Cobb County Health Dept. v. Henson, 25960

• Decision Date: 08 October 1970
• Docket Number: No. 25960,25960
• Citation: 177 S.E.2d 710,226 Ga. 801
• Parties: COBB COUNTY HEALTH DEPARTMENT v. Fred HENSON.
• Court: Georgia Supreme Court

Page 710

177 S.E.2d 710

226 Ga. 801

COBB COUNTY HEALTH DEPARTMENT v. Fred HENSON.

No. 25960.

Supreme Court of Georgia.

Oct. 8, 1970.

Rehearing Denied Oct. 22, 1970.

Syllabus by the Court

The denial of the Cobb County Health Department's prayer for injunction against the operation of a motel without a permit, was error.

The Cobb County Health Department filed a complaint in Cobb Superior Court, pursuant to the provisions of Ga.Code Ann. § 88-302 (Ga.L.1964, pp. 499, 519), to enjoin the appellee's operation on his premises of a restaurant, which was alleged to be in violation of certain county health laws and regulations relating to sanitation, and a motel, for which no permit had been obtained. The defendant filed an answer to the complaint and, after a hearing, the trial court granted an injunction as to the operation of the restaurant (for which, he found, a health permit had previously been issued, but was subsequently revoked following an administrative hearing), but denied one as to the operation of the motel (for which, he found, an application had been filed, but no administrative hearing held thereon). The county health department appealed from that portion of the court's judgment which denied the injunction of the operation of the motel.

Edwards, Bentley, Awtrey & Parker, Marietta, for appellant.

Berl Tate, Marietta, for appellee.

FELTON, Justice.

Code Ann. § 88-1101 (Ga.L.1964, pp. 499, 561) defines 'tourist court' as including 'motels * * * and any food, beverage, * * * or other facilities or establishments operated in conjunction therewith,' and § 88-1008 makes the operation of a tourist court (e.g., a motel and a restaurant operated in conjunction therewith) without a (single) valid permit, as required by § 88-1102 (Ga.L.1964, pp. 499, 562), a misdemeanor, which may be enjoined under the provisions of § 88-302. In the absence of any statutory provision for the operation of the motel (whether it was operated alone or conjunctively with the restaurant) while an application for a permit for its operation is pending, such unlawful operation is subject to the injunction sought under the provisions of § 88-302.

Appellee's remedy for a wrongful withholding of a permit is by means of appeals, as provided by § 88-305 (Ga.L.1964, pp. 499, 520); hence, this contended defense could not be raised for the first time as a defense to the injunction proceedings in an answer thereto, as was here attempted. Although the answer as amended also...