FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, JJ.
NOTICE: Motions for reconsideration m us t be
physically re ceived in our clerk’s office within ten days
of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
February 8, 2018
In the Court of Appeals of Georgia
A17A1903. CONSOLIDATED GOVERNMENT OF COLUMBUS
GEORGIA, et al. v. P&J BEVERAGE CORPORATION
d/b/a FORREST ROAD PACKAGE STORE; and
A17A1905. THE BOTTLE SHOP, LLC v. P&J BEVERAGE
CORPORATION d/b/a FORREST ROAD PACKAGE STORE.
MERCIER, Judge.
We have consolidated the appeals in these related cases stemming from P&J
Beverage Corporation d/b/a Forrest Road Package Store’s lawsuit seeking a writ of
mandamus to prevent Columbus1 from issuing an alcoholic beverage license to The
1
Amongst the defendants below are the Consolidated Government of
Columbus Georgia, Revenue Division, Occupational Tax Section, and Angelica
Alexander. Alexander was sued in her official capacity as the Finance Director for the
Consolidated Government of Columbus, Georgia. As such, we treat P & J’s claims
against Alexander as claims against the Consolidated Government of Columbus,
Georgia, Revenue Division, Occupational Tax Section, and accordingly both parties
will be collectively referred to as “Columbus.” See Layer v. Barrow County, 297 Ga.
Bottle Shop, LLC, and then seeking to revoke the license once issued. All parties filed
motions for summary judgment. The trial court granted P&J’s motion, and thereby
implicitly denied the motions by Columbus and The Bottle Shop. The trial court
ordered “Alexander to institute the steps reasonably necessary to show on the public
record for the city of Columbus that [The Bottle Shop’s] license was improperly
issued, and, hereby determined by this Court to be treated as invalid from the outset,
and shall not grant authority to any person to operate any business using said license.”
Columbus and The Bottle Shop appeal the trial court’s order. For the reasons
discussed below, we reverse.
P&J, having learned that The Bottle Shop applied for an alcoholic beverage
license on April 24, 2016, filed the underlying suit. P&J alleges that the location for
which The Bottle Shop sought the license, 101 Southern Way, Columbus, Georgia,
was within 600 feet of The Growing Room, Inc.,2 which P&J claimed was a school,
and therefore asserts that the issuance of an alcoholic beverage license would violate
871 (1) (778 SE2d 156) (2015) (“a suit against a county officer in her official capacity
is a suit against the county itself”) (citation omitted).
2
The Growing Room was not a party to the underlying lawsuit, and is not a
party to this appeal.
2
Columbus, GA Code of Ordinances § 3-5 (c).3 P&J initially filed the suit without
notice to The Bottle Shop, but The Bottle Shop filed a motion to intervene, which was
granted.
While P&J’s action was pending, on September 9, 2016, The Bottle Shop
received an alcoholic beverage license to operate a liquor store at 101 Southern Way,
Columbus, Georgia. On October 4, 2016, P&J filed its second amended complaint
claiming that it “will suffer a special injury by the opening of [The Bottle Shop] by
virtue of competition from another alcohol retailer opening at about the same time, and
going after the same demographic, and having obtained its license in violation of local
and state law.” The Bottle Shop opened for business in November 2016. Thereafter,
the parties filed their motions for summary judgment. Columbus and The Bottle Shop
filed separate motions for summary judgment alleging, amongst other things, that P&J
cannot satisfy the requirements necessary to obtain mandamus relief and that The
Growing Room was not a school.
3
Columbus, GA Code of Ordinances, § 3-5 (c) provides that “[i]t shall be
unlawful to issue liquor and mixed drinks beverage licenses within 600 feet and to issue
wine and malt beverage licences within 300 feet of the grounds of any community teen
center or any school or school playground, including church nursery schools, church
day care centers and adjoining playgrounds.”
3
Columbus and The Bottle Shop both assert, in multiple enumerated errors, that
the trial court erred by granting P&J’s motion for summary judgment and in denying
the defendants’ motions for summary judgment. “In reviewing the merits of a trial
court’s decision on a motion for summary judgment, [this Court] conducts a de novo
review of the evidence to determine whether there is a genuine issue of material fact
and whether the undisputed facts, viewed in the light most favorable to the nonmoving
party, warrant judgment as a matter of law.” SJN Properties, LLC v. Fulton County
Bd. of Assessors, 296 Ga. 793, 796-797 (2) (770 SE2d 832) (2015) (citation omitted).
