Levendis v. Cobb County

• Decision Date: 22 November 1978
• Docket Number: No. 33938,33938
• Parties: LEVENDIS v. COBB COUNTY et al.
• Court: Georgia Supreme Court

Page 460

250 S.E.2d 460

242 Ga. 592

LEVENDIS v. COBB COUNTY et al.

No. 33938.

Supreme Court of Georgia.

Submitted Aug. 18, 1978.

Decided Nov. 22, 1978.

J. Timothy Lawler, Atlanta, for appellant.

Jimmy W. Jones, G. Grant Brantley, Marietta, for appellees.

JORDAN, Justice.

Appellant's application for a beer, wine and liquor license was denied. He then filed a petition for mandamus and declaratory judgment seeking to declare portions of Cobb County's licensing ordinances unconstitutional, or, in the alternative, finding that they were applied arbitrarily and capriciously in his case, and ordering that the Board of Commissioners issue him the requested license. After a hearing, the trial court held that the Board of Commissioners had exercised discretion given them under a valid ordinance.

1. On appeal to this court, appellant first argues that Section 3-4-35(1) of the Cobb County ordinances is so vague and overbroad as to set no guidelines for its application, and is, therefore, unconstitutional. Section 3-4-35(1) provides in pertinent part:

"The Board of Commissioners may in its discretion, issue or deny any license . . . where there is evidence that, even though there is compliance with the minimum distances from schools and churches, the type and number of schools or number of churches in the vicinity causes minors to frequent the immediate area."

Relying heavily upon the decision in Atlanta Bowling Center v. Allen, 389 F.2d 713 (5th Cir. 1969), the trial court held in its conclusions of law that a statute is not violative of equal protection or due process simply because it provides for the exercise of discretion by the local governing body if that discretion is controlled by standards in the ordinance. By comparing the Cobb County ordinance with the ordinances reviewed in Atlanta Bowling Center v. Allen, supra, the trial court found that the ordinance in question provided sufficient objective standards to control the discretion of the governing authority and sufficient notice to applicants of the criteria reviewed before issuance of a license.

Appellant argues that a contrary holding in this case was demanded by the recent decisions of this court in City of Atlanta v. Hill, 238 Ga. 413, 233 S.E.2d 193 (1973), and Bozik v. Cobb County, 240 Ga. 537, 242 S.E.2d 48 (1978). In City of Atlanta, supra, we held that the refusal by a municipality to grant an alcoholic beverage license to an applicant who meets the requirements of the city's ordinances is subject to the writ of mandamus. Bozik, supra, which reviewed other sections of Cobb County's license ordinances, held that a local governing authority could not delegate its discretionary authority to determine whether an applicant was entitled to a license under the rules and regulations in the ordinances. While these decisions generally stand for the proposition that ordinances resulting in the arbitrary denial of license applications are not to be considered constitutional, neither City of Atlanta, supra, nor Bozik, supra, should be interpreted as removing all discretion from local governing authorities in the issuance of retail liquor licenses.

A state has broad power under the Twenty-First Amendment to specify times, places and circumstances where liquor may be sold. California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972). Constitutional...