Lead Opinion
The Atlanta Taxicab Company Owners Association, Inc. (Association) is a nonprofit corporation comprised of several companies. Its members are holders of a Certificates of Public Necessity and Convenience (CPNC) issued by the City of Atlanta (City). A CPNC is required for operation of a cab or limousine in the City. Holders of a CPNC must comply with Chapter 162 of the City Code, pursuant to the provisions of which the City regulates the taxicab industry. As a business investment, the CPNC is transferable “pursuant to a purchase, gift bequest or acquisition of the stock or asset of a corporation . ...” Section 162-62 (a) of the City Code. Moreover, the interest “in a CPNC may be transferred involuntarily and disposed of by public or private sale in the same manner as personal property.” Section 162-62 (a) (8) of the City Code. Notwithstanding these provisions regarding general transferability, the transferee is required to “submit an application for a CPNC and . . . meet all requirements for same.” Section 162-62 (a) (3) of the City Code. One of those requirements is residency in Georgia “for at least one year immediately preceding the date of application —” Section 162-57 (a) (3) of the City Code.
The Association brought suit against the City, seeking damages and a declaration that various sections of Chapter 162 were unconstitutional. After conducting a hearing, the trial court granted summary judgment in favor of the City. The Association brings this appeal from the trial court’s order.
1. The City Council has established a Bureau of Taxicabs and Vehicles for Hire (Bureau), and authorized an administrative hearing procedure for the enforcement of those provisions of the City Code regulating taxicabs. The Association contends that the creation of
“The power grantеd to municipal corporations . . . shall not be construed to extend to . . . [ajction affecting the jurisdiction of any court. . ..” OCGA § 36-35-6 (a) (6). Thus, the City cannot impede the exercise of the jurisdiction that has been granted to any court. Insofar as the jurisdiction of the City’s municipal court is concerned, § 4-102 (1) of the City Charter provides that that court is authorized to hear cases involving all violations of ordinances, “except those relating to and regulating traffic. . . .” Ga. L. 1996, pp. 4469, 4515. Assuming, without deciding, that an exclusion from the municipal court’s jurisdiction of such ordinance violations as relate to the regulation of “traffic” is not otherwise broad enough to encompass those violations related to the regulation of taxicabs, the fact still remains that the City Charter does not purport to grant that court exclusive jurisdiction over cases involving violations of ordinances relating to and regulating such vehicles for hire. The provisions of § 4-102 (1) of thе City Charter are consistent with the concept of concurrent jurisdiction. While the municipal court is granted general jurisdiction over most cases involving ordinance violations, there is nothing to indicate that the City is not authorized to provide for an alternate means of adjudicating cases involving violations of provisions of the City Code, including the violation of those ordinances directed toward the regulation of taxicabs.
To the contrary, § 1-102 (36) of the City Charter expressly provides that the City has the power “ [t] o regulate and license vehicles operated for hire in the city ...Ga. L. 1996, pp. 4469, 4477. Under § 3-401 (a) and (i) of the City Charter, the City Council is also authorized to create boards and commissions and to specify their functions. Ga. L. 1996, pp. 4469, 4506-4507. Thus, in establishing the Bureau and by providing for administrative hearings to facilitate the enforcement of the regulation of taxicabs, the City Council did not act ultra vires and divest the municipal court of any jurisdiction granted exclusively to that court. The City Council exercised the regulatory authority over taxicabs granted to it by the City Charter. Therefore, the trial court correctly upheld the provisions of the City Code creating the Bureau and the administrative hearing procedure.
2. To qualify for a CPNC, the City requires that the holder be a resident of Georgia for at least one year. The Association contends that this residency requirement is unconstitutional because it violates the Commerce Clause.
Nothing about the [Association’s] service affects interstate commerce. The service is incidental to a local operation*344 and we would not be justified in resorting to impractical theorizing in order to conclude that a local ride in a local taxi-cab affects interstate commerce.
