Georgia Code, Volume 02, 2013 Supplement

2013·22.9 MB·English

by  State of Georgia

OFFICIAL CODE OF GEORGIA
ANNOTATED
2013 Supplement
Including Acts ofthe 2013 Regular Session of the General Assembly
Prepared by
The Code Revision Commission
The Office ofLegislative Counsel
and
The Editorial Staff ofLexisNexis®
Published Under Authority ofthe State of Georgia
Volume 2
2007 Edition
Constitution ofthe State of Georgia
IncludingAnnotations to the Georgia Reports
and the GeorgiaAppeals Reports
Place in Pocket of Corresponding Volume of
Main Set
LexisNexis®
'
Charlottesville, Virginia
Copyright © 2008—2013
BY
The State of Georgia
All rights reserved.
ISBN 978-0-327-11074-3 (set)
ISBN 978-1-4224-3844-2
5012230
(Pub.41805)
THIS SUPPLEMENT CONTAINS
Statutes:
All laws specifically codified by the General Assembly ofthe State of
Georgia through the 2013 Regular Session ofthe General Assembly
Annotations of Judicial Decisions:
Case annotations reflecting decisions posted to LexisNexis® through
March 29, 2013. These annotations will appear in the following tradi-
tional reporter sources: Georgia Reports; Georgia Appeals Reports;
Southeastern Reporter; Supreme Court Reporter; Federal Reporter;
Federal Supplement; Federal Rules Decisions; Lawyers' Edition;
United States Reports; and Bankruptcy Reporter.
Annotations ofAttorney General Opinions:
Constructions ofthe Official Code ofGeorgia Annotated, prior Codes
ofGeorgia, Georgia Laws, the Constitution ofGeorgia, and the Consti-
tution of the United States by the Attorney General of the State of
Georgia posted to LexisNexis® through March 29, 2013.
OtherAnnotations:
References to:
Emory Bankruptcy Developments Journal.
Emory International Law Review.
Emory Law Journal.
Georgia Journal of International and Comparative Law.
Georgia Law Review.
Georgia State University Law Review.
Mercer Law Review.
Georgia State Bar Journal.
Georgia Journal of Intellectual Property Law.
American Jurisprudence, Second Edition.
American Jurisprudence, Pleading and Practice.
American Jurisprudence, ProofofFacts.
American Jurisprudence, Trials.
Corpus Juris Secundum.
Uniform Laws Annotated.
American Law Reports, First through Sixth Series.
American Law Reports, Federal.
Tables:
In Volume 41, a Table Eleven-A comparing provisions of the 1976
Constitution ofGeorgia to the 1983 Constitution ofGeorgia and a Table
Eleven-B comparing provisions of the 1983 Constitution of Georgia to
the 1976 Constitution of Georgia.
An updated version of Table Fifteen which reflects legislation
through the 2013 Regular Session ofthe General Assembly.
iii
Indices:
A cumulative replacement index to laws codified in the 2013 supple-
ment pamphlets and in the bound volumes ofthe Code.
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IV
CONSTITUTION OF THE
STATE OF GEORGIA
Article '
III. Legislative Branch.
VII. Taxation and Finance.
VIII. Education.
IX. Counties and Municipal Corporations.
XI. Miscellaneous Provisions.
ARTICLE
I.
BILL OF RIGHTS
SECTION
I.
RIGHTS OF PERSONS
Paragraph I. Life, liberty, and property.
—
Law reviews. For article, "Child for Music Use in MediaApplications," see
Welfare and Future Persons," see 43 Ga. 18 J. Intell. Prop. L. 561 (2011).
L. Rev. 367 (2009). For article, "Are There For note, "The Monster in the Closet:
Checks and Balances on Terminating the Declawing the Inequitable Conduct Beast
Lives of Children with Disabilities? in the Attorney-Client Privilege Arena,"
Should There Be?," see 25 Ga. St. U. L. see 25 Ga. St. U. L. Rev. 735 (2009).
Rev. 959 (2009). For article, "Intellectual Forcomment, "I Object: The RLUIPAas
Property Checklist for Marketing the Re- a Model for Protecting the Conscience
cording Artist Online," see 18 J. Intell. Rights ofReligious Objectors to Same-Sex
Prop. L. 541 (2011). For article, "Clearing Relationships," see 59 Emory L.J. 259
the Way: Acquiring Rights andApprovals (2009).
