Editor’s notes. —

In light of the similarity of the statutory provisions, annotations decided under former Ga. L. 1937-38, Ex. Sess. p. 103 are included in the annotations for this title.

Cross references. —

Hospitalization, treatment, and care of alcoholics, T. 37, C. 7.

Criminal penalty for suspension of driver’s license for driving under influence of alcohol, §§ 40-5-54 , 40-6-391 .

Law reviews. —

For note discussing the twenty-first amendment’s limitation on state’s power to regulate alcoholic beverages, in light of United States v. State Tax Comm’n, 412 U.S. 363, 93 S. Ct. 2183 , 37 L. Ed. 2 d 1 (1973), see 10 Ga. St. B. J. 336 (1973).

JUDICIAL DECISIONS

Ga. L. 1937-38, Ex. Sess. p. 103 was both a law with a local option feature and a general law relating to both dry and wet counties. Bienert v. State, 82 Ga. App. 179 , 60 S.E.2d 575 (decided under former Ga. L. 1937-38, Ex. Sess. p. 103).

Regulations pertaining to sale of alcohol are entitled to special deference when challenged in court. The broad sweep of the Twenty-First Amendment has been recognized as conferring something more than normal state authority over public health, welfare, and morals. Trustees of Mtg. Trust of Am. v. Holland, 554 F.2d 237 (5th Cir. 1977) (decided under former Ga. L. 1937-38, Ex. Sess. p. 103).

RESEARCH REFERENCES

ALR. —

Federal constitutional or legislative provisions as to intoxication liquors as affecting state legislation, 10 A.L.R. 1587 ; 11 A.L.R. 1320 ; 26 A.L.R. 661 ; 70 A.L.R. 132 .

Power of legislature in aid of enforcement of prohibition against manufacture and sale of intoxicating liquor to prohibit manufacture, sale, or possession of nonintoxicating liquor, 88 A.L.R. 1094 .

Entrapment to commit offense against laws regulating sales of liquor, 55 A.L.R.2d 1322.

Right to recover under civil damage or dramshop act for death of intoxicated person, 64 A.L.R.2d 705.

What constitutes injury to means of support within civil damage or dramshop act, 4 A.L.R.3d 1332.

Liability, under dramshop acts, of one who sells or furnishes liquor otherwise than in operation of regularly established liquor business, 8 A.L.R.3d 1412.

Security interests in liquor licenses, 56 A.L.R.4th 1131.

Zoning regulation of intoxicating liquor as pre-empted by state law, 65 A.L.R.4th 555.

CHAPTER 1 General Provisions

3-1-1. Short title.

This title shall be known and may be cited as the “Georgia Alcoholic Beverage Code.”

History. — Code 1933, § 5A-101, enacted by Ga. L. 1980, p. 1573, § 1.

RESEARCH REFERENCES

Am. Jur. Pleading and Practice Forms. —

14C Am. Jur. Pleading and Practice Forms, Intoxicating Liquors, § 1 et seq.

ALR. —

Interplay between Twenty-First Amendment and Commerce Clause concerning state regulation of intoxicating liquors, 116 A.L.R.5th 149.

3-1-2. (See Editor’s notes.) Definitions.

As used in this title, the term:

  1. “Alcohol” means ethyl alcohol, hydrated oxide of ethyl, or spirits of wine, from whatever source or by whatever process produced.
  2. “Alcoholic beverage” means and includes all alcohol, distilled spirits, beer, malt beverage, wine, or fortified wine.

    (2.1) “Bar” means any premises at which a retailer licensed pursuant to this title to sell alcoholic beverages derives 75 percent or more total annual gross revenue from the sale of alcoholic beverages for consumption on the premises.

  3. “Brewpub” means any eating establishment in which malt beverages are manufactured, subject to the barrel production limitation prescribed in Code Section 3-5-36. As used in this paragraph, the term “eating establishment” means an establishment which is licensed to sell distilled spirits, malt beverages, or wines and which derives at least 50 percent of its total annual gross food and beverage sales from the sale of prepared meals or food; provided, however, that when determining the total annual gross food and beverage sales, barrels of malt beverages sold to licensed wholesale dealers, as authorized pursuant to subparagraph (D) of paragraph (2) of Code Section 3-5-36, or to the public for consumption off the premises, as authorized pursuant to subparagraph (D) of paragraph (2) and paragraph (4) of Code Section 3-5-36, shall not be used.
  4. “Broker” means any person who purchases or obtains an alcoholic beverage from an importer, distillery, brewery, or winery and sells the alcoholic beverage to another broker, importer, or wholesaler without having custody of the alcoholic beverage or maintaining a stock of the alcoholic beverage.
  5. “Commissioner” means the state revenue commissioner.
  6. “County or municipality” means those political subdivisions of this state as defined by law and includes any form of political subdivision consolidating a county with one or more municipalities.
  7. “Department” means the Department of Revenue.
  8. “Distilled spirits” means any alcoholic beverage obtained by distillation or containing more than 24 percent alcohol by volume.
  9. “Fortified wine” means any alcoholic beverage containing not more than 24 percent alcohol by volume made from fruits, berries, or grapes either by natural fermentation or by natural fermentation with brandy added. The term includes, but is not limited to, brandy.
  10. “Gallon” or “wine gallon” means a United States gallon of liquid measure equivalent to the volume of 231 cubic inches or the nearest equivalent metric measurement.

    (10.1) “Hard cider” means an alcoholic beverage obtained by the fermentation of the juice of apples, containing not more than 6 percent alcohol by volume, including, but not limited to, flavored or carbonated cider. For purposes of this title, hard cider shall be deemed a malt beverage. The term does not include “sweet cider.”

  11. “Importer” means any person who imports an alcoholic beverage into this state from a foreign country and sells the alcoholic beverage to another importer, broker, or wholesaler and who maintains a stock of the alcoholic beverage.
  12. “Individual” means a natural person.
  13. “Malt beverage” means any alcoholic beverage obtained by the fermentation of any infusion or decoction of barley, malt, hops, or any other similar product, or any combination of such products in water, containing not more than 14 percent alcohol by volume and including ale, porter, brown, stout, lager beer, small beer, and strong beer. The term does not include sake, known as Japanese rice wine.
  14. “Manufacturer” means any maker, producer, or bottler of an alcoholic beverage. The term also means:
    1. In the case of distilled spirits, any person engaged in distilling, rectifying, or blending any distilled spirits; provided, however, that a vintner that blends wine with distilled spirits to produce a fortified wine shall not be considered a manufacturer of distilled spirits;
    2. In the case of malt beverages, any brewer; and
    3. In the case of wine, any vintner.
  15. “Military reservation” means a duly commissioned post, camp, base, or station of a branch of the armed forces of the United States located on territory within this state which has been ceded to the United States.
  16. “Package” means a bottle, can, keg, barrel, or other original consumer container.
  17. “Person” means any individual, firm, partnership, cooperative, nonprofit membership corporation, joint venture, association, company, corporation, agency, syndicate, estate, trust, business trust, receiver, fiduciary, or other group or combination acting as a unit, body politic, or political subdivision, whether public, private, or quasi-public.
  18. “Retail consumption dealer” means any person who sells distilled spirits for consumption on the premises at retail only to consumers and not for resale.
  19. “Retailer” or “retail dealer” means, except as to distilled spirits, any person who sells alcoholic beverages, either in unbroken packages or for consumption on the premises, at retail only to consumers and not for resale. With respect to distilled spirits, the term shall have the same meaning as the term “retail package liquor store.”

    (19.1) “Retail package liquor store” means a retail business establishment owned by an individual, partnership, corporation, association, or other business entity:

    1. Primarily engaged in the retail sale of distilled spirits, malt beverages, and wine in unbroken packages, not for consumption on the premises, except as authorized under this chapter; and
    2. Which derives from such retail sale of alcoholic beverages in unbroken packages at least 75 percent of its total annual gross sales from the sale of a combination of distilled spirits, malt beverages, and wine.
  20. “Shipper” means any person who ships an alcoholic beverage from outside this state.
  21. “Standard case” means six containers of 1.75 liters, 12 containers of 750 milliliters, 12 containers of one liter, 24 containers of 500 milliliters, 24 containers of 375 milliliters, 48 containers of 200 milliliters, or 120 containers of 50 milliliters.
  22. “Taxpayer” means any person made liable by law to file a return or to pay tax.
  23. “Wholesaler” or “wholesale dealer” means any person who sells alcoholic beverages to other wholesale dealers, to retail dealers, or to retail consumption dealers.
  24. “Wine” means any alcoholic beverage containing not more than 24 percent alcohol by volume made from fruits, berries, or grapes either by natural fermentation or by natural fermentation with brandy added. The term includes, but is not limited to, all sparkling wines, champagnes, combinations of such beverages, vermouths, special natural wines, rectified wines, and like products. The term does not include cooking wine mixed with salt or other ingredients so as to render it unfit for human consumption as a beverage. A liquid shall first be deemed to be a wine at that point in the manufacturing process when it conforms to the definition of wine contained in this Code section.

    A listing of Executive Orders issued in 2020 and 2021 can be found at https://gov.georgia.gov/executive-action/executive-orders.

History. — Code 1933, § 5A-102, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, §§ 2-4; Ga. L. 1994, p. 553, § 1; Ga. L. 1995, p. 734, § 1; Ga. L. 1998, p. 1581, § 1; Ga. L. 2004, p. 584, § 1; Ga. L. 2006, p. 206, § 1/HB 1248; Ga. L. 2012, p. 680, § 1/HB 472; Ga. L. 2013, p. 767, § 2/HB 124; Ga. L. 2014, p. 366, § 1/SB 286; Ga. L. 2015, p. 317, § 1/SB 63; Ga. L. 2015, p. 578, § 1/HB 152; Ga. L. 2018, p. 1112, § 3/SB 365.

Editor’s notes. — For application of this statute in 2020 and 2021, see Executive Orders 03.23.20.01, 04.23.20.02, 05.12.20.02, 05.28.20.02, 06.11.20.01, 06.29.20.02, 07.15.20.01, 07.31.20.02, 08.15.20.01, 08.31.20.02, 09.15.20.01, 09.30.20.02, 10.15.20.01, 10.30.20.02, 11.13.20.01, 11.30.20.02, 12.08.20.01, 12.30.20.02, 1.15.21.01, 1.29.21.02, 02.15.21.01, 02.26.21.02, 03.12.21.01, 3.31.21.03, and 04.30.21.01.

History. — Code 1933, § 5A-102, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, §§ 2-4; Ga. L. 1994, p. 553, § 1; Ga. L. 1995, p. 734, § 1; Ga. L. 1998, p. 1581, § 1; Ga. L. 2004, p. 584, § 1; Ga. L. 2006, p. 206, § 1/HB 1248; Ga. L. 2012, p. 680, § 1/HB 472; Ga. L. 2013, p. 767, § 2/HB 124; Ga. L. 2014, p. 366, § 1/SB 286; Ga. L. 2015, p. 317, § 1/SB 63; Ga. L. 2015, p. 578, § 1/HB 152; Ga. L. 2018, p. 1112, § 3/SB 365.

Editor’s notes. —

For application of this statute in 2020 and 2021, see Executive Orders 03.23.20.01, 04.23.20.02, 05.12.20.02, 05.28.20.02, 06.11.20.01, 06.29.20.02, 07.15.20.01, 07.31.20.02, 08.15.20.01, 08.31.20.02, 09.15.20.01, 09.30.20.02, 10.15.20.01, 10.30.20.02, 11.13.20.01, 11.30.20.02, 12.08.20.01, 12.30.20.02, 1.15.21.01, 1.29.21.02, 02.15.21.01, 02.26.21.02, 03.12.21.01, 3.31.21.03, and 04.30.21.01.

A listing of Executive Orders issued in 2020 and 2021 can be found at https://gov.georgia.gov/executive-action/executive-orders.

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, revised punctuation in the first sentence of paragraph (10.1).

Cross references. —

General powers and duties of commissioner, § 48-2-7 .

Code Commission notes. —

Pursuant to Code Section 28-9-5, in 1995, paragraphs (22) and (23) were redesignated as paragraphs (23) and (22), respectively.

Pursuant to Code Section 28-9-5, in 1998, a minor punctuation change was made at the end of paragraph (10.1).

JUDICIAL DECISIONS

Editor’s notes. —

In light of the similarity of the statutory provisions, annotations decided under former Ga. L. 1937, Ex. Sess., p. 103 are included in the annotations for this Code section.

Fact that whiskey is mixed with other ingredients in a glass and thus served to consumer does not change its character from whiskey to something else so as to render sale and consumption thereof not subject to regulation. Raines v. State, 96 Ga. App. 727 , 101 S.E.2d 589 (1957) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

OPINIONS OF THE ATTORNEY GENERAL

Under Ga. L. 1937-38, Ex. Sess., p. 103, it is unlawful to permit sale of spirituous liquors and whiskeys (distilled spirits), as defined in Ga. L. 1937-38, Ex. Sess., p. 103, in unbroken packages or by the drink to be consumed on the premises. 1954-56 Ga. Op. Att'y Gen. 460 (rendered under former Ga. L. 1937-38, Ex. Sess. p. 103)

Ga. L. 1937, Ex. Sess., p. 103 (see now O.C.G.A. § 3-1-2 ) provides that the word “person” includes corporations and this would include a municipal corporation. 1960-61 Ga. Op. Att'y Gen. 288 (rendered under former Ga. L. 1937-38, Ex. Sess. p. 103).

Home brew is a malt beverage and its manufacture is subject to the malt beverage statutes, notwithstanding that the alcoholic content exceeds 6 percent by volume. 1962 Ga. Op. Att'y Gen. 297 (rendered under former Ga. L. 1937-38, Ex. Sess. p. 103).

RESEARCH REFERENCES

Am. Jur. 2d. —

29A Am. Jur. 2d, Evidence, § 106. 45 Am. Jur. 2d, Intoxicating Liquors, §§ 3 et seq., 26 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 1 et seq.

ALR. —

Test of intoxicating character of liquor, 4 A.L.R. 1137 ; 11 A.L.R. 1233 ; 19 A.L.R. 512 ; 36 A.L.R. 725 ; 91 A.L.R. 513 .

Judicial notice of intoxicating quality, and the like, of a liquor or particular liquid, from its name, 49 A.L.R.2d 764.

What constitutes “intoxicating liquor” within civil damage act, 52 A.L.R.2d 890.

3-1-3. Use of existing forms and filings relating to licenses or taxes.

Every form of license or tax document or other license or tax related filing lawfully in use immediately prior to July 1, 1981, may continue to be so used or be effective until the commissioner, in accordance with this title, otherwise prescribes.

History. — Code 1933, § 5A-104, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 2006, p. 206, § 2/HB 1248.

RESEARCH REFERENCES

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 176 et seq., 239 et seq.

3-1-4. Penalty for violations of provisions of title.

  1. It is unlawful for any person knowingly and intentionally to violate any criminal prohibition contained in this title.
  2. Except as otherwise provided in this title, any person who violates any criminal prohibition contained in this title shall be guilty of a misdemeanor.

History. — Code 1933, § 5A-9904, enacted by Ga. L. 1980, p. 1573, § 1.

RESEARCH REFERENCES

ALR. —

Homicide: criminal liability for death resulting from unlawfully furnishing intoxicating liquor or drugs to another, 32 A.L.R.3d 589.

3-1-5. Posting of warning by retailer that consumption of alcohol during pregnancy is dangerous.

  1. All retail consumption dealers and retail dealers in this state who sell at retail any alcoholic beverages for consumption on the premises shall post, in a conspicuous place, a sign which clearly reads: “Warning: Drinking alcoholic beverages during pregnancy can cause birth defects.”
  2. The department shall make such warning signs available to such retailers of alcoholic beverages and shall promulgate rules and regulations with respect to the form and the posting of said signs. A fee may be charged by the department to cover printing, postage, and handling expenses.
  3. Any person who fails or refuses to post the sign as required in this Code section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined in an amount not to exceed $100.00 for each violation.

History. — Code 1981, § 3-1-5 , enacted by Ga. L. 1986, p. 618, § 1.

CHAPTER 2 State Administration and Enforcement

Article 1 Administration

3-2-1. Powers and duties of commissioner generally; delegation of administrative duties.

The commissioner shall administer and enforce this title. The commissioner may designate employees of the department for the purpose of administering this title and may delegate to employees of the department any of the duties required of him pursuant to this title.

History. — Code 1933, § 5A-301, enacted by Ga. L. 1980, p. 1573, § 1.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 15 et seq., 26 et seq., 90 et seq., 226 et seq., 231 et seq., 261 et seq.

ALR. —

Interplay between Twenty-First Amendment and Commerce Clause concerning state regulation of intoxicating liquors, 116 A.L.R.5th 149.

3-2-2. Promulgation of rules and regulations generally; forms.

  1. The commissioner may make and publish in print or electronically reasonable rules and regulations not inconsistent with this title or other laws or the Constitution of this state or of the United States for the enforcement of this title and the collection of revenues under this title.
  2. The commissioner shall prescribe the forms which he deems necessary in order to administer and enforce this title.
  3. The authority granted to the commissioner pursuant to this Code section shall be exercised at all times in conformity with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
  4. This Code section shall apply with respect to all rules and regulations promulgated by the commissioner pursuant to this title.

History. — Code 1933, § 5A-302, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 2010, p. 838, § 10/SB 388.

Editor’s notes. —

In light of the similarity of the statutory provisions, annotations decided under from Ga. L. 1937-38, Ex. Sess., p. 103 are included in the annotations for this Code section.

Law reviews. —

For article suggesting the inclusion of alcoholic beverage regulation under the Georgia Administrative Procedure Act, in order to satisfy due process and equal protection requirements, see 1 Ga. St. B. J. 269 (1965).

JUDICIAL DECISIONS

Constitutionality. —

The Twenty-First Amendment removes spirituous liquors and alcohol from the protection of the commerce clause to the extent necessary to allow states to adopt and enforce appropriate laws and regulations dealing with the subject, and thus to burden interstate commerce to this extent. Even in absence of any protection under the Twenty-First Amendment, the sovereign states in the exercise of their reserve police power may, without offending the commerce clause, adopt and enforce necessary laws and regulations to effectuate their own protection against illegal traffic and trade in liquors. Atkins v. Manning, 206 Ga. 219 , 56 S.E.2d 260 (1949) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Jurisdiction to determine constitutionality of rules. —

Rules of the commissioner promulgated under authority of subsection (h) of Code 1933, § 58-1022 (see now O.C.G.A. § 3-2-2 ), to control distilled spirits and alcohol are not laws of this state within the meaning of Ga. Const. 1976, Art. V, Sec. III, Para. IV (see now Ga. Const. 1983, Art. V, Sec. III, Para. II), so as to give the Supreme Court jurisdiction to determine their constitutionality. Brosnan v. Undercofler, 220 Ga. 239 , 138 S.E.2d 314 (1964), transferred, 111 Ga. App. 95 , 140 S.E.2d 517 (1965) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Ga. L. 1937-38, Ex. Sess., p. 103 makes the commissioner the administrator of the law and empowers the commissioner to promulgate rules to effectuate its administration and enforcement. Atkins v. Manning, 206 Ga. 219 , 56 S.E.2d 260 (1949) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Rules within legislative authorization. —

Rules relating to transportation of distilled spirits and alcohol, and requiring that shipment thereof from another state through any part of this state to destination in another state must be by common carrier only, accompanied by invoice or bill of lading showing that shipment is made by shipper duly licensed and authorized, and that shipment is made to one licensed and authorized to receive such shipment, and further providing that any violation is misdemeanor, in view of the provisions of law and its expressed purpose to control all traffic or trade in liquor therein defined, come clearly within permissible legislative authorization. Atkins v. Manning, 206 Ga. 219 , 56 S.E.2d 260 (1949) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Regulations to be in accord with law. —

There can be no rules and regulations made by commissioner, a violation of which would result in seizure, condemnation, and sale of vehicle being used by owner thereof in alleged violation of such rules, where these rules and regulations, made by commissioner, are not in harmony or in accord with the law. State v. Schafer, 82 Ga. App. 753 , 62 S.E.2d 446 (1950) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Law permitted the state revenue department to promulgate reasonable rules and regulations not inconsistent with the title under which the law fell or other laws, and the regulations challenged by the two associations were not invalid on the ground that the regulations were unauthorized since the regulations governing distribution of malt beverages in Georgia that were challenged were all authorized generally by O.C.G.A. § 3-2-2(a) . Ga. Oilmen's Ass'n v. Ga. Dep't of Revenue, 261 Ga. App. 393 , 582 S.E.2d 549 (2003).

Violation of administrative rule of commissioner may result in suspension or cancellation of license of offending party or parties, but such rules do not make illegal an act or contract not also prohibited by statute. Gaddy v. Silverman, 86 Ga. App. 239 , 71 S.E.2d 277 (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

RESEARCH REFERENCES

Am. Jur. 2d. —

3 Am. Jur. 2d, Advertising, §§ 8, 15 et seq.45 Am. Jur. 2d, Intoxicating Liquors, §§ 15 et seq. 26 et seq., 196 et seq.

3-2-3. Powers and duties of commissioner as to denial, suspension, or cancellation of licenses or permits generally; promulgation of rules and regulations as to conversion of standards of measurement and labeling of distilled spirits.

In addition to his or her other duties and responsibilities to administer this title, the commissioner may:

  1. Deny, suspend, or cancel any license or permit required under this title if:
    1. The license application is not filed in good faith or is filed by some person as a subterfuge for any other person;
    2. Any applicant for a license or permit or any licensee or permit holder under this title willfully fails to comply with any provisions of this title or with rules and regulations adopted by the commissioner; or
    3. Any person to whom a license or permit has been issued is no longer engaged in the dealing of alcoholic beverages or no longer qualifies as a licensee or permit holder under this title.

      Before any denial, suspension, or cancellation of a license or permit granted pursuant to this title, the applicant, licensee, or permit holder shall be afforded a hearing in the manner and subject to the conditions and procedures established by this chapter and the commissioner. The commissioner shall notify an applicant, licensee, or permit holder in writing of the denial, suspension, or cancellation by registered or certified mail or statutory overnight delivery to the last known address of the applicant, licensee, or permit holder appearing in the commissioner’s files or by personal service upon the applicant, licensee, or permit holder by an authorized agent of the commissioner. Upon cancellation of a license or permit for cause under this paragraph, there shall be no renewal or reissuance of the canceled license or permit for a period of two years from the date of cancellation;

  2. In the event that the license of any person is canceled by the commissioner under the authority of this title, hold the bonds of the person for a period of three years against any liabilities accruing as a result of the business of the person whose license is canceled. In no event shall the surrender of any bond release any liability;
  3. Enter into agreements with appropriate authorities of other states who enforce the alcoholic beverage laws thereof, to exchange information relative to the manufacture, receipt, sale, use, or transportation of alcoholic beverages;
  4. Promulgate rules and regulations which he or she deems necessary for the conversion from the metric system of measurement to the equivalent English measurement in United States gallons and subdivisions of gallons and shall compute all tax rates at the equivalent English measurement; and
  5. Promulgate rules and regulations, not inconsistent with federal laws or regulations, requiring informative labeling of all distilled spirits offered for sale in this state.

History. — Code 1933, § 5A-303, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 5; Ga. L. 1982, p. 1463, §§ 1, 8; Ga. L. 1984, p. 22, § 3; Ga. L. 2000, p. 1589, § 3; Ga. L. 2015, p. 317, § 2/SB 63.

Editor’s notes. —

Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

In light of the similarity of the statutory provisions, annotations decided under former Ga. L. 1937-38, Ex. Sess., p. 103 are included in the annotations for this Code section.

Law reviews. —

For comment, “Retail Liquor Licenses and Due Process: The Creation of Property Through Regulation,” see 32 Emory L.J. 1199 (1983).

JUDICIAL DECISIONS

Municipal ordinance which provides for automatic loss of a liquor license upon cessation of business is not inconsistent with this title because it permits cancellation without notice and hearing, allegedly required by paragraph (1) of O.C.G.A. § 3-2-3 , because no hearing is required where revocation of license is expressly required by ordinance. City Council v. Crump, 251 Ga. 594 , 308 S.E.2d 180 (1983) (decided prior to 1982 amendment).

Constitutionality of revocation procedures. —

Liquor license revocation procedures which provide for a hearing, preceded by advance notice setting forth charge forming basis for revocation, are sufficient to comport adequately with due process mandates. Page v. Jackson, 398 F. Supp. 263 (N.D. Ga. 1975) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Due process required for revocation of license. —

Liquor license holder has sufficient property interest in holding license to date of its automatic termination that revocation of license must be accompanied by rudimentary due process protections. Liquor licenses may not be revoked during the period of their effectiveness without such protections. Page v. Jackson, 398 F. Supp. 263 (N.D. Ga. 1975) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

The primary right to revoke a license lies with the commissioner, and this right may be used only for cause and after hearing. Crummey v. State, 83 Ga. App. 459 , 64 S.E.2d 380 (1951) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Limitation on regulation by authorizing statutes. —

Even though the commissioner is given authority to make reasonable rules and regulations for the enforcement and administration of former Code 1933, Ch. 58-10 (see now O.C.G.A. § 3-2-3 ), the commissioner could not, by regulation, make penal and punish therefor as a misdemeanor something which is not made penal under the law itself, but could only enforce regulation by suspension or cancellation of license of offending party or parties. Columbus Wine Co. v. Sheffield, 83 Ga. App. 593 , 64 S.E.2d 356 (1951) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Denial and cancellation of liquor licenses are actions of public official subject to court review. —

In the absence of some remedial review prescribed by law, equity is available to review alleged abuses of discretion by administrative licensing authority. Blackmon v. Alexander, 233 Ga. 832 , 213 S.E.2d 842 (1975) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

RESEARCH REFERENCES

Am. Jur. 2d. —

3 Am. Jur. 2d, Advertising, §§ 8, 15 et seq.45 Am. Jur. 2d, Intoxicating Liquors, §§ 15 et seq. 26 et seq., 196 et seq.

Am. Jur. Pleading and Practice Forms. —

14C Am. Jur. Pleading and Practice Forms, Intoxicating Liquors, §§ 15 et seq., 44 et seq., 74 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 45 et seq., 138 et seq., 190 et seq., 436 et seq.

ALR. —

Power to limit the number of intoxicating liquor licenses, 124 A.L.R. 825 ; 163 A.L.R. 581 .

Revocation of liquor license of one person as ground for refusal of license to another, 153 A.L.R. 836 .

Right to hearing before revocation or suspension of liquor license, 35 A.L.R.2d 1067.

Right to withdraw application to procure or to transfer liquor license, 73 A.L.R.2d 1223.

Revocation or suspension of liquor license because of drinking or drunkenness on part of licensee or business associates, 36 A.L.R.3d 1301.

Sale or use of narcotics or dangerous drugs on licensed premises as ground for revocation or suspension of liquor license, 51 A.L.R.3d 1130.

3-2-3.1. Power of commissioner to permit importation of alcohol into counties and municipalities; taxation of such alcohol.

The commissioner, in accordance with such rules and regulations as he shall adopt, in his discretion may permit importation of distilled spirits and alcohol into any county or municipality where the manufacture and sale of the spirits or alcohol has been legalized. These rules and regulations shall provide for the collection of all taxes due on the distilled spirits or alcohol.

History. — Code 1933, § 5A-303.1, enacted by Ga. L. 1981, p. 1269, § 6.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 26 et seq., 168 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 45 et seq., 138 et seq., 425 et seq.

3-2-4. Sale, distribution, or other dealing in alcoholic beverages by employees, agents, or officers of department prohibited; exemption.

  1. No employee, agent, or officer of the department, directly or indirectly, shall have any interest whatsoever in manufacturing, selling, transporting, distributing, storing, or otherwise dealing in alcoholic beverages, except in the performance of his official duties.
  2. The commissioner may provide by rule for the exemption of employees of the department from the provisions of this Code section so as to permit employment within the alcoholic beverage trade when such employment would pose no conflict of interest or interference with the performance by the employee of his duties as an employee of the department. This subsection shall not apply with respect to employees having responsibility for enforcement of this title.

History. — Code 1933, § 5A-304, enacted by Ga. L. 1980, p. 1573, § 1.

3-2-5. Collection of taxes under title; issuance of licenses.

Except as otherwise specifically provided for in this title, the taxes provided for in this title shall be collected by the commissioner. Upon payment of the appropriate taxes and fees and compliance with all other requirements of this title, the commissioner shall issue appropriate licenses as provided for in this title.

History. — Code 1933, § 5A-305, enacted by Ga. L. 1980, p. 1573, § 1.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 1 et seq., 15 et seq., 90 et seq., 168 et seq.

Am. Jur. Pleading and Practice Forms. —

14C Am. Jur. Pleading and Practice Forms, Intoxicating Liquors, § 15 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 138 et seq., 400 et seq.

3-2-6. Establishment and operation of reporting system for collection of taxes on malt beverages, distilled spirits, and wines; applicability to reporting system of provisions of law relating to revenue stamps.

  1. With respect to malt beverages and wine, the commissioner shall provide, and with respect to distilled spirits, the commissioner may provide, by regulation, that the taxes on malt beverages, wine, and distilled spirits shall be collected by a reporting system.
  2. Pursuant to the establishment of a reporting system authorized by subsection (a) of this Code section, the commissioner may promulgate rules and regulations which shall include, but shall not be limited to, provisions for:
    1. Records to be made and kept;
    2. Penalties to be assessed for failure to comply with the reporting system;
    3. Bonds or other security to be posted with the commissioner; and
    4. Other matters relative to the administration and enforcement of collecting the tax under the reporting system.
  3. In the event the commissioner prescribes a reporting system for collection of taxes imposed on distilled spirits by this title, all of the laws applicable to revenue stamps shall apply to the reporting system insofar as they can be made applicable.
  4. There is established a reporting system for the collection of state excise taxes imposed by this title on all taxable wine. The reporting system shall be conducted as follows:
    1. Every licensed wholesale dealer, importer, and broker located within this state shall file a monthly report with the commissioner, on forms prescribed by the commissioner, setting forth his taxable wine sales for the month and shall remit with the report the appropriate excise taxes on the wine. The reports and remittances shall be filed with the commissioner not later than the fifteenth day of the month next following the month of sale; and
    2. Every licensed manufacturer, winery, producer, shipper, importer, and broker shipping wines or causing wines to be shipped into the state shall file a monthly report with the commissioner, on forms prescribed by the commissioner, which shall set forth the total quantity of wines shipped into the state during the month and which shall have attached to it legible copies of all invoices covering the shipments. The monthly reports shall be filed with the commissioner not later than the fifteenth day of the month next following the month of shipment.

History. — Code 1933, § 5A-306, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, §§ 7, 8.

Cross references. —

Procedures relating to excise taxation of cigars and cigarettes, T. 48, C. 11.

RESEARCH REFERENCES

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 138 et seq., 400 et seq.

3-2-7. Expiration and renewal of licenses generally; continuation of operations by licensee pending final approval or disapproval of application for renewal; penalty for late application for renewal; temporary permits.

    1. Except as otherwise specifically provided in paragraph (2) of this subsection or elsewhere in this title, all licenses issued pursuant to this title shall expire on December 31 of each year and application for renewal shall be made annually on or before November 1.
    2. On and after July 1, 2013, licenses for retailers and retail dealers shall be issued for a 12 month period to be determined by the commissioner and provided by regulation. Applications for renewal of licenses for retailers and retail dealers shall be made not less than 60 nor more than 90 days prior to expiration.
  1. Any licensee making proper application, with all supporting documents, for a license to operate during the following year and having filed the application prior to the renewal date specified in subsection (a) of this Code section shall be permitted to continue to operate pending final approval or disapproval of the licensee’s application for the following year if final approval or disapproval is not granted prior to the day in which the license is set to expire. The effective date and the expiration date of the license shall be clearly marked on the license.
  2. Any person holding any license issued pursuant to this title who fails to file a proper application for a similar license for the following year, with the proper fee accompanying the application, on or before the renewal date specified in subsection (a) of this Code section and who files an application after such date shall be required to pay, in addition to the license taxes imposed by this title, an additional amount equal to one-half the amount required for the license for which application is made.
  3. Persons making initial applications for licenses issued pursuant to this title, after properly filing all required documents, including a valid local license, may be authorized by the commissioner to operate pursuant to a temporary permit which shall be issued under such regulations and in such form as the commissioner may deem appropriate. No right or property shall vest in any applicant by virtue of the issuance of such permit. The commissioner may impose a prelicense investigative fee upon persons making initial application for licenses issued pursuant to this title, which fee shall not exceed $100.00. No such fee shall be refundable.

History. — Code 1933, § 5A-307, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 9; Ga. L. 2012, p. 827, § 1/HB 1066.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 90 et seq., 140 et seq., 149 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 228 et seq., 239 et seq.

ALR. —

Civil liability of one who takes out license for sale of intoxicating liquor for benefit of another, 2 A.L.R. 1516 .

Power to limit the number of intoxicating liquor licenses, 163 A.L.R. 581 .

Grant or renewal of liquor license as affected by fact that applicant held such license in the past, 2 A.L.R.2d 1239.

Transfer of retail liquor license or permit from one location to another, 98 A.L.R.2d 1123.

3-2-7.1. State-wide centralized application process; uniformity; procedures; regulation.

  1. On or before January 1, 2021, the department shall develop and implement a state-wide, centralized application process for initial applications and renewals for licenses and permits for retailers in order to provide for uniform and streamlined practices with respect to such application and renewal process that both the department and any local governing authority of any county or municipality that issues licenses or permits to retailers shall be required to use. Such process shall provide for such licenses and permits for retailers that may be issued by the department and by the governing authority of any county or municipality to be applied for and renewed online. The department in developing and implementing such process shall consider input from retailers, local governments, and the associations that represent them.
  2. The department shall prescribe uniform procedures and forms for the initial application and renewal for licenses and permits for retailers to be used in the state-wide, centralized application process and shall provide for the local governing authority of any county or municipality to provide electronic forms to be added to such process for any additional information that is necessary in order to determine if a local license or local permit may be issued or renewed that such local governing authority demonstrates substantially differs from that requested through the procedures and forms developed by the department, such as, but not limited to, any distance requirements.
  3. The state-wide, centralized application process shall ensure that any initial application or renewal is sent simultaneously upon completion to the department and the appropriate local governing authority; provided, however, that the department may require that a valid local license or permit be issued prior to granting a license or permit.
  4. The state-wide, centralized application process shall provide for the remittance and reporting of all fees for initial applications and renewals for licenses and permits for retailers and may do so by requiring the applicant to pay the department and the local governing authorities of the county or municipality separately at the time the initial application or renewal is submitted.
  5. The department shall administer the state-wide, centralized application process and shall provide access to the necessary authorized users.
  6. The commissioner shall adopt rules and regulations necessary to implement and administer the provisions this Code section.

History. — Code 1981, § 3-2-7.1 , enacted by Ga. L. 2020, p. 615, § 1/HB 879.

Effective date. —

This Code section became effective August 3, 2020.

3-2-8. Availability of records for public inspection; collection of fee for special requests for preparation of information.

The commissioner shall make available for inspection by the public at reasonable times all records relating to alcoholic beverage brands, shipments, and sales by manufacturers, shippers, or wholesalers. The commissioner may charge a fee for special requests for prepared information, which fee shall be based upon the cost of preparation of the information.

History. — Code 1933, § 5A-308, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 10.

3-2-9. Requirements as to reports to be made to commissioner.

Any report made to the commissioner as prescribed in this title shall be made under oath and under such regulations as the commissioner shall prescribe.

History. — Code 1933, § 5A-309, enacted by Ga. L. 1980, p. 1573, § 1.

3-2-10. Disposition of taxes, penalties, interest, and fees.

All taxes, penalties, interest, and fees collected by the commissioner pursuant to this title shall be remitted to the Office of the State Treasurer to the credit of the general fund of this state.

History. — Code 1933, § 5A-310, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, § 2/SB 296.

3-2-11. Penalties for failure to file reports or returns or to pay tax or fee; procedure for assessment of taxes due, penalties, and interest.

Except as otherwise provided in this title:

  1. When any person required to file a report as provided by this title fails to file the report within the time prescribed, he shall be assessed a penalty of $50.00 for each failure to file.
  2. In the event the commissioner determines, upon inspection of the invoices, books, and records of a licensed wholesale dealer or importer or from any other information obtained by him or his authorized agents, that the licensed wholesale dealer or importer has not paid the proper tax or the proper amount of taxes, the wholesale dealer or importer shall be assessed for the taxes due. After assessment, the person assessed shall be provided with notice and an opportunity for a hearing as provided for contested cases by Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
  3. When any person fails to pay any tax or license fee due as provided by this title, the person shall be assessed a penalty the same as that provided for in Code Section 48-2-44.
  4. When any person fails to file a return, files a false or fraudulent return, or when a tax deficiency or any part of a tax deficiency is due to a fraudulent intent to evade any tax imposed or authorized by this title, the person shall be assessed a specific penalty of 50 percent of the tax due.
  5. When any person fails to pay the tax or any part of the tax due as provided by this title, the person shall pay interest on the unpaid tax at the rate of 1 percent per month from the time the tax became due until paid or at the rate specified in Code Section 48-2-40, whichever is greater. Interest shall be computed on a monthly basis for any portion of a month during which payment is delinquent.
  6. All penalties and interest imposed by this title shall be payable to and collected by the commissioner in the same manner as if they were a part of the taxes imposed by this title.

History. — Code 1933, § 5A-311, enacted by Ga. L. 1980, p. 1573, § 1.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 168 et seq., 335 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 544 et seq.

ALR. —

Excise tax on foreign corporation engaged exclusively in interstate commerce measured by net income from business within the taxing state, 44 A.L.R. 1228 .

3-2-12. Waiver of penalties by commissioner.

The commissioner may waive, in whole or in part, the collection of any amount due the state as a penalty under this title whenever, or to the extent that, he reasonably determines that the default giving rise to the penalty was due to reasonable cause and not due to gross or willful neglect or disregard of the law or of regulations or instructions pertaining to the law.

History. — Code 1933, § 5A-312, enacted by Ga. L. 1980, p. 1573, § 1.

3-2-13. Issuance of refunds or credits for taxes paid.

  1. The commissioner may issue credits for taxes paid by or due from a wholesaler when it is shown to the commissioner’s satisfaction that any of the following events has occurred:
    1. Alcoholic beverages have been received by the wholesaler through an error in shipment and the alcoholic beverages are returned to the shipper prior to any sale by the wholesaler in this state;
    2. Alcoholic beverages ordered by the wholesaler have been destroyed in transit prior to entry into the wholesaler’s warehouse or storage area;
    3. Alcoholic beverages which are unfit for consumption upon receipt have been received by the wholesaler and the alcoholic beverages are returned to the shipper or destroyed prior to any sale by the wholesaler in this state;
    4. Alcoholic beverages have been destroyed while in the possession of a wholesaler within the state by an act of God, such as fire, flood, lightning, wind, or other natural calamity;
    5. Wines have been sold by the wholesaler for delivery and consumption outside the state, provided the sale and delivery shall in all respects comply with the requirements of Code Section 3-6-26.1; or
    6. Taxes were paid under a statute expressly held to be unconstitutional by a court of last resort and the payments were made under protest and the ground of the protest was the same as the basis for the ruling of unconstitutionality by the court of last resort.
  2. No person shall receive a credit for taxes paid in any case where an amount equal to the amount of taxes paid has been charged to or paid by any purchaser of the person seeking a refund or credit. When an applicant is issued a credit for taxes paid, in every case where an amount equal to the amount of taxes paid has been charged to or paid by any purchaser of the applicant, the applicant shall refund or credit to the purchaser or customer an amount equal to the credit allowed by the commissioner.
  3. In the event that the commissioner issues a credit under this Code section to a person who has or will have insufficient tax liabilities to the State of Georgia against which to offset the credit, the commissioner shall issue a refund to such person for the unusable portion of the credit.

History. — Code 1933, § 5A-313, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 11; Ga. L. 1992, p. 1458, § 1; Ga. L. 1993, p. 83, § 1; Ga. L. 2006, p. 206, § 3/HB 1248.

RESEARCH REFERENCES

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 419 et seq.

3-2-14. Limitations on credit; application; action for recovery of credit; setoff of unpaid taxes against credit.

  1. No credit for taxes paid on alcoholic beverages in payment of taxes on alcoholic beverages shall be allowed unless an application for credit is filed with the commissioner within 90 days from the date payment is received by the commissioner. If, in the opinion of the commissioner, an application for credit of taxes paid pursuant to this title contains a false statement, the application shall be denied. When an applicant is indebted to the state or an applicant is in violation of this title, the commissioner shall decline to approve the credit until the applicant has complied with the laws of this state. In no event shall interest be allowed on any refund or credit for taxes paid on alcoholic beverages. Nothing contained in this Code section shall be construed so as to allow for a credit or refund of any license fee lawfully due or paid under this title.
  2. Each application for credit shall be filed in writing in the form and containing such information as the commissioner may reasonably require. The commissioner or his delegate shall consider information contained in the application, together with such other information as may be available, and shall approve or disapprove the application and notify the applicant of his action.  Any applicant whose claim is denied by the commissioner or his delegate or whose claim is not decided by the commissioner or his delegate within one year from the date of filing the claim shall have the right to bring an action for a credit in the Superior Court of Fulton County.  No action or proceeding for the recovery of a credit shall be commenced before the expiration of one year from the date of filing the application unless the commissioner or his delegate renders a decision on the application within that time, nor shall any action or proceeding be commenced after the occurrence of the earlier of (1) the expiration of one year from the date the claim is denied, or (2) the expiration of two years from the date the application was filed.  The time for filing an action for the recovery of a credit may be extended for such period as may be agreed upon in writing between the applicant and the commissioner during the period authorized for bringing an action or any extension thereof. In the event any application is approved and the taxpayer has not paid other state taxes which have become due, the commissioner may set off the unpaid taxes against the credit. When the setoff authorized in this Code section is exercised, the credit shall be deemed granted and the amount of the setoff shall be considered for all purposes as a payment toward the particular tax debt which is being set off.  Any excess credit properly allowable under this article which remains after the setoff has been applied may be credited to the taxpayer.

History. — Code 1933, § 5A-314, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1992, p. 1458, § 2; Ga. L. 2006, p. 206, § 4/HB 1248.

Code Commission notes. —

Pursuant to Code Section 28-9-5, in 1992, “article” was substituted for “Article” in the last sentence of subsection (b).

3-2-15. Promulgation of rules and regulations governing advertising of distilled spirits.

The commissioner shall issue rules and regulations governing all advertising of distilled spirits within this state.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 8; Code 1933, § 5A-315, enacted by Ga. L. 1980, p. 1573, § 1.

RESEARCH REFERENCES

Am. Jur. 2d. —

3 Am. Jur. 2d, Advertising, § 15 et seq.45 Am. Jur. 2d, Intoxicating Liquors, §§ 15 et seq. 26 et seq., 196 et seq.

ALR. —

Validity, construction, and effect of statutes, ordinances, or regulations prohibiting or regulating advertising of intoxicating liquors, 20 A.L.R.4th 600.

Article 2 Enforcement

Cross references. —

Powers and duties of agents of Georgia Bureau of Investigation relating to enforcement of laws pertaining to manufacture and transportation of liquor, wine, beer, and other alcoholic beverages, § 35-3-8 .

Enforcement of revenue laws generally, § 48-2-80 et seq.

RESEARCH REFERENCES

ALR. —

Constitutional guaranties against unreasonable searches and seizures as applied to search for or seizure of intoxicating liquor, 3 A.L.R. 1514 ; 13 A.L.R. 1316 ; 27 A.L.R. 709 ; 39 A.L.R. 811 ; 74 A.L.R. 1418 .

Criminal responsibility of husband for violation of liquor law by wife, 19 A.L.R. 136 ; 27 A.L.R. 312 .

Effect of interference by law with liquor business on lease of property for that purpose, 22 A.L.R. 821 .

3-2-30. Powers and duties of special agents and enforcement officers of department generally; bond requirement; retention of weapon and badge upon retirement or disability.

  1. Persons appointed by the commissioner as special agents or enforcement officers of the department, in the enforcement of this title and other laws of this state with respect to the manufacture, transportation, distribution, sale, storage, or possession of alcoholic beverages, shall have the authority throughout the state to:
    1. Obtain and execute warrants for arrest of persons charged with violations of such laws;
    2. Obtain and execute search warrants in the enforcement of such laws;
    3. Arrest without warrant any person violating such laws in the officer’s presence or within his immediate knowledge when there is likely to be a failure of enforcement of such laws for want of a judicial officer to issue a warrant;
    4. Make investigations in the enforcement of such laws and, in connection with the investigations, to go upon any property outside of buildings, posted or otherwise, in the performance of official duties;
    5. Seize and take possession of all property which is declared contraband under such laws; and
    6. Carry firearms while performing their duties.
  2. Each special agent or enforcement officer shall file with the commissioner a public official’s bond in the amount of $1,000.00, the cost of which shall be paid by the department.
  3. Nothing in this title shall be construed so as to relieve any special agent or enforcement officer, after making an arrest, from the duties imposed generally to obtain a warrant promptly and, without undue delay, to return arrested persons before a person authorized to examine, commit, or receive bail, as required by general law.
  4. After an agent or enforcement officer has accumulated 25 years of service with the department, upon leaving the department under honorable conditions, such agent or enforcement officer shall be entitled as part of such officer’s compensation to retain his or her weapon and badge pursuant to regulations promulgated by the commissioner.
  5. As used in this subsection, the term “disability” means a disability that prevents an individual from working as a law enforcement officer. When a special agent or an enforcement officer leaves the department as a result of a disability arising in the line of duty, such special agent or an enforcement officer shall be entitled as part of such officer’s compensation to retain his or her weapon and badge in accordance with regulations promulgated by the commissioner.

History. — Ga. L. 1963, p. 135, §§ 1, 2; Code 1933, § 5A-350, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 12; Ga. L. 1996, p. 1074, § 1; Ga. L. 2004, p. 1058, § 1; Ga. L. 2005, p. 60, § 3/HB 95.

RESEARCH REFERENCES

Am. Jur. 2d. —

5 Am. Jur. 2d, Arrest, §§ 40 et seq., 53 et seq., 64 et seq., 67 et seq.14 Am. Jur. 2d, Carriers, § 513. 45 Am. Jur. 2d, Intoxicating Liquors, §§ 15 et seq., 26 et seq., 261 et seq., 374 et seq.68 Am. Jur. 2d, Searches and Seizures, §§ 37 et seq., 143 et seq.

ALR. —

Criminal responsibility of purchaser of intoxicating liquor under National Prohibition Act, 68 A.L.R. 895 .

Validity of particular statutory provisions or other regulations as to inspection, entry, or search of places licensed for sale of intoxicating liquors, 116 A.L.R. 1098 .

3-2-31. Assistance to other authorities by special agents and enforcement officers of department.

  1. Upon a request by the governing authority of any municipality or county, the sheriff or chief of a county police force, the judge of the superior court of any county, or the Governor, the commissioner, in unusual circumstances, may and, in the case of an order from the Governor, shall direct special agents and enforcement officers of the department to render assistance in:
    1. Any criminal case;
    2. The prevention of violations of law; or
    3. Detecting and apprehending those violating any criminal laws of this state, any other state, or the United States.
  2. This Code section shall not apply solely to agents who enforce this title but shall apply to all agents of the department with law enforcement powers.

History. — Ga. L. 1978, p. 1490, § 1; Code 1933, § 5A-351, enacted by Ga. L. 1980, p. 1573, § 1.

JUDICIAL DECISIONS

Constitutionality of searches. —

There was no constitutional offense in a state revenue agent and local law enforcement officers coordinating and consolidating their efforts to enforce O.C.G.A. § 3-2-31 which authorizes such cooperation to conduct an administrative search for violations of the Georgia Alcoholic Beverage Code in conjunction with executing arrest warrants for previously observed violations of these laws. Crosby v. Paulk, 187 F.3d 1339 (11th Cir. 1999).

3-2-32. Inspection of premises by commissioner and agents generally; access to books, records, and supplies.

The commissioner and his agents may enter upon the licensed premises of any person engaged in the manufacture, transportation, distribution, sale, storage, or possession of alcoholic beverages at any time for the purpose of inspecting the premises and enforcing this title and shall have access during the inspection to all books, records, and supplies relating to the manufacture, transportation, distribution, sale, storage, or possession of alcoholic beverages.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 8; Code 1933, § 58-817, enacted by Ga. L. 1977, p. 1316, § 1; Code 1933, § 5A-352, enacted by Ga. L. 1980, p. 1573, § 1.

RESEARCH REFERENCES

Am. Jur. 2d. —

3 Am. Jur. 2d, Advertising, §§ 8, 15 et seq.45 Am. Jur. 2d, Intoxicating Liquors, §§ 15 et seq., 26 et seq., 261 et seq., 377 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 45 et seq., 63 et seq., 77 et seq., 436 et seq.

3-2-33. Sale, possession, concealment, storage, or conveyance of untaxed alcoholic beverages; declaration of untaxed or otherwise unlawful alcoholic beverages as contraband; seizure and disposition of contraband alcoholic beverages.

  1. Except as otherwise specifically provided for by law, it is unlawful for any person to sell, possess, conceal, store, or convey any alcoholic beverage on which any tax or license fee imposed by this title has not been paid.
  2. Any peace officer or authorized agent of the commissioner shall declare as contraband any alcoholic beverage:
    1. Not reported for collection of taxes under a reporting system established by the commissioner;
    2. Found in any county, municipality, or unincorporated area of any county where the sale of alcoholic beverages is not lawful when the alcoholic beverage is intended for use or sale contrary to law; or
    3. Sold, conveyed, or possessed, concealed, stored, or held for sale by any person who has not first obtained all licenses required by this title.
  3. Except as otherwise provided in this title, all contraband alcoholic beverages seized shall be immediately delivered to the commissioner or to persons designated by him to receive the contraband alcoholic beverages.

History. — Code 1933, § 5A-354, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 14; Ga. L. 1985, p. 1118, § 1; Ga. L. 2006, p. 206, § 5/HB 1248.

Editor’s notes. —

In light of the similarity of the statutory provisions, annotations decided under former Ga. L. 1937-38, Ex. Sess., p. 103 are included in the annotations for this Code section.

Cross references. —

Possession, sale, or purchase of unstamped distilled spirits, § 3-3-29 .

Seizure and disposition as contraband of cigars and cigarettes on which taxes not paid or on which stamps do not appear, § 48-11-9 .

JUDICIAL DECISIONS

Ga. L. 1937-38, Ex. Sess., p. 103 is not violative of the due process clause of the Fourteenth Amendment for vagueness. Akins v. State, 224 Ga. 650 , 164 S.E.2d 125 (1968) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Former Code 1933, §§ 58-122 (see now O.C.G.A. § 3-10-10 ) and Ga. L. 1937-38, Ex. Sess., p. 103 were not unconstitutional for lack of due process in failing to provide for notice and hearing prior to seizure or prior to disposition of liquor declared to be contraband and forfeited to the state. Blackmon v. Brotherhood Protective Order of Elks, Toccoa Lodge No. 1820, 232 Ga. 671 , 208 S.E.2d 483 (1974) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Legislative intent. —

The legislative intent was that liquors would be handled only in the manner provided by statute, that is, through licensed dealers, and that any handling other than in such manner would be contrary to statute. Martin v. Cook, 72 Ga. App. 741 , 34 S.E.2d 733 (1945) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Burden of proof on plaintiff. —

In a possessory-warrant proceeding, the burden of proof is on the plaintiff to establish that the plaintiff was in peaceable and legally acquired possession of whiskey in question when it was seized by the commissioner; where under the facts and reasonable inferences to be drawn therefrom, a finding is demanded that the plaintiff illegally acquired the whiskey involved, the commissioner is authorized under the law to seize the whiskey as contraband. Cook v. Hyatt, 72 Ga. App. 744 , 34 S.E.2d 922 (1945) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

OPINIONS OF THE ATTORNEY GENERAL

Analysis

Unlawful Acts

Illegal to possess untaxed alcoholic beverages. — It is illegal to possess in a wet county any quantity of distilled spirits on which no Georgia alcohol taxes and no alcohol taxes of another state have been paid, including among other things, all distilled spirits illegally manufactured in Georgia. 1984 Op. Atty Gen. No. U84-16.

Illegal to possess liquor for sale without license. — It is illegal to possess Georgia-tax-paid distilled spirits in a wet county for the purpose of sale when the possessor/seller does not hold a valid license authorizing such sale. 1984 Op. Atty Gen. No. U84-16.

Liquors lawfully kept may be attached like other property but sale is subject to regulations and supervision of commissioner. 1962 Ga. Op. Att'y Gen. 296. (rendered under former Ga. L. 1937-38, Ex. Sess., p. 103).

Contraband liquor must be turned over to commissioner, whether tax-paid or non-tax-paid. 1962 Ga. Op. Att'y Gen. 297 (rendered under former Ga. L. 1937-38, Ex. Sess., p. 103).

Lawful Acts

There is no quantity limitation for possessing Georgia-tax-paid distilled spirits in a wet county for personal use, which in this context means for the possessor’s own personal consumption, including free gifts to the possessor’s family or friends. 1984 Op. Atty Gen. No. U84-16.

Possession of out-of-state purchased liquor permitted. — The Code allows possession of up to one-half gallon of distilled spirits purchased by the possessor outside of this state in accordance with the laws of the place where purchased and brought into this state by the purchaser. 1984 Op. Atty Gen. No. U84-16.

The vehicle used to transport tax-paid liquor is not subject to seizure. 1969 Op. Att'y Gen. No. 69-16 (rendered under former Ga. L. 1937-38, Ex. Sess., p. 103).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 192 et seq., 249 et seq., 261 et seq., 335 et seq., 393 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 454 et seq. 48A C.J.S., Intoxicating Liquors, §§ 692 et seq., 750 et seq., 777 et seq.

ALR. —

Constitutional guaranties against unreasonable searches and seizures as applied to a search for or seizure of intoxicating liquor, 13 A.L.R. 1316 ; 27 A.L.R. 709 ; 39 A.L.R. 811 ; 74 A.L.R. 1418 .

Right of state to interfere with shipment of liquor through its territory, 27 A.L.R. 108 .

Constitutionality of statute making unlawful possession of intoxicating liquor legally obtained or providing for its confiscation, 37 A.L.R. 1386 .

Constitutionality of statute providing for confiscation or destruction, without notice, of intoxicating liquors, and vehicles or other property used in connection with same, 45 A.L.R. 93 .

Rights and protection of innocent persons where property in which they are interested is seized because of its illegal use in connection with intoxicating liquor, 124 A.L.R. 288 .

Lawfulness of seizure of property used in violation of law as prerequisite to forfeiture action or proceeding, 8 A.L.R.3d 473.

Contributory negligence allegedly contributing to cause of injury as defense in Civil Damage Act proceeding, 64 A.L.R.3d 849.

Proof of causation of intoxication as a prerequisite to recovery under Civil Damage Act, 64 A.L.R.3d 882.

Civil Damage Act: Liability of one who furnishes liquor to another for consumption by third parties, for injury caused by consumer, 64 A.L.R.3d 922.

3-2-34. Disposition of contraband alcoholic beverages; seizure; destruction; sale; retention of small quantity for evidence.

  1. All alcoholic beverages upon which no taxes have been paid to this state or any other state and which are not specifically exempt from the taxes imposed by law shall be destroyed by the peace officer or agent of the commissioner seizing the beverages, except that a small quantity of the illicit alcoholic beverage may be retained for purposes of evidence in the proper court; and then the illicit alcoholic beverage shall be destroyed immediately.
  2. All contraband alcoholic beverages upon which the taxes have been paid either to this state or to any other state shall be either destroyed or sold at public sale as provided by law.

History. — Code 1933, § 5A-355, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 15.

Cross references. —

Seizure and disposition as contraband of cigars and cigarettes on which taxes not paid or on which stamps do not appear, § 48-11-9 .

JUDICIAL DECISIONS

Unauthorized use of confiscated beverages. —

Where a city was the owner of confiscated alcoholic beverages and no prior consent had been given to police officers to use the beverages as refreshments at a meeting, the officers who had so used the beverages were guilty of theft. Whitley v. State, 176 Ga. App. 364 , 336 S.E.2d 301 (1985).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 374 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 90, 392 et seq., 425 et seq. 48A C.J.S., Intoxicating Liquors, §§ 692 et seq., 750 et seq., 777 et seq.

3-2-35. Seizure of contraband by commissioner and agents; proceedings upon seizure; hearing on entitlement to seized items; appeals; disposition of items upon which taxes have been paid.

  1. The commissioner and his agents shall seize and take possession of any contraband found in the possession of any person in violation of this title.
  2. Upon seizure, the commissioner or his agent shall give a receipt to the person from whom the contraband property was seized, if known, identifying the property seized and indicating from whom seized and the place of seizure.
  3. A copy of the receipt shall be:
    1. Filed in the office of the commissioner and shall be a public record open to public inspection; and
    2. Posted at the courthouse of the county in which the contraband was seized.
  4. Any person desiring to make claim to the contraband property shall file a claim with the commissioner at his office in Atlanta within ten days from the day of seizure. The commissioner, within 30 days of receipt of any such claim, shall afford the claimant a hearing in which to show his entitlement to the seized items. The burden of proof at such hearing shall be upon the claimant to establish his claim to the items seized and to show compliance with or justification for noncompliance with this Code section. The commissioner shall enter a written order granting or denying the claim within 30 days from the date of the hearing.
  5. An appeal from the commissioner’s order may be taken to the Superior Court of Fulton County by filing with the commissioner, within 15 days from the date of the decision, a notice of appeal to the Superior Court of Fulton County. The appeal shall be based upon the record made before the commissioner; and the commissioner, upon the filing of a notice of appeal, shall transmit the record and appropriate documents to the superior court within 30 days from the date of the filing of notice of appeal. The superior court shall review the record for errors of law, violation of constitutional or statutory provisions, violation of the statutory authority of the agency, lawfulness of the procedure, lack of any evidence to support the decision, and arbitrariness and abuse of discretion. However, the court shall not substitute its judgment for that of the hearing officer as to the weight of evidence on questions of fact.
  6. All alcoholic beverages upon which the taxes have been paid to either this state or any other state shall be disposed of as follows:
    1. In the case of malt beverage, the seized goods shall be destroyed by the commissioner or his authorized agent;
    2. In the case of wine, the seized goods shall be sold by the commissioner at public sale, except that, where seized wine is determined by the commissioner to be unfit for human consumption, it shall be destroyed;
    3. In the case of distilled spirits, the seized goods shall be sold by the commissioner at public sale, except that, where seized distilled spirits are determined by the commissioner to be unfit for human consumption, the distilled spirits shall be destroyed.
  7. This Code section shall not apply to unlawfully manufactured alcoholic beverages.

History. — Code 1933, § 5A-356, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 16; Ga. L. 1982, p. 3, § 3.

Editor’s notes. —

In light of the similarity of the statutory provisions, annotations decided under former Ga. L. 1937-38, Ex. Sess., p. 103 are included in the annotations for this Code section.

Cross references. —

Seizure and disposition as contraband of cigars and cigarettes on which taxes not paid or on which stamps do not appear, § 48-11-9 .

JUDICIAL DECISIONS

Ga. L. 1937-38, Ex. Sess., p. 103 (see now subsection (d)) is construed to allow claims by a party to the proceedings, as well as by third parties, since a contrary construction would have the effect of denying remedy to such party, thereby rendering the subsection unconstitutional. Allen v. Giddens, 118 Ga. App. 755 , 165 S.E.2d 606 (1968) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Procedure for contesting seizure. —

The sole statutory provision for contesting seizure of contraband beer under Ga. L. 1937-38, Ex. Sess., p. 103 (see now subsection (a) of O.C.G.A. § 3-2-35 ), is filing of claim pursuant to Ga. L. 1937-38, Ex. Sess., p. 103 (subsection (d) of § 3-3-25 ), which is to be tried in superior court as other claims. Allen v. Giddens, 118 Ga. App. 755 , 165 S.E.2d 606 (1968) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Procedural irregularities not cause for suppression of evidence. —

When executing officers gave to the defendant an inventory of items seized, their failure to deliver a similar inventory to the magistrate issuing the warrant as required by Ga. L. 1966, p. 567 (see now O.C.G.A. § 17-5-2 ), and a return thereof on a warrant as required by Ga. L. 1966, p. 567 (see now O.C.G.A. § 17-5-2 9), and a delivery to the sheriff of items seized and a report to the commissioner as required by Ga. L. 1937-38, Ex. Sess., p. 103 (O.C.G.A. § 3-2-35 ), was not cause for suppression of the evidence. Holloway v. State, 134 Ga. App. 498 , 215 S.E.2d 262 (1975) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Delaying the sending of receipt. —

Since there is no time requirement under Ga. L. 1937-38, Ex. Sess., p. 103 (see now subsection (b) of O.C.G.A. § 3-2-35 ), there is no harmful error in delaying the sending of the receipt for a reasonable period of time, until after the prosecution of the case has run its course, though the better practice would be to send it immediately. Cowart v. State, 134 Ga. App. 757 , 216 S.E.2d 350 (1975) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

OPINIONS OF THE ATTORNEY GENERAL

Requisite evidence for seizure of beer. — Beer should not be seized unless there is some evidence that the person is selling it, is offering it for sale, or is holding it for purpose of sale. 1960-61 Ga. Op. Att'y Gen. 285 (rendered under former Ga. L. 1937-38, Ex. Sess., p. 103)

RESEARCH REFERENCES

Am. Jur. 2d. —

14 Am. Jur. 2d, Carriers, § 513. 45 Am. Jur. 2d, Intoxicating Liquors, §§ 374 et seq., 393 et seq.68 Am. Jur. 2d, Searches and Seizures, § 143 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 90, 392 et seq., 425 et seq. 48A C.J.S., Intoxicating Liquors, §§ 692 et seq., 750 et seq., 777 et seq.

ALR. —

Constitutionality of statute providing for confiscation or destruction, without notice, of intoxicating liquors, and vehicles or other property used in connection with same, 45 A.L.R. 93 .

Rights and protection of innocent persons where property in which they are interested is seized because of its illegal use in connection with intoxicating liquor, 124 A.L.R. 288 .

Lawfulness of seizure of property used in violation of law as prerequisite to forfeiture action or proceeding, 8 A.L.R.3d 473.

What constitutes plain, speedy, and efficient state remedy under Tax Injunction Act (28 USCS § 1341), prohibiting federal district courts from interfering with assessment, levy, or collection of state business taxes, 31 A.L.R. Fed. 2d 237.

3-2-36. Arrest and prosecution of violators of title.

The commissioner or his agents shall secure warrants or other criminal process against any person who violates any provision of this title in counties and municipalities where the sale of alcoholic beverages is not authorized and in counties and municipalities where the sale of alcoholic beverages is authorized but where the alcoholic beverages are being sold contrary to law. The commissioner or his agents shall prosecute such offenders.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 17; Ga. L. 1972, p. 207, § 8; Code 1933, § 5A-353, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 13.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 261 et seq., 374 et seq.

Am. Jur. Pleading and Practice Forms. —

14C Am. Jur. Pleading and Practice Forms, Intoxicating Liquors, § 74 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 454 et seq., 557 et seq.

ALR. —

Right to arrest without a warrant for unlawful possession or transportation of intoxicating liquor, 44 A.L.R. 132 .

CHAPTER 3 Regulation of Alcoholic Beverages Generally

RESEARCH REFERENCES

ALR. —

Provision as to sale of liquor to women as affecting validity of regulatory statute, 9 A.L.R.2d 541.

Construction of statute or ordinance making it an offense to possess or have alcoholic beverages in opened package in motor vehicle, 35 A.L.R.3d 1418.

Propriety of requirement, as condition of probation, that defendant refrain from use of intoxicants, 19 A.L.R.4th 1251.

Validity and construction of statute or ordinance making it offense to have possession of open or unsealed alcoholic beverage in public place, 39 A.L.R.4th 668.

Liquor license as subject to execution or attachment, 40 A.L.R.4th 927.

Article 1 General Provisions

Administrative rules and regulations. —

General provisions, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Department of Revenue, Alcohol and Tobacco Tax Unit, Subject 560-2-2.

3-3-1. Declaration of business of manufacturing, selling, and other dealings in alcoholic beverages as privilege subject to regulatory requirements.

The businesses of manufacturing, distributing, selling, handling, and otherwise dealing in or possessing alcoholic beverages are declared to be privileges in this state and not rights; however, such privileges shall not be exercised except in accordance with the licensing, regulatory, and revenue requirements of this title.

History. — Code 1933, § 5A-501, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1985, p. 1118, § 2.

Law reviews. —

For article on local government law and liquor licensing, see 15 Ga. L. Rev. 1039 (1981).

For article, “Lawyers Who Represent Local Governments,” see 23 Ga. St. B. J. 58 (1987).

For comment on Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964), overturning the mere privilege doctrine by applying due process requirement to liquor licensing, see 19 Mercer L. Rev. 250 (1968).

JUDICIAL DECISIONS

Editor’s notes. —

In light of the similarity of the statutory provisions, annotations decided under former Ga. L. 1937-38, Ex. Sess., p. 103 are included in the annotations for this Code section.

Liquor licenses may not be revoked during period of their effectiveness without some rudimentary due process protections. —

A liquor license holder has a sufficient property interest in holding license to date of its automatic termination that revocation of that license must be accompanied by rudimentary due process protections. Liquor license revocation procedures which provide for a hearing, preceded by advance notice setting forth charge forming basis for revocation, are sufficient to comport adequately with due process mandates. Page v. Jackson, 398 F. Supp. 263 (N.D. Ga. 1975) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Ga. L. 1937-38, Ex. Sess. p. 103 does not confer a right upon anyone; it is expressly limited to the granting or refusal of a mere privilege. Hudon v. North Atlanta, 108 Ga. App. 370 , 133 S.E.2d 58 (1963) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Ga. L. 1937-38, Ex. Sess. p. 103 applies to issuance and transfer of licenses granting to persons the privilege of engaging in sale of such commodities. Allen v. Carter, 226 Ga. 727 , 177 S.E.2d 245 (1970) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

A license to sell spirituous liquors is neither a contract nor a property right in licensee, but a mere permit to do what would otherwise be an offense against the general law. Smith v. Nix, 206 Ga. 403 , 57 S.E.2d 275 (1950) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

The authority to regulate traffic in liquor in state is solely within police power of state, and privilege of possessing and selling liquor in state can be obtained only by strict compliance with state’s laws regulating traffic and sale of liquors. Akins v. State, 224 Ga. 650 , 164 S.E.2d 125 (1968) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Since no one has inherent right to engage in intoxicating liquor business, licensing regulation is not proper subject for enforcement by writ of mandamus. Lindsey v. Hill, 221 Ga. 518 , 145 S.E.2d 556 (1965) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Stock agreement not illegal. —

Ga. Comp. R. & Regs. r. 560-2-2-.38 is not shown to be derived from any statute, constitutional provision, or judicial decision apart from the Georgia Department of Revenue’s mandate under the Georgia Alcoholic Beverage Code (Act), O.C.G.A. § 3-1-1 , to make rules and regulations for the enforcement of the Act and the collection of revenues under the Act; although the parties intended to circumvent Ga. Comp. R. & Regs. r. 560-2-2-.38 by issuing corporate stock to an employee’s wife, the stock agreement was not illegal or immoral; thus, a trial court erred in voiding the stock interest of the employee’s wife, and summary judgment in favor of the corporation in the wife’s action for an accounting, dissolution, and other relief was reversed. Edwards v. Grapefields, Inc., 267 Ga. App. 399 , 599 S.E.2d 489 (2004), cert. denied, No. S04C1641, 2004 Ga. LEXIS 677 (Ga. Sept. 7, 2004).

Applicability of sovereign immunity to action between city and county. —

In a case involving taxation of alcoholic beverages, the city’s claims against the county were not barred by sovereign immunity since the city and county were merely exercising their own respective home rule powers by collecting tax revenues for their own purposes, and neither was acting on behalf of the State of Georgia; thus, there was no sovereignty to be maintained. City of College Park v. Clayton County, 306 Ga. 301 , 830 S.E.2d 179 (2019).