Airport Taxi Cab Advisory Committee v. City of Atlanta, 584 FSupp. 961, 964 (1) (N.D. Ga. 1983) (upholding the City’s residency requirement for taxi drivers as against an equal protection challenge). Howеver, the City, through its ordinances, does not limit its regulation of the taxi business to those who actually provide the local services. It also exercises control over who can own and operate a local taxi business. Although a CPNC is needed for operation of a cab or limousine in the City, the ordinance provides that the holder of the CPNC is not required to be the actual operator of the vehicle. Thus, the CPNC is a certificate that the vehicle owner must obtain to authorize its use for hire in the City. Accordingly, the one-year residency requirement restricts to Georgia residents those who can apply for a CPNC and those to whom current CPNC holders can sell or lease their property interest in the certificate. Consequently, the residency requirement prohibits all non-Georgians from engaging in the taxi business in the City.
Whether the Association has standing to raise this issue was addressed below, and the trial court determined that the Assоciation has “associational standing” in accordance with Aldridge v. Ga. Hospitality & Travel Assn.,
“(A)n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” [Cit.]
Here, every member of the Association is affected by the residency requirement, in that none of them is at liberty to sell or lease his or her CPNC to a non-resident of Georgia. The removal of this impediment to the sale or lease of a CPNC is clearly relevant to the Association’s purpose. Since the ordinance has a common adverse impact on the Association’s collective membership, participation of the individual members themselves is not required to determine the merits of the claim.
Standing does not require a shоwing that any particular individual member , of the Association has already suffered an actual injury by being prevented from consummating the sale or lease of a
“Before a statute can be attacked by anyone on the ground of its unconstitutionality, he must show that its enforcement is an infringement upon his right of person or property, and that such infringement results from the unconstitutional feature of the statute upon which he bases his attack. [Cits.]”
Crumley v. Head,
[Enforcement of the local enactment against [them] will impact [their] right to engage freely in those business activities currently authorized by the [CPNC] issued to [them] under the Act. Therefore, [the Association] has standing to assert that the ordinance is unconstitutional as applied to it[s members]. [Cits.] (Emphasis supplied.)
City of Atlanta v. S.W.A.N Consulting & Security Services,
As a “general principle [,] . . . the Commerce Clause prohibits a State from using its regulatory power to protect its own citizens from outside competition. [Cits.]” Lewis v. BT Investment Managers, 447
thus “overtly blocks the flow of interstate commerce at (the) State’s borders.” [Cit.] Such facial discrimination by itself maybe a fatal defect, regardless of the [ordinance’s] purpose, because “the evil of protectionism can reside in legislative means as well as legislative ends.” [Cit.] At a minimum such facial discrimination invokes the strictest scrutiny of any purported legitimate local purpose and of the absence of nondiscriminatory alternatives.
Hughes v. Oklahoma,
[E]ven in regulating to protect local interests, the States generally must act in a manner consistent with the “ultimate ... principle that one state in its dealings with another may not place itself in a position of economic isolation.” [Cit.] However important the state interest at hand, “it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently.” [Cit.]
Lewis v. BT Investment Managers, supra at 36 (II). “ ‘Discriminate’ has been defined ... in this context as ‘differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.’ [Cit.]” Glazer’s Wholesale Drug Co. v. Kansas, supra at 1240 (III) A. “The burden is on the [City] to show that ‘the discrimination is demonstrably justifiedby a valid factor unrelated to economic protectiоnism[.]’ [Cit.]” (Emphasis in original.) Chemical Waste Management v. Hunt,
Requiring that the actual operators of the taxis satisfy a residency requirement may be justified on the grounds that it enhances public safety and fosters more efficient service. See Airport Taxi Cab Advisory Committee v. City of Atlanta, supra at 967 (2). However, with regard to eligibility for holding a CPNC and, thus, engaging in the
may regulate business which affects public health, safety and welfare, but it may not deprive an individual of his right to conduct lawful business unless it can be shown that such deprivation is reasonably related to the ... interests sought to be protected. [Cit.] There is no relationship between the required residency and a valid governmental interest. It is economic protectionism which creates an artificial barrier to commerce and violates the Commerce Clause.
