Grovenstein v. Effingham County, s. S91A1676

• Decision Date: 13 March 1992
• Docket Number: S91A1677,Nos. S91A1676,s. S91A1676
• Citation: 414 S.E.2d 207,262 Ga. 45
• Parties: GROVENSTEIN et al. v. EFFINGHAM COUNTY et al.
• Court: Georgia Supreme Court

Page 207

414 S.E.2d 207

262 Ga. 45

GROVENSTEIN et al. v. EFFINGHAM COUNTY et al.

Nos. S91A1676, S91A1677.

Supreme Court of Georgia.

March 13, 1992.

Roy E. Paul, Frank W. Seiler, Bouhan, Williams & Levy, Savannah, for Grovenstein et al.

Alex R. Zipperer, Zipperer & Lorberbaum, Savannah, for Effingham County et al.

HUNT, Justice.

These appeals raise issues of preemption and statutory interpretation. Appellant Shealy's Auto Parts and Service, Inc. (Shealy's) and its owner, appellant Shealy Grovenstein, held an Effingham County license to sell beer and wine. Appellants were charged with selling beer to a minor in violation of the Ordinance to Regulate the Sale of Beer and Wine in Effingham County, Georgia (the Ordinance), and thereafter the Effingham County Board of Commissioners (the BOC) held a hearing on whether to revoke appellants' license because of the alleged violation. The minor who allegedly had purchased the beer (hereinafter, "the purchaser") was not present at the hearing, and his identity was not known to appellants. A detective for the Sheriff's Department testified that on March 9, 1990, the purchaser bought the beer at the behest of, and in cooperation with, the detective. The detective further testified that he gave the purchaser money to make the buy, and that the detective then saw him enter Shealy's and subsequently emerge with a twelve-pack of beer. According to the detective,

I asked him if he knew who made the sale. He said, no, he didn't kno[w]. It was a lady. I asked him was Shealy present and he said that he was. He said, at first the lady had told him she would not sell it to him and that Shealy gave his okay.

Grovenstein and his employees testified they did not remember selling alcohol to a minor. During the BOC hearing appellants' counsel sought, without success, to learn the identity of the purchaser, and objected, again without success, to the absence of the purchaser from the hearing and to appellants' resulting inability to cross-examine him. At the end of the hearing the BOC voted to revoke appellants' license.

Appellants jointly began two proceedings (a certiorari petition and a combined complaint, appeal, and petition for mandamus) in superior court to challenge the BOC's revocation of their license (hereinafter, the two proceedings filed jointly by appellants will be collectively referred to as "the revocation appeals"). The superior court entered two separate judgments dismissing the revocation appeals, and appellants appealed the dismissals. ¹ Inter alia, appellants contend that the revocation was invalid because the portions of the Ordinance under which the license was revoked are preempted by a general law. They further contend the revocation was invalid due to their lack of an opportunity to cross-examine the purchaser during the hearing. We disagree with appellants' preemption argument, but we find merit in their argument concerning the absence of an opportunity to cross-examine the purchaser, and on that ground we reverse the superior court's dismissals of the revocation appeals.

1. Appellants' license was revoked pursuant to §§ V A. (1) and VII A of the Ordinance. Section V A. (1) provides that

[n]o holder of a license authorizing the sale of malt beverages and/or wine at retail in Effingham County, Georgia, nor any agent or employee of any licensee, shall do any of the following upon the licensed premises:

(1) Sell beer or wine to any person under twenty-one (21) years of age.

Section VII A of the Ordinance says that "[a]ny violation of the provisions hereof shall be grounds for revocation of a license by the issuing body."

Appellants contend these portions of the Ordinance are void under the 1983 Ga. Const., Art. 3, Sec. 6, Para. 4(a), because, appellants argue, the Ordinance is a special law that is preempted by a general law, OCGA § 3-3-23. That Code section provides that

(a) Except as otherwise authorized by law:

(1) No person knowingly, directly or through another person, shall furnish, cause to be furnished, or permit any person in such person's employ to furnish any alcoholic beverage to any person under 21 years of age.

We find no merit in appellants' argument that §§ V A. (1) and VII A are preempted by § 3-3-23, since we find that those Ordinance sections are authorized under Art. 3, Sec. 6, Para. 4(a) and OCGA § 3-3-2(a). Article 3, Sec. 6, Para. 4(a) states that

[l]aws 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. [Emphasis supplied.]

Section 3-3-2(a) says that

(a) Except as otherwise provided for in this title, the manufacturing, distributing, and selling by wholesale or retail of alcoholic beverages shall not be conducted in any county or incorporated municipality of this state without a permit or license from the governing authority of the county or municipality. Each such 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 the permits or licenses. [Emphasis supplied.]

Section 3-3-2(a) constitutes an express authorization by general law for Effingham County to exercise by local ordinance the police power of revoking licenses for the sale of beer and wine, so long as the ordinance meets the requirement of Art. 3, Sec. 6, Para. 4(a), that it not conflict with general law. See Kariuki v. DeKalb County, 253 Ga. 713, 716(3), 324 S.E.2d 450 (1985) (holding that "enactment of local ordinances regarding licenses for the sale of alcoholic beverages clearly is contemplated by general law").

Furthermore, the relevant portions of the Ordinance, §§ V A. (1) and VII A, ² do not conflict with § 3-3-2(a). A special law does not conflict with a general law if it "does not detract from or hinder the operation of the [general] law, but rather it augments and strengthens it." City of Atlanta v. Associated Builders & Contractors of Ga., 240 Ga. 655, 657, 242 S.E.2d 139 (1978). The effect of §§ V A. (1) and VII A is to prohibit sales to minors under more specific circumstances than does § 3-3-23's general prohibition against furnishing alcoholic beverages to minors. In...