RESEARCH REFERENCES

Am. Jur. 2d. —

16A Am. Jur. 2d, Constitutional Law, §§ 285, 286, 287. 45 Am. Jur. 2d, Intoxicating Liquors, §§ 1, 2, 3 et seq., 15 et seq., 26 et seq., 90 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 45 et seq., 63 et seq., 77 et seq., 138 et seq., 158 et seq., 425 et seq., 436 et seq.

ALR. —

What constitutes manufacturing and who is a manufacturer under tax laws, 17 A.L.R.3d 7.

3-3-1.1. Legislative intent; construction.

  1. This title has been enacted pursuant to the authority granted to the state under the Twenty-first Amendment to the United States Constitution, the powers reserved to the state under the Tenth Amendment to the United States Constitution, and the inherent powers of the state under the Constitution of the State of Georgia of 1983. It is the intent of the General Assembly that this title do all of the following:
    1. Further regulate and control alcoholic beverage transactions in this state under the control and supervision of the commissioner;
    2. Promote and assure the public’s interest in fair and efficient distribution and quality control of alcoholic beverages in this state;
    3. Promote orderly marketing of alcoholic beverages;
    4. Prevent unfair business practices, discrimination, and undue control of one segment of the alcoholic beverage industry by any other segment;
    5. Foster vigorous and healthy competition in the alcoholic beverage industry;
    6. Preserve and promote a robust, stable system of distribution of alcoholic beverages to the public;
    7. Provide for an orderly system of public revenues by facilitating the collection and accountability of this state and local excise taxes;
    8. Facilitate the collection of state and local revenue;
    9. Promote the health, safety, and welfare of residents of this state by, among other purposes, ensuring that the commissioner shall be able to inspect and seize any alcoholic beverage shipped into, distributed, and sold throughout this state and ensuring that any such alcoholic beverage:
      1. Has been registered for sale in this state with the commissioner;
      2. Is not subject to a government mandated or supplier initiated recall;
      3. Is not counterfeit;
      4. Is labeled in conformance with applicable laws, rules, and regulations;
      5. Can be tested by the commissioner or an agent assigned by the commissioner; and
      6. Is not prohibited by this state; and
    10. Promote and maintain a sound, stable, and viable three-tier system of distribution of alcoholic beverages to the public.
  2. If any provision of this title or its application to any person or circumstance is determined by a court or other authority of competent jurisdiction to be invalid or unconstitutional, such provision shall be stricken and the remaining provisions shall be construed in accordance with the intent of the General Assembly to further limit rather than expand commerce in alcoholic beverages, and with respect to alcoholic beverages, the remaining provisions shall be construed to enhance strict regulatory control over the taxation, manufacture, distribution, and sale of alcoholic beverages through the three-tier regulatory system and the licensing laws imposed by this title.

History. — Code 1981, § 3-3-1.1 , enacted by Ga. L. 2020, p. 615, § 1A/HB 879.

Effective date. —

This Code section became effective August 3, 2020.

3-3-2. Powers of local governing authorities as to granting, refusal, suspension, or revocation of licenses generally; due process guidelines; fingerprints.

  1. Except as otherwise provided for in this title, the manufacturing, distributing, and selling by wholesale or retail of alcoholic beverages shall not be conducted in any county or incorporated municipality of this state without a permit or license from the governing authority of the county or municipality. Each such 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 the permits or licenses; provided, however, that residency by an applicant within the city or county issuing the permit or license shall not be a requirement by the respective local governing authority if the applicant designates a resident of the city or county who shall be responsible for any matter relating to the license.
  2. The granting or refusal and the suspension or revocation of the permits or licenses shall be in accordance with the following guidelines of due process:
    1. The governing authority shall set forth ascertainable standards in the local licensing ordinance upon which all decisions pertaining to these permits or licenses shall be based;
    2. All decisions approving, denying, suspending, or revoking the permits or licenses shall be in writing, with the reasons therefor stated, and shall be mailed or delivered to the applicant; and
    3. Upon timely application, any applicant aggrieved by the decision of the governing authority regarding a permit or license shall be afforded a hearing with an opportunity to present evidence and cross-examine opposing witnesses.
  3. As a prerequisite to the issuance of any such initial permit or license only, the applicant shall furnish a complete set of fingerprints to be forwarded to the Georgia Bureau of Investigation, which shall search the files of the Georgia Crime Information Center for any instance of criminal activity during the two years immediately preceding the date of the application. The Georgia Bureau of Investigation shall also submit the fingerprints to the Federal Bureau of Investigation under the rules established by the United States Department of Justice for processing and identification of records. The federal record, if any, shall be obtained and returned to the governing authority submitting the fingerprints.

History. — Ga. L. 1935, p. 73, § 15A; Ga. L. 1973, p. 12, § 1; Ga. L. 1973, p. 14, § 1; Code 1933, § 5A-502, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 17; Ga. L. 1998, p. 1300, § 1; Ga. L. 2006, p. 206, § 6/HB 1248.

Cross references. —

Regulation of business of operating road houses, public dance halls, and other establishments by local governments, § 43-21-50 et seq.

Administrative rules and regulations. —

Rules regulating the Georgia Bureau of Investigation, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Bureau of Investigation, Chapter 92-1.

Law reviews. —

For annual survey of administrative law, see 38 Mercer L. Rev. 17 (1986).

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

For comment, “Retail Liquor Licenses and Due Process: The Creation of Property Through Regulation,” see 32 Emory L.J. 1199 (1983).

JUDICIAL DECISIONS

Editor’s notes. —

In light of the similarity of the statutory provisions, annotations decided under Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103 are included in the annotations for this Code section.

County code requiring liquor permits constitutional. —

Section of DeKalb County Code requiring all employees of an establishment holding a license for consumption of beer or wine, except busboys, cooks, and dishwashers, to have permits was not unconstitutional and did not exceed the county’s powers of home rule. Kariuki v. DeKalb County, 253 Ga. 713 , 324 S.E.2d 450 (1985), overruled, Russell v. East Point, 261 Ga. 213 , 403 S.E.2d 50 (1991).

Alcohol licensing ordinance constitutional. —

County licensing ordinance provided an applicant with adequate notice of the criteria applied in consideration of an application for an alcohol license, and the commission exercised the commission’s discretion within the plain, ascertainable standards thereof. Myon Tul Chu v. Augusta-Richmond County, 269 Ga. 822 , 504 S.E.2d 693 (1998).

That part of the Jasper, Ga., Alcoholic Beverages Ordinance that authorized license revocation for any legal violation that the City Council determined to have occurred violated due process principles and could not stand; there were no such limits on the council’s discretionary revocation authority and no “ascertainable standards” to guide or limit the grounds for the Council’s decision. Folsom v. City of Jasper, 279 Ga. 260 , 612 S.E.2d 287 (2005).

Section does not create property interest. —

This section does not create the concrete expectation necessary for the creation of a constitutionally protectible property interest because it merely requires the promulgation of standards for the issuance of a malt-beverage license, but does not itself outline standards which, if met, would lead to the issuance of a malt-beverage license. Scoggins v. Moore, 579 F. Supp. 1320 (N.D. Ga.) aff’d747 F.2d 1466 (11th Cir. 1984); Top Shelf, Inc. v. Mayor & Aldermen, 840 F. Supp. 903 (S.D. Ga. 1993).see also .

O.C.G.A. § 3-3-2 does not in itself create a protectable property interest but, once the governing authority promulgates an ordinance which outlines the standards for issuance of a malt-beverage license, applicants possess a protectable property interest. McCollum v. City of Powder Springs, 720 F. Supp. 985 (N.D. Ga. 1989).

Denial of due process in issuance of licenses. —

The failure of the county commission to issue standards as to the issuance of licenses for the sale of malt beverages, coupled with the lack of response to an application to sell malt beverages, while at the same time tacitly issuing licenses to some citizens, constituted a denial of due process and of equal protection under the law. Johnson v. Brown, 584 F. Supp. 510 (M.D. Ga. 1984).

Denial of equal protection in issuance of licenses. —

It was a denial of equal protection for the sheriff and county commissioners to refuse to grant a beer and wine license to a qualified applicant while at the same time conspiring to ignore illegal beer sales by other establishments in the county. Parham v. Hix, 608 F. Supp. 546 (M.D. Ga. 1985).

Refusal to issue any licenses not subject to procedural guidelines. —

Because state law does not grant an applicant a property interest in the opportunity to acquire a liquor license, a county commissioner’s failure to establish standards for the granting of a license does not violate the applicant’s due process rights. Further, when the commissioner refuses to grant any licenses whatsoever, Georgia law does not require the commissioner to follow the procedural safeguards outlined in O.C.G.A. § 3-3-2 when the commissioner denies a license request. Cheek v. Gooch, 779 F.2d 1507 (11th Cir. 1986).

Express authorization for ordinance. —

Subsection (a) of O.C.G.A. § 3-3-2 constitutes an express authorization by general law for Effingham County to exercise by local ordinance the police power of revoking licenses for the sale of beer and wine, so long as the ordinance meets the requirement of Ga. Const. 1983, Art. III, Sec. VI, Para. IV(a), that it not conflict with general law. Grovenstein v. Effingham County, 262 Ga. 45 , 414 S.E.2d 207 (1992).

Effect of county referendum on municipality. —

A municipality which has not conducted a local referendum, but is located within a county which has held a referendum, is not empowered by the result of the county referendum to allow sales of liquor by the drink. Price v. City of Snellville, 253 Ga. 166 , 317 S.E.2d 834 (1984).

County ordinance using voting districts and property lines to determine the number and location of licensed stores was reasonably related to the county’s goal of regulating the retail sale of beer and wine and did not violate due process. Bradshaw v. Dayton, 270 Ga. 884 , 514 S.E.2d 831 (1999).

Decision to revoke a license may precede a hearing. City Council v. Crump, 251 Ga. 594 , 308 S.E.2d 180 (1983).

Sale of malt beverages is privilege, and denial of license does not deprive accused of anything to which the accused has absolute right. Collier v. State, 54 Ga. App. 346 , 187 S.E. 843 (1936); Ebling v. City of Rome, 54 Ga. App. 608 , 188 S.E. 727 (1936); Acree v. Ragsdale, 60 Ga. App. 717 , 4 S.E.2d 708 (1939); Lamb v. Fedderwitz, 68 Ga. App. 233 , 22 S.E.2d 657 (1942), aff'd, 195 Ga. 691 , 25 S.E.2d 414 (1943); Hudon v. North Atlanta, 108 Ga. App. 370 , 133 S.E.2d 58 (1963).

Since no right, but mere privilege, is involved, one denied license is not in position to assert denial of a right guaranteed by state or federal constitutions. Kicklighter v. City of Jesup, 219 Ga. 744 , 135 S.E.2d 890 (1964).

Due process requirement. —

Determination of whether liquor license should be granted is function of aldermanic board (governing authority) acting under Ga. L. 1937-38, Ex. Sess., p. 103 (see now O.C.G.A. § 3-3-2 ), and this determination must accord with constitutional standards of due process and equal protection. Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964).

Denial of license when standards met. —

If governing authority of city or county decides to permit sale of malt beverages or beer, it shall adopt an ordinance setting forth prescribed standards for issuance of licenses. When an applicant for a license meets these standards, refusal by governing authority to issue 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).

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

This section requires local license as condition precedent to issuance of license by state. Crews v. Undercofler, 371 F.2d 534 (5th Cir. 1967).

Under Georgia law, obtaining a municipal license is a prerequisite to obtaining a state liquor license. Page v. Jackson, 398 F. Supp. 263 (N.D. Ga. 1975).

Discretion of authorities in granting license. —

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

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).

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).

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).

Nature of license and power of revocation. —

A license to sell beer in this state is neither a contract nor a right of property within legal and constitutional meaning of those terms. It is no more than temporary permit to do that which would otherwise be unlawful, and forms part of internal police system of this state. Hence, authority which granted license retains power to revoke it for due cause. Ebling v. City of Rome, 54 Ga. App. 608 , 188 S.E. 727 (1936).

County without authority to require county license. —

Glynn County has no authority to require county license for sale of alcoholic beverages on Jekyll Island, since island is owned by state and is governed by Jekyll Island State Park Authority. Glynn County v. Davis, 228 Ga. 588 , 186 S.E.2d 872 (1972).

State statutes preempted city’s ordinance. —

Conviction and fine against a convenience store operator for violating a city ordinance that prohibited certain retailers of packaged alcoholic beverages from allowing coin operated amusement machines (COAMs) on the same premises was reversed because the state’s COAM Laws, O.C.G.A. §§ 16-12-35 and 50-27-70 et seq., preempted the city’s ordinance at least insofar as the ordinance applied to COAMs as defined by the state statutes. Gebrekidan v. City of Clarkston, 298 Ga. 651 , 784 S.E.2d 373 (2016).

OPINIONS OF THE ATTORNEY GENERAL

In light of the similarity of the statutory provisions, opinions under Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103, are included in the annotations for this Code section. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).

Authority of town to act on applications for sale of alcoholic beverages. — The Town of Vidette, to the extent that it is a currently authorized municipal corporation, has exclusive jurisdiction to consider applications for licenses to sell alcoholic beverages within its corporate boundaries; however, this should not be construed as implying that the Town of Vidette may actually issue licenses without first following the procedure outlined in the Georgia laws relating to the sale of alcoholic beverages. 1985 Op. Atty Gen. No. U85-10. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).

Extent of county license requirements. — 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. Atty Gen. No. U17-2. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).

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 Ga. Op. Att'y Gen. 394. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).

Referendum regarding sale of no effect. — 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. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).

Applicant for liquor store license is required to obtain only one local license from municipality if within corporate limits and from county if outside any municipality; the applicant would not need to obtain both. 1971 Op. Atty Gen. No. U71-31. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).

The governing authority of a city has discretionary power to grant or refuse a license to sell malt beverages. 1971 Op. Atty Gen. No. U71-26. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).

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 Ga. Op. Att'y Gen. 287. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).

A municipality may permit the sale of beer in drug stores where minors visit. 1960-61 Ga. Op. Att'y Gen. 286. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).

A municipality could refuse to license the sale of malt beverages in places of business selling other merchandise. 1960-61 Ga. Op. Att'y Gen. 287. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).

A municipality may require a vendor of beer to partition off the section of the establishment where the beer is sold. 1960-61 Ga. Op. Att'y Gen. 287. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).

It would be illegal for a county to own and operate liquor stores. 1967 Op. Att'y Gen. No. 67-123. (Decided under former Ga. L. 1935, p. 73 and Ga. L. 1937-38, Ex. Sess., p. 103).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 90 et seq., 120 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 45 et seq., 63 et seq., 77 et seq., 138 et seq., 158 et seq., 425 et seq.

ALR. —

Civil liability of one who takes out license for sale of intoxicating liquor for benefit of another, 2 A.L.R. 1516 .

Power or discretion of local authorities under statute requiring their approval of application for liquor license before issuance of license by state board, or providing for issuance of a local license to one holding license from state board, 132 A.L.R. 1235 .

Power to limit the number of intoxicating liquor licenses, 163 A.L.R. 581 .

Change in law pending application for permit or license, 169 A.L.R. 584 .

Grant or renewal of liquor license as affected by fact that applicant held such license in the past, 2 A.L.R.2d 1239.

Effect of state regulation of liquor sales on municipal power to impose occupation license or tax for revenue, 6 A.L.R.2d 737.

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.

Validity of statute, ordinance, or regulation requiring fingerprints of those engaging in specified occupation, 41 A.L.R.3d 732.

Interplay between Twenty-First Amendment and Commerce Clause concerning state regulation of intoxicating liquors, 116 A.L.R.5th 149.

3-3-2.1. Notice to revenue department by county or municipality of violations concerning sale of alcoholic beverages to underage persons.

  1. As used in this Code section, the term:
    1. “Disciplinary action” means any citation or arrest arising out of the violation of any law, rule, regulation, resolution, or ordinance of a governmental entity relating to the manufacture, distribution, sale, or possession of alcoholic beverages against a licensee, an employee of a licensee, or any person holding a financial interest in the license of the licensee on the premises or place of business of any licensee.
    2. “Governmental entity” means the United States government, any state government, any local government, and any department, agency, or instrumentality thereof.
    3. “Licensee” means any person issued a license pursuant to this title by a governmental entity to operate a bar.
    1. Within 45 days of any disciplinary action, the licensee shall notify the department of the details of such disciplinary action, including the date such action was taken, the nature of such action, and any other information required by the department, using a format to be determined by the department.
    2. The commissioner may impose a fine not to exceed $750.00 for each violation of paragraph (1) of this subsection. A second or subsequent violation of paragraph (1) of this subsection which occurs within three years from the date of the first violation may constitute grounds for the suspension, revocation, or cancellation of such person’s license.
  2. Every county or municipality which issues licenses to a licensee authorizing the manufacture, distribution, or sale of alcoholic beverages shall by resolution or ordinance adopt a policy and implement a process by which any disciplinary action against a licensee shall be reported to the department within 45 days of any officer, department, agency, or instrumentality of such county or municipality taking such disciplinary action.
  3. The commissioner shall determine and make available the format for the reporting of disciplinary actions and shall promulgate rules and regulations as to the implementation and use of such reporting method.

History. — Code 1981, § 3-3-2.1 , enacted by Ga. L. 1985, p. 1398, § 1; Ga. L. 2015, p. 578, § 2/HB 152; Ga. L. 2016, p. 864, § 3/HB 737.

3-3-2.2. Maximum fine for violations of local alcoholic beverages licensing ordinances.

Notwithstanding the limitations imposed by subparagraph (a)(2)(C) of Code Section 36-35-6 or any other provision of general law, in the case of a county or municipality which issues more than 300 licenses for consumption of alcoholic beverages on the premises, the maximum fine for violations of local alcoholic beverages licensing ordinances referenced in Code Section 3-3-2 pertaining to licenses issued to sell alcoholic beverages by the drink for consumption on the premises shall be $2,500.00. Nothing in this Code section shall prohibit the governing authority of a county or municipality from imposing a penalty that is otherwise allowed by law, unless such law is a local law in conflict with this Code section.

History. — Code 1981, § 3-3-2.2 , enacted by Ga. L. 2006, p. 874, § 1/HB 1501.

3-3-3. Licenses required to distribute, sell, or otherwise deal in alcoholic beverages; display of licenses.

  1. No person shall manufacture, distribute, sell, handle, or possess for sale, or otherwise deal in, alcoholic beverages without first obtaining all applicable licenses required by this title.
  2. Each person holding a license issued pursuant to this title shall display the license prominently at all times on the premises for which the license is issued.

History. — Code 1933, § 5A-503, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1985, p. 1118, § 3.

RESEARCH REFERENCES

Am. Jur. Pleading and Practice Forms. —

14C Am. Jur. Pleading and Practice Forms, Intoxicating Liquors, § 15 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 45 et seq., 63 et seq., 77 et seq., 138 et seq., 158 et seq., 425 et seq.

3-3-4. Exemptions from license fees or taxes.

There shall be no exception from the license fees or taxes provided by this title in favor of any person unless specifically provided for by law.

History. — Code 1933, § 5A-504, enacted by Ga. L. 1980, p. 1573, § 1.

JUDICIAL DECISIONS

Editor’s notes. —

In light of the similarity of the statutory provisions, annotations decided under former Ga. L. 1937-38, Ex. Sess., p. 103 are included in the annotations for this Code section.

Under the statutes, a person, firm, or corporation in this state cannot lawfully engage in liquor business by proxy or under the name of another, but any and all persons, firms, or corporations who desire to engage therein must first obtain a license so to do in their own name. Smith v. Nix, 206 Ga. 403 , 57 S.E.2d 275 (1950) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

OPINIONS OF THE ATTORNEY GENERAL

Any differences in retail liquor license rates imposed by municipality must be based on reasonable classification. 1954-56 Ga. Op. Att'y Gen. 493. (rendered under former Ga. L. 1937-38, Ex. Sess., p. 103).

County commissioners may not issue license free of charge to retailers to sell intoxicating liquor but may issue free license for sale of beer and wine. 1954-56 Ga. Op. Att'y Gen. 458. (rendered under former Ga. L. 1937-38, Ex. Sess., p. 103).

Tax may be assessed and collected on untaxed liquor which state can prove person has previously sold. 1945-47 Ga. Op. Att'y Gen. 377. (rendered under former Ga. L. 1937-38, Ex. Sess., p. 103).

Person in possession of untaxed liquor in wet county is not relieved of state tax thereon by its seizure as contraband and by criminal prosecution. 1945-47 Ga. Op. Att'y Gen. 377. (rendered under former Ga. L. 1937-38, Ex. Sess., p. 103).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 168 et seq.67B Am. Jur. 2d, Sales and Use Taxes, § 83. 71 Am. Jur. 2d, State and Local Taxation, § 234 et seq.

3-3-5. Sale of alcoholic beverages not complying with federal requirements as to quality or purity or standards adopted by commissioner.

No alcoholic beverages shall be sold by any licensee under this title if the alcoholic beverages do not fully meet all federal requirements as to quality or purity, as represented by the label, or do not meet such standards as may be adopted by the commissioner.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 26; Code 1933, § 5A-505, enacted by Ga. L. 1980, p. 1573, § 1.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 26 et seq., 192 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 449.

ALR. —

Federal constitutional or legislative provisions as to intoxicating liquors as affecting state legislation, 10 A.L.R. 1587 ; 11 A.L.R. 1320 ; 26 A.L.R. 661 ; 70 A.L.R. 132 .

3-3-6. Maintenance of records as to manufacture, purchase, or sale of alcoholic beverages by manufacturers, importers, or dealers; disposal of records.

  1. Each manufacturer, importer, wholesale dealer, retail dealer, and retail consumption dealer shall keep and preserve, as prescribed by the commissioner, records of all alcoholic beverages manufactured, purchased, or sold by him. The records shall be kept for a period of three years from the date of manufacture, purchase, or sale and shall at all times be open to inspection by the commissioner or any authorized agent or employee of the commissioner.
  2. The commissioner may authorize by rule the disposal of records maintained pursuant to subsection (a) of this Code section, prior to the expiration of the specified three-year period, when he is satisfied as to their contents or otherwise determines that the maintenance of the records is no longer necessary.

History. — Ga. L. 1935, p. 73, § 6; Code 1933, § 58-822, enacted by Ga. L. 1977, p. 1316, § 1; Code 1933, § 5A-506, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 18.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 192 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 138 et seq., 425 et seq.

3-3-7. Local authorization and regulation of sales of alcoholic beverages on Sunday.

  1. In all consolidated governments of this state within the limits of which the sale of alcoholic beverages is lawfully authorized, such sales for consumption on the premises shall be authorized, at the discretion of the governing body of the consolidated government, at any time from 11:55 P.M. on Saturdays and the two hours immediately following such time.
  2. In each county having a population of 800,000 or more according to the United States decennial census of 2000 or any future such census in which the sale of alcoholic beverages is lawful:
    1. The county governing authority may authorize the sale of alcoholic beverages for consumption on the premises at any time from 11:55 P.M. on Saturdays and the three hours immediately following such time; and
    2. Alcoholic beverages may be sold on Sundays between the hours of 12:30 P.M. and 12:00 Midnight in public stadiums, coliseums, and auditoriums with a seating capacity in excess of 3,500 persons and in eating establishments. As used in this paragraph, the term “eating establishment” means an establishment which is licensed to sell distilled spirits, malt beverages, or wines and which derives at least 50 percent of its total annual gross food and beverage sales from the sale of prepared meals or food.
  3. In all municipalities having a population of 300,000 or more according to the United States decennial census of 1970 or any future such census in which the sale of alcoholic beverages is lawful:
    1. The municipal governing authority may authorize the sale of alcoholic beverages for consumption on the premises at any time from 11:55 P.M. on Saturdays and the three hours immediately following such time; and
    2. Alcoholic beverages may be sold on Sundays between the hours of 12:30 P.M. and 12:00 Midnight in public stadiums, coliseums, and auditoriums with a seating capacity in excess of 3,500 persons; in eating establishments; and in locally designated special entertainment districts. As used in this paragraph, the term “eating establishment” means an establishment which is licensed to sell distilled spirits, malt beverages, or wines and which derives at least 50 percent of its total annual gross food and beverage sales from the sale of prepared meals or food. As used in this paragraph, the term “special entertainment districts” means contiguous properties upon which is located a festival marketplace and entertainment project which is financed in whole or in part by public funds and which contains a minimum of 200,000 square feet of gross leasable space for retail sales and entertainment purposes and which is located in the central business district of any such municipality if more than 50 percent of such contiguous properties are owned or controlled by a governmental entity.
  4. In each county having a population of not less than 153,000 nor more than 165,000 according to the United States decennial census of 1980 or any future such census in which the sale of alcoholic beverages is lawful and in all municipalities within such counties in which the sale of alcoholic beverages is lawful, the governing authority of the county or municipality, as appropriate, may authorize the sale of alcoholic beverages for consumption on the premises:
    1. At any time from 11:55 P.M. on Saturdays and the two hours immediately following such time; and
    2. In eating establishments which are located in the unincorporated area of the county, in the case of the county, or which are located in the corporate limits of the municipality, in the case of a municipality, on Sundays from 12:30 P.M. until 12:00 Midnight. As used in this paragraph, the term “eating establishment” means an establishment which is licensed to sell distilled spirits, malt beverages, or wines for consumption on the premises and which derives at least 50 percent of its total annual gross food and beverage sales from the sale of prepared meals or food.
    1. In each county having a population of not less than 100,000 nor more than 150,000 according to the United States decennial census of 1970 or any future such census in which the sale of alcoholic beverages is lawful and in all municipalities in such counties in which the sale of alcoholic beverages is lawful, the governing authority of the county or municipality, as appropriate, may authorize the sale of alcoholic beverages for consumption on the premises in bona fide full-service restaurants at any time from 11:55 P.M. on Saturdays until 2:00 A.M. on Sundays; provided, however, that this subsection shall not apply to any geographic area of any municipal corporation which is located outside of the limits of any county in which the sale of alcoholic beverages is not lawful.
    2. As used in this subsection, the term “bona fide full-service restaurant” means an established place of business:
      1. Which is licensed to sell alcoholic beverages, distilled spirits, malt beverages, or wines for consumption on the premises;
      2. Where meals with substantial entrees selected by the patron from a full menu are served;
      3. Which has adequate facilities and sufficient employees for cooking or preparing and serving such meals for consumption at tables in dining rooms on the premises; and
      4. Which derives at least 50 percent of its gross income from the sale of such meals prepared, served, and consumed on the premises.
    3. The governing authority of such a county or municipality, by ordinance, may authorize any other establishment otherwise licensed to sell alcoholic beverages, distilled spirits, malt beverages, or wines for consumption on the premises to engage in such sales at any time from 11:55 P.M. on Saturdays until 2:00 A.M. on Sundays; provided, however, that the proviso in paragraph (1) of this subsection shall also be applicable to sales in establishments pursuant to this paragraph.
    4. The governing authority of such a county or municipality may provide for special licenses for and charge a license fee to establishments which engage in sales of such beverages at any time from 11:55 P.M. on Saturdays until 2:00 A.M. on Sundays. The license fee shall be set by the governing body.
  5. In each county having a population of 58,000 or more according to the United States decennial census of 1990, or any future such census in which the sale of alcoholic beverages is lawful, alcoholic beverages may be sold for consumption on the premises on each day of the week, including Sundays between the hours of 12:30 P.M. and 12:00 Midnight, on the premises of motor sport road race track facilities with a permanent seating capacity in excess of 10,000 persons. As used in this subsection, the term “premises” means restaurants, grandstands, and other event viewing areas owned, leased, or controlled by the establishment which is licensed to sell distilled spirits, malt beverages, or wines for consumption on the premises.
  6. Reserved.
    1. In all counties having a population of not less than 62,450 and not more than 64,000 according to the United States decennial census of 1990 or any future such census in which the sale of alcoholic beverages is lawful, and in all municipalities within such counties in which the sale of alcoholic beverages is lawful, the governing authority of the county or municipality, as appropriate, may authorize the sale of alcoholic beverages for consumption on the premises if Sunday sales are approved in a referendum as provided in this subsection.
    2. Eating establishments located in the unincorporated area of the county, in the case of the county, or eating establishments located in the corporate limits of the municipality, in the case of a municipality, shall be authorized to sell alcoholic beverages for consumption on the premises on Sundays between the hours of 12:30 P.M. and 12:00 Midnight.  As used in this paragraph, the term “eating establishment” means an establishment which is licensed to sell distilled spirits, malt beverages, or wines and which derives at least 50 percent of its total annual gross food and beverage sales from the sale of prepared meals or food.
    3. Any governing authority desiring to permit and regulate Sunday sales shall so provide by proper resolution or ordinance.
    4. Not less than ten nor more than 20 days after the date of approval of such resolution or ordinance, it shall be the duty of the election superintendent of the county to issue the call for an election for the purpose of submitting the question of Sunday sales to the electors of the county for approval or rejection. The superintendent shall set the date of the election for a day not less than 30 nor more than 45 days after the date of the issuance of the call. The superintendent shall cause the date and purpose of the election to be published in the official organ of the county once a week for two weeks immediately preceding the date thereof. The ballot shall have written or printed thereon the words:

      Click to view

    5. All persons desiring to vote for approval of Sunday sales shall vote “Yes,” and those persons desiring to vote for rejection of Sunday sales shall vote “No.”  If more than one-half of the votes cast on the question are for approval of Sunday sales, the governing authority in such counties and the governing authority of all municipalities within such counties may by appropriate resolution or ordinance permit and regulate Sunday sales by licensees.
    6. The expense of the election shall be borne by the county in which the election is held.  It shall be the duty of the superintendent to hold and conduct the election.  It shall be his further duty to certify the result thereof to the Secretary of State.
    1. In each county having a population of more than 100,000 in any metropolitan statistical area having a population of not less than 250,000 nor more than 1,000,000 according to the United States decennial census of 1980 or any future such census in which the sale of alcoholic beverages is lawful in such a county and in all municipalities within such counties in which the sale of alcoholic beverages is lawful, the governing authority of the county or municipality, as appropriate, may authorize the sale of alcoholic beverages for consumption on the premises if Sunday sales are approved by referendum as provided in paragraph (2) of this subsection:
      1. At any time from 11:55 P.M. on Saturdays until 2:55 A.M. on Sundays; and
      2. In eating establishments which are located in the unincorporated area of the county, in the case of the county, or which are located in the corporate limits of the municipality, in the case of a municipality, on Sundays between the hours of 12:30 P.M. and 12:00 Midnight. As used in this subparagraph, the term “eating establishment” means an establishment which is licensed to sell distilled spirits, malt beverages, or wines and which derives at least 50 percent of its total annual gross food and beverage sales from the sale of prepared meals or food.
    2. Any governing authority desiring to permit and regulate Sunday sales pursuant to paragraph (1) of this subsection shall so provide by proper resolution or ordinance. Not less than ten nor more than 60 days after the date of approval of such resolution or ordinance, it shall be the duty of the election superintendent of the county or municipality to issue the call for an election for the purpose of submitting the question of Sunday sales to the electors of the county or municipality for approval or rejection. The superintendent shall set the date of the election for a day not less than 30 nor more than 60 days after the date of the issuance of the call. The superintendent shall cause the date and purpose of the election to be published in the official organ of the county once a week for two weeks immediately preceding the date thereof. The ballot shall have written or printed thereon the words:

      Click to view

      All persons desiring to vote for approval of Sunday sales shall vote “Yes,” and those persons desiring to vote for rejection of Sunday sales shall vote “No.” If more than one-half of the votes cast on the question are for approval of Sunday sales, the governing authority may by appropriate resolution or ordinance permit and regulate Sunday sales by licensees. The expense of the election shall be borne by the county or municipality in which the election is held. It shall be the duty of the superintendent to hold and conduct the election. It shall be his further duty to certify the result thereof to the Secretary of State.

    1. Notwithstanding any other provisions of law, on and after May 8, 2018, in all counties or municipalities in which the sale of alcoholic beverages is lawful for consumption on the premises, the governing authority of the county or municipality may, by resolution or ordinance conditioned on approval in a referendum, authorize the sale of alcoholic beverages for consumption on the premises on Sundays from 11:00 A.M. until 12:00 Midnight in any licensed establishment which derives at least 50 percent of its total annual gross sales from the sale of prepared meals or food in all of the combined retail outlets of the individual establishment where food is served and in any licensed establishment which derives at least 50 percent of its total annual gross income from the rental of rooms for overnight lodging.
    2. Any governing authority desiring to permit and regulate Sunday sales pursuant to this subsection, but only after a referendum election, shall so provide by proper resolution or ordinance conditioned on a referendum. Not less than ten nor more than 60 days after the date of approval of such resolution or ordinance, it shall be the duty of the election superintendent of the county or municipality to issue the call for an election for the purpose of submitting the question of Sunday sales to the electors of the county or municipality for approval or rejection. The superintendent shall set the date of the election for a day not less than 30 nor more than 60 days after the date of the issuance of the call. The superintendent shall cause the date and purpose of the election to be published in the official organ of the county once a week for two weeks immediately preceding the date thereof. The ballot shall have written or printed thereon the words:

      Click to view

      All persons desiring to vote for approval of Sunday sales shall vote “Yes,” and those persons desiring to vote for rejection of Sunday sales shall vote “No.” If more than one-half of the votes cast on the question are for approval of Sunday sales, the governing authority may by appropriate resolution or ordinance permit and regulate Sunday sales by licensees. Otherwise, such Sunday sales shall not be permitted. The expense of the election shall be borne by the county or municipality in which the election is held. It shall be the duty of the superintendent to hold and conduct the election. It shall be his or her further duty to certify the result thereof to the Secretary of State.

    3. Notwithstanding this subsection or any other provision of law, all county or municipal resolutions or ordinances enacted prior to April 6, 1984, pursuant to the authorizations granted by subsections (a) through (i) of this Code section are declared to be valid and shall remain in full force and effect unless affirmatively repealed by the governing authority of the county or municipality.

      Click to view

      All persons desiring to vote for approval of such Sunday sales shall vote “Yes,” and those persons desiring to vote for rejection of such Sunday sales shall vote “No.” If more than one-half of the votes cast on the question are for approval of such Sunday sales, the governing authority may by appropriate resolution or ordinance permit and regulate such Sunday sales by licensees. Otherwise, such Sunday sales shall not be permitted. The expense of the election shall be borne by the county or municipality in which the election is held. It shall be the duty of the superintendent to hold and conduct the election. It shall be his or her further duty to certify the result thereof to the Secretary of State.

      1. Alcoholic beverages for consumption on the premises in any licensed establishment which derives at least 50 percent of its total annual gross sales from the sale of prepared meals or food in all of the combined retail outlets of the individual establishment where food is served and in any licensed establishment which derives at least 50 percent of its total annual gross income from the rental of rooms for overnight lodging; and
      2. Packages sales of malt beverages and wine.

        Click to view

        All persons desiring to vote for approval of such Sunday sales shall vote “Yes,” and those persons desiring to vote for rejection of such Sunday sales shall vote “No.” If more than one-half of the votes cast on the question are for approval of such Sunday sales, the governing authority may by appropriate resolution or ordinance permit and regulate such Sunday sales by licensees. Otherwise, such Sunday sales shall not be permitted. The expense of the election shall be borne by the county or municipality in which the election is held. It shall be the duty of the superintendent to hold and conduct the election. It shall be his or her further duty to certify the result thereof to the Secretary of State.

        Click to view

        All persons desiring to vote for approval of such Sunday sales shall vote “Yes,” and those persons desiring to vote for rejection of such Sunday sales shall vote “No.” If more than one-half of the votes cast on the question are for approval of such Sunday sales, the governing authority may by appropriate resolution or ordinance permit and regulate such Sunday sales by licensees. Otherwise, such Sunday sales shall not be permitted. The expense of the election shall be borne by the county or municipality in which the election is held. It shall be the duty of the superintendent to hold and conduct the election. It shall be his or her further duty to certify the result thereof to the Secretary of State.

    (j.1) (1) Notwithstanding any other provisions of law, all counties or municipalities in which the governing authority prior to May 8, 2018, has been authorized pursuant to a referendum to permit the sale of alcoholic beverages for consumption on the premises on Sundays from 12:30 P.M. until 12:00 Midnight in any licensed establishment which derives at least 50 percent of its total annual gross sales from the sale of prepared meals or food in all of the combined retail outlets of the individual establishment where food is served and in any licensed establishment which derives at least 50 percent of its total annual gross income from the rental of rooms for overnight lodging may, by resolution or ordinance conditioned on approval in a referendum, authorize the sale of alcoholic beverages for consumption on the premises of any such establishments on Sundays for an additional hour and a half during the time period of 11:00 A.M. until 12:30 P.M.

    (j.2) (1) Notwithstanding any other provisions of law, on and after August 3, 2020, in all counties or municipalities in which the governing authority has been authorized pursuant to a referendum held under this Code section to permit the sale of alcoholic beverages for consumption on the premises on Sundays from 12:30 P.M. until 12:00 Midnight and has been authorized pursuant to a referendum held pursuant to subsection (p) of this Code section to permit package sales of malt beverages and wine, but not distilled spirits, on Sundays from 12:30 P.M. to 11:30 P.M., the governing authority of the county or municipality may, by resolution or ordinance conditioned on approval in a referendum, authorize on Sundays from 11:00 A.M. until 12:00 Midnight the sale of:

    (j.3) (1) Notwithstanding any other provisions of law, on and after August 3, 2020, in all counties or municipalities in which the governing authority has been authorized pursuant to a referendum held under this Code section to permit the sale of alcoholic beverages for consumption on the premises on Sundays from 12:30 P.M. until 12:00 Midnight and has been authorized pursuant to a referendum held under subsection (q) of this Code section to permit package sales of malt beverages, wine, and distilled spirits on Sundays from 12:30 P.M. to 11:30 P.M., the governing authority of the county or municipality may, by resolution or ordinance conditioned on approval in a referendum, authorize on Sundays from 11:00 A.M. until 12:00 Midnight the sale of:

    1. Notwithstanding other laws, in any county in which one-half of the net revenues collected from the legalizing, controlling, licensing, and taxing of the wholesale and retail sale of alcoholic beverages is paid over to the boards of education in such county, a municipality having an independent school system shall be authorized through its governing authority, either by proper resolution or ordinance approved by a majority of that governing authority or by proper resolution or ordinance so approved and by its terms having its effectiveness being contingent upon referendum approval pursuant to paragraph (2) of this subsection, to allow:
    2. If a resolution or ordinance is approved pursuant to paragraph (1) of this subsection and by its terms has its effectiveness contingent upon referendum approval pursuant to this paragraph, not less than ten nor more than 60 days after the date of approval of such resolution or ordinance it shall be the duty of the election superintendent of the municipality, whose governing authority approved that resolution or ordinance, to issue the call for an election for the purpose of submitting the question of Sunday sales to the electors of that municipality for approval or rejection. The superintendent shall set the date of the election for a day not less than 30 nor more than 60 days after the date of the issuance of the call. The superintendent shall cause the date and purpose of the election to be published in the official organ of the county in which that municipality is located once a week for two weeks immediately preceding the date thereof. The ballot shall have written or printed thereon the words:

      Click to view

      All persons desiring to vote for approval of Sunday sales shall vote “Yes,” and those persons desiring to vote for rejection of Sunday sales shall vote “No.” If more than one-half of the votes cast on the question are for approval of Sunday sales, the resolution or ordinance approving such Sunday sales shall become effective upon the date so specified in that resolution or ordinance. The expense of the election shall be borne by the municipality in which the election is held. It shall be the duty of the superintendent to hold and conduct the election. It shall be his further duty to certify the result thereof to the Secretary of State.

  7. In all counties having a population of 160,000 or more according to the United States decennial census of 1980 or any future such census in which the sale of alcoholic beverages is lawful and in all municipalities within such counties in which the sale of alcoholic beverages is lawful, the governing authority of the county or municipality, as appropriate, may authorize the sale of alcoholic beverages for consumption on the premises:
    1. At any time from 11:55 P.M. on Saturdays until 2:55 A.M. on Sundays;
    2. In eating establishments which are located in the unincorporated area of the county, in the case of the county, or which are located in the corporate limits of the municipality, in the case of a municipality, on Sundays between the hours of 12:30 P.M. and 12:00 Midnight. As used in this paragraph, the term “eating establishment” means an establishment which is licensed to sell distilled spirits, malt beverages, or wines and which derives at least 50 percent of its total annual gross food and beverage sales from the sale of prepared meals or food; and
    3. In inns which are located in the unincorporated area of the county, in the case of the county, or which are located in the corporate limits of the municipality, in the case of a municipality, on Sundays between the hours of 12:30 P.M. and 12:00 Midnight. As used in this paragraph, the term “inn” means an establishment which is licensed to sell distilled spirits, malt beverages, or wines and which derives at least 50 percent of its total annual gross income from the rental of rooms for overnight lodging.

      The provisions of this subsection are in addition to or cumulative of and not in lieu of any other provisions of this title granting certain authority to a county or municipality relative to the sale of alcoholic beverages for consumption on the premises.

  8. In all municipalities or counties or in any portion of any municipality or county in which the sale of alcoholic beverages is lawful, the governing authority of the municipality or county may authorize the sale of alcoholic beverages for consumption on the premises at any time from 11:55 P.M. on Saturdays until 2:55 A.M. on Sundays by the adoption of an ordinance or resolution. The provisions of this subsection are in addition to or cumulative of and not in lieu of any other provisions of this title granting certain authority to a county or municipality relative to the sale of alcoholic beverages for consumption on the premises. Said authorization may be revoked by such governmental authority in the same manner.
  9. A municipality in which the sale of alcoholic beverages on Sunday is authorized by any other provision of law may by the adoption of an ordinance authorize the sale of alcoholic beverages in public stadiums, coliseums and auditoriums owned or controlled by it or by a public authority and having seating capacity in excess of 2,500 people on Sunday between the hours of 12:30 P.M. and midnight.
    1. As used in this subsection, the term “bowling center” means an establishment which is licensed to sell distilled spirits, malt beverages, or wines and which derives at least 50 percent of its total annual gross revenues either from the rental of bowling lanes and bowling equipment or from the combination of the rental of bowling lanes and bowling equipment and the sale of prepared meals and other food products.
    2. The governing authority of any municipality or county in any portion of which the sale of alcoholic beverages is authorized may by ordinance authorize the sale of alcoholic beverages for consumption on the premises in any bowling center located within the jurisdiction of such governing authority between the hours of 12:30 P.M. and 12:00 Midnight on Sundays.
    1. Notwithstanding other laws, in each county or municipality in which package sales of malt beverages and wine by retailers are lawful, but package sales of distilled spirits by retailers are not lawful, the governing authority of the county or municipality, as appropriate, may authorize package sales by retailers of malt beverages and wine on Sundays between the hours of 12:30 P.M. and 11:30 P.M., if such Sunday sales of both malt beverages and wine are approved by referendum as provided in paragraph (2) of this subsection.
    2. Any governing authority desiring to permit and regulate package sales by retailers of both malt beverages and wine on Sundays between the hours of 12:30 P.M. and 11:30 P.M., pursuant to paragraph (1) of this subsection, shall so provide by proper resolution or ordinance specifying the hours during such period when such package sales may occur. Upon receipt of the resolution or ordinance, the election superintendent shall issue the call for an election for the purpose of submitting the question of Sunday package sales by retailers of both malt beverages and wine to the electors of that county or municipality for approval or rejection. The election superintendent shall issue the call and shall conduct the election on a date and in the manner authorized under Code Section 21-2-540. The election superintendent shall cause the date and purpose of the election to be published once a week for four weeks immediately preceding the date of the election in the official organ of the county. The ballot shall have written or printed thereon the words:

      Click to view

      All persons desiring to vote for approval of package sales by retailers of malt beverages and wine on Sundays between the hours of 12:30 P.M. and 11:30 P.M. shall vote “Yes,” and all persons desiring to vote for rejection of package sales by retailers of malt beverages and wine on Sundays between the hours of 12:30 P.M. and 11:30 P.M. shall vote “No.” If more than one-half of the votes cast on the question are for approval of Sunday package sales by retailers of malt beverages and wine on Sundays between the hours of 12:30 P.M. and 11:30 P.M., the resolution or ordinance approving such Sunday package sales by retailers of malt beverages and wine shall become effective upon the date so specified in that resolution or ordinance. The expense of the election shall be borne by the county or municipality in which the election is held. The election superintendent shall canvass the returns, declare the result of the election, and certify the result to the Secretary of State.

    3. Whenever package sales of malt beverages and wine on Sundays between the hours of 12:30 P.M. and 11:30 P.M. are authorized by a county or municipality pursuant to this subsection, Sunday package sales by retailers of malt beverages and wine may be made only by licensed retailers that are licensed to sell by the package.
    4. The provisions of this subsection are in addition to or cumulative of and not in lieu of any other provisions of this title relative to the sale of malt beverages and wine by retailers.

    (p.1) Notwithstanding other laws, in all counties or municipalities in which package sales by retailers of malt beverages and wine, but not distilled spirits, have been authorized on Sunday from 12:30 P.M. to 11: 30 P.M. pursuant to a referendum held under subsection (p) of this Code section and sales of alcoholic beverages for consumption on the premises on Sundays from 11:00 A.M. to 12:00 Midnight, including for an additional hour and a half from 11:00 A.M. to 12:30 P.M., have been authorized pursuant to a referendum held under subsection (j) or (j.1) of this Code section, the governing authority of the county or municipality, as appropriate, may by adoption of a resolution or ordinance allow package sales by retailers of malt beverages and wine for consumption off the premises on Sundays from 11:00 A.M. until 12:00 Midnight. The provisions of this subsection are in addition to or cumulative of and not in lieu of any other provisions of this title relative to the sale of alcoholic beverages by retailers.

    1. Notwithstanding other laws, in each county or municipality in which package sales of malt beverages, wine, and distilled spirits by retailers are all lawful, the governing authority of the county or municipality, as appropriate, may authorize package sales by retailers of malt beverages, wine, and distilled spirits on Sundays between the hours of 12:30 P.M. and 11:30 P.M., if such Sunday sales of malt beverages, wine, and distilled spirits are approved by referendum as provided in paragraph (2) of this subsection. If the governing authority seeks authorization for Sunday sales of alcoholic beverages pursuant to this subsection, the governing authority shall seek authorization of package sales by retailers of all alcoholic beverages, including malt beverages, wine, and distilled spirits, and not of only one type of alcoholic beverage.
    2. Any governing authority desiring to permit and regulate package sales by retailers of malt beverages, wine, and distilled spirits on Sundays between the hours of 12:30 P.M. and 11:30 P.M., pursuant to paragraph (1) of this subsection, shall so provide by proper resolution or ordinance specifying the hours during such period when such package sales may occur. Upon receipt of the resolution or ordinance, the election superintendent shall issue the call for an election for the purpose of submitting the question of Sunday package sales by retailers of malt beverages, wine, and distilled spirits to the electors of that county or municipality for approval or rejection. The election superintendent shall issue the call and shall conduct the election on a date and in the manner authorized under Code Section 21-2-540. The election superintendent shall cause the date and purpose of the election to be published once a week for four weeks immediately preceding the date of the election in the official organ of the county. The ballot shall have written or printed thereon the words:

      Click to view

      All persons desiring to vote for approval of package sales by retailers of malt beverages, wine, and distilled spirits on Sundays between the hours of 12:30 P.M. and 11:30 P.M. shall vote “Yes,” and all persons desiring to vote for rejection of package sales by retailers of malt beverages, wine, and distilled spirits on Sundays between the hours of 12:30 P.M. and 11:30 P.M. shall vote “No.” If more than one-half of the votes cast on the question are for approval of Sunday package sales by retailers of malt beverages, wine, and distilled spirits on Sundays between the hours of 12:30 P.M. and 11:30 P.M., the resolution or ordinance approving such Sunday package sales by retailers of malt beverages, wine, and distilled spirits shall become effective upon the date so specified in that resolution or ordinance. If more than one-half of the votes cast on the question are for disapproval of Sunday package sales by retailers of malt beverages, wine, and distilled spirits on Sundays between the hours of 12:30 P.M. and 11:30 P.M., such rejection shall not nullify the prior election results for approval of Sunday package sales by retailers of malt beverages and wine on Sundays between the hours of 12:30 P.M. and 11:30 P.M. pursuant to subsection (p) of this Code section. The expense of the election shall be borne by the county or municipality in which the election is held. The election superintendent shall canvass the returns, declare the result of the election, and certify the result to the Secretary of State.

    3. Whenever package sales of malt beverages, wine, and distilled spirits on Sundays between the hours of 12:30 P.M. and 11:30 P.M. are authorized by a county or municipality pursuant to this subsection, Sunday package sales by retailers of malt beverages, wine, and distilled spirits may be made only by licensed retailers that are licensed to sell by the package.
    4. The provisions of this subsection are in addition to or cumulative of and not in lieu of any other provisions of this title relative to the sale of alcoholic beverages by retailers.

    (q.1) Notwithstanding other laws, in all counties or municipalities in which package sales by retailers of malt beverages, wine, and distilled spirits have been authorized on Sundays beginning from 12:30 P.M. to 11:30 P.M. pursuant to a referendum held under subsection (q) of this Code section and sales of alcoholic beverages for consumption on the premises on Sundays from 11:00 A.M. to 12:00 Midnight have been authorized pursuant to a referendum held under subsection (j) or (j.1) of this Code section, the governing authority of the county or municipality, as appropriate, may by adoption of a resolution or ordinance allow package sales by retailers of malt beverages, wine, and distilled spirits for consumption off the premises on Sundays from 11:00 A.M. until 12:00 Midnight. The provisions of this subsection are in addition to or cumulative of and not in lieu of any other provisions of this title relative to the sale of alcoholic beverages by retailers.

  10. Notwithstanding any other provisions of law, in all counties or municipalities in which the sale of alcoholic beverages is lawful for consumption on the premises, the governing authority of the county or municipality, as appropriate, may by adoption of a resolution or ordinance authorize the sale of alcoholic beverages for consumption on the premises from 12:30 P.M. until 12:00 Midnight on one Sunday during each calendar year that shall be designated in such resolution or ordinance. Any sales for consumption on the premises made pursuant to this subsection shall be subject to such terms and conditions as may be required by the governing authority of the county or municipality.

“[ ] YES Shall the governing authority of (name of county) be authorized to permit and [ ] NO regulate Sunday sales of distilled spirits or alcoholic beverages for beverage purposes by the drink?”

“[ ] YES Shall the governing authority of (name of municipality or county) be authorized to permit and regulate Sunday [ ] NO sales of distilled spirits or alcoholic beverages for beverage purposes by the drink?”

“[ ] YES Shall the governing authority of (name of municipality or county) be authorized to permit and regulate Sunday [ ] NO sales of distilled spirits or alcoholic beverages for beverage purposes by the drink?”

(2) Any governing authority desiring to permit and regulate Sunday sales pursuant to this subsection shall so provide by proper resolution or ordinance conditioned on approval in a referendum election. Not less than ten nor more than 60 days after the date of approval of such resolution or ordinance, it shall be the duty of the election superintendent of the county or municipality to issue the call for an election for the purpose of submitting the question of Sunday sales to the electors of the county or municipality for approval or rejection. The superintendent shall set the date of the election for a day not less than 30 nor more than 60 days after the date of the issuance of the call. The superintendent shall cause the date and purpose of the election to be published in the official organ of the county once a week for two weeks immediately preceding the date thereof. The ballot shall have written or printed thereon the words:

“[ ] YES Shall the governing authority of (name of municipality or county) be to permit [ ] NO and regulate Sunday sales of distilled spirits or alcoholic beverages for beverage purposes by the drink from 11:00 A.M. to 12:30 P.M.?”

(3) Notwithstanding this subsection or any other provision of law, all county or municipal resolutions or ordinances enacted prior to April 6, 1984, pursuant to the authorizations granted by subsections (a) through (i) of this Code section are declared to be valid and shall remain in full force and effect unless affirmatively repealed by the governing authority of the county or municipality.

(2) Any governing authority desiring to permit and regulate such Sunday sales pursuant to this subsection, but only after a referendum election, shall so provide by proper resolution or ordinance conditioned on a referendum. Not less than ten nor more than 60 days after the date of approval of such resolution or ordinance, it shall be the duty of the election superintendent of the county or municipality to issue the call for an election for the purpose of submitting the question of such Sunday sales to the electors of the county or municipality for approval or rejection. The superintendent shall set the date of the election for a day not less than 30 nor more than 60 days after the date of the issuance of the call. The superintendent shall cause the date and purpose of the election to be published in the official organ of the county once a week for two weeks immediately preceding the date thereof. The ballot shall have written or printed thereon the words:

“( ) YES Shall the governing authority of (name of municipality or county) be authorized ( ) NO to permit and regulate Sunday sales of malt beverages and wine by the drink from 11:00 A.M. to 12:00 Midnight and Sunday sales of malt beverages and wine by the package from 11:00 A.M. to 12:00 Midnight?”

(3) Notwithstanding this subsection or any other provision of law, all county or municipal resolutions or ordinances enacted prior to August 3, 2020, pursuant to the authorizations granted by any other provision of this Code section are declared to be valid and shall remain in full force and effect unless affirmatively repealed by the governing authority of the county or municipality.

(A) Alcoholic beverages for consumption on the premises in any licensed establishment which derives at least 50 percent of its total annual gross sales from the sale of prepared meals or food in all of the combined retail outlets of the individual establishment where food is served and in any licensed establishment which derives at least 50 percent of its total annual gross income from the rental of rooms for overnight lodging; and

(B) Packages sales of malt beverages, wine, and distilled spirits.

(2) Any governing authority desiring to permit and regulate such Sunday sales pursuant to this subsection, but only after a referendum election, shall so provide by proper resolution or ordinance conditioned on a referendum. Not less than ten nor more than 60 days after the date of approval of such resolution or ordinance, it shall be the duty of the election superintendent of the county or municipality to issue the call for an election for the purpose of submitting the question of such Sunday sales to the electors of the county or municipality for approval or rejection. The superintendent shall set the date of the election for a day not less than 30 nor more than 60 days after the date of the issuance of the call. The superintendent shall cause the date and purpose of the election to be published in the official organ of the county once a week for two weeks immediately preceding the date thereof. The ballot shall have written or printed thereon the words:

“( ) YES Shall the governing authority of (name of municipality or county) be authorized ( ) No to permit and regulate Sunday sales of malt beverages, wine, and distilled spirits by the drink from 11:00 A.M. to 12:00 Midnight and by the package from 11:00 A.M. to 12:00 Midnight?”

(3) Notwithstanding this subsection or any other provision of law, all county or municipal resolutions or ordinances enacted prior to August 3, 2020, pursuant to the authorizations granted by any other provision of this Code section are declared to be valid and shall remain in full force and effect unless affirmatively repealed by the governing authority of the county or municipality.

(A) The sale of alcoholic beverages for consumption on the premises at any time from 11:55 P.M. on Saturdays and three hours immediately following such time; and

(B) The sale and service by the drink of alcoholic beverages on Sundays from 12:30 P.M. until 12:00 Midnight in any licensed establishment which derives at least 50 percent of its total annual gross food and beverage sales from the sale of prepared meals or food in all of the combined retail outlets of the individual establishment where food is served and in any licensed establishment which derives at least 50 percent of its total annual gross income from the rental of rooms for overnight lodging.

“[ ] YES Shall Sunday sales of alcoholic beverages by the drink be authorized in [ ] NO (name of municipality)?”

“( ) YES Shall the governing authority of (name of county or municipality) be authorized to permit and regulate package sales by ( ) NO retailers of both malt beverages and wine on Sundays between the hours of 12:30 P.M. and 11:30 P.M.?”

“( ) YES Shall the governing authority of (name of county or municipality) be authorized to permit and regulate package sales by retailers of malt beverages, ( ) NO wine, and distilled spirits on Sundays between the hours of 12:30 P.M. and 11:30 P.M.?”

History. — Code 1933, § 5A-507, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 540, §§ 1, 2; Ga. L. 1982, p. 521, §§ 1, 2; Ga. L. 1982, p. 1463, §§ 2, 9; Ga. L. 1982, p. 1768, § 2; Ga. L. 1982, p. 1855, §§ 1, 3; Ga. L. 1983, p. 3, § 4; Ga. L. 1983, p. 806, § 5; Ga. L. 1984, p. 22, § 3; Ga. L. 1984, p. 1683, § 1; Ga. L. 1984, p. 1685, § 1; Ga. L. 1984, p. 1691, § 1; Ga. L. 1985, p. 149, § 3; Ga. L. 1985, p. 1000, § 1; Ga. L. 1987, p. 381, § 1; Ga. L. 1988, p. 232, § 1; Ga. L. 1989, p. 1487, §§ 1, 2; Ga. L. 1990, p. 8, § 3; Ga. L. 1992, p. 1214, § 1; Ga. L. 1992, p. 2929, § 1; Ga. L. 1994, p. 237, § 2; Ga. L. 1994, p. 395, § 1; Ga. L. 1996, p. 830, § 1; Ga. L. 1998, p. 839, § 1; Ga. L. 1999, p. 1225, § 1; Ga. L. 2002, p. 1473, § 1; Ga. L. 2011, p. 49, § 1/SB 10; Ga. L. 2013, p. 767, § 1/HB 124; Ga. L. 2014, p. 13, § 1/SB 318; Ga. L. 2015, p. 20, § 1/SB 103; Ga. L. 2018, p. 896, § 1/SB 17; Ga. L. 2020, p. 615, § 2/HB 879; Ga. L. 2021, p. 922, § 3/HB 497.

The 2018 amendment, effective May 8, 2018, in paragraph (j)(1), inserted “on and after the effective date of this Act,” near the beginning and substituted “11:00 A.M.” for “12:30 P.M.” in the middle; inserted “or her” in the last sentence of the ending undesignated paragraph in paragraph (j)(2); and added subsection (j.1).

The 2020 amendment, effective August 3, 2020, added subsections (j.2), (j.3), (p.1), and (q.1).

The 2021 amendment, effective May 10, 2021, part of an Act to revise, modernize, and correct the Code, substituted “in which the governing authority” for “in which governing authority” near the middle of paragraphs (j.2)(1) and (j.3)(1).

Code Commission notes. —

Pursuant to Code Section 28-9-5, in 1999, capitalization was revised in paragraph (o)(2).

Pursuant to Code Section 28-9-5, in 2018, “May 8, 2018” was substituted for “the effective date of this Act” near the beginning of paragraphs (j)(1) and (j.1)(1).

Pursuant to Code Section 28-9-5, in 2020, “August 3, 2020,” was substituted for “the effective date of this Code section” in paragraphs (j.2)(1), (j.2)(3), (j.3)(1) and (j.3)(3), and substituted “under subsection (q)” for “under (q)” in the first sentence of subsection (q.1).

Editor’s notes. —

Ga. L. 1982, p. 1768, § 3 added a new “subsection (i)” relating to weekend sales of alcoholic beverages for on-premises consumption in counties in the 295,000 to 300,000, inclusive, population range. Section 4 of Ga. L. 1982, p. 1768, not codified by the General Assembly, provided that this provision of § 3 would become effective only for those counties in which an election was called prior to November 1, 1983, and at which election more than one-half of the votes cast approved the provisions of Ga. L. 1982, p. 1768, § 3. Such an election was held, and such approval was given, in Cobb County on November 2, 1982. Ga. L. 1983, p. 3, § 4, part of an Act to correct errors and omissions in the Code, redesignated the “subsection (i)” enacted by Ga. L. 1982, p. 1768, § 3 as current “subsection (j).” The “subsection (i)” appearing is that enacted by Ga. L. 1982, p. 1855, § 3, as amended by Ga. L. 1983, p. 3, § 4.

Ga. L. 1982, p. 1855, § 6, not codified by the General Assembly, provided: “Notwithstanding any other provision of law to the contrary, the United States decennial census of 1980 shall become effective for purposes of this Act on the effective date of this Act.” The effective date of the Ga. L. 1982, p. 1855 amendment to this Code section was November 1, 1982.

Law reviews. —

For article, “Lawyers Who Represent Local Governments,” see 23 Ga. St. B. J. 58 (1987).

For annual survey of local government law, see 56 Mercer L. Rev. 351 (2004).

For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 255 (2011).

For article, “Regulation of Alcoholic Beverages Generally,” see 28 Ga. St. U. L. Rev. 255 (2011).

For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 1 (2018).

For annual survey on local government law, see 70 Mercer L. Rev. 177 (2018).

JUDICIAL DECISIONS

Constitutionality. —

There was a rational basis for the statutory scheme which prohibited bars from selling alcohol on Sundays, but allowed eating establishments to sell alcohol on Sundays even if they did not serve food on Sundays; O.C.G.A. §§ 3-3-7 and 3-3-20(a) did not violate equal protection and were upheld. State v. Heretic, Inc., 277 Ga. 275 , 588 S.E.2d 224 (2003).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 214, 228, 231, 238. 73 Am. Jur. 2d, Sundays and Holidays, §§ 3 et seq., 25 et seq., 47 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 83, 84, 85, 86, 425 et seq., 451, 499.

ALR. —

Power of municipal corporation to legislate as to Sunday observance, 37 A.L.R. 575 .

Power to extend Sunday observance laws beyond Sunday hours, 50 A.L.R. 628 .

What is a “meal” within contemplation of constitutional or statutory provisions relating to intoxicating liquors, 93 A.L.R. 962 .

Validity, construction, and application of statute or ordinance requiring closing, during certain hours, of places where intoxicating liquor is sold, as affected by fact that such places are also used for other business, 139 A.L.R. 756 .

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.

Validity of municipal regulation more restrictive than state regulation as to time for selling or serving intoxicating liquor, 51 A.L.R.3d 1061.

Validity of statutory classifications based on population — intoxicating liquor statutes, 100 A.L.R.3d 850.

3-3-8. Possession and transportation of lawfully purchased alcoholic beverages upon which taxes have not been paid in this state.

    1. An individual may possess and transport in this state the following quantities of alcoholic beverages upon which the taxes imposed by this title have not been paid:
      1. In the case of distilled spirits, not in excess of one-half gallon;
      2. In the case of malt beverages, not in excess of 576 ounces or two standard cases of 12 ounce cans or the equivalent thereof or one 7.75 gallon keg or barrel; and
      3. In the case of wine, not in excess of one-half gallon, except where the wine possessed was purchased and shipped pursuant to Code Section 3-6-32 and where the possessor has in his or her possession documentation evidencing that the wine was so purchased and shipped.
    2. Upon paying the excise taxes imposed by this title, an individual may possess and transport in this state the following quantities of alcoholic beverages purchased outside this state for personal or household use:
      1. In the case of distilled spirits, not in excess of one gallon;
      2. In the case of malt beverages, not in excess of two standard cases or the equivalent thereof; and
      3. In the case of wine, not in excess of two standard cases or the equivalent thereof.
    3. Whenever alcoholic beverages upon which the taxes imposed by this title have not been paid are being transported in a motor vehicle or other conveyance capable of transporting people, each individual in such motor vehicle or other conveyance, who is authorized to possess alcoholic beverages shall be entitled to the exemptions set forth in paragraph (1) of this subsection, and there shall be no presumption that all alcoholic beverages in the motor vehicle are possessed by the owner or operator of the motor vehicle. Where alcoholic beverages are possessed in excess of the exemptions set forth in paragraph (1) of this subsection, the possessor must have in his or her possession documentation evidencing that the excise taxes imposed by this title have been paid to the commissioner.
  1. This Code section shall apply only with respect to alcoholic beverages purchased by the possessor outside of this state in accordance with the laws of the place where purchased and brought into this state by the purchaser. The burden of proof that the beverages were purchased outside this state and in accordance with the laws of the place where purchased shall in all cases be upon the possessor of the beverages.

History. — Code 1933, § 5A-517, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1984, p. 790, § 1; Ga. L. 2000, p. 1401, § 1.

Law reviews. —

For note on 2000 amendment of this Code section, see 17 Ga. St. U. L. Rev. 7 (2000).

OPINIONS OF THE ATTORNEY GENERAL

The Code allows possession of up to one-half gallon of distilled spirits purchased by the possessor outside of this state in accordance with the laws of the place where purchased and brought into this state by the purchaser. 1984 Op. Atty Gen. No. U84-16.

Possession of untaxed liquor illegal. — It is illegal to possess in a wet county any quantity of distilled spirits on which no Georgia alcohol taxes and no alcohol taxes of another state have been paid, including among other things, all distilled spirits illegally manufactured in Georgia. 1984 Op. Atty Gen. No. U84-16.

RESEARCH REFERENCES

ALR. —

Possessing liquor and transporting liquor as a single offense or as separate offenses, 74 A.L.R. 411 .

3-3-9. Penalty for violations of prohibitions in chapter.

  1. It is unlawful for any person knowingly and intentionally to violate any prohibition contained in this chapter.
  2. Except as otherwise provided in this chapter, any person who violates any prohibition contained in this chapter shall be guilty of a misdemeanor.

History. — Code 1933, § 5A-9901, enacted by Ga. L. 1980, p. 1573, § 1.

JUDICIAL DECISIONS

Not criminal act to violate Department of Revenue regulation. —

O.C.G.A. §§ 3-3-9 and 3-3-27(c)(2) provide that it is a misdemeanor to violate a prohibition or provision of the Georgia Alcoholic Beverage Code, but these provisions do not make it a criminal act to violate a Georgia Department of Revenue regulation; although the parties intended to circumvent Ga. Comp. R. & Regs. r. 560-2-2-.38 by issuing corporate stock to an employee’s wife, the stock agreement was not illegal or immoral; thus, a trial court erred in voiding the stock interest of the employee’s wife, and summary judgment in favor of the corporation in the wife’s action for an accounting, dissolution, and other relief was reversed. Edwards v. Grapefields, Inc., 267 Ga. App. 399 , 599 S.E.2d 489 (2004), cert. denied, No. S04C1641, 2004 Ga. LEXIS 677 (Ga. Sept. 7, 2004).

3-3-10. Delivery of malt beverages, wine, and distilled spirits for personal use; marketing, receiving, and processing orders; regulation; penalty.

