Consol. Gov't of Columbus v. P&J Beverage Corp., A17A1903
Decision Date | 08 February 2018 |
Docket Number | A17A1903,A17A1905 |
Court | Georgia Court of Appeals |
Parties | CONSOLIDATED GOVERNMENT OF COLUMBUS, GEORGIA, et al. v. P&J BEVERAGE CORPORATION. and The Bottle Shop, LLC v. P&J Beverage Corporation. |
Page, Scrantom, Sprouse, Tucker & Ford, James C. Clark, Jr., Alan G. Snipes, Tyler C. Cashbaugh ; Clifton C. Fay, Lucy T. Sheftall, for appellants (case no. A17A1903).
Robert R. Lomax ; The Finley Firm, Travis C. Hargrove, for appellant (case no. A17A1905).
Philips Branch & Hodges, Stephen J. Hodges, for appellee.
Columbus and The Bottle Shop appeal the trial court’s order. For the reasons discussed below, we reverse.
P&J, having learned that The Bottle Shop applied for an alcoholic beverage license on April 24, 2016, filed the underlying suit. P&J alleges that the location for which The Bottle Shop sought the license, 101 Southern Way, Columbus, Georgia, was within 600 feet of The Growing Room, Inc.,2 which P&J claimed was a school, and therefore asserts that the issuance of an alcoholic beverage license would violate Columbus, GA Code of Ordinances § 3-5 (c).3 P&J initially filed the suit without notice to The Bottle Shop, but The Bottle Shop filed a motion to intervene, which was granted.
While P&J’s action was pending, on September 9, 2016, The Bottle Shop received an alcoholic beverage license to operate a liquor store at 101 Southern Way, Columbus, Georgia. On October 4, 2016, P&J filed its second amended complaint claiming that it "will suffer a special injury by the opening of [The Bottle Shop] by virtue of competition from another alcohol retailer opening at about the same time, and going after the same demographic, and having obtained its license in violation of local and state law." The Bottle Shop opened for business in November 2016. Thereafter, the parties filed their motions for summary judgment. Columbus and The Bottle Shop filed separate motions for summary judgment alleging, amongst other things, that P&J cannot satisfy the requirements necessary to obtain mandamus relief and that The Growing Room was not a school.
Columbus and The Bottle Shop both assert, in multiple enumerated errors, that the trial court erred by granting P&J’s motion for summary judgment and in denying the defendants’ motions for summary judgment.
In reviewing the merits of a trial court’s decision on a motion for summary judgment, [this Court] conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.
SJN Properties, LLC v. Fulton County Bd. of Assessors, 296 Ga. 793, 796-797 (2), 770 S.E.2d 832 (2015) (citation and footnote omitted).
1. McConnell v. Dept. of Labor , 302 Ga. 18, 18-19, 805 S.E.2d 79 (2017) (citation, punctuation and footnote omitted).4 "[H]owever, sovereign immunity is no bar to petitions for writs of mandamus." Ga. Associationof Professional Process Servers v. Jackson , 302 Ga. 309, 312 (2), 806 S.E.2d 550 (2017) (citation and punctuation omitted). "Our mandamus statute [ OCGA § 9-6-20 ] expressly authorizes claimants to seek relief against a public official ‘whenever ... a defect of legal justice would ensue from [the official’s] failure to perform or from improper performance’ of ‘official duties.’ " SJN Properties, LLC, supra at 799 (2) (b) (ii), 770 S.E.2d 832 (citation omitted). We therefore consider whether the trial court erred in granting summary judgment on the merits with respect to P&J’s mandamus claim.
Ga. Association of Professional Process Servers , supra at 312-313 (2), 806 S.E.2d 550 (citations and punctuation omitted). "And the burden is upon the party seeking mandamus to show the existence of such a duty." Forsyth County v. White , 272 Ga. 619, 620 (2), 532 S.E.2d 392 (2000). In this case, the burden was upon P&J to show that Columbus had a clear legal duty to deny or revoke The Bottle Shop’s alcoholic beverage license. See id. Setting aside the issue of whether another adequate legal remedy is available here,5 we conclude, as explained below, that P&J has failed to meet its burden of showing it has a clear legal right to the relief sought.
OCGA § 3-3-2 (a) pertinently provides: "Each ... 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 ... [alcoholic beverage] permits or licenses[.]" The Columbus, GA Code of Ordinances regulates the application and approval procedure for obtaining an alcoholic beverage license, stating that "[t]he director of finance shall either approve or disapprove all applications for alcoholic beverage licenses ..." and that "[n]o alcoholic beverage [license] shall be issued until the issuing authority is satisfied that the business is in compliance with [the Alcoholic Beverages Chapter] of the Code." Columbus, GA Code of Ordinances §§ 3-8 (a), 3-20 (b). The Columbus, GA Code of Ordinances also provides a procedure by which an alcoholic beverage license may be revoked if "a majority of the council so decides at the time of or subsequent to the hearing on the recommendation for revocation." Columbus, GA Code of Ordinances § 3-11 (b) (4).
Where the act required by law to be done involves the exercise of some degree of official discretion and judgment upon the part of the officer charged with its performance, the writ of mandamus may properly command [the officer] to act, or, as is otherwise expressed, may set [the officer] in motion; it will not further control or interfere with [the officer’s] action, nor will it direct [the officer] to act in any specific manner.
Ga. Association of Professional Process Servers , supra at 313 (2), 806 S.E.2d 550 (citation and punctuation omitted). "Mandamus can be used to compel an official to exercise his or her discretion, but not to direct the manner in which that discretion is exercised." Bland Farms, LLC v. Ga. Dept. of Agriculture , 281 Ga. 192, 193, 637 S.E.2d 37 (2006) (citation omitted). Columbus exercised its discretion, pursuant to OCGA § 3-3-2 (a), and empowered its director of finance to "either approve or disapprove" an application to obtain an alcohol license, and to ensure that the director of finance is "satisfied" with an applicant’s compliance with the Alcoholic...
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