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Unofficial Opinion 2002-4

Unofficial Opinion 2002-4

March 19, 2002
To: 

Senator, District 29

Re: 

O.C.G.A. § 3-7-2 does not apply to private clubs conducting sales of alcoholic beverages by the drink where the sales are authorized under a provision of law other than Chapter 7 of Title 3.

This responds to your request for an unofficial opinion regarding the provisions of O.C.G.A. § 3-7-2. You have asked whether the provisions of O.C.G.A. § 3-7-2 authorize all private clubs that meet the definition of “bona fide private club” set forth in O.C.G.A. § 3-7-1(1) to make sales of alcoholic beverages for consumption on the premises at any time on Sundays or whether O.C.G.A. § 3-7-2 only applies to those clubs at which sales are authorized pursuant to Chapter 7 of Title 3.

Chapter 7 of Title 3 addresses the sale of distilled spirits by certain private clubs. O.C.G.A. § 3-7-1(1) defines a “Bona fide private club” as:

any nonprofit association organized under the laws of this state which:

(A) Has been in existence at least one year prior to the filing of its application for a license to be issued pursuant to this chapter;

(B) Has at least 75 regular dues-paying members;

(C) Owns, hires, or leases a building or space within a building for the reasonable use of its members, which building or space:

(i) Has suitable kitchen and dining room space and equipment; and (ii) Is staffed with a sufficient number of employees for cooking, preparing, and serving meals for its members and guests; and

(D) Has no member, officer, agent, or employee directly or indirectly receiving, in the form of salary or other compensation, any profits from the sale of alcoholic beverages beyond a fixed salary.

O.C.G.A. § 3-7-20 provides that:

The commissioner may issue alcoholic beverage licenses to bona fide private clubs in any county or municipality within the state and may promulgate such regulations as he deems necessary for the proper enforcement of this chapter after the approval of such authority by an election held pursuant to Code Section 3-7-41 or 3-7-42. These licenses shall authorize the sale of distilled spirits by the drink for consumption only on the premises where sold.

O.C.G.A. §§ 3-7-41 and 3-7-42 provide that counties and municipalities are authorized to hold elections to determine if the sale of distilled spirits in private clubs, as provided in Chapter 7 of Title 3, will be allowed.

With regard to local governments, O.C.G.A. § 3-7-40 provides that:

(a) Nothing contained in this chapter shall be so construed as to limit the licensing and regulatory authority of any municipality or county in which the sale of alcoholic beverages is lawful.

(b) Each municipality or county may license and regulate any bona fide private club located within the licensing and regulatory jurisdiction of the municipality or county.

O.C.G.A. § 3-7-2 provides:

Notwithstanding any other provision of this chapter, a bona fide private club at which the sale of distilled spirits or other alcoholic beverages by the drink for consumption only on the premises where sold is otherwise authorized pursuant to this chapter is authorized to sell those same distilled spirits and other alcoholic beverages by the drink at any time on Sundays.

1996 Op. Att’y Gen. U96-23 addresses the issue of whether the provisions of O.C.G.A. § 3-7-2 exempt bona fide private clubs from local regulation as to the hours of sale on Sunday. In concluding that such clubs are exempt from local regulation regarding hours of sale, 1996 Op. Att’y Gen. U96-23 states as follows:

The use of the language ‘[n]othwithstanding any other provision of this chapter’ in O.C.G.A. § 3-7-2 makes clear that without regard to the other statutes in Chapter 7 of Title 3, bona fide private clubs ‘at which the sale of distilled spirits by the drink for consumption only on the premises where sold is otherwise authorized pursuant to [Chapter 7]’ are authorized to make sales of distilled spirits by the drink at any time on Sundays. Therefore, it appears that the General Assembly intended to exempt bona fide private clubs from regulation by local counties and municipalities regarding their hours of sale of distilled spirits by the drink for consumption on the premises on Sundays.

Id. at 172 (emphasis added). While the above-quoted language refers only to sales of distilled spirits by the drink, the language of O.C.G.A. § 3-7-2 was amended in 1999 to address Sunday sales of other alcoholic beverages at bona fide private clubs in addition to distilled spirits. 1999 Ga. Laws 1225, § 2. As discussed below, the last sentence of the above-quoted language refers only to those clubs where the sale of alcoholic beverages is authorized pursuant to Chapter 7 of Title 3.

In Cheshire Bridge Enterprises, Inc. v. State, the Georgia Court of Appeals held that the general provisions of Chapter 3 of Title 3 apply to private clubs licensed pursuant to Chapter 3 of Title 7. 221 Ga. App. 426, 427 (1996). Thus, even bona fide private clubs that are licensed under Chapter 7 of Title 3 are subject to the other requirements of the Alcoholic Beverage Code. By its terms, O.C.G.A. § 3-7-2 authorizes bona fide private clubs at which sales of alcoholic beverages by the drink are “otherwise authorized pursuant to . . . [C]hapter [7 of Title 3]” to make sales of alcoholic beverages “by the drink at any time on Sundays.” By its terms, the language of O.C.G.A. § 3-7-2 appears to be limited to those bona fide private clubs at which sales of alcoholic beverages have been authorized pursuant to Chapter 7 of Title 3.

Article 5 of Chapter 4 of Title 3 addresses the authorization of sales of distilled spirits by the drink for consumption on the premises generally. O.C.G.A. §§ 3-4-91 and 3-4-92 provide for the holding of elections to determine if such sales shall be authorized in counties and municipalities. Any number of local governments have held elections to authorize sales of distilled spirits for consumption on the premises under the provisions of Article 5 of Chapter 4 of Title 3. Chapter 7 of Title 3 does not indicate that it is the exclusive method by which sales of distilled spirits by the drink for consumption on the premises may be authorized. There is also no provision in the Alcoholic Beverage Code indicating that once sales of distilled spirits for consumption on the premises are authorized under Article 5 of Chapter 4 of Title 3, a bona fide private club cannot be licensed as are other establishments to make sales of distilled spirits for consumption on the premises. Therefore, it appears that there may be circumstances where sales of distilled spirits by the drink for consumption on the premises are conducted in establishments that meet the definition of bona fide private club in O.C.G.A. § 3-7-1(1), but the sales have been authorized under the provisions of Article 5 of Chapter 4 of Title 3 rather than Chapter 7 of Title 3. In such circumstances, the provisions of O.C.G.A. § 3-7-2 would not apply to such establishments. In summary, it is my unofficial opinion that O.C.G.A. § 3-7-2 does not apply to private clubs conducting sales of alcoholic beverages by the drink where the sales are authorized under a provision of law other than Chapter 7 of Title 3.

Prepared by:

W. Wright Banks, Jr.
Assistant Attorney General