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 state
flag, seal, and other symbols, so as to revise provisions for the protection of government
statues, monuments, plaques, banners, and other commemorative symbols; to provide for
construction; to provide for a waiver of sovereign and official immunity in certain cases; to
provide for severability; to provide for related matters; to repeal conflicting laws; and for
other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1.
Chapter 3 of Title 50 of the Official Code of Georgia Annotated, relating to state flag, seal,
and other symbols, is amended by revising subsections (b) and (c) of Code Section 50-3-1,
relating to description of state flag, militia to carry flag, defacing public monuments, and
relocation of monuments, and adding new subsections to read as follows:
"(b)(1) As used in this subsection, the term:
(A) 'Agency' means any state or local government entity, including any department,
agency, bureau, authority, board, educational institution, commission, or
instrumentality or subdivision thereof, and specifically including a local board of
education, the Board of Regents of the University System of Georgia, and any
institution of the University System of Georgia.
(B) 'Monument' means a monument, plaque, statue, marker, flag, banner, structure
name, display, or memorial constructed and located with the intent of being
permanently displayed and perpetually maintained that is:
(i) Dedicated to a historical entity or historically significant military, religious, civil,
civil rights, political, social, or cultural events or series of events; or
(ii) Dedicated to, honors, or recounts the military service of any past or present
military personnel of this state; the United States of America or the several states
thereof; or the Confederate States of America or the several states thereof.
(C) 'Officer' means an officer, official, body, employee, contractor, representative, or
agent of any agency, whether appointed or elected.
(2) It shall be unlawful for any person, firm, corporation, <ins>officer, agency,</ins> or other entity
to mutilate, deface, defile, <ins>damage, destroy, lose,</ins> or abuse contemptuously any publicly
<ins>or privately</ins> owned monument located, erected, constructed, created, or maintained on
real property owned by an agency or the State of Georgia. No <ins>person, firm, corporation,
</ins> officer, <del>or</del> agency, <ins>or other entity</ins> shall remove or conceal from display any such
monument for the purpose of preventing the visible display of the same. A <del>violation of
this paragraph shall constitute</del> <ins>person that violates this Code section shall be guilty of</ins> a
misdemeanor.
(3) No publicly <ins>or privately</ins> owned monument erected, constructed, created, or
maintained on the public property of this state or its agencies, departments, authorities,
or instrumentalities or on real property owned by an agency or the State of Georgia shall
be relocated, removed, concealed, obscured, or altered in any fashion by any officer or
agency; provided, however, that appropriate measures for the preservation, <del>protection,
and interpretation</del> <ins>and protection in place</ins> of such monument or memorial shall not be
prohibited.
(4) Any person, <ins>firm, corporation, officer, agency,</ins> or <ins>other</ins> entity that <del>damages, destroys,
or loses a monument or that takes or removes a monument without replacing it</del> <ins>violates
this Code section</ins> shall be liable for treble the amount of the full cost of repair or
replacement of such monument and may be subject to exemplary damages <del>unless such
person or entity was authorized to take such action by the public entity owning such
monument.</del> In addition to treble the cost of repair or replacement and possible exemplary
damages, the person, <ins>firm, corporation, officer, agency,</ins> or <ins>other</ins> entity shall also be liable
for the attorney's fees and court costs expended by the <del>public entity owner of the
monument or person, group, or legal entity</del> <ins>claimant under this Code section</ins> in any action
or proceeding required to establish liability and collect amounts owed. Should a <del>public
entity owner of the monument or person, group, or other legal entity prevail in any action
</del> <ins>claimant</ins> under this Code section <ins>prevail in any action,</ins> such prevailing <del>party</del> <ins>claimant
</ins> shall <ins>use the moneys collected from the party mutilating, defacing, defiling, damaging,
destroying, losing, abusing, or relocating such monument to</ins> timely pay for the cost of <del>or
</del> repair or <del>placement</del> <ins>restoration</ins> of the monument <del>upon moneys being collected from the
party damaging, destroying, or losing such monument</del> <ins>to its former condition prior to
being mutilated, defaced, defiled, damaged, destroyed, lost, abused, or relocated.
</ins> (5) <del>A public entity owning a monument or any</del> <ins>Any interested</ins> person, group, or legal
entity, <ins>without regard to ownership of the monument or a specialized and personalized
injury,</ins> shall have <ins>standing and</ins> a right to bring a cause of action for any conduct
prohibited by this Code section <del>for damages as permitted by this Code section.</del> <ins>Such
claimant may bring an action individually or in a representative capacity against the
person, firm, corporation, officer, agency, or other entity that violates this Code section
to seek injunctive relief and to recover attorney's fees, expenses of litigation, and general
and exemplary damages sustained as a result of such unlawful actions.</ins> Such action shall
be brought in the superior court of the county in which the monument was located.
(6) Except as provided in this paragraph, it shall be unlawful for any person, firm,
corporation, <ins>officer, agency,</ins> or other entity acting without authority to mutilate, deface,
defile, abuse contemptuously, relocate, remove, conceal, <ins>damage, destroy, alter,</ins> or
obscure any privately owned monument located on privately owned property. Any
person or entity that suffers injury or damages as a result of a violation of this paragraph
may bring an action individually or in a representative capacity against the person or
persons, <ins>firm, corporation, officer, agency, or other entity</ins> committing such violations to
seek to recover general and exemplary damages sustained as a result of <del>such person's or
persons'</del> unlawful actions <ins>of any such defendant. Any person, firm, corporation, officer,
agency, or other entity that damages, destroys, or loses a monument or that takes or
removes a privately owned monument shall be liable for treble the amount of the full cost
of repair or replacement of such monument and may be subject to exemplary damages.
