Bozik v. Cobb County

242 S.E.2d 48, 240 Ga. 537, 1978 Ga. LEXIS 700

• Court: Supreme Court of Georgia
• Decided: January 19, 1978
• Docket: 32938
• Status: Published

Opinions

Per curiam.

Cobb County’s governing authority published its ordinance pertaining to the sale of liquor, wine and beer on August 14, 1973. Section 9 provides, "No license hereunder shall be issued to any location which is within a three hundred (300) feet [sic] radius of a property line of a private residence, if such resident shall appear at the hearing on applicant’s license and object to the issuance of the license. This section shall not apply to residences located within commercial zones.”

Appellant Bozik, an employee of the Tenneco Oil Company, applied for beer and wine licenses for two separate Tenneco Mini-Mart convenience stores in Cobb County. It is undisputed that the applications were in proper form and that a hearing was conducted pursuant to the required advertisement. Bozik’s licenses were denied, however, solely because residents within 300 feet of both locations objected to the licenses’ issuing. Bozik then sought to compel the Cobb County Board of Commissioners to exercise its discretion regarding the licenses by declaratory judgment and mandamus on the grounds that his property rights had been denied without due process of law and that the commissioners’ refusal to issue the licenses constituted a denial of equal protection. The trial court denied relief and Bozik appeals. We reverse.

Argued November 16, 1977 Decided January 19, 1978. Garcia & Kennedy, Reid G. Kennedy, for appellants.

In City of Atlanta v. Hill, 238 Ga. 413, 414 (233 SE2d 193) (1977), we held 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.” We are now called upon to decide if the issuing body may delegate that authority to citizens residing within 300 feet of the applicant’s location. We hold that such an arbitrary delegation constitutes a gross abuse of discretion by the county commissioners and as such denies the applicant due process of law. See McGinty v. Gormley, 181 Ga. 644 (183 SE 804) (1935). Although the citizens may voice their objections, the commissioners as local elected officials must exercise the authority vested in them by the General Assembly to determine whether Bozik is entitled to the licenses under the rules and regulations set out in the ordinances. They may not abdicate that responsibility to others. Further, the denial of the license on such arbitrary grounds constitutes a violation of equal protection, and mandamus will lie. City of Atlanta v. Hill, supra; Eubank v. Richmond, 226 U. S. 137 (1912).

Therefore, this case must be reversed and remanded to the trial court, to issue a mandamus to the county commissioners to entertain appellants’ applications for licenses without regard to section 9.

Judgment reversed.

All the Justices concur, except Undercofler, P. J., and Jordan, J., who dissent. Bowles, J., disqualified. Awtrey, Parker, Risse, Mangerie & Brantley, TobyB. Prodgers, for appellees.