Wometco Services v. Gaddy,
3. The Association also urges that the one-year residency requirement violates equal protection. However, it is unnecessary to consider this additional constitutional challenge, since we have held that the requirement violates the Commerce Clause for the reasons discussed in Division 2.
4. The City Code provides that the Association’s members are subject to the imposition of fines and penalties in the form of suspension or revocation of a CPNC when, in violation of the taxicab regulations, their drivers fail to obtain valid insurance and inspection stickers for the vehicles and fail to obtain or renew a driving permit. The Association urged that this is an imposition of vicarious criminal liability which constitutes a substantive due process violation. See Davis v. City of Peachtree City,
“[W]e have held that vicarious criminal liability violates due process. [Cit.]” Perkins v. State,
[C]ivil violations providing civil penalties such as fines or revocation of licenses [can] be used for offenses for which the*348 individual was not morally blameworthy and does not deserve the social condemnation “implicit in the concept ‘crime.’ ” [Cit.]
Davis v. City of Peachtree City, supra at 222 (1). Thus, the Association does not have a viable substantive due process claim unless its members are subjected to vicarious criminal liability, rather than vicarious civil sanctions, for their drivers’ omissions.
As noted in Division 1, the relevant provisions of the City Code provide that charges brought against individuals and entities for violating the taxicab regulations are initially heard by a Bureau hearing officer who conducts an administrative hearing to determine whether any sanction is authorized. After conducting the hearing, the hearing officer makes a recommendation as to sanctions, and the City Code authorizes the Mayor, upon receiving the recommendation, to suspend and revoke a permit and a CPNC and to impose a civil fine for a violation of the regulations.
[A] substantive due process analysis . . . considers both the interest of the public and the individual and whether, considering the legitimate public interests involved, there are other, less onerous means by which the public interest might be protected. [Cits.]
Davis v. City of Peachtree City, supra at 220 (1). Here, the ordinance in question is of the type which
“dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.” [Cit.]
United States v. Parks,
[A] municipal ordinance is a valid exercise of the police power if it is substantially related to the public health, safety, or general welfare. [Cits.]... So long as an ordinance realistically serves a legitimate public purpose, and it employs means that are reasonably necessary to achieve that purpose, without unduly oppressing the individuals regulated, the ordinance must survive a due process challenge. [Cits.] . . . [W]here “legislative action is within the scope of the police power (as exists here), fairly debatable questions*349 as to its reasonableness, wisdom and propriety are not for the determination of the courts, but for that of the legislative body on which rests the duty and responsibility of (the) decision.” [Cit.]
City of Lilburn v. Sanchez,
5. In addition to a substantive due process attack on the constitutionality of the ordinance itself, the Association also asserted a separate claim against the City for an alleged procedural due process violation. According to the allegations of the original complaint filed in July of 2004, the City had engaged in a pattern of failing to provide the Association’s members with sufficient notice when a citation was issued to a driver that would result in the imposition оf vicarious liability. For this alleged procedural due process violation, the Association sought damages. However, the answer filed by the City alleged that the Association had not complied with OCGA § 36-33-5 by providing the City with notice of the procedural due process claim before filing suit. Thereafter, the Association amended its complaint so as to withdraw all claims for damages. On October 8, 2004, the Association served an ante-litem notice on the City. When, more than a month later, the City had not responded to the notice, the Association again amended its complaint on November 17, 2004 so as to allege compliance with OCGA § 36-33-5 and to reassert the procedural due process claim for damages.
In contrast to the substantive due process claim which the trial court found to be meritless, the trial court found that a procedural due process violation had occurred because “the City’s actions pursuant to the challenged ordinances, prior to July 2004, [were] unconstitutional as applied.” Nevertheless, it concluded that the claim must be dismissed for failure of the Association to provide the City with ante-litem notice before filing the original complaint. The Association urges that this is erroneous, because it was authorized to reassert the procedural due process claim by amendment after providing the notice.
