GA Code § 3-3-2 (2021)
2021 Georgia Code|Title 3 - Alcoholic Beverages|Chapter 3 - Regulation of Alcoholic Beverages Generally|Article 1 - General Provisions|§ 3-3-2. Powers of Local Governing Authorities as to Granting, Refusal, Suspension, or Revocation of Licenses Generally; Due Process Guidelines; Fingerprints

  Except as otherwise provided for in this title, the manufacturing, distributing, and selling by wholesale or retail of alcoholic beverages shall not be conducted in any county or incorporated municipality of this state without a permit or license from the governing authority of the county or municipality. Each such local governing authority is given discretionary powers within the guidelines of due process set forth in this Code section as to the granting or refusal, suspension, or revocation of the permits or licenses; provided, however, that residency by an applicant within the city or county issuing the permit or license shall not be a requirement by the respective local governing authority if the applicant designates a resident of the city or county who shall be responsible for any matter relating to the license.   The granting or refusal and the suspension or revocation of the permits or licenses shall be in accordance with the following guidelines of due process:   The governing authority shall set forth ascertainable standards in the local licensing ordinance upon which all decisions pertaining to these permits or licenses shall be based;   All decisions approving, denying, suspending, or revoking the permits or licenses shall be in writing, with the reasons therefor stated, and shall be mailed or delivered to the applicant; and   Upon timely application, any applicant aggrieved by the decision of the governing authority regarding a permit or license shall be afforded a hearing with an opportunity to present evidence and cross-examine opposing witnesses.     As a prerequisite to the issuance of any such initial permit or license only, the applicant shall furnish a complete set of fingerprints to be forwarded to the Georgia Bureau of Investigation, which shall search the files of the Georgia Crime Information Center for any instance of criminal activity during the two years immediately preceding the date of the application. The Georgia Bureau of Investigation shall also submit the fingerprints to the Federal Bureau of Investigation under the rules established by the United States Department of Justice for processing and identification of records. The federal record, if any, shall be obtained and returned to the governing authority submitting the fingerprints.    (Ga. L. 1935, p. 73, § 15A; Ga. L. 1973, p. 12, § 1; Ga. L. 1973, p. 14, § 1; Code 1933, § 5A-502, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 17; Ga. L. 1998, p. 1300, § 1; Ga. L. 2006, p. 206, § 6/HB 1248.)   Cross references.   - Regulation of business of operating road houses, public dance halls, and other establishments by local governments, § 43-21-50 et seq.   Administrative Rules and Regulations.   - Rules regulating the Georgia Bureau of Investigation, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Bureau of Investigation, Chapter 92-1.   Law reviews.   - For annual survey of administrative law, see 38 Mercer L. Rev. 17 (1986). For comment on Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964), see 1 Ga. St. B. J. 550 (1965). For comment, "Retail Liquor Licenses and Due Process: The Creation of Property Through Regulation," see 32 Emory L.J. 1199 (1983).   JUDICIAL DECISIONS   Editor's notes.   - In light of the similarity of the statutory provisions, annotations decided under Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103 are included in the annotations for this Code section.   County code requiring liquor permits constitutional.    - Section of DeKalb County Code requiring all employees of an establishment holding a license for consumption of beer or wine, except busboys, cooks, and dishwashers, to have permits was not unconstitutional and did not exceed the county's powers of home rule. Kariuki v. DeKalb County, 253 Ga. 713, 324 S.E.2d 450 (1985), overruled on other grounds, Russell v. City of E. Point, 261 Ga. 213, 403 S.E.2d 50 (1991), cert. denied, 502 U.S. 971, 112 S. Ct. 448, 116 L. Ed. 2d 466 (1991).   Alcohol licensing ordinance constitutional.    - County licensing ordinance provided an applicant with adequate notice of the criteria applied in consideration of an application for an alcohol license, and the commission exercised the commission's discretion within the plain, ascertainable standards thereof. Myon Tul Chu v. Augusta-Richmond County, 269 Ga. 822, 504 S.E.2d 693 (1998).    