City of Atlanta v. Hill
233 S.E.2d 193
Ga.
1977
Check Treatment

CITY OF ATLANTA et al. v. HILL

31927

Supreme Court of Georgia

February 23, 1977

238 Ga. 413

for new trial on the usual general grounds only was overruled and he appeals. His sole enumeration of error complains that the trial court erred in overruling his motion for new trial.

The appellant contends that the entire case for the state rests on circumstantial evidence. Two employees who were on duty at the time of the robbery testified and identified appellant as the person who robbed them. One of the employees also testified that she had known the appellant for about four years and gave police the only name she knew him by, which was a nickname, “Bo Diddley.” The appellant testified that the witnesses were mistaken in their identification, that he had not been in the vicinity for over two years, that he did not own a pistol, and that he was not guilty of the robbery. His common law wife testified that he was at home on the night of the robbery because he never goes out at night for more than five or ten minutes. The evidence amply supports the verdict and there is no merit in the enumeration of error.

Judgment affirmed. All the Justices concur.

SUBMITTED FEBRUARY 4, 1977 — DECIDED FEBRUARY 23, 1977.

Robert C. Ray, for appellant.

Lewis R. Slaton, District Attorney, Dean R. Davis, Assistant District Attorney, Arthur K. Bolton, Attorney General, Susan V. Boleyn, Staff Assistant Attorney General, for appellee.

INGRAM, Justice.

The appellant municipality was ordered by the Superior Court of Fulton County in this mandamus case to issue the appellee a license to operate a beer and wine package store. Standards for the issuance of municipal alcoholic beverage licenses are contained in several ordinances of the city. The city contends on appeal that the appellee failed to meet these ordinance requirements and also that the refusal by the city to issue the license is not subject to mandamus in the courts. We reject both arguments of the city.

The trial judge determined after a hearing that the appellee‘s license application satisfied the requirements of the city ordinances. We do not have a transcript of the proceedings before the trial judge, but, using his findings of fact, we see no error in the conclusions of law which he reached in the case in determining the appellee met the license requirements of the city.

Of greater concern is the transcending question posed in this appeal: Is the refusal by a municipality to grant an alcoholic beverage license to an applicant who meets the requirements of the city‘s ordinances subject to the writ of mandamus? The city, relying upon

, and
(Gunter, J., dissenting), argues that the trial court erred in ordering the license issued to the appellee. Goldberg and Massell support the city‘s position in this case, but we conclude that they can no longer be followed and must yield to the rationale of applicable federal decisions on the federal constitutional issues involved. The following decisions of the U. S. Supreme Court demonstrate that in the area of federal constitutional law the death knell has been sounded to the right-privilege distinction. See
;
;
;
; and
. The seminal 5th Circuit decision in
, which was cited with approval in
, stands for the basic proposition that in the field of licensing municipal authorities cannot free themselves from the constraints of the due process and equal protection clauses merely because the state has labeled an alcoholic beverage license a privilege. In the present case, it is unnecessary to determine the full extent to which the due process clause applies to proceedings involving the grant, revocation or renewal of alcoholic beverage licenses. What we determine, in line with previously cited federal decisions, is that when an applicant for such a license has met the prescribed standards for obtaining it, a refusal by the municipal authorities to issue the license constitutes a denial of equal protection, entitling the applicant to a writ of mandamus in state court.

Judgment affirmed. All the Justices concur, except Jordan, J., who concurs in the judgment only and Undercofler, P. J., who concurs specially.

SUBMITTED JANUARY 21, 1977 — DECIDED FEBRUARY 23, 1977.

W. Roy Mays, III, for appellants.

S. George Handelsman, William T. Brooks, for appellee.

UNDERCOFLER, Presiding Justice, concurring specially.

Under recent U. S. Supreme Court decisions

is no longer valid. “... [T]he court has fully and finally rejected the wooden distinction between ‘rights’ and ‘privileges’ that once seemed to govern the application of procedural due process rights.”
. Nevertheless the constitutional rights of alcoholic beverage licensees and license applicants must be balanced against a state‘s prerogatives under the Twenty-first Amendment.
. These constitutional rights appear to be limited to what may be described as “protected rights.” As stated in
, “The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment‘s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite... And a weighing process has long been a part of any determination of the form of hearing required in particular situations by procedural due process. But, to determine whether due process requirements apply in the first place, we must look not to the ‘weight’ but to the nature of the interest at stake... We must look to see if the interest is within the Fourteenth Amendment‘s protection of liberty and property.”

Undoubtedly there will be further exposition of these principles in the future by the U. S. Supreme Court. See

.

, cited by the majority opinion, has been limited. “Invoking Hornsby, a case mistakenly thought by too many to be a pledge that if local authorities would not, a Federal Court would, grant a liquor license...”
. “We have explicitly refused to read Hornsby as holding that the Federal Courts sit as a super liquor board.”
.