*350 No person, firm, or corporation having a claim for money damages against any municipal corporation on account of injuries to person or property shall bring any action against the municipal corporation for such injuries, without first giving notice as provided in subsection (b) . . . . Within six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person, firm, or corporation having the claim shall present the claim in writing to the governing authority of the municipality for adjustment____No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment. Upon the presentation of such claim, the governing authority shall consider and act upon the claim within 30 days from the presentation ....
OCGA§ 36-33-5 (a), (b), (c). Satisfaction of this notice requirement is “a condition precedent to bringing suit against a municipal corporation for damages resulting from injuries to person or property . . . .” City of Chamblee v. Maxwell,
However, the Association did not pursue that original claim. After amending thе complaint to withdraw it, the Association gave the City notice on October 8, 2004 and then reasserted the claim by another amendment the following month. The reasserted claim was not precisely the same as that alleged in the original complaint, as only those occurrences happening within six months of October 8, 2004 were viable. However, there is no impediment to asserting a new claim by amendment. McDonald v. Rogers,
However, the Association did not attempt to add the ante-litem notice by amendment to the complaint alleging a claim for damages against the City. Instead, it dismissed that сlaim by amendment to the original complaint, gave the City pre-litigation notice and then again amended its complaint to reallege the claim. This satisfied the procedural requirement of giving the City an opportunity to investigate the claim so as to determine whether to settle it without resort to litigation. The trial court erred in concluding that the Association was procedurally barred from pursuing that claim for such alleged violations of due process as occurred in the six months prior to October 8, 2004 when the ante-litem notice was given.
On appeal, the City urges that, even if it was permissible for the Association to withdraw and then to reassert the claim by amendment in November of 2004, the ante-litem notice that was served the preceding month was substantively deficient because, contrary to the mandate of OCGA § 36-33-5 (b), “the time, place, and extent of the injury” were not stated therein “as nearly as practicable . . . .” Howеver, assuming, without deciding, that the alleged substantive deficiency of the notice was raised below as a ground for summary judgment, the trial court never ruled on it and, instead, based its grant of the City’s motion solely on the procedural failure of the Association to comply with OCGA § 36-33-5 (b) prior to filing the original complaint. The Association has not briefed the question of the substantive sufficiency of the ante-litem notice that it gave the City, presumably because the trial court granted summary judgment only on the basis of the erroneous legal theory that the notice was procedurally deficient and also because the City did not file a cross-appeal expressly raising the alleged substantive insufficiency as a
There is no precise standard for determining whether any given ante-litem notice is substantively sufficient, since substantial compliance with the statute is all that is required. City of Arlington v. Smith,
Judgment affirmed in part and reversed in part.
Concurrence Opinion
concurring in part and dissenting in part.
