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

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                      June 20, 2018




In the Court of Appeals of Georgia
 A18A0674. IN RE SHAREE BAPS CORP.

      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 SE2d 100)

(2017); see also Expedia, Inc. v. City of Columbus, 285 Ga. 684, 689 (4) (681 SE2d

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

      1
        Elementary and middle schools are located on a single contiguous campus
comprised of approximately sixty-one acres including parking lots, recreational
buildings, and a sports field.

                                            2
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.

                                          3
      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 is
      seeking a license in conformity with federal, state or local laws.

      ...

      (5) The board of commissioners shall also give consideration to such
      other factors as may affect the health and general welfare of the
      unincorporated areas of Gordon County, to include the type of license
      applied for, the effect of that license will have on schools, public parks,
      and churches in the area, the effect of granting of the license will have
      on existing land uses in the area, the effect the granting of the license
      will have on existing land uses in the area, the character of the area and
      its peculiar suitability for the particular use sought, and the congestion
      of roads and streets. These items shall receive reasonable consideration
      with a general view of promoting desirable living conditions, and
      sustaining the stability of neighborhood property values.

Sec. 7-111. Further, “[n]o license shall be issued for a location not suitable in the

judgment and discretion of the commission because of traffic congestion, general

character of the neighborhood, or because of the effect such an establishment would

have on adjacent and surrounding properties and neighborhoods.” Sec. 7-117 (a).

      Public Hearing

                                           4
      After completing and passing all public safety departmental reviews, the Board

held a public hearing to consider Sharee Baps’ application for licensure. During the

hearing, a member of the Gordon County Board of Education and resident of the

county, Bobby Hall, spoke in opposition to the application.2 Mr. Hall stated that the

schools had a combined total enrollment of about 1,300 children and those children

use the ball fields and facilities for recreation. He further stated that the school

campus is posted as “Alcohol and Tobacco Free” and expressed concerns that the

presence of alcohol in the store would negatively influence children.3 Mr. Hall noted

that many parents pick up and drop off students every day. He suggested that

sometimes students sneak off of campus during the school day and that adults might

purchase alcohol for students from the convenience store.

      In rebuttal, Sharee Baps asserted that it met the main-structure-to-main-

structure distance requirements of Sec. 7-117 (f) and the fact that the store was merely

located in the same neighborhood as a school should not matter absent some specific

showing of risk or harm. Sharee Baps also noted that the concerns expressed by Mr.

      2
       The record does not indicate that Mr. Hall was speaking on behalf of the
Board of Education.
      3
       The record reflects the store is already licensed to sell, and does sell, tobacco
products.

                                           5
Hall required independent criminal acts and that the mere possibility of those acts

occurring should not be held against Sharee Baps’ business. Moreover, Sharee Baps

argued that it currently holds a license to sell tobacco products and has never sold

tobacco to an underage person, thus demonstrating that there was no evidence to

suggest that the store would violate any law regulating alcohol sales.

      Shortly thereafter, the Board voted to deny Sharee Baps’ application. In a letter

sent to Sharee Baps, the Board explained its denial stating:

      The [B]oard considered the application, public comments, and relevant
      provisions of the Gordon County Code of Ordinances including, but not
      limited to, [Sec.] 7-111 (5) and [Sec.] 7-117 (a) and (f). The Board heard
      evidence of the negative impact the proposed license would have on
      schools in the area. In addition, the application reveals that the proposed
      location of the applicant’s property is 200 feet from school property (at
      its closest point). The Board of Commissioners denied the application
      because of the closeness or proximity of the proposed location to the
      property, ball fields and facilities of the Gordon County School District.

      Sharee Baps then sought a writ of certiorari to the superior court, which issued

the writ. At the hearing,4 Sharee Baps argued that the Board’s reason for denial was

based on an incorrect interpretation of the ordinance, as Sec. 7-117 (f) set forth a

main-structure-to-main-structure minimum distance, which would allow for Sharee

Baps to sell alcohol at its store. The superior court disagreed and affirmed the Board’s

      4
          The superior court hearing was not transcribed.

                                           6
decision, finding the Board was exercising its sound discretion when it denied Sharee

Baps’s application. Sharee Baps then filed an application for discretionary appeal

which we granted. This appeal followed.

      Sharee Baps argues that there was no evidence presented upon which the Board

could exercise its discretion to deny the license under Sec. 7-117 (f). We agree.