That part of the Jasper, Ga., Alcoholic Beverages Ordinance that authorized license revocation for any legal violation that the City Council determined to have occurred violated due process principles and could not stand; there were no such limits on the council's discretionary revocation authority and no "ascertainable standards" to guide or limit the grounds for the Council's decision. Folsom v. City of Jasper, 279 Ga. 260, 612 S.E.2d 287 (2005).   Section does not create property interest.   - This section does not create the concrete expectation necessary for the creation of a constitutionally protectible property interest because it merely requires the promulgation of standards for the issuance of a malt-beverage license, but does not itself outline standards which, if met, would lead to the issuance of a malt-beverage license. Scoggins v. Moore, 579 F. Supp. 1320 (N.D. Ga.) aff'd, 747 F.2d 1466 (11th Cir. 1984); Top Shelf, Inc. v. Mayor & Aldermen, 840 F. Supp. 903 (S.D. Ga. 1993)see also;.    O.C.G.A. § 3-3-2 does not in itself create a protectable property interest but, once the governing authority promulgates an ordinance which outlines the standards for issuance of a malt-beverage license, applicants possess a protectable property interest. McCollum v. City of Powder Springs, 720 F. Supp. 985 (N.D. Ga. 1989).   Denial of due process in issuance of licenses.   - The failure of the county commission to issue standards as to the issuance of licenses for the sale of malt beverages, coupled with the lack of response to an application to sell malt beverages, while at the same time tacitly issuing licenses to some citizens, constituted a denial of due process and of equal protection under the law. Johnson v. Brown, 584 F. Supp. 510 (M.D. Ga. 1984).   Denial of equal protection in issuance of licenses.   - It was a denial of equal protection for the sheriff and county commissioners to refuse to grant a beer and wine license to a qualified applicant while at the same time conspiring to ignore illegal beer sales by other establishments in the county. Parham v. Hix, 608 F. Supp. 546 (M.D. Ga. 1985).   Refusal to issue any licenses not subject to procedural guidelines.    - Because state law does not grant an applicant a property interest in the opportunity to acquire a liquor license, a county commissioner's failure to establish standards for the granting of a license does not violate the applicant's due process rights. Further, when the commissioner refuses to grant any licenses whatsoever, Georgia law does not require the commissioner to follow the procedural safeguards outlined in O.C.G.A. § 3-3-2 when the commissioner denies a license request. Cheek v. Gooch, 779 F.2d 1507 (11th Cir. 1986).   Express authorization for ordinance.    - Subsection (a) of O.C.G.A. § 3-3-2 constitutes an express authorization by general law for Effingham County to exercise by local ordinance the police power of revoking licenses for the sale of beer and wine, so long as the ordinance meets the requirement of Ga. Const. 1983, Art. III, Sec. VI, Para. IV(a), that it not conflict with general law. Grovenstein v. Effingham County, 262 Ga. 45, 414 S.E.2d 207 (1992).   Effect of county referendum on municipality.    - A municipality which has not conducted a local referendum, but is located within a county which has held a referendum, is not empowered by the result of the county referendum to allow sales of liquor by the drink. Price v. City of Snellville, 253 Ga. 166, 317 S.E.2d 834 (1984).    County ordinance using voting districts and property lines to determine the number and location of licensed stores was reasonably related to the county's goal of regulating the retail sale of beer and wine and did not violate due process. Bradshaw v. Dayton, 270 Ga. 884, 514 S.E.2d 831 (1999).    Decision to revoke a license may precede a hearing. City Council v. Crump, 251 Ga. 594, 308 S.E.2d 180 (1983).    Sale of malt beverages is privilege, and denial of license does not deprive accused of anything to which the accused has absolute right. Collier v. State, 54 Ga. App. 346, 187 S.E. 843 (1936); Ebling v. City of Rome, 54 Ga. App. 608, 188 S.E. 727 (1936); Acree v. Ragsdale, 60 Ga. App. 717, 4 S.E.2d 708 (1939); Lamb v. Fedderwitz, 68 Ga. App. 233, 22 S.E.2d 657 (1942), aff'd, 195 Ga. 691, 25 S.E.2d 414 (1943); Hudon v. North Atlanta, 108 Ga. App. 370, 133 S.E.2d 58 (1963).    