City of Atlanta v. S.W.A.N. Consulting & Security Services, Inc.

CARLEY, Justice.

S.W.A.N. Consulting & Security Services, Inc. (SWAN) is a private detective and security agency, and is properly licensed pursuant to OCGA § 43-38-1 et seq., the “Georgia Private Detective and Security Agencies Act” (Act), and all applicable state regulations. As an independent contractor, SWAN provides security services at an adult entertainment establishment located in the City of Atlanta (City). In 1999, the City Council amended § 10-206 (a) of the municipal code to provide:

No person shall perform job duties/functions of any type either directly as an employee or agent, or indirectly, as an independent contractor or other person, at an adult entertainment establishment . . . which is licensed for the sale of alcoholic beverages for consumption on the premises . . . until such person has been fingerprinted by the department of police and has been issued a permit by the department of police indicating such person is eligible to perform job duties/functions at the particular establishment at issue. This shall include all employees, independent contractors, agents, managers and performers and entertainers and any other persons who desire to perform and/or perform job duties/functions at an adult entertainment establishment licensed for the sale of alcoholic beverages for consumption on the premises. ...

SWAN brought suit for injunctive and declaratory relief, asserting for a number of reasons that the amended ordinance was unconstitutional as applied to it. After conducting a hearing, the trial court held that, as applied to SWAN, the municipal enactment was an unconstitutional special law impliedly preempted by the comprehensive general Act. See generally Jenkins v. Jones, 209 Ga. 758, 763 (2) (75 SE2d 815) (1953). The City appeals from the trial court’s order.

1. The City urges that SWAN lacks standing to challenge the constitutionality of the ordinance. It is undisputed, however, that enforcement of the local enactment against SWAN will impact its right to engage freely in those business activities currently authorized by the license issued to it under the Act. Therefore, SWAN has standing to assert that the ordinance is unconstitutional as applied to it. See Harris v. Entertainment Systems, 259 Ga. 701, 704 (2) (386 SE2d 140) (1989); Craig v. City of Lilburn, 226 Ga. 679 (177 SE2d 75) (1970).

2. “[N]o . . . special law shall be enacted in any case for which provision has been made by an existing general law. . . .” Art. Ill, Sec. VI, Par. IV (a) of the Ga. Const, of 1983. The City contends that, unlike the Act, its amended ordinance regulates only the sale of alcohol, not the private security industry. By its terms, however, § 10-206 (a) applies to “job duties/functions of any type ... at an adult entertainment establishment . . . which is licensed for the sale of alcoholic beverages for consumption on the premises. . . .” The manifest intent of this otherwise unrestricted provision is the broad regulation of employment at certain adult establishments, and not the limited regulation of alcoholic beverages. Compare Art. Ill, Sec. VI, Par. VII of the Ga. Const, of 1983. To the extent that SWAN seeks to perform security services at a designated establishment, it would be required to meet the conditions specified in the ordinance, including acquisition of a City-issued permit of eligibility to provide those services. However, this form of regulation by the City would be in addition to and duplicative of the regulatory provisions of the Act. OCGA § 43-38-6 sets forth in great detail the qualifications for those desiring to engage in the private security business in this state, and requires that a permit to provide those services be obtained from the Georgia Board of Private Detective and Security Agencies (Board). In addition, OCGA § 43-38-7 establishes the qualifications for employees of an agency like SWAN, and requires that they register with the Board.

“Generally preemption is based on legislative intent.” Franklin County v. Fieldale Farms Corp., 270 Ga. 272, 273 (1) (507 SE2d 460) (1998). Such intent “can be fairly implied from the sweeping language and broad scope” of a general act regulating an industry on a statewide basis. Cotton States Mut. Ins. Co. v. DeKalb County, 251 Ga. 309, 312 (2) (304 SE2d 386) (1983). Preemption of a local ordinance may be inferred generally from the comprehensive nature of a state statute and its implementing regulations. Franklin County v. Fieldale Farms, supra at 276 (4). The scope of the Act extends to “[a]ny individual, firm, association, company, partnership, limited liability company, or corporation desiring to engage in the private detective or private security business in this state. . . .” (Emphasis supplied.) OCGA § 43-38-6 (a). It does not exempt from its regulatory scheme those who engage in that business in adult entertainment establishments which serve alcohol and are located in Georgia municipalities. Compare OCGA § 3-3-2 (a); Grovenstein v. Effingham County, 262 Ga. 45, 47 (1) (414 SE2d 207) (1992). Insofar as preemption is concerned, the Act provides that it

shall not prevent the local authorities of any municipality or county, by ordinance and within the exercise of the police power of such municipality or county, from imposing local regulations upon any street patrol, special officer, or person furnishing street patrol service, including regulations requiring registration with an agency to be designated by such municipality or county.

OCGA § 43-38-14 (c). By expressly authorizing additional local regulation of the private detective and security business in that limited instance, the Act impliedly preempts the City’s regulation of those services in its adult entertainment establishments. See Franklin County v. Fieldale Farms, supra at 277 (4); City of Macon v. Walker, 204 Ga. 810 (2) (51 SE2d 633) (1949).

Because the City sought to establish a duplicate regulatory system which was not authorized by the comprehensive general law applicable to those engaged in the private detective and security business, the trial court was correct in its limited holding that the Act preempts by implication the City’s enforcement of § 10-206 (a) of the municipal code against SWAN. Franklin County v. Fieldale Farms, supra at 278 (4). Whether the ordinance is preempted as to the City’s regulation of other services provided in adult entertainment establishments was not at issue here and, consequently, is unaffected by either the trial court’s or our decision in this matter.

3. The City’s remaining contentions are moot.

Judgment affirmed.

All the Justices concur, except Benham, J, who dissents.