2021 Georgia Code
Title 3 - Alcoholic Beverages
Chapter 5 - Malt Beverages
Article 3 - Local License Requirements and Regulations for Manufacture, Distribution, and Sale
§ 3-5-40. Requirement by Counties or Municipalities of Licenses for Manufacture, Distribution, and Sale of Malt Beverages; Effect of Revocation of License Issued by Commissioner or by County or Municipality Upon License Issued by Other

1. The businesses of manufacturing, distributing, and selling malt beverages at wholesale or retail shall not be conducted in any county or incorporated municipality of this state without a license from the governing authority of the county or municipality.
2. When any county or municipal license issued pursuant to this Code section is revoked by the governing authority of the county or municipality, any similar malt beverage license issued to the same person by the commissioner pursuant to this chapter shall automatically become invalid.
3. When any state malt beverage license issued pursuant to this chapter is revoked by the commissioner, any similar malt beverage license issued to the same person by any county or municipality shall automatically become invalid.

(Ga. L. 1935, p. 73, § 15A; Ga. L. 1937, p. 148, § 3; Ga. L. 1973, p. 14, § 1; Code 1933, § 5A-4301, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 41.)

- For comment on Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964), see 1 Ga. St. B. J. 550 (1965).

JUDICIAL DECISIONS

Constitutionality.

- O.C.G.A. §§ 3-5-40 and3-6-40, which grant municipalities power regarding licensing and sale of malt beverages without resort to public referendum, are not unconstitutional on ground that the statutes arbitrarily remove from public the right to have referendum on such sales. Newsome v. City of Union Point, 249 Ga. 434, 291 S.E.2d 712 (1982).

- This section clearly states that the proper governing body to issue a license within corporate limits of municipality is governing body of municipality and that governing body of county is limited in its authority to issue licenses to unincorporated areas of county. Hudon v. North Atlanta, 108 Ga. App. 370, 133 S.E.2d 58 (1963).

For right to sell malt beverages, petitioner must obtain license from governing authority of the petitioner's county. Tate v. Seymour, 181 Ga. 801, 184 S.E. 598 (1936).

No malt beverage business shall be conducted in any incorporated municipality of this state without a license from governing authority of municipality, and governing authority is given discretionary powers as to granting or refusal of licenses. Hudon v. North Atlanta, 108 Ga. App. 370, 133 S.E.2d 58 (1963).

- License from governing authorities of municipality for wholesale or retail sale of beer is required, even though no license tax be required by municipality. Day v. State, 53 Ga. App. 487, 186 S.E. 202 (1936).

- Right to sell malt beverages or beer is subject to determination of governing authorities of city or county; they have the right to prohibit its sale and deny all applicants a license. Tipton v. City of Dudley, 242 Ga. 807, 251 S.E.2d 545 (1979).

Legislature has vested appellees, city officials, with discretionary powers in granting and refusal of licenses or permits for the privileges of retail selling of beer under O.C.G.A. § 3-5-40, and wine under O.C.G.A. § 3-6-40. Grandpa's Store, Inc. v. City of Norcross, 247 Ga. 350, 275 S.E.2d 59 (1981).

- Mandamus is an available remedy where refusal to authorize sale of malt beverages is arbitrary and illegal. Tate v. Seymour, 181 Ga. 801, 184 S.E. 598 (1936).

This section empowers county authorities to grant licenses, but the power to act is left to discretion of local authority, and if commissioner refuses to grant license, mandamus will not control the commissioner's discretion; however, when the refusal is arbitrary and contrary to law, mandamus is a remedy. Harbin v. Holcomb, 181 Ga. 800, 184 S.E. 603 (1936).

- If governing authority of city or county decides to permit sale of malt beverages or beer, it shall adopt an ordinance setting forth the prescribed standards for issuance of licenses. When an applicant for a license meets these standards, refusal by governing authority to issue the license constitutes denial of equal protection, entitling applicant to writ of mandamus. Tipton v. City of Dudley, 242 Ga. 807, 251 S.E.2d 545 (1979); Grandpa's Store, Inc. v. City of Norcross, 247 Ga. 350, 275 S.E.2d 59 (1981).

- Absent indication that the city has adopted some ordinance setting forth prescribed standards for the issuance of a license to sell beer or wine and that the plaintiff has met such standards, the refusal by the city to issue the license does not constitute a denial of equal protection, entitling the applicant to a writ of mandamus. Grandpa's Store, Inc. v. City of Norcross, 247 Ga. 350, 275 S.E.2d 59 (1981).

- The privilege of sales of beer and wine is conditional upon the city's exercise of its discretion in performing an affirmative act in either granting or refusing a permit or license; hence, sales by "implied consent" are not authorized or legal, and there is no violation of equal protection. Grandpa's Store, Inc. v. City of Norcross, 247 Ga. 350, 275 S.E.2d 59 (1981).

- The fact that one or more businesses are selling beer and/or wine in violation of the statutes, even if proved, does not give the plaintiff any right to have a permit issued to it. The city has the right to prohibit the sale of beer and/or wine and deny all applicants a license. Grandpa's Store, Inc. v. City of Norcross, 247 Ga. 350, 275 S.E.2d 59 (1981).