JUDICLU. DECISIONS
Analysis
General Consideration *
Necessity FOR Notice AND Hearing
Statutory Noti—ce of Proscribed Conduct ,' ,
Police Power Property ,
4. Zoning . ' ;
Selection OF Juries
Application • ;,,' ' '
1. In General ' .
2. Attorneys
3. Employment Relationships and Employees -,<?,- ^ ., -. ;
4. Family Issues
5. Right OF Privacy ' ^ ^
Criminal Cases ^ "^
• '
2013 Supp. i
Art. 1, § 1, ^ 1 GEORGIA CONSTITUTION Art. 1, § 1, 11 1
General Consideration temporary protective order had been
— granted under the Georgia Family Vio-
Personal jurisdiction. Because a
lence Act was insufficient. The original
seller sued an Illinois limited liability service providedthe spousewithnonotice
company (LLC) on an open account,
of the allegations, and service upon the
long-armjurisdiction over the LLC under
spouse as the spouse left a hearing in the
the "transacting business" section of casewas improperunderthe ruleinsulat-
cO.oCm.pGo.rAt.ed§ 9w-i1t0h-91d(u1e)wparoscersesa.sonTahbeleLaLnCd inga partyin attendance uponthetrialof
a case from service of process. Loiten v.
initiated the relationship with the seller Loiten, 288 Ga. App. 638, 655 S.E.2d 265
and handled payment, the goods were
(2007).
delivered in Georgia to a Georgia apart-
ment complex controlled by a related Statutory Notice ofProscribed
Georgia entity, and there was a long Conduct
course of dealing between the parties.
HomeDepotSupply, Inc.v. HunterMgmt., Sufficient definiteness of criminal
statute.
LLC, 289 Ga. App. 286, 656 S.E.2d 898
Appellant, a juvenile, was not entitled
(2008).
Civil contempt order in divorce to the dismissal of two counts of street
case. — A civil contempt order in a di- gang activity based on the juvenile's as-
vorce case requiring a husband to pay sertion that O.C.G.A. § 16-15-4(a) failed
to inform ordinary citizens ofwhat asso-
$1,500tothewifeforeachdaythatpassed
ciations with a criminal street gang were
without him paying the wife insurance
prohibited under the statute; the statute
proceeds pursuantto anoral orderdidnot
required that a defendant's association
violatedue process; atrial courtcould sua with a group be active and include the
sponte raise an issue of contempt, and commission ofan enumerated offense un-
although the order to pay the proceeds der O.C.G.A. § 16-15-13(1), and that pro-
wasoral, theorderwasnotineffectiveasa vided a sufficiently definite warning to
matter of law, as the husband was well persons of ordinary intelligence of the
aware that the payment of the proceeds prohibited conduct. In re K.R.S., 284 Ga.
would be at issue and that the trial court 853, 672 S.E.2d 622 (2009).
would decide the matter without a jury. —
Chatfield v. Adkins-Chatfield, 282 Ga. Police Power Property
190, 646 S.E.2d 247 (2007).
County homestead tax exemptions ^ 4. Zoning
—
did not violate due process. County When denial ofbuildingpermit not
homestead exemptions from ad valorem deprivation ofowner's property.
and education taxes did not violate due In a declaratory judgment action
process or equal protection because they brought by a developer against a county
were rationally related to the legitimate seeking to invalidate an ordinance which
government interests of the encourage- required denial of the developer's land
ment ofneighborhood preservation, conti- disturbance permit based on two
nuity, and stability, and the protection of soil-related ordinance violations existing,
reliance interest ofexisting homeowners, thejudgmentinfavorofthedeveloperwas
and the limits placed on the exemptions upheldonappealwithregardtothedevel-
were not arbitrary. Blevins v. Dade oper's claim for damages under 42 U.S.C.
County Bd. ofTaxAssessors, 288 Ga. 113, § 1983, for allegedviolations ofthedevel-
702 S.E.2d 145 (2010). oper's equal protection rights in the coun-
Cited in WMW, Inc. v. Am. Honda Mo- ty's enforcement of the ordinance. The
tor Co., 291 Ga. 683, 733 S.E.2d 269 trial court properly determined that the
(2012). developer was not required to prove a
Necessity for Notice and Hearing valid property right with regard to the
— developer's equal protection challenge;
Service of process insufficient. the trial court properly awarded attorney
Service upon a spouse against whom a fees to the developer under O.C.G.A.
