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Unofficial Opinion 99-11

Unofficial Opinion 99-11

December 3, 1999
To: 

Representative
House District 25

Re: 

Limitations placed upon municipal home rule powers by O.C.G.A. § 36-35-6 expressly preclude a municipality from providing by either ordinance or charter amendment, for a fine or forfeiture in excess of $1,000.

You have asked my opinion as to whether the City of Arcade may amend its Charter to provide for a fine of $5,000 to be imposed for high and aggravated misdemeanors. The current city charter provides only for a $1,000 fine for such offenses, while a general state statute provides for the higher $5,000 level of fines. It is my opinion, however, that limitations placed upon municipal home rule powers by O.C.G.A. § 36-35-6 expressly preclude a municipality from providing by either ordinance or charter amendment, for a fine or forfeiture in excess of $1,000.

As you correctly point out in your letter, the desire of the governing authorities of the municipality to increase the maximum fine which their municipal court may mete out from its current $1,000 (see 1995 Ga. Laws 4024, 4040 (1995 Charter Section 4.13(c)), to $5,000, calls for consideration of two Code Sections. The first, O.C.G.A. § 36-35-3, is the legislative grant of authority authorized by Ga. Const., Art. IX, Sec. II, Para. II, respecting the adoption of municipal ordinances (subsection (a), and charter amendments (b)). The authority granted is broad but not unlimited, extending to all ordinances relating to the municipalities’ property, affairs and local government for which no provision has been made by general law. O.C.G.A. § 36-35-3.

But it is, of course, the second Code Section, O.C.G.A. § 36-35-6, entitled “Limitations on home rule powers” which as you correctly suggest, controls. The operational language of the Code Section is:

(a) The power granted to municipal corporations in subsections (a) and (b) of Code Section 36-35-3 shall not be construed to extend to the following matters or to any other matter which the General Assembly by general law has preempted . . .

* * * (2) (A) . . . . (B) . . . . (C) Action providing for fines and forfeitures in excess of $1,000.00.

I am unaware of any reason why this express general law limitation of municipal fines and forfeitures to $1,000 would not be binding upon the governing authority of the municipality in question, and thereby bar its adoption of an ordinance or new charter provision to raise the current maximum penalty from $1,000 to $5,000. Therefore, I must conclude that limitations placed upon municipal home rule powers by O.C.G.A. § 36-35-6 expressly preclude a municipality from providing by either ordinance or charter amendment, for a fine or forfeiture in excess of $1,000.

Prepared by:

ALFRED L. EVANS, JR.
Senior Assistant Attorney General