2021 Georgia Code
Title 3 - Alcoholic Beverages
Chapter 10 - Sale or Possession of Distilled Spirits in Dry Counties and Municipalities
§ 3-10-8. Common Nuisances - Defined; Institution of Quo Warranto Proceedings Against Clubs or Associations Maintaining Nuisances

1. The following are declared to be common nuisances and may be abated or enjoined as such upon complaint of the Attorney General, or the district attorney of the superior court, or any citizen of the county where the common nuisance is located:
   1. Any place used for the unlawful manufacture, sale, barter, keeping for sale, or other unlawful disposition of distilled spirits;
   2. Any place where distilled spirits are sold, bartered, kept for sale, or otherwise disposed of, for consumption on or near the premises;
   3. Any resort or public eating place where distilled spirits are sold, served, or consumed; and
   4. Any club or other place in which distilled spirits are received or kept for the purpose of sale, barter, use, storage, gift, consumption, or for distribution or division among, or to be furnished to, the membership of any club or association of persons.
2. Any club or association of persons chartered or incorporated under the laws of this state, which club or association violates any provision of this Code section or maintains or keeps any place as described in this Code section shall forfeit its charter. The forfeiture may be declared by proceedings in quo warranto against the club or incorporated association in a court of competent jurisdiction in the county where the unlawful act is committed.

(Ga. L. 1915, Ex. Sess., p. 77, §§ 4, 9; Code 1933, §§ 58-104, 58-109; Code 1933, § 5A-7106, enacted by Ga. L. 1980, p. 1573, § 1.)

- Abatement of nuisances generally, T. 41, C. 2.

This section is not in force within the limits of a wet county. Wood v. City of Atlanta, 93 Ga. App. 578, 92 S.E.2d 263 (1956).

- Any structure used for unlawful manufacture, sale, keeping for sale, or other unlawful disposition of liquor, and all shops, houses, and places where liquor is sold or kept for sale, are common nuisances and may be abated as such upon complaint of the solicitor-general of the circuit (now district attorney of superior court). Lokey v. Davis, 194 Ga. 175, 21 S.E.2d 69 (1942).

- It is not the act of possessing liquor or selling liquor that this section declares to be a common nuisance, but it is the structure maintained and used for the purpose of keeping or selling intoxicating liquors therein that is declared to be a common nuisance. Lokey v. Davis, 194 Ga. 175, 21 S.E.2d 69 (1942) Gibbs v. Wyatt, 201 Ga. 344, 39 S.E.2d 752 (1946) ; Norris v. State ex rel. Willingham, 204 Ga. 441, 50 S.E.2d 22 (1948).

- A building or structure in which are kept distilled spirits for purpose of sale or other illegal disposition is a common nuisance and may be enjoined or abated under former Code 1933, § 58-104 (see now O.C.G.A. § 3-10-9). Ogletree v. Atkinson, 195 Ga. 32, 22 S.E.2d 783 (1942) ; Davis v. Stark, 198 Ga. 223, 31 S.E.2d 592 (1944).

- While one isolated act of selling a pint of whiskey in a structure, absent any evidence or circumstances to indicate that structure was being used for purpose of illegally selling whiskey, would be insufficient to authorize grant of interlocutory injunction, where there is positive, uncontradicted testimony that there was one actual sale of liquor within premises described, and that employee testified that the employee would not sell liquor on one occasion because the employee did not know the person seeking to buy and that conditions prevailing at the time made it dangerous, judge was authorized to find that premises were being used continually for purpose of keeping and selling whiskey. Lokey v. Davis, 194 Ga. 175, 21 S.E.2d 69 (1942).

- Evidence that business has numerous trap doors, secret passages, tunnels, numerous cottages which are also used for drinking purposes; that owner sells beer and wine in dry county without license from governing authorities, has no license to carry on place of amusement, and secretly sells large quantities of assorted liquors, whiskey, rum, gin, and brandy; that such operation is continuous, and in flagrant violation of law; and that building and premises are used as gambling house, supports jury finding that place is a nuisance and supports a court's decree that place of business and all buildings used in connection therewith be immediately treated as a nuisance and be closed and padlocked, and that a receiver be appointed to sell the property. Elder v. Stark, 200 Ga. 452, 37 S.E.2d 598 (1946).

- In an action under former Code 1933, § 58-109 (see now O.C.G.A. § 3-10-8), liquor licenses were relevant, although expired, since the licenses tended to show that operation of place in question was continuous over period of months and years, and continuity was one of the circumstances illustrating the character of the place of business. Elder v. Stark, 200 Ga. 452, 37 S.E.2d 598 (1946).

- See Elder v. Stark, 200 Ga. 452, 37 S.E.2d 598 (1946).

- Testimony as to quantity of wine found might be a circumstance in itself for jury to consider as to whether place complained of was operated in violation of law. Elder v. Stark, 200 Ga. 452, 37 S.E.2d 598 (1946).