      As our Supreme Court has noted,

      Absolute and uncontrolled discretion by governing authorities to issue
      licenses invites abuse, and exercise of discretion by states and local
      governments must be tempered with ascertainable standards by which
      an applicant can intelligently seek to qualify for a license. Thus, in
      Georgia a liquor licensing ordinance must provide sufficient standards
      to control the discretion of the governing authority and adequate notice
      to applicants of the criteria for issuance of a license.


Arras v. Herrin, 255 Ga. 11, 12 (334 SE2d 677) (1985) (citations and punctuation

omitted).

      Here, the ordinance in question contains an objective standard regarding the

location of the business where the license is to be exercised. See Sec. 7-117 (f) (“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.”). It is undisputed that Sharee Baps met the main-structure-

                                           7
to-main-structure distance requirement, as the structure of the store is located

approximately 1,800 feet from the nearest main school structure. However, as

indicated by its letter, the Board’s stated reason for the denial of the license

application was the “closeness or proximity” of the store to the ball fields and

facilities of the school.5 Thus, the Board could not have based its denial of a license

to sell malt beverages to Sharee Baps based on this provision of the county ordinance.

      Notwithstanding the above, as indicated by its letter, the Board also considered

Secs. 7-111 (5) and 7-117 (a) in denying the license application based on the

“closeness or proximity of the proposed location to the property, ball fields and

facilities” of the school. As both these provisions permit the Board to consider the

effect issuance of the license would have on schools and/or adjacent surrounding

properties, the Board heard testimony from Mr. Hall to that end. Mr. Hall testified

that he had some generalized concerns with respect to the possible impact he believed

      5
         While the term “school” as defined by the ordinance includes “recreational
facilities, such as playgrounds, ball fields, and similarly used areas” we find no basis
in interpreting the term “ball field” to equate to a “main structure” so as to preclude
licensure under Sec. 7-117 (f). See Expedia, Inc. v. City of Columbus, 285 Ga. 684,
689 (4) (681 SE2d 122) (2009) (“A statute must be construed to give sensible and
intelligent effect to all of its provisions and to refrain from any interpretation which
renders any part of the statute meaningless. Words found in statutes are to be given
their plain and ordinary meaning and statutes that are in pari materia to each other
must be construed together.” (citations and punctuation omitted)).

                                           8
the sale of alcohol would have on children attending the school near Sharee Baps’

store. Mr. Hall expressed concern that students could sneak off campus and convince

an adult to purchase alcohol on their behalf from the store.

      This subjective concern was not substantiated by any evidence, such as an

instance of other underage sales of tobacco at this location. This is also not a case

where evidence of increased traffic patterns, criminal activity in the vicinity, or some

other factor was present with the relative proximity. The ordinance requires more than

a mere subjective concern and requires that the evidence not merely be in regard to

proximity alone. See Young Men’s Christian Ass’n v. Bailey, 112 Ga. App. 684, 704

(146 SE2d 324) (1965) (“[f]indings of fact based on mere conjecture cannot be

upheld” because “mere conjecture does not constitute evidence upon which findings

may be based.”). Compare Augusta-Richmond Cty. v. Lee, 277 Ga. 483, 483-484 (2)

(592 SE2d 71) (2004) (commission considered evidence regarding the number of

other stores selling alcohol in the area and the proximity of schools and churches in

the area indicating that minors congregated in the area and the reputation of the

property with respect to its affect on the character of the neighborhood). “[W]hen an

applicant for such a license has met the prescribed standards for obtaining it, a refusal



                                           9
by the municipal authorities to issue the license constitutes a denial of equal

protection.” Atlanta v. Hill, 238 Ga. 413, 414-415 (233 SE2d 193) (1977).

      Therefore, the superior court erred in ruling that sufficient evidence existed to

support the Board’s denial of Sharee Baps’ license to sell malt beverages.

Accordingly, we reverse and remand this case to the superior court with direction to

issue a mandamus to the Board to grant the license application to Sharee Baps. See

Fulton Cty. v. Bartenfeld, 257 Ga. 766, 770 (4) (363 SE2d 555) (1988) (where an

applicant complied with all objective conditions and prerequisites set out in the local

ordinance for obtaining issuance of the permit, and commissioners’ denial constituted

an act of discretion which lacked articulable, objective ground of support, applicant

had clear legal right to issuance of the permit and was entitled to issuance of the writ

commanding grant of the application by the local authorities.); accord Bozik v. Cobb

Cty., 240 Ga. 537, 537 (242 SE2d 48) (1978).

      Judgment reversed and case remanded with direction. Ellington, P. J., and

Gobeil, J., concur.




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