SB301: SB301 State Flag, Seal, and Other Symbols; protection of government statues, monuments, plaques, banners, and other commemorative symbols; revise provisions

26 LC 28 0736S The Senate Committee on State and Local Governmental Operations - General offered the following substitute to SB 301: A BILL TO BE ENTITLED AN ACT To amend Chapter 3 of Title 50 of the Official Code of Georgia Annotated, relating to state1 flag, seal, and other symbols, so as to revise provisions for t he protection of government2 statues, monuments, plaques, banners, and other commemorative s ymbols; to provide for3 construction; to provide for a waiver of sovereign and official immunity in certain cases; to4 provide for severability; to provide for related matters; to re peal conflicting laws; and for5 other purposes.6 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:7 SECTION 1.8 Chapter 3 of Title 50 of the Official Code of Georgia Annotated, relating to state flag, seal,9 and other symbols, is amended by revising subsections (b) and (c) of Code Section 50-3-1,10 relating to description of state flag, militia to carry flag, d efacing public monuments, and11 relocation of monuments, and adding new subsections to read as follows:12 "(b)(1) As used in this subsection, the term:13 (A) 'Agency' means any state or local government entity, inclu ding any department,14 agency, bureau, authority, board, educational institution, comm ission, or15 instrumentality or subdivision thereof, and specifically includ ing a local board of16 - 1 - 26 LC 28 0736S education, the Board of Regents of the University System of Geo rgia, and any17 institution of the University System of Georgia.18 (B) 'Monument' means a monument, plaque, statue, marker, flag, banner, structure19 name, display, or memorial constructed and located with the int ent of being20 permanently displayed and perpetually maintained that is:21 (i) Dedicated to a historical entity or historically significant military, religious, civil,22 civil rights, political, social, or cultural events or series of events; or23 (ii) Dedicated to, honors, or recounts the military service of any past or present24 military personnel of this state; the United States of America or the several states25 thereof; or the Confederate States of America or the several states thereof.26 (C) 'Officer' means an officer, official, body, employee, contractor, representative, or27 agent of any agency, whether appointed or elected.28 (2) It shall be unlawful for any person, firm, corporation, officer, agency, or other entity29 to mutilate, deface, defile, damage, destroy, lose, or abuse contemptuously any publicly30 or privately owned monument located, erected, constructed, created, or main tained on31 real property owned by an agency or the State of Georgia. No person, firm, corporation,32 officer, o r agency, or other entity shall remove or conceal from display any such33 monument for the purpose of preventing the visible display of the same. A violation of34 this paragraph shall constitute person that violates this Code section shall be guilty of a35 misdemeanor.36 (3) No publicly or privately owned monument erected, constructed, created, or37 maintained on the public property of this state or its agencies, departments, authorities,38 or instrumentalities or on real property owned by an agency or the State of Georgia shall39 be relocated, removed, concealed, obscured, or altered in any fashion by any officer or40 agency; provided, however, that appropriate measures for the pr eservation, protection,41 and interpretation and protection in place of such monument or memorial shall not be42 prohibited.43 - 2 - 26 LC 28 0736S (4) Any person, firm, corporation, officer, agency, or other entity that damages, destroys,44 or loses a monument or that takes or removes a monument without replacing it violates45 this Code section shall be liable for treble the amount of the full cost of repa ir or46 replacement of such monument and may be subject to exemplary damages unless such47 person or entity was authorized to take such action by the publ ic entity owning such48 monument. In addition to treble the cost of repair or replacement and possible exemplary49 damages, the person, firm, corporation, officer, agency, or other entity shall also be liable50 for the attorney's fees and court costs expended by the public entity owner of the51 monument or person, group, or legal entity claimant under this Code section in any action52 or proceeding required to establish liability and collect amounts owed. Should a public53 entity owner of the monument or person, group, or other legal entity prevail in any action54 claimant under this Code section prevail in any action , such prevailing party claimant55 shall use the moneys collected from the party mutilating, defacing, defiling, damaging,56 destroying, losing, abusing, or relocating such monument to timely pay for the cost of or57 repair or placement restoration of the monument upon moneys being collected from the58 party damaging, destroying, or losing such monument to its former condition prior to59 being mutilated, defaced, defiled, damaged, destroyed, lost, abused, or relocated.60 (5) A public entity owning a monument or any Any interested person, group, or legal61 entity, without regard to ownership of the monument or a specialized and personalized62 injury, shall have standing and a right to bring a cause of action for any conduct63 prohibited by this Code section for damages as permitted by thi s Code section. Such64 claimant may bring an action individually or in a representativ e capacity against the65 person, firm, corporation, officer, agency, or other entity that violates this Code section66 to seek injunctive relief and to recover attorney's fees, expenses of litigation, and general67 and exemplary damages sustained as a result of such unlawful actions. Such action shall68 be brought in the superior court of the county in which the monument was located.69 - 3 - 26 LC 28 0736S (6) Except as provided in this paragraph, it shall be unlawful for any person, firm,70 corporation, officer, agency, or other entity acting without authority to mutilate, deface,71 defile, abuse contemptuously, relocate, remove, conceal, damage , destroy, alter, o r72 obscure any privately owned monument located on privately owned property. Any73 person or entity that suffers injury or damages as a result of a violation of this paragraph74 may bring an action individually or in a representative capacit y against the person or75 persons, firm, corporation, officer, agency, or other entity committing such violations to76 seek to recover general and exemplary damages sustained as a result of such person's or77 persons' unlawful actions of any such defendant. Any person, firm, corporation, officer,78 agency, or other entity that damages, destroys, or loses a monu ment or that takes or79 removes a privately owned monument shall be liable for treble the amount of the full cost80 of repair or replacement of such monument and may be subject to exemplary damages. 