I agree with the majority that the Atlanta City Council’s creation of the Taxicab Bureau was not an ultra vires act (Div. 1) and that the trial court was correct when it dismissed the Association’s claim for damages because the ordinances which authorize the imposition of fines on the Association’s members did not impose unconstitutional vicarious criminal liability (Div. 4). However, I believe the majority goes astrаy when it declares portions of the City’s ordinances to be unconstitutional violations of the Commerce Clause of the United States Constitution (Div. 2) and does not address the Association’s equal protection claim (Div. 3), and when it concludes the Association’s ante litem notice was timely (Div. 5). Because I believe the Association did not sufficiently plead or prove any injury to support
1. The majority takes the unprecedented step of declaring a city ordinance to be an unconstitutional violation of the Commerce Clause of the United States Constitution without any allegation or proof of injury. When the Association raised its concern about the constitutionality of the residency requirement in its first amended complaint, it did so by merely paraphrasing the two applicable ordinance sections and asserting they violated the Commerce Clause. There was no recitation of facts setting out how the ordinances were defective or how they harmed the Association or its members. However, a residency requirement is not a per se violation of the Commerce Clause, so merely identifying the disputed ordinances is insufficient to establish an injury. See, e.g., White v. Mass. Council of Constr. Employers,
The majority opinion improperly addresses the merits of the Association’s Commerce Clause claim in the face of the requirement that an association “must allege that its members, or any one of them, are suffering immediate and threatened injury as a result of challenged action of the sort that would make out a justiciable case had the members themselves brought suit.... [Cit.]” Hunt v. Washington State Apple Advertising Comm.,
In Lujan, the Court clearly set out the level of specificity that must be “shown” before a plaintiff may properly be afforded standing. Thus, proper standing requires, at a minimum, that a plaintiff clearly allege an injury somewhere in his plеadings. If these factual allegations of injury are not present in the complaint, supporting affidavits, or other evidence, then the trial or reviewing court must dismiss the complaint. Warth v. Seldin,
In contrast, the Association in the case at bar never satisfied the minimum constitutional standing requirements because the Association did not allege a single fact or “concrete or particularized” injury that would establish standing to bring a Commerce Clause challenge. The Association failed to allege, for example, that any of its members had an out-of-state buyer to whom they were prevented from selling a CPNC; that the Association represented an out-of-state party who was denied the right to purchase a CPNC by virtue of their residence; or even that the market for CPNC buyers has been limited in any way because of the requirement. Even during the hearing on the motion for partial summary judgment, the Association rested its entire challenge on equal protection grounds and did not argue the Commerce Clause issue, again forgoing an opportunity to establish how its members were injured. In short, the Association has failed to “show” how the CPNC residency requirement injured it or its members by having an “adverse impact on [the party’s] own rights.” South Ga. Nat. Gas Co., supra.
Division 2 of the majority oрinion overlooks this deficiency and declares the ordinance to be an unconstitutional violation of the Commerce Clause without any identifiable claim in the record of either an “actual or imminent” injury. Lujan, supra at 560. Rather than adhere to the requirement that an injury-in-fact be established in the pleadings, affidavits and other evidence produced by the plaintiff, the majority opinion supplies the injuries the majority believes the members of the Association might suffer as a result of the residency requirement. In an effort to reach the merits of the Association’s suggestion that the City’s ordinance violates the Commerce Clause, the majority resorts to granting the Association standing based on this Court’s post-hoc recitation of injuries the majority perceives might result from the hypothetical future enforcement of a statute.
The majority opinion, quoting Preservation Alliance of Savannah v. Norfolk Southern Corp.,
However, even the most generous interpretation of the Association’s pleadings in this case does not suggest that the Association alleged facts that give rise to a claim for declaratory or injunctive relief. The Association has never alleged “an actual controversy or circumstances showing a necessity for a determination to guide and protect [its members] from uncertainty and insecurity with regard to the propriety of some future act or conduct. . . .” Baker v. City of Marietta,
Allowing the Association, based on the record as it has been developed to this point, standing to challenge the constitutionality of the ordinance without requiring the Association to have shown in its pleadings, affidavits or evidence, some kind of injury means that “anyone who objects to the enforcement of any particular statute [has] standing to file a constitutional challenge even though he or she is not directly affected by that statute. Such a holding [renders] the concept of ‘standing’ meaningless.” Adams v. Ga. Dept. of Corrections,
2. Because I disagree with the majority’s approach to the Commerce Clause issue, I must also disagree with its handling in Division 3 of the Association’s equal protection challenge to the ordinance’s requirement that an applicant for a CPNC be a Georgia resident for at least one year. I believe the merits of the challenge should be addressed under the rational basis test since the Association’s members do not comprise a suspect class and holding a CPNC issued by the City is not a fundamental right, and the trial court’s decision upheld.