In addition to treble the cost of repair or replacement and possible exemplary damages,
such person, firm, corporation, officer, agency, or other entity shall also be liable for the
attorney's fees and court costs expended by the claimant under this Code section in any
action or proceeding required to establish liability and collect amounts owed.</ins> This
paragraph shall not apply to <del>an</del> <ins>a private</ins> owner of real property <del>storing</del> <ins>regarding such
owner's</ins> privately owned monuments.
(7) Nothing in this Code section shall prevent an agency from relocating a monument
when relocation is necessary for the construction, expansion, or alteration of edifices,
buildings, roads, streets, highways, or other transportation construction projects. Any
monument relocated for such purposes shall be relocated to a site of similar prominence,
honor, visibility, and access within the same county or municipality in which the
monument was originally located. A monument shall not be relocated to a museum,
cemetery, or mausoleum unless it was originally placed at such location.
<ins>(8) In all cases when there has been an alleged violation of this Code section, the
Attorney General or the district attorney of the circuit in which the monument was
</ins>
<ins>located may represent the interests of the monument owner, the interests of others with
interest in the monument, and the interests of this state as parens patriae in all legal
matters pertaining to the enforcement of this Code section. The Attorney General or the
district attorney may bring actions, and, insofar as an action of this nature may be deemed
an action against the state and its agencies, the state expressly gives its consent thereto.
(9) Conduct prohibited by this Code section shall be enjoined by the appropriate superior
court upon proper application.
(10) No claimant shall be required to show a particularized or personal concrete injury
to make a claim for damages because the General Assembly of the State of Georgia finds
the enforcement of this Code section to be a public right to have all governmental entities
abide by and adhere to state law.
(11) In the event that an agency desires to remove a monument from public display or
relocate such monument, the agency shall give 90 days' public notice in the legal organ
of the county in which such monument is located of such intent and, if the agency desires
to remove the monument from public display, shall solicit in such public notice any third
party that would be interested in receiving such monument for public display. No action
with regard to removing or relocating such monument shall be taken by the agency until
the expiration of the 90 day period, provided that such period shall be tolled during the
pendency of any litigation requesting an injunction, declaratory relief, or declaratory
judgment to prevent such agency from removing such monument from public display or
relocating such monument or requesting other sanctions under this Code section until a
decision on the merits of such litigation is final. At the conclusion of the 90 day period,
the agency shall either safely store and maintain such monument or, if a third party so
requests, transfer the monument to such third party, provided that such third party agrees
to publicly display the monument at either a location owned by such third party or a
location owned by a public agency that such third party has permission to use for such
display. In the event that multiple third parties are interested in receiving such monument
</ins>
<ins>for public display, preference shall be given to the third party which is most closely
identified with the purposes and goals of the organization originally placing the
monument and the agency may create a process to determine which of the third parties
will receive the monument. Additionally, an interested third party that is willing to
publicly display such monument in a location within the jurisdiction where the monument
is presently located shall be the preferred recipient. The costs of moving and placing the
monument in a new location shall be shared equally between the agency and the third
party.
</ins> (c) Any other provision of law notwithstanding, the memorial to the heroes of the
Confederate States of America graven upon the face of Stone Mountain shall never be
altered, removed, concealed, or obscured in any fashion and shall be preserved and
protected for all time as a tribute to the bravery and heroism of the citizens of this state who
suffered and died in their cause.
<ins>(d) Nothing in this Code section shall be construed so as to interfere with the rights of any
private monument owner. For the purposes of protection pursuant to this Code section, any
monument found to be privately owned shall be treated as publicly owned. No transfer of
title of such a monument is conveyed by this Code section.
(e) The Department of Community Affairs shall establish a registry of all monuments in
this state located on public property. Such registry shall contain, at a minimum, a
description of each monument, the location of such monument, and a statement as to
whether the monument itself is privately or publicly owned and the name of the owner.
This shall include monuments that are in storage as well as monuments on public display.
Not later than December 31 of the year following the year in which this subsection
becomes effective, each agency shall send to the Department of Community Affairs a
comprehensive list of all monuments within the jurisdiction of such agency containing the
information set forth in this Code section. Thereafter, any time a monument is relocated
to a place that is different from the location on the monument registry maintained by the
</ins>
<ins>Department of Community Affairs the agency within whose jurisdiction such monument
is located shall immediately notify the Department of Community Affairs of the new
location of the monument.
(f) The General Assembly of the State of Georgia explicitly hereby waives sovereign
immunity for any and all civil actions, causes of action, and claims that may be asserted
against the State of Georgia or its political subdivisions under this Code section and it shall
not be raised as a defense.
(g) The General Assembly of the State of Georgia explicitly hereby waives qualified
immunity for any public officer or individual who violates any provision of this Code
section."
</ins> SECTION 2.
All laws and parts of laws in conflict with this Act are repealed.