  1. For purposes of this Code section, the term:
    1. “Air carrier” means a person that undertakes by any means, directly or indirectly, to provide air transportation.
    2. “Carrier” means any person, including without limitation any motor carrier, freight forwarder, or air carrier, whose business is to transport goods or people while acting in the capacity as common, private, or contract transporter of a product or service using its facilities or those of other carriers.
    3. “Electronic means” means internet enabled technology and digital media, including, but not limited to, websites and consumer applications accessible through computers, smartphones, or other electronic devices.
    4. “Employee” means an individual who is:
      1. A full-time or part-time employee of a packaged goods retailer; and
      2. Authorized to act as an agent of such packaged goods retailer.
    5. “Freight forwarder” means a person holding itself out to the general public to provide transportation of property for compensation and in the ordinary course of its business:
      1. Assembles and consolidates, or provides for the assembly and consolidation of, shipments and performs or provides for break bulk and distribution operations of the shipments;
      2. Assumes responsibility for such transportation from the place of receipt to the place of destination; and
      3. Uses for any part of such transportation another freight forwarder, an air carrier, a motor carrier, or any other carrier.
    6. “Motor carrier” means a person that provides motor vehicle transportation for compensation.
    7. “Packaged goods retailer” means a person licensed under this title as a retailer to sell alcoholic beverages in unbroken packages for consumption off the premises that is not:
      1. A manufacturer or any other person licensed to manufacture alcoholic beverages;
      2. A carrier;
      3. A shipper; or
      4. A person that takes delivery of alcoholic beverages directly from a:
        1. Retailer; or
        2. Manufacturer or any other person licensed to manufacture alcoholic beverages.
    8. “Proper identification” shall have the same meaning as provided in Code Section 3-3-23.
    9. “Third party” means:
      1. Any person that:
        1. Is registered to do business in this state;
        2. Has a contractual relationship with a packaged goods retailer;
        3. Is authorized to act as an agent of such packaged goods retailer; and
        4. Is not a manufacturer, any other person licensed to manufacture alcoholic beverages, or an affiliate of such manufacturer or such other person; or
      2. Any full-time or part-time employee or independent contractor of any person that:
        1. Is registered to do business in this state;
        2. Has a contractual relationship with such third party as defined in subparagraph (A) of this paragraph;
        3. Is authorized to act as an agent of such third party as defined in subparagraph (A) of this paragraph; and
        4. Is not a manufacturer, any other person licensed to manufacture alcoholic beverages, or an affiliate of such manufacturer or such other person.
  2. Notwithstanding any other provision of law, and except where prohibited by local ordinance or resolution, a packaged goods retailer may deliver malt beverages and wine in unbroken packages lawfully sold to and purchased by an individual for personal use and not for resale to an address designated by such individual, subject to the following terms and conditions:
    1. The individual making the purchase shall, prior to ordering and purchasing malt beverages and wine for delivery, establish an account maintained by the packaged goods retailer that shall be available for inspection by the department;
    2. The packaged goods retailer or employee shall process all payments made by the individual who is transacting the purchase with the packaged goods retailer prior to the malt beverages and wine leaving such packaged goods retailer’s licensed premises for delivery;
    3. The packaged goods retailer, employee, or third party shall assemble, package, and fulfill each order at the licensed premises of the packaged goods retailer from inventory located at such licensed premises and shall not pull from the inventory of any other person, including another retailer or licensed premises;
    4. All malt beverages and wine that leave the licensed premises of the packaged goods retailer for delivery shall:
      1. Remain in the possession of the individual, either the packaged goods retailer, the employee, or the third party, that removed it from the licensed premises for delivery and shall not be transferred to any other person until the time of delivery in compliance with the requirements of this subsection or until the time of the return to the packaged goods retailer if delivery is not made;
      2. Only be transported in a vehicle or other transportation device containing products or goods traveling in intrastate commerce for delivery in the local licensing jurisdiction of the licensed premises of such packaged goods retailer; and
      3. Not be carried, commingled, or stored with, or transported in any vehicle or other transportation device containing, products or goods traveling in interstate commerce for delivery;
    5. Delivery shall be made by the packaged goods retailer, employee, or third party who:
      1. Is at least 21 years of age;
      2. Has a valid Georgia driver’s license;
      3. Has undergone within the last 12 months a background check that includes a local and national criminal history and driving records and:
        1. Has not had more than three moving violations in the prior three-year period;
        2. Has not had a major traffic violation, as such term is defined in Code Section 40-5-142, in the prior three-year period;
        3. Has not been convicted within the past seven years of driving under the influence of drugs or alcohol;
        4. Has not been convicted at any time of fraud, a sexual offense, the use of a motor vehicle to commit a felony, a crime involving property damage, a crime involving theft, a crime involving an act of violence, or a crime involving an act of terror; and
        5. Does not have a match on the National Sex Offender Registry data base;
      4. Has undergone training approved by the department on sales and delivery of malt beverages and wine in this state;
      5. Shall not possess or handle as part of or during the delivery forms of compensation that are used to purchase or transact the sale of malt beverages and wine;
      6. Does not receive compensation based upon whether an attempted delivery results in a completed transaction; and
      7. At all times during which the malt beverages and wine to be delivered are in the vehicle, transportation device, possession, or care of such packaged goods retailer, employee, or third party, shall not also have in his or her vehicle, transportation device, possession, or care any products or goods traveling in interstate commerce;
    6. Delivery shall be made by the packaged goods retailer, employee, or third party to an individual who is at least 21 years of age and presents proper identification verifying the age of such individual;
    7. At the time of delivery, the packaged goods retailer, employee, or third party shall verify the identity and age of the individual accepting delivery by validating the proper identification of the individual accepting delivery in person and obtaining his or her signature on a written or electronic acknowledgment of receipt of the order and certification of legal age to purchase malt beverages and wine. The packaged goods retailer, employee, or third party shall scan or otherwise verify the proper identification of the individual accepting delivery at the time of delivery and shall retain a record of such individual’s name and date of birth that shall be available for inspection upon request for a minimum of three years;
    8. The packaged goods retailer, employee, or third party conducting the delivery shall refuse to make the delivery if:
      1. No individual is visibly present and available at the address to accept delivery; or
      2. The individual visibly present and available attempting to accept the delivery:
        1. Is less than 21 years of age;
        2. Fails to produce proper identification verifying his or her age;
        3. Fails to provide a signature that matches such proper identification; or
        4. Is noticeably intoxicated;
    9. All deliveries shall be inspected at the time of delivery by the individual accepting such delivery. The transaction shall be deemed complete upon acceptance of delivery of the malt beverages and wine, and all sales shall be final;
    10. The delivery address shall be located within the local licensing jurisdiction of the packaged goods retailer;
    11. The delivery shall take place only during the lawful times when malt beverages and wine can be sold by the packaged goods retailer for consumption off the premises;
    12. The delivery shall be made only within the same calendar day on which the malt beverages and wine leave the licensed premises of the packaged goods retailer for delivery; and
    13. No delivery shall knowingly be made to any address or to any property that is part of:
      1. Any public or private elementary or secondary educational school, including without limitation any dormitory, housing, or common space located on the campus of any elementary or secondary educational school;
      2. Any prison, reformatory, and other correctional facilities;
      3. Any addiction or substance abuse facilities;
      4. Any locker, mailbox, package shipping location, or similar service or storage facility business; or
      5. Any retailer.
  3. A packaged goods retailer may use electronic means to market, receive, and process orders for malt beverages and wine it is licensed to sell placed by individuals who are at least 21 years of age, provided that any such orders shall be delivered in accordance with subsection (b) of this Code section.
  4. A packaged goods retailer may market, receive, and process orders for malt beverages and wine it is licensed to sell placed by individuals who are at least 21 years of age using electronic means owned, operated, or maintained by a third party, provided that any such orders shall be delivered in accordance with subsection (b) of this Code section and:
    1. The packaged goods retailer maintains control and responsibility over the sales transaction and the transfer of the physical possession of the malt beverages and wine from the inventory of such packaged goods retailer to the individual conducting the delivery in accordance with subsection (b) of this Code section;
    2. The packaged goods retailer shall retain sole discretion to determine whether to accept and complete an order or to reject an order;
    3. The purchase transaction takes place between the individual placing the order and the packaged goods retailer and the packaged goods retailer appears as the merchant of record at all times, including at the time of purchase and at the time of receipt of the delivery;
    4. Any credit or debit card information provided by the individual placing the order to a third party for the purpose of transacting the purchase with the packaged goods retailer is automatically directed to the packaged goods retailer;
    5. The packaged goods retailer that accepts the order receives the payment that is made by the individual who is transacting the purchase with such packaged goods retailer; and
    6. The delivery of malt beverages and wine to the individual who placed the order is made by the packaged goods retailer, employee, or third party in compliance with the requirements of subsection (b) of this Code section.

    (d.1) Notwithstanding any other provision of law, and except where prohibited by local ordinance or resolution, a licensed retail package liquor store that is also a packaged goods retailer may deliver distilled spirits in unbroken packages lawfully sold to and purchased by an individual for personal use and not for resale in the same manner and under the same terms and conditions as provided in this Code section for the delivery of malt beverages and wine.

  5. The department shall develop a curriculum for or list of required elements of the sales and delivery training required under subparagraph (b)(4)(D) of this Code section and shall determine the providers approved to conduct such training. A packaged goods retailer or third party may submit to the department a proposed program for such required training, upon receipt of which the department shall have 15 days to approve, deny, or indicate what modifications are necessary to such program.
  6. Persons appointed by the commissioner as special agents or enforcement officers of the department shall, in addition to the powers and duties provided for in Code Section 3-2-30, have the power to inspect, without a warrant, in a lawful manner any premises of the packaged goods retailer or any vehicle or other transportation device being used by the packaged goods retailer, employee, or third party to make a delivery under this Code section for the purpose of:
    1. Determining if any of the provisions of this Code section or any rule or regulation promulgated under its authority is being violated; or
    2. Securing evidence as may be needed for an administrative proceedings action, as provided in this Code section or any other provisions of this title.
  7. The commissioner shall be authorized to promulgate and enforce such rules and regulations as it may deem necessary to carry out or make effective the provisions of this Code section, including, but not limited to, rules and regulations governing the training of individuals making deliveries.
    1. In addition to the commissioner’s power to suspend, revoke, or cancel licenses, permits, or registrations issued pursuant to this title, upon a violation of any provision of this Code section or any rule or regulation promulgated thereunder, the commissioner shall have the power to impose a fine not to exceed $500.00 for each violation and may suspend for up to 30 days for each violation the authorization provided by this Code section for the packaged goods retailer to deliver malt beverages and wine or to use an employee or third party to deliver malt beverages and wine. Any violation committed by an employee or a third party shall be attributed to and deemed to be an act taken by a packaged goods retailer for purposes of this Code section. A packaged goods retailer, employee, and third party may each be fined for the same violation. Nothing in this paragraph shall be construed to allow the commissioner to suspend or terminate the authorization of a packaged goods retailer to sell malt beverages and wine on the licensed premises as a result of a violation of this Code section by a third party.
    2. Any local governing authority of a municipality or county that issues a license to a packaged goods retailer and allows for delivery of malt beverages and wine by a packaged goods retailer, an employee, or a third party may impose penalties upon a packaged goods retailer, employee, or third party, and may fine more than one person for the same violation, provided that such penalties do not exceed the amount of the fine or the number of delivery suspension days provided for in this paragraph. Nothing in this paragraph shall be construed to allow any local governing authority of a municipality or county to suspend or terminate the authorization of a packaged goods retailer to sell malt beverages and wine on the licensed premises as a result of a violation of this Code section.
    3. The penalties provided for in this Code section shall be in addition to any criminal penalties that may otherwise be provided by law.

History. — Code 1981, § 3-3-10 , enacted by Ga. L. 2020, p. 615, § 3/HB 879.

Effective date. —

This Code section became effective August 3, 2020.

3-3-11. Sale of mixed drinks for off premises consumption.

  1. For purposes of this Code section, the term:
    1. “Approved container” means a tamper evident container that:
      1. Does not contain openings or straw holes;
      2. Is sealed in a manner that is visibly apparent if the container has been subsequently opened or tampered with; and
      3. Has an affixed label or marking that identifies the licensee that prepared and sold the mixed drink.
    2. “Curbside pick-up” means when a licensee furnishes purchased goods to a customer’s vehicle within a clearly designated pick-up area located within a paved parking area adjacent to the licensed premises.
    3. “Food service establishment” means any establishment holding a valid food service permit from its respective county health department.
    4. “Mixed drink” means a beverage prepared by combining distilled spirits with nonalcoholic liquid or liquids and that:
      1. Is prepared on the day of sale by an employee of the licensee;
      2. Contains no more than 3 ounces of distilled spirits; and
      3. Is sealed in an approved container.
  2. Notwithstanding any other contrary provision of law and unless otherwise prohibited by local ordinance or resolution, any food service establishment which is licensed to sell distilled spirits for consumption on the premises may sell mixed drinks for off-premises consumption in approved containers, provided that such mixed drinks are:
    1. Sold to an individual 21 years of age or older who shall be limited to two mixed drinks per entree ordered;
    2. Accompanied by a food order and a sales receipt with a time stamp that indicates the date and time of such purchases;
    3. Sold for personal use and not for resale and picked up in person by the same individual customer to whom the mixed drinks and entrees were sold and from whom the food service establishment received payment; provided, however, that such individual customer shall not include a delivery service or third-party agent; and
    4. Furnished with the accompanying food order to the customer on the premises or by way of curbside pick-up.
  3. If transported in a motor vehicle, the customer shall place the mixed drink in a locked glove compartment, a locked trunk, or the area behind the last upright seat of a motor vehicle that is not equipped with a trunk.
  4. Sales of mixed drinks for off-premises consumption shall be taxed in accordance with Code Sections 3-4-130 through 3-4-133.
  5. The commissioner shall promulgate and enforce such rules and regulations as he or she may deem reasonable and necessary to effectuate the provisions of this Code section.

History. — Code 1981, § 3-3-11 , enacted by Ga. L. 2021, p. 498, § 1/SB 236.

Effective date. —

This Code section became effective May 5, 2021.

Article 2 Prohibited Acts

Cross references. —

Hunting while under influence of intoxicating wines, beers, or liquor, § 27-3-7 .

Driving under the influence of alcohol or drugs, § 40-5-67 et seq.

Regulation of operation and patronage of billiard rooms where alcoholic beverages are sold, § 43-8-1 et seq.

Civil liability of persons selling adulterated alcoholic beverages, § 51-1-24 .

RESEARCH REFERENCES

ALR. —

Test of intoxicating character of liquor, 4 A.L.R. 1137 ; 11 A.L.R. 1233 ; 19 A.L.R. 512 ; 36 A.L.R. 725 ; 91 A.L.R. 513 .

Criminal responsibility of husband for violation of liquor law by wife, 19 A.L.R. 136 ; 27 A.L.R. 312 .

Criminal responsibility of one who acts as sentinel during violation of intoxicating liquor law, 64 A.L.R. 427 .

What constitutes injury to means of support within civil damage or dramshop act, 4 A.L.R.3d 1332.

Third person’s participating in or encouraging drinking as barring him from recovering under civil damage or similar acts, 26 A.L.R.3d 1112.

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.

Homicide: criminal liability for death resulting from unlawfully furnishing intoxicating liquor or drugs to another, 32 A.L.R.3d 589.

Contributory negligence allegedly contributing to cause of injury as defense in Civil Damage Act proceeding, 64 A.L.R.3d 849.

Proof of causation of intoxication as a prerequisite to recovery under Civil Damage Act, 64 A.L.R.3d 882.

Civil Damage Act: liability of one who furnishes liquor to another for consumption by third parties, for injury caused by consumer, 64 A.L.R.3d 922.

Common-law right of action for damage sustained by plaintiff in consequence of sale or gift of intoxicating liquor or habit-forming drug to another, 97 A.L.R.3d 528.

Social host’s liability for injuries incurred by third parties as a result of intoxicated guest’s negligence, 62 A.L.R.4th 16.

Social host’s liability for death or injuries incurred by person to whom alcohol was served, 54 A.L.R.5th 313.

3-3-20. Sale of alcoholic beverages on Sundays, election days, and Christmas Day.

  1. Except as provided in subsection (d) of this Code section or except as specifically authorized by law, no person knowingly and intentionally shall sell or offer to sell alcoholic beverages on Sunday.
    1. As used in this subsection, the term “day” means that period of time beginning with the opening of the polls and ending with the closing of the polls.
      1. Except as provided in subparagraph (B) of this paragraph and paragraph (3) of this subsection, in any county or municipality in which the sale of alcoholic beverages is authorized, the sale of alcoholic beverages in compliance with such authorization shall be authorized and legal on any election day.
      2. The local governing authority of any county in which the sale of alcoholic beverages is authorized and the local governing authority of any municipality in which the sale of alcoholic beverages is authorized may, by ordinance, prohibit the sale of alcoholic beverages on any election days. In any case where the governing authority of a county or municipality has passed an ordinance prohibiting the sale of alcoholic beverages on any election days as authorized by this subparagraph, such prohibition shall apply only within the territorial boundaries for which the election is held but such territorial boundaries shall not include any property owned or operated by a county, municipality, or other political subdivision of this state for airport purposes if no person resides on such publicly owned or operated property.
      1. Notwithstanding any other provisions of this subsection, it shall be unlawful for any person to sell alcoholic beverages within 250 feet of any polling place or of the outer edge of any building within which such polling place is established on primary or election days.
      2. Any person violating the provisions of this paragraph shall be guilty of a misdemeanor.
  2. The governing authority of any county or municipality may, by ordinance or resolution, prohibit the sale of alcoholic beverages on Christmas Day.
    1. In all municipalities within any county having a population of 400,000 or more according to the United States decennial census of 1990 or any future such census in which the sale of alcoholic beverages is lawful, alcoholic beverages may be sold on Sundays between the hours of 12:30 P.M. and 12:00 Midnight at festivals.  As used in this paragraph, the term “festival” means a specific outdoor public celebration or gathering for which a license or permit has been issued by the appropriate governing authority which involves the use either of public parks or public streets and which includes entertainment, dancing, music, dramatic productions, art exhibition, parades, or the sale of merchandise, food or alcohol, or any combination of the foregoing; and which of necessity requires for its successful execution the provision and coordination of municipal services to a degree significantly over and above that which the city routinely provides under ordinary everyday circumstances.  The definition of “festival,” as used in this paragraph, does not include events which are solely parades, foot races, or political demonstrations unless such parade, foot race, or political demonstration is proposed as an integral part of a larger “festival,” as defined in this paragraph.
    2. Notwithstanding the provisions of this subsection, all persons and entities selling alcoholic beverages pursuant to this subsection shall fully comply with all other applicable state and local license and permit requirements.

History. — Ga. L. 1937, p. 148, §§ 6, 7; Ga. L. 1937-38, Ex. Sess., p. 103, § 14; Ga. L. 1971, p. 864, § 1; Ga. L. 1972, p. 721, § 1; Ga. L. 1977, p. 1236, § 1; Code 1933, § 58-813, enacted by Ga. L. 1977, p. 1316, § 1; Code 1933, § 5A-507, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 460, § 1; Ga. L. 1981, p. 1269, § 19; Ga. L. 1982, p. 890, § 1; Ga. L. 1984, p. 1688, § 1; Ga. L. 1985, p. 1508, § 1; Ga. L. 1986, p. 10, § 3; Ga. L. 1992, p. 1694, § 1; Ga. L. 2000, p. 1405, § 1.

Law reviews. —

For article, “Lawyers Who Represent Local Governments,” see 23 Ga. St. B. J. 58 (1987).

For annual survey of local government law, see 56 Mercer L. Rev. 351 (2004).

For article, “Regulation of Alcoholic Beverages Generally,” see 28 Ga. St. U. L. Rev. 255 (2011).

For article on alcoholic beverages, see 35 Ga. St. U. L. Rev. 1 (2018).

For note on 2000 amendment of this Code section, see 17 Ga. St. U. L. Rev. 4 (2000).

JUDICIAL DECISIONS

Private clubs are covered by the prohibition against Sunday liquor sales, and a city could not by ordinance authorize sales which were expressly prohibited by state law. Cheshire Bridge Enters., Inc. v. State, 221 Ga. App. 426 , 472 S.E.2d 6 (1996).

This section is not unconstitutional as a violation of the establishment clause. Neither on its face nor in its effect nor by its history does this legislation coercively aid a particular religion. Mere fact that police regulation parallels some religious commandment does not make it invalid as a religious enactment. Epstein v. Maddox, 277 F. Supp. 613 (N.D. Ga. 1967), aff'd, 401 F.2d 777 (5th Cir. 1968) (decided under Ga. L. 1937-38, Ex. Sess., p. 103).

Constitutionality. —

There was a rational basis for the statutory scheme which prohibited bars from selling alcohol on Sundays, but allowed eating establishments to sell alcohol on Sundays even if they did not serve food on Sundays; O.C.G.A. §§ 3-3-7 and 3-3-20(a) did not violate equal protection and were upheld. State v. Heretic, Inc., 277 Ga. 275 , 588 S.E.2d 224 (2003).

Section applicable to sale of liquor by drink. —

Prohibition against sale of liquor on Sunday contained in predecessor to this section applied to sale of liquor by the drink for consumption on the premises. Hawes v. Dinkler, 224 Ga. 785 , 164 S.E.2d 799 (1968) (decided under Ga. L. 1937-38, Ex. Sess., p. 103).

Cause of action against public nuisance. —

Where petitioner sought to show existence of a public nuisance and amended petition by adding that the place was also one where beer was being sold on Sunday in violation of this section, effect of amendment was to amplify or give an additional reason why the place had become such a nuisance, and sale of beer on Sunday in violation of this section merely added to general character of the place as a public nuisance and did not undertake to add new cause of action. Davis v. State ex rel. Lanham, 199 Ga. 839 , 35 S.E.2d 458 (1945) (decided under Ga. L. 1937, p. 148).

OPINIONS OF THE ATTORNEY GENERAL

In light of the similarity of the statutory provisions, annotations rendered under Ga. L. 1964, Ex. Sess. p. 26, § 1, making it a misdemeanor to sell alcoholic beverages on primary or election days, are included in the annotations for this Code section.

The term “territorial boundaries for which the election is held” as used in subparagraph (b)(2)(A) of O.C.G.A. § 3-3-20 means the territorial boundaries of the entire political subdivision which is conducting the election. 1984 Op. Atty Gen. No. U84-51.

Sale in municipalities on election days for county-wide elections. — A municipality may, pursuant to O.C.G.A. § 3-3-20 , permit sales of alcoholic beverages on election days for county-wide elections notwithstanding a county ordinance which expressly prohibits sales of alcoholic beverages on election days. 1985 Op. Atty Gen. No. U85-47.

Sunday closing of restaurant selling beer and wine. — A restaurant which holds a license to sell beer and wine and does sell beer and wine during the weekdays would not be required to close on Sunday. 1957 Ga. Op. Att'y Gen. 175. (rendered under former Georgia Laws).

Malt beverage regulations may not be modified so as to permit the sale of malt beverages after the hours of the election or changed to limit the prohibition to state-wide elections, such as a general election or a state-wide primary. 1965-66 Op. Att'y Gen. No. 66-13. (Decided under Ga. L. 1964, Ex. Sess. p. 26, § 1).

“Election day” encompasses time period of from midnight until midnight. — The term “election day,” as formerly used in the Constitution, encompasses a period of time from midnight preceding the opening of the polls until midnight succeeding the closing of the polls. 1965-66 Op. Att'y Gen. No. 66-13. (Decided under Ga. L. 1964, Ex. Sess. p. 26, § 1).

Section applies to school or hospital bond elections. 1965-66 Op. Att'y Gen. No. 65-17. (Decided under Ga. L. 1964, Ex. Sess. p. 26, § 1).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 214, 228, 231, 238. 73 Am. Jur. 2d, Sundays and Holidays, §§ 3 et seq., 25 et seq., 47 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 83, 84, 85, 86, 425 et seq., 451, 499.

ALR. —

Power of municipal corporation to legislate as to Sunday observance, 37 A.L.R. 575 .

Power to extend Sunday observance laws beyond Sunday hours, 50 A.L.R. 628 .

Contributory negligence allegedly contributing to cause of injury as defense in Civil Damage Act proceeding, 64 A.L.R.3d 849.

Proof of causation of intoxication as a prerequisite to recovery under Civil Damage Act, 64 A.L.R.3d 882.

Civil Damage Act: liability of one who furnishes liquor to another for consumption by third parties, for injury caused by consumer, 64 A.L.R.3d 922.

What constitutes “sale” of liquor in violation of statute or ordinance, 89 A.L.R.3d 551.

What constitutes such discriminatory prosecution or enforcement of laws as to provide valid defense in state criminal proceedings, 95 A.L.R.3d 280.

Validity, construction, and effect of “Sunday closing” or “blue” laws — modern status, 10 A.L.R.4th 246.

Validity, under federal and state establishment of religion provisions, of prohibition of sale of intoxicating liquors on specific religious holidays, 27 A.L.R.4th 1155.

3-3-21. Sales of alcoholic beverages near churches, school buildings, or other sites.

    1. No person knowingly and intentionally may sell or offer to sell:
      1. Any distilled spirits in or within 100 yards of any church building or within 200 yards of any school building, educational building, school grounds, or college campus;
      2. Any wine or malt beverages within 100 yards of any school building, school grounds, or college campus. This subparagraph shall not apply at any location for which a license has been issued prior to July 1, 1981, nor to the renewal of such license. Nor shall this subparagraph apply at any location for which a new license is applied for if the sale of wine and beer was lawful at such location at any time during the 12 months immediately preceding such application. Nothing in this subparagraph shall prohibit a grocery store licensed for the retail sale of only wine and malt beverages for consumption off the premises from selling wine or malt beverages within 100 yards of any school building, or college campus, where so permitted by resolution or ordinance of the county or municipality. As used in this subparagraph, the term “grocery store” means a retail establishment which has a total retail floor space of at least 10,000 square feet of which at least 85 percent is reserved for the sale of food and other nonalcoholic items, conducts all of its sales inside the building containing its retail floor space, and meets such other criteria as may be required by the local governing authority of the county or municipality; or
      3. Any distilled spirits, wine, or malt beverages within 100 yards of an alcoholic treatment center owned and operated by this state or any county or municipal government therein. This paragraph shall not apply to any business having a license in effect on July 1, 1981.
    2. As used in this subsection, the term “school building” or “educational building” shall apply only to state, county, city, or church school buildings and to such buildings at such other schools in which are taught subjects commonly taught in the common schools and colleges of this state and which are public schools or private schools as defined in subsection (b) of Code Section 20-2-690.
  1. Nothing contained in this Code section shall prohibit the licensing of the sale or distribution of alcoholic beverages by:
    1. Hotels of 50 rooms or more which have been in continuous operation for a period of at least five years preceding July 1, 1981;
    2. Bona fide private clubs, owning their own homes, subject to licensing under Chapter 7 of this title;
    3. Licensees for the retail sale of alcoholic beverages for consumption on the premises only who shall be subject to regulation as to distances from churches, schools, and college campuses by counties and municipalities;
    4. Licensees for retail sale packages of alcoholic beverages for consumption off the premises who shall be subject to regulation as to distances from college campuses by counties and municipalities; provided, however, that such distances may be less restrictive than those provided in this Code section but shall not be more restrictive; and provided, further, that if such licensees are not regulated as to distances from college campuses by a county or municipality, then the distances set forth in this Code section shall govern such licensees; and
    5. Licensees for retail sale packages of wine and malt beverages for consumption off the premises who shall be subject to regulation as to distances from school grounds by counties and municipalities; provided, however, that if such licensees are not regulated as to distances from school grounds, then the distances set forth in this Code section shall govern such licensees.

      For purposes of this subsection, the term “college campus” shall include, but shall not be limited to, all buildings and grounds of any public or private technical school, vocational school, college, university, or other institution of postsecondary education.

  2. For purposes of this Code section, distances shall be measured by the most direct route of travel on the ground.
  3. Reserved.
    1. As used in this subsection, the term “housing authority property” means any property containing 300 housing units or fewer owned or operated by a housing authority created by Article 1 of Chapter 3 of Title 8, the “Housing Authorities Law.”
    2. No person knowingly and intentionally may sell any alcoholic beverages for consumption on the premises within 100 yards of any housing authority property. This subsection shall not apply at any location for which a license has been issued prior to July 1, 2000, nor to the renewal of such license. Nor shall this subsection apply at any location for which a new license is applied for if the sale of alcoholic beverages for consumption on the premises was lawful at such location at any time during the 12 months immediately preceding such application.

History. — Laws 1808, Cobb’s 1851 Digest, p. 851; Code 1863, § 4448; Code 1868, § 4490; Code 1873, § 4575; Code 1882, § 4575; Ga. L. 1890-91, p. 132, § 1; Penal Code 1895, § 434; Penal Code 1910, § 435; Code 1933, § 58-601; Ga. L. 1935, p. 73, § 15B; Ga. L. 1937, p. 148, § 2; Ga. L. 1937-38, Ex. Sess., p. 103, § 9; Ga. L. 1945, p. 447, §§ 1, 2; Ga. L. 1973, p. 610, § 1; Code 1933, § 5A-508, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1265, § 1; Ga. L. 1981, p. 1269, § 20; Ga. L. 1998, p. 1300, § 2; Ga. L. 1999, p. 81, § 3; Ga. L. 2000, p. 1653, § 1; Ga. L. 2013, p. 897, § 2/HB 517; Ga. L. 2015, p. 81, § 1/HB 85; Ga. L. 2017, p. 759, § 1/HB 510; Ga. L. 2020, p. 615, § 4/HB 879; Ga. L. 2021, p. 391, § 1/HB 392.

The 2017 amendment, effective July 1, 2017, substituted “Reserved.” for the former provisions of subsection (d), which read: “(d)(1) In counties having a population of not less than 175,000 nor more than 195,000, according to the United States decennial census of 1970 or any future such census, the distances provided in subparagraph (a)(1)(A) of this Code section for separation of businesses licensed under this title from churches and schools shall be measured as follows:

“(A) From the property line of the tract on which is located the business regulated under this title;

“(B) To the property line of the tract on which is located the church, school ground, or college campus; and

“(C) Along a straight line which describes the shortest distance between the two property lines.

“(2) No license in effect on April 13, 1979, shall be revoked before its date of expiration by reason of the method of measurement set out in this subsection if the license was granted in reliance on another method of measurement. No application for a license or for a renewal shall be denied by reason of the method of measurement set out in this subsection if the application is for premises for which a license was granted prior to April 13, 1979, in reliance on another method of measurement.”.

The 2020 amendment, effective August 3, 2020, deleted “and” at the end of paragraph (b)(2); in paragraph (b)(3), substituted “college campuses” for “colleges” and substituted “; and” for the period at the end; added paragraph (b)(4); and added the ending undesignated paragraph in subsection (b).

The 2021 amendment, effective May 4, 2021, deleted “school grounds,” following “any school building,” in the fourth sentence in subparagraph (a)(1)(B); and, in subsection (b), deleted “and” at the end of paragraph (b)(3), substituted “; and” for a period at the end of paragraph (b)(4), and added paragraph (b)(5).

Editor’s notes. —

Ga. L. 2013, p. 897, § 1/HB 517, not codified by the General Assembly, provides that: “The General Assembly finds that there are neighborhoods and downtown areas in this state near college campuses that are underserved by grocery stores, making it difficult for residents who live in such neighborhoods and downtown areas to access daily essentials and adequate food supplies and nutrition, especially those residents who do not own automobiles. The General Assembly further finds that owners of grocery stores may be reluctant to locate such stores in areas in which it is not possible to sell packages of wine and malt beverages when such sales are permitted elsewhere in the county or municipality. The General Assembly further finds that allowing a local governing authority of a county or municipality to have local control of the distance requirements for the package sales of wine and malt beverages near college campuses will permit such local governments to determine how to best serve the public health, safety, and welfare of its citizens.”

Law reviews. —

For article, “Lawyers Who Represent Local Governments,” see 23 Ga. St. B. J. 58 (1987).

JUDICIAL DECISIONS

Church kindergarten is a “school” within the meaning of O.C.G.A. § 3-3-21 . Risser v. City of Thomasville, 248 Ga. 866 , 286 S.E.2d 727 (1982).

Constitutionality. —

The predecessor to this section was not unconstitutional and void on the grounds that it was too uncertain, vague, and indefinite to be capable of penal enforcement. McCaffrey v. State, 183 Ga. 827 , 189 S.E. 825 (1937).

Legislative intent. —

The objective when the legislature provided that liquor stores should not be located within 200 (now 100 for wine or beer) yards of a school ground was that there should be no traffic in liquor within specified distance so that teachers and pupils should not be subjected to evil influences connected with liquor traffic. Certainly the legislature did not intend to include in the prohibition all premises on which school children might happen to congregate. Haley v. Bailey, 199 Ga. 486 , 34 S.E.2d 685 (1945).

The General Assembly intended to establish an area between schools and businesses which sell beer and wine. A reasonable interpretation of legislative intent necessarily requires that the 100-yard barrier of this section apply to schools rather than school buildings. The restriction of sale of beer near schools has no relationship to the building but to the occupants. Since students may receive instructions and congregate on school premises, it is legislative intent that beer and wine not be sold within 100 yards of instructional premises. Davidson v. Lovett, 242 Ga. 375 , 249 S.E.2d 61 (1978).

Power of local authorities to establish greater distance restrictions. —

This section establishes only a minimum distance for retail sale of wine and beer from a school or schoolhouse, and local governing authority can establish, pursuant to its police power authority, a distance restriction that is greater than 300 feet. Powell v. Board of Comm'rs of Rds. & Revenues, 234 Ga. 183 , 214 S.E.2d 905 (1975).

USO Center not schoolground. —

A tract of land, on which prior to 1940 a city operated thereon a school, which was destroyed by a cyclone in 1940, which property thereafter was leased by, and in possession of, the United States government as a USO Center, was not a schoolground under this section. Haley v. Bailey, 199 Ga. 486 , 34 S.E.2d 685 (1945).

OPINIONS OF THE ATTORNEY GENERAL

This section covers not only any church or school but also the campus or grounds surrounding the church or school which constitutes a part of the church or school properties. 1954-56 Ga. Op. Att'y Gen. 461.

The distance of 100 (now 200) yards between liquor stores and churches is to be measured as a straight line from one point to the other and not as a line running along the nearest sidewalk route. 1968 Op. Att'y Gen. No. 68-164.

Distance from church buildings. — The distance provisions of O.C.G.A. § 3-3-21(a)(1)(A) with regard to the location of church buildings require that the building containing the premises licensed for the sale of distilled spirits must be located no less than 100 yards from any church building. 2002 Op. Atty Gen. No. U2002-5.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 110, 111, 112.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 83, 84, 85, 86, 152, 425 et seq., 451, 495 et seq.

ALR. —

Reasonableness of statutory or local regulations prohibiting sale or license for sale of intoxicating liquors within prescribed distance from church, school, or other institution, 119 A.L.R. 643 .

“School,” “schoolhouse,” or the like within statute prohibiting liquor sales within specified distance thereof, 49 A.L.R.2d 1103.

“Church” or the like, within statute prohibiting liquor sales within specified distance thereof, 59 A.L.R.2d 1439.

Measurement of distances for purposes of enactment prohibiting sale, or license for sale, of intoxicating liquor within given distance from church, university, school, or other institution or property as base, 4 A.L.R.3d 1250.

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.

Validity of statutory classifications based on population — intoxicating liquor statutes, 100 A.L.R.3d 850.

3-3-21.1. Possession of alcoholic beverages on the grounds of a public school.

  1. Except as provided in subsection (b) of this Code section, no person shall possess any alcoholic beverages upon the grounds or within any structure of a public elementary school; public high school; or public trade, vocational, or industrial school.
  2. Subsection (a) of this Code section shall not apply to any situation where alcoholic beverages are used by a teacher for educational purposes nor to any situation where alcoholic beverages are used in a religious ceremony or observance.

History. — Code 1933, § 5A-508.1, enacted by Ga. L. 1981, p. 625, § 1.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 49, 112.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 488 et seq., 505 et seq.

3-3-22. Sale or furnishing of alcoholic beverages to intoxicated persons.

No alcoholic beverage shall be sold, bartered, exchanged, given, provided, or furnished to any person who is in a state of noticeable intoxication.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 15; Ga. L. 1953, Nov.-Dec. Sess., p. 283, § 1; Ga. L. 1980, p. 1206, §§ 2, 5; Code 1933, § 5A-509, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 21.

Cross references. —

Liability for acts of intoxicated persons, § 51-1-40 .

Law reviews. —

For note discussing tavern keeper liability in Georgia for injury caused by a person to whom an intoxicant was sold, see 9 Ga. L. Rev. 239 (1974).

JUDICIAL DECISIONS

Editor’s notes. —

In light of the similarity of the statutory provisions, annotations decided prior to the 1988 enactment of O.C.G.A. § 51-1-40 , concerning liability for acts of intoxicated persons and under former Code 1993 § 58-612 are included in the annotations for this Code section.

Purpose. —

The legislature’s intent in enacting O.C.G.A. § 3-3-22 was to provide Georgia citizens with a modicum of protection from the varied reasonably foreseeable and life-threatening risks involved in continuing to serve alcoholic beverages to noticeably intoxicated persons. Whelchel v. Laing Properties, Inc., 190 Ga. App. 182 , 378 S.E.2d 478 (1989).

O.C.G.A. § 3-3-22 does not impose tort liability on dispensers of alcoholic beverages. Nunn v. Comidas Exquisitos, Inc., 166 Ga. App. 796 , 305 S.E.2d 487 (1983).

Law applies to social hosts. —

The law regarding purveyors of alcoholic beverages applies to social hosts’ furnishing alcohol to their adult guests. Pirkle v. Hawley, 199 Ga. App. 371 , 405 S.E.2d 71 (1991), cert. denied, No. S91C1026, 1991 Ga. LEXIS 753 (Ga. May 15, 1991).

A social host may be liable to third persons for furnishing alcohol to a guest, and the social host must take some action to prevent the guest from driving once he or she is discovered to be intoxicated. Pirkle v. Hawley, 199 Ga. App. 371 , 405 S.E.2d 71 (1991), cert. denied, No. S91C1026, 1991 Ga. LEXIS 753 (Ga. May 15, 1991).

Analogous application to health care providers. —

Duty imposed on alcohol providers to protect third parties by not serving intoxicated patrons could not likewise be imposed on doctors treating patients; thus, the doctor did not owe a duty to decedent based on the doctor’s provision of a medical certificate to the truck driver that the truck driver was physically fit to drive a commercial vehicle, in a case where the truck driver died of preexisting coronary disease three months after receiving the certificate while driving a truck and the truck then struck decedent’s vehicle and killed the decedent. The doctor did not have any legal authority to restrain the truck driver for the benefit of the public, and, thus, owed no duty to the decedent to not have provided the certificate to the truck driver. Houston v. Bedgood, 263 Ga. App. 139 , 588 S.E.2d 437 (2003), cert. denied, No. S04C0162, 2004 Ga. LEXIS 111 (Ga. Feb. 2, 2004).

Person furnishing alcohol to intoxicated minor liable to person injured. —

A person who encourages a noticeably intoxicated person under the legal drinking age to become further intoxicated and who furnishes to such intoxicated person more alcohol, knowing that such person will soon be driving a vehicle, is liable in tort to a person injured by the negligence of such intoxicated driver. Sutter v. Hutchings, 254 Ga. 194 , 327 S.E.2d 716 (1985).

Actual knowledge required to support jury finding of proximate cause. —

A showing of actual knowledge that the recipient of alcohol would be driving is required in order to support a jury finding of proximate cause. Actual knowledge may be established either by direct or circumstantial evidence. Whelchel v. Laing Properties, Inc., 190 Ga. App. 182 , 378 S.E.2d 478 (1989).

Knowledge of minor’s degree of intoxication. —

Evidence was insufficient to show that any breach of duty by a bowling alley relating to alcohol was the proximate cause of the death of a passenger in a car driven by a minor who had been served beer at the bowling alley, where there was no evidence that any employee had knowledge that the minor was intoxicated or would be driving an automobile. Kalpa v. Perczak, 658 F. Supp. 235 (N.D. Ga. 1987).

Liability for injuries to third parties. —

One who provides alcoholic beverages to a noticeably intoxicated person, knowing that the person will soon be driving a vehicle, may be liable for a third party’s injuries caused by the negligence of the intoxicated driver. This cause of action is not limited to social host situations involving minors. Tibbs v. Studebaker's of Savannah, Inc., 184 Ga. App. 642 , 362 S.E.2d 377 (1987).

Jury question. —

Whether bowling alley, which served beer to patrons, was guilty of negligence in failing to keep its premises safe for business invitees was a question for the jury and could not be properly resolved by way of summary judgment. Bishop v. Fair Lanes Ga. Bowling, Inc., 803 F.2d 1548 (11th Cir. 1986).

Whether a person was “noticeably intoxicated” was a jury question under the facts. Studebaker's of Savannah, Inc. v. Tibbs, 195 Ga. App. 142 , 392 S.E.2d 908 (1990), cert. denied, No. S90C0987, 1990 Ga. LEXIS 758 (Ga. May 16, 1990).

Instruction to jury. —

In a negligence action, the trial court did not err in charging the jury that one who provides alcoholic beverages to a noticeably intoxicated person, knowing that that person will soon be driving a vehicle, may be liable for a third person’s injuries caused by the negligence of the intoxicated driver, if the alcohol was a proximate cause of the injuries. Studebaker's of Savannah, Inc. v. Tibbs, 195 Ga. App. 142 , 392 S.E.2d 908 (1990), cert. denied, No. S90C0987, 1990 Ga. LEXIS 758 (Ga. May 16, 1990).

No recovery by consumer causing injuries. —

A consumer of alcohol cannot recover damages from the provider of the alcohol for injuries caused by the consumer to a third person. Sutter v. Hutchings, 254 Ga. 194 , 327 S.E.2d 716 (1985).

Office Christmas parties. —

The acts of employer hosting an office “Christmas party” including contracting with alcohol purveyor to obtain and pay for its services in actually furnishing and giving alcoholic beverages to party guests fell at least within the act of providing alcohol as contemplated by O.C.G.A. § 3-3-22 . Whelchel v. Laing Properties, Inc., 190 Ga. App. 182 , 378 S.E.2d 478 (1989).

This section is a criminal law and must be strictly construed. Henry Grady Hotel Co. v. Sturgis, 70 Ga. App. 379 , 28 S.E.2d 329 (1943) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Supplying money to intoxicated person. —

This section was not enacted for purpose of protecting injured person from one who furnished money to an intoxicated person for purpose of buying whiskey. Therefore, it is not actionable negligence for one to supply money to a person noticeably intoxicated for purpose of purchasing and drinking whiskey. Henry Grady Hotel Co. v. Sturgis, 70 Ga. App. 379 , 28 S.E.2d 329 (1943) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

This section does not penalize purchase or reception of beverage by intoxicated person, so a person who furnished money for purpose of purchase would not be guilty as an accessory before the fact because the person would not have procured, counseled, or commanded another to commit a crime. Henry Grady Hotel Co. v. Sturgis, 70 Ga. App. 379 , 28 S.E.2d 329 (1943) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

This section is not a law regulating businesses which sell alcoholic beverages, and city officials may not rely upon it as a basis for revoking city-issued business liquor licenses. Atlanta Attractions, Inc. v. Massell, 332 F. Supp. 914 (N.D. Ga. 1971), aff'd, 463 F.2d 449 (5th Cir. 1972) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

This section does not create a civil cause of action. Keaton v. Kroger Co., 143 Ga. App. 23 , 237 S.E.2d 443 (1977) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

O.C.G.A. § 3-3-22 did not create a cause of action in favor of an injured adult against the seller of alcoholic beverages when injuries arose from the injured person’s intoxication caused by imbibing those alcoholic beverages and when the person was noticeably intoxicated at the time the beverages were purchased. Riverside Enters., Inc. v. Rahn, 171 Ga. App. 674 , 320 S.E.2d 595 (1984) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Widow without recovery under Dram Shop Act. —

Widow’s wrongful death action against a bar that served alcohol to her husband for 8 hours, and who then died in a one-vehicle crash, was barred by the Dram Shop Act, O.C.G.A. § 51-1-40 , which barred claims by consumers of alcohol; § 51-1-40 did not violate the separation of powers clause, Ga. Const. 1983, Art. I, Sec. II, Para. III, because the legislature had the authority to enact legislation codifying the common law. Dion v. Y.S.G. Enters., 296 Ga. 185 , 766 S.E.2d 48 (2014).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 218, 219, 249, 335 et seq., 393 et seq., 448 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 484 et seq.

ALR. —

Criminal responsibility of one authorized generally to sell intoxicating liquors for particular illegal sale thereof by employee or agent, 139 A.L.R. 306 .

Entrapment to commit offense against laws regulating sales of liquor, 55 A.L.R.2d 1322.

Liability of liquor furnisher under civil damage or dramshop act for injury or death of intoxicated person from wrongful act of a third person, 65 A.L.R.2d 923.

Settlement with or release of person directly liable for injury or death as releasing liability under Civil Damage Act, 78 A.L.R.2d 998.

Liability, under dramshop acts, of one who sells or furnishes liquor otherwise than in operation of regularly established liquor business, 8 A.L.R.3d 1412.

Coverage of policy insuring against liability under dramshop acts, 14 A.L.R.3d 858.

Contributory negligence allegedly contributing to cause of injury as defense in Civil Damage Act proceeding, 64 A.L.R.3d 849.

Proof of causation of intoxication as a prerequisite to recovery under Civil Damage Act, 64 A.L.R.3d 882.

Liability of one who furnishes liquor to another for consumption by third parties, for injury caused by consumer, 64 A.L.R.3d 922.

What constitutes “sale” of liquor in violation of statute or ordinance, 89 A.L.R.3d 551.

Liability of state or municipality in tort for damages arising out of sale of intoxicating liquor by state or municipally operated liquor store or establishment, 95 A.L.R.3d 1243.

Common-law right of action for damage sustained by plaintiff in consequence of sale or gift of intoxicating liquor or habit-forming drug to another, 97 A.L.R.3d 528; 62 A.L.R.4th 16.

Liability of persons furnishing intoxicating liquor for injury to or death of consumer, outside coverage of civil damage acts, 98 A.L.R.3d 1230.

Intoxicating liquors: employer’s liability for furnishing or permitting liquor on social occasion, 51 A.L.R.4th 1048.

Social host’s liability for injuries incurred by third parties as a result of intoxicated guest’s negligence, 62 A.L.R.4th 16.

Tort liability of college or university for injury suffered by student as a result of own or fellow student’s intoxication, 62 A.L.R.4th 81.

Passenger’s liability to vehicular accident victim for harm caused by intoxicated motor vehicle driver, 64 A.L.R.4th 272.

Validity, construction, and effect of statute limiting amount recoverable in dram shop action, 78 A.L.R.4th 542.

Social host’s liability for death or injuries incurred by person to whom alcohol was served, 54 A.L.R.5th 313.

3-3-23. Furnishing to, purchase of, or possession by persons under 21 years of age of alcoholic beverages; identification; serving, or handling by persons under 21 years of age in the course of employment; seller’s receipt of false identification; immunity for seeking medical assistance for alcohol related overdose.

  1. Except as otherwise authorized by law:
    1. No person knowingly, directly or through another person, shall furnish, cause to be furnished, or permit any person in such person’s employ to furnish any alcoholic beverage to any person under 21 years of age;
    2. No person under 21 years of age shall purchase, attempt to purchase, or knowingly possess any alcoholic beverage;
    3. No person under 21 years of age shall misrepresent such person’s age in any manner whatever for the purpose of obtaining illegally any alcoholic beverage;
    4. No person knowingly or intentionally shall act as an agent to purchase or acquire any alcoholic beverage for or on behalf of a person under 21 years of age; or
    5. No person under 21 years of age shall misrepresent his or her identity or use any false identification for the purpose of purchasing or obtaining any alcoholic beverage.
  2. The prohibitions contained in paragraphs (1), (2), and (4) of subsection (a) of this Code section shall not apply with respect to the sale, purchase, or possession of alcoholic beverages for consumption:
    1. For medical purposes pursuant to a prescription of a physician duly authorized to practice medicine in this state; or
    2. At a religious ceremony.
  3. The prohibitions contained in paragraphs (1), (2), and (4) of subsection (a) of this Code section shall not apply with respect to the possession of alcoholic beverages for consumption by a person under 21 years of age when the parent or guardian of the person under 21 years of age gives the alcoholic beverage to the person and when possession is in the home of the parent or guardian and such parent or guardian is present.
  4. The prohibition contained in paragraph (1) of subsection (a) of this Code section shall not apply with respect to sale of alcoholic beverages by a person when such person has been furnished with proper identification showing that the person to whom the alcoholic beverage is sold is 21 years of age or older. For purposes of this subsection, the term “proper identification” means any document issued by a governmental agency containing a description of the person, such person’s photograph, or both, and giving such person’s date of birth and includes, without being limited to, a passport, military identification card, driver’s license, or an identification card authorized under Code Sections 40-5-100 through 40-5-104. “Proper identification” shall not include a birth certificate and shall not include any traffic citation and complaint form.
  5. If such conduct is not otherwise prohibited pursuant to Code Section 3-3-24, nothing contained in this Code section shall be construed to prohibit any person under 21 years of age from:
    1. Dispensing, serving, selling, or handling alcoholic beverages as a part of employment in any licensed establishment;
    2. Being employed in any establishment in which alcoholic beverages are distilled or manufactured; or
    3. Taking orders for and having possession of alcoholic beverages as a part of employment in a licensed establishment.
  6. Testimony by any person under 21 years of age, when given in an administrative or judicial proceeding against another person for violation of any provision of this Code section, shall not be used in any administrative or judicial proceedings brought against such testifying person under 21 years of age.
  7. Nothing in this Code section shall be construed to modify, amend, or supersede Chapter 11 of Title 15.
  8. In any case where a reasonable or prudent person could reasonably be in doubt as to whether or not the person to whom an alcoholic beverage is to be sold or otherwise furnished is actually 21 years of age or older, it shall be the duty of the person selling or otherwise furnishing such alcoholic beverage to request to see and to be furnished with proper identification as provided for in subsection (d) of this Code section in order to verify the age of such person; and the failure to make such request and verification in any case where the person to whom the alcoholic beverage is sold or otherwise furnished is less than 21 years of age may be considered by the trier of fact in determining whether the person selling or otherwise furnishing such alcoholic beverage did so knowingly.
  9. Any retailer or retail consumption dealer, or any person acting on behalf of such retailer or retail consumption dealer, who upon requesting proper identification from a person attempting to purchase alcoholic beverages from such retailer or retail consumption dealer pursuant to subsection (h) of this Code section is tendered a driver’s license which indicates that such driver’s license is falsified, is not the driver’s license of the person presenting it, or that such person is under the age of 21 years, the person to whom said license is tendered shall be authorized to either write down the name, address, and license number or to seize and retain such driver’s license and in either event shall immediately thereafter summon a law enforcement officer who shall be authorized to seize the license either at the scene or at such time as the license can be located. The procedures and rules connected with the retention of such license by the officer shall be the same as those provided for the acceptance of a driver’s license as bail on arrest for traffic offenses pursuant to Code Section 17-6-11.
    1. As used in this subsection, the term:
      1. “Alcohol related overdose” means an acute condition, including, but not limited to, extreme physical illness, decreased level of consciousness, respiratory depression, coma, mania, or death, resulting from the consumption or use of alcohol or that a layperson would reasonably believe to be resulting from the consumption or use of alcohol for which medical assistance is required.
      2. “Medical assistance” means aid provided to a person believed to be experiencing an alcohol related overdose by a health care professional licensed, registered, or certified under the laws of this state who, acting within his or her lawful scope of practice, may provide diagnosis, treatment, or emergency services relative to such overdose.
      3. “Seeks medical assistance” means accesses or assists in accessing the 9-1-1 system or otherwise contacts or assists in contacting law enforcement or a poison control center or provides care to a person experiencing or believed to be experiencing an alcohol related overdose while awaiting the arrival of medical assistance to aid such person.
    2. Any person who in good faith seeks medical assistance for someone who is experiencing an alcohol related overdose shall not be arrested, charged, or prosecuted for a violation of paragraphs (2) through (5) of subsection (a) of this Code section if the evidence for the arrest, charge, or prosecution of such violation resulted from seeking such medical assistance. Any person who is experiencing an alcohol related overdose and, in good faith, seeks medical assistance for himself or herself or is the subject of such a request shall not be arrested, charged, or prosecuted for a violation of paragraphs (2) through (5) of subsection (a) of this Code section if the evidence for the arrest, charge, or prosecution of such violation resulted from seeking such medical assistance. Any such person shall also not be subject to:
      1. Penalties for a violation of a permanent or temporary protective order or restraining order; or
      2. Sanctions for a violation of a condition of pretrial release, condition of probation, or condition of parole based on a violation of paragraphs (2) through (5) of subsection (a) of this Code section.
    3. Nothing in this subsection shall be construed to limit the admissibility of any evidence in connection with the investigation or prosecution of a crime with regard to a defendant who does not qualify for the protections of paragraph (2) of this subsection or with regard to other crimes committed by a person who otherwise qualifies for protection pursuant to paragraph (2) of this subsection. Nothing in this subsection shall be construed to limit any seizure of evidence or contraband otherwise permitted by law. Nothing herein shall be construed to limit or abridge the authority of a law enforcement officer to detain or take into custody a person in the course of an investigation or to effectuate an arrest for any offense except as provided in paragraph (2) of this subsection.

History. — Code 1933, § 5A-510, enacted by Ga. L. 1981, p. 1269, § 22; Ga. L. 1985, p. 753, §§ 1, 3; Ga. L. 1985, p. 782, §§ 1, 2; Ga. L. 1986, p. 789, §§ 1, 2; Ga. L. 1988, p. 1372, § 1; Ga. L. 1989, p. 1227, § 1; Ga. L. 1997, p. 1085, § 1; Ga. L. 2014, p. 683, § 2A-1/HB 965.

Cross references. —

Designation of child who possesses alcoholic beverages as a “child in need of services,” § 15-11-2(11) .

Contributing to delinquency of minor, § 16-12-1 .

Authority of State Board of Education regarding instructional programs and materials pertaining to effects of alcohol, § 20-2-13 .

Age of majority, § 39-1-1 .

Motor carriers prohibited from transporting passengers under age 21 drinking alcohol, § 40-1-108 .

Parents’ right to action against persons selling or furnishing alcoholic beverages to underage child, § 51-1-18 .

Liability for acts of intoxicated persons, § 51-1-40 .

Law reviews. —

For article recommending more consistency in age requirements of laws pertaining to welfare of minors, see 6 Ga. St. B. J. 189 (1969).

JUDICIAL DECISIONS

Analysis

General Consideration

Editor’s notes. —

In light of the similarity of the statutory provisions, annotations decided prior to the 1988 enactment of O.C.G.A. § 51-1-40 , concerning liability for acts of intoxicated persons and under former Code 1993 §§ 58-612 and Ga. L. 1937-38, Ex. Sess., p. 103.

Determining whether buyer is minor. —

O.C.G.A. § 3-3-23 does not state that it is the duty of the person furnishing or selling liquor to make a determination as to whether or not the person to whom an alcoholic beverage is sold is a minor. Monteford v. State, 162 Ga. App. 491 , 292 S.E.2d 93 (1982).

Person furnishing alcohol to intoxicated minor liable to person injured. —

A person who encourages a noticeably intoxicated person under the legal drinking age to become further intoxicated and who furnishes to such intoxicated person more alcohol, knowing that such person will soon be driving a vehicle, is liable in tort to a person injured by the negligence of such intoxicated driver. Sutter v. Hutchings, 254 Ga. 194 , 327 S.E.2d 716 (1985).

O.C.G.A. § 51-1-6 does not establish a cause of action based on the violation of O.C.G.A. § 3-3-23 . Lumpkin v. Mellow Mushroom, 256 Ga. App. 83 , 567 S.E.2d 728 (2002).

No recovery by consumer causing injuries. —

A consumer of alcohol cannot recover damages from the provider of the alcohol for injuries caused by the consumer to a third person. Sutter v. Hutchings, 254 Ga. 194 , 327 S.E.2d 716 (1985).

This section does not create a civil cause of action. Keaton v. Kroger Co., 143 Ga. App. 23 , 237 S.E.2d 443 (1977) (decided under former Code 1993 § 58-612 and Ga. L. 1937-38, Ex. Sess., p. 103).

Knowledge of minor’s degree of intoxication. —

Evidence was insufficient to show that any breach of duty by a bowling alley relating to alcohol was the proximate cause of the death of a passenger in a car driven by a minor who had been served beer at the bowling alley, where there was no evidence that any employee had knowledge that the minor was intoxicated or would be driving an automobile. Kalpa v. Perczak, 658 F. Supp. 235 (N.D. Ga. 1987).

“Force and arms” was not an element of the offenses of statutory rape, O.C.G.A. § 16-6-3 , child molestation, O.C.G.A. § 16-6-4 , or furnishing alcohol to a minor, O.C.G.A. § 3-3-23 , and since an indictment was couched in the words of the statutes and correctly informed the defendant of the offenses charged, the indictment’s allegation of use of force was mere surplusage and was properly disregarded. Colon v. State, 275 Ga. App. 73 , 619 S.E.2d 773 (2005), cert. denied, No. S06C0022, 2005 Ga. LEXIS 902 (Ga. Dec. 1, 2005).

Liability for subsequent death of under aged drinker. —

In a negligence action, a drinking establishment breached its duty, under O.C.G.A. § 3-3-23(a)(1), to abstain from serving alcohol to an under aged drinker who later died from injuries sustained from falling from a jeep. Lumpkin v. Mellow Mushroom, 256 Ga. App. 83 , 567 S.E.2d 728 (2002).

Offenses of furnishing alcohol to minors and maintaining a disorderly house did not merge, because each of the offenses had elements not required by the other and each prohibited a distinct type of criminal conduct. Tate v. State, 198 Ga. App. 276 , 401 S.E.2d 549 (1991).

“Giving” defined. —

O.C.G.A. § 3-3-23 (c) ’s requirement to “give” appears to be satisfied if the parents constructively “give” the alcoholic beverage, by authorizing a person under 21 to consume alcohol in their home. Krebsbach v. State, 209 Ga. App. 474 , 433 S.E.2d 649 (1993), cert. denied, No. S93C1651, 1994 Ga. LEXIS 146 (Ga. Jan. 21, 1994).

Possession by minor as delinquent or unruly offense. —

Possession of alcohol by a minor may be either a delinquent or an unruly offense, and, since it may be a delinquent act, violating a court-ordered probation imposed for such an offense may likewise be a delinquent act. In re C.P., 217 Ga. App. 505 , 458 S.E.2d 166 (1995).

County ordinance not preempted. —

The effect of the Effingham County ordinance is to prohibit sales to minors under more specific circumstances than does O.C.G.A. § 3-3-23 ’s general prohibition against furnishing alcoholic beverages to minors. In so doing, the Effingham County ordinance only augments and strengthens § 3-3-23 , and does not conflict with that section in any manner. Accordingly, the Effingham County ordinance is not preempted by § 3-3-23, and hence is not invalid pursuant to Ga. Const. 1983, Art. III, Sec. VI, Para. IV(a). Grovenstein v. Effingham County, 262 Ga. 45 , 414 S.E.2d 207 (1992).

City ordinance was unconstitutional as conflicting with statute. —

Trial court erred by rejecting entertainers’ challenge under the uniformity clause, Ga. Const. 1983, Art. III, Sec.VI, Para. IV(a), to a city’s ordinance prohibiting persons aged 18 to 21 from entering adult entertainment establishments where alcohol was served because the ordinance conflicted with O.C.G.A. §§ 3-3-23 and 3-3-24(a) , allowing persons over 18 to work in such establishments. Willis v. City of Atlanta, 285 Ga. 775 , 684 S.E.2d 271 (2009).

Administration of alco-sensor test not improper. —

Defendant’s claim that the administration of an alco-sensor test was improper because a positive alco-sensor of a minor established guilt of the crime of minor in possession of alcohol by consumption under O.C.G.A. § 3-3-23 was incorrect; O.C.G.A. § 3-3-23 (a) explicitly provided that underage alcohol consumption was not a crime if the consumption was otherwise authorized by law. Brown v. State, 299 Ga. App. 402 , 683 S.E.2d 614 (2009).

Evidence sufficient to support conviction of “underage consumption of alcohol.” —

See Lee v. State, 201 Ga. App. 827 , 412 S.E.2d 563 (1991), cert. denied, No. S92C0338, 1992 Ga. LEXIS 44 (Ga. Jan. 10, 1992); Gilbert v. State, 262 Ga. 840 , 426 S.E.2d 155 (1993); Lee v. State, 224 Ga. App. 542 , 481 S.E.2d 264 (1997); Baggs v. State, 265 Ga. App. 282 , 593 S.E.2d 734 (2004).

Defendant’s conviction for underage drinking of an alcoholic beverage was upheld on appeal since the police officer smelled alcohol on the defendant’s breath in the county wherein the defendant was arrested, which was enough to establish venue, pursuant to O.C.G.A. § 17-2-2(h) , and because the defendant never produced evidence that a parent or guardian gave the defendant the beer that the defendant admitted to drinking and that the possession of the beer was in the home and presence of a parent or guardian, the defendant failed to establish the affirmative defense under O.C.G.A. § 3-3-23(a)(2). Burchett v. State, 283 Ga. App. 271 , 641 S.E.2d 262 (2007).

No requirement to prove alcohol level. —

Crimes of possession of alcoholic beverage by underage person and furnishing alcohol to minor do not require state to prove certain alcohol level in defendants. State v. Ealum, 283 Ga. App. 799 , 643 S.E.2d 262 (2007).

Evidence was sufficient to support defendant’s conviction for furnishing alcohol to a minor. The victim testified that defendant gave the victim, a minor, alcohol to drink in defendant’s home, and the victim’s parent testified that when the victim returned home, the victim’s eyes were bloodshot and the parent could smell the alcohol on the victim’s breath. Dockery v. State, 309 Ga. App. 584 , 711 S.E.2d 100 (2011).

Exclusion in comprehensive business liability insurance policy applying to sale of intoxicating beverages to a minor or to an intoxicated person excluded coverage for claims based on violations of statute on sales of alcohol to minors and dram shop law and was not void as against public policy. Hartford Ins. Co. v. Franklin, 206 Ga. App. 193 , 424 S.E.2d 803 (1992), cert. denied, No. S93C0279, 1993 Ga. LEXIS 122 (Ga. Jan. 22, 1993).

Charge erroneously dismissed. —

The trial court erroneously dismissed an accusation charging the defendant with possession of alcohol by an underage person in violation of O.C.G.A. § 3-3-23(a)(2) based solely on the defendant’s completion of an alcohol education course, without providing notice to the state or the defendant, and without conducting a sentencing hearing, as such impermissibly interfered with the state’s right to prosecute and no defect on the face of the accusation existed; moreover, the trial court erred in withdrawing the defendant’s no contest plea absent a formal defense motion seeking the plea. State v. Carr, 287 Ga. App. 691 , 652 S.E.2d 597 (2007).

Evidence sufficient to support conviction of “underage possession of alcohol”. —

See Hadaway v. State, 190 Ga. App. 5 , 378 S.E.2d 127 (1989); Dickerson v. State, 193 Ga. App. 605 , 388 S.E.2d 736 (1989), overruled in part, Zilke v. State, 299 Ga. 232 , 787 S.E.2d 745 (2016), overruled in part as stated in Suggs v. State, 343 Ga. App. 71 , 806 S.E.2d 224 (2017).

Jury Instructions

Refusal of instruction on requirement to prove defendant’s knowledge. —

When defendant was prosecuted under O.C.G.A. § 3-3-23(a)(1) for serving alcohol to a minor, it was not error for a trial court to refuse to give defendant’s proffered instructions on the requirement to prove defendant’s knowledge of the age of the person to whom alcohol was served or on mistake of fact because the jury was instructed, inter alia, on the requirement that defendant knowingly served alcohol to a minor, and, pursuant to § 3-3-23(h) , that, when a reasonable person could reasonably be in doubt as to whether a person to whom alcohol was served was 21 years old or older, it was a defendant’s duty to request identification and that defendant’s failure to do so could be considered in determining if defendant knowingly furnished alcohol to a minor. Butler v. State, 298 Ga. App. 129 , 679 S.E.2d 361 (2009).

Reversal of conviction for failure to give requested instruction. —

Defendant’s conviction for serving alcohol to a minor, under O.C.G.A. § 3-3-23(a)(1), was reversed because: (1) the state relied on circumstantial evidence to show that defendant knowingly served alcohol to a minor; and (2) the trial court erroneously refused defendant’s request for an instruction on circumstantial evidence under O.C.G.A. § 24-4-6. Butler v. State, 298 Ga. App. 129 , 679 S.E.2d 361 (2009).

Constitutionality

This section is not void for vagueness, as its clear intent is to preclude an individual from furnishing alcoholic beverages to a person less than 19 years of age unless that person is an active member of the military or meets the remaining exceptions to O.C.G.A. § 3-3-23 . Kelley v. State, 252 Ga. 208 , 312 S.E.2d 328 (1984).

Preferential treatment of military personnel not unconstitutional. —

O.C.G.A. § 3-3-23 (purchase of alcoholic beverages) does not violate the equal treatment clause of the Fourteenth Amendment because it treats 18 year old members of the armed forces differently from all other 18 year olds. Kelley v. State, 252 Ga. 208 , 312 S.E.2d 328 (1984).

Distinctions do not violate equal protection. —

O.C.G.A. § 3-3-23 is constitutional and does not violate equal protection since the General Assembly made rational distinctions with respect to the possession of alcohol and recognized that young people were more accountable under certain supervised settings or conditions. Hanson v. State, 275 Ga. 470 , 569 S.E.2d 513 (2002).

OPINIONS OF THE ATTORNEY GENERAL

In light of the similarity of the statutory provisions, opinions rendered under former Code 1933, § 58-612 and Ga. L. 1937-38, Ex. Sess., p. 103 are included in the annotations for this Code section.

The sale of alcoholic beverages to minors is prohibited in this state. 1965-66 Op. Att'y Gen. No. 65-75 (rendered under former Code 1993 §§ 58-612 and Ga. L. 1937-38, Ex. Sess., p. 103).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 52, 157, 220 et seq., 243, 324.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 488 et seq., 511.

ALR. —

Criminal responsibility of one authorized generally to sell intoxicating liquors for particular illegal sale thereof by employee or agent, 139 A.L.R. 306 .

Entrapment to commit offense against laws regulating sales of liquor, 55 A.L.R.2d 1322.

Liability, under dramshop acts, of one who sells or furnishes liquor otherwise than in operation of regularly established liquor business, 8 A.L.R.3d 1412.

Criminal offense of selling liquor to a minor or permitting him to stay on licensed premises as affected by ignorance or mistake regarding his age, 12 A.L.R.3d 991.

Serving liquor to minor in home as unlawful sale or gift, 14 A.L.R.3d 1186.

What constitutes violation of enactment prohibiting sale of intoxicating liquor to minor, 89 A.L.R.3d 1256.

Liability of state or municipality in tort for damages arising out of sale of intoxicating liquor by state or municipally operated liquor store or establishment, 95 A.L.R.3d 1243.

Common-law right of action for damage sustained by plaintiff in consequence of sale or gift of intoxicating liquor or habit-forming drug to another, 97 A.L.R.3d 528; 62 A.L.R.4th 16.

Intoxicating liquors: employer’s liability for furnishing or permitting liquor on social occasion, 51 A.L.R.4th 1048.

Social host’s liability for injuries incurred by third parties as a result of intoxicated guest’s negligence, 62 A.L.R.4th 16.

Social host’s liability for death or injuries incurred by person to whom alcohol was served, 54 A.L.R.5th 313.

3-3-23.1. Procedure and penalties upon violation of Code Section 3-3-23.