1. “The applicability of sovereign immunity to claims brought against the State
is a jurisdictional issue. Indeed sovereign immunity like various other rules of
jurisdiction and justiciability is concerned with the extent to which a case properly may
come before a court at all. Therefore, the applicability of sovereign immunity is a
threshold determination[.]” McConnell v. Dept. of Labor, 302 Ga. 18, 18-19 (805
SE2d 79) (2017) (citation, punctuation and footnotes omitted).4 “[H]owever, sovereign
immunity is no bar to petitions for writs of mandamus.” Ga. Association of
4
“The constitutional reservation of sovereign immunity to ‘the State’ is a
constitutional reservation of sovereign immunity to the counties of the State of
Georgia.” Layer, supra at (1) (citation omitted).
4
Professional Process Servers v. Jackson, 302 Ga. 309, 312 (2) (806 SE2d 550) (2017)
(citation omitted). “Our mandamus statute [OCGA § 9-6-20] expressly authorizes
claimants to seek relief against a public official ‘whenever … a defect of legal justice
would ensue from [the official’s] failure to perform or from improper performance’
of ‘official duties.’” SJN Properties, LLC, supra at 799 (2) (b) (ii) (punctuation
omitted). We therefore consider whether the trial court erred in granting summary
judgment on the merits with respect to P&J’s mandamus claim.
Mandamus is a remedy for improper government inaction — the failure
of a public official to perform a clear legal duty. The writ of mandamus
is properly issued only if (1) no other adequate legal remedy is available
to effectuate the relief sought; and (2) the applicant has a clear legal right
to such relief.
...
With respect to this second requirement, a clear legal right to the relief
sought may be found only where the claimant seeks to compel the
performance of a public duty that an official or agency is required by law
to perform. For mandamus to issue, the law must not only authorize the
act to be done, but must require its performance. Where performance is
required by law, a clear legal right to relief will exist either where the
official or agency fails entirely to act or where, in taking such required
action, the official or agency commits a gross abuse of discretion. The
determination of whether official action is required depends on the law
5
governing the subject matter in question. Thus, where the applicable law
vests the official or agency with discretion with regard to whether action
is required in a particular circumstance, mandamus will not lie, because
there is no clear legal right to the performance of such an act.
Moreover, when the law requires an official to exercise discretion,
mandamus will lie to compel that discretion be exercised, but not to
dictate the result[.]
Ga. Association of Professional Process Servers, supra at 312-313 (2) (citations and
punctuation omitted). “And the burden is upon the party seeking mandamus to show
the existence of such a duty.” Forsyth County v. White, 272 Ga. 619, 620 (2) (532
SE2d 392) (2000) (citation omitted). In this case, the burden was upon P&J to show
that Columbus had a clear legal duty to deny or revoke The Bottle Shop’s alcoholic
beverage license. See Forsyth County, supra. Setting aside the issue of whether
another adequate legal remedy is available here,5 we conclude, as explained below, that
P&J has failed to meet its burden of showing it has a clear legal right to the relief
sought.
5
Of note, P&J’s claim that there is no other adequate legal remedy is not
supported by citations to the record or law. See Court of Appeals Rule 25 (b).
6
OCGA § 3-3-2 (a) pertinently provides that “[e]ach . . . 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 . . .
[alcoholic beverage] permits or licenses[.]” The Columbus, GA Code of Ordinances
regulates the application and approval procedure for obtaining an alcoholic beverage
license, stating that”[t]he director of finance shall either approve or disapprove all
applications for alcoholic beverage licenses . . .” and that “[n]o alcoholic beverage
[license] shall be issued until the issuing authority is satisfied that the business is in
compliance with [the Alcoholic Beverages Chapter] of the Code.” Columbus, GA
Code of Ordinances §§ 3-8 (a), 3-20 (b). The Columbus, GA Code of Ordinances
also provides a procedure by which an alcoholic beverage license may be revoked if
“a majority of the council so decides at the time of or subsequent to the hearing on the
recommendation for revocation.” Columbus, GA Code of Ordinances § 3-11 (b) (4).
