You are here

Unofficial Opinion 94-4

Unofficial Opinion 94-4

March 2, 1994
To: 

State Representative
District 148

Re: 

O.C.G.A. § 10-9-14 empowering the Geo. L. Smith II Georgia World Congress Center Authority to regulate activities on the sidewalks and streets immediately adjacent to the World Congress Center's projects during an event period does not violate the City of Atlanta's home rule power.

You have requested my opinion whether O.C.G.A. § 10-9-14, in particular Subsections (d), (e) and (f), relating to the ability of the Geo. L. Smith II Georgia World Congress Center Authority ("GWCC Authority") to regulate, during an event period, the use of sidewalks and public streets immediately adjacent to any GWCC Authority project, as well as to regulate commercial activity and solicitation, unlawfully intrudes upon the City of Atlanta's home rule power.

The Georgia Constitution of 1983 provides for home rule power for municipalities in Article IX, Section II, Paragraphs II and III. Paragraph II states: "The General Assembly may provide by law for the self-government of municipalities and to that end is expressly given the authority to delegate its power so that matters pertaining to municipalities may be dealt with without the necessity of action by the General Assembly."

As authorized, the General Assembly delegated its power by enacting the Municipal Home Rule Act," O.C.G.A. §§ 36-35-1 to -8. The Municipal Home Rule Act states that "[t]he governing authority of each municipal corporation shall have legislative

power to adopt clearly reasonable ordinances, resolutions, or regulations relating to its property, affairs, and local government for which no provision has been made by general law and which are not inconsistent with the Constitution or any charter provision applicable thereto." O.C.G.A. § 36-35-3(a). As streets and sidewalks are the property of the City, the Act empowers the City of Atlanta to adopt ordinances and regulations relating to their use. However, the General Assembly is not prohibited from legislating further. The Municipal Home Rule Act itself provides that the General Assembly has the authority, "by general law, to define this home rule power further or to broaden, limit, or otherwise regulate the exercise thereof." O.C.G.A. § 36-35-3(a) (emphasis added).

Georgia Constitution of 1983, Article IX, Section II, Paragraph III provides additional powers for counties and municipalities:

(a) In addition to and supplementary of all powers possessed by or conferred upon any . . . municipality, . . . any . . . municipality, . . . may exercise the following powers and provide the following services:

(1) Police and fire protection. . . . (4) Street and road construction and maintenance, including curbs, sidewalks, street lights, and devices to control the flow of traffic on streets and roads constructed by counties and municipalities or any combination thereof.

I have not examined in detail whether these specific powers include the power to regulate the use of the sidewalks and streets, but for purposes of this analysis, have assumed these specific powers allow the City of Atlanta to regulate the use of its streets and sidewalks.

As similarly stated in the Municipal Home Rule Act, the Constitution provides that nothing in Paragraph III (a) "shall operate to prohibit the General Assembly from enacting laws relative to the subject matters listed in subparagraph (a) of this Paragraph or to prohibit the General Assembly by general law from regulating, restricting, or limiting the exercise of powers listed therein; but it may not withdraw any such powers." Ga. Const. 1983, Art. IX, Sec. II, Para. III (c) & (d). Thus, for O.C.G.A. § 10-9-14 to be a lawful regulation of the City's home rule power, it must be a general law. General laws are those which "must operate uniformly, throughout the whole State, upon the subject or class of subjects with which it proposes to deal." Lorentz & Rittler v. Alexander, 87 Ga. 444, 445 (1891). "Laws of a general nature shall have uniform operation throughout this state . . . ." Ga. Const. 1983, Art. III, Sec. VI, Para. IV(a); 1986 Op. Att'y Gen. U86-22.

The Geo. L. Smith II Georgia World Congress Center Act ("GWCC Act") requires the GWCC Authority to construct the project in the City of Atlanta. O.C.G.A. § 10-9-3(3). However, the requirement that the location of the World Congress Center be limited to one geographical area is a limitation on the statewide powers of a state authority rather than a "local or special" law enacted to govern a particular municipality. The general purpose of the GWCC Authority is to construct and operate a comprehensive international trade and convention center for the state as a whole. O.C.G.A. § 10-9-4(a). The Board of Governors includes members from the general public, not limited to the City of Atlanta. O.C.G.A. § 10-9-6(a). The power to regulate adjacent streets and sidewalks during an event period pertains to the property and activities of the state which are of uniform interest to all people of the state. See State v. Corson, 50 A. 780, 785 (N.J. 1901) (a law regulating oystering in the Delaware Bay and Maurice River "does not regulate their internal affairs; for it deals exclusively with property rights of the state, in which every citizen has an interest."); see also Norris v. Mayor of Baltimore, 192 A. 531, 538 (Md. App. 1937) (a statute is "general . . . although it is only effective within a limited area [when] it regulates the manner in which citizens of the state residing in that area may exercise rights which affect the citizens of the whole state").

As O.C.G.A. § 10-9-14 is a general law, the next step is determining whether it restricts or regulates the home rule power of the City or whether the law withdraws the constitutional power provided in Ga. Const. 1983, Art IX, Sec. II, Para. III. The GWCC's power to regulate the streets and sidewalks is limited to an "event period" and is restricted to those sidewalks and streets immediately adjacent to the project. It is not an absolute power to regulate nor a complete removal of the city's powers to regulate all sidewalks in the City of Atlanta. I am of the opinion it is merely a regulation of the City's use of its home rule power which is authorized by Ga. Const. 1983, Art. IX, Sec. II, Para. III (c) and O.C.G.A. § 36-35-3(a). See City of Atlanta v. Myers, 240 Ga. 261 (1977) (Court found that the constitutional grant of power to counties and municipalities to provide certain services, and to enact ordinances to effectuate powers given, was not intended to preclude the General Assembly from enacting general laws affecting manner in which powers would be exercised.). For the reasons stated above, it is my opinion that in passing O.C.G.A. § 10-9-14, the General Assembly acted to restrict the powers of the City of Atlanta by passing a general law which empowers the GWCC Authority to regulate streets and sidewalks during an event period, and this statute does not violate the City of Atlanta's home rule power.

Prepared by:

LEIGH ANNE GRIGGERS Staff Attorney