  1. It is unlawful for any person knowingly to violate any prohibition contained in Code Section 3-3-23, relating to furnishing alcoholic beverages to, and purchasing, attempting to purchase, and possession of alcoholic beverages by, a person under 21 years of age.
    1. Any person convicted of violating any prohibition contained in subsection (a) of Code Section 3-3-23 shall, upon the first conviction, be guilty of a misdemeanor, except that any person convicted of violating paragraph (2) of subsection (a) of Code Section 3-3-23 shall, upon the first conviction, be guilty of a misdemeanor and shall be punished by not more than six months’ imprisonment or a fine of not more than $300.00, or both and except that any person convicted of violating paragraph (4) of subsection (a) of Code Section 3-3-23 shall, upon the first conviction, be guilty of a misdemeanor of a high and aggravated nature.
    2. Any person convicted of violating any prohibition contained in subsection (a) of Code Section 3-3-23 shall, upon the second or subsequent conviction, be guilty of a misdemeanor of a high and aggravated nature, except that any person convicted of violating paragraph (2) of subsection (a) of Code Section 3-3-23 shall, upon the second or subsequent conviction, be guilty of a misdemeanor.
    1. As used in this subsection, the term:
      1. “Criminal history record information” shall have the same meaning as set forth in Code Section 35-3-30.
      2. “Restrict” or “restriction” shall have the same meaning as set forth in Code Section 35-3-37.
    2. Whenever any person who has not been previously convicted of any offense under this Code section or under any other law of the United States or this or any other state relating to alcoholic beverages pleads guilty to or is found guilty of a violation of paragraph (2) or (3) of subsection (a) of Code Section 3-3-23, the court, without entering a judgment of guilt and with the consent of such person, may defer further proceedings and place such person on probation upon such reasonable terms and conditions as the court may require. The terms of probation shall preferably be such as require the person to undergo a comprehensive rehabilitation program (including, if necessary, medical treatment), not to exceed three years, designed to acquaint such person with the ill effects of alcohol abuse and with knowledge of the gains and benefits which can be achieved by being a good member of society. Upon violation of a term or condition of probation, the court may enter an adjudication of guilt and proceed accordingly. Upon fulfillment of the terms and conditions of probation, the court shall discharge such person and dismiss the proceedings against him or her. Discharge and dismissal under this subsection shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of this subsection or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Discharge and dismissal under this subsection may occur only once with respect to any person.
      1. At the time of sentencing, a defendant may seek to limit public access to his or her sentencing information, and the court may, in its discretion, order that:
        1. The defendant’s records shall be restricted in accordance with Code Section 35-3-37;
        2. The criminal file, docket books, criminal minutes, final record, all other records of the court, and the defendant’s criminal history record information in the custody of the clerk of court, including within any index, be sealed and unavailable to the public; and
        3. The defendant’s criminal history record information of arrest, including any fingerprints or photographs taken in conjunction with such arrest, be restricted by law enforcement agencies, jails, or detention centers.
      2. When considering the defendant’s request under this paragraph, the court shall weigh the public’s interest in the defendant’s criminal history record information being publicly available and the harm to the defendant’s privacy and issue written findings of fact thereupon.
      3. The court shall specify the date that such sealing and restrictions will take effect.
    1. Except as provided for in paragraph (2) of this subsection, a law enforcement officer shall arrest by issuance of a citation, pursuant to Code Section 17-4-23, any person accused of violating paragraph (2), (3), or (5) of subsection (a) of Code Section 3-3-23. The citation shall enumerate the specific charges against the person and either the date upon which the person is to appear and answer the charges or a notation that the person will be later notified of the date upon which the person is to appear and answer the charges. If the person charged shall fail to appear as required, the judge having jurisdiction of the offense may issue a warrant or other order directing the apprehension of such person and commanding that such person be brought before the court to answer the charges contained within the citation and the charge of his or her failure to appear as required. Nothing in this paragraph shall be construed to invalidate an otherwise valid arrest by citation, summons, or accusation of a person who is intoxicated and who has committed an offense under the laws of this state other than that provided for in Code Section 3-3-23. Nothing in this paragraph shall be construed to restrict the discretion of the prosecuting attorney to use a uniform traffic citation as the formal charging document.
    2. If the arresting officer provided for in paragraph (1) of this subsection has probable cause to believe that a person accused of violating paragraph (2), (3), or (5) of subsection (a) of Code Section 3-3-23 is intoxicated to the extent that he or she poses a danger to himself or herself or to the person or property of another, the arresting officer may effect a custodial arrest of such person in addition to the issuance of a citation, summons, or accusation. The citation, summons, or accusation shall enumerate the specific charges against the person and either the date upon which the person is to appear and answer the charges or a notation that the person will be later notified of the date upon which the person is to appear and answer the charges. In all such cases provided for under this subsection, the provisions of Code Section 17-6-1 shall apply. Nothing in this paragraph shall be construed to invalidate an otherwise valid arrest by citation, summons, or accusation of a person who is intoxicated and who has committed an offense under the laws of this state other than that provided for in Code Section 3-3-23.
  2. A law enforcement officer arresting a person by the issuance of a citation under paragraph (1) of subsection (d) of this Code section may require any such person having a driver’s license or instruction permit to deposit such license or permit with the arresting officer in order to ensure the appearance of such person to answer the charges against him or her. The procedures and rules connected with the acceptance of such license or permit and subsequent disposition of the case shall be the same as provided for the acceptance of a driver’s license as bail on arrest for traffic offenses pursuant to Code Section 17-6-11.
  3. In addition to any other punishment or sentence, the court may order all persons convicted under subsection (b) of this Code section or sentenced under subsection (c) of this Code section to complete a DUI Alcohol or Drug Use Risk Reduction Program certified by the Department of Driver Services within 120 days of such conviction or sentence.  Failure to complete such program within 120 days shall be contempt of court and shall be punished by a fine of not more than $300.00 or 20 days’ imprisonment, or both.  If the conviction or sentence results from a charge of unlawful possession of alcoholic beverages while operating a motor vehicle, the court shall report such conviction or sentence to the Department of Driver Services within ten days after conviction or sentencing.

History. — Ga. L. 1981, p. 862, § 3; Code 1933, § 5A-9901.1, enacted by Ga. L. 1981, p. 1269, § 64; Ga. L. 1982, p. 3, § 3; Ga. L. 1985, p. 753, §§ 2, 4; Ga. L. 1985, p. 782, § 3; Ga. L. 1992, p. 2746, § 1; Ga. L. 1997, p. 1085, § 2; Ga. L. 1998, p. 1106, § 1; Ga. L. 2002, p. 415, § 3; Ga. L. 2005, p. 334, § 2-1/HB 501; Ga. L. 2006, p. 206, § 7/HB 1248; Ga. L. 2014, p. 710, § 1-1/SB 298; Ga. L. 2015, p. 60, § 1-1/SB 100; Ga. L. 2015, p. 1212, § 1/SB 160; Ga. L. 2020, p. 753, § 2-1/SB 288.

The 2020 amendment, effective January 1, 2021, added paragraph (c)(1); redesignated former subsection (c) as paragraph (c)(2); and added paragraph (c)(3).

Cross references. —

Alcohol and drug education programs for persons whose drivers’ licenses have been revoked, § 40-5-80 et seq.

Probation generally, T. 42, C. 8.

Editor’s notes. —

Ga. L. 2015, p. 60, § 6-1/SB 100, not codified by the General Assembly, provides, in part, that this Act shall apply to offenses which occur on or after July 1, 2015.

Law reviews. —

For article recommending more consistency in age requirements of laws pertaining to welfare to minors, see 6 Ga. St. B. J. 189 (1969).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 249 et seq., 261 et seq., 335 et seq., 374 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 488 et seq., 511, 544 et seq.

3-3-24. Dispensing, serving, selling, or taking orders for alcoholic beverages by persons under 18 years of age.

  1. No person shall allow or require a person in his employment under 18 years of age to dispense, serve, sell, or take orders for any alcoholic beverages.
  2. This Code section shall not prohibit persons under 18 years of age who are employed in supermarkets, convenience stores, breweries, or drugstores from selling or handling alcoholic beverages which are sold for consumption off the premises.

History. — Ga. L. 1958, p. 640, §§ 1, 2; Ga. L. 1974, p. 460, § 1; Ga. L. 1976, p. 409, § 1; Code 1933, § 5A-510, enacted by Ga. L. 1980, p. 1573, § 1; Code 1933, § 5A-511, as redesignated by Ga. L. 1981, p. 1269, § 22.

Cross references. —

Designation of person under age 17 who possesses alcoholic beverages as a “child in need of services,” § 15-11-2(11) .

Contributing to delinquency of minor, § 16-12-1 .

Authority of State Board of Education regarding instructional programs and materials pertaining to effects of alcohol, § 20-2-13 .

Age of majority, § 39-1-1 .

Parents’ right of action against persons selling or furnishing alcoholic beverages to underage child, § 51-1-18 .

Law reviews. —

For article recommending more consistency in age requirements of laws pertaining to welfare of minors, see 6 Ga. St. B. J. 189 (1969).

JUDICIAL DECISIONS

City ordinance was unconstitutional as conflicting with statute. —

Trial court erred by rejecting entertainers’ challenge under the uniformity clause, Ga. Const. 1983, Art. III, Sec.VI, Para. IV(a), to a city’s ordinance prohibiting persons aged 18 to 21 from entering adult entertainment establishments where alcohol was served because the ordinance conflicted with O.C.G.A. §§ 3-3-23 and 3-3-24(a) , allowing persons over 18 to work in such establishments. Willis v. City of Atlanta, 285 Ga. 775 , 684 S.E.2d 271 (2009).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 52, 157, 220 et seq., 243, 324.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 488 et seq, 511.

ALR. —

Liability of state or municipality in tort for damages arising out of sale of intoxicating liquor by state or municipally operated liquor store or establishment, 95 A.L.R.3d 1243.

3-3-24.1. “Bouncer” defined; admission of under 21 year olds into bar.

  1. As used in this Code section, the term “bouncer” means an individual primarily performing duties related to verifying age for admittance, security, maintaining order, or safety, or a combination thereof.
  2. No person shall allow or require an individual under the age of 21 to serve as a bouncer on a premises or in an establishment where alcoholic beverages are dispensed, served, or sold pursuant to a license issued under this title.
  3. No individual under the age of 21 shall enter or be allowed to enter a bar unless he or she is accompanied by his or her parent, guardian, or spouse who is 21 years of age or older. This subsection shall not apply to an individual while he or she is attending a live musical concert or live presentation of the performing arts for which he or she has paid an admission charge.

History. — Code 1981, § 3-3-24.1 , enacted by Ga. L. 2015, p. 578, § 3/HB 152.

Editor’s notes. —

This Code section formerly pertained to definitions and penalties. The former Code section was based on Code 1933, § 5A-519, enacted by Ga. L. 1981, p. 1269, § 25; Ga. L. 1982, p. 3, § 3; Ga. L. 1994, p. 237, § 2, and was repealed by Ga. L. 2014, p. 187, § 1/HB 737, effective July 1, 2014.

3-3-24.2. Posting of laws regarding sale of alcoholic beverages to underage persons.

  1. Each retail business establishment in this state which is licensed to sell alcoholic beverages of any kind shall post in a conspicuous place or places a notice which shall contain the provisions of the laws of this state which deal with the unlawful sale of such items to underage persons and the penalties for violating such laws.
  2. The department shall prepare, print, and distribute the notices required by subsection (a) of this Code section. The notices shall contain those provisions of the law of this state which the department determines will best inform the citizens of this state of the relevant provisions of the law regarding sale of alcoholic beverages to underage persons.
  3. The commissioner may take punitive action against violators, up to and including revocation of the state retail dealer’s license of any retail business establishment which fails to comply with this Code section. The undertaking of any punitive action allowed under this Code section shall not prohibit criminal prosecution for sale to underage persons.

History. — Code 1933, § 5A-520, enacted by Ga. L. 1981, p. 1269, § 26.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 52, 157, 220 et seq., 243, 324.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 488 et seq.

3-3-25. Sale of or furnishing alcoholic beverages to prisoners or inmates of places of confinement; introduction or possession of alcoholic beverages at Georgia War Veterans Home.

  1. No person knowingly and intentionally shall:
    1. Offer for sale, sell, barter, exchange, give, provide, or furnish alcoholic beverages to any person confined in any jail, penal institution, correctional facility, or other lawful place of confinement; or
    2. Introduce or possess any alcoholic beverages in the buildings of the Georgia War Veterans Home operated for the use and care of disabled war veterans.
  2. Nothing contained in this Code section shall prevent or prohibit:
    1. The administration of alcohol by the staff of the institutions provided for in subsection (a) of this Code section to any prisoner, patient, or lawful inmate in strict compliance with the prescription of a licensed physician; or
    2. The staff members of the Georgia War Veterans Home who maintain their domicile on the grounds of such institution from possessing alcoholic beverages for their own consumption or for that of their families or persons invited to their homes, except patients or lawful inmates of such institution.
  3. No person shall knowingly allow any other person to violate this Code section.

History. — Ga. L. 1874, p. 92, § 1; Ga. L. 1875, p. 328, § 1; Code 1882, § 1374a; Penal Code 1895, § 437; Penal Code 1910, § 437; Code 1933, § 58-607; Ga. L. 1977, p. 183, § 1; Ga. L. 1977, p. 1247, § 1; Code 1933, § 5A-512, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 2015, p. 81, § 2/HB 85.

Cross references. —

Restriction on sale of spirituous beverages at or near armories, camps, and other facilities of the organized militia or other place where the force is performing military duty, § 38-2-306 .

Furnishing of alcoholic beverages to inmates of correctional institutions, § 42-5-18 .

JUDICIAL DECISIONS

Sale to persons confined to county correctional institute. —

Evidence was wholly insufficient to support the appellant’s conviction for selling alcoholic beverages to persons confined to county correctional institute. Baumgartner v. State, 201 Ga. App. 877 , 412 S.E.2d 874 (1991).

RESEARCH REFERENCES

ALR. —

Nature and elements of offense of conveying contraband to state prisoner, 64 A.L.R.4th 902.

Validity, construction, and application of state statute criminalizing possession of contraband by individual in penal or correctional institution, 45 A.L.R.5th 767.

3-3-26. Prohibition on drinking of alcoholic beverages on retail package premises; sampling permitted; regulation.

  1. Except as provided in this Code section or Chapter 15 of this title, no retail package liquor store shall knowingly and intentionally allow or permit the breaking of any package or packages containing alcoholic beverages on the premises where sold or allow or permit the drinking of the contents of such package or packages on the premises where sold.
  2. Nothing in this title shall be construed to prohibit a representative or salesperson of a manufacturer or wholesaler from opening a package of alcoholic beverages on the premises of a retail package liquor store or other retail dealer for the purpose of providing samples of such alcoholic beverage product to a retail dealer or its employees for consumption on the licensed premises, provided that:
    1. All samples are provided and consumed in the presence of a representative or salesperson of the manufacturer or wholesaler in an office, storage room, or other area of the licensed premises of the retail dealer that is closed to the public; and
    2. Such representative or salesperson of the manufacturer or wholesaler removes from the licensed premises any packages he or she brought onto such licensed premises in order to provide samples of alcoholic beverage products.

      For purposes of this subsection, the term “sample” means a small amount of any malt beverage, wine, or distilled spirits.

  3. The commissioner shall promulgate and enforce such rules and regulations as he or she may deem reasonable and necessary to effectuate the provisions of this Code section.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 9; Code 1933, § 5A-513, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 2020, p. 615, § 5/HB 879.

The 2020 amendment, effective August 3, 2020, designated the existing provisions as subsection (a); in subsection (a), substituted “Except as provided in this Code section or Chapter 15 of this title, no retail package liquor store” for “No retail dealer” at the beginning and deleted the former last sentence, which read: “This Code section shall not apply with respect to sales pursuant to a license for consumption on the premises.”; and added subsections (b) and (c).

OPINIONS OF THE ATTORNEY GENERAL

In light of the similarity of the statutory provisions, decisions rendered under former Code 1933, § 58-1027 are included in the annotations for this Code section.

Under former Code 1933, § 58-1027, it was unlawful to permit sale of spirituous liquors and whiskeys, as defined in former Code 1933, § 58-1011, in unbroken packages or by the drink to be consumed on premises. 1954-56 Ga. Op. Att'y Gen. 460 (rendered under former Code 1993 § 58-1027).

3-3-27. Unlawful manufacture, transportation, receipt, possession, sale, or distribution of alcoholic beverages; failure to file proper reports or bonds or pay fees; declaration of apparatus used in unlawful manufacture of alcoholic beverages as contraband; penalties.

  1. No person knowingly and intentionally shall:
    1. Distill, manufacture, or make any distilled spirits, except as permitted by this title;
    2. Manufacture, make, brew, or ferment any malt beverages or wine, except as permitted by this title;
    3. Transport, ship, receive, possess, sell, offer to sell, distribute, or in any manner use any alcoholic beverages or alcohol, except as permitted by this title;
    4. Fail to file any report required by this title;
    5. File any report required by this title that is either intentionally false or fraudulent, or both;
    6. Fail to pay any tax or license fee imposed or authorized by this title unless specifically exempted from such payment;
    7. Fail to have a sufficient bond filed with the commissioner as required by this title; or
    8. Evade or violate, or conspire to evade or violate, any provision of this title.
  2. Any apparatus, article, or other tangible personal property used in the unlawful distillation, manufacture, or making of any alcoholic beverages is declared contraband and shall be destroyed by the officers or agents seizing the property or otherwise disposed of as the commissioner directs.
  3. Any person who violates the provisions of:
    1. Paragraph (1) of subsection (a) of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than five years;
    2. Paragraphs (2) through (8) of subsection (a) of this Code section shall be guilty of a misdemeanor.

History. — Code 1933, §§ 5A-514, 5A-9902, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 65.

Cross references. —

Applicability of weapons-forfeiture laws to motor vehicles used in commission of crime, § 17-5-51 .

JUDICIAL DECISIONS

Editor’s notes. —

In light of the similarity of the statutory provisions, annotations decided under former Code 1933, § 58-206, Ga. L. 1935, p. 73, and Ga. L. 1937-38, Ex. Sess., p. 103 are included in the annotations for this Code section.

Evidence sufficient to support conviction of manufacture of nontax-paid distilled spirits. —

See Hall v. State, 189 Ga. App. 824 , 377 S.E.2d 907 (1989).

Ga. L. 1935, p. 73 clearly provides that it is a misdemeanor to sell malt beverages without having secured a license to do so. Hudon v. North Atlanta, 108 Ga. App. 370 , 133 S.E.2d 58 (1963) (decided under Ga. L. 1935, p. 73).

Operation of distillery in dry county a felony. —

Person found operating distillery making alcoholic liquors in dry county is guilty of unlawful manufacture of such liquor which is a felony. Shuman v. State, 82 Ga. App. 130 , 60 S.E.2d 521 (1950) (decided under Ga. L. 1937-38, Ex. Sess., p. 103).

Not criminal act to violate Department of Revenue regulation. —

O.C.G.A. §§ 3-3-9 and 3-3-27(c)(2) provide that it is a misdemeanor to violate a prohibition or provision of the Georgia Alcoholic Beverage Code, but these provisions do not make it a criminal act to violate a Georgia Department of Revenue regulation; although the parties intended to circumvent Ga. Comp. R. & Regs. r. 560-2-2-.38 by issuing corporate stock to an employee’s wife, the stock agreement was not illegal or immoral; thus, a trial court erred in voiding the stock interest of the employee’s wife, and summary judgment in favor of the corporation in the wife’s action for an accounting, dissolution, and other relief was reversed. Edwards v. Grapefields, Inc., 267 Ga. App. 399 , 599 S.E.2d 489 (2004), cert. denied, No. S04C1641, 2004 Ga. LEXIS 677 (Ga. Sept. 7, 2004).

Irrelevant allegation in indictment mere surplusage. —

Where indictment sufficiently charged manufacture of liquor in dry county, allegation that this was done without having first obtained a manufacturer’s license as required by law would be treated as mere surplusage. Tanner v. State, 90 Ga. App. 789 , 84 S.E.2d 600 (1954) (decided under Ga. L. 1937-38, Ex. Sess., p. 103).

Burden of proof. —

It need only be proven that the defendant is guilty of manufacturing one particular brand of liquor, but the state must prove that beyond a reasonable doubt. Hobbs v. State, 98 Ga. App. 816 , 107 S.E.2d 253 (1959) (decided under former Code 1933, § 58-206).

Presence at still sufficient to support conviction for manufacturing. —

One who is present at a distillery when liquor is being manufactured and personally assists in any way in the manufacture is guilty of manufacturing liquor, and it is immaterial whether or not one owns the distillery, and whether or not one is hired to work there. Tanner v. State, 90 Ga. App. 789 , 84 S.E.2d 600 (1954) (decided under Ga. L. 1937-38, Ex. Sess., p. 103).

Presence of person at distillery where intoxicating liquor is being made, and the person’s flight on seeing an officer approaching, may, when not satisfactorily explained, authorize the jury to find the person guilty of making such liquor. Smith v. State, 46 Ga. App. 351 , 167 S.E. 714 (1933) (decided under former Code 1933, § 58-206).

Presence at still sufficient to support conviction for possession. —

Since the presence of the defendant at a place where a still was in operation and the defendant’s flight from it would have been sufficient to have convicted the defendant of manufacturing whiskey and since the same rule as to sufficiency must apply where one is charged with possession of whiskey stored at such a distillery, the evidence was sufficient to authorize the jury to find the defendant guilty. Johnson v. State, 79 Ga. App. 210 , 53 S.E.2d 498 (1949) (decided under former Code 1933, § 58-206).

Mere presence at still not unlawful. —

While it is not unlawful for one to be present at a liquor still while it is in operation, where the jury finds that the defendant was not only at the still, but assisted in its operation in some manner, the defendant’s conviction would be authorized. Brown v. State, 87 Ga. App. 244 , 73 S.E.2d 502 (1952) (decided under Ga. L. 1937-38, Ex. Sess., p. 103).

One’s presence at a still is not alone sufficient to sustain a conviction of manufacturing intoxicating liquor. In addition there must be shown some act or acts essential to illegal manufacture of the liquor. Harris v. State, 119 Ga. App. 684 , 168 S.E.2d 337 (1969) (decided under Ga. L. 1937-38, Ex. Sess., p. 103).

Evidence sufficient to support conviction for making whiskey. —

Testimony of two witnesses for the state that the defendant admitted to them that the defendant had been helping to make whiskey at the time and place in question, together with undisputed evidence that the defendant was present at the time of the raid at a still then in operation and where whiskey was being made, was sufficient to support the conviction for manufacturing whiskey. Lastinger v. State, 84 Ga. App. 760 , 67 S.E.2d 411 (1951) (decided under former Code 1933, § 58-206).

While there was no evidence that whiskey had been distilled, since raid apparently occurred at a time when operation was just beginning and whiskey had not yet had time to run off, evidence was nevertheless sufficient to support verdict of illegal manufacture of alcohol. Bryant v. State, 88 Ga. App. 208 , 76 S.E.2d 446 (1953) (decided under former Code 1933, § 58-206).

Evidence that two men, one of whom was the defendant, were found at a still pumping up the tank, that they ran when the officers approached and the defendant was apprehended, and that the still was in operation at the time and over 20 gallons of liquor had already been run is sufficient to sustain a conviction of manufacturing intoxicating liquor. Peebles v. State, 96 Ga. App. 836 , 101 S.E.2d 726 (1958) (decided under former Code 1933, § 58-206).

Evidence of making beer sufficient to support conviction. —

The act of making intoxicating beer, through fermentation of syrup, cornmeal, and water mixed for that purpose, is of itself an offense as complete and distinct as the further act of distilling from such beer a quantity of alcohol, whiskey, or rum, and failure of evidence to show distillation of any quantity of whiskey does not, therefore, leave conviction of accused without any evidence to show that the accused was guilty of making such beer. Bryant v. State, 88 Ga. App. 208 , 76 S.E.2d 446 (1953) (decided under former Code 1933, § 58-206).

Indictment broader than actual offense. —

Where evidence was sufficient to authorize the jury to find that the defendant was manufacturing alcoholic beer, an offense under this section, indictment for unlawfully manufacturing alcoholic liquors, spirituous liquors, whiskey, and rum was broad enough in its terms to include that offense, and the verdict finding the defendant guilty and recommending that the defendant be punished as for a misdemeanor was supported by evidence. Cook v. State, 88 Ga. App. 330 , 76 S.E.2d 629 (1953) (decided under former Code 1933, § 58-206).

Purchase of vast quantity of sugar admissible in evidence. —

The purchase by the defendant a short time prior to the defendant’s apprehension of almost 25,000 pounds of sugar in less than two months, being a quantity vastly in excess of the requirements of an average person, but a quantity which suited capacity of a still, was a circumstance, together with others, tending to identify the defendant with illegal manufacture of alcohol and was for that reason admissible in evidence. Bryant v. State, 88 Ga. App. 208 , 76 S.E.2d 446 (1953) (decided under former Code 1933, § 58-206).

Evidence of county’s wet or dry status unnecessary. —

Conviction under former Code 1933, § 58-206 was not without evidence to support it merely because there was no probative evidence that the manufacture and sale of intoxicating beverages had not been legalized in the county of the still’s situs under former Code 1933, Ch. 58-10 (see now O.C.G.A. § 3-4-1 et seq.). Peebles v. State, 96 Ga. App. 836 , 101 S.E.2d 726 (1958) (decided under former Code 1933, § 58-206).

Jury entitled to disbelieve defendant’s contention. —

Where the defendant admitted that the defendant manufactured the beer which the sheriff found within curtilage of the defendant’s dwelling house and sought to excuse the defendant on the ground that the defendant made it for hog feed, it was within the province of the jury to disbelieve this contention of the defendant. Jackson v. State, 78 Ga. App. 36 , 50 S.E.2d 165 (1948) (decided under former Code 1933, § 58-206).

The reasonableness or unreasonableness of an explanation given by the defendant for the defendant’s presence at a still was for the jury. Brown v. State, 87 Ga. App. 244 , 73 S.E.2d 502 (1952) (decided under former Code 1933, § 58-206).

OPINIONS OF THE ATTORNEY GENERAL

There is no quantity limitation for possessing Georgia-tax-paid distilled spirits in a wet county for personal use, which in this context means for the possessor’s own personal consumption, including free gifts to the possessor’s family or friends. 1984 Op. Atty Gen. No. U84-16.

Permissible quantity of out-of-state purchased liquor. — The Code allows possession of up to one-half gallon of distilled spirits purchased by the possessor outside of this state in accordance with the laws of the place where purchased and brought into this state by the purchaser. 1984 Op. Atty Gen. No. U84-16.

Illegal to possess untaxed liquor. — It is illegal to possess in a wet county any quantity of distilled spirits on which no Georgia alcohol taxes and no alcohol taxes of another state have been paid, including among other things, all distilled spirits illegally manufactured in Georgia. 1984 Op. Atty Gen. No. U84-16.

Illegal to possess liquor for sale without license. — It is illegal to possess Georgia-tax-paid distilled spirits in a wet county for the purpose of sale when the possessor/seller does not hold a valid license authorizing such sale. 1984 Op. Atty Gen. No. U84-16.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 30 et seq., 192 et seq., 249 et seq., 261 et seq., 335 et seq., 374 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 454 et seq. 48A C.J.S., Intoxicating Liquors, §§ 750 et seq., 777 et seq.

ALR. —

What amounts to attempt to manufacture intoxicating liquor within criminal law, 22 A.L.R. 225 .

Right of state to interfere with shipment of liquor through its territory, 27 A.L.R. 108 .

Possessing liquor and transporting liquor as a single offense or as separate offenses, 74 A.L.R. 411 .

Constitutionality of statutes or ordinances prohibiting or regulating the sale of articles that may be used in production of alcohol or intoxicating liquor, 84 A.L.R. 714 .

Contributory negligence allegedly contributing to cause of injury as defense in Civil Damage Act proceeding, 64 A.L.R.3d 849.

Proof of causation of intoxication as a prerequisite to recovery under Civil Damage Act, 64 A.L.R.3d 882.

Liability of one who furnishes liquor to another for consumption by third parties, for injury caused by consumer, 64 A.L.R.3d 922.

What constitutes such discriminatory prosecution or enforcement of laws as to provide valid defense in state criminal proceedings, 95 A.L.R.3d 280.

3-3-27.1. Report to the commissioner of alcoholic beverages transported into this state.

Except with respect to alcoholic beverages lawfully possessed pursuant to Code Section 3-3-8, no person, common carrier, or contract carrier shall transport any alcoholic beverage into this state unless such transportation is immediately reported to the commissioner. Each such report shall show the consignor and consignee, the quantity delivered, and such other information as required by the commissioner.

History. — Code 1933, § 5A-514.1, enacted by Ga. L. 1981, p. 1269, § 23.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 30 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 425 et seq.

3-3-28. Reuse, counterfeiting, or forging of tax stamps.

Reserved. Repealed by Ga. L. 2005, p. 528, § 1/HB 558, effective July 1, 2005.

Editor’s notes. —

This Code section was based on Ga. L. 1937-38, Ex. Sess., p. 103, § 11; Code 1933, § 5A-515, enacted by Ga. L. 1980, p. 1573, § 1.

3-3-29. Possession, sale, or purchase of distilled spirits for which taxes not paid.

Except as otherwise expressly provided for by law, no person knowingly and intentionally shall possess, sell, or purchase any distilled spirits upon which the taxes imposed by this title have not been paid.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 11; Code 1933, § 5A-516, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1993, p. 464, § 1.

Cross references. —

Seizure and disposition as contraband of alcoholic beverages on which taxes or license fees not paid, § 3-2-33 et seq.

JUDICIAL DECISIONS

Elements of offense. —

In order to convict a person of unlawful possession of liquor, it must be shown that the accused knowingly had, possessed, or controlled intoxicating liquor, and the accused must have done something the accused ought not to have done or omitted to do something the accused ought to have done with reference to the whiskey, and while it is not necessary in order to constitute offense of unlawful possession that the accused should have legal control or that it should have been the accused’s property, it is essential that the accused should have power to control it, and if whiskey was placed in the accused’s place of business and the accused knew it, the accused acquiesces in the possession and is criminally liable therefore. Kelly v. State, 91 Ga. App. 421 , 85 S.E.2d 794 (1955) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

To violate this section, one must have in one’s possession whiskey on which the tax has not been paid. Pierce v. State, 200 Ga. 384 , 37 S.E.2d 201 (1946) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

It is an offense for one to possess whiskey in a container which does not have affixed thereon the necessary tax stamp. Pierce v. State, 73 Ga. App. 627 , 37 S.E.2d 431 (1946) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

No offense charged where indictment failed to allege whiskey bore no tax stamps. —

Where a person is indicted merely for possession of whiskey at place of business for purpose of sale in wet county, the indictment charges no offense, unless it further charges that the whiskey possessed did not bear required stamps. Womack v. State, 60 Ga. App. 761 , 5 S.E.2d 96 (1939) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Burden of proof on state. —

Where the accusation charges the defendant with the offense of possessing non-tax-paid whiskey in dry county, which is a specific crime, the burden is on the state to show that the whiskey found in possession of the defendant is not tax-paid. Ivey v. State, 84 Ga. App. 72 , 65 S.E.2d 282 (1951) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Upon trial of one charged with possession of non-tax-paid whiskey, the burden is upon the state to establish that the whiskey found in the possession of the defendant is not tax-paid. Wilson v. State, 93 Ga. App. 43 , 90 S.E.2d 605 (1955) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Admissibility of prior accusation and guilty plea to similar offense. —

Mere introduction of accusation with pleas of guilty thereon, embracing same crime for which defendant is on trial, without proof of details as to manner in which previous acts were committed, does not constitute similarity of transactions so connected as to reveal knowledge, plan, or system, and therefore the court erred in admitting, over objections, prior accusation and plea of guilty of defendant, charged with possession of non-tax-paid whiskey, to a previous charge of same offense. Chambers v. State, 76 Ga. App. 269 , 45 S.E.2d 724 (1947) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Admissibility of evidence as to smell of liquid. —

Where, upon approach of arresting officers, an attempt is made to dispose of liquid identified by witnesses by sense of smell as being whiskey or whiskey poured into water, this is a circumstance which may be considered in prosecution for possession of non-tax-paid whiskey. Corbin v. State, 84 Ga. App. 763 , 67 S.E.2d 478 (1951) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Evidence of defendant’s possession a rebuttable presumption. —

Although proof that illegal liquor was found in the home of the accused, the accused being the head of the household, raises a rebuttable presumption of the accused’s possession thereof, proof of which is sufficient to make out a prima facie case, where the premises are occupied by the defendant with others not members of the accused’s immediate family, the presumption does not obtain. Brown v. State, 99 Ga. App. 713 , 109 S.E.2d 813 (1959) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Evidence that non-tax-paid whiskey was found on premises in possession and control of defendant raises a rebuttable presumption that possession thereof is that of defendant. West v. State, 103 Ga. App. 71 , 118 S.E.2d 491 (1961) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Evidence sufficient for conviction for possession. —

Where officers, while in search of a whiskey still which had been reported to them, heard nearby noises of bottles being shoved around and clinking together, and where they immediately investigated and found the defendant and the defendant’s brother together examining a strainer, and further found over 70 pints of bottled whiskey not having required state revenue stamps, such evidence was sufficient to show control and possession in the defendant and the defendant’s brother and to support a verdict of guilty against the defendant. Ridley v. State, 66 Ga. App. 658 , 19 S.E.2d 51 (1942) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Jury was authorized to conclude from evidence that defendant was a confederate with the defendant’s brother and another individual in illegal possession of non-tax-paid liquor, that a conspiracy existed between the three to violate the liquor law, and that while another individual was driving and owned the car, the 45 gallons of whiskey in the back of the car were in the joint and exclusive possession of the three. Lee v. State, 72 Ga. App. 643 , 34 S.E.2d 645 (1945) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Where it appears that defendant is in sole control of premises and public does not have access thereto, where the only tracks from cache of liquor lead to defendant’s home and fresh tracks show recent travel from house to liquor, and where there are no other residents in vicinity and cache is not near any road, trail, alley, or path used by others than the defendant and the defendant’s household, the evidence, though circumstantial, is sufficient to negate every other reasonable hypothesis save that of guilt of accused. Corbin v. State, 84 Ga. App. 763 , 67 S.E.2d 478 (1951) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Testimony of state’s witness that the witness found non-tax-paid whiskey in a half-gallon jar on top of some clothes in closet of room occupied by defendant, together with glass of whiskey in kitchen in cabinet that had secret panel behind it was sufficient, coupled with defendant’s admission that it was “all her house,” to sustain conviction of possessing illegal liquor, although there were other people in house at time arrest was made. Grantley v. State, 90 Ga. App. 735 , 84 S.E.2d 98 (1954) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

A conviction may be had upon a free and voluntary confession corroborated only by proof of the corpus delicti, and where, upon the trial of one charged with possession of non-tax-paid whiskey, it appears from the evidence that police officers found some five and one-half pints of non-tax-paid liquor in defendant’s home, and that defendant freely and voluntarily confessed that the non-tax-paid liquor belonged to the defendant, the jury is authorized to find the defendant guilty as charged. Poythress v. State, 95 Ga. App. 124 , 97 S.E.2d 165 (1957) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Where five and one-half gallons of moonshine were found in back seat of long-unused automobile in back yard of petitioner’s residence, which yard was fenced with a fence of sufficient construction and security to keep contained therein a dog, and a well-beaten path led from petitioner’s back door to automobile, and there was a quantity of used whiskey bottles under back of petitioner’s house, evidence was sufficient to authorize conviction for possessing non-tax-paid whiskey. West v. State, 103 Ga. App. 71 , 118 S.E.2d 491 (1961) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Evidence insufficient for conviction for possession. —

The evidence, being wholly circumstantial, was insufficient to sustain conviction for offense of possessing non-tax-paid whiskey. Weehunt v. State, 80 Ga. App. 368 , 56 S.E.2d 148 (1949) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Whiskey found by a trail or ditch or in bushes at some distance from the house, and especially when on property not under control of the defendant, has been held insufficient as the foundation of a conviction. Freeman v. State, 84 Ga. App. 757 , 67 S.E.2d 314 (1951) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Where the conviction for possessing non-tax-paid whiskey depends entirely upon the circumstance of liquor being found on premises belonging to or under control of the defendant, and where such liquor is located by a public path, in a public part of building, in an unenclosed field by a travelled road or alley, or other circumstances appear not negating the possibility that a person other than the defendant might have had the opportunity to conceal the liquor in place where it was found, a conviction is unauthorized. Corbin v. State, 84 Ga. App. 763 , 67 S.E.2d 478 (1951) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

OPINIONS OF THE ATTORNEY GENERAL

In light of the similarity of the statutory provisions, opinions rendered under former Ga. L. 1937-38, Ex. Sess., p. 103 are included in the annotations for this Code section.

Person in possession of untaxed liquor in wet (now any) county is not relieved of state tax thereon by its seizure as contraband and by criminal prosecution. 1945-47 Ga. Op. Att'y Gen. 377 (rendered under former Ga. L. 1937-38, Ex. Sess., p. 103).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 47 et seq., 90 et seq., 168 et seq., 193, 194, 318 et seq, 374 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 454 et seq., 509, 520 et seq.

ALR. —

Right to arrest without a warrant for unlawful possession or transportation of intoxicating liquor, 44 A.L.R. 132 .

What constitutes “sale” of liquor in violation of statute or ordinance, 89 A.L.R.3d 551.

Liquor By-The-Drink Taxes, 53 A.L.R.7th 1.

3-3-30. Storage and distribution of alcoholic beverages by corporations granted the privilege of establishing, operating, and maintaining foreign trade zones.

  1. Any provision of this title to the contrary notwithstanding, any public or private corporation which has been granted the privilege of establishing, operating, and maintaining a foreign trade zone by the Foreign Trade Zones Board in accordance with an act of Congress, approved June 18, 1934, entitled “An Act to provide for the establishment, operation and maintenance of foreign trade zones in ports of entry of the United States, to expedite and encourage foreign commerce and for other purposes,” may store alcoholic beverages, until the termination of such privilege, within the boundaries of such foreign trade zone. Any public or private corporation which has been granted the privilege of establishing, operating, or maintaining a foreign trade zone may also distribute alcoholic beverages to destinations outside this state.
  2. Nothing contained in this Code section shall authorize the sale at retail of any alcoholic beverages within the boundaries of a foreign trade zone if the sale would otherwise be prohibited by the laws of this state.

History. — Code 1933, § 5A-518, enacted by Ga. L. 1981, p. 1269, § 24.

Cross references. —

Foreign trade zones generally, T. 52, C. 10.

U.S. Code. —

Foreign trade zones, referred to in this Code section, is codified at 19 U.S.C. § 81 a et seq.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 30 et seq., 98 et seq., 192 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 425 et seq.

3-3-31. Legislative findings.

The General Assembly finds, determines, and declares that the direct shipment of alcoholic beverages by persons in the business of selling alcoholic beverages in other states or countries to residents of this state in violation of this title poses a serious threat to the public health, safety, revenue, and the economy of Georgia. The General Assembly further finds, determines, and declares that the present penalties for illegal direct shipments of alcoholic beverages to residents of this state are inadequate to ensure compliance with the provisions of this title and that the measures provided for in Code Section 3-3-32 are fully consistent with the powers conferred upon the State of Georgia by the Twenty-first Amendment to the Constitution of the United States.

History. — Code 1981, § 3-3-31 , enacted by Ga. L. 1997, p. 399, § 1; Ga. L. 1998, p. 128, § 3.

Cross references. —

Creation of limited exceptions, § 3-6-30 .

3-3-32. Shipment of alcoholic beverages into state by nonresident, without license, who is in business of selling alcoholic beverages in another state.

  1. Any person in the business of selling alcoholic beverages in another state or country who knowingly and intentionally ships or causes to be shipped any alcoholic beverages directly to any resident of this state who does not hold a valid manufacturer’s, importer’s, broker’s, or wholesaler’s license issued by the State of Georgia is in violation of this chapter.
  2. Any person found by the commissioner to be in violation of subsection (a) of this Code section shall be issued a cease and desist order by certified mail or statutory overnight delivery. Any person who, after receiving a cease and desist order, is found by the commissioner to be in violation of subsection (a) of this Code section for a second or subsequent occurrence, within a two-year period of the first violation, shall be guilty of a felony and, upon conviction thereof, shall be punished by a fine not to exceed $10,000.00. This subsection shall not apply to any person who has registered brands for sale with the commissioner pursuant to Code Section 3-4-152, 3-5-31 or 3-6-22 and who shall have current licenses and posted adequate surety bonds as required by this title; provided, however, violations of the provisions of subsection (a) of this Code section shall constitute grounds for the commissioner to take appropriate administrative action against such person, including suspension or cancellation of license and forfeiture of bonds.
  3. This Code section shall not apply to the direct shipment of sacramental alcoholic beverages to bona fide religious organizations as authorized by the commissioner.

History. — Code 1981, § 3-3-32 , enacted by Ga. L. 1997, p. 399, § 1; Ga. L. 1998, p. 128, § 3; Ga. L. 2000, p. 1589, § 3.

Editor’s notes. —

Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

3-3-33. Vaporized form of alcoholic beverages and alcohol vaporizing devices prohibited.

  1. As used in this Code section, the term:
    1. “Alcohol vaporizing device” means any device, machine, or process that mixes any alcoholic beverages with pure oxygen or other gas to produce a vaporized product for the purpose of consumption by inhalation.
    2. “Licensed premises” means any premises in which alcoholic beverages are sold or dispensed for consumption on the premises and shall include any premises which are required by law to be licensed to sell or dispense alcoholic beverages for consumption on the premises.
    3. “Operator” means an owner, license holder, operator, manager, or person in charge of any licensed premises.
    1. No person shall purchase, offer for sale or use, sell, or use any vaporized form of an alcoholic beverage produced by an alcohol vaporizing device. This paragraph shall not apply to a product that contains alcohol as otherwise lawfully prescribed by a health care practitioner who is licensed under Title 43.
    2. No person shall own or possess any alcohol vaporizing device, including but not limited to any machine known as an Alcohol Without Liquid (AWOL) machine. This paragraph shall not apply to any nebulizer or atomizer used to supply a product that contains alcohol as otherwise lawfully prescribed by a health care practitioner who is licensed under Title 43.
  2. No operator shall keep or allow to be kept on the licensed premises thereof any vaporized form of an alcoholic beverage produced by an alcohol vaporizing device.
  3. Any person convicted of a violation of this Code section shall be guilty of a misdemeanor. Any person convicted of a violation of this Code section involving the offer for sale or use to a person under the age of 21 shall be guilty of a misdemeanor, except that upon the second or subsequent conviction such person so convicted shall be guilty of a misdemeanor of a high and aggravated nature.

History. — Code 1981, § 3-3-33 , enacted by Ga. L. 2008, p. 346, § 1/HB 1066.

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting required for violators. — Offenses arising under O.C.G.A. § 3-3-33 are designated as offenses for which those charged are to be fingerprinted. 2009 Op. Att'y Gen. No. 2009-1.

3-3-34. “Powdered alcohol” defined; prohibition; exception; penalty.

  1. For purposes of this Code section, the term “powdered alcohol” means a powdered or crystalline substance that contains any amount of alcohol for direct use or reconstitution.
    1. No person shall manufacture, use, offer for use, purchase, offer to purchase, sell, offer to sell, or possess powdered alcohol.
    2. No person licensed or issued a permit pursuant to this title shall use powdered alcohol as an alcoholic beverage or use powdered alcohol to create an alcoholic beverage.
  2. This Code section shall not apply to the use of powdered alcohol for bona fide research purposes by a:
    1. Health care provider that operates primarily for the purpose of conducting scientific research;
    2. State institution;
    3. Private college or university; or
    4. Pharmaceutical or biotechnology company.
  3. Any person convicted of a violation of this Code section shall be guilty of a misdemeanor.
  4. Any violation of this Code section by a person licensed or issued a permit pursuant to this title shall constitute grounds for the suspension and revocation of any and all of such licenses and permits issued to such person.

History. — Code 1981, § 3-3-34 , enacted by Ga. L. 2015, p. 578, § 4/HB 152.

Article 3 Prohibited Conduct on Licensed Premises

3-3-40 through 3-3-46.

Repealed by Ga. L. 2019, p. 919, § 18-1/HB 553, effective July 1, 2019.

Editor’s notes. —

This article consisted of Code Sections 3-3-40 through 3-3-46, relating to prohibited conduct on licensed premises, and was based on Code 1981, §§ 3-3-40 through 3-3-46, enacted by Ga. L. 1988, p. 212, § 1; Ga. L. 2015, p. 317, § 3/SB 63.

CHAPTER 4 Distilled Spirits

Administrative rules and regulations. —

Wholesaler of distilled spirits, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Department of Revenue, Alcohol and Tobacco Tax Unit, Subject 560-2-4.

OPINIONS OF THE ATTORNEY GENERAL

In light of the similarity of the statutory provisions, annotations decided under former Ga. L. 1937-38, Ex. Sess., p. 103 are included in the annotations for this Code section.

JUDICIAL DECISIONS

Legislative intent. —

It was intention of the legislature in passing Ga. L. 1937-38, Ex. Sess., p. 103, to provide that voters of any dry county should have the right to determine whether the county should remain dry or become wet, and that, regardless of how that election went, voters should have an opportunity, after expiration of two years, to again determine whether county should be wet or dry. Wharton v. State, 67 Ga. App. 545 , 21 S.E.2d 258 (1942) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Article 1 General Provisions

3-4-1. Definitions.

As used in this chapter, the term:

  1. “Barrel” means 53 gallons.
  2. “Denatured alcohol” or “denatured distilled spirits” means alcohol, as defined in Code Section 3-1-2, to which denaturants have been added in order to render the alcohol unfit for beverage purposes or internal human medicinal use. As used in this paragraph, the term “denaturants” means materials authorized for use pursuant to Chapter 1 of Title 27 of the Code of Federal Regulations, as the same may now or hereafter be amended.
  3. “Distiller” means a manufacturer.
  4. “Fruit grower” means any person who grows peaches, apples, pears, grapes, or other perishable fruits in this state and who manufactures distilled spirits from the perishable fruits grown in this state.

History. — Code 1933, § 5A-2101, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 27; Ga. L. 2017, p. 406, § 1/SB 85.

The 2017 amendment, effective September 1, 2017, added paragraph (1); and redesignated former paragraphs (1) through (3) as present paragraphs (2) through (4), respectively.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 3 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 1 et seq.

3-4-2. Applicability of chapter to ethyl alcohol used for certain purposes.

  1. This chapter shall not apply to ethyl alcohol intended for use or used for the following purposes:
    1. For scientific, chemical, mechanical, industrial, medicinal, and culinary purposes;
    2. For use by those authorized to procure ethyl alcohol tax free, as provided by federal law;
    3. In the manufacture of denatured alcohol or denatured distilled spirits produced and used as provided by federal law;
    4. In the manufacture of patented, patent, proprietary, medicinal, pharmaceutical, antiseptic, toilet, scientific, chemical, mechanical, and industrial preparations or products unfit for beverage purposes; or
    5. In the manufacture of flavoring extracts and syrups unfit for beverage purposes.
  2. Nothing contained in subsection (a) of this Code section shall prohibit the commissioner from promulgating reasonable rules and regulations with regard to ethyl alcohol intended for use or used for any of the above-mentioned purposes in order to ensure proper enforcement of this title.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 13; Code 1933, § 5A-2102, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1982, p. 3, § 3.

Administrative rules and regulations. —

Ethyl alcohol and license requirement, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Department of Revenue, Alcohol and Tobacco Tax Unit, Non-Beverage Alcohol, § 560-2-14.01.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 3 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 1 et seq.

ALR. —

Forbidding prescription, or restricting the amount, of intoxicating liquor for medicinal purposes, 49 A.L.R. 588 .

3-4-3. Retail dealer’s signs; signs advertising Georgia lottery.

  1. Except as otherwise provided in subsection (b) of this Code section, a licensed retail dealer in distilled spirits may display at the licensee’s place of business unilluminated signs, using letters not larger than eight inches in height, flat against the outside of the building, below the roof line, bearing the words “liquor,” “beer,” “wine,” “champagne,” or any combination thereof, and “package store” or “liquor store,” together with the trade name of the retail dealer.  In addition to such signs flat against the outside of the building, the retail dealer may display at a location on the tract of property upon which the business is located, but not affixed to the building, one unilluminated sign using letters not larger than eight inches in height bearing the words “package store” or “liquor store” and the trade name of the retail dealer.  Subject to any more restrictive size limitations contained in the ordinances of the political subdivision in which the place of business is located, a sign not affixed to the building may be no larger than 16 square feet in area.
  2. Notwithstanding the provisions of subsection (a) of this Code section, the commissioner shall be authorized by rules and regulations to permit licensed retail dealers in distilled spirits to display signs inside and outside their retail establishments which advertise or promote any lottery authorized under Chapter 27 of Title 50, the “Georgia Lottery for Education Act,” provided that such signs are in compliance with said Chapter 27 of Title 50 and the rules and regulations of the board of directors of the Georgia Lottery Corporation.

History. — Code 1981, § 3-4-3 , enacted by Ga. L. 1987, p. 623, § 1; Ga. L. 1993, p. 1073, § 1.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 196 et seq., 239.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 439.

Article 2 State License Requirements and Regulations for Manufacture, Distribution, and Package Sales

Cross references. —

Occupational taxes generally, T. 48, C. 13.

3-4-20. Levy and amount of state occupational license tax; application for license.

  1. An annual occupational license tax is imposed upon each distiller, manufacturer, broker, importer, wholesaler, fruit grower, and retail dealer of distilled spirits in this state, as follows:
    1. Upon each distiller and manufacturer  $ 1,000.00 (2) Upon each wholesale dealer  1,000.00 (3) Upon each importer  1,000.00 (4) Upon each fruit grower    500.00 (5) Upon each broker    100.00 (6) Upon each retail dealer    100.00 (7) Upon each special event use permit applicant    100.00

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  2. An annual occupational license tax shall be paid for each place of business operated. An application for the applicable license required pursuant to this title along with the payment of the tax required by subsection (a) of this Code section shall be submitted to the department immediately upon assuming control of the place of business and annually thereafter for so long as the business is operated.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, §§ 5, 9; Ga. L. 1972, p. 207, § 4; Ga. L. 1974, p. 1125, § 1; Ga. L. 1979, p. 923, § 2; Code 1933, § 5A-2501, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 30; Ga. L. 2012, p. 827, § 2/HB 1066.

JUDICIAL DECISIONS

This section authorizes the licensing by state of distilling and manufacturing only in those counties which have voted in favor of taxing and controlling alcoholic liquors. A license cannot, therefore, be lawfully issued and granted by the state to a person to manufacture, sell, or distribute alcohol or distilled spirits in a dry county. It is, therefore, no penal offense, separate from the unlawful manufacture of alcoholic liquor, for a person to operate a whiskey still and manufacture such alcoholic liquor or alcohol without obtaining a license to do so from the state. Shuman v. State, 82 Ga. App. 130 , 60 S.E.2d 521 (1950).

A person cannot be legally licensed by state to manufacture alcoholic liquors in dry county; hence, one found operating illicit liquor still in dry county cannot be convicted of operating a distillery without a license in violation of this section. Odum v. State, 82 Ga. App. 134 , 60 S.E.2d 522 (1950); Tanner v. State, 90 Ga. App. 789 , 84 S.E.2d 600 (1954).

Where commodity may be legally sold under a license, indictment alleging unlawful sale of such commodity must negate fact that accused had a license, under terms of which sale would have been legal. Thus, an indictment for unlawful sale of intoxicating liquors which fails to allege that either accused or purchasers did not have a distillers’ license is insufficient. Capitol Distrib. Co. v. State, 83 Ga. App. 303 , 63 S.E.2d 451 (1951).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 168 et seq., 175 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 400 et seq., 409 et seq.

ALR. —

Civil liability of one who takes out license for sale of intoxicating liquor for benefit of another, 2 A.L.R. 1516 .

Exacting for intoxicating liquor license an amount in excess of cost of regulation in order to limit the number and determine the character and responsibility of licensees, 103 A.L.R. 327 .

Intoxicating liquor business as subject to a tax imposed generally on occupations or business, 117 A.L.R. 686 .

Intoxicating liquor license as subject to execution or attachment, 148 A.L.R. 492 .

Power to limit the number of intoxicating liquor licenses, 163 A.L.R. 581 .

Change in law pending application for permit or license, 169 A.L.R. 584 .

Right to withdraw application to procure or to transfer liquor license, 73 A.L.R.2d 1223.

Liquor license as subject to execution or attachment, 40 A.L.R.4th 927.

3-4-21. Prohibition of holding or having beneficial interest in more than two retail dealer licenses.

  1. No person shall be issued more than two retail dealer licenses, nor shall any person be permitted to have a beneficial interest in more than two retail dealer licenses issued under this chapter, regardless of the degree of such interest.
  2. For purposes of this Code section:
    1. The term “person” shall include all members of a retail dealer licensee’s family; and the term “family” shall include any person related to the holder of the license within the first degree of consanguinity and affinity as computed according to the canon law.
    2. The beneficiaries of a trust shall be considered to have a beneficial interest in any business forming a part of the trust estate.
  3. Nothing contained in this Code section shall prohibit the reissuance of a valid retail dealer license if the license has been:
    1. Held prior to the creation of any of the above relationships by marriage; or
    2. Held prior to April 3, 1978.

History. — Ga. L. 1978, p. 1376, § 1; Code 1933, § 5A-2502, enacted by Ga. L. 1980, p. 1573, § 1.

Administrative rules and regulations. —

Retailer/Retail consumption dealers, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Department of Revenue, Alcohol and Tobacco Tax Unit, Subject 560-2-3.

OPINIONS OF THE ATTORNEY GENERAL

Leasing third liquor store to another licensee. — Subsection (a) of O.C.G.A. § 3-4-21 prohibits the holder of two retail liquor licenses not only from holding any other such licenses but also from having any financial, contractual, or other business interest in another retail liquor store and thus from leasing a third location for which one holds a beer or wine license to another retail liquor licensee or retail liquor business. 1984 Op. Att'y Gen. No. 84-47.

“Person” defined. — “Person,” as the term is used in this section, means a licensee, a license applicant, and any person having any degree of interest in a retail liquor store. 1979 Op. Att'y Gen. No. 79-59.

Prohibition as to family members. — This section prohibits holding more than two retail liquor licenses and having an interest in more than two retail package stores by family members related within first degree of consanguinity and affinity as computed according to canon law; this class of relations would include the following: A person’s spouse, parents, stepparents, parents-in-law, brothers and sisters, stepbrothers and stepsisters, brothers-in-law and sisters-in-law, children, stepchildren, and children-in-law. 1979 Op. Att'y Gen. No. 79-59.

Computing degrees of consanguinity and affinity. — Degrees of consanguinity and affinity are to be computed according to the canon law method. 1979 Op. Att'y Gen. No. 79-59.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 104 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 175.

ALR. —

Civil liability of one who takes out license for sale of intoxicating liquor for benefit of another, 2 A.L.R. 1516 .

Power to limit the number of intoxicating liquor licenses, 124 A.L.R. 825 ; 163 A.L.R. 581 .

3-4-21.1. Requirement for retail license; application of existing license to new location.

  1. A separate retail license shall be required for each place of business.
  2. In cases where a retail licensee is moving his package sales business to a different location, he shall be authorized to make application to have the license for the location previously occupied apply to the new location. Anything contained in Code Section 3-4-21 to the contrary notwithstanding, if the retail licensee complies with all other requirements of law, the commissioner shall authorize the existing license to apply to the new location.

History. — Code 1933, § 5A-2502.1, enacted by Ga. L. 1982, p. 1463, § 3; Code 1981, § 3-4-21.1 , enacted by Ga. L. 1982, p. 1463, § 10.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 90 et seq., 104 et seq., 144 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 63 et seq., 138 et seq.

3-4-22. Filing of bonds by applicants for licenses generally.

  1. All applicants for all licenses issued pursuant to this chapter shall file with the commissioner, along with each initial application, a bond:
    1. Conditioned to pay all sums which may become due by the applicant to this state as taxes, license fees, or otherwise, arising out of the operation of the business for which licensure is sought; and
    2. Conditioned to pay all penalties which may be imposed upon the applicant for failure to comply with the laws and rules and regulations pertaining to distilled spirits.

      The surety for the bonds shall be a surety company licensed to do business in this state, and the bonds shall be in such form as may be required by the commissioner and may be for a term of up to five calendar years.

  2. The bonds shall be in the following calendar year amounts:
    1. For distillers and manufacturers, $10,000.00;
    2. For wholesale dealers and importers, $5,000.00; and
    3. For retail dealers and brokers, $2,500.00.
  3. All applicants for annual renewal of licenses issued pursuant to this chapter, other than retail licenses, shall file an annual bond or have a multiyear bond on file with the department that extends at least through the end of the calendar year for which renewal is sought. Such bonds shall meet the same conditions as those filed with the initial application.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 10; Ga. L. 1978, p. 1426, § 1; Code 1933, § 5A-2503, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 31; Ga. L. 2006, p. 206, § 8/HB 1248; Ga. L. 2014, p. 759, § 1/SB 240.

RESEARCH REFERENCES

Am. Jur. 2d. —

1 Am. Jur. 2d, Abatement, Survival, and Revival, § 73 et seq.45 Am. Jur. 2d, Intoxicating Liquors, § 162 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 388 et seq.

ALR. —

Validity of statute or ordinance which requires liability or indemnity insurance or bond as condition of license for conducting business or profession, 120 A.L.R. 950 .

3-4-23. Certificate of residence required for retail dealer’s license; intention of Code section.

  1. No retail dealer’s license shall be issued to any person unless an application is filed with the commissioner, accompanied by a certificate by the judge of the probate court of the county of the applicant’s residence certifying that the applicant has been a bona fide resident of the county or municipality for at least 12 months immediately preceding the application and is a resident of the county or municipality where distilled spirits may be legally sold under this chapter.
  2. It is the purpose and intention of this Code section to prevent the sale of distilled spirits in any county or municipality other than those where distilled spirits may be legally sold under this chapter.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 24; Ga. L. 1972, p. 207, § 10; Code 1933, § 5A-2504, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 32; Ga. L. 2006, p. 206, § 9/HB 1248.

JUDICIAL DECISIONS

License to be in own name. —

Under the statutes, a person, firm, or corporation in this state cannot lawfully engage in liquor business by proxy or under the name of another, but any and all persons, firms, or corporations who desire to engage therein must first obtain a license so to do in their own name. Smith v. Nix, 206 Ga. 403 , 57 S.E.2d 275 (1950).

OPINIONS OF THE ATTORNEY GENERAL

The word “or” (now “and”) used in this section is construed to have a conjunctive, not a disjunctive, meaning; the county ordinary (now judge of probate court) where applicant resides must certify both that applicant has resided in particular county of state for the last 12 months and that county is wet. 1967 Op. Att'y Gen. No. 67-313.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 117.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 174.

3-4-24. Issuance to fruit growers of license to manufacture distilled spirits; storage and disposition; limitations upon manufacture and sale; issuance of manufacturer’s or distiller’s license in certain counties or municipalities; tasting room limitations for certain licensees.

  1. The commissioner may issue a license to a fruit grower authorizing the grower to manufacture distilled spirits from perishable fruits grown in this state.
  2. If any distilled spirits are manufactured as permitted by this Code section in any county, municipality, or county area exclusive of certain incorporated areas, as the case may be, in which the distilled spirits are not to be sold under the terms of this chapter, the licensee shall immediately store the distilled spirits or alcohol in a warehouse or warehouses designated by the commissioner to be sold or disposed of under the supervision of the commissioner in states, counties, or municipalities permitting the legal sale of distilled spirits or alcohol.
  3. It shall be unlawful for the licensee to sell or dispose of any such distilled spirits or alcohol:
    1. In any municipality, county, or unincorporated area of a county in which the sale of distilled spirits or alcohol is prohibited by this chapter; or
    2. To any person not holding an importer’s, broker’s, or wholesaler’s license issued pursuant to this chapter or by another state.
  4. A manufacturer’s or distiller’s license may be issued pursuant to this Code section to a fruit grower for the manufacture of distilled spirits in any county or municipality of this state that has approved either the package sale of distilled spirits or the sale of distilled spirits by the drink, or both, as provided in this chapter.
  5. The commissioner may issue a license pursuant to this Code section to a fruit grower licensed as a farm winery authorizing such fruit grower to manufacture distilled spirits and fortified wines for sale exclusively through a licensed and designated wholesaler; provided, however, that the farm winery has no more than one tasting room located on its licensed premises. For purposes of this subsection, the term “licensed premises” shall mean the premises for which the farm winery license is issued or property located contiguous to the farm winery and owned by the winery.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 9; Ga. L. 1972, p. 207, § 4; Code 1933, § 5A-2505, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 2012, p. 1028, § 1/SB 114; Ga. L. 2014, p. 214, § 1/HB 825; Ga. L. 2015, p. 317, § 4/SB 63; Ga. L. 2017, p. 406, § 2/SB 85.

The 2017 amendment, effective September 1, 2017, deleted former subsection (e), which read: “A manufacturer or distiller issued a license pursuant to this Code section may provide educational and promotional tours upon the issuance of a permit by the commissioner pursuant to Code Section 3-4-180.”; and redesignated former subsection (f) as present subsection (e).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 11, 26, 90 et seq., 102, 186, 214.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 19 et seq., 32 et seq., 138 et seq., 156, 425 et seq., 440, 441.

3-4-24.1. Distiller’s license authorizing manufacture of distilled spirits from agricultural products other than perishable fruits; storage.

  1. The commissioner may issue a license authorizing the manufacture of distilled spirits from agricultural products other than perishable fruits grown in this state.
  2. If any distilled spirits are manufactured as permitted by this Code section in any county, municipality, or county area exclusive of certain incorporated areas, as the case may be, in which the distilled spirits are not to be sold under the terms of this chapter, the licensee shall immediately store the distilled spirits or alcohol in a warehouse or warehouses designated by the commissioner to be sold or disposed of under the supervision of the commissioner in states, counties, or municipalities permitting the legal sale of distilled spirits or alcohol.
  3. It is unlawful for the licensee to sell or dispose of any such distilled spirits or alcohol:
    1. In any municipality, county, or unincorporated area of a county in which the sale of distilled spirits or alcohol is prohibited by this chapter; or
    2. To any person not holding an importer’s, broker’s, or wholesaler’s license issued pursuant to this chapter or by another state.
  4. A manufacturer’s or distiller’s license may be issued pursuant to this Code section for the manufacture of distilled spirits from agricultural products other than perishable fruits in any county or municipality of this state that has approved either the package sale of distilled spirits or the sale of distilled spirits by the drink, or both, as provided in this chapter.

History. — Code 1981, § 3-4-24.1 , enacted by Ga. L. 2012, p. 1028, § 2/SB 114; Ga. L. 2015, p. 317, § 5/SB 63; Ga. L. 2017, p. 406, § 3/SB 85.

The 2017 amendment, effective September 1, 2017, deleted former subsection (e), which read: “A manufacturer or distiller issued a license pursuant to this Code section may provide educational and promotional tours upon the issuance of a permit by the commissioner pursuant to Code Section 3-4-180.”.

3-4-24.2. Three-tier system of distribution and sale of distilled spirits; reporting; days and times for sale; sale price; taxes; regulatory authority; violations.

  1. As used in this Code section, the term:
    1. “Licensed premises” means the physical premises where a distiller is licensed by the state as a manufacturer of distilled spirits.
    2. “On-site production volume” means the volume of distilled spirits produced by distillation through one or more stills located at a licensed premises as part of a distiller’s process of engaging in the material and essential aspects of manufacturing such distilled spirits for human consumption.
  2. A limited exception to the provisions of this title providing a three-tier system for the distribution and sale of distilled spirits shall exist to the extent that the license to manufacture distilled spirits in this state shall include the right of a licensed distiller to sell up to 750 barrels of distilled spirits per calendar year to individuals on such distiller’s licensed premises for personal use and not for resale, subject to the following terms and conditions:
    1. Such retail sales of distilled spirits shall only be made to an individual who is physically on such distiller’s licensed premises and is of the age required by Code Section 3-3-23;
    2. A maximum of three of such distiller’s licensed premises shall be permitted to make such retail sales. If such distiller has more than one licensed premises, such distiller shall annually designate the specific licensed premises, up to a maximum of three, from which such distiller has elected to exercise its limited right to sell distilled spirits pursuant to this subsection and shall provide notification of such designation to the department for each calendar year;
    3. Such retail sales made for consumption on the premises shall not be subject to a daily maximum amount;
    4. Such retail sales made for consumption off the premises shall not exceed a maximum of 4,500 milliliters of distilled spirits per individual per day;
    5. Such distiller shall only make such retail sales of distilled spirits that such distiller has distilled, rectified, blended, aged, or bottled at one or more of its licensed premises;
    6. Such distiller shall only make such retail sales of distilled spirits for which such distiller is the sole owner of the brand and brand label;
    7. Beginning on April 1, 2022, and continuing thereafter, such distiller shall only make such retail sales of distilled spirits at a licensed premises at which such distiller reports on-site production volume, unless such licensed premises:
      1. Operates under the same federal distilled spirits permit of a licensed premises of such distiller at which such distiller reports on-site production volume;
      2. Is designated under paragraph (2) of this subsection as one of such distiller’s licensed premises for retail sales;
      3. Is used for aging distilled spirits transferred from such distiller’s on-site production volume in wooden containers for a period exceeding one year at such licensed premises; provided, however, that such licensed premises may also be used for aging distilled spirits transferred to such licensed premises as permitted under subsection (d) of this Code section; and
      4. Has physically located at such licensed premises at all times during such calendar year not less than 500 barrels of distilled spirits owned by such distiller that are being aged in wooden containers; and
    8. Beginning on April 1, 2022, and continuing thereafter, the maximum volume of distilled spirits that such distiller may sell from each specific licensed premises permitted to make such retail sales under this subsection during any calendar quarter shall be limited as follows:
      1. From a licensed premises at which such distiller reports on-site production volume, the maximum volume shall be the on-site production volume at such licensed premises during such calendar quarter; and
      2. From a licensed premises that meets all of the qualifications described in subparagraphs (A) through (D) of paragraph (7) of this subsection, the maximum volume shall be the difference between:
        1. The total aggregate on-site production volume of such distiller in this state among all of such distiller’s licensed premises during such calendar quarter; and
        2. The total aggregate retail sales made by such distiller under this subsection at all other licensed premises at which such distiller makes retail sales under this subsection during such calendar quarter.
  3. Each distiller shall file a report with the department every calendar quarter documenting all retail sales made under subsection (b) of this Code section and the on-site production volume of such distiller at each licensed premises in such manner and on such forms as designated by the department.
  4. Nothing in this Code section shall prohibit a distiller from transferring any liquid, regardless of whether such liquid would be deemed to be a finished product of distilled spirits or was distilled by such distiller, to or from any of such distiller’s licensed premises or from selling such transferred liquid to individuals present at such distiller’s licensed premises, subject to the terms and limitations of subsection (b) of this Code section.
  5. A distiller may sell distilled spirits pursuant to subsection (b) of this Code section on all days and at all times that sales of distilled spirits by retailers and retail consumption dealers are lawful within the county or municipality in which the licensed premises of such distiller is located, including, but not limited to, Sundays.
  6. A distiller shall not sell any distilled spirits for consumption off the premises pursuant to subsection (b) of this Code section at a price less than the price at which a person licensed to sell distilled spirits by the package is permitted to sell distilled spirits pursuant to subsection (b) of Code Section 3-4-26.
  7. Any distiller engaging in sales of distilled spirits pursuant to subsection (b) of this Code section shall remit all state and local sales, use, and excise taxes to the proper tax collecting authority.
  8. The commissioner shall promulgate and enforce such rules and regulations as he or she may deem reasonable and necessary to effectuate the provisions of this Code section.
  9. Upon a violation by a distiller of any provision of this Code section or this title or any rule or regulation promulgated thereunder, the commissioner shall have the power to place conditions or limitations on such distiller’s license and to modify or amend such conditions or limitations.

History. — Code 1981, § 3-4-24.2 , enacted by Ga. L. 2021, p. 493, § 1/HB 273.

Effective date. —

This Code section became effective September 1, 2017.

This Code section became effective May 5, 2021.

Code Commission notes. —

Pursuant to Code Section 28-9-5, Code Section 3-4-24.2, enacted by Ga. L. 2017, p. 820, § 1/HB 485, was redesignated as Code Section 3-4-24.3.

Editor’s notes. —

Ga. L. 2021, p. 493, § 1/HB 273, repealed former Code Section 3-4-24.2 , pertaining to three-tier system of distribution and sale of distilled spirits including Sunday sales, and enacted the present Code section. The former Code section was based on Code 1981, § 3-4-24.2 , enacted by Ga. L. 2017, p. 406, § 4/SB 85.

3-4-24.3. Licensing for the manufacture or distribution of distilled spirits on local level.

The commissioner may issue licenses for the manufacture or distribution of distilled spirits in any county or municipality of this state in which licenses for such activity have been authorized and issued in accordance with the adoption of a resolution or ordinance by the local governing authority of such county or municipality. The local governing authority of a county or municipality issuing licenses pursuant to this Code section shall within its jurisdiction have the authority to determine the location of any licensed businesses, not inconsistent with this title.

History. — Code 1981, § 3-4-24.3 , enacted by Ga. L. 2017, p. 820, § 1/HB 485.

Effective date. —

This Code section became effective May 9, 2017.

Code Commission notes. —

Pursuant to Code Section 28-9-5, in 2017, this Code section, enacted by Ga. L. 2017, p. 820, § 1/HB 485 as Code Section 3-4-24.2, was redesignated as Code Section 3-4-24.3.

3-4-25. Holder of retail dealer’s license authorized to sell only unbroken packages; breaking of package or packages or drinking of contents thereof on premises prohibited.

  1. Except as provided in Code Section 3-3-26 or Chapter 15 of this title, a retail dealer’s license shall authorize the holder to sell distilled spirits only in the original and unbroken package or packages, which shall contain not less than 50 milliliters each.
  2. Except as provided in Code Section 3-3-26 or Chapter 15 of this title, a retail dealer’s license shall not permit the breaking of the package or packages on the premises where sold and shall not permit the drinking of the contents of the package or packages on the premises where sold.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 9; Ga. L. 1976, p. 990, § 1; Code 1933, § 5A-2506, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 33; Ga. L. 1994, p. 553, § 2; Ga. L. 2020, p. 615, § 6/HB 879.

