2020 Georgia Code
Title 10 - Commerce and Trade
Chapter 1 - Selling and Other Trade Practices
Article 9 - Gasoline Marketing Practices
§ 10-1-234. Selling Controlled Product to Another Distributor for Retail Sale; Selling to Other Dealers at Distress Prices
It shall be an unlawful predatory and unfair business practice for an automotive gasoline distributor who controls a product supply, controls the price of that product and has the power to require the purchase of that product by another automotive gasoline distributor or an automotive gasoline dealer doing business in this state to sell said product at prevailing automotive gasoline distributor prices at any time to another automotive gasoline distributor for resale to automotive gasoline dealers with the purpose or intent that said product will be sold at retail by said automotive gasoline distributor and fails to offer its automotive gasoline dealers an opportunity to purchase an equal volume of product upon the same terms and conditions, excepting expenses for advertising, credit cards, and other expenses relative to its automotive gasoline dealers, when said automotive gasoline distributor is selling said product at distress prices to other automotive gasoline dealers in the dealer's marketing area. As used in this Code section, the term "distress prices" shall not be construed to include or embrace a price established for the purpose of meeting competition.
(Ga. L. 1978, p. 2249, § 6; Ga. L. 1984, p. 1679, § 1; Ga. L. 2017, p. 774, § 10/HB 323.)
The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation in the first sentence of this Code section.
Editor's notes.- Ga. L. 1984, p. 1679, § 2, not codified by the General Assembly, provided that that Act "shall not apply to or be deemed to affect any cause of action pending" on the effective date of the Act (April 6, 1984).
Law reviews.- For annual survey of law of business associations, see 38 Mercer L. Rev. 57 (1986).
JUDICIAL DECISIONS
This section not void for vagueness.
- Parties are sufficiently apprised of proscribed conduct under this section so as not to be deprived of due process of law by its application, so this section is not void for vagueness. Exxon Corp. v. Georgia Ass'n of Petro. Retailers, 484 F. Supp. 1008 (N.D. Ga. 1979), aff'd sub nom. Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430, 70 L. Ed. 2d 239 (1981).
O.C.G.A. § 10-1-234 is, while most assuredly not a model of clarity, at least amenable to some sensible construction; thus, it is constitutional because it does alert parties to character of proscribed conduct and does amount to something more than no rule at all. Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430, 70 L. Ed. 2d 239 (1981).
O.C.G.A. § 10-1-234 violates the due process clause of Ga. Const. 1983, Art. I, Sec. I, Para. I, in that the statute seeks to regulate a business not affected with a public interest. Batton-Jackson Oil Co. v. Reeves, 255 Ga. 480, 340 S.E.2d 16 (1986).
Constitutional evaluation.
- While the void-for-vagueness doctrine is most rigorously applied in the context of penal statutes and in the area of First Amendment rights, the United States Supreme Court has recognized that vague laws in any area suffer a constitutional infirmity; thus, O.C.G.A. § 10-1-234 may not escape scrutiny simply because the statute is a commercial regulatory statute. But, because this statute is not concerned with either the First Amendment or the definition of criminal conduct a court must be lenient in evaluating the statute's constitutionality. Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430, 70 L. Ed. 2d 239 (1981).
Standard for evaluating constitutionality of nonpenal, commercial regulatory statutes.
- Because O.C.G.A. § 10-1-234 is a nonpenal, commercial regulatory statute, the standard for evaluating the statute's constitutionality is whether the statute is so indefinite as to amount to no rule or standard at all. Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430, 70 L. Ed. 2d 239 (1981).
Section must be substantially incomprehensible to be unconstitutional.
- For O.C.G.A. § 10-1-234 to constitute a deprivation of due process, the statute must be so vague and indefinite as really to be no rule or standard at all, that is, uncertainty in the statute is not enough for the statute to be unconstitutionally vague; rather, the statute must be substantially incomprehensible. Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430, 70 L. Ed. 2d 239 (1981).
Section does not conflict with federal Emergency Petroleum Allocation Act, as amended, 15 U.S.C. § 751 et seq. Exxon Corp. v. Georgia Ass'n of Petro. Retailers, 484 F. Supp. 1008 (N.D. Ga. 1979), aff'd sub nom. Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430, 70 L. Ed. 2d 239 (1981).
Section does not conflict with Sherman Act.
- There presently exists no conflict with the Sherman Act, 15 U.S.C. §§ 1-7, sufficient to invalidate this section. Exxon Corp. v. Georgia Ass'n of Petro. Retailers, 484 F. Supp. 1008 (N.D. Ga. 1979), aff'd sub nom. Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430, 70 L. Ed. 2d 239 (1981).
