Gebrekidan v. City of Clarkston

• Decision Date: 21 March 2016
• Docket Number: No. S15A1442.,S15A1442.
• Citation: 784 S.E.2d 373,298 Ga. 651
• Parties: GEBREKIDAN v. CITY OF CLARKSTON.
• Court: Georgia Supreme Court

298 Ga. 651

784 S.E.2d 373

GEBREKIDAN

v.CITY OF CLARKSTON.

No. S15A1442.

Supreme Court of Georgia.

March 21, 2016.

Paul Oliver, Jonathan David Gaul, Les A. Schneider, Wimberly Lawson Steckel Schneider & Stine, P.C., Atlanta, for appellant.

Stephen Gervaise Quinn, Wilson, Morton & Downs, LLC, Decatur, for appellee.

Rusi Chandrashkhar Patel, Joshua Barrett Belinfante, Robbins Ross Alloy Belinfante

Littlefield LLC, David Jaffer, The Jaffer Law Firm, Atlanta, amici curiae.

NAHMIAS, Justice.

Aster Zeru Gebrekidan filed an application for discretionary appeal to challenge her conviction and fine for violating a City of Clarkston ordinance that prohibits certain retailers of packaged alcoholic beverages from allowing on their premises any form of electronic or mechanical game machine or coin-operated device that may be used for entertainment or amusement purposes. We granted Gebrekidan's application to decide whether the State's detailed statutory scheme regulating coin operated amusement machines (COAMs) and COAM businesses in Georgia, see OCGA §§ 16–12–35 and 50–27–70 to 50–27–104 (COAM Laws), preempts the City's ordinance under the Uniformity Clause of the Georgia Constitution, see Ga. Const. of 1983, Art. III, Sec. VI, Par. IV (a). As explained below, we conclude that the State's COAM Laws preempt the City's ordinance at least insofar as the ordinance applies to COAMs as defined by the state statutes, and we therefore reverse Gebrekidan's conviction and fine.

1. Gebrekidan operates a convenience store in Clarkston where she sells packaged beer, malt beverages, and wine for consumption off-premises and also offers COAMs for play pursuant to a state license granted pursuant to the COAM Laws. Chapter 3 of the City of Clarkston Code of Ordinances (City Code), entitled "Alcoholic Beverages," includes the following provision:

Sec. 3–57.—Machines operated for amusement purposes on retail premises.

No retail dealer in packaged beer, malt beverages or wine shall permit on his premises any slot machines or mechanical music boxes or pinball machines or any form of electronic or mechanical game machine or coin-operated device which might be used for entertainment or amusement purposes.

On June 5, 2014, the City cited Gebrekidan for violating § 3–57 by "[o]perating coin-operated amusement machines in [a] retail store selling packaged beer, malt beverages or wine," and she was ordered to appear in the Municipal Court of Clarkston to answer the charge. Gebrekidan filed a motion to dismiss the citation based on the Uniformity Clause, arguing that the COAM Laws preempt City Code § 3–57. On September 9, 2014, the municipal court held a hearing and announced that it would deny the motion. Gebrekidan requested an immediate bench trial, waived the appearance of witnesses against her, and entered a stipulation with the prosecutor that she "offered coin-operated amusement machines for play and packaged alcohol for sale at the same location ... [and] was licensed by the State of Georgia to operate coin-operated machines." In a written order entered on September 15, 2014, the municipal court found Gebrekidan guilty as charged and fined her $250. On the preemption issue, the court held that City Code § 3–57 "is a fair and reasonable ordinance under the City's police powers that serves an important public interest, it does not conflict with general laws and accordingly, it is not preempted by State law."

Gebrekidan obtained review by certiorari in the Superior Court of DeKalb County, raising only her preemption claim. After a hearing on January 12, 2015, the superior court entered an order affirming Gebrekidan's conviction on February 6, 2015. The court held that § 3–57 is "primarily a regulation of alcohol rather than COAM[s]" due to its placement in the Alcoholic Beverages chapter of the City Code and because it prohibits all types of games and entertainment machines at packaged alcohol stores and not just COAMs as defined by the state law. The court recognized that "[t]he State law regulating COAM [s] is voluminous," but ruled that § 3–57 is "a reasonable exercise of the City's discretionary power to set rules for alcohol sales ... authorized by O.C.G.A. § 3–3–2."¹ The court concluded that "City Code § 3–57 is not a local COAM regulatory system at all and does not duplicate any of the provisions of [the COAM Laws]." Gebrekidan filed a timely application for discretionary appeal, which this Court granted on April 2, 2015. The case was orally argued on September 15, 2015.²

2. State statutes generally control over local ordinances on the same subject. See City of Buford v. Georgia Power Co., 276 Ga. 590, 590, 581 S.E.2d 16 (2003) ; Franklin County v. Fieldale Farms Corp., 270 Ga. 272, 273, 507 S.E.2d 460 (1998). This doctrine, known as state preemption, is rooted primarily in the Georgia Constitution's Uniformity Clause, which now reads:

Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law, except that the General Assembly may by general law authorize local governments by local ordinance or resolution to exercise police powers which do not conflict with general laws.

