, the City is merely required to prove that violations of lawoccurred on the Premis . And while the City would concede that the exhibit attached to the Non- Compliance Complaint is a report prepared by representatives of the University of Tennessee which includes violations that occur throughout the campus, a significant number of these “violations of law” occurred within the Premises. As to proof of whether these violations occurred within the Premises or outside the Premises, that is a question of fact, and therefore a motion to strike this Count is inappropriate at this time, Ofnote, counsel for the Permittee appears to concede that there are a number of violations of law occurring on the premises, but that there are not enough violations to be considered “chronic.” But “chronic” is not what the City is required to prove. Section 4-73(c) states that a permit shall be revoked if the establishment is operated in a disorderly manner. The section goes ‘on to provide that prima facie evidence of the establishment being operated in a disorderly manner is “evidence that any violation of law has occurred on the premises.” Should the Hearing Officer find that the establishment is being operated in a disorderly manner, it is the City’s position that the Hearing Officer is required to revoke the permit. If the Hearing Officer determines, afer hearing proof in this case that Section 4-73(c) has not been proved, the City’s position is that a suspension of the Permittee’s beer permit is appropriate pursuant to 4-78. It also appears that the Permittee is trying to disclaim responsibility for the Premises, stating that other entities are responsible for security enforcement, and that the University of ‘Tennessee, as the owner and operator of the stadium is responsible for the Premises. For purposes of Chapter 4 of the City Code, and gaining the opportunity to have a beer permit issued by the City, ownership of the premises is irrelevant for purposes of whether a beer permittee should be responsible for compliance with Chapter 4-73 of the City Code. A significant number of beer permitholders within the City are not “owners” of the premises in which they operate. That doesnot absolve them for responsibility for the premises in which their patrons are drinking. As previously mentioned, the Code makes clear that it is not just violations that involve the sale of beer by the Permittee, it is “any breach of the peace . . . or evidence of any violation of law” occurring on the premises which will constitute prima facie evidence that the permittee’s establishment is being operated in a disorderly manner, All permittees, whether they are merely tenants of the location or the owner of the property in question are responsible for the “Premises” in which they are serving beer, In this case, the “Premises” is everywhere in Neyland Stadium where patrons are permitted to drink beer. The Permittee itself acknowledged that the stadium is part of its “premises” in its beer permit application, Note on this most recent application, page 1 of Exhibit 18, where Aramark gave its reason for applying for a new permit. “Expansion of premises” was the reason given, Contrary to the assertion of counsel, application of 4-73 of the City Code is not tied to nuisance actions taken by the district attomey. In recent history, permitholders have been held responsible under Chapter 4-73(c) of the Code for any number of violations of laws: shootings occurring in parking lots, and violations of the Board of Health, are some of the most recent examples. In each of these cases, the City sought for the permits to be revoked, and this evidence was properly considered by the Hearing Officer in accordance with Section 4-73(c) and 4-80. In this case, it will be the responsibility of the City to present evidence that the establishment is being operated in a disorderly manner, and the exhibit attached which is a public record of all crimes on campus, including the UT Stadium, will be just part of the factual proof presented by the City. Certainly some of the information within that report is inapplicable, as the event did not occur within the premises, but the violations mentioned in the Complaint were only violations that were reported to have occurred within the stadium itself.Standard for Motion to Strike Has Not Been Met by Permittee. Assuming, arguendo, that the Hearing Officer wishes to apply the standards set forth in the Tennessee Rules of Civil Procedure with regard to consideration of Aramark’s motion to strike, it is the City’s position that the motion should still be denied. It is well-settled law that striking of pleadings “is a drastic remedy” and “motions to strike pleadings are disfavored.” See Scott vs. Regions Bank, No. 2:08-CV-296, 2010 WL 908790, at *3 (E.D. Tenn. Mar. 12, 2010) Additionally, “the action of striking a pleading should be used sparingly.” Anderson v. US., 39 Fed.Appx. 132, 135 (2002)(quoting Brown v, Williamson Tobacco Corp. v. U.S., 201 F.2d 819, 822 (6" Cir. 1953)). In Brown, the court stated that a motion to strike should only be granted when “required for the purposes of justice and when the pleading . . . has no possible relation to the controversy.” Id. In this case, each paragraph of the City’s Non-Compliance Complaint either relates to Aramark’s history as a beer permittee at UT Stadium, its actions under this current beer permit, or other violations of Chapter 4 of the Beer Code; all of which are clearly relevant to be considered by the Hearing Officer when determining what sanetion is approy ‘A request to strike a pleading out of the record should only be sustained if the pleading is redundant, immaterial, impertinent, or scandalous. As shown above, none of these criteria apply in this case. As it is impossible for the Hearing Officer to consider the appropriate sanctions in this, case without knowing the full history of Aramark as a beer permittee for the City, the pleadings the Permittee is requesting stricken are not only relevant, but material to the decision-making process. Courts have held that motions to strike are