Commissioner cannot legally authorize one to sell malt beverages unless municipal or county authorities, as case may be, also grant a license. Tate v. Seymour, 181 Ga. 801, 184 S.E. 598 (1936).

- Indictment alleging that defendant sold malt beverages in municipality without first having obtained license from governing authorities of such municipality to engage in retail sale of malt beverages was sufficient to show that defendant sold malt beverages as retail dealer in violation of law. Day v. State, 53 Ga. App. 487, 186 S.E. 202 (1936).

State not only must allege but also prove that defendant had no license to sell beer in prosecution for selling without license. Cheek v. State, 98 Ga. App. 874, 107 S.E.2d 247 (1959).

- Court of appeals does not take judicial notice of counties which do or do not permit possession and sale of beer; where proof does not show otherwise it will assume that beer may be legally sold within county. Crowe v. State, 98 Ga. App. 185, 105 S.E.2d 353 (1958).

- If defendant's partner or another had beer for purpose of sale and sold it without defendant's knowledge, the defendant would not be guilty even though the defendant knew the beer was there but did not know the reason for its presence, since mere possession of beer is perfectly legal. Crowe v. State, 98 Ga. App. 185, 105 S.E.2d 353 (1958).

- If defendant and another individual were partners, defendant, if the defendant knew of and acquiesced in the illegal sale of beer or its possession for purposes of sale by the other would be guilty even though the defendant was not the person actually selling it, since the defendant had joint control of premises and all who aid or abet in commission of misdemeanor must be considered principals. Crowe v. State, 98 Ga. App. 185, 105 S.E.2d 353 (1958).

- Allegations in indictment charging that defendant possessed for sale and sold beer without first having obtained a license from Commissioner of Roads and Revenues of county is a material allegation, proof of which is essential to state's case. Where there is no testimony in record on subject of whether defendant did or did not have license to sell beer, under evidence as a whole a verdict in the defendant's favor was demanded. Crowe v. State, 98 Ga. App. 185, 105 S.E.2d 353 (1958).

OPINIONS OF THE ATTORNEY GENERAL

Extent of county license requirements.

- A county may require a wholesale beer dealer to obtain a county wholesale beer license if the dealer is "doing business" in the county, notwithstanding the fact that the dealer may have its principal place of business located in another county. 1987 Op. Att'y Gen. No. U87-3.

Local governments are not empowered to require licensing of wholesalers of alcoholic beverages that take orders for sales and make deliveries of alcoholic beverages within those local governments, but do not have locations or offices within the boundaries of those local governments. 2017 Op. Att'y Gen. No. U17-2.

The governing authority of a city has discretionary powers to grant or refuse a license to sell malt beverages. 1971 Op. Att'y Gen. No. U71-26.

- A municipality in the granting of licenses to sell malt beverages may adopt rules and regulations under which malt beverages shall be sold. 1960-61 Op. Att'y Gen. p. 287.

A municipality may permit the sale of beer in drug stores where minors visit. 1960-61 Op. Att'y Gen. p. 286.

A municipality may require a vendor of beer to partition off the section of the establishment where the beer is sold. 1960-61 Op. Att'y Gen. p. 287.

A municipality could refuse to license the sale of malt beverages in places of business selling other merchandise. 1960-61 Op. Att'y Gen. p. 287.

There is no provision for an election to prohibit sale of malt beverages; discretion as to granting or refusal of licenses is vested in county and municipal authorities. 1945-47 Op. Att'y Gen. p. 394.

- Under Ga. L. 1935, p. 73, § 15A (see now O.C.G.A. § 3-5-40), the county commissioners of any county have a right to pass a resolution authorizing the sale of malt beverages in the county and, under Ga. L. 1935, p. 73, § 7 (see now O.C.G.A. § 3-5-41), to fix an annual license fee therefor; the only recourse to prevent the sale would be election of county commissioners who were opposed to legalized sale of malt beverages in the county. 1958-59 Op. Att'y Gen. p. 205.

- Referendum held to determine whether governing authority of county should grant licenses for sale of malt beverages would have no legal effect upon governing authority. 1967 Op. Att'y Gen. No. 67-67.

- Since this section provides that, upon revocation by municipal authorities of malt beverage license, state license is automatically revoked, commissioner need only inform licensee that the licensee's conduct may subject the licensee to criminal prosecution where question is in issue as to who the duly qualified municipal authorities are. 1952-53 Op. Att'y Gen. p. 219 (rendered under former Ga. L. 1937, p. 148).

RESEARCH REFERENCES

Am. Jur. 2d.

- 45 Am. Jur. 2d, Intoxicating Liquors, §§ 7, 8, 9, 102, 140 et seq., 187.

- 48 C.J.S., Intoxicating Liquors, §§ 84, 86, 92 et seq., 165.

- Provisions of statute regarding personal qualifications necessary to entitle one to license for sale of intoxicating liquor, as denial of equal protection of laws, 145 A.L.R. 509.