2013 Supp.
Art. 1, § 1, fl 1 BILL OF RIGHTS Art. 1, § 1, H 1
§ 13-6-11 as the jury was authorized to state's use of peremptory jury strikes
award the attorney fees as an element of againsttwoprospectivejurorsduetotheir
thedamagesitawardedonthedeveloper's unemployment, as this raised questions
federal equal protection claim, regardless about their community commitment, a
ofwhether the developer could prevail on valid and accepted concern, and held such
any state law claim for damages; but the strikes to be race-neutral and free ofdis-
trial court erred by failing to address the criminatoryintent; further, a secondjuror
merits of the developer's petition for a was properly stricken on the basis ofthat
declaratoryjudgmentsincetheoverallen- juror's unemployment, and not because
forceability of the ordinance, which was the juror was a homemaker, and the re-
stillthelaw,wasnotrenderedmootbythe cord showed that the state struck a white
withdrawal notice. Fulton County v. Leg- juror on the basis of the juror's periodic
acy Inv. Group, LLC, 296 Ga. App. 822, unemployment. Hodge v. State, 287 Ga.
67A6cSt.uEa.l2dno3t8i8ce(2n00o9t).required. — Land- AppSu.ff75i0c,ie6n5t2rSa.cEe.-2nde6u3t4ra(l20r07e)a.sons ex-
owner's procedural due process rights un- —isted for state's peremptory strikes.
dertheU.S. Constitution andthe Georgia While defendant made out prima facie
Constitution were not violated because, case of racial discrimination regarding
although the landowner did not receive state's use of three peremptory strikes,
because sufficient race-neutral reasons
actual notice of a cellular-tower applica-
existed for said strikes, defendant's rights
tion for the adjacent property, the evi-
dence showed that notice was sent to the werenotviolated. LeMonv. State, 290 Ga.
landowner's record address byway ofcer- App. 527, 660 S.E.2d 11 (2008). —
tifiedmail. Thecountydidnothave aduty Juror'sstatementofimpartiality.
underthezoningordinanceineffectatthe Because defendantwaived an objection to
time to ensure that the landowner re- the trial court's ruling on the scope of
ceived actual notice. Sanders v. Henry defendant's cross-examination of a wit-
County, No. 11-13717, 2012 U.S. App. ness by failing to object, and because a
LEXIS 14560 (11th Cir. July 17, 2012) juror stated that the juror could be fair
(Unpublished). and impartial when hearing the case, the
—CTirtiaylocroduritndaindcneotsuefrfriciniegnrtalnytidenfgianictiet.y ttriioanlicnoudrtend3iddnngotdeafbeunsdeantth'escmouortti'osndifsocrrea-
summaryjudgment in a lessee's declara- new trial. Pinckney v. State, 285 Ga. 458,
tory judgment action seeking an order 678 S.E.2d 480 (2009).
declaring that City of Forest Park, Ga., Application
Ordinance § 9-8-45 was unconstitutional
because the ordinance was sufficiently 1. In General
definite so that a person ofordinary intel- O.C.G.A. § 40-—6-120 was unconstitu-
ligence need not guess at its meaning; tionally vague. In light ofthe conflict
although the lessee contended that the in the language of O.C.G.A.
phrase "without limitation ofthe general- § 40-6-120(a)(2), a person of common in-
ity ofthe foregoing" opened the definition telligence could not determine with rea-
of"public sidewalk" to include any space sonable definiteness that the statute pro-
that the city later wished to assert fell hibits the making of a left turn into the
under the ordinance, the specification of rightlaneofamulti-laneroadway.Accord-
parking spaces and other areas intended ingly, § 40-6-120(a)(2) is too vague to be
for public travel did not permit the inter- enforcedagainstadriverofavehiclemak-
pretation the lessee contended. Braley v. ing a left turn into a multi-lane roadway
City of Forest Park, 286 Ga. 760, 692 that lacks official traffic-control devices
S.E.2d 595 (2010). directing the driver into which lane to
Selection ofJuries turn and is, therefore, unconstitutional
underthe due process clauses ofthe Geor-
Jurors' employment—status held as gia and United States Constitutions.
race-neutral strikes. Appeals court McNair v. State, 285 Ga. 514, 678 S.E.2d
rejected the defendant's challenge to the 69 (2009).
