CONSOLIDATED GOVERNMENT v. Barwick

• Decision Date: 25 June 2001
• Docket Number: No. S01A0564, No. S01A0565.
• Citation: 549 S.E.2d 73,274 Ga. 176
• Court: Georgia Supreme Court
• Parties: CONSOLIDATED GOVERNMENT OF COLUMBUS v. BARWICK (Two cases).

549 S.E.2d 73

274 Ga. 176

CONSOLIDATED GOVERNMENT OF COLUMBUS v. BARWICK (Two cases).

Nos. S01A0564, S01A0565.

Supreme Court of Georgia.

June 25, 2001.

Reconsideration Denied July 27, 2001.

Eugene H. Polleys, Jr., for appellant.

William J. Mason, Columbus, for appellee.

HUNSTEIN, Justice.

We granted the applications for discretionary appeal in this alcoholic beverage ordinance case brought by appellant, Consolidated Government of Columbus/City of Columbus, to determine whether the issues presented for review come within the ambit of the discretionary appeal procedures of OCGA § 5-6-35 and to review the ruling by the superior court that the ordinance is unconstitutional. We conclude that these cases are subject to the discretionary appeal process. In addition, finding no merit to the constitutional rulings, we reverse the superior court.

In 1998 appellee Matt Barwick, d/b/a Red Riders Restaurant, qualified as a restaurant under City ordinance section 3-1(f)¹ and acquired a conditional alcoholic beverage license. Appellee successfully renewed the license in 1999. However, in January 2000, the City rejected appellee's application for another renewal of the alcoholic beverage license because appellee was situated within 600 feet of a location already holding a valid on-premises alcohol license, see city code section 3-5(d)², and a city financial audit had demonstrated that appellee failed to meet the food/alcohol sales criteria set forth in section 3-1(f). A show cause hearing was held before the Columbus City Council on February 8, 2000 at which time appellee, represented by counsel, appeared to oppose the denial of the renewal of the alcoholic beverage license. After hearing evidence presented by both sides, the city council unanimously voted to deny the license basing its decision on evidence that appellee did not meet the ordinance's definition of a restaurant.

Claiming irreparable harm if not allowed to sell alcohol, in February 2000 appellee filed a petition for certiorari to the superior court challenging the city council's decision and seeking a temporary and permanent injunction preventing the City from enforcing its decision not to reissue the alcoholic beverage license. At the same time, appellee filed a complaint seeking mandamus, a temporary restraining order and declaratory relief seeking reversal of the City's decision and challenging on equal protection grounds the constitutionality of the distance requirement in the City's ordinance because of the exemption granted to establishments in the Riverfront District of the City of Columbus (CRD).³ The trial court conducted a consolidated hearing, and entered two orders, which although similar in content afford different forms of relief. In Case No. S01A0564 the trial court declared section 3-5(d) unconstitutional because similarly situated businesses located in the CRD are exempt from the distance requirement. In Case No. S01A0565 the court denied mandamus relief, but ruled section 3-1(f) unconstitutional as applied and issued a temporary restraining order prohibiting enforcement of the ordinance for ninety (90) days.⁴

1. In appealing to this Court from the superior court's orders, the City filed both direct appeals and applications for discretionary appeal. We granted the applications to consider, inter alia, whether the issues presented for review come within the ambit of the discretionary appeal procedures of OCGA § 5-6-35. We find that because both the petition for certiorari and petition for mandamus filed by appellee in the superior court sought review of the City's decision not to renew the alcoholic beverage license and the superior court, in ruling on such petitions, reviewed the decision of a local administrative agency, an application for discretionary appeal was required in each appeal. See OCGA § 5-6-35(a)(1); Sprayberry v. Dougherty County, 273 Ga. 503(1), 543 S.E.2d 29 (2001); King v. City of Bainbridge, 272 Ga. 427(1), 531 S.E.2d 350 (2000). The City having filed the required applications to appeal and this Court having granted the same, the issues raised therein are properly before us.

2. The City contends it had the authority to enact section 3-5(d) requiring a distance of 600 feet between establishments that operate as bars. A city council in the exercise of its police power may formulate rules and regulations for the licensing of the liquor business, even to the extent of prohibiting the licensed activity in a specified area. See Powell v. Board of Commrs., 234 Ga. 183, 214 S.E.2d 905 (1975) (prohibiting issuance of beer license within 1,700 feet of a church). Accordingly, the distance requirement contained in section 3-5(d) which seeks to regulate the congestion of bars in the city is constitutional.

3. The City further contends that the trial court erred in finding that the city ordinance which distinguished between licensed alcohol outlets located in the CRD and licensed alcohol outlets located elsewhere in the city violated equal protection in that it excepts establishments located in the CRD from its provisions. Since appellee is not a member of a suspect class and operating a business which sells alcoholic beverages is not a fundamental right, we apply the "rational basis test" to determine if the favored classification creating the CRD exception violates equal protection. See Love v. Whirlpool Corp., 264 Ga. 701(1), 449 S.E.2d 602 (1994); Craven v. Lowndes County Hosp. Auth., 263 Ga. 657, 659(1), 437 S.E.2d 308 (1993) (under this test, the court will uphold the legislation if...