often used as a dilatory or harassing tactic, which is another reason motions to strike are disfavored and infrequently granted. Therefore, before a motion to strike will be granted, federal courts apply the following standard: it must beshown that the allegations being challenged are so unrelated to the plaintiff's claims as to be unworthy of any consideration, and their presence in the pleading throughout the proceeding will be prejudicial to the moving party. Given that this is not a jury trial, and the Hearing Officer is fully capable of determining what weight to give to the proof presented in this hearing, itis difficult to ascertain why any of the pleadings in this Complaint will be prejudicial. Conclusion. Based on the rules applicable in this matter, the Hearing Officer has great discretion as to what evidence to consider in determining what sanction is appropriate. It appears that there is no dispute by Aramark that its representatives have served beer on three occasions since September, 2022 to underaged individuals in violation of Section 4-78 of the Code. It also appears that the Permittee concedes that some violations of law have occurred on the Premises (even if they dispute whether they are related to their sale of beer or whether there is a “chronic” disorderly conduct situation), As there appears to be no dispute that violations of Chapter 4 have occurred, the issue for the Hearing Officer is what penalty is appropriate. The history of Aramark as a beer permittee, and evidence of violations of Chapter 4 of the City Code are clearly relevant in making that determination. For the reasons stated above, the City requests that the Permittee’s Motion to Strike be Denied and the City respectfully requests that the Hearing Officer order the Permittee to fully and completely Answer each paragraph of the Non-Compliance Complaint filed by the City on October 19, 2022 in accordance with Section 4-86 of the City Code. Respectfully submitted, this the 28th day of November, 2022.CITY OF KNOXVILLE By: ‘Alysbn Amonette Dyer City Attorney P.O. Box 1631 Knoxville, TN 37901 (865) 215-2050 CERTIFICATE OF SERVICE ‘The undersigned hereby certifies that the City’s Response to Permitholder’s Motion To Strike has been filed with the Clerk of the Beer Board and that a true and exact copy of the same has been forwarded via U.S. Mail to: William T. Cheek, III Tasha C. Blakney Stacia Burns 400 W. Church Avenue 1600 West End Avenue, Suite 1400 Suite 101 Nashville, TN 37203 Knoxville, TN 37902 Robert B, Frost First Horizon Plaza Suite 2300 P.O. Box 300 Knoxville, TN 37902 Dated this the 28th day of November, 2022. ‘Alysn A. Dyer, AttoRpey for ity of KnoxvilleRULES OF PROCEDURE FOR SUSPENSION OR REVOCATION HEARINGS BEFORE THE CITY OF KNOXVILLE BEER BOARD Beer Board/s counsel shall administer the oath to all witnesses and preside over the presentation of the parties’ proof. Beer Board’s counsel shall rule on questions of procedure and admissibility of evidence. Neither the Tennessee Rules of Evidence nor the Tennessee Rules of Civil Procedure shall be applicable to these hearings but the presiding officer is instructed to make every effort to conduct the hearing so as to provide a fair hearing and reasonable due process to both parties. The rule of sequestration of witnesses shall not be applicable to these proceedings. Each party will be permitted up to but no more than two and one-half (2-1/2) hours, excluding opening statement and final argument, to complete its presentation of proof. (The Beer Board, upon motion by either party but Bt the Board’s sole option, may grant either party ‘additional time upon a finding that the opposing party unduly restricted the available time for proof through extensive cross-examination of the other party’s witnesses or for such other reasons as may be required in fairness to each of the parties.) Each party shall be provided five (5) minutes for an opening statement. The City will make the initial opening statement and the permit holder’s opening statement may follow. At its option, the permit holder may reserve its opening statement until after the city has rested its case and prior to putting on its own proof but, in any event, the opening statement may not exceed five (5) minutes in length. After opening statements are completed (or waived or reserved, as the casemay -be) the.City will put on its proof. : ot he examination of witnesses .shall proceed as follows: a: ‘Directwexamination b. Cross-examination c., Re-direct .examination,. if necessary a. Re-cross-examination, if necessary @. | After ail examination: by the’ parties is completed, any menber of ‘the Becr Board or Beer Board’s counsel may address questions to the witness. There Will \be no further. examination of any witness: by either’ of the parties following questions from Beer Board members or their counsel. EXHIBIT hodAt the conclusion of the City’s proof any Beer Board member may make a motion to dismiss the case, There will be no motion from either of the parties. However, in the event a member of the Beer Board makes a motion to dismiss which is duly seconded, prior to debate by the Beer Board members each party will be given five (5) minutes to be heard with regard to the motion. The Beer Board may then debate the motion. After debate among the Beer Board members, if the motion to dismiss is sustained the matter will be dismissed. In the event the motion fails, the matter will proceed with presentation of the permit holder’s proof in the order and subject to the limitations set forth above. After both parties have completed their proof, the City will have ten (10) minutes to summarize its case after which the permit holder will be allotted twelve (12) minutes for final statement. The City may have an additional two (2) minutes for rebuttal upon completion of the permit holders final statement. After final statements by both parties are completed, the Beer Board Chairman shall preside over the debate of the Beer Board and shall entertain any appropriate motions of the Beer Board members until conclusion of the hearing.