Since no right, but mere privilege, is involved, one denied license is not in position to assert denial of a right guaranteed by state or federal constitutions. Kicklighter v. City of Jesup, 219 Ga. 744, 135 S.E.2d 890 (1964).   Due process requirement.    - Determination of whether liquor license should be granted is function of aldermanic board (governing authority) acting under Ga. L. 1937-38, Ex. Sess., p. 103 (see now O.C.G.A. § 3-3-2), and this determination must accord with constitutional standards of due process and equal protection. Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964).   Denial of license when standards met.    - If governing authority of city or county decides to permit sale of malt beverages or beer, it shall adopt an ordinance setting forth prescribed standards for issuance of licenses. When an applicant for a license meets these standards, refusal by governing authority to issue license constitutes denial of equal protection, entitling applicant to writ of mandamus. Tipton v. City of Dudley, 242 Ga. 807, 251 S.E.2d 545 (1979).    For right to sell malt beverages, petitioner must obtain license from governing authority of one's county. Tate v. Seymour, 181 Ga. 801, 184 S.E. 598 (1936).    This section requires local license as condition precedent to issuance of license by state.  Crews v. Undercofler, 371 F.2d 534 (5th Cir. 1967).    Under Georgia law, obtaining a municipal license is a prerequisite to obtaining a state liquor license.  Page v. Jackson, 398 F. Supp. 263 (N.D. Ga. 1975).   Discretion of authorities in granting license.    - This section empowers county authorities to grant licenses, but the power to act is left to the discretion of the local authority, and if the commissioner refuses to grant the license, mandamus will not control the commissioner's discretion; however, where the refusal is arbitrary and contrary to law, mandamus is a remedy. Harbin v. Holcomb, 181 Ga. 800, 184 S.E. 603 (1936).    Mandamus is an available remedy where refusal to authorize sale of malt beverages is arbitrary and illegal. Tate v. Seymour, 181 Ga. 801, 184 S.E. 598 (1936).    No malt beverage business shall be conducted in any incorporated municipality of this state without a license from governing authority of municipality, and governing authority is given discretionary powers as to granting or refusal of licenses. Hudon v. North Atlanta, 108 Ga. App. 370, 133 S.E.2d 58 (1963).    Right to sell malt beverages or beer is subject to determination of governing authorities of city or county; they have the right to prohibit its sale and deny all applicants a license. Tipton v. City of Dudley, 242 Ga. 807, 251 S.E.2d 545 (1979).   Nature of license and power of revocation.    - A license to sell beer in this state is neither a contract nor a right of property within legal and constitutional meaning of those terms. It is no more than temporary permit to do that which would otherwise be unlawful, and forms part of internal police system of this state. Hence, authority which granted license retains power to revoke it for due cause. Ebling v. City of Rome, 54 Ga. 608, 188 S.E. 727 (1936).   County without authority to require county license.    - Glynn County has no authority to require county license for sale of alcoholic beverages on Jekyll Island, since island is owned by state and is governed by Jekyll Island State Park Authority. Glynn County v. Davis, 228 Ga. 588, 186 S.E.2d 872 (1972).   State statutes preempted city's ordinance.    - Conviction and fine against a convenience store operator for violating a city ordinance that prohibited certain retailers of packaged alcoholic beverages from allowing coin operated amusement machines (COAMs) on the same premises was reversed because the state's COAM Laws, O.C.G.A. §§ 16-12-35 and50-27-70 et seq., preempted the city's ordinance at least insofar as the ordinance applied to COAMs as defined by the state statutes. Gebrekidan v. City of Clarkston, 298 Ga. 651, 784 S.E.2d 373 (2016).    Cited in Lanierland Distribs., Inc. v. Strickland, 544 F. Supp. 747 (N.D. Ga. 1982); Bryant v. Mayor, 252 Ga. 76, 311 S.E.2d 174 (1984); Thomas v. Madison County Bd. of Comm'rs, 261 Ga. 265, 404 S.E.2d 271 (1991).   OPINIONS OF THE ATTORNEY GENERAL   Editor's notes.   - In light of the similarity of the statutory provisions, opinions under Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103, are included in the annotations for this Code section. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).   Authority of town to act on applications for sale of alcoholic beverages.   - The Town of Vidette, to the extent that it is a currently authorized municipal corporation, has exclusive jurisdiction to consider applications for licenses to sell alcoholic beverages within its corporate boundaries; however, this should not be construed as implying that the Town of Vidette may actually issue licenses without first following the procedure outlined in the Georgia laws relating to the sale of alcoholic beverages. 1985 Op. Att'y Gen. No. U85-10. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).   Extent of county license requirements.   - Local governments are not empowered to require licensing of wholesalers of alcoholic beverages that take orders for sales and make deliveries of alcoholic beverages within those local governments, but do not have locations or offices within the boundaries of those local governments. 2017 Op. Att'y Gen. No. U17-2. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).    There is no provision for an election to prohibit sale of malt beverages;  discretion as to granting or refusal of licenses is vested in county and municipal authorities. 1945-47 Op. Att'y Gen. p. 394. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).   Referendum regarding sale of no effect.   - Referendum held to determine whether governing authority of county should grant licenses for sale of malt beverages would have no legal effect upon governing authority. 1967 Op. Att'y Gen. No. 67-67. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).    Applicant for liquor store license is required to obtain only one local license  from municipality if within corporate limits and from county if outside any municipality; the applicant would not need to obtain both. 1971 Op. Att'y Gen. No. U71-31. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).    The governing authority of a city has discretionary power to grant or refuse a license to sell malt beverages.  1971 Op. Att'y Gen. No. U71-26. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).    A municipality in the granting of licenses to sell malt beverages may adopt rules and regulations under which malt beverages shall be sold.  1960-61 Op. Att'y Gen. p. 287. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).    A municipality may permit the sale of beer in drug stores where minors visit.  1960-61 Op. Att'y Gen. p. 286. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).    A municipality could refuse to license the sale of malt beverages in places of business selling other merchandise.  1960-61 Op. Att'y Gen. p. 287. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).    A municipality may require a vendor of beer to partition off the section of the establishment where the beer is sold.  1960-61 Op. Att'y Gen. p. 287. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).    It would be illegal for a county to own and operate liquor stores.  1967 Op. Att'y Gen. No. 67-123. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).   RESEARCH REFERENCES   Am. Jur. 2d.   - 45 Am. Jur. 2d, Intoxicating Liquors, §§ 90 et seq., 120 et seq.   C.J.S.   - 48 C.J.S., Intoxicating Liquors, §§ 45 et seq., 63 et seq., 77 et seq., 138 et seq., 158 et seq., 425 et seq.   ALR.    - Civil liability of one who takes out license for sale of intoxicating liquor for benefit of another, 2 A.L.R. 1516.    Power or discretion of local authorities under statute requiring their approval of application for liquor license before issuance of license by state board, or providing for issuance of a local license to one holding license from state board, 132 A.L.R. 1235.    Power to limit the number of intoxicating liquor licenses, 163 A.L.R. 581.    Change in law pending application for permit or license, 169 A.L.R. 584.   Grant or renewal of liquor license as affected by fact that applicant held such license in the past, 2 A.L.R.2d 1239.   Effect of state regulation of liquor sales on municipal power to impose occupation license or tax for revenue, 6 A.L.R.2d 737.   Sale of liquor to homosexuals or permitting their congregation at licensed premises as ground for suspension or revocation of liquor license, 27 A.L.R.3d 1254.   Validity of statute, ordinance, or regulation requiring fingerprints of those engaging in specified occupation, 41 A.L.R.3d 732.   Interplay between Twenty-First Amendment and Commerce Clause concerning state regulation of intoxicating liquors, 116 A.L.R.5th 149.