- When the petition alleged and the evidence showed that no license had been issued by governing authorities for the sale of wine, it was not error to admit in evidence several bottles of wine found at the place as a circumstance for the jury to consider whether or not the place was operated in violation of law. Elder v. Stark, 200 Ga. 452, 37 S.E.2d 598 (1946).

It was not error to admit into evidence several bottles of wine, over objection that there was no evidence of sale of wine but evidence only of possession, because possession of wine in quantities found may have been a circumstance to illustrate the contention that the place was a public nuisance, especially since other evidence disclosed that no license had been issued by the governing authorities for the sale of wine. Elder v. Stark, 200 Ga. 452, 37 S.E.2d 598 (1946).

- Testimony of witness as to finding 10 pints and two four-fifths of a quart of whiskey on a raid about four months before filing of instant action, and testimony of another witness as to finding 11 fifths of gin and one pint of whiskey at place in question on a raid about nine months before such action, were admissible where it was shown otherwise that building contained secret panels, traps, and like devices of concealment, and there was additional evidence, circumstantial and direct, of continuity of operation and intention to operate place in violation of law after the previous raids and confiscations. Elder v. Stark, 200 Ga. 452, 37 S.E.2d 598 (1946).

- When, upon interlocutory hearing on petition to padlock building as common nuisance, evidence showed that 13 pints of whiskey were found in building and other evidence was sufficient to authorize trial judge to find that whiskey was sold in presence, and with consent, of party operating business therein, the interlocutory judgment enjoining operation of any business therein and directing sheriff to padlock building until further order of court was authorized. Edgeworth v. Wyatt, 202 Ga. 708, 44 S.E.2d 542 (1947).

- Pleas of guilty to two charges of selling wine without license in county, entered about six months before action under this section was instituted, were material circumstances for consideration with the other evidence, although the evidence as to these pleas, without more, would not have authorized a finding that defendant's place of business was common nuisance within meaning of this section, at time action was filed. Sprayberry v. Wyatt, 203 Ga. 27, 45 S.E.2d 625 (1947).

- While single transaction might not be sufficient to authorize abatement of place of business as common nuisance, in that law contemplates some continuity of violation, and evidence did not show directly any act of possession or sale later than about a month before action was filed, yet, in view of evidence as to pleas of guilty to selling without a license entered about six months before and evidence as to subsequent sales and possession, the judge was authorized to find that defendant was continuing in such violations of law and that the defendant's place of business was common nuisance within statute at time action was instituted. Sprayberry v. Wyatt, 203 Ga. 27, 45 S.E.2d 625 (1947).

- Where evidence showed an illegal sale of whiskey, coupled with other circumstances, such as evidence showing that when sale was made the defendant named several brands of whiskey from which buyer might choose, and proof of application for and issuance of retail liquor license, which was in effect at time of sale and bringing of action, the trial judge was amply authorized to find that defendant's place of business was common nuisance at time action was instituted. Norris v. State ex rel. Willingham, 204 Ga. 441, 50 S.E.2d 22 (1948).

- Evidence as to one illegal sale, coupled with corroborative circumstances indicating continuity of such conduct, is sufficient to authorize abatement of place of business as common nuisance. Norris v. State ex rel. Willingham, 204 Ga. 441, 50 S.E.2d 22 (1948).

- Under proper interpretation of this section, entire building could not be abated as nuisance without some evidence tending to show that different portions of building were operated as a unit and that in such operation intoxicating liquors were kept and sold in violation of law. Norris v. State ex rel. Willingham, 204 Ga. 441, 50 S.E.2d 22 (1948).

- Although evidence authorized abatement of nuisance, an order of the trial court was too broad in that it required padlocking of entire premises of defendant, notwithstanding all the evidence as to illegal sales of whiskey related solely to defendant's place of business, there being no evidence of sale or location of whiskey in the defendant's dwelling; and trial court, therefore, abused its discretion in passing so much of order as would result in padlocking of defendant's dwelling and dispossession of the defendant's family. Norris v. State ex rel. Willingham, 204 Ga. 441, 50 S.E.2d 22 (1948).

In trial of action under this section, judge may, without request, require jury to render special verdict on issues of fact involved. Elder v. Stark, 200 Ga. 452, 37 S.E.2d 598 (1946).

RESEARCH REFERENCES

Am. Jur. 2d.

- 45 Am. Jur. 2d, Intoxicating Liquors, § 342 et seq.

- 48A C.J.S., Intoxicating Liquors, § 788 et seq.

- Dispensing liquor as within charter power of club, 5 A.L.R. 1192.

Charge of maintaining a liquor nuisance predicated on permitting guests to bring and consume their own liquor, 49 A.L.R. 1451.

Sale of liquor to homosexuals or permitting their congregation at licensed premises as ground for suspension or revocation of liquor license, 27 A.L.R.3d 1254.

Criminal liability of member or agent of private club or association, or of owner or lessor of its premises, for violation of state or local liquor or gambling laws thereon, 98 A.L.R.3d 694.