Ga. Const. of 1983, Art. III, Sec. VI, Par. IV (a). See generally Fieldale Farms, 270 Ga. at 273–275, 507 S.E.2d 460 (reviewing the historical development of the state preemption doctrine in Georgia).³

Under the first part of the Uniformity Clause, which carried forward language similar to that of previous Constitutions, the General Assembly may preempt local ordinances on the same subject as a general law either expressly or by implication. See Fieldale Farms,

270 Ga. at 275, 507 S.E.2d 460. In express preemption, the statutory text speaks to the need for statewide uniformity on the subject in question or to the lack of local authority to regulate the subject of the general law.⁴ In implied preemption, the intent of the General Assembly to preempt local regulation on the same subject as the general law is inferred from the comprehensive nature of the statutory scheme.⁵ In this context, the General Assembly speaks through its silence as well as its words; the broad scope and reticulated nature of the statutory scheme indicate that the legislature meant not only to preclude local regulation of the various particular matters to which the general law directly speaks, but also to leave unregulated by local law the matters left unregulated in the interstices of the general law.

The 1983 Constitution added an exception to the basic preemption rule with the "except" provision of the Uniformity Clause. See Fieldale Farms, 270 Ga. at 274–275, 507 S.E.2d 460. Converse to express preemption, where the statute says that a subject addressed by a general law is not appropriate for local regulation, the "except" provision permits the General Assembly "by general law [to] authorize local governments by local ordinance or resolution to exercise police powers" on a subject provided for by general laws. Sometimes the general law will clearly give the local government the authority to enact the ordinance at issue. See, e.g., Old South Duck Tours v. Mayor and Aldermen of City of Savannah, 272 Ga. 869, 871, 535 S.E.2d 751 (2000). Where a comprehensive general law authorizes local regulation only on particular matters, however, local ordinances that regulate matters outside the scope of that specific authorization do not come under the "except" provision and remain impliedly preempted. See S.W.A.N. Consulting, 274 Ga. at 279, 553 S.E.2d 594 ("By expressly authorizing additional local regulation of the private detective and security business in [the] limited instance [of street patrol service], the [comprehensive general law] impliedly preempts the City's regulation of [private security] services in its adult entertainment establishments."); Fieldale Farms, 270 Ga. at 277, 507 S.E.2d 460 ("By explicitly granting this narrow power to local governments [to assess reasonable monitoring fees and to seek an injunction if the fees were not paid], the statute by implication precludes counties from exercising broader powers.").

There is also a significant limitation on the General Assembly's power to authorize local regulation under the "except" provision of the Uniformity Clause: the local ordinance still cannot "conflict with general laws." See Fieldale Farms, 270 Ga. at 275, 507 S.E.2d 460 ("The [Uniformity Clause's] second provision provides for an exception to the general rule of preemption when general law authorizes the local government to act and the local ordinance does not conflict with general law." (emphasis added)). See also Pawnmart, Inc. v. Gwinnett County, 279 Ga. 19, 20, 608 S.E.2d 639 (2005) ("[T]he Ordinance, because it also regulates Georgia's pawnbrokers, is preempted unless it is (1) authorized by general laws, and (2) does not conflict with them."). Such a conflict obviously exists where a local ordinance directly contradicts a general law in relevant part, see, e.g., Hill v. Tschannen, 264 Ga.App. 288, 290–291, 590 S.E.2d 133 (2003) (physical precedent only), but it also may arise where the local ordinance impairs or detracts from the general law's operation, rather than augmenting and strengthening it. See Fieldale Farms, 270 Ga. at 275, 507 S.E.2d 460. See also Willis v. City of Atlanta, 285 Ga. 775, 777, 684 S.E.2d 271 (2009) ; Rabun County v. Georgia Transmission Corp., 276 Ga. 81, 87, 575 S.E.2d 474 (2003). Compare Grovenstein v. Effingham County, 262 Ga. 45, 46–47, 414 S.E.2d 207 (1992) (finding no conflict where a state statute prohibiting the furnishing of alcohol to persons under age 21 was augmented by the local ordinance at issue, which prohibited the same conduct under more specific circumstances by banning retail beer and wine licensees from selling to persons under age 21 and providing for revocation of their licenses for...