81 In addition to treble the cost of repair or replacement and possible exemplary damages,82 such person, firm, corporation, officer, agency, or other entity shall also be liable for the83 attorney's fees and court costs expended by the claimant under this Code section in any84 action or proceeding required to establish liability and collec t amounts owed . This85 paragraph shall not apply to an a private owner of real property storing regarding such86 owner's privately owned monuments.87 (7) Nothing in this Code section shall prevent an agency from relocating a monument88 when relocation is necessary for the construction, expansion, o r alteration of edifices,89 buildings, roads, streets, highways, or other transportation co nstruction projects. Any90 monument relocated for such purposes shall be relocated to a site of similar prominence,91 honor, visibility, and access within the same county or municip ality in which the92 monument was originally located. A monument shall not be reloc ated to a museum,93 cemetery, or mausoleum unless it was originally placed at such location.94 (8) In all cases when there has been an alleged violation of t his Code section, the95 Attorney General or the district attorney of the circuit in whi ch the monument was96 - 4 - 26 LC 28 0736S located may represent the interests of the monument owner, the interests of others with97 interest in the monument, and the interests of this state as pa rens patriae in all legal98 matters pertaining to the enforcement of this Code section. The Attorney General or the99 district attorney may bring actions, and, insofar as an action of this nature may be deemed100 an action against the state and its agencies, the state expressly gives its consent thereto.101 (9) Conduct prohibited by this Code section shall be enjoined by the appropriate superior102 court upon proper application.103 (10) No claimant shall be required to show a particularized or personal concrete injury104 to make a claim for damages because the General Assembly of the State of Georgia finds105 the enforcement of this Code section to be a public right to have all governmental entities106 abide by and adhere to state law.107 (11) In the event that an agency desires to remove a monument from public display or108 relocate such monument, the agency shall give 90 days' public notice in the legal organ109 of the county in which such monument is located of such intent and, if the agency desires110 to remove the monument from public display, shall solicit in such public notice any third111 party that would be interested in receiving such monument for public display. No action112 with regard to removing or relocating such monument shall be taken by the agency until113 the expiration of the 90 day period, provided that such period shall be tolled during the114 pendency of any litigation requesting an injunction, declarator y relief, or declaratory115 judgment to prevent such agency from removing such monument from public display or116 relocating such monument or requesting other sanctions under this Code section until a117 decision on the merits of such litigation is final. At the conclusion of the 90 day period,118 the agency shall either safely store and maintain such monument or, if a third party so119 requests, transfer the monument to such third party, provided that such third party agrees120 to publicly display the monument at either a location owned by such third party or a121 location owned by a public agency that such third party has permission to use for such122 display. In the event that multiple third parties are interested in receiving such monument123 - 5 - 26 LC 28 0736S for public display, preference shall be given to the third part y which is most closely124 identified with the purposes and goals of the organization orig inally placing the125 monument and the agency may create a process to determine which of the third parties126 will receive the monument. Additionally, an interested third p arty that is willing to127 publicly display such monument in a location within the jurisdiction where the monument128 is presently located shall be the preferred recipient. The costs of moving and placing the129 monument in a new location shall be shared equally between the agency and the third130 party.131 (c) Any other provision of law notwithstanding, the memorial t o the heroes of the132 Confederate States of America graven upon the face of Stone Mou ntain shall never be133 altered, removed, concealed, or obscured in any fashion and sha ll be preserved and134 protected for all time as a tribute to the bravery and heroism of the citizens of this state who135 suffered and died in their cause.136 (d) Nothing in this Code section shall be construed so as to interfere with the rights of any137 private monument owner. For the purposes of protection pursuant to this Code section, any138 monument found to be privately owned shall be treated as publicly owned. No transfer of139 title of such a monument is conveyed by this Code section.140 (e) The Department of Community Affairs shall establish a registry of all monuments in141 this state located on public property. Such registry shall con tain, at a minimum, a142 description of each monument, the location of such monument, an d a statement as to143 whether the monument itself is privately or publicly owned and the name of the owner. 144 This shall include monuments that are in storage as well as monuments on public display. 145 Not later than December 31 of the year following the year in wh ich this subsection146 becomes effective, each agency shall send to the Department of Community Affairs a147 comprehensive list of all monuments within the jurisdiction of such agency containing the148 information set forth in this Code section. Thereafter, any time a monument is relocated149 to a place that is different from the location on the monument registry maintained by the150 - 6 - 26 LC 28 0736S Department of Community Affairs the agency within whose jurisdiction such monument151 is located shall immediately notify the Department of Community A f f a i r s o f t h e n e w152 location of the monument.153 (f) The General Assembly of the State of Georgia explicitly he reby waives sovereign154 immunity for any and all civil actions, causes of action, and c laims that may be asserted155 against the State of Georgia or its political subdivisions under this Code section and it shall156 not be raised as a defense.157 (g) The General Assembly of the State of Georgia explicitly he reby waives qualified158 immunity for any public officer or individual who violates any provision of this Code159 section."160 SECTION 2.161 All laws and parts of laws in conflict with this Act are repealed.162 - 7 -