Burton v. Campbell

• Decision Date: 22 February 1999
• Docket Number: No. S99A0085.,S99A0085.
• Citation: 512 S.E.2d 889,270 Ga. 564
• Parties: BURTON v. CAMPBELL, et al.
• Court: Georgia Supreme Court

512 S.E.2d 889

270 Ga. 564

BURTON v. CAMPBELL, et al.

No. S99A0085.

Supreme Court of Georgia.

February 22, 1999.

John G. Valente, Kenneth A. Tapscott, Valente & Strauss, Atlanta, for Damon T. Burton.

Lisa Steinmetz Morchower, William J. Monahan, Clifford E. Hardwick IV, Atlanta, for Bill Campbell et al.

CARLEY, Justice.

Damon Burton purchased a store which was licensed by the City of Atlanta to sell beer and wine, but not distilled spirits. Burton subsequently applied to the City for renewal of the license to sell beer and wine and for issuance of a license authorizing him to sell distilled spirits. The City Code specified that premises where alcohol was sold must be located a minimum distance from churches, schools and private residences. Burton's store did not meet these distance requirements. In applying for the two licenses, however, he relied upon § 10-113 of the City Code which provides that the distance requirements would not be enforced against an "applicant for a new liquor license who has acquired a previously licensed liquor location...." When the Mayor denied both applications, Burton filed a mandamus action to compel issuance of the licenses. The trial court held that Burton was entitled to the beer and wine license, but not the distilled spirits license. From the order granting him only partial mandamus relief, Burton brings this appeal.

The relevant provision of the City Code is a "saving" or "grandfather" clause, whereby the owner of a location covered by a previously issued license is permitted to obtain another license to sell alcohol notwithstanding the distance requirements. See Lane v. City of Atlanta, 267 Ga. 843, 483 S.E.2d 575 (1997); King v. Putnam County Bd. of Commissioners, 266 Ga. 208, 467 S.E.2d 509 (1996); Gouge v. City of Snellville, 249 Ga. 91, 95(4), 287 S.E.2d 539 (1982). Because it creates an exception to enforcement of the general distance requirements, the clause must be strictly construed. Dalton Brick & Tile Co. v. Huiet, 102 Ga.App. 221, 224(2), 115 S.E.2d 748 (1960). Any question as to what is included within its operation must "be resolved in favor of the general provision and not the exception. [Cit.]" State v. Hasty, 158 Ga.App. 464, 466, 280 S.E.2d 873 (1981). The usual function of such a clause "is not to create anything, but to preserve something from immediate interference...." 82 CJS, Statute § 383, p. 895. Thus, the provision serves to afford Burton no greater rights than those held by his predecessor in interest through whom he claims the benefit of the exemption. It is undisputed that the previous owner of Burton's store was licensed to sell only beer and wine. It follows that Burton is entitled to an exemption from the distance requirements only as to his eligibility...