The 2020 amendment, effective August 3, 2020, in subsection (a), substituted “Except as provided in Code Section 3-3-26 or Chapter 15 of this title, a” for “A” at the beginning and deleted “package or packages” preceding “shall contain”; and substituted “Except as provided in Code Section 3-3-26 or Chapter 15 of this title, a retail dealer’s” for “The” at the beginning of subsection (b).

JUDICIAL DECISIONS

The retailer’s license authorizes only what is generally known as a “package store.” Dinkler v. Jenkins, 118 Ga. App. 239 , 163 S.E.2d 443 .

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 29, 41, 42.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 33, 138 et seq., 425 et seq., 440, 441.

ALR. —

Civil liability of one who takes out license for sale of intoxicating liquor for benefit of another, 2 A.L.R. 1516 .

Constitutionality, construction, and application of statutes designed to prevent or limit control of retail liquor dealers by manufacturers, wholesalers, or importers, 136 A.L.R. 1238 .

Power to limit the number of intoxicating liquor licenses, 163 A.L.R. 581 .

Right to withdraw application to procure or to transfer liquor license, 73 A.L.R.2d 1223.

Liquor license as subject to execution or attachment, 40 A.L.R.4th 927.

3-4-26. Display of advertisement or information regarding prices of distilled spirits in visible places; sales below cost prohibited; exceptions authorized.

  1. No person holding a retail dealer’s license to deal in distilled spirits by the package shall display any advertisement of or information regarding the price or prices of any distilled spirits in any show window or other place visible from outside the licensee’s place of business.
  2. No person licensed to sell distilled spirits by the package for carry-out purposes shall sell such beverages at a price less than the cost which such licensee pays for such distilled spirits. As used in this subsection, cost shall include the wholesale price plus the local excise tax imposed, as reflected in invoices which the commissioner of revenue may require to be maintained on said licensee’s place of business.
  3. The commissioner of revenue shall be authorized to adopt such regulations as he or she deems necessary to provide for exception to the prohibition provided in subsection (b) of this Code section for reasons relating to liquidation of inventory, close-out of brands, outdated products, or any other reason the commissioner may determine to merit an exception.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 9A; Code 1933, § 5A-2507, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 34; Ga. L. 1996, p. 785, § 1.

Cross references. —

Regulation of advertising generally, § 10-1-420 et seq.

Editor’s notes. —

Ga. L. 1996, p. 785, § 3, not codified by the General Assembly, provides for severability.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 196 et seq., 200 et seq.

ALR. —

Validity and construction of statute or ordinance requiring or prohibiting posting or other publication of price of commodity or services, 89 A.L.R.2d 901; 80 A.L.R.3d 740.

3-4-27. Notice of intention to secure retail dealer license for sale of distilled spirits.

  1. No application for a retail dealer license for the sale of distilled spirits shall be acted upon until after the applicant has published in the newspaper which publishes the legal advertisements of the county wherein such person proposes to engage in business a notice of his intention to secure a retail dealer license. Such notice shall be published at least once during the 30 days immediately preceding the filing of the application for a license. Such notice shall be in large boldface type and shall state:
    1. The type of license for which application has been filed;
    2. The exact location of the place of business for which a license is sought;
    3. The names and addresses of each owner of the business; and
    4. If the applicant is a corporation, the names and titles of all corporate officers.
  2. Proof of publication of the notice required by this Code section shall be attached to an application for a retail dealer license.
  3. An applicant for a renewal license shall not be subject to the notice requirements of this Code section.

History. — Code 1981, § 3-4-27 , enacted by Ga. L. 1989, p. 881, § 1.

Article 3 Local Authorization and Regulations for Manufacture, Distribution, and Package Sales

Cross references. —

Sale and possession of distilled spirits in dry counties and municipalities generally, T. 3, C. 10.

Editor’s notes. —

The functions of calling and supervising special elections to determine whether the issuance of licenses for the package sale of distilled spirits shall be approved, formerly performed by the ordinary (now judge of probate court) of a county or the mayor of a municipality, have been vested in the election superintendent of the county or municipality by Ga. L. 1980, p. 1573, § 1. For definition of election superintendent, see §§ 21-2-2(30) , 21-3-2(31).

JUDICIAL DECISIONS

Editor’s notes. —

In light of the similarity of the statutory provisions, decisions under Ga. L. 1937-38, Ex. Sess., p. 103 and Ga. L. 1941, p. 199, are included in the annotations for this article.

Procedure for calling elections. —

The election contemplated by Ga. L. 1937-38, Ex. Sess., p. 103 (see now O.C.G.A. § 3-4-41 ) will be called upon a petition signed by at least 35 percent of registered voters “qualified to vote at the general election immediately preceding the presentation of the petition,” and while Ga. L. 1941, p. 199 (see now O.C.G.A. § 3-4-47 ) does not contain the language shown in quotes, proper construction of this article requires that the elections be called in the same manner. Glass v. State, 75 Ga. App. 602 , 44 S.E.2d 143 (1947).

Injunction against lawfully operated liquor store as nuisance. —

Lawful operation of properly licensed package liquor store is an authorized business in those counties where a majority of qualified voters voting in an election for such purpose have approved the sale of liquor, and cannot be enjoined as a nuisance per se, since that which the law authorizes to be done, if done as the law authorizes, is not such a nuisance. Collins v. Lanier, 201 Ga. 527 , 40 S.E.2d 424 (1946) (decided under Ga. L. 1937-38, Ex. Sess., p. 103).

Presumption that election superintendent properly performed duties. —

All duties of the ordinary (election superintendent) required by Ga. L. 1941, p. 199, are prima facie presumed to be properly and legally performed. If legality of election is attacked, burden of proof is on complaining party to overcome it. Glass v. State, 75 Ga. App. 602 , 44 S.E.2d 143 (1947).

OPINIONS OF THE ATTORNEY GENERAL

In light of the similarity of the statutory provisions, opinions rendered under Ga. L. 1937-38, Ex. Sess., p. 103, are included in the annotations for this article.

Where county has voted to adopt rules and regulations for sale of alcoholic liquors in county, each and every city must respond to referendum and cannot arbitrarily refuse to issue licenses where majority of those in county have voted in affirmative. 1965-66 Op. Att'y Gen. No. 65-36.

Holding election within two years of previous election. — Under Ga. L. 1937-38, Ex. Sess., p. 103 (see now O.C.G.A. § 3-4-41 ) the holding by a municipality of an additional election under this article within two years of a previous such election which resulted in a tie vote is prohibited. 1978 Op. Att'y Gen. No. 78-18.

RESEARCH REFERENCES

ALR. —

Change of “wet” or “dry” status fixed by local option election by change of name, character, or boundaries of voting unit, without later election, 25 A.L.R.2d 863.

Power of legislative body to amend, repeal, or abrogate initiative or referendum measure, or to enact measure defeated on referendum, 33 A.L.R.2d 1118.

3-4-40. Requirement as to approval by referendum elections of issuance of licenses generally.

Licenses for the package sale of distilled spirits shall be authorized only in those counties and municipalities in which the issuance of such licenses is approved by a referendum election as provided in this article.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 4; Ga. L. 1972, p. 207, § 3; Code 1933, § 5A-2301, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 2017, p. 820, § 2/HB 485.

The 2017 amendment, effective May 9, 2017, in this Code section, substituted “Licenses for the package sale of distilled spirits shall be” for “Licenses provided for in this article are” near the beginning and substituted “by a referendum election” for “by referendum” near the end.

Law reviews. —

For comment on Collins v. Lanier, 201 Ga. 527 , 40 S.E.2d 424 (1946), see 9 Ga. B. J. 325 (1947).

JUDICIAL DECISIONS

Limits of governing authority’s discretion after vote for legalization. —

Where a county or municipality has voted in favor of legalizing sale of distilled spirits, the governing authority of county or municipality is vested with wide discretion in regulation of authorized businesses, but it is not authorized to prohibit such businesses and refuse to exercise its discretion. Stephens v. Moran, 221 Ga. 4 , 142 S.E.2d 845 (1965).

OPINIONS OF THE ATTORNEY GENERAL

Municipal citizens voting in county-wide elections. — Registered and qualified voters in municipal elections may sign petitions and vote in both municipal and county elections held pursuant to O.C.G.A. § 3-4-41 , but a county referendum is only binding on the unincorporated areas of the county. 1985 Op. Atty Gen. No. U85-48.

Legislative intent. — The purpose of this section is to prohibit the collection of a license or tax levied on manufacture, sale, and distribution of distilled spirits and alcohol as authorized by this law in those counties which have not voted in favor of taxing and controlling alcoholic beverages and liquors. 1945-47 Ga. Op. Att'y Gen. 377.

Holding elections as to mixed drinks at same time as other elections. — Election as to mixed drinks provided for in Ga. L. 1964, p. 771 may not be held in conjunction with any other election. 1972 Op. Atty Gen. No. U72-81.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 58 et seq., 63 et seq., 347.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 104 et seq.

3-4-41. Petition for referendum; notice of call for referendum.

  1. A referendum election to authorize the issuance of licenses for the package sale of distilled spirits may be initiated upon an ordinance or resolution from the governing authority of any municipality or county or upon a written petition containing the signatures of at least 20 percent of the registered and qualified voters of any municipality or county being filed with the election superintendent of the county or municipality. Such superintendent, upon validation of the ordinance, resolution, or petition, shall be required to call and conduct a referendum election as provided for in Chapter 2 of Title 21, the “Georgia Election Code,” for the purpose of submitting to the qualified voters of the municipality or county, as the case may be, the question of whether the issuance of licenses for the package sale of distilled spirits in the political subdivision shall be permitted or prohibited. Such ordinance, resolution, or petition shall not be amended, supplemented, or returned after its presentation to the appropriate authority. Validation shall, for the purposes of petitions authorized under this Code section, be the procedure in which the election superintendent determines whether each signature on the petition is the name of a registered and qualified voter.
  2. For purposes of petitions authorized under this Code section, the required number of signatures of registered voters of a political subdivision shall be computed based on the number of voters qualified to vote at the general election immediately preceding the presentation of the petition. Actual signers of the petition shall be registered and qualified to vote in the referendum election sought by the petition. Upon determining that the petition contains a sufficient number of valid signatures or upon receipt of an ordinance or resolution, the election superintendent shall set the date of the referendum election on a date authorized under Code Section 21-2-540. The referendum may be held as a special referendum election or may be held at the time of holding any other primary or election in such county or municipality.
  3. Notice of the call for the referendum election shall be published by the election superintendent in the official organ of the county or, in the case of a municipality, in a newspaper of general circulation in the municipality. The election superintendent shall also cause the date and purpose of the referendum election to be published in the official organ of the county or, in the case of a municipality, in a newspaper of general circulation in the municipality, once a week for two weeks immediately preceding the date of the referendum election.
  4. Following the expiration of two years after any referendum election is held which results in the disapproval of sales as provided in this article, another referendum election on this question shall be held if another ordinance, resolution, or petition, as provided in subsection (a) of this Code section, is filed with the appropriate election superintendent.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 4; Ga. L. 1972, p. 207, § 3; Code 1933, §§ 5A-2302, 5A-2303, 5A-2309, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1983, p. 806, § 1; Ga. L. 1985, p. 149, § 3; Ga. L. 2017, p. 820, § 2/HB 485; Ga. L. 2021, p. 450, § 1/SB 145.

The 2017 amendment, effective May 9, 2017, substituted the present provisions of the first sentence of subsection (a) for the former provisions, which read: “Upon a written petition containing the signatures of at least 35 percent of the registered and qualified voters of any municipality or county being filed with the election superintendent of the county or municipality, such superintendent, upon validation of the petition, shall be required to call and hold a referendum election for the purpose of submitting to the qualified voters of the municipality or county, as the case may be, the question of whether the manufacture, sale, and distribution of distilled spirits in the political subdivision shall be permitted or prohibited.”; in subsection (c), inserted “election” in the first and second sentences and inserted “referendum” near the end of the second sentence; and inserted “referendum” twice in subsection (d).

The 2021 amendment, effective May 4, 2021, inserted “ordinance, resolution, or” in second and third sentences of subsection (a), and in the middle of subsection (d); in subsection (a), in the first sentence, inserted “an ordinance or resolution from the governing authority of any municipality or county or upon a” and substituted “20 percent” for “35 percent” in the middle; inserted “petitions authorized under” in the last sentence of subsection (a) and near the beginning of subsection (b); in subsection (b), in the third sentence, inserted “or upon receipt of an ordinance or resolution” in the middle, substituted “on a date authorized under Code Section 21-2-540” for “for not less than 30 nor more than 60 days after the call” at the end, and deleted “if such other primary or election is to be held not more than 60 days after the call” following “municipality” at the end of the fourth sentence.

JUDICIAL DECISIONS

Term “qualified” construed. —

Voters whose names appeared on a voter registration list on the date of the last general election were “qualified” to vote in that general election within the meaning of O.C.G.A. §§ 3-4-41(a) and 21-2-231 . Abercrombie v. Shaddix, 250 Ga. 170 , 295 S.E.2d 832 (1982).

Striking of names from voter list for failure to vote. —

Probate judge correctly applied subsection (a) of O.C.G.A. § 3-4-41 by excluding from the judge’s count of names on petition to call special election those voters whose names appeared upon voter registration list on date of last general election but had been stricken from that list under O.C.G.A. § 21-2-231 for failure to vote between date of last general election and date of filing of petition to call election and thus were no longer “registered voters” of the county. Abercrombie v. Shaddix, 250 Ga. 170 , 295 S.E.2d 832 (1982).

The General Assembly intended for voters whose status is affected by O.C.G.A. § 21-2-231 , regarding loss of qualification for failure to vote, to remain “qualified” within meaning of subsection (a) of O.C.G.A. § 3-4-41 until their names actually are deleted from the voter registration list. Abercrombie v. Shaddix, 250 Ga. 170 , 295 S.E.2d 832 (1982).

No standing to attack constitutionality. —

Constitutional attack on this section by corporations who were selling intoxicants in dry county under allegedly valid licenses was dismissed since corporations had no property rights to have such license and therefore were without standing to attack this section. DeKalb County v. Florentine Corp., 228 Ga. 228 , 185 S.E.2d 85 (1971).

Legislative intent. —

Purpose of this section is to permit such elections to be held, not to provide technicalities by which a popular vote may be thwarted. Committee for New Cobb County Revenue v. Brown, 228 Ga. 364 , 185 S.E.2d 534 (1971).

Requirement of notice of special election is mandatory, and failure to comply therewith vitiates election. Whittle v. Whitley, 202 Ga. 633 , 44 S.E.2d 241 (1947).

Ga. L. 1937-38, Ex. Sess., p. 103, §§ 4 and 9 (see now O.C.G.A. §§ 3-4-41 and 3-4-47 ) must be construed together. Barrentine v. Griner, 205 Ga. 830 , 55 S.E.2d 536 (1949).

Election a nullity absent proper petition. —

A cursory reading of both Ga. L. 1937-38, Ex. Sess., p. 103, §§ 4 and 9 (see now O.C.G.A. §§ 3-4-41 and 3-4-47 ) will disclose that before the ordinary (election superintendent) is authorized to call an election under either section a petition signed by 35 percent or more of the qualified voters of the county must be presented. It follows that if either election be called without such petition having first been presented, such election is a nullity. Glass v. State, 75 Ga. App. 602 , 44 S.E.2d 143 (1947).

Consolidated individual petitions sufficient. —

Where there were several circulated petitions seeking to call a special election to nullify previously voted authority for sale of alcoholic beverages and liquors within county, but majority of names were signed to individual petitions asking in legal terms that election be called, each petition signed by one individual registered voter, and all petitions were pasted in one consolidated petition and presented to the ordinary (election superintendent), such consolidated petition was held to be sufficient in form to meet requirements of this section, there being evidence to show there was a sufficient number of signatures to bring the total to the required 35 percent. McCluney v. Stembridge, 206 Ga. 321 , 57 S.E.2d 203 (1950).

Disqualification of election superintendent for signing petition. —

The fact that the ordinary (election superintendent) was one of those who signed, as an individual, a petition requesting the call of a special election for purpose of submitting to qualified voters of county the question of taxing, legalizing, and controlling alcoholic beverages and liquors, did not show that the ordinary was disqualified because the ordinary was pecuniarily interested in the matter before the ordinary, or that the ordinary was otherwise disqualified from calling and holding a special election. McCluney v. Stembridge, 206 Ga. 321 , 57 S.E.2d 203 (1950).

Verification of petitions prior to call for election. —

The ordinary (election superintendent) is required to verify that petitions were signed by at least 35 percent of registered voters before the ordinary can issue a valid election call, and this prerequisite is mandatory. The only requirement imposed by this section with respect to the petition is that it be “signed by at least 35 percent of the registered voters qualified to vote at the general election immediately preceding the presentation of the petition.” The calling of the election by the ordinary as authorized by this section determines at least prima facie that the petitioners are of the class and are of a sufficient number as required by this section for the purpose of calling an election. Committee for New Cobb County Revenue v. Brown, 228 Ga. 364 , 185 S.E.2d 534 (1971).

Waiving statutory time period for holding election. —

While this section provides that the ordinary (election superintendent) “shall call a special election to be held within 30 days from the filing of such petition,” this is not an absolute requirement that election must be held within that period of time. Where election is not required by statute to be held on a date certain, and where election is prevented by court order, it is permissible to reschedule election after expiration of court’s injunction even though the 30-day period has elapsed. If there is a statutory time period within which election must be held and, following litigation, there is no longer time to hold election within statutory period, an election may be held after statutory period has expired. Committee for New Cobb County Revenue v. Brown, 228 Ga. 364 , 185 S.E.2d 534 (1971).

Compliance of call for election with section. —

Where call for election as issued by the ordinary (election superintendent) on the question of legalizing alcoholic beverages gave notice that election would be held in all voting precincts of county, and that voting polls would be open in all voting precincts of county between the hours of 7:00 A.M. and 6:00 P.M., and that those qualified to vote at the election would be determined in all respects in accordance with the laws governing elections for members of General Assembly, the call was in substantial accord with this section and was sufficient. McCluney v. Stembridge, 206 Ga. 321 , 57 S.E.2d 203 (1950).

Notice requirement. —

If election is advertised once a week for two consecutive weeks, this will not satisfy this section if election is held on Saturday of last week during which notice is published. Under this section the two weekly publications of notice must precede the week in which election is held. Whittle v. Whitley, 202 Ga. 633 , 44 S.E.2d 241 (1947).

Resubmission of question after election resulting in tie vote. —

Where a liquor election was held under this section, fact that election resulted in tie vote did not make it the duty of the ordinary (election superintendent) to resubmit question to voters. Broadhurst v. Hawkins, 188 Ga. 316 , 3 S.E.2d 905 (1939).

Judicial notice of dry or wet status of county. —

Accusations and indictments charging liquor violations need not allege that counties in which they are preferred have held an election to comply with the law, this being a matter of which the courts will take judicial notice. Domin v. State, 85 Ga. App. 676 , 70 S.E.2d 39 (1952).

OPINIONS OF THE ATTORNEY GENERAL

Municipal citizens voting in county-wide elections. — Registered and qualified voters in municipal elections may sign petitions and vote in both municipal and county elections held pursuant to O.C.G.A. § 3-4-41 , but a county referendum is only binding on the unincorporated areas of the county. 1985 Op. Atty Gen. No. U85-48.

Single petition for approval of package sales, and sales by the drink, allowed. — A single petition may be used for the purpose of invoking the referendum procedures for approval of package sales of distilled spirits and sales of distilled spirits by the drink for consumption on the premises if the petition clearly sets forth that it is for both purposes and the questions are presented separately in the referendum in the manner prescribed by law. 1985 Op. Att'y Gen. No. 85-22.

Legislative intent. — The apparent intent of this section is to require showing of significant degree of current voter support for a referendum on legalizing alcoholic beverages before actually conducting such a referendum. 1979 Op. Att'y Gen. No. 79-71.

This section requires the signatures of 35 percent of the citizens who were registered to vote at the preceding general election. 1970 Op. Att'y Gen. No. 70-172.

In the event of a conflict between Ga. L. 1972, p. 207, § 3 and former Code 1933, §§ 34-806 and 34-1314 (see now O.C.G.A. §§ 3-4-41 and 21-2-540 ), concerning the date for holding a liquor referendum, former Code 1933, §§ 34-806 and 34-1314 controlled. 1979 Op. Att'y Gen. No. 79-23.

“Filing” defined. — The word “filing” in this section, means the date petition is handed to the ordinary (election superintendent), not date upon which petition is determined to be valid; the situation is comparable to filing of nomination petitions. 1972 Op. Atty Gen. No. U72-42.

The word “filing” as used in this section means the date on which petition is handed to appropriate official, not date on which petition is determined to be valid. 1979 Op. Att'y Gen. No. 79-23.

There is no time limit for circulating petition to call an election to determine whether sale of intoxicating liquor shall be approved in county. 1954-56 Ga. Op. Att'y Gen. 455.

Election a nullity absent proper petition. — No special election may be called by a municipality except upon the petition of at least 35 percent of the registered qualified voters, and any such election called by a city council without such petition having first been presented would be a nullity. 1975 Op. Atty Gen. No. U75-19.

Persons qualified to vote. — Persons qualified to vote for members of General Assembly, and who were registered to vote at general election immediately preceding the filing of petition requesting the election to determine sale of intoxicating liquor, are eligible to vote in the election. 1954-56 Ga. Op. Att'y Gen. 456.

Percentage of voters. — There is no requirement that percentage of registered voters relate in any way to number of electors who actually voted in any preceding general election. 1979 Op. Att'y Gen. No. 79-71.

The percentage of voters set forth in this section refers to the number of individuals qualified to have voted in the last election scheduled to have been held by the municipality even though such election was not conducted. 1979 Op. Att'y Gen. No. 79-71.

Petition for wet and dry election should be checked against official registration for last general election. 1948-49 Ga. Op. Att'y Gen. 173.

Challenging signatures on petition. — There is no provision in the law whereby any group or any person may challenge signatures of persons signing a petition to hold an election to legalize sale of intoxicating liquors except by attacking legality of election; nor is there any provision for publication of names on the petition. These are solely the functions of the ordinary (election superintendent). 1957 Ga. Op. Att'y Gen. 174.

Effect of county election on time of holding municipal election. — A municipal election is quite separate from any previous county election, and the failure of legalization at a county election would not prohibit a municipal election during the following two years under this section; a municipal election can be held as soon as the petition procedures are complied with. 1972 Op. Atty Gen. No. U72-46.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 58 et seq., 63 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 104 et seq.

3-4-42. Form of ballots for referendum election.

  1. The ballot used in any referendum election held pursuant to Code Section 3-4-41 shall have written or printed thereon:

    Click to view

  2. Those desiring to vote in favor of the issuance of the licenses shall vote “Yes.” Those desiring to vote against the issuance of the licenses shall vote “No.”

“( ) YES Shall the issuance of licenses for the package sale ( ) NO of distilled spirits be approved?”

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 4; Ga. L. 1972, p. 207, § 3; Code 1933, § 5A-2306, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 2017, p. 820, § 2/HB 485.

The 2017 amendment, effective May 9, 2017, substituted “used in any referendum election held pursuant to Code Section 3-4-41” for “in the special election” in subsection (a).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 73.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 104 et seq.

3-4-43. Applicability of general election laws.

County elections shall be held according to Chapter 2 of Title 21, the “Georgia Election Code,” and may be held as a special election or at the time of holding any other special or general primary or special or general election in the county. Municipal elections shall be held according to Chapter 2 of Title 21, the “Georgia Election Code,” and may be held as a special election or at the time of holding any other special or general primary or special or general election in the municipality.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 4; Ga. L. 1972, p. 207, § 3; Code 1933, § 5A-2304, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1983, p. 806, § 2; Ga. L. 1998, p. 295, § 3; Ga. L. 2017, p. 820, § 2/HB 485.

Editor’s notes. —

Ga. L. 2017, p. 820, § 2/HB 485, effective May 9, 2017, reenacted this Code section without change.

OPINIONS OF THE ATTORNEY GENERAL

Holding elections on same day as other elections prohibited prior to 1983 amendment. — See 1972 Op. Atty Gen. No. U72-81; 1975 Op. Atty Gen. No. U75-45.

Election held on Saturday. — Special election to determine whether intoxicating liquor may be sold in county may be held on Saturday. 1954-56 Ga. Op. Att'y Gen. 457.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 63 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 92 et seq., 104 et seq.

3-4-44. Certification of results; payment of expenses.

It shall be the duty of the election superintendent of the county or the municipality, as the case may be, to canvass the returns and declare and certify the results of the election to the Secretary of State. The expense for the election shall be borne by the county or the municipality conducting the election.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 4; Ga. L. 1972, p. 207, § 3; Code 1933, § 5A-2305, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1983, p. 806, § 2; Ga. L. 2017, p. 820, § 2/HB 485.

Editor’s notes. —

Ga. L. 2017, p. 820, § 1/HB 485, effective May 9, 2017, reenacted this Code section without change.

JUDICIAL DECISIONS

This section requires only that the ordinary (election superintendent) shall receive returns of election held and ascertain and immediately declare result thereof. No method or manner by which the ordinary may determine and announce result of election is provided; and there is no provision in the statutes for a contest or other hearing before the ordinary. It is clear that the acts of the ordinary were not judicial, but were ministerial or administrative, and that they are not reviewable by certiorari. Brockett v. Maxwell, 73 Ga. App. 663 , 38 S.E.2d 176 (1946).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 77.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 129, 130.

3-4-45. Effect of majority vote in favor of package sales.

If a majority of the votes cast in a referendum election held pursuant to Code Section 3-4-41 are in favor of the issuance of licenses for the package sale of distilled spirits, then the package sale of distilled spirits in the political subdivision shall be permitted in accordance with this chapter at the expiration of 15 days from the date of the certification of the results by the election superintendent; otherwise, the issuance of licenses for the package sale of distilled spirits in the political subdivision shall be prohibited.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 4; Ga. L. 1972, p. 207, § 3; Code 1933, § 5A-2307, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 28; Ga. L. 1983, p. 806, § 2; Ga. L. 2017, p. 820, § 2/HB 485.

The 2017 amendment, effective May 9, 2017, substituted the present provisions of this Code section for the former provisions, which read: “If a majority of the votes cast are in favor of the issuance of the licenses, the manufacture, possession, distribution, and sale by the package of distilled spirits in the political subdivision shall be permitted in accordance with this chapter at the expiration of 15 days from the declaration of the results by the election superintendent.”.

JUDICIAL DECISIONS

Injunction against lawfully operated liquor store as nuisance. —

Lawful operation of properly licensed package liquor store is an authorized business in those counties where a majority of qualified voters voting in an election for such purpose have approved the sale of liquor, and cannot be enjoined as a nuisance per se, since that which the law authorizes to be done, if done as the law authorizes, is not such a nuisance. Collins v. Lanier, 201 Ga. 527 , 40 S.E.2d 424 (1946).

Commissioners have no power to completely prohibit sale of liquor in county once voters have decided to permit it. Trustees of Mtg. Trust of Am. v. Holland, 554 F.2d 237 (5th Cir. 1977).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 82 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 104 et seq.

ALR. —

Change of “wet” or “dry” status fixed by local option election by change of name, character, or boundaries of voting unit, without later election, 25 A.L.R.2d 863.

3-4-46. Procedure for conduct of election for purpose of nullifying previous election result.

  1. In any county or municipality which has at any time held a referendum election in accordance with this article, resulting in the approval of the issuance of licenses for the package sale of distilled spirits, the election superintendent of the county or municipality shall, upon the filing of an ordinance, resolution, or petition as provided in subsection (a) of Code Section 3-4-41, proceed to call another referendum election in the same manner as provided in this article for the purpose of nullifying the previous referendum election result.
  2. In the event an election referendum is held pursuant to subsection (a) of this Code section and a majority of the votes cast are against the issuance of licenses for the package sale of distilled spirits, then no new licenses for the package sale of distilled spirits within the political subdivision conducting the referendum shall be issued and any existing licensee issued a license for the package sale of distilled spirits shall be prohibited, effective upon the expiration of such license, from engaging in any package sales of distilled spirits within the political subdivision.
  3. No election held pursuant to this Code section shall be called or held within two years after the date of the declaration by the election superintendent of the results of the previous election held for such purpose under this article.

History. — Ga. L. 1941, p. 199, § 1; Ga. L. 1972, p. 207, § 3; Code 1933, § 5A-2310, enacted by Ga. L. 1980, p. 1573, § 1; Code 1981, § 3-4-47 ; Code 1981, § 3-4-46 , as redesignated by Ga. L. 2017, p. 820, § 2/HB 485; Ga. L. 2021, p. 450, § 2/SB 145.

The 2017 amendment, effective May 9, 2017, redesignated former Code Section 3-4-47 as this Code section; substituted the present provisions of subsection (a) for the former provisions, which read: “In any county or municipality which has at any time held an election in accordance with this article, resulting in the approval of the issuance of licenses for the package sales of distilled spirits, the election superintendent of the county or municipality shall, upon a petition signed by at least 35 percent of the registered qualified voters of the political subdivision concerned, proceed to call another election in the same manner as provided in this article for the purpose of nullifying the previous election result.”; added subsection (b); redesignated former subsection (b) as present subsection (c); and substituted “declaration by the election superintendent of the results” for “declaration of the result” in the middle of subsection (c).

The 2021 amendment, effective May 4, 2021, substituted “an ordinance, resolution, or petition” for “a petition” in the middle of subsection (a).

Editor’s notes. —

Ga. L. 2017, p. 820, § 2/HB 485, repealed former Code Section 3-4-46, relating to the effect of majority vote against package sales, and enacted the present Code section. The former Code section was based on Ga. L. 1937-38, Ex. Sess., p. 103, § 4; Ga. L. 1972, p. 207, § 3; Code 1933, §§ 5A-2307, 5A-2308, enacted by Ga. L. 1980, p. 1573, § 1.

JUDICIAL DECISIONS

Constitutionality. —

This section, insofar as it authorizes holding election for purpose of nullifying previous election legalizing alcoholic beverages in county, is not unconstitutional as violative of due process on ground that no provision is made for right to contest election held thereunder or on ground that provision is so indefinite that any proceeding amounts to a taking of property of qualified distributors of alcoholic beverages without due process of law. Sanders v. Mason, 197 Ga. 522 , 29 S.E.2d 780 (1944).

No standing to attack constitutionality. —

Constitutional attack on this section by corporations who were selling intoxicants in dry county under allegedly valid licenses was dismissed since corporations had no property rights to have such license and therefore were without standing to attack this section. DeKalb County v. Florentine Corp., 228 Ga. 228 , 185 S.E.2d 85 (1971).

Legislative intent. —

The legislature intended in enacting this section only to give those counties which had voted favorably for control the same means of abolishing or repealing the control of manufacture, sale, and distribution of alcoholic beverages and liquors; the section does not render a previous election void ab initio, so as to be retrospective. Thacker v. Morris, 196 Ga. 167 , 26 S.E.2d 329 (1943).

Ga. L. 1937-38, Ex. Sess., p. 103, § 4 and Ga. L. 1941, p. 199, § 1 (see now O.C.G.A. §§ 3-4-41 and 3-4-46 ) must be construed together. Barrentine v. Griner, 205 Ga. 830 , 55 S.E.2d 536 (1949).

Election a nullity absent proper petition. —

A cursory reading of both Ga. L. 1937-38, Ex. Sess., p. 103, § 4 and Ga. L. 1941, p. 199, § 1 (see now O.C.G.A. §§ 3-4-41 and 3-4-46 ) would disclose that before the ordinary (election superintendent) was authorized to call an election under either section a petition signed by 35 percent or more of the qualified voters of the county must be presented. It follows that if either election be called without such petition having first been presented, such election is a nullity. Glass v. State, 75 Ga. App. 602 , 44 S.E.2d 143 (1947).

Among the prerequisites to the call of an election for nullifying a previous election are: (1) no election can be called within two years after the date of the declaration of the result of a previous election; (2) no election shall be called except upon the petition of at least 35 percent of the registered qualified voters, qualified to vote in the general election immediately preceding the presentation of the petition; and (3) the election shall be held within 30 days from the filing of the petition, and notice of the election shall be published in the official gazette of the county once a week for two weeks preceding the election. Barrentine v. Griner, 205 Ga. 830 , 55 S.E.2d 536 (1949).

The requirement as to notice of special election was mandatory, and failure to comply therewith vitiated election; in these circumstances, petition by licensed liquor dealers, seeking to enjoin the ordinary (election superintendent) from putting the result of such election into effect, set forth a cause of action. The prerequisite as to proper petition by 35 percent of qualified registered voters is also mandatory, and it follows that failure to comply with the mandatory prerequisite vitiates election. Barrentine v. Griner, 205 Ga. 830 , 55 S.E.2d 536 (1949).

Effects of violations of mandatory and directory provisions on validity of election. —

There is a marked distinction between mandatory provisions of law in regard to calling of election and those which are merely directory to officials in holding them. A substantial violation of mandatory provisions affects validity of election, while a failure of strict compliance with directory provisions of law, or mere irregularities on part of election officers, will not generally do so; and the latter are usually the subject matter of contests. Barrentine v. Griner, 205 Ga. 830 , 55 S.E.2d 536 (1949).

When petition has been acted upon and election ordered by designated authorities, presumption is that petition was in due and legal form and that it was signed by requisite percentage of qualified voters, and in absence of any evidence to the contrary, that presumption is sufficient. Sanders v. Mason, 197 Ga. 522 , 29 S.E.2d 780 (1944); Williams v. Gould, 203 Ga. 96 , 45 S.E.2d 218 (1947).

Court of equity is not authorized to surmise or assume invalidity of signatures regularly presented to the ordinary (election superintendent), or to enjoin such officer from calling an election in the face of the ordinary’s prima facie determination as to the sufficiency of the consolidated petition presented. Williams v. Gould, 203 Ga. 96 , 45 S.E.2d 218 (1947).

Rebuttable presumption that election superintendent performed statutory duties. —

The action of the ordinary (election superintendent), as result of petition having been filed with the ordinary, in calling election and declaring results thereof, determines prima facie that requirements of this section providing for calling of such election have been complied with in due and legal form. This is nothing more nor less than a rebuttable presumption that the ordinary has properly performed the required duties. Sanders v. Mason, 197 Ga. 522 , 29 S.E.2d 780 (1944).

Judicial notice of dry or wet status of county. —

Accusations and indictments charging liquor violations need not allege that counties in which they are preferred have held an election to comply with the law, this being a matter of which the courts will take judicial notice. Domin v. State, 85 Ga. App. 676 , 70 S.E.2d 39 (1952).

OPINIONS OF THE ATTORNEY GENERAL

There is no time limit for circulating a petition to call an election to determine whether sale of intoxicating liquor shall be legalized or made unlawful in county. 1954-56 Ga. Op. Att'y Gen. 455.

Effect of void election on holding subsequent election within two years. — An election which through noncompliance with the law has been ruled void by superior court is not considered an election within meaning of this section so as to prevent another election within two years. 1958-59 Ga. Op. Att'y Gen. 204.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 86 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 104 et seq.

3-4-47. Adoption of resolutions and ordinances; determination of location of retail or businesses licensed by local governing authorities.

  1. A municipality or county may adopt resolutions and ordinances, consistent with this title, as may fall within the police powers of the municipality or county to regulate any business described in this chapter; provided, however, that on and after July 1, 1997, no municipality or county shall authorize the location of a new retail package liquor licensed place of business or the relocation of an existing retail package liquor licensed place of business engaged in the retail package sales of distilled spirits within 500 yards of any other business licensed to sell package liquor at retail, as measured by the most direct route of travel on the ground; provided, however, that this limitation shall not apply to any hotel licensed under this chapter. The restriction provided for in this subsection shall not apply at any location for which a license has been issued prior to July 1, 1997, nor to the renewal of such license. Nor shall the restriction of this subsection apply to any location for which a new license is applied for if the sale of distilled spirits was lawful at such location at any time during the 12 months immediately preceding such application.
  2. The local governing authority of a municipality or county issuing licenses pursuant to this article shall within its jurisdiction have the authority to determine the location of any retail business it licenses, not inconsistent with this title.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 9; Ga. L. 1973, p. 610, § 1; Code 1933, § 5A-2312, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 29; Ga. L. 1997, p. 1588, § 1; Code 1981, § 3-4-49 ; Code 1981, § 3-4-47 , as redesignated by Ga. L. 2017, p. 820, § 2/HB 485.

The 2017 amendment, effective May 9, 2017, redesignated former Code Section 3-4-49 as this Code section; substituted “resolutions and ordinances” for “all reasonable rules and regulations” near the beginning of the first sentence of subsection (a); and substituted the present provisions of subsection (b) for the former provisions, which read: “All municipal and county authorities issuing licenses shall within their respective jurisdictions have authority to determine the location of any distillery, wholesale business, or retail business licensed by them, not inconsistent with this title.”.

Editor’s notes. —

Ga. L. 2017, p. 820, § 2/HB 485, effective May 9, 2017, redesignated former Code Section 3-4-47 as present Code Section 3-4-46.

JUDICIAL DECISIONS

Municipal ordinance which provides for automatic loss of a liquor license upon cessation of business is not inconsistent with this title because it permits cancellation without notice and hearing, allegedly required by § 3-2-3 , because no hearing is required where revocation of license is expressly required by ordinance. City Council v. Crump, 251 Ga. 594 , 308 S.E.2d 180 (1983) (decided prior to 1982 amendment of § 3-2-3 ).

Authority for municipality to impose special license tax of set amount per case of liquor, payable cash-on-delivery, is not supplied by Ga. L. 1937-38, Ex. Sess., p. 103, § 9 (see now O.C.G.A. § 3-4-47 ). City of Atlanta v. Henry Grady Hotel Corp., 220 Ga. 249 , 138 S.E.2d 362 (1964).

OPINIONS OF THE ATTORNEY GENERAL

Exclusiveness of county regulation. — No valid local or special law could be enacted which would give county power to tax and regulate liquor therein to the exclusion of such power in municipalities within county. 1971 Op. Atty Gen. No. U71-8.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 58 et seq.

C.J.S. —

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

ALR. —

Power to limit the number of intoxicating liquor licenses, 124 A.L.R. 825 ; 163 A.L.R. 581 .

Construction of provision precluding sale of intoxicating liquors within specified distance from another establishment selling such liquors, 7 A.L.R.3d 809.

Validity of municipal regulation more restrictive than state regulation as to time for selling or serving intoxicating liquor, 51 A.L.R.3d 1061.

3-4-48. Maximum annual license fees for municipal or county licenses.

The annual license fee to be charged by a municipality or county pursuant to this article shall not be more than $5,000.00 for each license.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 9; Ga. L. 1965, p. 451, § 1; Code 1933, § 5A-2313, enacted by Ga. L. 1980, p. 1573, § 1; Code 1981, § 3-4-50 ; Code 1981, § 3-4-48 , as redesignated by Ga. L. 2017, p. 820, § 2/HB 485.

The 2017 amendment, effective May 9, 2017, redesignated former Code Section 3-4-50 as this Code section.

Editor’s notes. —

Ga. L. 2017, p. 820, § 2/HB 485, repealed former Code Section 3-4-48, relating to the effective date of nullification of previous election result, and enacted the present Code section. The former Code section was based on Ga. L. 1980, p. 1573, § 1, and was repealed effective May 9, 2017.

JUDICIAL DECISIONS

Law does not require that fee for retailer’s license be fixed sum. City of Atlanta v. Henry Grady Hotel Corp., 220 Ga. 249 , 138 S.E.2d 362 (1964).

Special license tax unauthorized. —

Special license tax of set amount per case of liquor, payable cash-on-delivery, is not an annual license fee payable in advance and is therefore unauthorized. City of Atlanta v. Henry Grady Hotel Corp., 220 Ga. 249 , 138 S.E.2d 362 (1964).

City license fee authorized. —

A city ordinance requiring “$1,000.00 per annum plus an amount equal to 1 percent of the gross sales of the previous year in excess of $100,000.00” is an annual license fee payable in advance, and is authorized. City of Atlanta v. Henry Grady Hotel Corp., 220 Ga. 249 , 138 S.E.2d 362 (1964).

OPINIONS OF THE ATTORNEY GENERAL

Basis for differences in retail liquor license rates. — Any differences in retail liquor license rates imposed by municipality must be based on reasonable classification. 1954-56 Ga. Op. Att'y Gen. 493.

Issuance of free license. — County commissioners may not issue license free of charge to retailers to sell intoxicating liquors, but may issue free license for sale of beer and wine. 1954-56 Ga. Op. Att'y Gen. 458.

Exclusiveness of county regulation. — No valid local or special law could be enacted which would give a county power to tax and regulate liquor therein to the exclusion of such power in municipalities within the county. 1971 Op. Atty Gen. No. U71-8.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 168, 169.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 400 et seq., 409 et seq.

ALR. —

Exacting for intoxicating liquor license an amount in excess of cost of regulation in order to limit the number and determine the character and responsibility of licensees, 103 A.L.R. 327 .

Effect of state regulation of liquor sales on municipal power to impose occupation license or tax for revenue, 6 A.L.R.2d 737.

3-4-49. Municipalities in wet counties.

Any municipality which lies wholly or partially within a county which has approved the manufacture, distribution, or package sale of distilled spirits in a county-wide referendum election as provided in this article and which, on January 1, 1985, was issuing licenses permitting the manufacture, distribution, or package sale of distilled spirits shall be authorized to exercise the powers and shall be subject to the provisions contained in this title relating to the manufacture, distribution, or package sale of distilled spirits.

History. — Code 1981, § 3-4-51 , enacted by Ga. L. 1986, p. 1083, § 1; Code 1981, § 3-4-51 ; Code 1981, § 3-4-49 , as redesignated by Ga. L. 2017, p. 820, § 2/HB 485.

The 2017 amendment, effective May 9, 2017, redesignated former Code Section 3-4-51 as this Code section; and in this Code section, substituted “distribution, or package sale” for “sale, or distribution” throughout, and inserted “election” near the middle.

Law reviews. —

For annual survey of local government law, see 38 Mercer L. Rev. 289 (1986).

3-4-50. Redesignated.

Editor’s notes. —

Ga. L. 2017, p. 820, § 2/HB 485, effective May 9, 2017, redesignated former Code Section 3-4-50 as present Code Section 3-4-48.

3-4-51. Redesignated.

Editor’s notes. —

Ga. L. 2017, p. 820, § 2/HB 485, effective May 9, 2017, redesignated former Code Section 3-4-51 as present Code Section 3-4-49.

Article 4 Excise Taxation

Cross references. —

Sales and use taxes, T. 48, C. 8.

PART 1 State

3-4-60. Levy and amount of tax.

The following state taxes are levied and imposed:

  1. There shall be imposed upon the first sale, use, or final delivery within this state of all distilled spirits an excise tax in the amount of 50¢ per liter and, upon the first sale, use, or final delivery within this state of all alcohol, an excise tax in the amount of 70¢ per liter, and a proportionate tax at the same rate on all fractional parts of a liter;
  2. There shall be imposed upon the importation for use, consumption, or final delivery into this state of all distilled spirits an import tax in the amount of 50¢ per liter and, upon the importation for use, consumption, or final delivery into this state of all alcohol, an import tax in the amount of 70¢ per liter, and a proportionate tax at the same rate on all fractional parts of a liter; and
  3. All alcohol spirits manufactured within this state for sale within this state shall be made from Georgia grown products.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, §§ 11, 12; Ga. L. 1964, p. 62, § 3; Ga. L. 1972, p. 207, § 6; Ga. L. 1974, p. 615, § 1; Ga. L. 1976, p. 692, § 1; Ga. L. 1977, p. 1154, § 2; Ga. L. 1978, p. 1645, § 1; Code 1933, § 5A-2701, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 35; Ga. L. 1985, p. 662, § 1; Ga. L. 1985, p. 665, § 2.

Editor’s notes. —

Ga. L. 1985, p. 662, § 1, also amended this Code section. However, that amendment has been treated as superseded by Ga. L. 1985, p. 665, § 2.

Ga. L. 1985, p. 665, § 1, not codified by the General Assembly, contained legislative findings that the cost of regulating and administering the manufacture, distribution, and sale of alcohol, distilled spirits, table wines, and dessert wines consumed in Georgia is greater for imported alcohol, spirits, and wines than it is for alcohol, spirits, and wines produced within Georgia and that it is in the best interests of the citizens of Georgia that the increased costs be provided for by taxation.

Ga. L. 1985, p. 665, § 4, not codified by the General Assembly, provided that the provisions of the Act shall not be severable and that in the event that any section or portion of any section of the Act is declared or adjudged to be invalid or unconstitutional, such declaration or adjudication shall render the entire Act invalid, void, and of no effect and shall specifically revive the provisions affected by the Act as such provisions stood before the enactment of the Act, as amended by laws other than this Act.

Law reviews. —

For annual survey of state and local taxation, see 40 Mercer L. Rev. 357 (1988).

JUDICIAL DECISIONS

Constitutionality. —

Georgia statutes providing for an import tax on all distilled spirits and table wines imported for use, consumption, or final delivery into the state do not violate the equal protection and commerce clauses of the federal constitution. Heublein, Inc. v. State, 256 Ga. 578 , 351 S.E.2d 190 (1987).

For case discussing constitutionality of former law, see Scott v. State, 187 Ga. 702 , 2 S.E.2d 65 (1939), overruled, Blackston v. State, Dep't of Natural Resources, 255 Ga. 15 , 334 S.E.2d 679 (1985).

The pre-1985 version of this Code section violated the commerce clause of the federal constitution because it amounted to an act of “simple economic protectionism.” The rule announced in Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S. Ct. 3049 , 82 L. Ed. 2 d 200 (1984), which held a similar Hawaii statute unconstitutional, applies retroactively to claims arising on facts antedating that decision. James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 111 S. Ct. 2439 , 115 L. Ed. 2 d 481 (1991).

Standing to bring action for refund. —

Where, under the pre-1985 version of O.C.G.A. § 3-4-60 , the manufacturer remitted the tax payment to the revenue commissioner and subsequently, in an itemized billing statement, required the wholesaler to remit payment for “state stamps” or “state tax,” it was the wholesaler which was the taxpayer for purposes of O.C.G.A. § 48-2-35 and, due to its lack of standing, the manufacturer was procedurally barred from pursuing an action for refund. James B. Beam Distilling Co. v. State, 263 Ga. 609 , 437 S.E.2d 782 (1993), cert. denied, 513 U.S. 1056, 115 S. Ct. 662 , 130 L. Ed. 2 d 597 (1994).

Predeprivation remedies for disputed taxes. —

Where manufacturer remitted tax payments under the pre-1985 version of O.C.G.A. § 3-4-60 , even if it was not procedurally barred from seeking a refund under O.C.G.A. § 48-2-35 , its failure to avail itself of the predeprivation remedies available to it prior to payment of the disputed taxes results in denial of recovery of taxes so paid. James B. Beam Distilling Co. v. State, 263 Ga. 609 , 437 S.E.2d 782 (1993), cert. denied, 513 U.S. 1056, 115 S. Ct. 662 , 130 L. Ed. 2 d 597 (1994).

RESEARCH REFERENCES

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 409 et seq.

ALR. —

Specific tax imposed on goods in stock of dealer, as excise, or property tax, 173 A.L.R. 1316 .

Interplay between Twenty-First Amendment and Commerce Clause concerning state regulation of intoxicating liquors, 116 A.L.R.5th 149.

What constitutes plain, speedy, and efficient state remedy under Tax Injunction Act (28 USCS § 1341), prohibiting federal district courts from interfering with assessment, levy, or collection of state business taxes, 31 A.L.R. Fed. 2d 237.

3-4-61. Payment of tax; report.

  1. Except as may otherwise be authorized in this title, the state excise taxes imposed by this part shall be paid by the licensed wholesale dealer in distilled spirits; provided, however, that such taxes shall be imposed upon and shall be paid by the licensed distiller for distilled spirits served or sold by the distiller directly to the public pursuant to Code Section 3-4-24.2.
  2. The taxes shall be paid on or before the tenth day of the month following the calendar month in which the beverages are sold or disposed of within the particular municipality or county by the wholesale dealer.
  3. Each licensee responsible for the payment of the excise tax shall file a report itemizing for the preceding calendar month, by size and type of container, the exact quantities of distilled spirits sold during the month within the state.  The licensee shall file the report with the commissioner.
  4. The licensee shall remit to the commissioner the tax imposed by the state on the tenth day of the month following the calendar month in which the sales were made.
  5. In order to phase in the reporting system of excise tax payment for distilled spirits and alcohol:
    1. The commissioner shall direct that no later than January 31, 1993, all persons who made excise tax payments in respect of distilled spirits and alcohol sales in the State of Georgia during the calendar year 1992 shall make a one-time deposit equal to the amount of 25 percent of said tax payments. This one-time advance shall be repaid in full by the state in equal semiannual installments over the period of 24 months following August 1, 1993; except that, in the event wholesalers made payments as provided for in this paragraph, the commissioner shall repay such wholesalers in the form of semiannual credits against future tax liability;
    2. On February 1, 1993, or as soon thereafter as practicable, the commissioner shall direct that an inventory be taken of stamped merchandise and tax stamps held by manufacturers, shippers, and wholesalers.  The commissioner shall issue refunds to all manufacturers and shippers for the value of tax stamps in their possession on February 1, 1993, to be paid in 12 equal installments beginning on August 1, 1993.  The commissioner shall issue tax credits to wholesalers for stamps in inventory on February 1, 1993, which shall be applied as credits against the wholesaler’s future tax liability for the 12 month period beginning with the report due on August 10, 1993;
    3. Nothing in this subsection shall be construed to impose an additional excise tax on distilled spirits and alcohol held in inventory by wholesalers and retailers above the excise tax paid prior to February 1, 1993; and
    4. The commissioner shall adopt rules and regulations for the implementation of a reporting method of paying distilled spirits and alcohol excise taxes as well as the elimination of the use of any type of distilled spirits and alcohol stamp. The commissioner shall have full authority to allow credits or make refunds as provided for in this subsection.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 11; Ga. L. 1964, p. 62, § 3; Ga. L. 1972, p. 207, § 6; Ga. L. 1974, p. 615, § 1; Ga. L. 1976, p. 692, § 1; Ga. L. 1977, p. 1154, § 2; Ga. L. 1978, p. 1645, § 1; Code 1933, § 5A-2702, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 36; Ga. L. 1992, p. 1458, § 3; Ga. L. 2017, p. 406, § 6/SB 85.

The 2017 amendment, effective September 1, 2017, added the proviso at the end of subsection (a); and substituted “licensee” for “wholesaler” at the beginning of subsection (d).

Editor’s notes. —

Ga. L. 1992, p. 1458, § 5, not codified by the General Assembly, provides: “(a) Section 3 of this Act shall become effective February 1, 1993. All other provisions of this Act shall become effective upon its approval by the Governor [April 13, 1992] or upon its becoming law without such approval.

“(b) With regard to taxes paid and stamps purchased on or after the effective date of this Act, all provisions of this Act shall fully apply.

“(c) With regard to taxes paid and stamps purchased prior to the effective date of this Act and with regard to which no application for credit or claim for refund was filed prior to the effective date of this Act, all of the provisions of this Act shall apply, provided that, with regard to payments made less than three years prior to the effective date of this Act, the taxpayer shall have 90 days from the effective date of this Act within which to file with the commissioner the protest and the application for credit provided for by this Act, and provided, further, that no interest shall be allowed on any such taxes paid or stamps purchased.

“(d) With regard to taxes paid and stamps purchased prior to the effective date of this Act and with regard to which an application for credit or claim for refund has been filed prior to the effective date of this Act, the law which was in effect at the time the application for credit or claim for refund was filed shall apply, provided that no interest shall be allowed on any such payments, and provided, further, that if a suit for refund or credit has not been filed prior to the effective date of this Act with regard to any such application or claim, any suit for recovery of a credit pertaining to such a claim or application must be filed within 90 days after the effective date of this Act.”

JUDICIAL DECISIONS

For case where evidence sustained verdict of controlling and possessing nontax paid whiskey, see Anderson v. State, 72 Ga. App. 487 , 34 S.E.2d 110 (1945).

OPINIONS OF THE ATTORNEY GENERAL

The use of excise stamps which indicate the quantity and that a tax has been paid on that quantity would comply completely with this section. 1963-65 Ga. Op. Att'y Gen. 377.

RESEARCH REFERENCES

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 415 et seq.

PART 2 Local

3-4-80. Levy of tax on sale of distilled spirits by the package authorized; rate of tax; manner of imposition; imposition of tax by both county and municipality located within county.

  1. The governing authority of each municipality or county where the sale of distilled spirits by the package is permitted by Article 3 of this chapter may at its discretion levy an excise tax on the sale of distilled spirits by the package at either the wholesale or retail level, which tax shall not exceed 22¢ per liter of distilled spirits, excluding fortified wine, and a proportionate tax at the same rate on all fractional parts of a liter.
  2. The rate of taxation, the manner of its imposition, payment, and collection, and all other procedures related to the tax authorized by subsection (a) of this Code section shall be as provided for by each county or municipality electing to exercise the power conferred by subsection (a) of this Code section.
  3. No county excise tax shall be imposed, levied, or collected in any portion of a county in which a municipality within the county is imposing the same tax on distilled spirits sold by the package.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 9; Ga. L. 1965, p. 451, § 2; Code 1933, § 5A-2703, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 37.

OPINIONS OF THE ATTORNEY GENERAL

Exclusiveness of county regulation. — No valid local or special law could be enacted which would give county power to tax and regulate liquor therein to exclusion of such power in municipalities within county. 1971 Op. Atty Gen. No. U71-8.

RESEARCH REFERENCES

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 400 et seq., 409 et seq.

ALR. —

Excise tax on foreign corporation engaged exclusively in interstate commerce measured by net income from business within the taxing state, 44 A.L.R. 1228 .

Article 5 Sales by the Drink

Administrative rules and regulations. —

General provisions, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Department of Revenue, Alcohol and Tobacco Tax Unit, Subject 560-2-2.

RESEARCH REFERENCES

ALR. —

Liquor By-The-Drink Taxes, 53 A.L.R.7th 1.

PART 1 Authorization

JUDICIAL DECISIONS

Grants no authority to commissioner to license sale of alcoholic beverages for consumption on the premises. Mousetrap of Atlanta, Inc. v. Blackmon, 129 Ga. App. 805 , 201 S.E.2d 330 (1973) (decided under former Ga. L. 1964, Ex. Sess., p. 771).

The phrases and words of Ga. L. 1964, Ex. Sess., p. 771, § 1 (see now O.C.G.A. § 3-4-90 et seq.) do not show any repugnance to Ga. L. 1937-38, Ex. Sess., p. 103, § 14 (see now O.C.G.A. § 3-3-20 ), which make the sale of any liquor on Sunday a criminal offense. Hawes v. Dinkler, 224 Ga. 785 , 164 S.E.2d 799 (1968) (decided under former Ga. L. 1964, Ex. Sess., p. 771).

City is authorized to consider applications for licenses to sell liquor by the drink throughout corporate limits, even though section of city lies within county which is dry as to sale of liquor by the drink. Holcomb v. Gray, 234 Ga. 7 , 214 S.E.2d 512 (1975) (decided under former Ga. L. 1964, Ex. Sess., p. 771).

OPINIONS OF THE ATTORNEY GENERAL

Time for holding elections. — The election as to mixed drinks provided for by statute may not be held in conjunction with any other election. 1972 Op. Atty Gen. No. U72-81.

RESEARCH REFERENCES

ALR. —

Referendum of general legislative act to people in absence of constitutional requirement in that regard, 76 A.L.R. 1053 .

What amounts to “restaurant” or “restaurant business” within intoxicating liquor law, 105 A.L.R. 566 .

Change of “wet” or “dry” status fixed by local option election by change of name, character, or boundaries of voting unit, without later election, 25 A.L.R.2d 863.

Power of legislative body to amend, repeal, or abrogate initiative or referendum measure, or to enact measure defeated on referendum, 33 A.L.R.2d 1118.

3-4-90. Authorization by counties or municipalities of issuance of licenses for sale of distilled spirits by the drink generally; procedure.

  1. Each county or municipality may authorize, through proper resolution or ordinance, the issuance of licenses to sell distilled spirits by the drink for consumption only on the premises where sold; except as provided in Code Section 3-9-11 for in-room service by hotels, retail consumption dealers shall not buy or sell in packages of 50 milliliters.
    1. Except as otherwise provided in this subsection, a county or municipality shall adopt such resolutions or ordinances only after the authority to do so has been authorized as provided in either Code Section 3-4-91 or 3-4-92.
      1. The governing authority of every county having a population of not less than 50,000 nor more than 53,000 according to the United States decennial census of 1990 or any future such census and the governing authority of every municipality within every such county, through proper resolution or ordinance, may authorize the issuance of licenses to sell alcoholic beverages by the drink for consumption only on the premises where sold. Every such governing authority shall have full power and authority to adopt all reasonable rules and regulations governing the qualifications and criteria for the issuance of any such licenses and shall further have the power and authority to promulgate reasonable rules and regulations governing the conduct of any licensee provided for in this subparagraph, including, but not limited to, the regulation of hours of business, types of employees, and other matters which may fall within the police powers of such counties and municipalities. Those persons who are duly licensed as wholesalers under this title shall be authorized to sell distilled spirits at wholesale prices to any person or persons licensed as provided in this subparagraph; and the person or persons licensed under this subparagraph shall be authorized to purchase distilled spirits from a licensed wholesaler at wholesale prices.
      2. No resolution or ordinance adopted pursuant to subparagraph (A) of this paragraph shall become effective until the governing authority of the county or municipality submits to the qualified electors of the county or municipality the question of whether the ordinance or resolution shall be approved or rejected. If in the election a majority of the electors voting on the question vote for approval, the ordinance or resolution shall become effective at such time as is provided for in the resolution or ordinance; otherwise, it shall be of no force and effect.

History. — Ga. L. 1964, p. 771, § 1; Ga. L. 1969, p. 1140, §§ 1-4; Ga. L. 1972, p. 207, § 13; Ga. L. 1973, p. 610, § 1; Code 1933, § 5A-2901, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 38; Ga. L. 1982, p. 592, §§ 1, 2; Ga. L. 1983, p. 3, § 4; Ga. L. 1984, p. 22, § 3; Ga. L. 1992, p. 1018, §§ 1, 2; Ga. L. 1992, p. 2929, § 2; Ga. L. 1994, p. 237, § 2; Ga. L. 1994, p. 553, § 3; Ga. L. 1995, p. 740, § 1.

RESEARCH REFERENCES

ALR. —

Validity of statutory classifications based on population-intoxicating liquor statutes, 100 A.L.R.3d 850.

3-4-91. Procedure for authorization of sale in counties and municipalities in which package sales lawful; procedure for nullifying prior approval and authorization of sales by the drink.

  1. In every county and municipality in which package sales of distilled spirits are lawful, sales of distilled spirits as provided in this article may be authorized after approval as provided in this Code section.
      1. In the event the governing authority of any municipality or county coming under the provisions of this Code section desires to exercise the powers authorized by Code Section 3-4-90, the governing authority, through the election superintendent, shall conduct a referendum election for the purpose of determining whether or not these powers shall be exercised. Any such governing authority shall notify the election superintendent of the county or the municipality, as the case may be, of the referendum, by forwarding to the superintendent a copy of a resolution of such governing authority calling for such a referendum election. Upon receipt of such resolution, it shall be the duty of such election superintendent to set a date and to issue the call for an election for the purpose of submitting the question of whether or not the governing authority of the county or municipality shall be authorized to issue licenses to sell distilled spirits for beverage purposes by the drink, such sales to be for consumption only on the premises. The superintendent shall set the date of the referendum election for not less than 30 nor more than 60 days after the call. The referendum may be held as a special referendum or may be held at the time of holding any other primary or election in such county or municipality, if such other primary or election is to be held not more than 60 days after the call. Notice of the call for the referendum shall be published by the superintendent in the legal organ of the county or, in the case of a municipality, in a newspaper of general circulation in the municipality. The election superintendent shall also cause the date and purpose of the referendum to be published in the official organ of the county or, in the case of a municipality, in a newspaper of general circulation in the municipality once a week for two weeks immediately preceding the date of the election. The ballot shall have printed thereon the following:

        Click to view

      2. All persons desiring to vote in favor shall vote “Yes,” and those persons opposed shall vote “No.” If more than one-half of the votes cast on such question are in favor of issuing licenses to sell distilled spirits for beverage purposes by the drink, such sales to be for consumption only on the premises, then the governing authority shall, in accordance with this Code section, issue such licenses; otherwise, no license shall be issued. If held as a special election, it shall be the duty of the election superintendent to hold and conduct such election under the same rules that govern special elections as provided in Chapter 2 of Title 21, the “Georgia Election Code.” It shall be his further duty to canvass the returns and declare and certify the results of the election to the Secretary of State. The expense for the election shall be borne by the county or the municipality conducting the election.
      3. Following the expiration of one year after any election is held which results in the disapproval of sales as provided in this article, another election on this question shall be held if the governing authority, as provided in subparagraph (A) of this paragraph, forwards a resolution to the election superintendent calling for such a referendum.
      1. In the event the governing authority of any municipality or county coming under the provisions of this Code section does not adopt a resolution directing the election superintendent to issue a call for the referendum provided for in paragraph (1) of this subsection, then, upon a written petition containing the signatures of 15 percent of the registered and qualified voters of any municipality or county coming within the provisions of this Code section being filed with the appropriate election superintendent, such election superintendent, upon validation of the petition, shall be required to call and hold a referendum election for the purpose of submitting to the qualified voters of the municipality or the county, as the case may be, the question of whether or not the governing authority shall be authorized to issue licenses to sell distilled spirits for beverage purposes by the drink, such sales to be for consumption only on the premises. A petition shall not be amended, supplemented, or returned after presentation to the appropriate authority. “Validation” shall, for the purposes of this Code section, be the procedure in which the election superintendent determines whether each signature on the petition is the name of a registered and qualified voter. For purposes of this Code section the required number of signatures of registered voters of a political subdivision shall be computed based on the number of voters qualified to vote at the general election immediately preceding the presentation of the petition. Actual signers of the petition shall be registered and qualified to vote in the referendum election sought by the petition. Upon determining that the petition contains a sufficient number of valid signatures, the election superintendent shall set the date of the referendum election for not less than 30 nor more than 60 days after the call. The referendum may be held as a special referendum election or may be held at the time of holding any other primary or election in such county or municipality, if such other primary or election is to be held not more than 60 days after the call. Notice of the call for the referendum shall be published by the superintendent in the legal organ of the county or, in the case of a municipality, in a newspaper of general circulation in the municipality. The election superintendent shall also cause the date and purpose of the referendum to be published in the official organ of the county or, in the case of a municipality, in a newspaper of general circulation in the municipality once a week for two weeks immediately preceding the date of the election. The ballot shall have printed thereon the following:

        Click to view

      2. All persons desiring to vote in favor shall vote “Yes,” and those persons opposed shall vote “No.” If more than one-half of the votes cast on such question are in favor of issuing licenses to sell distilled spirits for beverage purposes by the drink, such sales to be for consumption only on the premises, then the governing authority shall, in accordance with this Code section, issue such licenses; otherwise, no license shall be issued. If conducted as a special election, it shall be the duty of the election superintendent to hold and conduct such election under the same rules that govern special elections as provided in Chapter 2 of Title 21, the “Georgia Election Code.” It shall be his further duty to canvass the returns and declare and certify the results of the election to the Secretary of State. The expense for the election shall be borne by the county or the municipality conducting the election.
      3. Following the expiration of two years after any election is held which results in the disapproval of sales as provided in this article, another election on this question shall be held if another petition, as provided in subparagraph (A) of this paragraph, is filed with the appropriate election superintendent.
  2. In any municipality or county which has at any time held an election in accordance with subsection (b) of this Code section resulting in the majority of the votes being cast in favor of sales of distilled spirits by the drink, the election superintendent of the municipality or county, upon a petition signed by at least 15 percent of the registered, qualified voters of the municipality or county, shall proceed to call another election for the purpose of nullifying the previous election in the same manner as prescribed in subsection (b) of this Code section. No election shall be called or held within two years after the date of the declaration by the election superintendent of the results of the previous election held for the purposes of this Code section.

“[ ] YES Shall the governing authority of be authorized to issue licenses [ ] NO to sell distilled spirits for beverage purposes by the drink, such sales to be for consumption only on the premises?”

“[ ] YES Shall the governing authority of be authorized to issue licenses [ ] NO to sell distilled spirits for beverage purposes by the drink, such sales to be for consumption only on the premises?”

History. — Ga. L. 1964, p. 771, § 1; Ga. L. 1969, p. 1140, §§ 1-4; Ga. L. 1972, p. 207, § 13; Ga. L. 1973, p. 610, § 1; Code 1933, § 5A-2902, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1982, p. 1463, §§ 4, 11; Ga. L. 1983, p. 3, § 4; Ga. L. 1983, p. 806, § 3; Ga. L. 1996, p. 830, § 2; Ga. L. 1998, p. 295, § 3.

JUDICIAL DECISIONS

Ga. L. 1964, Ex. Sess., p. 771, § 1 (see now O.C.G.A. § 3-4-90 et seq.) grants no authority to commissioner to license sale of alcoholic beverages for consumption on the premises. Mousetrap of Atlanta, Inc. v. Blackmon, 129 Ga. App. 805 , 201 S.E.2d 330 (1973).

The phrases and words of Ga. L. 1964, Ex. Sess., p. 771, § 1 (see now O.C.G.A. § 3-4-90 et seq.) do not show any repugnance to Ga. L. 1937-38, Ex. Sess., p. 103, § 14 (see now O.C.G.A. § 3-3-20 ), which make the sale of any liquor on Sunday a criminal offense. Hawes v. Dinkler, 224 Ga. 785 , 164 S.E.2d 799 (1968).

OPINIONS OF THE ATTORNEY GENERAL

Municipalities are not authorized to receive funds from the sponsor of a petition calling for a referendum on the question of the sale of distilled spirits by the drink to reimburse the municipality for the costs and expense of holding the referendum. 1984 Op. Att'y Gen. No. 84-36.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 58 et seq.

ALR. —

What amounts to “restaurant” or “restaurant business” within intoxicating liquor law, 105 A.L.R. 566 .

Power of legislative body to amend, repeal, or abrogate initiative or referendum measure, or to enact measure defeated on referendum, 33 A.L.R.2d 1118.

3-4-92. Procedure for authorization of sale in counties and municipalities in which package sales are not lawful; procedure for nullifying prior approval and authorization of sales by the drink.

