Georgia Court of Appeals Reports

CITY OF ATLANTA v. JONES, A06A1691 (Ga.App. 12-21-2006)
CITY OF ATLANTA v. JONES et al. A06A1691. Court of Appeals
of Georgia. December 21, 2006.

MIKELL, Judge.

In the Court of Appeals of Georgia

Nightclub managers Alan R. Jones, James Lee Berdine, and
Brian T. May (collectively the “managers”) were convicted
by the Municipal Court of Atlanta of violating Code section
10-46 of the Code of Ordinances of the City of Atlanta (the
“ordinance”) and fined $1000, after inspectors with the
City of Atlanta Permits Department observed bartenders at
the managers’ respective clubs selling alcohol without a
valid license. The managers appealed to the superior court,
challenging their convictions and the constitutionality of
the ordinance as applied to persons other than the actual
holder of a license, i.e., the licensee. The City of
Atlanta moved to dismiss the appeal, arguing that the
petition failed to comply with OCGA §§ 5-4-3
and 5-4-12 and that the managers waived their
constitutional challenge to the ordinance by failing to
raise it below. Following a hearing, the superior court
denied the City’s motion to dismiss and, without addressing
the constitutional claims, reversed the managers’
convictions on the ground that the ordinance applies only
to licensees. The City appeals these rulings.

1. Because the managers’ petition to the superior court
challenges the constitutionality of the ordinance as
applied, we must first address this Court’s jurisdiction
over the instant appeal. Our Supreme Court has exclusive
appellate jurisdiction over cases in which the
constitutionality of a law, ordinance, or constitutional
provision has been drawn into question, but will not rule
on a constitutional question “unless it clearly appears in
the record that the [lower] court distinctly ruled on the
point.”[fn1] Here, the superior court did not expressly
rule upon the constitutionality of the statute.
Accordingly, we may address the merits of this appeal.[fn2]

2. We agree with the City that the superior court erred in
ruling that the ordinance applies only to licensees.
Nevertheless, as discussed below, the trial court correctly
set aside the managers’ convictions. We affirm under the
“right for any reason” principle.[fn3]

We review the superior court’s decision on the
interpretation of the ordinance for plain legal error.[fn4]
The ordinance, which is part of Division 2 (“License”) of
Chapter 10, Alcoholic Beverages, of the 1995 Code of
Ordinances of the City (the “Code”), provides that

[n]o alcoholic beverages shall be manufactured, imported,
brokered, sold to wholesalers or other importers or
brokers, sold at wholesale or retail in the original
package or by the drink nor shall any bottle house or
tasting room be operated except under a license granted by
the mayor as provided in this division. No licensee shall
be authorized to operate a business until the license
required in this section has been paid for in cash or the
equivalent and delivered to the licensee by the proper
city official. Where there is a pending application for a
new licensee or a change of ownership on a prior existing
licensed premises, the authority of the prior licensee to
operate the business shall be extended for a maximum
period of 30 days beyond the termination date of the prior

Code section 10-1 defines licensee as “a person, real or
artificial, holding any class of license issued under this
chapter.” The City argues that the ordinance applies to the
managers because employees of those who have licenses to
sell liquor at retail are in all respects bound by the
restrictions of the law applicable to the holder of such
licenses.[fn5] The managers, however, contend that the
superior court’s interpretation is correct and that even
though the term “licensee” is absent from the first
sentence of the ordinance, it is apparent that the Code
section is directed at activities requiring a license and at
those persons who are required to obtain an alcohol
license, not at managers or employees. They also point out
that if the City’s governing body intended for the
ordinance to reach employees and managers it would have so
stated as it did in related areas of the Code which
specifically impose liability on employees or agents of a

Criminal statutes and ordinances are strictly construed,
and “must be read according to the natural and obvious
import of their language, and their operation should not be
limited or extended by application of subtle and forced
interpretations.”[fn6] Nor should the unambiguous words of
a criminal statute “be altered by judicial construction so
as to punish one not otherwise within its reach.”[fn7] Most
importantly, the rules of statutory construction require
that we ascertain the intention of the governing body and
effectuate the purpose of the ordinance.[fn8]

Keeping these principles in mind, we find that the superior
court’s interpretation conflicts with the plain language of
the ordinance which expressly prohibits the sale of alcohol
without a valid liquor license by anyone, whether that
person be a manager, bartender, or stock clerk. Contrary to
the superior court’s finding, the ordinance does not apply
only to licensees who sell alcohol without a license; it
applies to anyone who sells alcohol without a license,
including managers and employees.[fn9] Nonetheless, the
superior court correctly set aside the managers’
convictions because there is no evidence that the managers
themselves were selling alcohol.[fn10] As our Supreme Court
has consistently held, “vicarious criminal liability
violates due process.”[fn11] Accordingly, the managers
cannot be liable for the bartenders’ actions.