2013 Supp.
Art. 1, § 1, ^ 1 GEORGIA CONSTITUTION Art. 1, § 1,
Patients had no constit—utional seq., was merely a privilege. Porter v.
right to dialysis treatment. Trial Guill, 298 Ga. App. 782, 681 S.E.2d 230
court did not err in granting a clinic's (2009).
motion under O.C.G.A. § 9-ll-12(b)(6) to Foreclosure on automobile.
dismiss for failure to state a claim the Failure to provide a corporation that
patients'actionallegingthattheclosureof wastheoriginalownerofacarwithnotice
the clinic violated the due process clause of a foreclosure proceeding involving the
of the Georgia Constitution, Ga. Const. car was a due process violation that was
p1a9t8i3e,ntAsrth.aId,nSoecc.onIs,tPitaurtai.onIa,lbreicgahutsteotthhee ttiaonn;tatmhouus,ntthtoeafolraecckloosfupreerjsuondaglmejunrtiswdiacs-
ddieapleysnidsedtrfeoartmtehneti;r elviveens iufptohne tphaetiefnrtese vMSoihitedsruibdiasnuh,nid2Me8or6toGras.O.ACCpr.epGd..iAt7.9o1f,A6m§5.0,9-SI1.n2cE-..126v.d.
dialysis treatment the patients volun- 357 (2007), cert, denied. No. S07C1842,
tarily received from the clinic for several 2007 Ga. LEXIS 751 (Ga. 2007).
years, the patients were not forced byany License revocation order upheld
state-imposed restriction to become de- where dr—iver afforded sufficient due
pendent, and the patients acquired no process. Administrative decision dis-
constitutional right to continue to receive qualifying a driver from driving a com-
the treatment. Andrade v. Grady Mem'l mercial motorvehicle forlife based onthe
Hosp. Corp., 308 Ga.App. 171, 707 S.E.2d refusal to submit to state-administered
118 (2011). chemicaltestingand apriorconvictionfor
Redistricting a—ttempts for school driving under the influence was upheld,
board members. While voting rights as the arresting officer informed the
and the right to run for public office are driverthatthe drivercould losethat driv-
core constitutional rights, an attempted er's license to drive upon refusing to sub-
deprivation ofconstitutional or statutory mit to chemical testing, and the require-
rights is not the same as an actual depri- ments of due process did not require the
vation. Furthermore, incurring legal fees arrestingofficerto inform the driverofall
tovindicaterightsdoesnotitselfestablish the consequences ofrefusing to submit to
that those rights were violated. Thus, chemical testing. Moreover, the driver re-
plaintiff, a school board member, pursing quested and received a hearing under
attempted violations ofplaintiff's right to O.C.G.A. § 40-5-67.1(g)(l). Chancellor v.
run and hold a designated seat in a pre- Dozier, 283 Ga. 259, 658 S.E.2d 592
defined district, could not succeed as an (2008).
injunction in another lawsuit and failure Trialjudge'sinappropriateconduct
ofpreclearance interfered with the imple- ofin—junction hearingrequired rever-
mentation ofthe efforts ofdefendants, the sal. Conduct resulting in reversible
local voting registrars; since the attempt error was committed by a trialjudge dur-
to deprive plaintiffofplaintiff's constitu- ing an injunction hearing involving the
tional rights did not succeed, neither can alleged fraudulent refinancing of church
plaintiff's lawsuit succeed. Cook v. Ran- property where the judge was found to
dolph County 573 F.3d 1143 (11th Cir. have attempted to procure evidence and
2009). elicit testimony, conducted ex parte com-
Grant of official immunity to state munications, and not afforded the parties
—employeeprovidingmedicalservices. the opportunity to offer evidence, give
Grant ofofficial immunity from a mal- argument, or otherwise present the par-
practice suit to a state-employed doctor ties' respective cases. Further, the trial
based on the patient's status as a Medic- judge erred by determining that one de-
aid patient did not violate the constitu- fendant committed criminal contempt
tional rights of the patient's parents, as withoutgivingthatdefendantanopportu-
the due process and equal protection nity to respond to or defend against the
clauses ofthe U.S. and Georgia Constitu- trialjudge's determination thatthe defen-
tions protected only rights, and a waiver dant's testimony was untruthful. Cousins
ofsovereign immunity under the Georgia V. Maced. Baptist Church ofAtlanta, 283
Tort Claims Act, O.C.G.A. § 50-21-20 et Ga. 570, 662 S.E.2d 533 (2008).