  1. In every county and municipality in which package sales of distilled spirits are not lawful, sales of distilled spirits as provided in this article may be authorized after approval as provided in this Code section.
      1. In the event the governing authority of any municipality or county coming under the provisions of this Code section desires to exercise the powers authorized by Code Section 3-4-90, the governing authority through the appropriate election superintendent shall conduct a referendum election for the purpose of determining whether or not these powers shall be exercised. Any such governing authority shall notify the election superintendent of the county or the municipality, as the case may be, of the referendum by forwarding to the superintendent a copy of a resolution of such governing authority calling for such a referendum election. It shall be the duty of such election superintendent to issue the call and set the date for an election in accordance with Code Section 21-2-540 for the purpose of submitting the question of whether or not the governing authority of the county or municipality shall be authorized to issue licenses to sell distilled spirits for beverage purposes by the drink, such sales to be for consumption only on the premises. Notice of the call for the referendum shall be published by the superintendent in the legal organ of the county or, in the case of a municipality, in a newspaper of general circulation in the municipality. The election superintendent shall also cause the date and purpose of the referendum to be published in the official organ of the county or, in the case of a municipality, in a newspaper of general circulation in the municipality once a week for two weeks immediately preceding the date of the election. The ballot shall have printed thereon the following:

        Click to view

      2. All persons desiring to vote in favor shall vote “Yes,” and those persons opposed shall vote “No.” If more than one-half of the votes cast are in favor of issuing licenses to sell distilled spirits for beverage purposes by the drink, such sale to be for consumption only on the premises, then the governing authority shall in accordance with this Code section issue such licenses; otherwise, no license shall be issued. It shall be the duty of the election superintendent to hold and conduct such election under the provisions of Chapter 2 of Title 21, the “Georgia Election Code.” It shall be the superintendent’s further duty to canvass the returns and declare and certify the results of the election to the Secretary of State. The expense of the election shall be borne by the county or the municipality conducting the election.
      3. Following the expiration of two years after any election is held which results in the disapproval of sales as provided in this article, another election on this question shall be held if the governing authority, as provided in subparagraph (A) of this paragraph, forwards a resolution to the election superintendent calling for such a referendum.
      4. Nullification of a referendum approving such sales held pursuant to this paragraph shall be accomplished only as provided in subsection (c) of this Code section.
      1. In the event the governing authority of any municipality or county coming under the provisions of this Code section does not adopt a resolution directing the election superintendent to issue a call for the referendum provided for in paragraph (1) of this subsection, then, upon a written petition containing the signatures of 35 percent of the registered and qualified voters of any municipality or county described in subsection (a) of this Code section being filed with the appropriate election superintendent, such election superintendent, upon validation of the petition, shall be required to call and hold a referendum election for the purpose of submitting to the qualified voters of the municipality or the county, as the case may be, the question of whether or not the governing authority shall be authorized to issue licenses to sell distilled spirits for beverage purposes by the drink, such sales to be for consumption only on the premises. A petition shall not be amended, supplemented, or returned after presentation to the appropriate authority. “Validation” shall, for the purposes of this Code section, be the procedure in which the election superintendent determines whether each signature on the petition is the name of a registered and qualified voter. For the purposes of this Code section, the required number of signatures of registered voters of a political subdivision shall be computed based on the number of voters qualified to vote at the general election immediately preceding the presentation of the petition. Actual signers of the petition shall be registered and qualified to vote in the referendum election sought by the petition. Upon determining that the petition contains a sufficient number of valid signatures, the superintendent shall issue the call and set the date of the referendum election in accordance with Code Section 21-2-540. Notice of the call for the referendum shall be published by the superintendent in the legal organ of the county or, in the case of a municipality, in a newspaper of general circulation in the municipality. The election superintendent shall also cause the date and purpose of the referendum to be published in the official organ of the county or, in the case of a municipality, in a newspaper of general circulation in the municipality, once a week for two weeks immediately preceding the date of the election. The ballot shall have printed thereon the following:

        Click to view

      2. All persons desiring to vote in favor shall vote “Yes,” and those persons opposed shall vote “No.” If more than one-half of the votes cast on such a question are in favor of issuing licenses to sell distilled spirits for beverage purposes by the drink, such sales to be for consumption only on the premises, then the governing authority shall in accordance with this Code section issue such licenses; otherwise no license shall be issued. It shall be the duty of the election superintendent to hold and conduct such election under the same rules that govern special elections as provided in Chapter 2 of Title 21, the “Georgia Election Code.” It shall further be the superintendent’s duty to canvass the returns and declare and certify the results of the election to the Secretary of State. The expense for the election shall be borne by the county or the municipality conducting the election.
      3. Following the expiration of two years after any election is held which results in the disapproval of sales as provided in this article, another election on this question shall be held if another petition, as provided in subparagraph (A) of paragraph (2) of this subsection, is filed with the appropriate election superintendent.
      4. Nullification of a referendum approving such sales held pursuant to this paragraph shall be accomplished only as provided in subsection (c) of this Code section.
  2. In any municipality or county which has at any time held an election in accordance with subsection (b) of this Code section resulting in a majority of the votes being cast in favor of sales of distilled spirits by the drink, the election superintendent of the municipality or county, upon a petition signed by at least 35 percent of the registered qualified voters of the municipality or county, shall proceed to call another election for the purpose of nullifying the previous election in the same manner as prescribed by paragraph (2) of subsection (b) of this Code section. No election shall be called or held within two years after the date of the declaration by the election superintendent of the results of the previous election held for the purposes of this Code section.

“[ ] YES Shall the governing authority of be authorized to issue licenses [ ] NO to sell distilled spirits for beverage purposes by the drink, such sales to be for consumption only on the premises?”

“[ ] YES Shall the governing authority of be authorized to issue licenses to sell distilled spirits for beverage pur- [ ] NO poses by the drink, such sales to be for consumption only on the premises?”

History. — Code 1933, § 5A-2903, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1982, p. 1855, §§ 2, 4; Ga. L. 1983, p. 806, § 4; Ga. L. 1995, p. 753, § 1; Ga. L. 1998, p. 295, § 3.

Code Commission notes. —

Pursuant to Code Section 28-9-5, in 1995, a comma was deleted following “governing authority shall” in the second sentence of subparagraph (b)(2)(B).

JUDICIAL DECISIONS

Effect of county referendum on municipality. —

A municipality which has not conducted a local referendum, but is located within a county which has held a referendum, is not empowered by the result of the county referendum to allow liquor by the drink sales. Price v. City of Snellville, 253 Ga. 166 , 317 S.E.2d 834 (1984).

OPINIONS OF THE ATTORNEY GENERAL

Municipalities are not authorized to receive funds from the sponsor of a petition calling for a referendum on the question of the sale of distilled spirits by the drink to reimburse the municipality for the costs and expense of holding the referendum. 1984 Op. Att'y Gen. No. 84-36.

Municipal citizens voting in county-wide elections. — Registered and qualified voters in municipal elections may sign petitions and vote in both municipal and county elections held pursuant to O.C.G.A. § 3-4-41 , but a county referendum is only binding on the unincorporated areas of the county. 1985 Op. Atty Gen. No. U85-48.

Single petition for approval of package sales, and sales by the drink, allowed. — A single petition may be used for the purpose of invoking the referendum procedures for approval of package sales of distilled spirits and sales of distilled spirits by the drink for consumption on the premises if the petition clearly sets forth that it is for both purposes and the questions are presented separately in the referendum in the manner prescribed by law. 1985 Op. Att'y Gen. No. 85-22.

3-4-93. Municipalities in wet counties.

Any municipality which lies wholly or partially within a county which has approved the sale of distilled spirits by the drink for consumption only on the premises in a county-wide referendum as provided in this article and which, on January 1, 1985, was issuing licenses permitting the sale of distilled spirits by the drink for consumption only on the premises shall be authorized to exercise the powers and shall be subject to the provisions contained in this title relating to the sale of distilled spirits by the drink for consumption only on the premises.

History. — Code 1981, § 3-4-93 , enacted by Ga. L. 1986, p. 1083, § 2.

Law reviews. —

For annual survey of local government law, see 38 Mercer L. Rev. 289 (1986).

PART 2 Licenses

3-4-110. Adoption of local rules and regulations governing issuance of licenses and conduct of licensees.

The governing authority of every county and municipality authorized to issue licenses as provided in this article shall have the power and authority to adopt all reasonable rules and regulations governing the qualifications and criteria for the issuance of any licenses for the sale of distilled spirits by the drink and shall further have the power to promulgate reasonable rules and regulations governing the conduct of any licensee provided for in this article, including, but not limited to, the regulation of hours of business, types of employees, and other matters which may fall within the police powers of such municipalities or counties. These powers shall be exercised only after the authority to do so has been granted pursuant to the procedures prescribed in Code Section 3-4-91 or 3-4-92.

History. — Ga. L. 1964, p. 771, § 1; Ga. L. 1969, p. 1140, §§ 1-4; Ga. L. 1972, p. 207, § 13; Ga. L. 1973, p. 610, § 1; Code 1933, § 5A-2904, enacted by Ga. L. 1980, p. 1573, § 1.

Law reviews. —

For comment on Moose Lodge v. Irvis, 407 U.S. 163, 92 S. Ct. 1965 , 32 L. Ed. 2 d 627 (1972), holding the granting of a liquor license to a discriminatory private club insufficient to constitute state action prohibited by the fourteenth amendment, see 22 J. of Pub. L. 281 (1973).

JUDICIAL DECISIONS

Effect of county referendum on municipality. —

A municipality which has not conducted a local referendum, but is located within a county which has held a referendum, is not empowered by the result of the county referendum to allow liquor by the drink sales. Price v. City of Snellville, 253 Ga. 166 , 317 S.E.2d 834 (1984).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 15, 90 et seq.

ALR. —

Power to exact license fees or impose a penalty for benefit of private individual or corporation, 13 A.L.R. 828 ; 19 A.L.R. 205 .

Contributory negligence as defense to action based on violation of statute or ordinance as to condition of premises of seller of intoxicating liquor, 144 A.L.R. 827 .

Validity of statute or rule which makes specified conduct or condition a ground for cancellation or suspension of license, irrespective of licensee’s personal fault, 3 A.L.R.2d 107.

Regulations forbidding employees or entertainers from drinking or mingling with patrons, or soliciting drinks from them, 99 A.L.R.2d 1216.

3-4-111. Sale by wholesalers to licensees; purchase by licensees from wholesalers; declaration of contraband.

  1. Those persons who are duly licensed as wholesalers of distilled spirits under this title may sell distilled spirits at wholesale prices to any person or persons licensed as provided in this article. Persons licensed under this article may purchase distilled spirits from a licensed wholesaler at wholesale prices.
  2. Any distilled spirits possessed, sold, or offered for sale by a retail dealer or retail consumption dealer which are purchased or otherwise acquired from any person other than a wholesale dealer authorized to do business under this chapter are declared to be contraband and shall be seized and disposed of by the commissioner in the manner provided in this title.

History. — Ga. L. 1964, p. 771, § 1; Ga. L. 1969, p. 1140, §§ 1-4; Ga. L. 1972, p. 207, § 13; Ga. L. 1973, p. 610, § 1; Code 1933, § 5A-2905, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 2012, p. 827, § 3/HB 1066.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 102, 201, 209.

3-4-111.1. Occupational license tax upon retail consumption dealers; annual payment; application.

  1. An annual occupational license tax in the amount of $100.00 is imposed upon each retail consumption dealer in this state.
  2. The annual occupational license tax shall be paid for each place of business operated. An application for a retail consumption dealer’s license required pursuant to this title along with the payment of the tax required by subsection (a) of this Code section shall be submitted to the department immediately upon assuming control of the place of business and annually thereafter for so long as the business is operated.

History. — Code 1933, § 5A-2921, enacted by Ga. L. 1981, p. 1269, § 39; Ga. L. 2012, p. 827, § 4/HB 1066.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 168 et seq.58 Am. Jur. 2d, Occupations, Trades, and Professions, § 8 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 400 et seq., 201, 202. 53 C.J.S., Licenses, §§ 22, 23, 42.

PART 3 Excise Taxation

Cross references. —

Sales and use taxes, T. 48, C. 8.

OPINIONS OF THE ATTORNEY GENERAL

Imposition of tax by county in city not imposing such tax. — Under Ga. L. 1977, Ex. Sess., p. 744 (see now O.C.G.A. § 3-4-130 et seq.), a county may impose excise tax upon sale of alcoholic beverages within a city in the county which has not imposed a similar tax, until such time as city does impose such tax. 1978 Op. Atty Gen. No. U78-4.

3-4-130. Imposition of tax by municipalities authorized; rate of tax.

  1. The governing authority of each municipality in which the sale of distilled spirits by the drink is permitted may impose, levy, and collect an excise tax upon the sale of the beverages, which tax shall not exceed 3 percent of the charge to the public for the beverages.
  2. This Code section shall not apply to the sale of fermented beverages made in whole or in part from malt or any similar fermented beverage.

History. — Ga. L. 1977, p. 744, § 1; Code 1933, § 5A-2906, enacted by Ga. L. 1980, p. 1573, § 1.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 168, 169. 67B Am. Jur. 2d, Sales and Use Taxes, §§ 8, 34, 80 et seq., 134 et seq..

ALR. —

Excise tax on foreign corporation engaged exclusively in interstate commerce measured by net income from business within the taxing state, 44 A.L.R. 1228 .

3-4-131. Imposition of tax by counties authorized; rate of tax; taxation by both county and municipality located within county.

  1. The governing authority of each county in which the sale of distilled spirits by the drink is permitted may impose, levy, and collect an excise tax upon the sale of the beverages, which tax shall not exceed 3 percent of the charge to the public for the beverages.
  2. No tax authorized by subsection (a) of the Code section may be imposed, levied, and collected in any portion of a county in which the tax provided for in Code Section 3-4-130 is being imposed, levied, and collected.
  3. The tax authorized by this Code section shall not apply to the sale of fermented beverages made in whole or in part from malt or any similar fermented beverage.

History. — Ga. L. 1977, p. 744, § 2; Code 1933, § 5A-2907, enacted by Ga. L. 1980, p. 1573, § 1.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 168, 169. 67B Am. Jur. 2d, Sales and Use Taxes, §§ 8, 34, 80 et seq., 134 et seq.

3-4-132. Manner of imposition, payment, and collection of tax.

The rate of taxation, the manner of its imposition, payment, and collection, and all other procedures related to the tax authorized by Code Sections 3-4-130 and 3-4-131 shall be as provided for by each county or municipality electing to exercise powers conferred by Code Sections 3-4-130 and 3-4-131.

History. — Ga. L. 1977, p. 744, § 3; Code 1933, § 5A-2908, enacted by Ga. L. 1980, p. 1573, § 1.

RESEARCH REFERENCES

Am. Jur. 2d. —

67B Am. Jur. 2d, Sales and Use Taxes, §§ 8, 34, 80 et seq., 134 et seq.

3-4-133. Allowance and reimbursement to dealers collecting tax of percentage of tax due.

Dealers collecting the tax authorized by Code Sections 3-4-130 and 3-4-131 shall be allowed a percentage of the tax due and accounted for and shall be reimbursed in the form of a deduction in submitting, reporting, and paying the amount due, if the amount is not delinquent at the time of payment. The rate of the deduction shall be the same rate authorized for deductions from state tax under Chapter 8 of Title 48.

History. — Ga. L. 1977, p. 744, § 4; Code 1933, § 5A-2909, enacted by Ga. L. 1980, p. 1573, § 1.

RESEARCH REFERENCES

ALR. —

Excise tax on foreign corporation engaged exclusively in interstate commerce measured by net income from business within the taxing state, 44 A.L.R. 1228 .

Article 6 Designation of Sales Territories and Wholesalers for Out-of-State Brands

Editor’s notes. —

The Act which enacted this article stated that the article was to be added to the end of Chapter 4 of Title 3. However, the Code sections comprising the article were enacted as §§ 3-6-150 through 3-6-153, which designations were not consistent with placement in Chapter 4. Therefore, these Code sections were redesignated as §§ 3-4-150 through 3-4-153 by Ga. L. 1985, p. 149, § 3, effective February 12, 1985.

3-4-150. Short title.

This article shall be known and may be cited as the “Georgia Distilled Spirits Distribution Act.”

History. — Code 1981, § 3-6-150, enacted by Ga. L. 1984, p. 375, § 1; Code 1981, § 3-4-150 , as redesignated by Ga. L. 1985, p. 149, § 3.

3-4-151. Purposes and policies.

This article is promulgated pursuant to the authority granted to the state under the provisions of the Twenty-first Amendment to the United States Constitution specifically for the following purposes and policies:

  1. To prevent unfair business practices, discrimination, and undue control of one segment of the distilled spirits industry by any other segment;
  2. To foster vigorous and healthy competition in the distilled spirits industry;
  3. To promote and keep alive a sound and stable system of distribution of distilled spirits to the public;
  4. To protect public revenues by facilitating the collection and accountability of state and local excise taxes; and
  5. To promote the public health, safety, and welfare of the people of the State of Georgia.

History. — Code 1981, § 3-6-151, enacted by Ga. L. 1984, p. 375, § 1; Code 1981, § 3-4-151 , as redesignated by Ga. L. 1985, p. 149, § 3.

3-4-152. Submission of labels; designation of sales territories and exclusive wholesale distributors; approval by commissioner.

  1. Every manufacturer or shipper shipping distilled spirits for the first time into the state shall:
    1. Submit to the commissioner one label for each brand of distilled spirits to be shipped for the first time by the manufacturer or shipper into this state;
    2. Designate in the application for registration the sales territories for each of its brands sold in this state; and
    3. Name one licensed wholesaler in each territory who shall be the exclusive distributor of the brand within the territory.
  2. Designations of wholesalers and wholesalers’ territories as provided in this Code section shall be initially approved by the commissioner and shall not be changed or initially disapproved except for cause. The commissioner shall determine cause after a hearing under regulations promulgated by the commissioner for such purposes.

History. — Code 1981, § 3-6-152, enacted by Ga. L. 1984, p. 375, § 1; Code 1981, § 3-4-152 , as redesignated by Ga. L. 1985, p. 149, § 3.

3-4-153. Regulations.

The commissioner shall have the authority to adopt such regulations as are consistent with this article.

History. — Code 1981, § 3-6-153, enacted by Ga. L. 1984, p. 375, § 1; Code 1981, § 3-4-153 , as redesignated by Ga. L. 1985, p. 149, § 3.

Article 7 Sales by the Drink in Certain Municipalities; Withdrawal

3-4-160. Municipalities in wet counties.

    1. Except as provided in subsection (c) of this Code section, any municipality which lies wholly or partially within a county which has approved in a county-wide referendum the manufacture, sale, or distribution of distilled spirits as provided in Article 3 of this chapter may, by ordinance or resolution and without the necessity of conducting a separate referendum, authorize the manufacture, sale, or distribution of distilled spirits and may exercise the powers contained in this title relating to the manufacture, sale, or distribution of distilled spirits.
    2. In any municipality in which the manufacture, sale, or distribution of distilled spirits is authorized as provided in this Code section, such manufacture, sale, or distribution may, by ordinance or resolution adopted by the governing authority of the municipality, be prohibited.
    1. Except as provided in subsection (c) of this Code section, any municipality which lies wholly or partially within a county which has approved in a county-wide referendum the sale of distilled spirits by the drink for consumption only on the premises as provided in Part 1 of Article 5 of this chapter may, by ordinance or resolution and without the necessity of conducting a separate referendum, authorize the sale of distilled spirits by the drink for consumption only on the premises and may exercise the powers contained in this title relating to the sale of distilled spirits by the drink for consumption only on the premises.
    2. In any municipality in which the sale of distilled spirits by the drink for consumption only on the premises is authorized as provided in this Code section, such sales may, by ordinance or resolution adopted by the governing authority of the municipality, be prohibited.
  1. A municipality shall not be authorized to approve the manufacture, sale, or distribution of distilled spirits as provided in subsection (a) of this Code section or the sale of distilled spirits by the drink for consumption only on the premises as provided in subsection (b) of this Code section unless a majority of the electors voting in the county-wide referendum election who reside in the municipality voted in favor of approving the manufacture, sale, or distribution of distilled spirits or in favor of approving the sale of distilled spirits by the drink for consumption only on the premises.

History. — Code 1981, § 3-4-160 , enacted by Ga. L. 1986, p. 1083, § 3; Ga. L. 1987, p. 913, § 1.

Law reviews. —

For annual survey of local government law, see 38 Mercer L. Rev. 289 (1986).

Article 8 Tastings

3-4-180. Tastings of distilled spirits; definitions; general provisions; prohibited sales; administration.

Repealed by Ga. L. 2017, p. 406, § 5/SB 85, effective September 1, 2017.

Editor’s notes. —

This Code section was based on Ga. L. 2012, p. 682, § 1/HB 514; Ga. L. 2015, p. 317, § 6/SB 63.

Ga. L. 2018, p. 1112, § 3(2)/SB 365, part of an Act to revise, modernize, and correct the Code, repealed the reservation of this Code section, effective May 8, 2018.

CHAPTER 5 Malt Beverages

Law reviews. —

For note, “Beer, Liquor, or a Little Bit of Both? Getting to the Bottom of Properly Classifying Flavored Malt Beverages in the United States and Australia,” see 39 Ga. J. Int’l & Comp. L. 471 (2011).

Administrative rules and regulations. —

Malt beverage regulations, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Department of Revenue, Alcohol and Tobacco Tax Unit, Chapter 560-2-7.

JUDICIAL DECISIONS

Editor’s notes. —

In light of the similarity of the statutory provisions, annotations decided under former Ga. L. 1935, Ex. Sess., p. 73 are included in the annotations for this chapter.

Due process not denied. —

This chapter does not deprive petitioner of due process of law, but provides for privilege which may be granted or denied in discretion of local authorities. Tate v. Seymour, 181 Ga. 801 , 184 S.E. 598 (1936) (decided under former Ga. L. 1935, Ex. Sess., p. 73).

The terms “malt beverage” and “beer” are, in effect, synonymous. Bilbo v. State, 73 Ga. App. 680 , 37 S.E.2d 812 (1946); Turnbow v. State, 153 Ga. App. 479 , 265 S.E.2d 832 (1980) (decided under former Ga. L. 1935, Ex. Sess., p. 73).

Possession or sale of malt beverages is not illegal, provided seller has been licensed. Carter v. State, 60 Ga. App. 758 , 5 S.E.2d 244 (1939) (decided under former Ga. L. 1935, Ex. Sess., p. 73).

OPINIONS OF THE ATTORNEY GENERAL

In light of the similarity of the statutory provisions, annotations decided under former Ga. L. 1935, Ex. Sess., p. 73 are included in the annotations for this Code chapter.

Home brew is a malt beverage and its manufacture is subject to this chapter notwithstanding that the alcoholic content exceeds 6 percent by volume. 1962 Ga. Op. Att'y Gen. 297 (decided under former Ga. L. 1935, Ex. Sess., p. 73).

Referendum for sale of beer. — There is no provision in this chapter for referendum relative to sale of beer in any county or municipality, and if such referendum is held it is not binding on governing authorities. 1952-53 Ga. Op. Att'y Gen. 457 (decided under former Ga. L. 1935, Ex. Sess., p. 73).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 7, 8, 9, 187, 317. 71 Am. Jur. 2d, State and Local Taxation, §§ 178 et seq., 309 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 14.

ALR. —

Test of intoxicating character of liquor, 4 A.L.R. 1137 ; 11 A.L.R. 1233 ; 19 A.L.R. 512 ; 36 A.L.R. 725 ; 91 A.L.R. 513 .

Criminal responsibility of husband for violation of liquor law by wife, 19 A.L.R. 136 ; 27 A.L.R. 312 .

Article 1 General Provisions

3-5-1. Definitions.

As used in this chapter, the term:

  1. “Barrel” means 31 gallons.
  2. “Brewer” means a manufacturer of malt beverages.
  3. “Case” means a box or receptacle containing not more than 288 ounces of malt beverages on the average.

History. — Code 1933, § 5A-4101, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 2017, p. 406, § 7/SB 85.

The 2017 amendment, effective September 1, 2017, added paragraph (1); and redesignated former paragraphs (1) and (2) as present paragraphs (2) and (3), respectively.

3-5-2. Determination as to when possession occurs.

For purposes of this chapter, with respect to malt beverages manufactured within this state, possession occurs when the product is first identifiable as a malt beverage, in accordance with this title and such regulations as may be promulgated by the commissioner pursuant to this title. With respect to malt beverages shipped from outside this state to a destination within this state, possession in the consignee occurs when the malt beverage first physically enters the state or when the risk of loss from destruction or casualty to the malt beverage is shifted from the consignor to the consignee located in this state, in accordance with the contract of the parties and the substantive commercial laws of this state, whichever event occurs first.

History. — Code 1933, § 5A-4102, enacted by Ga. L. 1980, p. 1573, § 1.

Cross references. —

Placement of risks of loss in absence of breach of contract, § 11-2-509 .

3-5-3. Malt beverages upon which taxes not paid and motor vehicles, watercraft, or aircraft used in transporting same declared contraband.

Malt beverages in quantities exceeding the amount specified in Code Section 3-3-8, upon which the taxes imposed by or authorized pursuant to this chapter have not been paid in this state, are declared to be contraband; and any motor vehicle, watercraft, or aircraft used in transporting such beverages in excess of the amount specified in Code Section 3-3-8 are also declared to be contraband and subject to seizure and disposition as provided by this title.

History. — Ga. L. 1937, p. 148, § 4; Ga. L. 1971, p. 817, § 1; Ga. L. 1976, p. 476, § 1; Ga. L. 1978, p. 1424, § 1; Code 1933, § 5A-4103, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 40.

3-5-4. Production of malt beverages in private residences; consumption; transportation and delivery; home-brew special events.

    1. Malt beverages may be produced by a person in his or her private residence subject to the limitations provided in this Code section.
    2. The total quantity of malt beverages that may be produced in any private residence shall be as follows:
      1. Not more than 100 gallons per calendar year if there is only one person of legal drinking age living in such residence; or
      2. Not more than 200 gallons per calendar year if there are two or more persons of legal drinking age living in such residence;

        provided, however, that no more than 50 gallons shall be produced in a 90 day period.

  1. Except as provided for in subsections (d) and (e) of this Code section, malt beverages produced in compliance with this Code section may only be consumed at the residence where produced. Such malt beverages may only be consumed by persons of legal drinking age.
  2. Malt beverages produced under the provisions of this Code section may be removed from the residence where produced for transportation and delivery by the producer for use at home-brew special events in a quantity not to exceed 25 gallons, provided that such malt beverages are securely sealed in one or more containers and clearly labeled with the following information:
    1. The name of the producer;
    2. The address of the residence at which it was produced;
    3. The name and address of the home-brew special event to which it is being transported; and
    4. The permit number under which the home-brew special event is being held.

      If transported in a motor vehicle, the securely sealed containers shall be placed in a locked glove compartment, a locked trunk, or the area behind the last upright seat of a motor vehicle that is not equipped with a trunk.

  3. Malt beverages produced under the provisions of this Code section may be removed from the residence where produced for transportation and delivery by the producer to a location not licensed under this title and for which a permit has not been issued pursuant to subsection (e) of this Code section; provided that not more than 128 ounces of such malt beverages produced in the same residence shall be transported at one time; and provided, further, that such malt beverages shall be securely sealed in one or more containers and clearly labeled with the following information:
    1. The name of the producer; and
    2. The address of the residence at which it was produced.

      If transported in a motor vehicle, the securely sealed containers shall be placed in a locked glove compartment, a locked trunk, or the area behind the last upright seat of a motor vehicle that is not equipped with a trunk.

    1. Notwithstanding any other provision of this title to the contrary, in all counties and municipalities in which the sale of malt beverages is lawful, the local governing authority may issue a home-brew special event permit for the holding of home-brew special events, including contests, tastings, and judgings. Any governing authority desiring to allow home-brew special events to be held within its jurisdiction shall provide by resolution or ordinance for the issuance of home-brew special event permits and shall specify the events that shall qualify as home-brew special events. A home-brew special event permit shall cost $50.00 and shall be valid for not more than six events per calendar year.
    2. Home-brew special events shall not be held at any location licensed under this title.
    3. Consumption of malt beverages at home-brew special events shall be limited solely to malt beverages produced pursuant to this Code section, and such malt beverages shall only be consumed by the participants in and judges of the home-brew special events.
  4. Malt beverages produced pursuant to this Code section shall not be sold, offered for sale, or made available for consumption by the general public.

History. — Code 1981, § 3-5-4 , enacted by Ga. L. 1993, p. 537, § 1; Ga. L. 2013, p. 617, § 1/HB 99; Ga. L. 2014, p. 187, § 2/HB 737.

3-5-5. Retail sale of kegs; required labeling; removal of labels.

  1. As used in this Code section, the term:
    1. “Keg” means any brewery-sealed container or barrel containing, by liquid volume, more than two gallons of malt beverage.
    2. “Retail dealer,” “retail licensee,” or “licensee” means a person holding either a retail dealer license, a permit issued by the commissioner authorizing the sale of alcoholic beverages for consumption only on the premises for a period not to exceed one day, or a beverage alcohol caterer license.
  2. No person licensed under this chapter shall sell malt beverages at retail by the keg except as provided in subsections (c), (d), and (e) of this Code section. The commissioner may take punitive action against violators, up to and including revocation of the state retail dealer’s license of any licensed retail dealer who fails to comply with this Code section. The undertaking of any punitive action allowed under this Code section shall not prohibit criminal prosecution for sale to underage persons.
  3. Each retail licensee selling kegs containing malt beverages for consumption off licensed premises shall require each keg purchaser to present a Georgia driver’s license or other proper identification at the time of purchase. The licensee shall record for each keg sale: the date of sale; the size of keg; the keg identification number; the amount of container deposit; the name; address; date of birth of the purchaser; and the form of identification presented by such purchaser. The purchaser shall sign a statement at the time of purchase attesting to the accuracy of the purchaser’s name and address, the location where the contents of the keg will be consumed, and acknowledging that a violation of Code Section 3-3-23, as it relates to furnishing alcoholic beverages to persons under the age of 21 years, may result in civil liability, criminal prosecution, or both. The licensee shall retain the identification form and purchaser’s signed statement attesting to the accuracy of the purchaser’s name and address and acknowledging that a violation of Code Section 3-3-23, as it relates to furnishing alcoholic beverages to persons under the age of 21 years, may result in civil liability, criminal prosecution, or both, for a minimum of six months following the sale of the keg.
  4. Each keg sold at retail for consumption off licensed premises shall be labeled with the name and address of the retail licensee, the keg identification number, and the state alcohol license number of the business. The Department of Revenue will prescribe the form of registration label or tag to be used for this purpose. The registration label or tag shall be supplied by the Department of Revenue without fee and securely affixed to the keg by the licensee making the sale. In addition to the label or tag, the Department of Revenue shall provide guidelines to the licensee on the information to be recorded on the identification form required under subsection (c) of this Code section.
  5. The licensee shall record the date of return of the keg on the identification form required under subsection (c) of this Code section. If there is no label or tag affixed to the keg or if the identification number is not legible, the licensee shall indicate this fact on the identification form required under subsection (c) of this Code section. The licensee shall not refund a deposit for a keg that is returned without the required label or tag and identification number intact and legible.
  6. The removal of the required label shall be unlawful until such time that it is lawfully returned to the retailer by the purchaser. Possession of a keg without the required label and identification number shall be unlawful and subject to penalty pursuant to Code Section 3-3-9.

History. — Code 1981, § 3-5-5 , enacted by Ga. L. 2001, p. 1100, § 1; Ga. L. 2002, p. 415, § 3.

Article 2 State License Requirements and Regulations for Manufacture, Distribution, and Sale

Cross references. —

Occupational taxes generally, T. 48, C. 13.

JUDICIAL DECISIONS

Sale of malt beverages is a privilege, and denial of license does not deprive accused of anything to which the accused has an absolute right. Collier v. State, 54 Ga. App. 346 , 187 S.E. 843 (1936); Ebling v. City of Rome, 54 Ga. App. 608 , 188 S.E. 727 (1936); Acree v. Ragsdale, 60 Ga. App. 717 , 4 S.E.2d 708 (1939); Lamb v. Fedderwitz, 68 Ga. App. 233 , 22 S.E.2d 657 (1942), aff'd, 195 Ga. 691 , 25 S.E.2d 414 (1943); Hudon v. North Atlanta, 108 Ga. App. 370 , 133 S.E.2d 58 (1963).

Nature of license and power of revocation. —

A license to sell beer in this state is neither a contract nor a right of property within legal and constitutional meaning of those terms. It is no more than a temporary permit to do that which would otherwise be unlawful, and forms part of the internal police system of this state. Hence, authority which granted license retains power to revoke it for due cause. Ebling v. City of Rome, 54 Ga. App. 608 , 188 S.E. 727 (1936).

Charge that sale of alcoholic beverages has been made without alleging that no license has been obtained does not constitute crime. Plemmons v. State, 58 Ga. App. 131 , 198 S.E. 104 (1938).

OPINIONS OF THE ATTORNEY GENERAL

A license to deal in malt beverages is not a right but a privilege. 1948-49 Ga. Op. Att'y Gen. 264.

3-5-20. Levy and amount of state occupational license tax; application for license.

  1. An annual occupational license tax is imposed upon each brewer, manufacturer, broker, importer, wholesaler, and retail dealer of beer in this state, as follows:
    1. Upon each brewer   $ 1,000.00      (2) Upon each wholesale dealer    500.00      (3) Upon each importer    500.00      (4) Upon each broker     50.00      (5) Upon each retail dealer      50.00      (6) Upon each brewpub operator    1,000.00      (7) Upon each special event use permit applicant    50.00

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  2. An annual occupational license tax shall be paid for each place of business operated. An application for the applicable license required pursuant to this title along with the payment of the tax required by subsection (a) of this Code section shall be submitted to the department immediately upon assuming control of the place of business and annually thereafter for so long as the business is operated.

History. — Ga. L. 1935, p. 73, § 5; Ga. L. 1937, p. 148, § 1; Ga. L. 1937-38, Ex. Sess., p. 173, § 1; Ga. L. 1939, p. 101, § 1; Ga. L. 1949, Ex. Sess., p. 5, § 1; Ga. L. 1951, p. 356, § 1; Ga. L. 1955, Ex. Sess., p. 23, § 1; Code 1933, § 5A-4501, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1995, p. 734, § 2; Ga. L. 2012, p. 827, § 5/HB 1066.

OPINIONS OF THE ATTORNEY GENERAL

Organizations not exempt from license taxes. — Law does not exempt American Legion posts or similar organizations from payment of state tax, nor is there any provision in which would exempt such organizations from paying county tax. 1958-59 Ga. Op. Att'y Gen. 205.

Person possessing mild home brew is required to procure appropriate licenses from commissioner. 1952-53 Ga. Op. Att'y Gen. 455.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 168 et seq.71 Am. Jur. 2d, State and Local Taxation, § 309 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 400 et seq., 409 et seq.

ALR. —

Exacting for intoxicating liquor license an amount in excess of cost of regulation in order to limit the number and determine the character and responsibility of licensees, 103 A.L.R. 327 .

Intoxicating liquor business as subject to a tax imposed generally on occupations or business, 117 A.L.R. 686 .

Right of one who acquires title to, or other interest in, real property to benefit of a license previously issued by the public, permitting use of property for a specified purpose, 131 A.L.R. 1339 .

3-5-21. Sale, offer for sale, or possession of bottles or cans not having prescribed identification on crowns or lids; alternate identification for use on certain imported bottles or containers.

  1. The commissioner may prescribe by regulation that no person engaged in the business of selling, manufacturing, or distributing malt beverages specified in this chapter in bottles or cans may sell, offer for sale, or possess for the purpose of sale any bottles or cans containing such malt beverages unless the crowns or lids contain the word “Georgia” or its abbreviation, such as “GA.”
  2. The commissioner may prescribe an alternate identification for certain bottles or containers of malt beverages manufactured in a foreign country and which have been imported into this state by a licensed importer, manufacturer, or wholesaler for resale.

History. — Code 1933, § 5A-4502, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1984, p. 790, § 2.

3-5-22. Shipment of malt beverages within or into state without license prohibited; requirement as to furnishing of labels of beverages to be shipped into state for first time.

Reserved. Repealed by Ga. L. 1983, p. 1214, § 1, effective July 1, 1983.

Editor’s notes. —

This section was based on Code 1933, § 5A-4503 enacted by Ga. L. 1980, p. 1573, § 1.

3-5-23. License for manufacture of malt beverages — Grounds and procedure for revocation generally.

  1. No license issued by the state or by any other duly authorized licensing authority to any person for the manufacture of malt beverages shall be revoked except for due cause.
  2. Due cause for the revocation of a brewer’s license shall consist only of violation of the laws regulating the manufacture of malt beverages and of regulations made pursuant to authority lawfully granted for the purpose of regulating the manufacture of malt beverages.

History. — Ga. L. 1955, p. 657, § 1; Code 1933, § 5A-4507, enacted by Ga. L. 1980, p. 1573, § 1.

JUDICIAL DECISIONS

Editor’s notes. —

In light of the similarity of the statutory provisions, annotations decided under former Ga. L. 1935, Ex. Sess., p. 73 are included in the annotations for this Code section.

Effect of section on rule that selling beer is privilege. —

This section, which is limited in its scope to revocation of licenses pertaining to manufacture of malt beverages, does not modify rule that business of selling beer at wholesale or retail is a privilege under laws of this state. Lewis v. City of Smyrna, 214 Ga. 323 , 104 S.E.2d 571 (1958) (decided under former Ga. L. 1935, Ex. Sess., p. 73).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 7, 8, 9, 102, 152 et seq., 187.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 297 et seq.

3-5-24. License for manufacture of malt beverages — Rights conferred; separate revocation of licenses for sale of malt beverages for resale within and outside state authorized; effect of revocation on sale within state.

  1. A license to manufacture malt beverages shall include the right to sell the product of the brewer for resale within and outside the limits of this state.
  2. The right to sell the manufactured product to duly licensed wholesalers for resale within this state may be revoked separately from the right to manufacture and sell the product of such manufacturer for resale outside of this state.
  3. The revocation by the state or by any other duly authorized licensing authority of the license to sell for resale within this state shall not in any way interfere with or otherwise affect or impair the license to manufacture and sell the product of the manufacturer for resale beyond the limits of this state.

History. — Ga. L. 1955, p. 657, § 2; Code 1933, § 5A-4508, enacted by Ga. L. 1980, p. 1573, § 1.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 7, 8, 9, 102, 152 et seq., 187.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 138 et seq., 297 et seq., 425 et seq.

3-5-24.1. Exception to three-tier system; transfer of liquids; sales at brewer’s licensed premises; taxing; regulatory authority; conditions or limitations.

  1. As used in this Code section, the term:
    1. “Common ownership” means the same 100 percent common ownership interest including, but not limited to, ownership of the stock, limited liability company membership interest, limited liability partnership interest, other entity interest, or partnership interest, in whatever form such ownership interest may exist.
    2. “Licensed premises” means the physical premises where brewer is licensed by the state as a manufacturer of malt beverages.
    3. “Produces” means engaging in the material and essential aspects of the brewing process to manufacture malt beverage for human consumption; provided, however, when a brewer engages in the brewing process at multiple licensed premises, the malt beverage will be deemed to have been produced only at the licensed premises where such malt beverage first began fermentation through the chemical conversion of fermentable sugars into alcohol.
  2. A limited exception to the provisions of this title providing a three-tier system for the distribution and sale of malt beverages shall exist to the extent that the license to manufacture malt beverages in this state shall include the right to sell malt beverages to individuals on the brewer’s licensed premises for personal use and not for resale, subject to the following terms and conditions:
    1. The brewer may only make sales of malt beverages to an individual while the individual is physically on the brewer’s licensed premises where the brewer produces malt beverages;
    2. The brewer may make sales of malt beverages the brewer produces at the brewer’s licensed premises where the individual is purchasing the malt beverages;
    3. As long as the brewer and all of the brewer’s licensed premises are under common ownership, the brewer may make sales of malt beverages the brewer produces at any licensed premises of the brewer and subsequently transfers in compliance with the limitations and reporting obligations of subsection (c) of this Code section to the brewer’s licensed premises for sale where the individual is purchasing the malt beverages;
    4. The brewer may only make sales of malt beverages for which the brewer is the sole owner of the brand and brand label;
    5. Sales for consumption on the premises are not subject to a daily maximum amount;
    6. Sales for consumption off the premises shall not exceed a maximum of 288 ounces of malt beverages per individual per day; and
    7. The maximum amount of malt beverages the brewer may sell pursuant to subsection (b) of this Code section in each calendar year shall be 6,000 barrels in the aggregate among all brewer’s licensed premises making such sales.
  3. Nothing in this Code section shall be interpreted to prohibit a brewer from transferring any liquid, regardless of whether such liquid would be deemed to be malt beverages or not, to or from any of the brewer’s licensed premises; provided, however, with respect to any malt beverages a brewer produces at one of the brewer’s licensed premises and transfers to be sold to individuals pursuant to subsection (b) of this Code section at another of the brewer’s licensed premises, the maximum number of barrels of malt beverages permitted to be transferred from one licensed premises of the brewer to another licensed premises of the brewer shall not exceed the number of barrels of malt beverages the brewer produces under brands and brand labels for which the brewer is the sole owner at the licensed premises receiving the transferred malt beverages and the brewer shall file a report with the department every calendar quarter documenting all such transfers in such form as the department shall require.
  4. A brewer may sell malt beverages pursuant to subsection (b) of this Code section on all days and at all times that sales of malt beverages by retailers are lawful within the county or municipality in which the licensed premises of the brewer is located, including, but not limited to, Sundays.
  5. Any brewer engaging in sales of malt beverages pursuant to subsection (b) of this Code section shall remit all state and local sales, use, and excise taxes to the proper tax collecting authority.
  6. The commissioner shall promulgate and enforce such rules and regulations as he or she may deem reasonable and necessary to effectuate the provisions of this Code section.
  7. Upon a violation by a brewer of any provision of this Code section or this title or any rule or regulation promulgated thereunder, the commissioner shall have the power to place conditions or limitations on such brewer’s license and to modify or amend such conditions or limitations.

History. — Code 1981, § 3-5-24.1 , enacted by Ga. L. 2017, p. 406, § 8/SB 85; Ga. L. 2021, p. 493, § 2/HB 273.

Effective date. —

This Code section became effective September 1, 2017.

The 2021 amendment, effective May 5, 2021, added subsection (a); redesignated former subsection (a) as present subsection (b); rewrote present subsection (b); added subsection (c); redesignated former subsections (b) through (e) as present subsections (d) through (g), respectively; and substituted “subsection (b)” for “subsection (a)” near the beginning of present subsection (d).

Code Commission notes. —

Pursuant to Code Section 28-9-5, in 2021, “pursuant to subsection (b)” was substituted for “pursuant to subsection (a)” in subsection (e).

3-5-25. License for manufacture of malt beverages — Renewal.

Every unrevoked license authorizing the manufacture of malt beverages, whether issued by the state or by any other duly authorized licensing authority, shall be renewable to the holder of the license as of right upon the payment of fees and taxes lawfully assessed and fixed for the issuance of licenses of that kind and character.

History. — Ga. L. 1955, p. 657, § 3; Code 1933, § 5A-4509, enacted by Ga. L. 1980, p. 1573, § 1.

RESEARCH REFERENCES

Am. Jur. 2d. —

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

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 239 et seq.

3-5-25.1. License for manufacture of malt beverages — Bond required on application for license or renewal.

The commissioner may require, in addition to other bonds required by this title, a bond to be filed with the application for a license or the renewal of a license, conditioned to pay all sums which may become due by the applicant to this state as taxes, license fees, or otherwise, by reason of or incident to, the operation of the business of the applicant and to comply with all the laws, rules, and regulations pertaining to malt beverages. The bond shall be in such form and in such amount approved by the commissioner, not to exceed $5,000.00 for brewers and $500.00 for retailers.

History. — Code 1933, § 5A-4510, enacted by Ga. L. 1981, p. 1269, § 44.

RESEARCH REFERENCES

Am. Jur. 2d. —

58 Am. Jur. 2d, Occupations, Trades, and Professions, § 8 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 239 et seq., 388. 53 C.J.S., Licenses, § 42.

3-5-26. Persons to whom malt beverages may be sold by wholesale dealers.

Licensed wholesale dealers may sell malt beverages only to other licensed wholesale dealers and to importers and retail dealers licensed in this state.

History. — Code 1933, § 5A-4506, enacted by Ga. L. 1980, p. 1573, § 1.

3-5-27. Malt beverages acquired by retail dealers from persons other than licensed wholesale dealers declared contraband.

Any malt beverage possessed, sold, or offered for sale by a retail dealer which was purchased or otherwise acquired from any person other than a wholesale dealer authorized to do business under this chapter is declared to be contraband and shall be seized by the commissioner or the appropriate local authorities and disposed of by the commissioner in the manner provided in this title.

History. — Ga. L. 1950, p. 185, § 1; Code 1933, § 5A-4504, enacted by Ga. L. 1980, p. 1573, § 1.

JUDICIAL DECISIONS

County sheriff is “appropriate local authority”. —

The reference to “appropriate local authorities” does not appear to vest the power of seizure in a county commissioner, but rather to vest the power of seizure in the person who is traditionally responsible for the enforcement of the laws of a county — the county sheriff. Scoggins v. Moore, 579 F. Supp. 1320 (N.D. Ga.), aff'd, 747 F.2d 1466 (11th Cir. 1984).

RESEARCH REFERENCES

ALR. —

Constitutionality of statute making unlawful possession of intoxicating liquor legally obtained or providing for its confiscation, 37 A.L.R. 1386 .

Constitutionality of statute providing for confiscation or destruction, without notice, of intoxicating liquors, and vehicles or other property used in connection with same, 45 A.L.R. 93 .

3-5-28. Delivery, receipt, and storage of malt beverages sold by wholesale dealers to retail dealers.

All malt beverages sold by a wholesale dealer to a retail dealer shall be delivered only to the premises of a licensed retail dealer and transported only by a conveyance owned, or leased, and operated by a wholesale dealer who is designated to deal in the brands of malt beverages sold and is licensed to make sales and deliveries within the municipality or county in which the sale or delivery is made. The malt beverages so sold shall not be delivered to, received, or stored at any place other than premises for which state and local retail licenses have been issued.

History. — Ga. L. 1950, p. 185, § 1; Code 1933, § 5A-4505, enacted by Ga. L. 1980, p. 1573, § 1.

JUDICIAL DECISIONS

Transportation of malt beverages. —

Contrary to the argument of the two associations, O.C.G.A. § 3-5-28 prohibited a retailer from picking up malt beverages at the wholesaler’s premises; thus, the Georgia Department of Revenue’s regulation that required a retailer to take delivery of alcoholic beverages only at its place of business was not in conflict with the statute and was not invalid. Ga. Oilmen's Ass'n v. Ga. Dep't of Revenue, 261 Ga. App. 393 , 582 S.E.2d 549 (2003).

OPINIONS OF THE ATTORNEY GENERAL

Relinquishment of damaged cans by distributor to licensed or unlicensed carrier. — Georgia beer distributors do not have standing to sue for refund of beer tax paid on cans of beer subsequent to transfer of title from brewer to distributor; distributor, however, may relinquish damaged cans to carrier for claims salvage regardless of whether carrier has retail beer license, provided carrier does not resell damaged cans of beer. Such relinquishment to carrier is a sale within meaning of general law. 1970 Op. Atty Gen. No. U70-162.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 102, 201, 209.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 78, 160, 404, 425 et seq., 440, 441.

3-5-29. Brewer-wholesaler relations — “Agreement” defined.

As used in Code Sections 3-5-30 through 3-5-34, the term “agreement” shall mean a commercial relationship, not required to be evidenced in writing, of definite or indefinite duration between a brewer and a malt beverage wholesaler pursuant to which the wholesaler has been authorized to distribute one or more of the brewer’s brands of malt beverage.

History. — Code 1981, § 3-5-29 , enacted by Ga. L. 1983, p. 1214, § 2; Ga. L. 1984, p. 22, § 3.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 114, 118, 119.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 78, 160, 404, 425 et seq., 440, 441.

3-5-30. Brewer-wholesaler relations — Purpose; intent; enforcement.

  1. Code Sections 3-5-31 through 3-5-34 are promulgated pursuant to the authority granted to the state under the provisions of the Twenty-first Amendment to the United States Constitution and specifically for the following purposes and policies:
    1. To prohibit unfair business practices and to prevent any one segment of the malt beverage industry to gain unfair advantage over the other segments;
    2. To foster vigorous and healthy interbrand competition in the malt beverage industry;
    3. To provide an orderly three-tier system for the distribution and sale of good quality malt beverages in the State of Georgia;
    4. To promote the public health, safety, and welfare of the people of the State of Georgia; and
    5. To provide a distribution system for malt beverages that will facilitate the collection and accountability of state and local excise taxes.
  2. The provisions of Code Sections 3-5-31 through 3-5-34 may not be varied by separate agreement and any such attempt shall be void and unenforceable as being violative of the public policy of this state.
  3. The commissioner shall have the authority to promulgate such regulations as are consistent with the stated policies of this article.

History. — Code 1981, § 3-5-30 , enacted by Ga. L. 1983, p. 1214, § 2.

JUDICIAL DECISIONS

Regulations consistent with statute permitted. —

Georgia Department of Revenue’s regulations challenged by the two associations, regarding the distribution of malt beverages in Georgia, were not invalid on the ground that they were unauthorized since the regulations at issue were consistent with the various policies set out in O.C.G.A. § 3-5-30 . Ga. Oilmen's Ass'n v. Ga. Dep't of Revenue, 261 Ga. App. 393 , 582 S.E.2d 549 (2003).

3-5-31. Brewer-wholesaler relations — License requirement for shippers of beer; application.

  1. No shipper shall be permitted to ship beer into the state without first obtaining a proper license from the commissioner in the manner provided in this title.
  2. In addition to the bond required in Code Section 3-5-25.1 and such other documentation required by the commissioner pursuant to this title, each shipper shall:
    1. Submit with his application one label for each brand of beer to be shipped for the first time by the shipper into the state;
    2. Designate in the application for registration sales territories for each of its brands sold in Georgia; and
    3. Name one licensed wholesaler in each territory who, within the territory, shall be the exclusive distributor of the brand within the territory.
  3. Designations of wholesalers or wholesalers’ territories as provided in this Code section shall be initially approved by the commissioner and shall not be changed nor initially disapproved except for cause. The commissioner shall determine cause after a hearing under regulations promulgated by the commissioner for such purposes.

History. — Code 1981, § 3-5-31 , enacted by Ga. L. 1983, p. 1214, § 2.

JUDICIAL DECISIONS

Exclusive distributor permitted. —

O.C.G.A. § 3-5-31(a) permitted the Georgia Department of Revenue to implement a regulation that named one licensed wholesaler in each sales territory who, within the territory, was the exclusive distributor of a brand of malt beverage within the sales territory, as the plain language of the statute permitted the department to do so. Ga. Oilmen's Ass'n v. Ga. Dep't of Revenue, 261 Ga. App. 393 , 582 S.E.2d 549 (2003).

3-5-32. Brewer-wholesaler relations — Conflicts of interest.

No licensed registered brewer, broker, or importer authorized to do business in this state nor any of his employees or members of such brewer’s, broker’s, or importer’s immediate family shall have, own, or enjoy ownership interest in or partnership arrangement with the business of any wholesaler or retailer licensee. Cooperative advertising and incentive programs shall not be deemed to constitute a partnership agreement.

History. — Code 1981, § 3-5-32 , enacted by Ga. L. 1983, p. 1214, § 2.

3-5-33. Brewer-wholesaler relations — Prohibited acts.

No brewer, broker, or importer shall:

  1. Induce or coerce, or attempt to induce or coerce, any wholesaler to accept delivery of any malt beverage which has not been ordered or agreed upon by the wholesaler, provided that recommendation, endorsement, exposition, persuasion, or argument shall not be deemed to constitute inducements, coercion, or requirements prohibited by this Code section;
  2. Require a wholesaler to assent to any unreasonable requirement, condition, understanding, or term of an agreement limiting the wholesaler’s right to sell the product of any other brewer, broker, or importer;
  3. Fix or maintain the price at which a wholesaler may resell beer, whether by the terms or requirements imposed on the wholesaler under an agreement or otherwise; or
  4. Require or prohibit any change in the management or supervisory employees of a wholesaler unless the current or proposed employees fail to meet essential, reasonable, and nondiscriminatory requirements imposed by an agreement’s express terms.

History. — Code 1981, § 3-5-33 , enacted by Ga. L. 1983, p. 1214, § 2.

3-5-34. Brewer-wholesaler relations — Applicability of Code Sections 3-5-29 through 3-5-33.

Code Sections 3-5-29 through 3-5-33 shall apply to designations in effect on or after July 1, 1983.

History. — Code 1981, § 3-5-34 , enacted by Ga. L. 1983, p. 1214, § 2.

3-5-35. Declaration of policy; “brewpubs”.

The General Assembly reaffirms the policy of this state of strict enforcement of laws and regulations applicable to the manufacture or sale of beer, including without limitation those establishing the three-tier distribution system with prohibitions against ownership and employment interests between the three tiers but creates a limited exception for the operation of “brewpubs” as such term is defined in Code Section 3-1-2.

History. — Code 1981, § 3-5-35 , enacted by Ga. L. 1995, p. 734, § 3.

Administrative rules and regulations. —

Brewpubs, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Department of Revenue, Alcohol and Tobacco Tax Unit, Subject 560-2-8.

Code Commission notes. —

Pursuant to Code Section 28-9-5, in 1995, Code Section 3-5-35 as enacted by Ga. L. 1995, p. 486, § 1, was redesignated as Code Section 3-5-38.

3-5-36. “Brewpub” exception to three-tier distribution system.

A limited exception to the provisions of Code Sections 3-5-29 through 3-5-32 providing a three-tier system for the distribution and sale of malt beverages shall exist for owners and operators of brewpubs, subject to the following terms and conditions:

  1. No individual shall be permitted to own or operate a brewpub without first obtaining a proper license from the commissioner in the manner provided in this title, and each brewpub licensee shall comply with all other applicable state and local license requirements;
  2. A brewpub license authorizes the holder of such license to:
    1. Manufacture on the licensed premises not more than 10,000 barrels of malt beverages in a calendar year solely for retail sale;
    2. Operate an eating establishment that shall be the sole retail outlet for such malt beverages;
    3. Operate an eating establishment that may offer for sale for consumption on the premises any other alcoholic beverages produced by other manufacturers which are authorized for retail sale under this title, including wine, distilled spirits, and malt beverages, provided that such alcoholic beverages are purchased from a licensed wholesaler; and, provided, further, that in addition to draft beer manufactured on the premises, each brewpub licensee shall offer for sale commercially available canned or bottled malt beverages from licensed wholesalers; and
    4. Notwithstanding any other provision of this paragraph, sell up to a maximum of 5,000 barrels annually of such malt beverages to licensed wholesale dealers. Under no circumstances shall such malt beverages be sold by a brewpub licensee to any person holding a retail consumption dealer’s license or a retailer’s license for the purpose of resale;
  3. Possession of a brewpub license shall not prevent the holder of such license from obtaining a retail consumption dealer’s license or a retailer’s license for the same premises;
  4. A brewpub license holder shall not be prohibited from selling wine or malt beverages by the package for consumption off the premises where so permitted by resolution or ordinance of the county or municipality;
  5. The commissioner shall not issue a brewpub license if the premises to be licensed is located in a county or municipality in which the sale of alcoholic beverages is prohibited; and
  6. A brewpub licensee shall:
    1. Pay all state and local license fees and excise taxes applicable to individuals licensed by this state as manufacturers, retailers, and, where applicable, wholesalers under this title;
    2. At the request of the commissioner, provide an irrevocable letter of credit or bond in favor of the State of Georgia in an amount sufficient to guarantee such brewpub licensee’s estimated tax liability for the first year of operation; and
    3. Measure malt beverages manufactured on the premises and otherwise comply with applicable rules and regulations respecting excise and enforcement tax determination of such malt beverages as required by this title.

History. — Code 1981, § 3-5-36 , enacted by Ga. L. 1995, p. 734, § 3; Ga. L. 1997, p. 1514, § 1; Ga. L. 2012, p. 680, § 2/HB 472; Ga. L. 2015, p. 317, § 7/SB 63; Ga. L. 2017, p. 406, § 9/SB 85.

The 2017 amendment, effective September 1, 2017, substituted the present provisions of paragraph (4) for the former provisions, which read: “A brewpub license does not authorize the holder of such license to sell alcoholic beverages by the package for consumption off the premises;”.

Code Commission notes. —

Pursuant to Code Section 28-9-5, in 1995, semicolons were substituted for periods at the end of paragraphs (2) through (5) and “and” was added at the end of former paragraph (6) [now paragraph (5).

3-5-37. “Brewpub” exception; rules and regulations.

The Department of Revenue shall be authorized to promulgate and enforce such rules and regulations as it may deem necessary to carry out or make effective the provisions of Code Sections 3-5-35 and 3-5-36.

History. — Code 1981, § 3-5-37 , enacted by Ga. L. 1995, p. 734, § 3.

3-5-38. Permits for free tasting of malt beverages during educational and promotional brewery tours; merchandising; fees for tours; selling of beverages; administration.

Repealed by Ga. L. 2017, p. 406, § 10/SB 85, effective September 1, 2017.

Editor’s notes. —

This Code section was based on Ga. L. 1995, p. 486, § 1; Ga. L. 1997, p. 1514, § 1A; Ga. L. 2015, p. 317, § 8/SB 63.

Ga. L. 2018, p. 1112, § 3(3)/SB 365, part of an Act to revise, modernize, and correct the Code, repealed the reservation of this Code section, effective May 8, 2018.

Article 3 Local License Requirements and Regulations for Manufacture, Distribution, and Sale

JUDICIAL DECISIONS

Sale of malt beverages is privilege, and denial of license does not deprive accused of anything to which the accused has an absolute right. Collier v. State, 54 Ga. App. 346 , 187 S.E. 843 (1936); Ebling v. City of Rome, 54 Ga. App. 608 , 188 S.E. 727 (1936); Acree v. Ragsdale, 60 Ga. App. 717 , 4 S.E.2d 708 (1939); Lamb v. Fedderwitz, 68 Ga. App. 233 , 22 S.E.2d 657 (1942), aff'd, 195 Ga. 691 , 25 S.E.2d 414 (1943); Hudon v. North Atlanta, 108 Ga. App. 370 , 133 S.E.2d 58 (1963).

Nature of license and power of revocation. —

A license to sell beer in this state is neither a contract nor a right of property within legal and constitutional meaning of those terms. It is no more than a temporary permit to do that which would otherwise be unlawful, and forms part of internal police system of this state. Hence, authority which granted license retains power to revoke it for due cause. Ebling v. City of Rome, 54 Ga. App. 608 , 188 S.E. 727 (1936).

Charge that sale of alcoholic beverages has been made without alleging that no license has been obtained does not constitute a crime. Plemmons v. State, 58 Ga. App. 131 , 198 S.E. 104 (1938).

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).

Enforcement of licensing regulation by writ of mandamus. —

Since no one has inherent right to engage in intoxicating liquor business, licensing regulation is not proper subject for enforcement by writ of mandamus. Lindsey v. Hill, 221 Ga. 518 , 145 S.E.2d 556 (1965).

Indictment need not specify kind of beer sold. —

An allegation that accused sold beer in county without first obtaining permit to do so from governing authority of such county is a good indictment; it need not specify kind of beer sold. Williams v. State, 73 Ga. App. 421 , 36 S.E.2d 839 (1946).

OPINIONS OF THE ATTORNEY GENERAL

Legislative intent. — The General Assembly intended that business of selling malt beverages be in hands of some person other than licensing authority, and did not intend for municipality to be licensing power in municipality and also licensee. 1948-49 Ga. Op. Att'y Gen. 260.

General Assembly, in legalizing sale of malt beverages, intended for municipalities to be part of machinery for proper control and supervision of sale of malt beverages within municipalities, and did not intend to place municipalities in business of selling beer with public funds in competition with private business. 1948-49 Ga. Op. Att'y Gen. 260.

No authority for municipalities to sell malt beverages. — Unless express power has been generally conferred upon municipalities by General Assembly to engage in selling of malt beverages, as now legalized and codified, there is no authority of law for municipality to engage in such business. 1948-49 Ga. Op. Att'y Gen. 260.

A license to deal in malt beverages is not a right but a privilege. 1948-49 Ga. Op. Att'y Gen. 264.

Sale of beer where county has voted “dry”. — Where county has voted “dry,” it is still permissible for county, or any municipality therein, to issue licenses for sale of beer. 1954-56 Ga. Op. Att'y Gen. 455.

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.

History. — 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.

Law reviews. —

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 and 3-6-40 , 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).

Construction. —

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 required for sale even though license tax not required. —

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).

Governing authority’s discretion to grant or deny licenses. —

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 as remedy for arbitrary refusal. —

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).

Denial of license when standards met. —

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).

No denial of equal protection absent ordinance and proof showing plaintiff met standards. —

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).

Sales by “implied consent” illegal. —

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).

Plaintiff has no right to permit where other businesses are selling beer illegally. —

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 of selling without license sufficient. —

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).

Judicial notice of dry or wet status. —

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).

Guilt of one unaware of sale but not of possession. —

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).

Guilt of one aware of but not actually selling beer. —

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).

Evidence insufficient to convict for selling without license. —

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. Atty 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. Atty 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. Atty Gen. No. U71-26.

Power to adopt rules and regulations. — 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 Ga. Op. Att'y Gen. 287.

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

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

A municipality could refuse to license the sale of malt beverages in places of business selling other merchandise. 1960-61 Ga. Op. Att'y Gen. 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 Ga. Op. Att'y Gen. 394.

Prevention of legalized sale. — 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 Ga. Op. Att'y Gen. 205.

Referendum regarding sale of no effect. — 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.

Duty of commissioner to licensee upon license revocation by local authorities. — 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 Ga. Op. Att'y Gen. 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.

C.J.S. —

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

ALR. —

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 .

3-5-41. Requirement and issuance of county licenses generally.

If any business allowed under this chapter is proposed to be carried on within the unincorporated area of a county, the applicant for a license shall pay to the proper officer, to be designated by the governing authority of the county, an annual license fee as fixed by the governing authority. The license shall apply to and be required for each brewer or place of manufacture and also for each place of wholesale and retail distribution outside of any incorporated municipality.

History. — Ga. L. 1935, p. 73, § 7; Code 1933, § 5A-4303, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 42.

JUDICIAL DECISIONS

Construction of section. —

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).

Exacting license fee from traveling salesperson. —

County authorities have no right to exact from traveling salesperson a license fee under this section. Traveling salesperson of wholesaler located in another county, which has no place of business in county seeking to tax salesperson, is not a “business located” in county where sales are made by traveling salesperson. Gaissert v. State, 186 Ga. 599 , 198 S.E. 675 (1938).

One who sells beer without having obtained a license from county governing authority is in violation of this section. Elder v. Stark, 200 Ga. 452 , 37 S.E.2d 598 (1946).

Licensing authority for place in neither municipality nor incorporated town. —

With respect to a place in county neither in municipality nor within limits of incorporated town, governing authority of county is only government authority which can lawfully issue license to sell beer. Elder v. Stark, 200 Ga. 452 , 37 S.E.2d 598 (1946).

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).

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. Atty 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. Atty Gen. No. U17-2.

Effect of referendum on right of governing authorities to issue licenses. — Ga. L. 1935, p. 73, § 7 (see now O.C.G.A. §§ 3-5-41 and 3-5-42 ), give municipal or county authorities the right to issue licenses for sale of malt beverages; it is solely within the discretion of such governing authorities to issue or not to issue a license, and an election called to determine if the sale of malt beverages should be allowed or prohibited would have no legal effect upon such governing authorities. 1950-51 Ga. Op. Att'y Gen. 362.

Prevention of legalized sale. — County commissioners of any county have a right to pass a resolution authorizing sale of malt beverages in the county and 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 Ga. Op. Att'y Gen. 205.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 94, 105, 109, 122.

C.J.S. —

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

ALR. —

Power to limit the number of intoxicating liquor licenses, 163 A.L.R. 581 .

3-5-42. Requirement and issuance of municipal licenses generally; requirement by county of license for business licensed by municipality.

  1. If any business allowed under this chapter is proposed to be carried on within the corporate limits of a municipality, the applicant for a license shall pay to the proper officer, to be designated by the governing authority of the municipality, an annual license fee as fixed by the governing authority. The license shall apply to and be required for each brewer or place of manufacture and also for each place of wholesale and retail distribution.
  2. When any of the businesses described in this Code section are licensed by the municipal governing authority, no county license fee shall be required by the county governing authority.

History. — Ga. L. 1935, p. 73, § 7; Code 1933, § 5A-4302, enacted by Ga. L. 1980, p. 1573, § 1.

JUDICIAL DECISIONS

Construction. —

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).

A case to reissue revoked annual license becomes moot upon date of expiration thereof. Stover v. City Council, 220 Ga. 670 , 141 S.E.2d 399 (1965).

State not only must allege but also must 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).

OPINIONS OF THE ATTORNEY GENERAL

Effect of referendum on right of governing authorities to issue licenses. — Former Code 1933, §§ 58-716 and 58-717 (see now O.C.G.A. §§ 3-5-41 and 35-42) gave municipal or county authorities the right to issue licenses for sale of malt beverages; it was solely within the discretion of such governing authorities to issue or not to issue a license, and an election called to determine if the sale of malt beverages should be allowed or prohibited would have no legal effect upon such governing authorities. 1950-51 Ga. Op. Att'y Gen. 362.

Dual taxation is not permissible. 1963-65 Ga. Op. Att'y Gen. 451.

Person who procures proper license from governing authorities of municipality may legally sell beer in such municipality notwithstanding fact that county is dry. 1952-53 Ga. Op. Att'y Gen. 218.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 94, 105, 109, 122. 57 Am. Jur. 2d, Municipal, School, and State Tort Liability, § 166 et seq.

Am. Jur. Pleading and Practice Forms. —

14C Am. Jur. Pleading and Practice Forms, Intoxicating Liquors, §§ 7 et seq., 15 et seq.

C.J.S. —

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

ALR. —

Power to limit the number of intoxicating liquor licenses, 163 A.L.R. 581 .

3-5-43. Restriction on amount of license fee charged by county or municipality other than that of wholesale dealer’s principal place of business.

Where a wholesale dealer is licensed to do business in more than one municipality or county of this state, no municipality or county other than that of the wholesale dealer’s principal place of business shall charge a license fee exceeding $100.00.

History. — Ga. L. 1950, p. 185, § 1; Code 1933, § 5A-4304, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 43.

Cross references. —

Exemption of certain salespeople and merchants from municipal taxes and license fees, § 48-5-354 .

JUDICIAL DECISIONS

Maximum fee. —

This Code section means that when a license fee is authorized, it may not exceed $100.00. City of Gainesville v. Georgia Crown Distrib. Co., 231 Ga. 352 , 201 S.E.2d 410 (1973).

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. Atty 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. Atty Gen. No. U17-2.

RESEARCH REFERENCES

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 64, 165, 400 et seq.

Article 4 Excise Taxation

Cross references. —

Sales and use taxes, T. 48, C. 8.

PART 1 State

3-5-60. Levy and amount of tax.

There is levied and imposed on the first sale, use, or possession within this state of malt beverages the following taxes:

  1. Where malt beverages are sold in or from a barrel or bulk container, such malt beverages being commonly known as tap or draft beer, an excise tax of $10.00 on each container sold containing not more than 31 gallons and a proportionate tax at the same rate on all fractional parts of 31 gallons;
  2. Where malt beverages are sold in bottles, cans, or other containers, except barrel or bulk containers, an excise tax of 4 1/2¢ per 12 ounces and a proportionate tax at the same rate on all fractional parts of 12 ounces; and
  3. A tax on all such beverages in excess of 576 ounces or two standard cases of 12 ounce size or the equivalent thereof or one 7.75 gallon keg or barrel of such beverages at the same rates of taxation as imposed in this part for other such beverages and on which the taxes are not otherwise imposed by either paragraph (1) or (2) of this Code section.

History. — Ga. L. 1935, p. 73, § 5; Ga. L. 1937, p. 148, § 1; Ga. L. 1937-38, Ex. Sess., p. 173, § 1; Ga. L. 1939, p. 101, § 1; Ga. L. 1949, Ex. Sess., p. 5, § 1; Ga. L. 1951, p. 356, § 1; Ga. L. 1955, Ex. Sess., p. 23, § 1; Ga. L. 1964, p. 60, § 1; Ga. L. 1977, p. 1154, § 1; Code 1933, § 5A-4701, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 45; Ga. L. 1982, p. 3, § 3; Ga. L. 1984, p. 790, § 3.

OPINIONS OF THE ATTORNEY GENERAL

Unless malt beverage is sold or held for sale, no taxable event occurs and no tax would be due. 1969 Op. Att'y Gen. No. 69-510.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 168 et seq., 175 et seq.71 Am. Jur. 2d, State and Local Taxation, § 178 et seq.

C.J.S. —

45 C.J.S., Intoxicating Liquors, §§ 36, 199 et seq.

ALR. —

Excise tax on foreign corporation engaged exclusively in interstate commerce measured by net income from business within the taxing state, 44 A.L.R. 1228 .

