Davis v. City of Peachtree City, 39605

• Decision Date: 07 July 1983
• Docket Number: No. 39605,39605
• Parties: DAVIS v. CITY OF PEACHTREE CITY.
• Court: Georgia Supreme Court

Page 701

304 S.E.2d 701

251 Ga. 219

DAVIS v. CITY OF PEACHTREE CITY.

No. 39605.

Supreme Court of Georgia.

July 7, 1983.

Griffin E. Howell, III, Carlisle & Newton, P.C., Griffin, for Melvin T. davis.

Asa M. Powell, Jr., Newnan, for City of Peachtree City.

BELL, Justice.

This appeal arises out of a conviction of Melvin Davis, the appellant, for the offenses of the sale of alcoholic beverages to a minor and the sale of alcoholic beverages on a Sunday.

Davis is a resident of Bibb County, Georgia. He is president of Kwickie Food Stores, a chain of approximately one hundred convenience food stores, and holds a retail wine license for a Kwickie store in Peachtree City. On Sunday, August 16, 1981, Jim Renew, an employee of that store, sold wine to a minor. It is undisputed that Davis had no knowledge of and did not authorize this sale.

As a result of the sale by Renew, Davis was charged with the sale of alcoholic beverages to a minor pursuant to § 3-60(a)(1) of the Code of Ordinances of Peachtree City and with the sale of wine on a Sunday pursuant to § 3-60(d) of the same code. Peachtree City contended that these code sections were applicable to Davis under § 3-87 of the City's Code, which provides that "The licensee is responsible for the conduct or actions of his employees while in his employment."

Davis was convicted of these crimes in the Municipal Court of Peachtree City, fined $200.00, and given 60 days in jail, with the confinement to be suspended upon the payment of the fine so long as Davis does not "again violate the laws of Georgia." His conviction was affirmed on certiorari to the Superior Court of Fayette County. We granted Davis' application for appeal, and he raises several constitutional challenges to the above code sections.

1. Davis first argues that these ordinances violate the due process clauses of the Georgia and United States Constitutions because they provide for the automatic criminal liability of a licensee for actions of his employees which are taken without his knowledge, consent, or authorization and which are not the result of negligence attributable to him. We agree.

This conclusion is based on a substantive due process analysis which considers both the interest of the public and the individual and whether, considering the legitimate public interests involved, there are other, less onerous means by which the public interests might be protected. Holdridge v. United States, 282 F.2d 302(9)(10) (8th Cir.1960); Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825, 828-830 (Penn.1959); LaFave & Scott, Handbook on Criminal Law, § 20 (1972); Sayre, Criminal Responsibility for Acts of Another, 43 Harvard L.Rev. 689, 716-723 (1930). In the instant case, the ordinances in question regulate the use and sale of intoxicating beverages. Specifically, the ordinances impose vicarious criminal liability on a licensee for the acts of the licensee's employees taken during the course of their employment. ¹ This means that a licensee, as Davis has been in this case, may be subject to criminal liability for acts not committed by him, not accomplished at his direction, not aided by his participation, and not done with his knowledge. In familiar criminal law language, Davis had no actus reus or mens rea; his criminal liability arose under the doctrine of respondeat superior. Sayre, supra, pp. 716-722; Koczwara, supra, 155 A.2d pp. 828-830.

It is clear that the use and sale of intoxicating beverages is an area the state has a legitimate interest in controlling. One purpose of ordinances regulating such activity is to encourage licensees who embark upon the enterprise of selling intoxicating beverages to assume a high degree of responsibility in regulating their business. It encourages them not only to regulate their actions in a manner consistent with the laws subject to which they received their permit, but also to exercise due care in hiring individuals to whom they entrust the sale of alcoholic beverages, and to exercise sufficient control over their employees to assure their compliance with the applicable laws. ² Sayre, supra, pp. 710-722; Koczwara, supra, 155 A.2d pp. 828-830. In other words, the objective of the use of vicarious criminal liability in such cases is one of deterrence. "To hold the master liable if he fails to prevent his servant from committing the prohibited conduct will have a powerful deterrent effect." Sayre, supra, p. 722. In fact, other related objectives, such as reform or rehabilitation, are inapplicable to vicarious liability cases because the licensee's own conduct has measured up to social standards in that the licensee has in no way injured or menaced any social interest or engaged in any anti-social activity. Sayre, supra, pp. 717, 722.

In addition, governing authorities and prosecuting officials have an interest in imposing vicarious liability because it facilitates the enforcement of legal requirements by dispensing with the sometimes difficult task of proving knowledge or authorization on the part of the employer. LaFave & Scott, supra, p. 228, Sayre, supra, p. 722.

In opposition to these interests of the public are...