2013 Supp.
Art. 1, § 1, SI 1 BILL OF RIGHTS Art. 1, § 1, Irt 1
2.Attorneys Action for termination of parental
rights.
Attorney's due process rights vio-
lated in contempt proceeding. Bynotraisingtheissuebelow, amother
Although ajudge informed an attorney in a termination of parental rights case
ofthe conduct found to be criminally con- waivedher arguments thatthe trial court
temptuous, because said judge not only violated equal protection and due process
refused to afford that attorney an oppor- by not determining whether her mental
tunity to be heard, but also became in- health concerns affected her ability to
volved in the controversy, the criminal complete the specific goals in her case
contempt finding entered against the at- plan; moreover, there was uncontradicted
torney had to be reversed. In re Hatfield, evidence that despite her mental health
290 Ga. App. 134, 658 S.E.2d 871 (2008). problems, the motherunderstoodthe case
3. EmploymeEnmtplRoeyleaetisonships and pcloaunl,dhaapvpereccoimaptledeteitdsitr,ebquutirdeimdennotts,doasnod,
andthemothertestifiedthatshewas able
Delay in holding hearing on publi—c both physically and mentally to care for
employee's appeal of termination. the child. In the Interest ofH.M., 287 Ga.
As a former police officer failed to show App. 418, 651 S.E.2d 527 (2007).
prejudicefromatwo-yeardelayinholding In a termination ofparental rights pro-
a hearing on the officer's appeal of the ceeding, as a parenthad numerous oppor-
officer's termination, and the evidence tunities to establish a life independent of
supportedthecivilserviceboard'sdecision that parent's abusive spouse, the parent's
to upholdthe officer's dismissal, the delay due process claimthat the abusive spouse
ofthe appeal did not violate the officer's wasthebiggestobstaclepreventingreuni-
due process rights under Ga. Const. 1983, fication lacked merit. In the Interest of
Art. I, Sec. I, Para. I. Glass v City of D.O.R., 287 Ga. App. 659, 653 S.E.2d 314
Atlanta, 293 Ga. App. 11, 666 S.E.2d 406 (2007).
(2008).
At-will employee not denied due 5. Right ofPrivacy
—
process. Because aterminateduniver- Defendant's right to privacy not vi-
sityregistrarwas anat-willemployee, the olatedwhensexualbatteryvictimun-
—
registrar had no property interest in the der age of consent. Because the
registrar's job and no due process claim. 13-year-oldvictiminasexualbatterycase
Moreover, by appealing directly to an ad- was under the age where the victim could
ministrative lawjudge, the registrar was legallyconsenttosexualconduct, prosecu-
afforded a full and fair hearing, fulfilling tion of the defendant did not violate the
state and federal due process require- defendant'srighttoprivacyforconsensual
ments. Bd. ofRegents ofthe Univ. Sys. of touching within the context oftheir boy-
Ga. V Hogan, 298 Ga. App. 454, 680 friend/girlfriend relationship. Engle v.
S.E.2d 518 (2009). State, 290 Ga. App. 396, 659 S.E.2d 795
4. Family Issues (2008).
Standing to challenge Medicaid re-
Refusal to consider equal protec- imbursementformedicallynecessary
—
tion ar—gument at hearing in depriva- abortion. The trial court erroneously
tion. In a deprivation proceeding dismissed a complaint filed by certain
where the parents were ordered to pay medical providers, alleging violations of
part of the costs for services mandated the Georgia Constitution on privacy and
under their case plan, there was no due equal protection grounds, and holding
process violation in refusing to consider that the medical providers lacked
parents' equal protection argument. Due third-party standing to assert a claim on
process did not guarantee a litigant the behalfoftheir Medicaid-eligible patients,
right to have all of the litigants' argu- as: (1) the medical providers properly as-
ments considered at a particular hearing. sertedaninjuryinfactinsofarastheyhad
In the Interest ofP.N., 291 Ga. App. 512, a direct financial interest in obtaining