3. The City next contends that the trial court erred in
denying its motion to dismiss because the petition for writ
of certiorari fails to enumerate any errors committed by
the trial judge as required by OCGA §§ 5-4-3
and 5-4-12. We disagree.

The relevant portion of OCGA § 5-4-3 provides that

[w]hen either party in any case in any inferior
judicatory or before any person exercising judicial powers
is dissatisfied with the decision or judgment in the case,
the party may apply for and obtain a writ of certiorari by
petition to the superior court for the county in which
the case was tried, in which petition he shall plainly
and distinctly set forth the errors complained of.

OCGA § 5-4-12 further provides, in relevant part,
that on certiorari to the superior court

(a) [n]o ground of error shall be considered which is not
distinctly set forth in the petition[, and] (b) [t]he
scope of review shall be limited to all errors of law and
determination as to whether the judgment or ruling below
was sustained by substantial evidence.

The petition for certiorari in the instant case sought
review of the managers’ convictions of violating the
ordinance. The petition alleges that the convictions
violated the Georgia and U. S. Constitutions for various
reasons, including unlawfully holding the managers
vicariously liable for the licensees’ failure to renew
their alcohol licenses, and includes a certified copy of
the City’s Alcoholic Beverage Code. The managers also
prayed that the superior court find their convictions
contrary to law and to the principles of justice and equity.
Because the petition plainly and distinctly asserts the
errors complained of, the superior court did not err in
denying the City’s motion to dismiss.

4. Lastly, the City contends that the superior court erred
in denying its motion to dismiss because the issue of the
constitutionality of the ordinance and its enforcement were
waived by the managers failure to raise it at trial. On the
contrary, the record reflects that the managers preserved
the issue. At one point during the trial, counsel argued as
follows: “Our position is that the licensee is the person
who shall be ticketed under this ordinance section.”
Relying on Davis,[fn12] which dealt squarely with the
constitutionality of an ordinance, counsel further argued
that the managers are “not the proper [parties] to have to
stand . . . trial for this.”

Judgment affirmed. Blackburn, P. J., and Adams, J., concur.

[fn1] (Citation omitted.) Santana v. Ga. Power Co., 269 Ga.
127, 129 (6) (498 SE2d 521) (1998); Ga. Dept. of
Corrections v. Chatham County, 274 Ga. App. 865, 868 (2)
(619 SE2d 373) (2005).

[fn2] See, e.g., Whipple v. City of Cordele, 231 Ga. App.
274, 275 (1) (499 SE2d 113) (1998).

[fn3] See Little v. City of Lawrenceville, 272 Ga. 340, 341
(2) (528 SE2d 515) (2000).

[fn4] See City of Buford v. Gwinnett County, 262 Ga. App.
248 (1) (585 SE2d 122) (2003).

[fn5] See Sapp v. State, 99 Ga. App. 657, 660 (109 SE2d 841)
(1959) (law declaring it illegal to sell more than two
quarts of liquor to one person in one day applied to
employee of holder of liquor license who personally sold to
a purchaser more than two quarts of whisky on one day).

[fn6] (Citation omitted.) Perkins v. State, 277 Ga. 323,
325-326 (2) (588 SE2d 719) (2003). See also Haynes v. City
of Albany, 29 Ga. App. 313, 314 (115 SE 30) (1922).

[fn7] (Citation and punctuation omitted.) Perkins, supra at
326 (2)

[fn8] See City of Brunswick v. Atlanta Journal &
Constitution, 214 Ga. App. 150, 153 (3) (447 SE2d 41)

[fn9] See, e.g., Sapp, supra.

[fn10] See, e.g., O’Brien v. Dekalb County, 256 Ga. 757,
758-759 (3 – 5) (353 SE2d 31) (1987) (evidence
insufficient to establish degree of responsibility and
authority required for criminal prosecution under a
regulatory ordinance). Compare Porter v. City of Atlanta,
259 Ga. 526, 530 (6) (384 SE2d 631) (1989) (affirming
conviction of owner of a wrecker service for violation of
city ordinance requiring wrecker services in the city to
accept checks and credit cards because evidence showed that
owner/operator had complete authority and responsibility
for the actions and policies of the corporation and that he
personally refused to accept the checks as required by the

[fn11] Perkins, supra at 325 (2), citing Davis v. City of
Peachtree City, 251 Ga. 219, 222 (1) (304 SE2d 701) (1983)
(due process violation to hold president and licensee of
convenience store vicariously liable for employee’s sale of
wine to minor).

[fn12] Supra.