[T]he legislative classification created by the ordinances can withstand constitutional assault when the classification is based on rational distinctions and bears a direct and real relation to the legitimate object or purpose of the legislation____A classification will be upheld in the facе of an equal protection challenge so long as under any conceivable set of facts, it bears a rational relationship to a legitimate end of government not prohibited by the Constitution.
(Punctuation omitted.) Old South Duck Tours v. Mayor &c. of Savannah,
The trial court concluded a rational basis existed for the one-year residency requirement after finding it “fosters better familiarity with the City of Atlanta and encourages commercial ties to the community.” While it maybe true, as the Association suggests on appeal, that there are means other than a state-wide residency requirement that would better serve the goals of achieving familiarity with Atlanta and encouraging commercial ties to the Atlanta community, our task is not to pass on the wisdom of the legislative classification but only to determine whether it is reasonable. See State of Ga. v. Heretic,
The distinction between the stigma of a criminal conviction and the imposition of civil punishment drawn in Davis v. City of Peachtree City and endorsed by this Court today is appropriate. The Supreme Court of Minnesota, relying heavily on Davis v. City of Peachtree City, also has concluded that “criminal penalties based on vicarious liability .. . are a violation of substantive due рrocess and that only civil penalties would be constitutional.” State v. Guminga,
On appeal, the Association acknowledges it did not serve the City with ante litem notice prior to filing suit, but contends the ante litem notice it served three months after initiating litigation complied with the statute because, upon being made aware of its ante litem deficiency, the Association had dismissed its claims for damages, served the City with ante litem notice, waited the requisite 30 days, and then amended its complaint to seek damages. The majority reverses the trial court’s ruling on the ground that the Association did not pursue the claim for damages it initially had filed, but pursued the claim for damages it filed after it had dismissed the first claim and served the City with ante litem notice in mid-litigation. I cannot endorse the Association’s sleight of hand.
“Since the right to sue a municipality is statutory, the legislature may attach a notice-of-claim requirement as a precondition to maintenance of such a suit.” Shoemaker v. Aldmor Mgmt.,249 Ga. 430, 432 (
The purpose and intent of the General Assembly in requiring ante litem notice prior to filing suit is fourfold:
*360 to afford the officials of an offending city opportunity to investigate the complaint at a time when the evidence is more readily available, [2] to afford them opportunity ... to take proper steps to abate [a nuisance] before the effects thereof become great or far reaching, [3] to bar a claimant’s right of recovery for any and all claims arising by reason of matters that may have transpired or existed . . . more than six months prior to the giving of the required ante litem notice, and [4] to afford the city an opportunity to negotiate a settlement of such claims as it may determine to be meritorious before litigation is commenced, thus protecting the interests of the general public by reducing the exposure of the funds in the city treasury. . . .
City of Gainesville v. Moss,
In overruling the holding in City of Atlanta v. Fuller,
I am authorized to state that Justice Thompson joins this dissent in its entirety and Justice Hines joins Division 4 of this dissent.
Notes
In addition to the adoption of the Hunt “associational standing” test in Aldridge, this
Neither of the cases cited by the Court of Appeals in support of this proposition suggests a statement of future injury is sufficient. In each case, both of which involve injunctive relief, this Court stated that in order to maintain an action challenging a statute, the plaintiff must
Vicarious liability is not strict liability:
With strict liability, there must be a showing that the defendant personally engaged in the necessary acts or omissions; only the requirement of mental fault is dispensed with altogether. By contrast, with vicarious liability it is the need for a personal actus reus that is dispensed with, and there remains the need for whatever mental fault the law requires on the part of the employee [or agent or servant],
LaFave & Scott, Substantive Criminal Law, Vol. 2, § 13.4. See also Davis v. City of Peachtree City,
Concurrence Opinion
concurring in part and dissenting in part.
I agree with all that is said in the majority opinion except Division 5, which deals with the giving of ante litem notice. I agree with Justice Benham’s position on the lack of validity of the attempt at ante litem notice. By definition, such notice is not to be given in the midst of the litigation.