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Atlanta, GA  30329

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City Director Used Discretion in Granting or Denying a Business License and was Entitled to Sovereign Immunity

February 8, 2019

            P&J Beverage Corporation d/b/a Forrest Road Package Store’s (“P&J”) filed a lawsuit seeking a writ of mandamus to prevent the City of Columbus (the “City”) from issuing an alcoholic beverage license to The Bottle Shop, LLC, (the “Shop”) and then seeking to revoke the license if issued. Consol. Gov't of Columbus, Georgia v. P&J Beverage Corp., 344 Ga. App. 482 (2018). P&J learned that the Shop applied for an alcoholic beverage license on April 24, 2016, at a location within 600 feet of The Growing Room, Inc., which P&J claimed was a school.  Based on that location, P&J alleged that the issuance of an alcoholic beverage license would violate City ordinances.  In addition, P&J alleged it “will suffer a special injury by the opening of [The Bottle Shop] by virtue of competition from another alcohol retailer opening at about the same time, and going after the same demographic, and having obtained its license in violation of local and state law.” The Shop was ultimately issued a license and opened in November 2016.

 

            The City alleged that P&J’s claims must be barred by the doctrine of sovereign immunity.  “[H]owever, sovereign immunity is no bar to petitions for writs of mandamus.” “Our mandamus statute [OCGA § 9-6-20] expressly authorizes claimants to seek relief against a public official ‘whenever ... a defect of legal justice would ensue from [the official’s] failure to perform or from improper performance’ of ‘official duties.” The writ of mandamus is properly issued only if (1) no other adequate legal remedy is available to effectuate the relief sought; and (2) the applicant has a clear legal right to such relief.  Therefore, P&J was required to show that the City had a clear legal duty to deny or revoke the Shop’s alcoholic beverage license.

 

            Where the act required by law to be done involves the exercise of some degree of official discretion and judgment upon the part of the officer charged with its performance, the writ of mandamus may properly command [the officer] to act, or, as is otherwise expressed, may set [the officer] in motion; however, it will not further control or interfere with [the officer’s] action, nor will it direct [the officer] to act in any specific manner. City ordinances provide “[t]he director of finance shall either approve or disapprove all applications for alcoholic beverage licenses ...” and that “[n]o alcoholic beverage [license] shall be issued until the issuing authority is satisfied that the business is in compliance with [the Alcoholic Beverages Chapter] of the Code.” The City claimed that The Growing Room was not a school, but was a daycare; therefore, there was no contributing factor other than the director’s discretion in granting or denying the license. Therefore, the City did not violate a clear legal duty and was entitled to sovereign immunity.

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