662 S.E.2d 287 (2008). state funding to reimburse them for the
2013 Supp.
Art. 1, § 1, H 1 GEORGIACONSTITUTION Art. 1, § 1, ^ 1
cost of abortion services provided to rebuke the prosecutor, because it did give
Medicaid-eligible women, and have al- curative instructions informing the jury
leged that they performed, and will con- thatacellphoneusedinthestate'sclosing
tinue to perform, medically necessary argument was not evidence, the demon-
abortions for which they will not be reim- strationwas not to be considered, andthe
bursed under Georgia's Medicaid pro- demonstration was completely irrelevant
gram; and (2) the relationship between tothecase, thedefendantwasnotentitled
the medical providers and their patients to a mistrial as a result; further, the
made them uniquely qualified to litigate appeals court agreed with the trialjudge
that the improper demonstration did not
the constitutionality of the state's action
prejudice the defendant because enough
interfering with a woman's decision to
otherevidence existedforthejurytocome
terminateapregnancy. FeministWomen's
to its conclusion without rel3dng on the
Health Ctr. v. Burgess, 282 Ga. 433, 651 improper demonstration. Cook v. State,
S.E.2d 36 (2007). — 287 Ga. App. 81, 650 S.E.2d 757 (2007),
Nonparty medical records. In a cert, denied, 2008 Ga. LEXIS 127 (Ga.
suit alleging medical malpractice and re- 2008).
lated claims, the trial court properly held Single, one-wordreferenceto aprevious
that nonparty medical records were sub- trial, which reference occurred as a result
ject to discovery. Although personal medi- ofconfusion as to which pretrial hearing
cal records were protected by Georgia's defense counsel was referring, did not
constitutional right of privacy, the trial make a mistrial essential to the preserva-
court's order afforded the nonparty pa- tion of a defendant's right to a fair trial.
tients with notice and an opportunity to Accordingly, the trial court did not abuse
object to the disclosure and also provided the court's discretion when the court de-
for further review to determine the scope nied the mistrial motion. Smith v. State,
of discovery. Ussery v. Children's 284 Ga. 17, 663 S.E.2d 142 (2008).
Healthcare ofAtlanta, Inc., 289 Ga. App. Eyewitness identification pattern
255, 656 S.E.2d 882 (2008). jury instruction cannot be endorsed.
—
Criminal Cases Inlightofthescientificallydocumented
lack of correlation between a witness's
Registration requirements for certainty in the witness's identification of
homeless sex o—ffenders unconstitu- the perpetrator of a crime and the accu-
tionally vague. Address registration racy ofthat identification and the critical
requirement ofO.C.G.A. § 42-1-12 is un- importance of accurate jury instructions,
constitutional under the due process the pattern instruction authorizingjurors
clause of the United States and Georgia to consider the witness's certainty in his
constitutions onvaguenessgrounds as ap- orher identification as a factorto be used
plied to homeless sex offenders who pos- in deciding the reliability ofthat identifi-
sess no street or route address for their cation cannot be endorsed. Brodes v.
residence. Santos v. State, 284 Ga. 514, State, 279 Ga. 435, 614 S.E.2d 766 (2005)
668 S.E.2d 676 (2008). (Unpublished).
Denial of motion for mistria—l did Right to preservation ofevidence.
not deny defendant fair trial. Be- The trial court's order dismissing an
cause the trial court issued a prompt cu- indictment charging the defendant with
rative instruction in response to an al- rape, incest, aggravated child molesta-
legedimpropervouchingofthevictimbya tion, and child molestation on grounds
police lieutenant and took corrective mea- that the state improperly failed to pre-
sures to ensure that thejury could follow serve lab samples taken from the victim
those corrective measures, the court did wasreversedbecausethedefendantfailed
not deny the defendant a right to a fair to show that the failure was the result of
trial by denying a motion for a mistrial bad faith on the part of the state or the
based upon that testimony. Cortez v. police, and the value ofthe sample to the
State, 286 Ga. App. 170, 648 S.E.2d 488 defendant was only potentially exculpa-
(2007). tory StateV. Brady 287 Ga.App. 626, 653
Whilethe trial courtdidnotnecessarily S.E.2d 72 (2007).
2013 Supp.