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In re Sharee Baps Corp.

Court of Appeals of Georgia, Third Division

June 20, 2018

IN RE SHAREE BAPS CORP.

          ELLINGTON, P. J., BETHEL AND GOBEIL, JJ.

          Bethel, Judge.

         Sharee Baps Corporation appeals from the superior court's order affirming the Gordon County Board of Commissioner's denial of its application for a license to sell malt beverages. Sharee Baps contends that the superior court erred in (1) finding there was any evidence upon which the Board could exercise its discretion to deny the license; (2) interpreting Secs. 7-111 (5) and 7-117 (a) as predominating over Sec. 7-117 (f), thereby allowing the exercise of discretion to deny the license; (3) finding that the Board denied the license for reasons other than the Board's interpretation of Sec. 7-117 (f); and (4) failing to grant Sharee Baps's license. The controlling question in this appeal is whether the Board properly interpreted and applied the county's own ordinances governing the issuance of the license in question. For the reasons explained in this opinion, we reverse and remand this case with direction.

         On appeal, the question of whether the superior court properly construed a county ordinance is one of law, and our review is de novo. See SDS Real Prop. Holdings, LTD. v. City of Brookhaven, 341 Ga.App. 862, 862 (802 S.E.2d 100) (2017); see also Expedia, Inc. v. City of Columbus, 285 Ga. 684, 689 (4) (681 S.E.2d 122) (2009) ("The interpretation of statutes and ordinances is a question of law, which we review de novo on appeal." (citations omitted)).

         The relevant facts of this case are undisputed. Sharee Baps applied with the Board for a license to sell malt beverages at its convenience store located in unincorporated Gordon County. The store is located at an intersection and is situated diagonally across the intersection from property owned by the Gordon County Board of Education.[1] At its closest point, the lot line for the school property is 200 feet from the lot line of the store property, and is 322 feet from the store building. The store's building is 1, 585 feet from the elementary school's gymnasium (the closest structure on the school property). The store's building is located approximately 1, 800 feet from the main administrative and classroom building of an elementary school, and about 2, 000 feet from the main administrative and classroom building of the adjacent middle school.

         Applicable Ordinances

         The standards for issuance of alcoholic beverages licenses are set forth in the Gordon County Code of Ordinances. The distance requirements applicable to prospective alcohol licensees are set forth in Sec. 7-117 (f). Sec. 7-117 (f) provides:

No license shall issue for a location where the nearest point of the main structure of the business is located within one thousand (1, 000) feet of the nearest point of the main structure of any school . . . as measured in a straight line between the closest points of the two (2) structures.

         Section 7-117 (f) then goes on to define the words "school" and "church, " stating:

As used in this section, a school shall mean any instructional premises including, but not limited to, main school buildings auditoriums, gymnasiums, shops laboratories, temporary mobile classrooms, outdoor classrooms, and recreational facilities, such as playgrounds, ball fields, and similarly used areas. . . . As used in this section, the word "school" . . . shall also mean the campus or grounds surrounding the school . . . which constitute a part of the school . . . propert[y]. The word "school" . . . shall also mean any real property which has been purchased by a school . . . at the time of the application for an alcoholic beverage license and said property is to be used for a school [.]

         Notably, there does not appear to be any definition of "main structure" in the Gordon County Code.

         When considering an application for a license, in addition to the other provisions of this article, the following shall be considered in the public interest and welfare:

(1) The applicant's reputation, character, and mental capacity to conduct this business, personal associations, record of arrest or reputation in any community in which he or she has resided, and whether applicant is likely to maintain the operation for the business for which he or she ...

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