Specific tax imposed on goods in stock of dealer, as excise, or property tax, 173 A.L.R. 1316 .

3-5-61. Exemptions from tax.

The taxes imposed by paragraphs (1) and (2) of Code Section 3-5-60 are not levied with respect to:

  1. Malt beverages sold to persons outside this state for resale or consumption outside this state; or
  2. Malt beverages sold to stores or canteens located on United States military reservations.

History. — Ga. L. 1935, p. 73, § 5; Ga. L. 1937, p. 148, § 1; Ga. L. 1937-38, Ex. Sess., p. 173, § 1; Ga. L. 1939, p. 101, § 1; Ga. L. 1949, Ex. Sess., p. 5, § 1; Ga. L. 1951, p. 356, § 1; Ga. L. 1955, Ex. Sess., p. 23, § 1; Ga. L. 1964, p. 60, § 1; Ga. L. 1977, p. 1154, § 1; Code 1933, § 5A-4702, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 46.

PART 2 Local

JUDICIAL DECISIONS

Ga. L. 1974, p. 1447 was not violative of the municipal home rule provision of the Georgia Constitution. State v. Golia, 235 Ga. 791 , 222 S.E.2d 27 (1976).

Ga. L. 1974, p. 1447 was sufficiently precise as to meet due process standard of definiteness, and was therefore not void for vagueness. State v. Golia, 235 Ga. 791 , 222 S.E.2d 27 (1976).

Rational basis for imposition of tax. —

State’s interest in assuring that malt beverages be taxed uniformly throughout state provided sufficient rational basis for imposition of tax even though tax might be imposed without strict regard to financial needs of particular local taxing unit. This tax was not imposed arbitrarily in violation of due process requirements. State v. Golia, 235 Ga. 791 , 222 S.E.2d 27 (1976).

The tax imposed was a state levy for local purposes. Blackmon v. Golia, 231 Ga. 381 , 202 S.E.2d 186 (1973).

Ga. L. 1974, p. 1447 did not impose a state tax for state purposes which would invoke constitutional provisions listing state purposes for taxation and requiring that taxation be “for public purposes only”; instead, it imposed a state tax for local purposes, and counties’ adherence to tests of constitutional provisions, delineating allowable scope of county purposes of taxation, was all that is required. Chanin v. Bibb County, 234 Ga. 282 , 216 S.E.2d 250 (1975).

Construction. —

Ga. L. 1974, p. 1447 is construed to require that taxes be imposed in mutually exclusive fashion by municipalities within their boundaries and by counties within their unincorporated areas. Chanin v. Bibb County, 234 Ga. 282 , 216 S.E.2d 250 (1975).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 94, 105, 109, 122, 168 et seq.

C.J.S. —

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

ALR. —

Specific tax imposed on goods in stock of dealer, as excise, or property tax, 173 A.L.R. 1316 .

3-5-80. Levy and amount of tax.

Municipalities and counties permitting the sale of malt beverages shall impose an excise tax, in addition to the excise taxes levied by the state, as follows:

  1. Where malt beverages, commonly known as tap or draft beer, are sold in or from a barrel or bulk container, a tax of $6.00 on each container sold containing not more than 15 1/2 gallons and a proportionate tax at the same rate on all fractional parts of 15 1/2 gallons;
  2. Where malt beverages are sold in bottles, cans, or other containers, except barrel or bulk containers, a tax of 5¢ per 12 ounces and a proportionate tax at the same rate on all fractional parts of 12 ounces.

History. — Ga. L. 1973, p. 328, § 1; Ga. L. 1974, p. 1447, § 1; Ga. L. 1976, p. 282, § 1; Code 1933, § 5A-4731, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 47; Ga. L. 1992, p. 6, § 3.

JUDICIAL DECISIONS

Constitutionality. —

The classifications established in this section are reasonably related to purposes of this part; therefore, this part does not violate equal protection clauses of state and federal constitutions. State v. Golia, 235 Ga. 791 , 222 S.E.2d 27 (1976).

3-5-81. Payment of tax by wholesale dealers generally; time of payment; reports by dealers as to quantities of beverages sold.

  1. The excise taxes provided for in this part shall be imposed upon and shall be paid by the licensed wholesale dealer in malt beverages; provided, however, that such taxes shall be imposed upon and shall be paid by the licensed brewer for malt beverages served or sold by the brewer directly to the public pursuant to Code Section 3-5-24.1.
  2. The taxes shall be paid on or before the tenth day of the month following the calendar month in which the beverages are sold or disposed of within the particular municipality or county.
  3. Each licensee responsible for the payment of the excise tax shall file a report itemizing for the preceding calendar month the exact quantities of malt beverages, by size and type of container, sold during the month within each municipality or county. The licensee shall file the report with each municipality or county wherein the beverages are sold by the licensee.
  4. The licensee shall remit to the municipality or county on the tenth day of the month following the calendar month in which the sales were made the tax imposed by the municipality or county.

History. — Ga. L. 1973, p. 328, § 1; Ga. L. 1974, p. 1447, § 1; Ga. L. 1976, p. 282, § 1; Code 1933, § 5A-4732, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 2017, p. 406, § 11/SB 85.

The 2017 amendment, effective September 1, 2017, added the proviso at the end of subsection (a); deleted “by the wholesale dealer” following “or county” at the end of subsection (b); and substituted “licensee” for “wholesaler” near the beginning of subsection (d).

3-5-82. Requirement of markings on containers.

No decal, stamp, or other marking shall be required on malt beverage containers designating the particular municipality or county in which a sale of malt beverages is made or in which resides a licensed retailer to whom the beverages are delivered.

History. — Ga. L. 1973, p. 328, § 1; Ga. L. 1974, p. 1447, § 1; Ga. L. 1976, p. 282, § 1; Code 1933, § 5A-4733, enacted by Ga. L. 1980, p. 1573, § 1.

3-5-83. Use of excess tax revenues by consolidated governments and certain counties.

  1. Any tax revenue realized pursuant to this part by a consolidated government existing on July 1, 1981, which is in excess of the amount levied locally on December 1, 1972, shall be used to construct a convention center or to pay for the operation of a convention center.
  2. Any tax revenue realized pursuant to this part by a county having a population of not less than 162,000 nor more than 165,000 according to the United States decennial census of 1970 or any future such census or by any municipality in any such county, which is in excess of the amount levied locally on December 1, 1972, shall be used for the construction of a coliseum or civic center.

History. — Ga. L. 1973, p. 328, § 2; Ga. L. 1974, p. 1447, § 1; Ga. L. 1976, p. 282, § 1; Code 1933, § 5A-4735, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 48.

RESEARCH REFERENCES

ALR. —

Validity of statutory classifications based on population — intoxicating liquor statutes, 100 A.L.R.3d 850.

3-5-84. Enforcement of part.

This part shall be enforced by the commissioner or by any municipality or county permitting the sale of malt beverages within its boundaries, especially with regard to collection and payment of the taxes provided for by this part.

History. — Ga. L. 1973, p. 328, § 1; Ga. L. 1974, p. 1447, § 1; Ga. L. 1976, p. 282, § 1; Code 1933, § 5A-4734, enacted by Ga. L. 1980, p. 1573, § 1.

PART 3 Exemptions

RESEARCH REFERENCES

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 400 et seq.

3-5-90. Malt beverages containing less than one-half of 1 percent alcohol by volume.

Malt beverages which contain less than one-half of 1 percent alcohol by volume shall not be subject to any tax levied under this title or any tax levied pursuant to authority granted by this title.

History. — Code 1981, § 3-5-90 , enacted by Ga. L. 1987, p. 562, § 1.

CHAPTER 6 Wine

RESEARCH REFERENCES

ALR. —

Criminal responsibility of husband for violation of liquor law by wife, 19 A.L.R. 136 ; 27 A.L.R. 312 .

Constitutionality of statute providing for confiscation or destruction, without notice, of intoxicating liquors, and vehicles or other property used in connection with same, 45 A.L.R. 93 .

Article 1 General Provisions

3-6-1. Definitions.

As used in this chapter, the term:

  1. “Dessert wine” means a wine having an alcoholic strength of more than 14 percent alcohol by volume but not more than 24 percent alcohol by volume.
  2. “Domestic winery” means any winery, manufacturer, maker, producer, or bottler of wine located within the state.
  3. “Foreign winery” means any winery, manufacturer, maker, producer, or bottler of wine located outside the state.
  4. “Table wine” means a wine having an alcoholic strength of not more than 14 percent alcohol by volume.
  5. “Winery” means a manufacturer of wine.

History. — Code 1933, § 5A-5101, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 2014, p. 366, § 2/SB 286.

3-6-2. Determination as to when possession occurs.

For purposes of this chapter, with respect to wines manufactured within this state, possession occurs when the product is first identifiable as wine, in accordance with this title and such regulations as may be promulgated by the commissioner pursuant to this title. With respect to wines shipped from outside this state to a destination within this state, possession in the consignee occurs when the wine first physically enters the state or when the risk of loss from destruction or casualty to the wine is shifted from the consignor to the consignee located in this state, in accordance with the contract of the parties and the substantive commercial law of this state, whichever event occurs first.

History. — Code 1933, § 58-803, enacted by Ga. L. 1977, p. 1316, § 1; Code 1933, § 5A-5102, enacted by Ga. L. 1980, p. 1573, § 1.

Cross references. —

Placement of risk of loss in absence of breach of contract, § 11-2-509 .

3-6-3. Household production.

  1. A head of a household may produce 200 gallons of wine in any one calendar year to be consumed within his own household without any requirement to be licensed for such purpose. Wine so produced shall not be subject to any excise tax imposed by this chapter.
  2. For purposes of this Code section, a single individual who is not a dependent of another person for purposes of Georgia income taxation shall be considered a head of a household.

History. — Code 1933, § 58-826, enacted by Ga. L. 1977, p. 1316, § 1; Code 1933, § 5A-5103, enacted by Ga. L. 1980, p. 1573, § 1.

RESEARCH REFERENCES

ALR. —

What constitutes manufacturing and who is a manufacturer under tax laws, 17 A.L.R.3d 7.

3-6-4. Removal of partially consumed bottle of wine from premises.

Notwithstanding any other contrary provision of law, any restaurant which is licensed to sell alcoholic beverages for consumption on the premises may permit a patron to remove one unsealed bottle of wine per patron for consumption off premises, if the patron has purchased a meal and consumed a portion of the bottle of wine which has been purchased on the premises with such meal on the restaurant’s premises. A partially consumed bottle of wine that is to be removed from the premises must be securely resealed by the licensee or its employees before removal from the premises. The partially consumed bottle of wine shall be placed in a bag or other container that is secured in such a manner that it is visibly apparent if the container has been subsequently opened or tampered with, and a dated receipt for the bottle of wine and meal shall be provided by the licensee and attached to the container. If transported in a motor vehicle, the container with the resealed bottle of wine shall be placed in a locked glove compartment, a locked trunk, or the area behind the last upright seat of a motor vehicle that is not equipped with a trunk.

History. — Code 1981, § 3-6-4 , enacted by Ga. L. 2008, p. 834, § 1/SB 55.

Cross references. —

Consumption of alcoholic beverage or possession of open container of alcoholic beverage in passenger area of motor vehicle, § 40-6-253 .

OPINIONS OF THE ATTORNEY GENERAL

Construction with other law. — The enforcement provisions of O.C.G.A. § 40-6-253 remain in effect, including for bottles of wine resealed pursuant to O.C.G.A. § 3-6-4 ; the 2008 changes in the law were not intended to and did not authorize carrying open alcoholic beverage containers in the passenger area of vehicles. 2008 Op. Att'y Gen. No. 2008-7.

Article 2 State License Requirements and Regulations for Distribution and Sale

Cross references. —

Occupational taxes generally, T. 48, C. 13.

3-6-20. Levy and amount of state occupational tax; application for license.

  1. An annual occupational license tax is imposed upon each winery, manufacturer, broker, importer, wholesaler, and retail dealer of wine in this state, as follows:
    1. Upon each winery and manufacturer   $ 1,000.00 (2) Upon each wholesale dealer    500.00 (3) Upon each importer    500.00 (4) Upon each broker     50.00 (5) Upon each retail dealer     50.00 (6) Upon each special event use permit applicant     50.00

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  2. An annual occupational license tax shall be paid for each place of business operated. An application for the applicable license required pursuant to this title along with the payment of the tax required by subsection (a) of this Code section shall be submitted to the department immediately upon assuming control of the place of business and annually thereafter for so long as the business is operated.

History. — Code 1933, § 58-804, enacted by Ga. L. 1977, p. 1316, § 1; Code 1933, § 5A-5501, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 2012, p. 827, § 6/HB 1066.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 120 et seq., 168 et seq.51 Am. Jur. 2d, Licenses and Permits, § 7 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 400 et seq., 409 et seq.

ALR. —

Exacting for intoxicating liquor license an amount in excess of cost of regulation in order to limit the number and determine the character and responsibility of licensees, 103 A.L.R. 327 .

Intoxicating liquor business as subject to a tax imposed generally on occupations or business, 117 A.L.R. 686 .

3-6-21. Filing of bonds by applicants for licenses generally; waiver of bond requirement.

  1. All applicants for licenses other than retail licenses shall file with the commissioner, along with each initial application, a bond:
    1. Conditioned to pay all sums which may become due by the applicant to the state as taxes, license fees, or otherwise, arising out of the operation of the business for which licensure is sought; and
    2. Conditioned to pay all penalties which may be imposed upon the applicant for failure to comply with the laws and rules and regulations pertaining to wines.

      The surety for the bonds shall be a surety company licensed to do business in this state, and the bonds shall be in such form as may be required by the commissioner and may be for a term of up to five calendar years.

  2. The bonds required pursuant to subsection (a) of this Code section shall be in the amount of $5,000.00.
  3. All applicants for annual renewal of licenses other than retail licenses must file an annual bond or have a multiyear bond on file with the department that extends at least through the end of the calendar year for which renewal is sought. Such bonds must meet the same conditions as those filed with the initial application.

History. — Code 1933, § 58-807, enacted by Ga. L. 1977, p. 1316, § 1; Code 1933, § 5A-5502, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 49; Ga. L. 2006, p. 206, § 10/HB 1248.

Code Commission notes. —

Pursuant to Code Section 28-9-5, in 2006, a period was added at the end of subsection (b).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 162 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 388 et seq.

3-6-21.1. Licensing of farm wineries to engage in retail and wholesale sales; surety bond; excise taxes.

  1. As used in this Code section, the term:
    1. “Farm winery” means a winery which makes at least 40 percent of its annual production from agricultural produce grown in the state where the winery is located and:
      1. Is located on premises, a substantial portion of which is used for agricultural purposes, including the cultivation of grapes, berries, or fruits to be utilized in the manufacture or production of wine by the winery; or
      2. Is owned and operated by persons who are engaged in the production of a substantial portion of the agricultural produce used in its annual production.

        For purposes of this paragraph, the commissioner shall determine what is a substantial portion of such winery premises or agricultural produce.

    2. “Georgia farm winery” means a farm winery which is licensed by the commissioner to manufacture wine in Georgia.
    3. “Tasting room” means an outlet for the promotion of a farm winery’s wine by providing samples of such wine to the public and for the sale of such wine at retail for consumption on the premises and for sale in closed packages for consumption off the premises. Samples of wine can be given free of charge or for a fee.
  2. The commissioner may authorize any Georgia farm winery to offer wine samples and to make retail sales of its wine and the wine of any other Georgia farm winery in tasting rooms at the winery and at five additional locations in this state for consumption on the premises and in closed packages for consumption off the premises; provided, however, that notwithstanding any other provisions of this title to the contrary, if the licensee is also issued a license pursuant to Code Section 3-4-24, the commissioner shall not authorize more than one tasting room for such Georgia farm winery and shall require that such tasting room shall be located on the licensed premises of the Georgia farm winery; and provided, further, that the Georgia farm winery shall not sell its wine or the wine of any other farm winery in more than one tasting room, and such tasting room shall be located on the licensed premises of the Georgia farm winery. For purposes of this subsection, the term “licensed premises” shall mean the premises for which the farm winery license is issued or property located contiguous to the farm winery and owned by the farm winery.
    1. The commissioner may authorize any licensee which is a farm winery to sell up to 24,000 gallons per calendar year of its wine at wholesale within the state; provided, however, that the commissioner shall not authorize any licensed farm winery to sell its wine at wholesale unless such licensed farm winery shall have first offered its products for sale at a fair market wholesale price to a licensed Georgia wholesaler and such wholesaler does not accept the farm winery’s product within 30 days of such offer.
    2. A farm winery licensee shall also be authorized to sell, deliver, or ship its wine in bulk or in bottles, whether labeled or unlabeled, in accordance with regulations of the commissioner, to Georgia farm winery licensees and shall be authorized to acquire and receive deliveries and shipments of such wine made by Georgia farm winery licensees.
    3. A Georgia farm winery licensee shall be authorized, in accordance with regulations of the commissioner, to acquire and receive deliveries and shipments of wine in bulk from out-of-state producers and shippers in an amount not to exceed 40 percent of its annual production, provided that the Georgia farm winery licensee receiving any such shipment or shipments files timely reports with the commissioner and keeps such records of the receipt of such shipment or shipments as may be required by the commissioner.
    4. Any wine received in bulk pursuant to paragraph (3) of this subsection shall have levied thereon the requisite taxes as prescribed by Code Section 3-6-50, and such taxes shall be reported and remitted to the commissioner as provided in Code Section 3-2-6.
  3. The annual license tax for each license issued pursuant to this Code section shall be $50.00.
  4. The surety bond required as a condition upon issuance of a license pursuant to this Code section shall be the same as that required pursuant to Code Section 3-6-21 with respect to wineries.
  5. Wines sold at retail by a manufacturer as provided in subsection (b) of this Code section shall have levied thereon an excise tax as prescribed by Code Section 3-6-50, and such tax shall be reported and remitted to the commissioner as provided in Code Section 3-2-6.

History. — Code 1933, § 5A-5511, enacted by Ga. L. 1981, p. 1269, § 52; Ga. L. 1982, p. 1111, §§ 1, 3; Ga. L. 1983, p. 1116, § 1; Ga. L. 1984, p. 1142, § 1; Ga. L. 1985, p. 1403, § 1; Ga. L. 2001, p. 1026, § 1; Ga. L. 2008, p. 773, § 1/HB 393; Ga. L. 2009, p. 8, § 3/SB 46; Ga. L. 2014, p. 214, § 2/HB 825; Ga. L. 2017, p. 770, § 1/SB 226.

The 2017 amendment, effective May 9, 2017, substituted “40 percent” for “20 percent” in the middle of paragraph (c)(3); and substituted “paragraph 3” for “paragraph(3)” near the beginning of paragraph (c)(4).

Code Commission notes. —

Pursuant to Code Section 28-9-5, in 2017, “paragraph (3)” was substituted for “paragraph 3” in paragraph (c)(4).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 11, 186, 214, 228, 231, 238. 58 Am. Jur. 2d, Occupations, Trades, and Professions, § 8 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 19, 32 et seq., 83, 84, 425 et seq. 53 C.J.S., Licenses, §§ 18, 19, 36.

3-6-21.2. Sunday sales on farm wineries; off-site sales; sales in “special entertainment districts.”

Notwithstanding any other provisions of this title to the contrary, in all counties in which the sale of wine is lawful by a farm winery and in all municipalities in which the sale of wine is lawful by a farm winery, a farm winery which is licensed to sell its wine in a tasting room or other licensed farm winery facility within the county or municipality, as the case may be, for consumption on the premises or in closed packages for consumption off the premises shall be authorized to sell its wine and the wine of any other Georgia farm winery licensee on Sundays from 12:30 P.M. until 12:00 Midnight in a tasting room or other licensed farm winery facility, to the same extent as its county or municipal license would otherwise permit; provided, however, that if such sales of wine on Sundays are lawful at a time earlier than 12:30 P.M. within the county or municipality in which the licensed premises of the Georgia farm winery is located, the Georgia farm winery shall be authorized to sell its wine and the wine of any other Georgia farm winery licensee beginning at such earlier time. Nothing in this Code section shall be construed so as to authorize a farm winery to sell wine as provided in this Code section on any other premises which are not actually located on the property where such farm wine is produced, except in special entertainment districts designated by the local governing authority of the county or municipality, as applicable.

History. — Code 1981, § 3-6-21.2 , enacted by Ga. L. 1988, p. 222, § 1; Ga. L. 1991, p. 1164, § 1; Ga. L. 1997, p. 1514, § 1B; Ga. L. 2001, p. 1026, § 1; Ga. L. 2018, p. 896, § 2/SB 17.

The 2018 amendment, effective May 8, 2018, in the first sentence of this Code section, substituted “a tasting” for “the tasting”, and added the proviso.

Code Commission notes. —

Pursuant to Code Section 28-9-5, in 1988, “license” was substituted for “licenses” near the end of the first sentence.

Law reviews. —

For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 1 (2018).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 11, 186, 214, 228, 231, 238.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 19, 32 et seq., 83, 84, 85, 86, 425 et seq.

3-6-21.3. Sale by farm wineries of wines, distilled spirits, and malt beverages on or contiguous to its own premises.

  1. As used in this Code section, the term:
    1. “Affiliate” means any person controlling, controlled by, or under common control with a farm winery.
    2. “Farm winery” means a farm winery as defined in Code Section 3-6-21.1 that is located in Georgia.
    3. “Tasting room” has the meaning provided by Code Section 3-6-21.1.
    1. Notwithstanding any other provision of this title to the contrary, in all counties or municipalities in which the sale of wine is lawful, the commissioner may authorize any farm winery licensee to sell its wine and the wine of any other farm winery licensee for consumption on the premises at facilities located on the premises of the winery or on property located contiguous to the winery and owned by the winery or by an affiliate of the winery.
    2. Notwithstanding any other provisions of this title to the contrary, in all counties or municipalities in which the sale of distilled spirits, malt beverages, and wines is lawful, the commissioner further may authorize such licensee to make sales of distilled spirits, malt beverages, and wines not produced by a farm winery for consumption in its tasting rooms and at facilities located on the premises of the winery or on property located contiguous to the winery and owned by the winery or by an affiliate of the winery, provided that any alcoholic beverages sold pursuant to this paragraph shall be purchased by the winery from a licensed wholesaler at wholesale prices.

History. — Code 1981, § 3-6-21.3 , enacted by Ga. L. 1997, p. 397, § 1; Ga. L. 2001, p. 1026, § 1; Ga. L. 2008, p. 773, § 2/HB 393.

3-6-21.4. Routes and signage for the Georgia Wine Highway.

The Department of Community Affairs and the Department of Transportation shall, with due consideration to the farm wineries in Georgia, collaborate to designate appropriate routes and signage for the Georgia Wine Highway.

History. — Code 1981, § 3-6-21.4 , enacted by Ga. L. 2001, p. 1026, § 1.

Cross references. —

Traffic signs, signals, and markings, T. 40, Ch. 6, A. 2.

3-6-21.5. Production of fortified wine.

A winery may purchase distilled spirits directly from a manufacturer of distilled spirits and blend with wine manufactured by the winery to produce fortified wine. Such distilled spirits shall not be used by the winery for any other purpose or used to create any other type of alcoholic beverage or product.

History. — Code 1981, § 3-6-21.5 , enacted by Ga. L. 2014, p. 366, § 3/SB 286.

3-6-22. Requirement of license for shipment of wines into state; contents of application; accompanying documents and labels; approval of wholesalers and wholesalers’ territories by commissioner.

  1. No shipper shall be permitted to ship wines into this state without first obtaining a proper license from the commissioner in the manner provided in this article.
  2. In addition to the bond required in Code Section 3-6-21 and such other documentation required by the commissioner pursuant to this title, each shipper shall:
    1. Submit with his application one label for each brand of wine to be shipped for the first time by the shipper into this state;
    2. Designate in the application for registration the sales territories for each of its brands sold in this state; and
    3. Name one licensed wholesaler in each territory who shall be the exclusive distributor of the brand within the territory.
  3. Designations of wholesalers and wholesalers’ territories as provided in this Code section shall be initially approved by the commissioner and shall not be changed or initially disapproved except for cause. The commissioner shall determine cause after a hearing under regulations promulgated by the commissioner for such purposes.

History. — Code 1933, § 58-809, enacted by Ga. L. 1977, p. 1316, § 1; Code 1933, § 5A-5503, enacted by Ga. L. 1980, p. 1573, § 1.

Law reviews. —

For note and comment, “Dude, Where’s My Wine? The Potential Effect of Granholm v. Heald on Georgia Direct Wine Shipment Regulations,” see 23 Ga. St. U. L. Rev. 631 (2007).

JUDICIAL DECISIONS

Effect of section on contractual rights between wholesaler and subjobber. —

This section does not purport to regulate private contractual rights between wine wholesaler, designated by out-of-state wineries as exclusive distributor of certain brands, and wholesaler’s subjobber or salesperson, also a wholesaler. Chilivis v. National Distrib. Co., 239 Ga. 651 , 238 S.E.2d 431 (1977).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 11, 30 et seq., 102, 186, 192 et seq., 201, 209.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 78, 160, 404, 425 et seq., 440, 441.

3-6-23. Persons to whom wine may be sold by wholesale dealers.

Except as provided in paragraph (5) of subsection (a) of Code Section 3-2-13, licensed wholesale dealers shall sell wine only to other licensed wholesale dealers and to importers and retail dealers licensed in this state.

History. — Code 1933, § 58-821, enacted by Ga. L. 1977, p. 1316, § 1; Code 1933, § 5A-5507, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 50; Ga. L. 1993, p. 91, § 3; Ga. L. 1994, p. 97, § 3.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 11, 102, 186, 201, 209.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 78, 160, 404, 425 et seq., 440, 441.

3-6-24. Preparation and retention of invoices of sales by wholesale dealers.

Each wholesale dealer, at the time of any sale of wine, shall prepare and keep a copy of a sales invoice containing:

  1. The name of the wholesale dealer;
  2. The name, address, and license number of the licensed importer, wholesaler, or retailer making the purchase;
  3. The quantity and container sizes of wine sold;
  4. The date of the sale; and
  5. Any other information the commissioner may require.

History. — Code 1933, § 58-820, enacted by Ga. L. 1977, p. 1316, § 1; Code 1933, § 5A-5506, enacted by Ga. L. 1980, p. 1573, § 1.

RESEARCH REFERENCES

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 78, 160, 404, 415 et seq., 440, 441.

3-6-25. Wine acquired by retail dealers from persons other than licensed wholesale dealers declared contraband.

Except as provided in Code Sections 3-6-21.1 through 3-6-21.3 and Code Section 3-6-21.5, wine possessed, sold, or offered for sale by a retail dealer which was purchased or otherwise acquired from any person other than a wholesale dealer authorized to do business under this chapter is declared to be contraband and shall be seized and disposed of by the commissioner in the manner provided in this title.

History. — Code 1933, § 58-815, enacted by Ga. L. 1980, p. 1316, § 1; Code 1933, § 5A-5504, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 2014, p. 366, § 4/SB 286.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 393 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, 33, 78, 160, 404, 425 et seq., 440, 441. 48A C.J.S., Intoxicating Liquors, §§ 750 et seq., 777 et seq.

3-6-25.1. Display of advertisement or information regarding prices of wine in visible places; sales below cost prohibited; exceptions authorized.

  1. No person holding a retail dealer’s license to deal in wine by the package shall display any advertisement of or information regarding the price or prices of any wine in any show window or other place visible from outside the licensee’s place of business.
  2. No person licensed to sell wine by the package for carry-out purposes shall sell such beverages at a price less than the cost which such licensee pays for such wine. As used in this subsection, cost shall include the wholesale price plus the local excise tax imposed, as reflected in invoices which the commissioner of revenue may require to be maintained on said licensee’s place of business.
  3. The commissioner of revenue shall be authorized to adopt such regulations as he or she deems necessary to provide for exception to the prohibition provided in subsection (b) of this Code section for reasons relating to liquidation of inventory, close-out of brands, outdated products, or any other reason the commissioner may determine to merit an exception.

History. — Code 1981, § 3-6-25.1 , enacted by Ga. L. 1996, p. 785, § 2.

Editor’s notes. —

Ga. L. 1996, p. 785, § 3, not codified by the General Assembly, provides for severability.

3-6-26. Delivery, transportation, receipt, and storage of wine sold by wholesale dealers to retail dealers.

All wines sold by a wholesale dealer to a retail dealer shall be delivered only to the premises of a licensed retail dealer and transported only by a conveyance owned, or leased, and operated by a wholesale dealer, or owned, or leased, and operated by a wholesale dealer’s employee, who is designated to deal in the brands of wines sold and is licensed to make sales and deliveries within the municipality or county in which the sale or delivery is made. The wine so sold shall not be delivered to, received, or stored at any place other than premises for which state and local retail licenses have been issued.

History. — Code 1933, § 58-819, enacted by Ga. L. 1977, p. 1316, § 1; Code 1933, § 5A-5505, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1993, p. 83, § 2.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 11, 102, 186, 201, 209.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 78, 160, 404, 425 et seq., 440, 441.

3-6-26.1. Requirement as to possession of invoices or delivery tickets when transporting wine upon which taxes not paid; seizure as contraband when transported without invoices or delivery tickets.

  1. Every person who transports wine, upon which the taxes imposed by this title have not been paid, into or out of or within this state shall have in his actual personal possession invoices or delivery tickets showing the name and address of the seller or consignor, the name and address of the purchaser or consignee, the quantity of wine being transported, and the name and address of the person responsible for payment of the state tax at the ultimate destination.
  2. All wines, and the vehicles in which the wines are being transported, which are transported into or out of or within this state without accompanying invoices or delivery tickets are declared to be contraband and shall be seized by the commissioner or his agents. The seizure, disposition, and any claims shall be handled pursuant to Code Section 3-2-35.

History. — Code 1933, § 5A-5510, enacted by Ga. L. 1981, p. 1269, § 51.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 26 et seq., 90 et seq., 192 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 415 et seq. 48A C.J.S., Intoxicating Liquors, §§ 750 et seq., 777 et seq.

3-6-27. Registration of agents, representatives, salesmen, and employees of manufacturers, importers, producers, or brokers.

Every agent, representative, salesman, and employee of each winery, manufacturer, importer, producer, or broker shipping, or causing to be shipped, wines into the state shall register with the commissioner on forms prepared by the commissioner before engaging in the selling, promoting, displaying, or advertising of wine.

History. — Code 1933, § 58-823, enacted by Ga. L. 1977, p. 1316, § 1; Code 1933, § 5A-5508, enacted by Ga. L. 1980, p. 1573, § 1.

RESEARCH REFERENCES

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 442, 522, 524 et seq.

3-6-28. Wine to be in containers specified; standards of fill for wine; exemptions from requirements as to container size.

All wine shipped into this state and all wine manufactured within this state shall be in containers specified in the Standards of Fill for Wine prescribed by the United States Department of the Treasury for wines shipped in interstate commerce. The federal regulations relating to Standards of Fill for Wine are adopted and incorporated by reference in this Code section. Wines manufactured and produced in this state shall be exempt from this Code section, provided the container sizes were in use and exempt from such federal regulations on January 1, 1977.

History. — Code 1933, § 58-824, enacted by Ga. L. 1977, p. 1316, § 1; Code 1933, § 5A-5509, enacted by Ga. L. 1980, p. 1573, § 1.

Code of Federal Regulations. —

As to Standards of Fill for Wine, see 27 CFR § 4.70 et seq.

RESEARCH REFERENCES

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 436 et seq.

3-6-29. Content requirements for wines manufactured by domestic and farm wineries; rules and regulations.

Reserved. Repealed by Ga. L. 2008, p. 773, § 3/HB 393, effective July 1, 2008.

Editor’s notes. —

This Code section was based on Ga. L. 1985, p. 979, § 2; Ga. L. 1986, p. 10, § 3.

3-6-30. Creation of limited exceptions regarding direct shipments.

The General Assembly reaffirms the findings, determinations, and declarations in Code Section 3-3-31 regarding direct shipments of alcoholic beverages, but creates limited exceptions set forth in Code Sections 3-6-31 and 3-6-32 to permit the direct shipment of wine to residents of this state under certain circumstances.

History. — Code 1981, § 3-6-30 , enacted by Ga. L. 2000, p. 1401, § 2.

Cross references. —

Legislative findings, § 3-3-31 .

Law reviews. —

For note on 2000 enactment of O.C.G.A. §§ 3-6-30 to 3-6-32 , see 17 Ga. St. U. L. Rev. 7 (2000).

For note and comment, “Dude, Where’s My Wine? The Potential Effect of Granholm v. Heald on Georgia Direct Wine Shipment Regulations,” see 23 Ga. St. U. L. Rev. 631 (2007).

3-6-31. Special order shipping license requirements and regulations.

  1. For purposes of this Code section, the term “winery” means any maker or producer of wine whether in this state or in any other state, who holds a valid federal basic wine manufacturing permit.
  2. Notwithstanding any other provision of this title to the contrary, any shipper which is also a winery may be authorized to make direct shipments of wine to consumers in this state, without complying with the provisions of Code Section 3-6-22, upon obtaining a special order shipping license from the commissioner pursuant to this Code section.
  3. A special order shipping license shall only be issued to a winery upon compliance with all applicable provisions of this title and the regulations promulgated pursuant to this title, and upon payment of the license fee designated for retail dealers in Code Section 3-6-20.
  4. A special order shipping license shall entitle the winery to ship wine upon order directly to consumers for personal or household use in this state without designating wholesalers as required by Code Section 3-6-22, provided that:
    1. The holder of a special order shipping license shall only ship brands of wine for which the holder has submitted labels to the commissioner;
    2. No holder of a special order shipping license shall be permitted to ship in excess of 12 standard cases of wine of one brand or a combination of brands into this state to any one consumer or address per calendar year;
    3. Before accepting an order from a consumer in this state, the holder of a special order shipping license shall require that the person placing the order state affirmatively that he or she is of the age required by Code Section 3-3-23 and shall verify the age of such person placing the order either by the physical examination of an approved government issued form of identification or by utilizing an Internet based age and identification service;
    4. A special order shipping license shall not authorize the shipment of any wine to any premises licensed to sell alcoholic beverages pursuant to this title; and
    5. Every shipment of wine by the holder of a special order shipping license shall be clearly marked “Alcoholic Beverages, Adult Signature Required,” and the carrier delivering such shipment shall be responsible for obtaining the signature of an adult who is at least 21 years of age as a condition of delivery.
  5. The failure to comply strictly with the requirements of this Code section, Code Section 3-3-23, and all applicable provisions of this title and regulations promulgated pursuant to this title shall be grounds for the revocation of a special order shipping license or other disciplinary action by the commissioner. Upon revocation of a special order shipping license for shipment of wine to a person not of age as required by Code Section 3-3-23, such winery shall not be issued any special order shipping license pursuant to this Code section for a period of five years from the date of revocation.
  6. The holder of a special order shipping license shall collect all excise taxes imposed by Code Section 3-6-50, shall remit such taxes in the same manner as licensed wine wholesalers, and shall accompany such remittance with such reports, documentation, and other information as may be required by the commissioner. In addition, an applicant for and a holder of a special order shipping license, as a condition of receiving and holding a valid license, shall:
    1. Agree to collect and to pay applicable Georgia state and local sales tax on each sale shipped to a consumer in Georgia;
    2. Accompany each remittance with such sales tax reports, documentation, and other information as may be required by the commissioner; and
    3. Consent to enforcement of the provisions of this Code section by the department and to the jurisdiction of the courts of Georgia for the collection of such taxes or other moneys owing, including interest and penalties.
  7. The commissioner may promulgate such rules and regulations as are necessary and appropriate for the enforcement of this Code section.

History. — Code 1981, § 3-6-31 , enacted by Ga. L. 2000, p. 1401, § 2; Ga. L. 2008, p. 376, § 1/HB 1061.

Cross references. —

Minimum age for furnishing, purchasing, or possession of alcoholic beverages, § 3-3-23 .

Law reviews. —

For note and comment, “Dude, Where’s My Wine? The Potential Effect of Granholm v. Heald on Georgia Direct Wine Shipment Regulations,” see 23 Ga. St. U. L. Rev. 631 (2007).

3-6-32. Shipment of wine by winery to consumers; circumstances.

  1. Notwithstanding any other provision of this title to the contrary, a winery located within this state or outside this state that holds a federal basic wine manufacturing permit, whether licensed under this title or not and without regard to brand or label registrations or designations of wholesalers pursuant to Code Section 3-6-22, shall be permitted to ship wine directly to consumers in this state for personal or household use under the following circumstances:
    1. The consumer must purchase the wine while physically present on the premises of the winery;
    2. The winery must verify that the consumer purchasing the wine is of the age required by Code Section 3-3-23 and is not licensed pursuant to this title; and
    3. No winery shall ship in excess of five cases of any brand or combination of brands to any one consumer or any one address in this state in any calendar year.
  2. The commissioner may promulgate such rules and regulations as are necessary and appropriate for the enforcement of this Code section.

History. — Code 1981, § 3-6-32 , enacted by Ga. L. 2000, p. 1401, § 2.

Cross references. —

Minimum age for furnishing, purchasing, or possession of alcoholic beverages, § 3-3-23 .

Law reviews. —

For note and comment, “Dude, Where’s My Wine? The Potential Effect of Granholm v. Heald on Georgia Direct Wine Shipment Regulations,” see 23 Ga. St. U. L. Rev. 631 (2007).

Article 3 Local License Requirements

3-6-40. Requirement by counties or municipalities of licenses for manufacture, distribution, or sale of wine; effect of revocation of license issued by commissioner or by county or municipality upon license issued by other.

  1. Except as otherwise provided in this Code section, the businesses of manufacturing, distributing, and selling wine 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. A farm winery, as defined in Code Section 3-6-21.1, which is qualified and licensed by the state shall need no county or municipal license to manufacture wine or to distribute such wine at wholesale in accordance with this chapter if the farm winery has given to the municipal or county governing authority 60 days’ written notice of its intention to commence operations in the county or municipality and the county or municipal governing authority has not within said 60 day period adopted a resolution prohibiting the farm winery from commencing operations in the county or municipality without a local license.
  2. When any county or municipal license issued pursuant to this Code section is revoked by the governing authority of such county or municipality, any similar wine license issued to the same person by the commissioner pursuant to this chapter shall automatically become invalid in the county or municipality in which the license was revoked.
  3. When any state wine license issued pursuant to this chapter is revoked by the commissioner, any similar wine license issued to the same person by any county or municipality of this state shall automatically become invalid.

History. — Code 1933, § 58-811, enacted by Ga. L. 1977, p. 1316, § 1; Code 1933, § 5A-5301, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1984, p. 1142, § 2.

JUDICIAL DECISIONS

Constitutionality. —

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

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 94, 105, 109, 122.

C.J.S. —

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

Article 4 Excise Taxation

Cross references. —

Sales and use taxes, T. 48, C. 8.

PART 1 State

3-6-50. Levy and amount of tax.

  1. There shall be levied and imposed on the first sale, use, or final delivery within this state of all table wines an excise tax in the amount of 11¢ per liter and a proportionate tax at the same rate on all fractional parts of a liter.
  2. There shall be imposed upon the importation for use, consumption, or final delivery into this state of all table wines an import tax in the amount of 29¢ per liter and a proportionate tax at the same rate on all fractional parts of a liter.
  3. There shall be levied and imposed upon the first sale, use, or final delivery within this state of all dessert wines an excise tax in the amount of 27¢ per liter and a proportionate tax at the same rate on all fractional parts of a liter.
  4. There shall be levied and imposed upon the importation for use, consumption, or final delivery into this state of all dessert wines an import tax in the amount of 40¢ per liter and a proportionate tax at the same rate on all fractional parts of a liter.

History. — Code 1933, § 58-803, enacted by Ga. L. 1977, p. 1316, § 1; Code 1933, § 5A-5701, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 53; Ga. L. 1982, p. 1111, §§ 2, 4; Ga. L. 1983, p. 3, § 4; Ga. L. 1985, p. 662, § 2; Ga. L. 1985, p. 665, § 3.

Editor’s notes. —

Ga. L. 1985, p. 662, § 2, effective March 31, 1985, also amended this Code section. However, that amendment has been treated as superseded by Ga. L. 1985, p. 665, § 3.

Ga. L. 1985, p. 665, § 1, not codified by the General Assembly, contained legislative findings that the cost of regulating and administering the manufacture, distribution, and sale of alcohol, distilled spirits, table wines, and dessert wines consumed in Georgia is greater for imported alcohol, spirits, and wines than it is for alcohol, spirits, and wines produced within Georgia and that it is in the best interests of the citizens of Georgia that the increased costs be provided for by taxation.

Ga. L. 1985, p. 665, § 4, not codified by the General Assembly, provided that the provisions of the Act shall not be severable and that in the event that any section or portion of any section of the Act is declared or adjudged to be invalid or unconstitutional, such declaration or adjudication shall render the entire Act invalid, void, and of no effect and shall specifically revive the provisions affected by the Act as such provisions stood before the enactment of the Act, as amended by laws other than the Act.

JUDICIAL DECISIONS

Constitutionality. —

Georgia statutes providing for an import tax on all distilled spirits and table wines imported for use, consumption, or final delivery into the state do not violate the equal protection and commerce clauses of the federal constitution. Heublein, Inc. v. State, 256 Ga. 578 , 351 S.E.2d 190 (1987).

RESEARCH REFERENCES

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 409 et seq.

PART 2 Local

3-6-60. Levy and amount of tax generally; rate of tax; manner of imposition, payment, and collection; imposition of tax by both county and municipality located within county.

  1. The governing authority of each municipality or county where the sale of wine is permitted by this chapter, at its discretion, may levy an excise tax on the first sale or use of wine by the package, which tax shall not exceed 22¢ per liter and a proportionate tax at the same rate on all fractional parts of a liter.
  2. The rate of taxation, the manner of its imposition, payment, and collection, and all other procedures related to the tax authorized by subsection (a) of this Code section shall be as provided for by each county or municipality electing to exercise the power conferred by subsection (a) of this Code section.
  3. No county excise tax shall be imposed, levied, or collected in any portion of a county in which a municipality within the county is imposing the same tax on wine sold by the package.

History. — Code 1933, § 5A-5731, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 54.

PART 3 Exemptions

3-6-70. Exemptions from tax.

The taxes imposed by this article shall not be levied with respect to:

  1. Wine sold to and used by established and recognized churches and synagogues for use in sacramental services only;
  2. Any sale of wine which is exempt from taxation by the state under the Constitution of the United States; or
  3. Wine sold to persons outside this state for resale or consumption outside this state.

History. — Code 1933, § 58-803, enacted by Ga. L. 1977, p. 1316, § 1; Code 1933, § 5A-5761, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1983, p. 1116, § 2.

RESEARCH REFERENCES

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 400 et seq.

3-6-71. Wines containing less than one-half of 1 percent alcohol by volume.

Wines which contain less than one-half of 1 percent alcohol by volume shall not be subject to any tax levied under this title or any tax levied pursuant to authority granted by this title.

History. — Code 1981, § 3-6-71 , enacted by Ga. L. 1987, p. 562, § 2.

CHAPTER 7 Sale of Distilled Spirits by Private Clubs

Administrative rules and regulations. —

Farm wineries, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Department of Revenue, Alcohol and Tobacco Tax Unit, Chapter 560-2-10.

OPINIONS OF THE ATTORNEY GENERAL

Authorization for sales. — If sales of distilled spirits are not already lawful in a local jurisdiction, they may be made lawful only at private clubs by the procedure set out in O.C.G.A. T. 3, Ch. 7. 1983 Op. Atty Gen. No. U83-12.

RESEARCH REFERENCES

ALR. —

Test of intoxicating character of liquor, 4 A.L.R. 1137 ; 11 A.L.R. 1233 ; 19 A.L.R. 512 ; 36 A.L.R. 725 ; 91 A.L.R. 513 .

Criminal responsibility of one who acts as sentinel during violation of intoxicating liquor law, 64 A.L.R. 427 .

Intoxicating liquor business as subject to a tax imposed generally on occupations or businesses, 117 A.L.R. 686 .

What constitutes injury to means of support within civil damage or dramshop act, 4 A.L.R.3d 1332.

Third person’s participating in or encouraging drinking as barring him from recovering under civil damage or similar acts, 26 A.L.R.3d 1112.

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.

Article 1 General Provisions

Cross references. —

Nonprofit corporations generally, T. 14, C. 3.

County and municipal regulation of roadhouses, public dance halls, and other facilities, § 43-21-50 .

3-7-1. Definitions.

As used in this chapter, the term:

  1. “Bona fide private club” means any nonprofit association organized under the laws of this state which:
    1. Has been in existence at least one year prior to the filing of its application for a license to be issued pursuant to this chapter;
    2. Has at least 75 regular dues-paying members;
    3. Owns, hires, or leases a building or space within a building for the reasonable use of its members, which building or space:
      1. Has suitable kitchen and dining room space and equipment; and
      2. Is staffed with a sufficient number of employees for cooking, preparing, and serving meals for its members and guests; and
    4. Has no member, officer, agent, or employee directly or indirectly receiving, in the form of salary or other compensation, any profits from the sale of alcoholic beverages beyond a fixed salary.
  2. “Fixed salary” means the amount of compensation paid any member, officer, agent, or employee of a bona fide private club as may be fixed for him by its members at a prior annual meeting or by the governing body out of the general revenue of the club and shall not include any commission on any profits from the sale of alcoholic beverages. For the purposes of this definition, tips or gratuities which are added to the bills under club regulations shall not be considered profits from the sale of alcoholic beverages.

History. — Ga. L. 1978, p. 1155, § 2; Code 1933, § 5A-6101, enacted by Ga. L. 1980, p. 1573, § 1.

OPINIONS OF THE ATTORNEY GENERAL

“Bona fide private club.” — The definition of “bona fide private club” contained in O.C.G.A. § 3-7-1 does not restrict a local government from otherwise exercising its regulatory authority over beer and wine, nor over distilled spirits if their sale is already lawful therein. 1983 Op. Atty Gen. No. U83-12.

RESEARCH REFERENCES

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 170.

3-7-2. Applicability of chapter to private clubs.

Notwithstanding any other provision of this chapter, a bona fide private club at which the sale of distilled spirits or other alcoholic beverages by the drink for consumption only on the premises where sold is otherwise authorized pursuant to this chapter is authorized to sell those same distilled spirits and other alcoholic beverages by the drink at any time on Sundays.

History. — Code 1981, § 3-7-2 , enacted by Ga. L. 1996, p. 830, § 1A; Ga. L. 1999, p. 1225, § 2.

Cross references. —

Service of alcohol at technical institute, § 3-8-6 .

OPINIONS OF THE ATTORNEY GENERAL

Exemption from local regulation. — O.C.G.A. § 3-7-2 exempts bona fide private clubs from regulation by local counties and municipalities regarding hours of sale of distilled spirits by the drink for consumption on Sundays. 1996 Op. Atty Gen. No. U96-23.

Sale of alcohol by the drink. — O.C.G.A. § 3-7-2 does not apply to private clubs conducting sales of alcoholic beverages by the drink where the sales are authorized under a provision of law other than O.C.G.A. Ch. 7, T. 3. 2002 Op. Atty Gen. No. U2002-4.

Article 2 State Authorization and Regulation

3-7-20. Issuance of alcoholic beverage licenses to private clubs by commissioner generally; promulgation of rules and regulations generally; privileges conferred by licenses.

The commissioner may issue alcoholic beverage licenses to bona fide private clubs in any county or municipality within the state and may promulgate such regulations as he deems necessary for the proper enforcement of this chapter after the approval of such authority by an election held pursuant to Code Section 3-7-41 or 3-7-42. These licenses shall authorize the sale of distilled spirits by the drink for consumption only on the premises where sold.

History. — Ga. L. 1978, p. 1155, § 1; Code 1933, § 5A-6102, enacted by Ga. L. 1980, p. 1573, § 1.

OPINIONS OF THE ATTORNEY GENERAL

An application for liquor permit is a public record and is not confidential or secret under former Code 1933, § 92-8414 (see now O.C.G.A. § 48-2-15 ). 1963-65 Ga. Op. Att'y Gen. 171.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 15 et seq., 25 et seq., 90 et seq., 103.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 170.

ALR. —

Validity of statute or rule which makes specified conduct or condition a ground for cancelation or suspension of license, irrespective of licensee’s personal fault, 3 A.L.R.2d 107.

3-7-21. License fees; prelicense investigation fee.

The license fees for a club shall be the same fees as provided in subsection (a) of Code Section 3-4-111.1 for the sale of distilled spirits in licensed public places of business; and, in addition, a prelicense investigation fee of $100.00 shall be required.

History. — Ga. L. 1978, p. 1155, § 3; Code 1933, § 5A-6103, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 55.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 168 et seq., 175 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 64, 400 et seq.

3-7-22. Promulgation of rules and regulations as to sale, possession, and use of alcoholic beverages in private clubs.

The commissioner may promulgate such reasonable regulations as are necessary and appropriate to regulate the sale, possession, and use of alcoholic beverages in private clubs.

History. — Ga. L. 1978, p. 1155, § 5; Code 1933, § 5A-6106, enacted by Ga. L. 1980, p. 1573, § 1.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 15 et seq., 25 et seq., 90 et seq., 103.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 170.

Article 3 Local Authorization and Regulation

3-7-40. Authority of counties or municipalities to regulate and license private clubs generally.

  1. Nothing contained in this chapter shall be so construed as to limit the licensing and regulatory authority of any municipality or county in which the sale of alcoholic beverages is lawful.
  2. Each municipality and county may license and regulate any bona fide private club located within the licensing and regulatory jurisdiction of the municipality or county.

History. — Ga. L. 1978, p. 1155, § 5; Code 1933, § 5A-6107, enacted by Ga. L. 1980, p. 1573, § 1.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 94, 103, 109, 122, 212.

C.J.S. —

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

3-7-41. Calling of special elections upon direction of governing authorities; notice; rules and regulations; timing; ballots; frequency; approval of licenses.

  1. The governing authority of any county or municipality at its discretion may direct its election superintendent to issue the call for an election to determine if the sale of distilled spirits by private clubs, as provided in this chapter, shall be allowed. Upon such direction, the election superintendent shall call a special election at least 30 days prior to the date of the election and shall publish the notice of the call of the election in the official gazette of the county or, in the case of a municipal election, in a newspaper of general circulation in the municipality, once a week for two weeks preceding the election.
    1. A county election held pursuant to this Code section shall be held according to the rules and regulations governing special elections contained in Chapter 2 of Title 21, and may be held at the time of holding any other primary or election in the county.
    2. A municipal election held pursuant to this Code section shall be held according to the rules and regulations governing special elections contained in Chapter 2 of Title 21 and may be held at the time of holding any other primary or election in the municipality.
  2. The returns of the election held pursuant to this Code section shall be made within three days after the election to the election superintendent who shall ascertain and declare the result after the receipt of the returns.
  3. The ballot in the election shall have written or printed thereon:

    Click to view

    Those desiring to vote in favor of the sales shall vote “Yes.” Those desiring to vote against the sales shall vote “No.” If at the election a majority of the votes cast are in favor of the sales in private clubs, the sales shall be permitted in accordance with this article. If at the election a majority of the votes cast are against the sales, they shall be prohibited in the political subdivision, except as otherwise provided in this article.

  4. No election under this Code section shall be held within two years after the date of the declaration of the result of a previous election held under this Code section.
  5. The local governing authority must approve any license within its jurisdiction before issuance of the license.

“[ ] YES Shall alcoholic beverages by the drink, for [ ] NO consumption on the premises only, be allowed in private clubs?”

History. — Ga. L. 1978, p. 1155, § 6; Code 1933, § 5A-6108, enacted by Ga. L. 1980, p. 1573, § 1.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 63 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 104 et seq.

3-7-42. Calling of special elections upon presentation of petitions by voters; rules and regulations; frequency; procedure for calling and conduct of elections for purpose of nullifying previous election results; approval of licenses.

  1. Upon the presentation of a petition to the election superintendent of a county or municipality, which petition must be signed by at least 25 percent of the registered voters of such county or municipality who were qualified to vote at the general election immediately preceding the presentation of the petition, the election superintendent shall call a special election at least 30 days prior to the date of the election and shall publish the notice of the call of the election in the official gazette of the county or, in the case of a municipal election, in a newspaper of general circulation in the municipality once a week for two weeks preceding the election. The purpose of the election provided for in this Code section shall be to determine if the sale of distilled spirits in private clubs, as provided by this chapter, shall be allowed.
  2. Each election held pursuant to this Code section shall be held according to the same rules and regulations and subject to the same procedures provided for elections held pursuant to Code Section 3-7-41.
  3. No election under this Code section shall be held within two years after the date of the declaration of the result of a previous election held under this Code section.
  4. In any county or municipality which has at any time held an election in accordance with this Code section resulting in approval of the sale of distilled spirits in private clubs, the election superintendent of the county or municipality, upon a petition signed by at least 25 percent of the registered, qualified voters of the political subdivision concerned, shall proceed to call another election in the same manner as provided in Code Section 3-7-41 for the purpose of nullifying the result of the previous election. No election under this subsection shall be held within two years after the date of the declaration of the result of a previous election held under this Code section.
  5. The local governing authority must approve any license within its jurisdiction before issuance of the license.

History. — Ga. L. 1978, p. 1155, § 6; Code 1933, § 5A-6109, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 57.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 63 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 104 et seq.

3-7-43. Issuance of alcoholic beverage licenses to private clubs by governing authorities of certain counties and municipalities; privileges conferred by licenses; rules and regulations; sale by wholesalers to licensees.

  1. As used in this Code section, the term “bona fide private club” shall be defined as provided in Code Section 3-7-1.
  2. The governing authority of each county having a population of not less than 36,800 nor more than 36,990 according to the United States decennial census of 1980 or any future such census in which the sale of alcoholic beverages is lawful and the governing authority of each municipality in which the sale of alcoholic beverages is lawful in each such county may issue, through proper resolution or ordinance, alcoholic beverage licenses to bona fide private clubs.
  3. The licenses provided for in this Code section shall authorize the sale of alcoholic beverages by the drink for consumption only on the premises where sold.
  4. Every such governing authority may adopt all reasonable rules and regulations governing the qualifications and criteria for the issuance of such licenses and may promulgate reasonable rules and regulations governing the conduct of any licensee provided for in this Code section, including, but not limited to, the regulation of the hours when alcoholic beverages may be served, the types of employees, and other matters which may fall within the police powers of such counties and municipalities.
  5. Those persons who are duly licensed as wholesalers under this title shall be authorized to sell alcoholic beverages at wholesale prices to any person or persons licensed as provided in this Code section. Any person licensed under this Code section may purchase alcoholic beverages from a licensed wholesaler at wholesale prices.

History. — Code 1933, § 5A-6121, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1982, p. 511, §§ 1, 2; Ga. L. 1983, p. 3, § 4; Ga. L. 1984, p. 22, § 3.

JUDICIAL DECISIONS

O.C.G.A. § 3-7-43 is unconstitutional as a special law in conflict with existing general law. Regency Club v. Stuckey, 253 Ga. 583 , 324 S.E.2d 166 (1984).

RESEARCH REFERENCES

ALR. —

Validity of statutory classifications based on population — intoxicating liquor statutes, 100 A.L.R.3d 850.

Article 4 Local Excise Taxation

Cross references. —

Sales and use taxes, T. 48, C. 8.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 168 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 92 et seq.

3-7-60. Levy and amount of tax on sale of distilled spirits; persons required to pay tax; collection of tax.

  1. When any license is issued by the commissioner as provided in this chapter for the sale of distilled spirits within the corporate limits of any municipality, the municipality shall impose an excise tax, in addition to the excise taxes levied by the state, in the sum of 22¢ per liter on distilled spirits.
  2. In the event a license is issued as provided in this chapter for sales in the unincorporated areas of any county, the county shall impose an excise tax in the same amount as provided in subsection (a) of this Code section.
  3. Local excise taxes provided for in this Code section shall be imposed upon and shall be paid by the licensed wholesale dealer in distilled spirits.
  4. The taxes provided for in this Code section shall be imposed and collected monthly on distilled spirits sold or disposed of within the particular taxing jurisdiction.

History. — Ga. L. 1978, p. 1155, § 4; Code 1933, § 5A-6104, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 56; Ga. L. 1982, p. 3, § 3.

3-7-61. Imposition of tax on sale of mixed drinks.

An excise tax of not more than 3 percent may be imposed by municipalities or counties on the sale of mixed drinks where the sales by a private club are lawful.

History. — Ga. L. 1978, p. 1155, § 4; Code 1933, § 5A-6105, enacted by Ga. L. 1980, p. 1573, § 1.

CHAPTER 8 Sale of Alcoholic Beverages at Publicly Owned Facilities

3-8-1. Regulation and taxation of sale, storage, and distribution of alcoholic beverages at airports owned or operated by counties or municipalities.

  1. The issuance of licenses for the package sale, sale by the drink, storage, and distribution of alcoholic beverages within the boundaries of any airport owned or operated, or both, by a county or municipality may be approved by a proper resolution or ordinance of the county or municipal governing authority owning or operating the airport. A license for such sales, storage, and distribution of distilled spirits may be issued only by the governing authority of a municipality or county in which the sale of alcoholic beverages is lawful.
  2. This Code section shall apply regardless of the location of the airport.
  3. For the purposes of regulating the sale, storage, and distribution of alcoholic beverages, but not for the purposes of taxation, the airport boundaries of an airport owned or operated, or both, by a county or municipality shall be treated:
    1. If the airport is owned or operated, or both, by a county, as though the airport boundaries were located entirely within the boundaries of the county which owns or operates, or owns and operates, the airport; or
    2. If the airport is owned or operated, or both, by a municipality, as though the airport boundaries were located entirely within the corporate limits of that municipality and entirely within the boundaries of the county in which the greater portion of the municipality owning or operating, or owning and operating, the airport lies.
  4. No county or municipality may control, license, regulate, or exercise police powers over the sale, storage, or distribution of alcoholic beverages within the boundaries of an airport owned or operated, or both, by another municipality or county which has lawfully approved the sale in any fashion or storage of any alcoholic beverages within all or part of the municipality or county.
  5. The county or municipality authorized by law to impose and collect taxes on the sale, storage, and distribution of alcoholic beverages at the airport may impose and collect such taxes, unaffected by this Code section; and the county or municipality owning or operating, or both, the airport shall not impose or collect such taxes. The proceeds of the taxes which the county and the municipality are authorized by law to impose and collect on the sale, storage, and distribution of alcoholic beverages at the airport shall be equally divided between the county and the municipality.
  6. The county or municipality which issues the license pursuant to subsection (a) of this Code section may impose, collect, and receive licensing fees generally paid in connection with the licensing of the sale, storage, and distribution of alcoholic beverages; and any county or municipality that would, apart from this Code section, otherwise license or regulate, or both, the sale, storage, and distribution of alcoholic beverages at the airport shall not impose or receive any such licensing fees unless it is the county or municipality issuing the license.

History. — Ga. L. 1968, p. 1441, § 1; Ga. L. 1968, p. 1443, § 1; Code 1933, § 58-828, enacted by Ga. L. 1977, p. 1316, § 1; Ga. L. 1980, p. 501, § 1; Code 1933, § 5A-6501, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1983, p. 759, § 1.

Cross references. —

Construction and regulation of airports generally, T. 6, C. 3.

JUDICIAL DECISIONS

Entitlement to taxes between municipalities. —

Trial court granted an impermissible advisory opinion when the court granted a second city’s request for a declaratory judgment that the second city was authorized to impose and collect taxes on the sale, storage, and distribution of alcoholic beverages at an airport within that city’s limits because the second city failed to show that there was any justiciable controversy; the first city conceded that, under Georgia’s Alcoholic Beverages Code, O.C.G.A. § 3-8-1 et seq., only the second city was authorized to impose and collect taxes on the sale, storage, and distribution of alcoholic beverages at the airport within the city’s limits and that the first city had to refund any alcoholic beverage taxes that the city received in error for the sale, storage, and distribution of alcohol in portions of the airport located within the corporate boundaries of the second city. City of Atlanta v. City of College Park, 311 Ga. App. 62 , 715 S.E.2d 158 (2011), aff'd, 292 Ga. 741 , 741 S.E.2d 147 (2013).

Applicability of sovereign immunity to action between city and county. —

In a suit by a city against a county, seeking a portion of tax revenue raised by the county from alcoholic beverage sales, there was a threshold question of whether sovereign immunity applied in suits between political subdivisions of the same sovereign (such as the city and the county), which the trial court had not addressed; therefore, remand was required. Clayton County v. City of College Park, 301 Ga. 653 , 803 S.E.2d 63 (2017).

In a case involving taxation of alcoholic beverages, the city’s claims against the county were not barred by sovereign immunity since the city and county were merely exercising their own respective home rule powers by collecting tax revenues for their own purposes, and neither was acting on behalf of the State of Georgia; thus, there was no sovereignty to be maintained. City of College Park v. Clayton County, 306 Ga. 301 , 830 S.E.2d 179 (2019).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 188 et seq., 213.

3-8-2. Sale of malt beverages, wine, and distilled spirits at public golf courses operated by counties or municipalities.

The Department of Natural Resources or any county or municipality operating a public golf course and offering food or drink for retail sale as an incident to the operation of the golf course may sell at retail malt beverages, wine, and distilled spirits by the drink as an incident to the operation of the golf course upon obtaining a retail consumption license.

History. — Ga. L. 1974, p. 587, § 1; Code 1933, § 5A-6502, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 2011, p. 558, § 0.5/SB 121.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 103, 188 et seq., 212.

ALR. —

Power of municipal corporation to establish and maintain golf course, 36 A.L.R. 1301 .

3-8-3. Sale of alcoholic beverages at coliseums.

  1. As used in this Code section, the term:
    1. “Coliseum” means any multiuse coliseum-type facility which has a seating capacity of 9,000 or more and which is a project of a coliseum authority, together with related buildings, facilities, and extensions of the project.
    2. “Coliseum authority” means any public coliseum authority created by law in any county having a population of more than 140,000 according to the United States decennial census of 1990 or any future such census.
  2. Any coliseum authority operating a coliseum may sell or authorize others to sell, upon obtaining a license from the department, alcoholic beverages for consumption on the premises only upon property owned or controlled by the authority, including but not limited to the coliseum.  The authority shall determine by resolution, as it may amend from time to time, the conditions, including hours and days of sale, under which such sales shall be permitted.
  3. For the purposes of regulating and taxing the sale, storage, and distribution of alcoholic beverages as provided in this Code section, a coliseum shall be considered to be within a municipality if the coliseum, or the greater part of the coliseum, is within the limits of the municipality. A coliseum shall be considered to be within an unincorporated area of a county if the coliseum, or the greater part of the coliseum, is located within an unincorporated area of the county.

History. — Code 1933, § 5A-6503, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1982, p. 1463, §§ 5, 12; Ga. L. 1983, p. 3, § 4; Ga. L. 1992, p. 2929, § 3; Ga. L. 1993, p. 325, § 1.

RESEARCH REFERENCES

ALR. —

Validity of statutory classifications based on population — intoxicating liquor statutes, 100 A.L.R.3d 850.

3-8-4. Sale of alcohol by continuing education centers.

  1. As used in this Code section, the term “continuing education center” means any facility offering adult education which is operated by a unit of the University System of Georgia and which has housing facilities capable of accommodating 200 people and banquet facilities capable of serving 400 people.
  2. Notwithstanding the provisions of subsection (a) of Code Section 3-3-21, a continuing education center may sell alcoholic beverages as an incident to its operation. Such sales may be made during all hours during which sales are lawful in the state.
  3. For purposes of regulating and taxing the sale, storage, and distribution of alcoholic beverages as provided in this Code section, a continuing education center shall be considered to be within a municipality if the center, or a greater part of the center, is within the limits of the municipality. A continuing education center shall be considered to be within the unincorporated area of a county if the center, or a greater part of the center, is located within the unincorporated area of the county.

History. — Code 1981, § 3-8-4 , enacted by Ga. L. 1997, p. 977, § 1.

3-8-5. Sale of alcoholic beverages at coliseums during professional sports events.

Reserved. Repealed by Ga. L. 1997, p. 977, § 1, effective January 1, 2000.

Editor’s notes. —

This Code Section was based on Code 1981, § 3-8-5 , enacted by Ga. L. 1997, p. 977, § 1; Ga. L. 1998, p. 128, § 3.

Ga. L. 2013, p. 141, § 3/HB 79, reserved the designation of this Code section, effective April 24, 2013.

3-8-6. Technical institutes; service of alcoholic beverages; regulation and tax.

  1. As used in this Code section, the term “technical institute” means any facility which is operated by a unit of the Technical College System of Georgia and which has a business conference center capable of accommodating 200 people or more incident to its operation.
  2. Notwithstanding the provisions of Code Sections 3-3-21 and 3-3-21.1, a technical institute may serve alcoholic beverages incident to its operation of a business conference center.
  3. For purposes of regulating and taxing the sale, storage, and distribution of alcoholic beverages as provided in this Code section, a technical institute shall be considered to be within a municipality if the institute, or a greater part of the institute, is within the limits of the municipality. A technical institute shall be considered to be within the unincorporated area of a county if the institute, or a greater part of the institute, is located within the unincorporated area of the county.

History. — Code 1981, § 3-8-6 , enacted by Ga. L. 1999, p. 1225, § 3; Ga. L. 2008, p. 335, § 3/SB 435.

CHAPTER 9 Sale of Alcoholic Beverages by Passenger Carriers, Nonprofit Organizations, and Hotels and Motels

Article 1 Public Carriers; Nonprofit Organizations

Editor’s notes. —

Ga. L. 1986, p. 778, § 1, designated the existing Code sections in this chapter (§§ 3-9-1 through 3-9-3 ) as Article 1 of this chapter.

Administrative rules and regulations. —

Trade practices — Point-of-sale advertising, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Department of Revenue, Alcohol and Tobacco Tax Unit, General Provisions, § 560-2-2.18.

3-9-1. Authorization of distribution or sale of distilled spirits by airlines, railway passenger carriers, and cruise ships; annual authorization fee; payment of taxes on containers; reports.

  1. Notwithstanding anything contained in this title or any other law, the commissioner may authorize the distribution or sale of containers of distilled spirits, containing not more than 50 milliliters per container, by licensed airlines, railway passenger carriers, and cruise ships.
  2. These passenger carriers and cruise ships shall annually obtain, for a fee of $100.00, an authorization from the commissioner for the distribution or sale of such containers.
  3. The carriers and cruise ships shall pay taxes in the proper amounts on the containers distributed or sold in or over the state.
  4. The carriers and cruise ships shall file reports of all distributions or sales of the containers with the commissioner on or before the fifteenth day of the month following the month of distribution or sale and shall remit the proper tax for the distributions or sales at that time. The carriers and cruise ships shall further report to the commissioner any other information the commissioner may deem necessary for the purposes of this title.

History. — Code 1933, § 5A-6301, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 58; Ga. L. 2000, p. 1416, § 1.

Cross references. —

Airline carriers of passengers, T. 6, C. 2 and T. 6, C. 3.

Carriers of passengers generally, § 46-9-130 et seq.

3-9-2. Authorization of distribution or sale of wine and malt beverages by airlines, railway passenger carriers, and cruise ships; annual authorization fee; payment of taxes on containers; reports.

  1. Notwithstanding anything contained in this title or any other law, the commissioner may authorize the distribution or sale of wine and malt beverages in variously sized containers by licensed airlines, railway passenger carriers, and cruise ships.
  2. The carriers and cruise ships shall annually obtain, for a fee of $50.00 for a wine license and $50.00 for a malt beverage license, an authorization from the commissioner for the distribution or sale of wine and malt beverages in variously sized containers.
  3. The carriers and cruise ships shall pay taxes in the proper amounts on the containers distributed or sold in or over the state.
  4. The carriers and cruise ships shall file reports of all distributions or sales of the containers with the commissioner on or before the fifteenth day of the month following the month of distribution or sale and shall remit the proper tax for the distributions or sales at that time. The carriers and cruise ships shall further report to the commissioner any other information the commissioner may deem necessary for the purposes of this title.

History. — Ga. L. 1976, p. 508, § 1; Code 1933, § 5A-6302, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 59; Ga. L. 2000, p. 1416, § 2.