“Where the act required by law to be done involves the exercise of some degree
of official discretion and judgment upon the part of the officer charged with its
performance, the writ of mandamus may properly command [the officer] to act, or,
as is otherwise expressed, may set [the officer] in motion; it will not further control or
interfere with [the officer’s] action, nor will it direct [the officer] to act in any specific
7
manner.” Ga. Association of Professional Process Servers, supra at 313 (2) (citation
omitted). “Mandamus can be used to compel an official to exercise his or her
discretion, but not to direct the manner in which that discretion is exercised.” Bland
Farms, LLC v. Ga. Dept. of Agriculture, 281 Ga. 192, 193 (637 SE2d 192) (2006)
(citation omitted). Columbus exercised its discretion, pursuant to OCGA § 3-3-2 (a),
and empowered its director of finance to “either approve or disapprove” an
application to obtain an alcohol license, and to ensure that the director of finance is
“satisfied” with an applicant’s compliance with the Alcoholic Beverages chapter of the
Code. Furthermore, Columbus, under its discretion, codified that a majority of the
council must decide to revoke an alcohol license. These provisions require that
Columbus government officials act with discretion in granting or revoking a party’s
alcohol license. See Hartsfield v. Salem, 213 Ga. 760 (101 SE2d 701) (1958)
(reversing grant of mandamus where the city charter authorized the governing body to
revoke liquor license permits with a discretionary procedure; “since it is discretionary
whether said license be revoked and the defendants are not compelled by law to
revoke said license but are authorized to do so . . . they can not be compelled by
mandamus to do so”) (citations omitted). Columbus exercised its discretion to grant
The Bottle Shop’s alcoholic beverage license, and has exercised its discretion to not
8
revoke The Bottle Shop’s alcoholic beverage license. P&J cannot use the mandamus
procedure to direct the manner in which Columbus’s discretion is exercised. See
Bland Farms, LLC, supra.
P&J contends that a writ of mandamus is appropriate because Columbus did
not have discretion to grant an alcoholic beverage license to The Bottle Shop, as it
claims the license violates Columbus, GA Code of Ordinances § 3-5 (c), which states
that it shall be unlawful to issue “liquor and mixed drinks beverage” licenses within
“600 feet . . . of . . . any school . . . or church day care centers . . .” P&J claims that
The Growing Room, a for-profit daycare facility, was a school, and as such,
Columbus did not have discretion to grant an alcohol license to The Bottle Shop at the
designated location. However, P&J’s argument that The Growing Room is a “school”
is unpersuasive.6
6
It is undisputed that The Growing Room, Inc. is a for-profit daycare facility.
While the facility has availability for 22 state-funded pre-kindergarten students, it is not
a public school and it does not meet the criteria for a private school: The Growing
Room’s goal is to make a profit; it does not have any religious affiliations; it does not
report to the county school district; it has no principal; no media center; and no school
council. See OCGA § 3-3-21(a) (2), OCGA § 20-2-690 (b), and Ga. Comp. R. &
Regs. r. 160-5-1-.03 (2) (a).
9
P&J has failed to show that Columbus violated any clear legal duty by
exercising its statutorily-granted discretion to both determine that The Bottle Shop
should be granted an alcohol license, and to decline to revoke it. See Ga. Association
of Professional Process Servers, supra at 314. Therefore the trial court erred in
granting a writ of mandamus to P&J.
2. The trial court also ordered Columbus to not “grant authority to any person
to operate any business using said license.” Such an order is a grant of injunctive relief
against the State for official acts, and it is barred by sovereign immunity. See Lathrop
v. Deal, 301 Ga. 408, 425 (III) (801 SE2d 867) (2017) (“the constitutional doctrine of
sovereign immunity forbids our courts to entertain a lawsuit against the State without
its consent . . . the doctrine extends to suits for injunctive relief . . .”). The trial court
thus erred in granting injunctive relief to P&J against Columbus and in granting
summary judgment to P&J. The trial court also erred in denying summary judgment
to Columbus and The Bottle Shop. We therefore reverse the trial court’s grant of
P&J’s motion for summary judgment and its denial of Columbus’s and The Bottle
Shop’s motions for summary judgment.
3. In light of our discussion above, we need not address the additional
enumerated errors put forth by Columbus and The Bottle Shop.
10
Judgment reversed in cases A17A1903 and A17A1905. Barnes, P. J.,
concurs. McMillian, J., concurs in judgment only.
*THIS OPINION IS PHYSICAL PRECENDENT ONLY. COURT OF
APPEALS RULE 33.2.
11