Cross references. —

Airline carriers of passengers, T. 6, C. 2 and T. 6, C. 3.

Carriers of passengers generally, § 46-9-130 et seq.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 99, 213.

3-9-3. Issuance of permits for sale by nonprofit civic organizations of alcoholic beverages for consumption on the premises or wine at retail for off-premises consumption.

  1. Upon the filing of an application and payment of a fee of $25.00 by a bona fide nonprofit civic organization, the commissioner may issue a permit authorizing the organization to sell alcoholic beverages for consumption on the premises or to sell wine at retail for off-premises consumption, or both, for a period not to exceed three days, subject to any law regulating the time for selling such beverages.
  2. No more than six permits may be issued to an organization in any one calendar year pursuant to this Code section.
  3. Permits issued pursuant to this Code section shall be valid only for the place specified in the permit. No permit may be issued unless the sale of distilled spirits, wine, or malt beverages is lawful in the place for which the permit is issued.

History. — Code 1933, § 5A-6303, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 2008, p. 4, § 1/HB 1243.

Administrative rules and regulations. —

Alcoholic beverage license hearings, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Department of Revenue, Alcohol and Tobacco Tax Unit, Subject 560-2-9.

3-9-4. Issuance of special use temporary permits for wine auctions by nonprofit civic organizations.

  1. Upon the filing of an application and payment of a fee of $25.00 by a bona fide nonprofit civic organization, the commissioner may issue a special use temporary permit authorizing a bona fide nonprofit civic organization to auction wine in sealed containers only for a period not to exceed three days, subject to any law regulating the time for selling wine.
  2. No more than six special use temporary permits may be issued to a bona fide nonprofit civic organization in any calendar year.
  3. Special use temporary permits issued pursuant to this Code section shall be valid only for the location specified in the permit. No special use temporary permit may be issued unless local licensing authorities have issued to the bona fide nonprofit civic organization a permit or approval for the sale of wine at the location specified in the special use temporary permit. Prior to the commencement of the event described in the special use temporary permit, the bona fide nonprofit civic organization shall furnish to the commissioner a detailed inventory list of the wine to be auctioned including:
    1. The name, address, telephone number, and taxpayer identification number of the person who furnishes the wine for the event; and
    2. The type, brand, label, and quantity of each wine to be sold at auction.
  4. Bona fide nonprofit civic organizations which hold a special use temporary permit issued pursuant to this Code section may auction for off-premises consumption wine in sealed containers, which has been donated to the bona fide nonprofit civic organization by a person who does not currently hold a license that has been issued by the department pursuant to this title, wine which has been donated by a Georgia licensed retailer, or wine which has been donated or purchased from a Georgia licensed wine wholesaler. The bona fide nonprofit civic organization may ship or otherwise transport to the location specified in the special use temporary permit wine donated by a person who does not currently hold a license that has been issued by the department pursuant to this title or wine donated by a Georgia licensed retailer. Georgia excise tax shall be paid to the department on any donated wine. If the bona fide nonprofit civic organization cannot verify, within ten days of the conclusion of the permitted event, that Georgia excise tax for the wine was previously paid to the department, the bona fide nonprofit civic organization shall pay to the department the appropriate excise tax as required by law.

History. — Code 1981, § 3-9-4 , enacted by Ga. L. 2008, p. 4, § 2/HB 1243.

Code Commission notes. —

Pursuant to Code Section 28-9-5, in 2008, Code Section 3-9-4, as enacted by Ga. L. 2008, p. 536, § 1, was redesignated as Code Section 3-9-6.

3-9-5. Meaning of the term “bona fide nonprofit civic organization”.

As used in this article, the term “bona fide nonprofit civic organization” means an entity which is exempt from federal income tax pursuant to the provisions of subsection (c), (d), or (e) of 26 U.S.C. Section 501.

History. — Code 1981, § 3-9-5 , enacted by Ga. L. 2008, p. 4, § 2/HB 1243; Ga. L. 2009, p. 8, § 3/SB 46.

3-9-6. Limousine carrier furnishing alcoholic beverages.

  1. Notwithstanding any provision contained in this title or any other law, the commissioner may issue an annual permit authorizing a limousine carrier to sell alcoholic beverages for consumption only in the vehicle supplied by the limousine carrier upon the filing of an application and payment of a fee of $50.00 by such limousine carrier that holds a certificate issued in accordance with Article 3 of Chapter 7 of Title 46. In addition to the permit fee, the limousine carrier shall pay an annual fee of $15.00 for each vehicle to be authorized for the sale of alcoholic beverages. The commissioner shall issue a sticker for each vehicle so authorized.
  2. A permit issued in accordance with this Code section shall not authorize the wholesale purchase of alcoholic beverages by a limousine carrier and only authorizes purchase from a retail dealer. A permit issued in accordance with this Code section shall be subject to any law regulating the time for selling such beverages.
  3. A permit issued in accordance with this Code section shall not authorize a limousine carrier to purchase or sell an alcoholic beverage in a location where the sale of such alcoholic beverage is unlawful.
  4. Limousine carriers holding permits issued in accordance with this Code section shall comply with the provisions of paragraph (1) of subsection (a) of Code Section 3-3-23.

History. — Code 1981, § 3-9-6 , enacted by Ga. L. 2008, p. 536, § 1/SB 385.

Administrative rules and regulations. —

Limousine, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Department of Revenue, Alcohol and Tobacco Tax Unit, Subject 560-2-12.

Code Commission notes. —

Pursuant to Code Section 28-9-5, in 2008, Code Section 3-9-4, as enacted by Ga. L. 2008, p. 536, § 1, was redesignated as Code Section 3-9-6.

3-9-7. Nonprofit distiller license to nonprofit museum; requirements.

  1. As used in this Code section, the term “nonprofit museum” means a museum whose mission includes educating the public about the local, state, and national history of the United States and that is owned and operated by a bona fide nonprofit civic organization which holds title to improved real property with a structure listed on the National Register of Historic Places.
  2. Notwithstanding any other provision contained in this title or any other law, the commissioner may issue a nonprofit distiller license to a nonprofit museum, regardless of whether or not such nonprofit museum holds an annual license to sell malt beverages, wine, or distilled spirits for consumption on the premises, upon the filing of an application and payment of an annual occupational license tax of $100.00. Such nonprofit distiller license shall entitle the nonprofit museum to produce distilled spirits, provided that:
    1. The nonprofit museum shall not produce more than 800 liters of distilled spirits each calendar year;
    2. The nonprofit museum is located in a county or municipality where the production of distilled spirits is authorized, and the local governing authority of such county or municipality has issued a license to the nonprofit museum pursuant to Code Section 3-3-2 for the production of distilled spirits;
    3. The production of distilled spirits, except as otherwise provided in this Code section, shall be used for educational purposes only;
    4. The distilled spirits produced by the nonprofit museum shall be stored and aged only on the premises of the nonprofit museum for which the nonprofit distiller license has been issued and shall not be removed from such premises except through disposal methods consistent with federal and state law and any applicable rules or regulations promulgated thereunder; and
    5. The distilled spirits produced by the nonprofit museum shall only be used on the premises of the nonprofit museum for which the nonprofit distiller license has been issued and only to provide samples pursuant to subsection (c) of this Code section. Such distilled spirits shall not be sold or offered for sale by the nonprofit museum to any person or entity.
  3. The nonprofit distiller license shall authorize the nonprofit museum to provide not more than one-half of one ounce as a complimentary sample of the distilled spirits produced at the nonprofit museum to a guest who has completed an educational tour of the distillery at the nonprofit museum and is of legal drinking age; provided, however, that the nonprofit museum shall not impose a separate charge for the sample and shall not provide, directly or indirectly, more than one sample to a guest in a calendar day. Such sample shall be provided in a designated tasting area on the premises of the nonprofit museum for which the nonprofit distiller license has been issued, and all open bottles shall be visible at all times.
  4. No bond shall be required to be filed with the commissioner for the initial application or the annual renewal application of a nonprofit distiller license.
  5. The annual license fee to be charged by a county or municipality for a nonprofit distiller license shall not be more than $100.00 for each license.

History. — Code 1981, § 3-9-7 , enacted by Ga. L. 2014, p. 759, § 2/SB 240.

Article 2 Hotels and Motels

Administrative rules and regulations. —

Hotels, Charitable Events & REAP, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Department of Revenue, Alcohol and Tobacco Tax Unit, Subject 560-2-11.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 101, 213.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 32 et seq., 166 et seq.

3-9-10. Definitions.

As used in this article, the term:

  1. “Hotel” means any hotel, inn, or other establishment which offers overnight accommodations to the public for hire.
  2. “In-room service” means:
    1. The delivery of alcoholic beverages by an employee of the hotel to a registered guest’s room or to a registered guest at any other location in the same building as the hotel when such alcoholic beverages have been ordered by the guest and when the guest shall be billed for the cost of such alcoholic beverages at the time of delivery and when the sale of such alcoholic beverages is completed at the time of delivery; and
    2. The provision of a cabinet or other facility located in a hotel’s guest room which contains alcoholic beverages and which is provided upon written request of the guest and which is accessible by lock and key only to the guest and for which the sale of the alcoholic beverages contained therein is deemed to be final at the time requested except for a credit which may be given to the guest for any unused portion.
  3. “Registered guest” means the lessor or tenant of one or more hotel rooms; the lessor, tenant, or owner of a condominium unit located in the same building as one or more hotel rooms; or the lessor, owner, or tenant of a commercial space located in the same building as one or more hotel rooms, provided that the name of such lessor, owner, or tenant appears on a guest registry maintained by the hotel.

History. — Code 1981, § 3-9-10 , enacted by Ga. L. 1986, p. 778, § 1; Ga. L. 1994, p. 553, § 4; Ga. L. 1997, p. 483, § 1; Ga. L. 2021, p. 391, § 2/HB 392.

The 2021 amendment, effective May 4, 2021, deleted “in unbroken packages” following “alcoholic beverages” near the beginning of subparagraph (2)(A).

Code Commission notes. —

Pursuant to Code Section 28-9-5, in 1986, in subparagraph (2)(B) “beverages” was substituted for “beverage” the first time the former appears.

3-9-11. Licenses for in-room service.

  1. Notwithstanding anything contained in this title or any other law, in any county or municipality in which the sale of alcoholic beverages either by the package or by the drink is authorized, the commissioner may authorize any hotel which is licensed to sell alcoholic beverages either by the package or by the drink or any hotel which is licensed to sell alcoholic beverages both by the package and by the drink to provide in-room service.
  2. No hotel shall be authorized to provide in-room service until it has been issued a license to do so by the commissioner. A license fee of $100.00 shall be imposed to provide alcoholic beverages by in-room service, except that a license fee of $50.00 shall be imposed to provide only beer or wine by in-room service.
  3. The sale of alcoholic beverages by in-room service shall be subject to all restrictions and limitations in this title relative to the sale of alcoholic beverages, except as provided otherwise in this article, and shall be authorized only on such days and only during such hours as the sale of alcoholic beverages is otherwise authorized in the county or municipality.
  4. Distilled spirits sold by the package pursuant to this article shall not be sold in packages containing less than 50 milliliters each.

History. — Code 1981, § 3-9-11 , enacted by Ga. L. 1986, p. 778, § 1; Ga. L. 1994, p. 553, § 5; Ga. L. 2021, p. 391, § 3/HB 392.

The 2021 amendment, effective May 4, 2021, inserted “by the package” near the beginning of subsection (d).

3-9-12. Source of beverages sold; taxes.

All alcoholic beverages sold pursuant to this article shall be subject to all state and local taxes imposed on alcoholic beverages and shall be purchased from a licensed wholesaler.

History. — Code 1981, § 3-9-12 , enacted by Ga. L. 1986, p. 778, § 1.

3-9-13. In-room service sales in dry areas prohibited.

Nothing in this article shall be construed to authorize the sale of alcoholic beverages through in-room service in any county or municipality in which the sale of alcoholic beverages both by the package and by the drink is prohibited.

History. — Code 1981, § 3-9-13 , enacted by Ga. L. 1986, p. 778, § 1.

CHAPTER 10 Sale or Possession of Distilled Spirits in Dry Counties and Municipalities

Cross references. —

Special elections in counties and municipalities pertaining to prohibition of package sale of distilled spirits, § 3-4-40 et seq.

RESEARCH REFERENCES

ALR. —

Test of intoxicating character of liquor, 4 A.L.R. 1137 ; 11 A.L.R. 1233 ; 19 A.L.R. 512 ; 36 A.L.R. 725 ; 91 A.L.R. 513 .

Criminal responsibility of husband for violation of liquor law by wife, 19 A.L.R. 136 ; 27 A.L.R. 312 .

Constitutionality, construction, and effect of statute making possession of intoxicating liquor evidence of violation of law, 31 A.L.R. 1222 .

Rights and protection of innocent persons where property in which they are interested is seized because of its illegal use in connection with intoxicating liquor, 47 A.L.R. 1055 ; 61 A.L.R. 551 ; 73 A.L.R. 1087 ; 82 A.L.R. 607 ; 124 A.L.R. 288 .

Operation and effect, in dry territory, of general state statute making sale or possession for sale of intoxicating liquor, without a license, an offense, 8 A.L.R.2d 750.

What constitutes injury to means of support within civil damage or dramshop act, 4 A.L.R.3d 1332.

Liability, under dramshop acts, of one who sells or furnishes liquor otherwise than in operation of regularly established liquor business, 8 A.L.R.3d 1412.

Criminal liability for death resulting from unlawfully furnishing intoxicating liquor or drugs to another, 32 A.L.R.3d 589.

Construction of statute or ordinance making it an offense to possess or have alcoholic beverages in opened package in motor vehicle, 35 A.L.R.3d 1418.

Validity of statute or ordinance making it an offense to consume or have alcoholic beverages in open package in motor vehicle, 57 A.L.R.3d 1071.

Contributory negligence allegedly contributing to cause of injury as defense in Civil Damage Act proceeding, 64 A.L.R.3d 849.

Proof of causation of intoxication as a prerequisite to recovery under Civil Damage Act, 64 A.L.R.3d 882.

Liability of one who furnishes liquor to another for consumption by third parties, for injury caused by consumer, 64 A.L.R.3d 922.

3-10-1. Scope of chapter.

Except as otherwise provided in Code Section 3-10-11, this chapter shall only be applicable within counties or municipalities in which the sale of distilled spirits is not lawful.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 2; Ga. L. 1972, p. 207, § 1; Code 1933, § 5A-7101, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1986, p. 1605, § 1.

JUDICIAL DECISIONS

Judicial notice of dry or wet status of county. —

In prosecution for selling tax-paid whiskey it is entirely unnecessary to allege or prove as a fact that a county is not exempted from provisions of law prohibiting sale of whiskey, this being a matter which shall be judicially recognized without introduction of proof. Dye v. State, 118 Ga. App. 570 , 165 S.E.2d 183 (1968).

3-10-2. Sale, exchange, or other possession of distilled spirits.

It is unlawful for any person knowingly and intentionally to sell, offer for sale, keep for sale, barter, exchange, furnish at public places, keep on hand at a place of business, or otherwise possess distilled spirits in any quantity, except as provided in this title.

History. — Ga. L. 1915, Ex. Sess., p. 77, § 2; Ga. L. 1917, Ex. Sess., p. 7, § 23; Code 1933, § 58-102; Code 1933, § 5A-7102, enacted by Ga. L. 1980, p. 1573, § 1.

JUDICIAL DECISIONS

Applicability of § 3-10-4 . —

Ga. L. 1937-38, Ex. Sess., p. 103, § 23B (see now O.C.G.A. § 3-10-4 ), which permitted a person to possess one quart of liquor in a dry county which may have been purchased for use and consumption from a lawful retailer and properly stamped, had no applicability to express prohibition of former Code 1933, § 58-102 (see now O.C.G.A. § 3-10-2 ). Blackmon v. Brotherhood Protective Order of Elks, Toccoa Lodge No. 1820, 232 Ga. 671 , 208 S.E.2d 483 (1974) (decided under former Code 1993 § 58-102).

Judicial notice of status of county as wet or dry. —

In prosecution for selling tax-paid whiskey it is entirely unnecessary to allege or prove that county is not exempted from the provisions of law prohibiting sale of whiskey, this being a matter which shall be judicially recognized without introduction of proof. Dye v. State, 118 Ga. App. 570 , 165 S.E.2d 183 (1968).

Inducement to sell or possess prohibited liquor no defense. —

If, at time in question and at time of solicitation for sale of whiskey, defendant was engaged in business of selling and possessing intoxicating liquor, it would be no defense that the defendant was merely induced by solicitation and misrepresentation to sell or possess such prohibited liquor. Sutton v. State, 59 Ga. App. 198 , 200 S.E. 225 (1938).

Defendant need not be owner to be convicted for illegal sale. —

All engaged in commission of misdemeanor are principals, and when a defendant works for another at the defendant’s place of business, where the defendant’s duties are to be performed, the defendant may be guilty of selling whiskey in dry county, even though the defendant is not owner of whiskey, but merely employee and agent of owner. Faucette v. State, 71 Ga. App. 331 , 30 S.E.2d 808 (1944) (decided under former Code 1993 § 58-102).

No offense charged when indictment failed to allege whiskey bore no tax stamps. —

When a person is indicted merely for possession of whiskey at place of business for purpose of sale in wet county, indictment charges no offense unless it further charges that whiskey possessed did not bear required stamps. Womack v. State, 60 Ga. App. 761 , 5 S.E.2d 96 (1939).

Burdens of proof. —

On an accusation or indictment couched in language of this section, defendant has burden of proving that liquor possessed is properly stamped and within legal limit. Requirement of purchase from authorized liquor retailer and requirement that liquor be held for use and not for sale are matters about which state has burden of proof. Jenkins v. State, 93 Ga. App. 360 , 92 S.E.2d 43 (1956).

Evidence insufficient to raise defense of entrapment. —

Evidence that witness purchased whiskey with money furnished by officer, telling defendant that the witness had just gotten over a drunk and was feeling bad and begging defendant to sell the witness whiskey was not sufficient to raise defense of entrapment. Sutton v. State, 59 Ga. App. 198 , 200 S.E. 225 (1938) (decided under former Code 1993 § 58-102).

Evidence of possession alone insufficient to support conviction of sale. —

When one is being tried for illegal sale of whiskey, evidence that one was in possession of whiskey at or near time of alleged sale is admissible as a circumstance that one kept whiskey for sale or as corroboration of evidence that a sale had taken place, but such evidence, considered alone, will not support conviction of sale, and a charge to jury which leaves them under impression that it is sufficient, in and of itself, is clearly error. Springer v. State, 60 Ga. App. 641 , 4 S.E.2d 679 (1939) (decided under former Code 1993 § 58-102).

Sufficient proof for conviction of owner’s employee for illegal sale. —

Proof either that defendant directly or personally committed criminal offense (selling whiskey in dry county), or that the defendant aided or abetted criminal transaction of the defendant’s employer at the employer’s place of business, would authorize the defendant’s conviction of offense of selling whiskey. Faucette v. State, 71 Ga. App. 331 , 30 S.E.2d 808 (1944).

Evidence sufficient to convict for illegal possession. —

Statement of defendant that the defendant thought the defendant would be notified in the event of a raid, in connection with the defendant’s other remarks and actions during course of search of club house, was sufficient to authorize jury to infer that the defendant was aiding and assisting in commission of misdemeanors of illegal possession of liquor and slot machines. Miller v. State, 94 Ga. App. 259 , 94 S.E.2d 120 (1956).

OPINIONS OF THE ATTORNEY GENERAL

Fraternal club cannot sell liquor to its members in a dry county, but each member can keep one quart of liquor at the meeting place for the member’s own use without violating the law. 1954-56 Ga. Op. Att'y Gen. 454.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 47 et seq., 192 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 425 et seq.

ALR. —

Power to prohibit the possession of intoxicating liquor, irrespective of any intention to traffic therein, 2 A.L.R. 1085 .

Entrapment to commit offense against laws regulating sales of liquor, 55 A.L.R.2d 1322.

What constitutes “sale” of liquor in violation of statute or ordinance, 89 A.L.R.3d 551.

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.

3-10-3. Keeping of distilled spirits in building not exclusively used for dwelling deemed prima-facie evidence of possession for sale or distribution.

The keeping of distilled spirits in any building not exclusively used for a dwelling shall be prima-facie evidence that they are kept for sale or with intent to dispose of same contrary to this chapter.

History. — Ga. L. 1915, Ex. Sess., p. 77, § 7; Code 1933, § 58-107; Code 1933, § 5A-7109, enacted by Ga. L. 1980, p. 1573, § 1.

JUDICIAL DECISIONS

Meaning of section. —

This section, in substance, declares that the keeping of any of the prohibited liquors or beverages in any building not exclusively used for a dwelling shall be prima facie evidence that they are kept for sale or with intent to dispose of the liquors or beverages contrary to law. Elder v. Stark, 200 Ga. 452 , 37 S.E.2d 598 (1946).

Applicability of section. —

The law as to the possession of whiskey in counties of this state which have not legalized sale thereof is still general law as to those counties. Davidson v. State, 68 Ga. App. 166 , 22 S.E.2d 190 (1942).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 291 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 454 et seq., 505 et seq, 520 et seq.

ALR. —

Test of intoxicating character of liquor, 11 A.L.R. 1233 ; 19 A.L.R. 512 ; 36 A.L.R. 725 ; 91 A.L.R. 513 .

Admissibility in prosecution for violation of liquor law of attempt to conceal or dispose of liquor, 60 A.L.R. 1191 .

3-10-4. Quantities of distilled spirits which may be lawfully possessed.

It is not unlawful for any person to have and possess, for use and not for sale, in any county or municipality within the state, one standard case of 1.75 liter, liter, or 750 milliliter size containers of distilled spirits, but not more than eight individual containers of distilled spirits of a size of 200 milliliters or four individual containers of distilled spirits of a size of 500 milliliters, which may have been purchased by the person for use and consumption from a lawful and authorized retailer and properly stamped.

History. — Ga. L. 1937-38, Ex. Sess., p. 103, § 23B; Ga. L. 1976, p. 1715, §§ 1, 2; Code 1933, § 5A-7105, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 61.

JUDICIAL DECISIONS

Legislative intent. —

It was the purpose and intent of the General Assembly to legalize the possession, in a dry county, of one quart (now one standard case of 1.75 liter, or 750 milliliter size containers, but not more than eight individual containers of distilled spirits of a size of 200 milliliters or four individual containers of distilled spirits of a size of 500 milliliters) of whiskey legally purchased for use and consumption, when properly stamped, and no more. Pierce v. State, 73 Ga. App. 627 , 37 S.E.2d 431 (1946).

This section is intended to provide a method whereby a person in a dry county may legally possess a quart or less (now more) of tax-paid whiskey bearing revenue stamps so indicating which were originally purchased by the person or the person’s donor from a lawful and authorized retailer in a wet county, provided such possession was for use and not for sale. This intention also is that such person may possess such whiskey in this quantity and under these circumstances and conditions without being in constant jeopardy of harassment and arrest. Jenkins v. State, 93 Ga. App. 360 , 92 S.E.2d 43 (1956).

This section provides an exception to prohibition law in those counties which have not voted to legalize sale and possession of liquors. Barfield v. State, 59 Ga. App. 383 , 1 S.E.2d 47 (1939), overruled, Jenkins v. State, 93 Ga. App. 360 , 92 S.E.2d 43 (1956).

Burdens of proof. —

On an accusation or indictment couched in language of former Code 1933, § 58-102 (see now O.C.G.A. § 3-10-2 ), the defendant had the burden of proving that liquor possessed was properly stamped and within the legal limit. As to the requirement of purchase from authorized liquor retailer and the requirement that the liquor be held for use and not for sale, these were matters about which the state had the burden of proof. Jenkins v. State, 93 Ga. App. 360 , 92 S.E.2d 43 (1956).

Presumptions. —

All presumptions being in favor of innocence, possession of whiskey in quantity within limit described by this section is prima facie presumed to be lawful. Jenkins v. State, 93 Ga. App. 360 , 92 S.E.2d 43 (1956).

Validity of admission of evidence to show purpose for which whiskey and wine possessed. —

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

OPINIONS OF THE ATTORNEY GENERAL

Possession of out-of-state purchased liquor. — The Code allows possession of up to one-half gallon of distilled spirits purchased by the possessor outside of this state in accordance with the laws of the place where purchased and brought into this state by the purchaser. 1984 Op. Atty Gen. No. U84-16.

There is no quantity limitation for possessing Georgia-tax-paid distilled spirits in a wet county for personal use, which in this context means for the possessor’s own personal consumption, including free gifts to the possessor’s family or friends. 1984 Op. Atty Gen. No. U84-16.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 47 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 505 et seq.

ALR. —

Right to arrest without a warrant for unlawful possession or transportation of intoxicating liquor, 44 A.L.R. 1342 .

3-10-5. Allowing use of premises for unlawful sale, manufacture, or other disposition of distilled spirits.

It is unlawful for any person to permit the use of any premises which he owns or controls for the unlawful sale, manufacture, or other unlawful disposition of distilled spirits.

History. — Ga. L. 1915, Ex. Sess., p. 77, § 5; Code 1933, § 58-105; Code 1933, § 5A-7103, enacted by Ga. L. 1980, p. 1573, § 1.

JUDICIAL DECISIONS

A proceeding to abate a common nuisance brought under this section is a civil action. Burgess v. State, 221 Ga. 586 , 146 S.E.2d 288 (1965).

Judgment denying relief on owner’s petition to reopen premises closed as nuisance undisturbed. —

Judgment denying relief on petition brought by owner of premises padlocked as nuisance under former Code 1933, § 58-104 (see now O.C.G.A. § 3-10-9 ), on which there was a hearing, in which the owner asserted the owner’s lack of knowledge of illegal purpose for which the tenant, the defendant in original proceeding, used premises, and praying that the owner be permitted to reopen the premises will not be disturbed when it appears the evidence at the hearing was sufficient to show guilty knowledge on the part of the owner. Baskin v. Meadors, 196 Ga. 802 , 27 S.E.2d 696 (1943).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 249 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 454 et seq., 509, 520 et seq.

ALR. —

Effect of interference by law with liquor business on lease of property for that purpose, 22 A.L.R. 821 .

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.

3-10-6. Forfeiture of rights of lessee or tenant where unlawful act performed upon premises with lessee’s or tenant’s knowledge or permission.

The unlawful manufacture, sale, or keeping for sale or disposition of any distilled spirits shall work, at the option of the landlord, a forfeiture of the rights of any lessee or tenant under any lease or contract for rent of the premises where the unlawful act is performed by the lessee or tenant or by any agent, servant, clerk, or employee of the lessee or tenant with the latter’s knowledge or permission.

History. — Ga. L. 1915, Ex. Sess., p. 77, § 6; Code 1933, § 58-106; Code 1933, § 5A-7108, enacted by Ga. L. 1980, p. 1573, § 1.

Cross references. —

Landlord and tenant relationship generally, T. 44, C. 7.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 374 et seq.49 Am. Jur. 2d, Landlord and Tenant, §§ 39, 41, 295 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 468 et seq. 48A C.J.S., Intoxicating Liquors, § 750 et seq.

ALR. —

Effect of interference by law with liquor business on lease of property for that purpose, 22 A.L.R. 821 .

Lease of property for sale of liquor in violation of law as affecting right to rent, 42 A.L.R. 1036 .

3-10-7. Transportation or shipment of distilled spirits for sale or use in violation of title; exceptions for possession for personal use and transportation through counties or municipalities.

  1. It is unlawful for any person knowingly and intentionally to transport, ship, or carry from any point outside this state to any point within this state or from place to place within this state any distilled spirits intended by any person interested in such beverages to be received, possessed, sold, or in any manner used in violation of this title.
  2. It is not unlawful for any person to transport, ship, carry, or possess distilled spirits in any county or municipality when the beverages are in the amounts specified by Code Section 3-10-4 and are intended for personal use and not for sale.
  3. It is not unlawful for any licensed wholesaler, importer, or common carrier to transport, ship, or carry any distilled spirits through any county or municipality where the destination of the beverages is beyond the respective jurisdictional boundaries of the county or municipality and such destination is within a county or municipality in which the sale of distilled spirits has been authorized. The commissioner may issue a permit to any person to transport, ship, or carry distilled spirits pursuant to this chapter.

History. — Ga. L. 1917, Ex. Sess., p. 7, § 1; Code 1933, § 58-201; Ga. L. 1937-38, Ex. Sess., p. 103, §§ 16, 27; Ga. L. 1972, p. 207, §§ 7, 11; Code 1933, § 5A-7104, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 60.

JUDICIAL DECISIONS

Intoxicating liquor may be subject matter of larceny, though it is not subject matter of lawful sale. Windham v. Harmon, 50 Ga. App. 322 , 178 S.E. 160 (1934).

Possession of non-tax-paid whiskey. —

Nothing in Ga. L. 1937-38, Ex. Sess., p. 103 (see now O.C.G.A. Ch. 4, T. 3), purports to legalize possession of non-tax-paid whiskey. Its possession, in any quantity in any county of the state, is unlawful under existing law of the state. Pierce v. State, 200 Ga. 384 , 37 S.E.2d 201 (1946).

Quantity of contraband possessed immaterial. —

The possession of any quantity of contraband whiskey in a dry county subjects the accused to a violation and it is immaterial what quantity of contraband whiskey the accused possessed. Pierce v. State, 73 Ga. App. 627 , 37 S.E.2d 431 (1946) (decided under former Code 1933 § 58-201).

Possession of contraband whiskey in a dry county constitutes two offenses, one under Ga. L. 1937-38, Ex. Sess., p. 103 (see now O.C.G.A. § 3-3-29 ), for having non-tax-paid whiskey, and the other for illegally possessing whiskey under former Code 1933, § 58-201 (see now O.C.G.A. § 3-10-7 ). Pierce v. State, 73 Ga. App. 627 , 37 S.E.2d 431 (1946).

Possession of contraband whiskey violative of two sections. —

Since Ga. L. 1937-38, Ex. Sess., p. 103 (see now O.C.G.A. § 3-3-29 ), did not conflict with former Code 1933, § 58-201 (see now O.C.G.A. § 3-10-7 ), which latter section made unlawful the mere possession of contraband whiskey, possession of non-tax-paid whiskey in a dry county was a violation of both sections. Pierce v. State, 73 Ga. App. 627 , 37 S.E.2d 431 (1946).

This section is still in force and effect in dry counties. Thus, sale of spirituous alcoholic beverages in any quantity to any person is strictly prohibited in such county. It is immaterial in such circumstances whether the liquors are tax-paid or non-tax-paid or to whom they are offered for sale or to whom they are sold. Martin v. State, 96 Ga. App. 557 , 100 S.E.2d 645 (1957).

Burden on defendant to show applicability of exceptions. —

This section, a violation of which was charged, creates a general offense, and exceptions stated in the section are merely exceptions to general offense and are not essential elements in offense charged. The burden is on defendant to show that the defendant comes within one of exceptions. Frierson v. State, 67 Ga. App. 829 , 21 S.E.2d 438 (1942).

Admissibility of evidence of prior, similar transactions. —

It was not error for trial court to allow the state to show that the defendant, prior to the transaction under investigation, had transported liquor in county where trial was had, which evidence tended to refute the defendant’s statement that the defendant did not employ a codefendant to transport liquor in that county and the defendant’s statement that the defendant had not had liquor transported in that county for over three years. Crow v. State, 52 Ga. App. 192 , 182 S.E. 685 (1935).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, §§ 30 et seq., 279, 397 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 454 et seq., 502 et seq.

ALR. —

Test of intoxicating character of liquor, 4 A.L.R. 1137 ; 11 A.L.R. 1233 ; 19 A.L.R. 512 ; 36 A.L.R. 725 ; 91 A.L.R. 513 .

Constitutionality of statute making unlawful possession of intoxicating liquor legally obtained, or providing for its confiscation, 37 A.L.R. 1386 .

What amounts to transportation of intoxicating liquor, 65 A.L.R. 983 .

State statute or ordinance prohibiting or regulating transportation of intoxicating liquor as interference with interstate commerce, 110 A.L.R. 931 ; 138 A.L.R. 1150 .

Transportation of liquor within state some counties or districts of which are “wet” and others “dry,” 134 A.L.R. 424 .

Regulations regarding bringing into state intoxicating liquor intended for personal use of consignee or carrier, 155 A.L.R. 816 .

Operation and effect, in dry territory, of general state statute making sale or possession for sale of intoxicating liquor, without a license, an offense, 8 A.L.R.2d 750.

What constitutes such discriminatory prosecution or enforcement of laws as to provide valid defense in state criminal proceedings, 95 A.L.R.3d 280.

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.

History. — 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.

Cross references. —

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

JUDICIAL DECISIONS

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).

Common nuisances abatable. —

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).

Maintaining structure, not act of possessing or selling, constitutes common nuisance. —

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).

Place where distilled spirits kept for sale or illegal disposition is common nuisance. —

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).

Evidence sufficient to support injunction. —

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 sufficient to support finding that business is nuisance. —

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).

Admissibility of evidence concerning expired liquor licenses. —

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).

Admissibility of testimony as to general reputation of alleged common nuisance. —

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

Admissibility of testimony as to quantity of wine found. —

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).

Evidence of bottles of wine admissible. —

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).

Admissibility of testimony regarding finding liquor in course of raids. —

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).

Evidence, including whiskey found in building, sufficient to support abatement. —

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).

Guilty pleas entered before instant action material evidence. —

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).

Evidence sufficient to support finding of continuing violations. —

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).

Evidence sufficient to support finding of common nuisance. —

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).

One illegal sale, together with other evidence, sufficient to abate place as nuisance. —

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).

Entire building not abatable as nuisance. —

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).

Abuse of discretion in padlocking defendant’s dwelling. —

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.

C.J.S. —

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

ALR. —

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.

3-10-9. Common nuisances — Proceedings for abatement of nuisances.

Any common nuisance as defined in Code Section 3-10-8 shall be an unlawful place, and the act of keeping and maintaining any such place shall be deemed a separate offense for each day that it continues. Common nuisances may be abated by writ of injunction issued out of the superior court upon a complaint filed by the Attorney General, or the district attorney of the superior court, or any citizen of the county in which the nuisance exists. The complaint shall be filed in the county in which the nuisance exists.

History. — Ga. L. 1915, Ex. Sess., p. 77, § 4; Code 1933, § 58-104; Code 1933, § 5A-7107, enacted by Ga. L. 1980, p. 1573, § 1.

JUDICIAL DECISIONS

Bringing injunctive action in county of defendant’s residence constitutionally required. —

In an injunctive action solely against owner of property on which an alleged public nuisance is being operated, the action must be brought in county of residence of defendant, as required by Ga. Const. 1983, Art. VI, Sec. II, Para. III. This is true, even though this section states that action is to be filed in county where nuisance exists, since the constitutional mandate must control. Chancey v. Hancock, 225 Ga. 715 , 171 S.E.2d 302 (1969).

Nuisance may be abated by writ of injunction issued out of superior court upon a complaint filed by Attorney General or district attorney of superior court, or by any citizen of the county in which the nuisance exists. Ogletree v. Atkinson, 195 Ga. 32 , 22 S.E.2d 783 (1942).

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

Judgment denying relief on owner’s petition to reopen premises closed as nuisance undisturbed. —

A judgment denying relief on petition brought by owner of premises padlocked as a nuisance under this section on which there was a hearing, in which the owner asserted the owner’s lack of knowledge of illegal purpose for which the tenant, defendant in original proceeding, used premises, and praying that the owner be permitted to reopen the premises will not be disturbed where it appears that the evidence at the hearing was sufficient to show guilty knowledge on part of the owner. Baskin v. Meadors, 196 Ga. 802 , 27 S.E.2d 696 (1943).

RESEARCH REFERENCES

ALR. —

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

Admissibility, in prosecution for maintaining liquor nuisance, of evidence of general reputation of premises, 68 A.L.R.2d 1300.

3-10-10. Existence of property rights in distilled spirits or vessels kept or used in violation of chapter; contraband.

No property rights of any kind shall exist in distilled spirits or in the vessels kept or used for the purpose of violating this chapter, or in any such liquors when received, possessed, or stored at any forbidden place or anywhere in a quantity forbidden by law or when kept, stored, or deposited for the purpose of sale or unlawful disposition, furnishing, or distribution. In all such cases the distilled spirits, the vessels and receptacles in which the distilled spirits are contained, and any property kept or used for the purpose of violating this chapter are declared to be contraband and are to be forfeited to the state when seized in accordance with the procedures set forth in Chapter 16 of Title 9.

History. — Ga. L. 1915, Ex. Sess., p. 77, § 20; Code 1933, § 58-122; Code 1933, § 5A-7112, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 2015, p. 693, § 3-1/HB 233.

Editor’s notes. —

Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides: “This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure.”

Law reviews. —

For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 1 (2015).

JUDICIAL DECISIONS

Constitutionality. —

This section is not unconstitutional for lack of due process in failing to provide for notice and hearing prior to seizure or prior to disposition of liquor declared therein to be contraband and forfeited to state. Blackmon v. Brotherhood Protective Order of Elks, Toccoa Lodge No. 1820, 232 Ga. 671 , 208 S.E.2d 483 (1974).

Former owners barred from claim to seized liquor. —

Under express terms, liquor seized is contraband per se and former owners have no property rights therein. Accordingly, they can have no claim to seized liquor. Blackmon v. Brotherhood Protective Order of Elks, Toccoa Lodge No. 1820, 232 Ga. 671 , 208 S.E.2d 483 (1974).

Property used in illegal keeping of liquors contraband and forfeited to state. —

This section declares that any and all property used in illegal keeping of liquors or beverages is contraband, in which owner has no property right, and authorizes state to destroy or seize such property. Elder v. Stark, 200 Ga. 452 , 37 S.E.2d 598 (1946).

Disposition of contraband liquor. —

The contraband liquor referred to in former Code 1933, § 58-122 (see now O.C.G.A. § 3-10-10 ) was legal liquor within meaning of Ga. L. 1937-38, Ex. Sess., p. 103 (see now O.C.G.A. § 3-4-1 et seq.), and not merely prohibited liquor within the meaning of former § 58-122, and the court erred in refusing to make mandamus absolute, as sheriff should have delivered the contraband liquor over to state revenue commissioner as required by Ga. L. 1937-38, Ex. Sess., p. 103 (see now O.C.G.A. § 3-2-33 ). Redwine v. Berry, 210 Ga. 567 , 81 S.E.2d 837 (1954).

Prohibited liquors contraband, forfeited to state, and under court jurisdiction. —

No property rights exist in prohibited liquors and they are declared by law to be contraband, to be forfeited to state when seized, and may be ordered condemned and destroyed by court acquiring jurisdiction thereof. Redwine v. Berry, 210 Ga. 567 , 81 S.E.2d 837 (1954).

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 393 et seq.

C.J.S. —

48A C.J.S., Intoxicating Liquors, §§ 750 et seq., 777 et seq.

ALR. —

Power to prohibit the possession of intoxicating liquor, irrespective of any intention to traffic therein, 2 A.L.R. 1085 .

Constitutionality of statute providing for forfeiture of property upon which intoxicating liquor is manufactured or sold, 10 A.L.R. 1591 .

Constitutional guaranties against unreasonable searches and seizures as applied to search for or seizure of intoxicating liquor, 39 A.L.R. 811 ; 74 A.L.R. 1418 .

Rights and protection of innocent persons where property in which they are interested is seized because of its illegal use in connection with intoxicating liquor, 47 A.L.R. 1055 ; 61 A.L.R. 551 ; 73 A.L.R. 1087 ; 82 A.L.R. 607 ; 124 A.L.R. 288 .

Lawfulness of seizure of property used in violation of law as prerequisite to forfeiture action or proceeding, 8 A.L.R.3d 473.

3-10-11. Contraband apparatus and appliances; existence of property rights therein; summary destruction of contraband; governing procedure for forfeiture of vehicles, boats, and vessels.

    1. All apparatus or appliances which are used for the unlawful purpose of distilling or manufacturing any distilled spirits are declared to be contraband.
    2. No person shall have any property right in or to the contraband specified in this subsection.
    3. Whenever apparatus or appliances used or about to be used for the unlawful purpose of manufacturing, using, holding, or containing any distilled spirits are found or discovered by any sheriff, deputy sheriff, or other law enforcement officer of this state, the same shall be summarily destroyed and rendered useless by him or her without any formal order of the court.
  1. All vehicles and conveyances of every kind and description in this state and all boats and vessels of every kind and description in any of the waters of this state used in conveying, removing, concealing, or storing any distilled spirits, the transportation, possession, or storing of which is in violation of law, are declared to be contraband and shall be seized by any law enforcement officer. Such contraband shall be subject to forfeiture in accordance with the procedures set forth in Chapter 16 of Title 9, including those counties and municipalities in which the sale of distilled spirits is lawful.

History. — Ga. L. 1917, Ex. Sess., p. 7, § 20; Ga. L. 1924, p. 198, § 1; Code 1933, § 58-207; Ga. L. 1946, p. 96, § 1; Ga. L. 1977, p. 632, § 1; Code 1933, § 5A-7113, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 62; Ga. L. 1986, p. 1605, § 2; Ga. L. 1987, p. 3, § 3; Ga. L. 2015, p. 693, § 3-2/HB 233.

Cross references. —

Disposition of property seized, T. 17, C. 5, A. 3.

Editor’s notes. —

Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides: “This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure.”

Law reviews. —

For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 1 (2015).

JUDICIAL DECISIONS

This section, being in derogation of common law, is to be strictly construed. Bowman v. Davis, 51 Ga. App. 478 , 180 S.E. 917 (1935); Leath v. Rosser, 52 Ga. App. 587 , 183 S.E. 839 (1936); State v. Patterson, 80 Ga. App. 450 , 56 S.E.2d 195 (1949); State v. McRee, 83 Ga. App. 284 , 63 S.E.2d 348 (1951).

Applicability of limitation period to claim by officer for share of proceeds from sales of contraband. —

The 12-month limitation period relating to filing of claims against county does not apply to claim by county police officer for the officer’s share of proceeds of sales of automobiles confiscated for engaging in illegal transportation of liquor. Cloud v. DeKalb County, 70 Ga. App. 777 , 29 S.E.2d 441 (1944).

Applicability to malt beverages. —

It is not a violation merely to transport, possess, or store fermented beverages made from malt, and a vehicle being used for such purpose cannot legally be seized and condemned as contraband (but see Ga. L. 1937, p. 148 (see now O.C.G.A. § 3-5-3 )) State v. Patterson, 80 Ga. App. 450 , 56 S.E.2d 195 , 1949 Ga. App. LEXIS 858 (1949).

The only application that this section has in a wet county is to fix the court procedure. Clements v. State, 85 Ga. App. 614 , 70 S.E.2d 70 (1952).

Condemnation action properly prosecuted by state. —

Proceeding to condemn automobile allegedly used in illegal transportation of liquors presupposes violation of criminal laws, and such proceeding is properly prosecuted by state. Thompson v. State, 74 Ga. App. 821 , 41 S.E.2d 583 (1947).

Right of condemnation in state. —

Right of condemnation is in state, not in officers seizing property illegally used in conveying liquors or beverages, and law requiring solicitor (now prosecuting attorney) of county, city, or superior court having jurisdiction in county where seizure was made to institute condemnation proceedings, necessarily imply that such proceedings shall be in name of state. Fact that arresting officer may be interested financially in proceeds from condemnation does not make such officer a necessary party plaintiff in first instance. Thompson v. State, 74 Ga. App. 821 , 41 S.E.2d 583 (1947).

Right of state to condemn nonowner’s equity in vehicle while protecting lien holder’s interest. —

State can condemn equity, if any, in an automobile held by operator who illegally transports liquors and beverages therein although legal title to the automobile may be held by another. It is the intention of the legislature to protect bona fide lien holders without destroying right of state to condemn. Consolidated Loan Co. v. State, 75 Ga. App. 77 , 41 S.E.2d 802 (1947).

Proceeding brought in name of state. —

Proceeding for condemnation of vehicle used in illegally transporting prohibited liquors and beverages is properly brought in name of state. State v. Weaver, 87 Ga. App. 172 , 73 S.E.2d 227 (1952).

Procedure. —

Sheriff or other peace officer must report property seized, because of its use in conveying illegal liquor, to solicitor (now prosecuting attorney) of court having jurisdiction within ten days after such seizure, and thereupon condemnation proceedings will be instituted as set forth. Kitchens v. Beverly, 86 Ga. App. 880 , 72 S.E.2d 819 (1952).

Report by sheriff of seized property to prosecuting attorney. —

County sheriff, in no way connected with federal government, has no right by reason of his office to turn property over to federal authorities instead of making a report to proper prosecuting attorney in conformity with this section. Kitchens v. Beverly, 86 Ga. App. 880 , 72 S.E.2d 819 (1952).

Consequences of sheriff’s turning contraband vehicle over to federal authorities. —

Where a sheriff, upon seizing a vehicle conveying illegal liquor, turns it over to the federal government for condemnation under the federal Internal Revenue Code, instead of reporting its seizure to the prosecuting attorney as required by state statute, the sheriff does so at the sheriff’s peril as a private citizen seizing private property for forfeiture to the federal government. If, however, the officer turns the property over to proper federal authorities for condemnation in federal court in a proceeding regular on its face, of which owner of vehicle had due notice of time and place of trial thereof, act of state officer in turning property over to federal government for condemnation is thereby ratified by federal government and such adoption on its part is sufficient recognition and confirmation of seizure to give it an equal validity in law with an original seizure under proper authority by an agent of federal government. Kitchens v. Beverly, 86 Ga. App. 880 , 72 S.E.2d 819 (1952).

Truck as contraband apparatus or appliance used in manufacture of moonshine. —

Pickup truck not alleged to have been used in conveying, removing, concealing, or storing of non-tax-paid liquor may not be declared contraband as some “apparatus or appliances” used in manufacture of moonshine. Vaughan v. State, 110 Ga. App. 709 , 140 S.E.2d 66 (1964).

Salaried officers not precluded from receiving authorized fees. —

Fact that officer making seizure of automobile engaged in illegal transportation of intoxicating liquors received a salary does not preclude the officer from receiving the officer’s part of fees provided by this section for officers responsible for confiscation of such automobiles. Cloud v. DeKalb County, 70 Ga. App. 777 , 29 S.E.2d 441 (1944).

Liquors seized in dry county unrecoverable in trover action. —

Liquors, possession of which is prohibited by law in county which has not by vote made operative the provisions of Ga. L. 1937-38, Ex. Sess., p. 103 (see now O.C.G.A. § 3-4-1 et seq.) even though bearing revenue stamps, are without property value and are subject to seizure by the Department of Revenue, and, even though transported from such county into a wet county by department, cannot be the basis of trover action by person from whom they were seized in the dry county. Williams v. Snelling, 71 Ga. App. 525 , 31 S.E.2d 105 (1944).

Trover action against sheriff holding property more than 10 days. —

When seizure is effected contrary to this section, and sheriff attempts to hold vehicle in excess of 10 days without reporting the seizure, the sheriff is, as to plaintiff’s property, mere trespasser, and trover action will lie against the sheriff for recovery of property. Kitchens v. Beverly, 86 Ga. App. 880 , 72 S.E.2d 819 (1952).

Interest of innocent lien holder not condemnable. —

State has right to condemn only the equity of lienor or owner of vehicle, and cannot condemn any interest of an innocent lien holder, whether that interest is of record or not. State v. McRee, 83 Ga. App. 284 , 63 S.E.2d 348 (1951).

Courts having jurisdiction. —

This section does not limit jurisdiction to superior courts or constitutional city courts, but specifically provides that any county, city, or superior court having jurisdiction in county where automobile is seized shall have jurisdiction. Bowman v. Davis, 51 Ga. App. 478 , 180 S.E. 917 (1935).

Jurisdiction in condemnation proceeding. —

Jurisdiction of proceeding to condemn vehicle seized for violation of this section as to transportation of intoxicating liquors is confined to county of seizure, and in such a proceeding such jurisdiction must affirmatively appear. Bowman v. Davis, 51 Ga. App. 478 , 180 S.E. 917 (1935).

Jurisdiction of state and federal courts. —

The State of Georgia under this section, and the United States government under 26 U.S.C. § 2803 , have concurrent jurisdiction, and each has power and authority to seize and condemn automobiles used in illegally transporting liquor. As to actions in rem, between state and federal court, the one first taking steps equivalent to exercising dominion over and possession of the res will have exclusive jurisdiction. Kitchens v. Beverly, 86 Ga. App. 880 , 72 S.E.2d 819 (1952).

Jurisdiction of court in county where vehicle seized. —

Only a court having jurisdiction in the county where vehicle is seized has jurisdiction of the condemnation proceeding; therefore, in order to confer jurisdiction upon the court in which condemnation proceedings are instituted against such vehicle, it must affirmatively appear that the vehicle was seized within the county over which the court has jurisdiction. State v. Weaver, 87 Ga. App. 172 , 73 S.E.2d 227 (1952).

Recording instrument prior to intervention in condemnation action not required. —

It is not necessary that lien or mortgage upon which intervenor relies be properly recorded in order that lienee or mortgagee may assert it as evidence of the intervenor’s right to intervene in proceeding to condemn mortgaged vehicle. Cummings v. State, 84 Ga. App. 698 , 67 S.E.2d 156 (1951).

Arresting officer’s not being party to action no ground for dismissal. —

In an action involving condemnation of vehicle allegedly used in illegally transporting prohibited liquors and beverages, and brought in name of state, in which arresting officer was not made a party in trial court, and trial court finds in favor of intervenor and against condemnation of vehicle, it is no ground for dismissal of bill of exceptions by court that arresting officer was not made a party in court, as the officer’s interest is not adverse to that of state as plaintiff in error. State v. Weaver, 87 Ga. App. 172 , 73 S.E.2d 227 (1952) (decided under former Code 1933, § 58-207).

Dismissal of intervenor’s writ of error. —

Where, after seizure by two empowered officers, state condemned truck, and thereafter under order of court the truck was sold at public auction, after which a party intervened and claimed truck and, after court sustained demurrer (now motion to dismiss) filed by solicitor general (now district attorney) on behalf of state, the intervenor excepted and brought case to Supreme Court by writ of error, but served only state with copy of bill of exceptions, writ of error would be dismissed as state was only a formal or technical party, and two officers were real contestants. Carter v. State, 180 Ga. 578 , 180 S.E. 110 (1935).

Notice to owner of condemnation of vehicle. —

A motor vehicle owned or leased by third party other than operator cannot be condemned without notice to such third person, if known, and without proving that the motor vehicle was being used for illegal transportation of contraband liquors by operator. Bentley v. State, 70 Ga. App. 494 , 28 S.E.2d 658 (1944).

Requirement of service on officers making seizure. —

Since officers making seizure are necessary parties to a proceeding to condemn an automobile used in illegal transport of liquor and have an interest in proceeds from the sale of the vehicle, service of process should be had on them or acknowledgment of service by them. Alford v. State, 82 Ga. App. 79 , 60 S.E.2d 431 (1950).

Service only of copy of petition on defendant. —

In an action instituted to condemn an automobile carrying intoxicating liquor, defendant must be served with copy of petition, but there is no requirement that process be issued. Thomas v. State, 97 Ga. App. 761 , 104 S.E.2d 547 (1958).

When defense is filed in condemnation proceeding, case proceeds as other civil cases. Grant v. State, 74 Ga. App. 493 , 40 S.E.2d 406 (1946).

Required defenses of owners, lessees, and lien holders. —

Requirement as to showing proper registration of vehicle applies only to owner or lessee, and sole prerequisite as to lien holder is that the owner or lessee show that such illegal use was without the owner’s or lessee’s knowledge or consent. State v. McRee, 83 Ga. App. 284 , 63 S.E.2d 348 (1951).

Failure to allege registration of vehicle insufficient for dismissal. —

In proceeding by state to condemn vehicles found to be illegally transporting or conveying intoxicating liquor, failure of intervenor to allege that vehicle was legally registered with Department of Motor Vehicles (now Motor Vehicle Division of Department of Revenue) in true name and address of owner did not subject petition to demurrer (now motion to dismiss) and dismissal. State v. McRee, 83 Ga. App. 284 , 63 S.E.2d 348 (1951).

Allegation of lack of knowledge of illegal use of vehicles sufficient. —

In proceeding to condemn automobile truck-tractor and trailer on ground that vehicles had been used in illegally transporting and conveying intoxicating liquor, petition of intervenor alleging that the use of vehicles was without knowledge, express or implied, was sufficient; it was not necessary for intervenor to allege both the intervenor’s lack of knowledge of illegal use the intervenor of vehicle and also that such use was without the intervenor’s connivance or consent because if the intervenor did not know of illegal use the intervenor could not have connived in or consented to such use. State v. McRee, 83 Ga. App. 284 , 63 S.E.2d 348 (1951).

State’s burden of proof not met. —

Where, in condemnation proceeding, the only evidence as to any actual use of automobile to convey alcoholic liquors was that it was standing in private way near a residence where 42 gallons of whiskey were seized, that two gallons of whiskey were taken from car, and that a person was seen approaching car with another gallon of whiskey, this evidence being equally if not more indicative that automobile was merely being prepared for use to transport liquor than that it had been so used, state did not meet burden of showing that this section had been violated. Thompson v. State, 52 Ga. App. 355 , 183 S.E. 214 (1936).

Burden of proof as to illegal use of vehicle. —

When the state shows illegal use of vehicle, burden then shifts to intervenor to show that illegal use of automobile was without the intervenor’s knowledge, connivance, or consent, express or implied. Intervenor must also show that property seized, if a motor vehicle, was legally registered with Department of Motor Vehicles (now Motor Vehicle Division of Department of Revenue) in true name and address of such owner or the owner’s predecessor in title, unless vehicle was bought new from dealer within 30 days of time of seizure. Strickland Motors, Inc. v. State, 81 Ga. App. 824 , 60 S.E.2d 254 (1950); Simpson v. State, 82 Ga. App. 319 , 60 S.E.2d 537 (1950).

Preparatory acts insufficient to evoke penalties of section. —

Acts merely preparatory to commission of quasi-criminal acts which, if completed, would subject automobile to condemnation under this section, are not sufficient to evoke penalties of section. Thompson v. State, 52 Ga. App. 355 , 183 S.E. 214 (1936).

Evidence insufficient to infer hitched team used in conveying moonshine. —

Evidence that team consisting of mules and wagon was found hitched at place where a still producing alcoholic liquor was in operation, and that there was some alcoholic liquor in wagon, was insufficient to authorize inference that team was used in conveying such liquors along public road or private way of this state. Leath v. Rosser, 52 Ga. App. 587 , 183 S.E. 839 (1936).

Evidence requiring new trial. —

In proceeding for condemnation of vehicle used in transporting liquor, where evidence showed that finance company did not have notice on date it purchased conditional sales contract in question that automobile buyer was engaged in dealing in liquor, trial court erred in overruling intervening finance company’s motion for new trial. Liberal Fin. Co. v. State, 80 Ga. App. 697 , 57 S.E.2d 220 (1950).

Motion for new trial denied where intervenor had notice of truck’s use. —

New trial motion brought by intervenor claiming sole ownership in proceeding to condemn truck was properly denied, where conditional sale agreement for vehicle was dated prior to seizure, even though contract was actually made at later date, after seizure, at which time seller (intervenor) had notice of purposes for which truck was being used. Walker-Durant Motor Co. v. State, 51 Ga. App. 261 , 180 S.E. 239 (1935).

OPINIONS OF THE ATTORNEY GENERAL

Section controls as to disposition of proceeds over act creating city court. — This section, governing disposition of proceeds from condemnation and sale of vehicles used in violation of liquor laws, controls over provisions for disposition of fines and forfeitures in act creating city court. 1945-47 Ga. Op. Att'y Gen. 75.

Sharing proceeds of condemnation sale with member of uniform division. — Member of uniform division of Department of Public Safety is not authorized to accept any money for sale of condemned conveyances used in transporting contraband, but there is no law which would prohibit sheriff or other peace officer receiving such reward from voluntarily sharing it with member of uniform division. 1952-53 Ga. Op. Att'y Gen. 247.

Payments from sale of seized vehicles to members of state patrol. — Uniformed members of Georgia State Patrol cannot legally accept payments from proceeds of sale of seized vehicles since they are specifically precluded from receiving money other than their salaries, except for criminal apprehension awards. 1962 Ga. Op. Att'y Gen. 436.

Authorization of officers to seize contraband vehicles and to receive special fees. — Special agents and enforcement officers designated by revenue commissioner for enforcement of laws with respect to transportation and possession of non-tax-paid liquors are authorized to seize and take possession of contraband vehicles and would be entitled to receive special fees provided. 1963-65 Ga. Op. Att'y Gen. 241.

Parked car not condemnable absent certain evidence. — Parked car containing alcoholic liquors may not be condemned in absence of evidence that it was used to transport the alcoholic liquors in violation of this section. 1945-47 Ga. Op. Att'y Gen. 379.

Sheriff or any other peace officer is not authorized merely to resell condemned vehicle to owner without following statutory procedure. 1952-53 Ga. Op. Att'y Gen. 247.

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 393 et seq.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 90, 325 et seq. 48A C.J.S., Intoxicating Liquors, §§ 750 et seq., 777 et seq.

ALR. —

Constitutional guaranties against unreasonable searches and seizures as applied to search for or seizure of intoxicating liquor, 3 A.L.R. 1514 ; 13 A.L.R. 1316 ; 27 A.L.R. 709 ; 39 A.L.R. 811 ; 74 A.L.R. 1418 .

Constitutionality of statute providing for forfeiture of property upon which intoxicating liquor is manufactured or sold, 10 A.L.R. 1591 .

Right to jury trial in case of seizure of property alleged to be illegally used, 17 A.L.R. 568 ; 50 A.L.R. 97 .

Constitutionality of statute making unlawful possession of intoxicating liquor legally obtained, or providing for its confiscation, 37 A.L.R. 1386 .

Criticism of attitude of the court or judge toward violations of liquor law as contempt, 58 A.L.R. 1001 .

Rights and protection of innocent persons where property in which they are interested is seized because of its illegal use in connection with intoxicating liquor, 61 A.L.R. 551 ; 73 A.L.R. 1087 ; 82 A.L.R. 607 ; 124 A.L.R. 288 .

Criminal responsibility of one who acts as sentinel during violation of intoxicating liquor law, 64 A.L.R. 427 .

Jurisdiction to quash search warrant and order return of property seized in liquor cases under federal statutes, 65 A.L.R. 1246 .

Presence of liquor in vehicle at the time of search and seizure as condition of forfeiture for violating prohibition law, 71 A.L.R. 911 .

Admissibility, in prosecution for violation of intoxicating liquor law, of general reputation of person with whom defendant had dealings, as tending to show such violation, 83 A.L.R. 1401 .

Lawfulness of seizure of property used in violation of law as prerequisite to forfeiture action or proceeding, 8 A.L.R.3d 473.

Requirements for allowance of remission or mitigation of forfeiture of vehicle used in violation of liquor laws under 18 U.S.C. § 3617(b) , 14 A.L.R.3d 128.

Relief to claimant of interest in motor vehicle subject to state forfeiture for use in violation of liquor laws, 14 A.L.R.3d 221.

3-10-12. Raw materials or substances, fixtures, implements, or apparatus used or intended for use in unlawful distillation or manufacture of distilled spirits declared contraband; property rights in contraband; governing procedures for seizure and forfeiture.

  1. Any raw materials or substances, including, but not limited to, sugar of any grade or type, and any fixture, implement, or apparatus used or intended for use in the unlawful distilling or manufacturing of any distilled spirits are declared to be contraband.
  2. No person shall have any property right in or to any contraband specified in subsection (a) of this Code section.
  3. Whenever any item used or about to be used as specified in subsection (a) of this Code section is found or discovered, whether in transit, in storage, or at a site of unlawful distillation or manufacture, by any law enforcement officer, it shall be subject to the following dispositions:
    1. When found or discovered at a site of unlawful distillation or manufacture, it may be summarily destroyed and rendered useless by any law enforcement officer without any formal order of the court or, in the event any of the raw materials or substances are fit for human consumption or if any of the fixtures, implements, or apparatus are of any beneficial use to the educational authorities of the county for use in any of their educational programs, they may be delivered to the public schools of the county in which seized for use in the schools. When any of the foregoing items are delivered to a public school system, the officer delivering the items shall obtain from the appropriate school authorities an itemized receipt detailing all items delivered to the system and report such information as provided in subsection (g) of Code Section 9-16-19. In the event any of the foregoing items are destroyed by a law enforcement officer, the officer shall execute an affidavit of such fact in which all items destroyed shall be listed. The receipts and affidavits shall be maintained by the officer and shall be open to inspection by the public upon request; or
    2. When found or discovered in transit or in storage by any law enforcement officer, the items shall be seized by the officer and forfeited in accordance with the procedures set forth in Chapter 16 of Title 9.

History. — Ga. L. 1964, p. 722, § 1; Ga. L. 1968, p. 1051, § 1; Code 1933, § 5A-7114, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 63; Ga. L. 2015, p. 693, § 3-3/HB 233.

Editor’s notes. —

Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides: “This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure.”

Law reviews. —

For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 1 (2015).

OPINIONS OF THE ATTORNEY GENERAL

Terms defined. — Terms “raw materials” and “substances” in this section mean ingredients used in making the alcoholic beverage — things that become a part thereof, such as sugar or malt or grain. 1963-65 Ga. Op. Att'y Gen. 449.

Automobiles or other motor vehicles are not contraband. 1963-65 Ga. Op. Att'y Gen. 449.

RESEARCH REFERENCES

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 90, 325 et seq. 48A C.J.S., Intoxicating Liquors, §§ 750 et seq., 777 et seq.

ALR. —

Constitutional guaranties against unreasonable searches and seizures as applied to search for or seizure of intoxicating liquor, 3 A.L.R. 1514 ; 13 A.L.R. 1316 ; 27 A.L.R. 709 ; 39 A.L.R. 811 ; 74 A.L.R. 1418 .

Constitutionality of statute providing for forfeiture of property upon which intoxicating liquor is manufactured or sold, 10 A.L.R. 1591 .

Right to jury trial in case of seizure of property alleged to be illegally used, 17 A.L.R. 568 ; 50 A.L.R. 97 .

Rights and protection of innocent persons where property in which they are interested is seized because of its illegal use in connection with intoxicating liquor, 61 A.L.R. 551 ; 73 A.L.R. 1087 ; 82 A.L.R. 607 ; 124 A.L.R. 288 .

Lawfulness of seizure of property used in violation of law as prerequisite to forfeiture action or proceeding, 8 A.L.R.3d 473.

3-10-13. Duties of district attorneys as to investigation and prosecution of violations of chapter; duties of sheriffs.

  1. Any district attorney in a county may commence prosecution on his own affidavit against any party violating any provision of this chapter. The district attorney, upon receiving information giving him probable cause to believe that there has been a violation of this chapter, shall lay the matter before the grand jury or institute a criminal prosecution against the party by affidavit before a court or judge of competent jurisdiction, if the district attorney is willing and able to make the affidavit for the institution of a criminal prosecution. If he is not willing or able to make the affidavit and any citizen is willing to make an affidavit for the institution of a criminal prosecution against any party for the violation, the district attorney shall superintend the preparation of the papers and the institution of the prosecution, provided the district attorney is of the opinion upon the facts at hand that there is reasonable ground to believe that a conviction ought to be had.
  2. Sheriffs are charged with the duty of enforcing this chapter and cooperating with the district attorneys.

History. — Ga. L. 1915, Ex. Sess., p. 77, § 18; Code 1933, § 58-120; Code 1933, § 5A-7110, enacted by Ga. L. 1980, p. 1573, § 1.

3-10-14. Evidence as to color, odor, appearance, and taste of beverage manufactured, sold, or disposed of by defendant; burden of proof when defendant claims beverage not a distilled spirit.

  1. In all prosecutions against any persons for manufacturing, selling, offering for sale, keeping, or having or otherwise disposing of distilled spirits, it shall be competent for the state to give in evidence the fact that the beverage which the evidence may tend to show the defendant had manufactured, sold, bartered, exchanged, furnished, given away, or otherwise disposed of, possessed or possesses the same color, odor, and general appearance or the same taste, color, and general appearance of a distilled spirit.
  2. The fact that a beverage in question is of the same color, odor, and general appearance or of the same taste, color, and general appearance as a distilled spirit shall constitute prima-facie evidence that the beverage is a distilled spirit.
  3. If the defendant claims the beverage in question is not a distilled spirit even though it possesses the same color, odor, and general appearance or the same taste, color, and general appearance as a distilled spirit, the burden of proof shall be upon the defendant to establish to the reasonable satisfaction of the judge, court, or jury trying the case that the beverage in question is not a distilled spirit and that it is a beverage which is not prohibited by law to be manufactured, sold, offered for sale, or otherwise disposed of.
  4. The rule of evidence provided in this Code section shall be applicable in all cases for the abatement of liquor nuisances and in all prosecutions for violations of this chapter when it becomes necessary to determine whether the beverage is a distilled spirit.

History. — Ga. L. 1915, Ex. Sess., p. 77, § 19; Code 1933, § 58-121; Code 1933, § 5A-7111, enacted by Ga. L. 1980, p. 1573, § 1.

Cross references. —

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

RESEARCH REFERENCES

Am. Jur. 2d. —

45 Am. Jur. 2d, Intoxicating Liquors, § 306.

C.J.S. —

48 C.J.S., Intoxicating Liquors, §§ 571, 572, 573, 618 et seq. 48A C.J.S., Intoxicating Liquors, § 869.

ALR. —

Test of intoxicating character of liquor, 4 A.L.R. 1137 ; 11 A.L.R. 1233 ; 19 A.L.R. 512 ; 36 A.L.R. 725 ; 91 A.L.R. 513 .

Criticism of attitude of the court or judge toward violations of liquor law as contempt, 58 A.L.R. 1001 .

Admissibility and weight of testimony based on taste, sight, and smell as to unlawful content of liquor, 78 A.L.R. 439 .

Admissibility, in prosecution for violation of intoxicating liquor law, of general reputation of person with whom defendant had dealings, as tending to show such violation, 83 A.L.R. 1401 .

Admissibility, in prosecution for maintaining liquor nuisance, of evidence of general reputation of premises, 68 A.L.R.2d 1300.

3-10-15. Penalty for violations of provisions of chapter.

  1. It is unlawful for any person knowingly and intentionally to violate any prohibition contained in this chapter relating to provisions applicable only in dry political subdivisions.
  2. Any person who violates any prohibition contained in this chapter shall be guilty of a misdemeanor.

History. — Ga. L. 1915, Ex. Sess., p. 77, § 23; Code 1933, § 58-123; Code 1933, § 5A-9903, enacted by Ga. L. 1980, p. 1573, § 1.

JUDICIAL DECISIONS

The same crime which occurred at different times but on same day constitutes separate crimes authorizing separate penalty as to each. As long as respective sentences are not greater than maximum sentence provided by law, they are not excessive. Rucker v. State, 133 Ga. App. 180 , 210 S.E.2d 365 (1974) (decided under former Code 1933, § 58-123).

RESEARCH REFERENCES

C.J.S. —

48 C.J.S., Intoxicating Liquors, § 544 et seq.

CHAPTER 11 Sales Off Premises for Catered Functions

Administrative rules and regulations. —

Alcoholic beverage catering, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Department of Revenue, Alcohol and Tobacco Tax Unit, Subject 560-2-13.

3-11-1. Definitions.

As used in this chapter, the term:

  1. “Food caterer” means any person who prepares food for consumption off the premises.
  2. “Licensed alcoholic beverage caterer” means any retail dealer who has been licensed pursuant to Article 2 of Chapter 4, Article 2 of Chapter 5, or Article 2 of Chapter 6 of this title.
  3. “Person” means any individual, company, corporation, association, partnership, or other legal entity.

History. — Code 1981, § 3-11-1 , enacted by Ga. L. 1992, p. 1145, § 1.

3-11-2. Licensed alcoholic beverage caterers eligible for off-premise licenses; application; fee.

  1. Any licensed alcoholic beverage caterer who additionally holds a valid license from a county or municipality which authorizes the li