Amend. XXI. Repeal of Prohibition

U.S. Const., amend. 18 has been repealed by U.S. Const., amend. 21.

Regulation of alcoholic beverages generally, § 3-1-1 et seq.

For comment on Herbert v. State, 60 Ga. App. 633, 4 S.E.2d 843 (1939), see 2 Ga. B.J. 55 (1940). For note discussing this amendment’s limitation on state’s power to regulate alcoholic beverages, in light of United States v. State Tax Comm’n, 412 U.S. 363, 93 S. Ct. 2183, 37 L. Ed. 2d 1 (1973), see 10 Ga. St. B. J. 336 (1973). For note, “ERA: The Effect of Extending the Time for Ratification on Attempts to Rescind Prior Ratifications,” see 28 Emory L.J. 71 (1979). For article, “Prohibitive Failure: The Demise of the Ban on Sports Betting,” see 35 Ga. St. U.L. Rev. 329 (2019).

U.S. Const., amend. 21 is prospective.

It does not apply retroactively to a case where a prosecution has been completed and a valid judgment entered before its adoption. Hosier v. Aderhold, 71 F.2d 422, 1934 U.S. App. LEXIS 3116 (5th Cir. 1934). The application of U.S. Const., amend. 21 was not retroactive, but prospective. Immediately upon its ratification no further powers could be exercised which were dependent solely upon authority given by U.S. Const., amend. 18 or the National Prohibition Act, but it did not make innocent past acts which were crimes when committed, nor pardon those who had committed them, but merely made acts of such character noncriminal for the future and took away from the courts the power to proceed further in the prosecution of such crimes where final judgment had not been rendered prior to the ratification of U.S. Const., amend. 21. Ellerbee v.Aderhold, 5 F. Supp. 1022, 1934 U.S. Dist. LEXIS 1929 (D. Ga. 1934).

Effect of amendment.

U.S. Const., amend. 21 takes away, as of date of its ratification, December 5, 1933, the power to continue prosecutions begun under the National Prohibition Act before repeal of U.S. Const., amend. 18, or to enforce judgments of conviction which had not become final prior to ratification. Hosier v. Aderhold, 71 F.2d 422, 1934 U.S. App. LEXIS 3116 (5th Cir. 1934). Whatever power was granted by U.S. Const., amend. 18 was recalled by U.S. Const., amend. 21 and, with the recall of the power, necessarily fell acts of Congress adopted thereunder. Green v. Page, 9 F. Supp. 844, 1935 U.S. Dist. LEXIS 1918 (S.D. Ga. 1935).

State control over liquor generally.

— Since the passage of U.S. Const., amend. 21, the control of the liquor traffic has been left to the states. Coon v. Tingle, 277 F. Supp. 304, 1967 U.S. Dist. LEXIS 11511 (N.D. Ga. 1967). A state has broad power under U.S. Const., amend. 21 to specify times, places, and circumstances where liquor may be sold. Levendis v. Cobb County, 242 Ga. 592, 250 S.E.2d 460, 1978 Ga. LEXIS 1291 (1978). Under U.S. Const., amend. 21, a state may absolutely prohibit the importation of alcoholic beverages into the state or it can leave the “wet” or “dry” decision with the individual counties. Allstate Beer, Inc. v. Julius Wile Sons & Co., 479 F. Supp. 605, 1979 U.S. Dist. LEXIS 13341 (N.D. Ga. 1979). U.S. Const., amend. 21 denies to liquor the full protection of the commerce clause, U.S. Const., art. I, sec. VIII, cl. 3, in order to allow states to burden it with regulatory laws. Redwine v. Schenley Indus., Inc., 210 Ga. 769, 83 S.E.2d 16, 1954 Ga. LEXIS 452 (1954). U.S. Const., amend. 21 removes spirituous liquors and alcohol from the protection of the commerce clause to the extent necessary to allow the states to adopt and enforce appropriate laws and regulations dealing with the subject, and thus to burden interstate commerce to this extent. Atkins v. Manning, 206 Ga. 219, 56 S.E.2d 260, 1949 Ga. LEXIS 423 (1949). Even in the absence of any protection under U.S. Const., amend. 21, the sovereign states in the exercise of their reserve police power may, without offending the commerce clause, U.S. Const., art. I, sec. VIII, cl. 3, adopt and enforce necessary laws and regulations to effectuate their own protection against illegal traffic and trade in such liquors. Atkins v. Manning, 206 Ga. 219, 56 S.E.2d 260, 1949 Ga. LEXIS 423 (1949). Under U.S. Const., amend. 21, states and municipalities located therein are vested with broad, sweeping authority to refuse to license the sale of liquor in establishments in which even nonobscene naked dancing is performed. Jackson v. Three Acres Co., 249 Ga. 395, 291 S.E.2d 522, 1982 Ga. LEXIS 1150 (1982). Although a city issued the appellee building permits authorizing renovation of a building that would house a restaurant/lounge in which nude or partially nude dancing would be performed, and the appellee expended approximately $40,000 in renovating the building, but due to subsequently enacted adult-business zoning ordinance, was denied an alcoholic beverage license, the appellee could not compel the issuance of such license under a vested right theory. Jackson v. Three Acres Co., 249 Ga. 395, 291 S.E.2d 522, 1982 Ga. LEXIS 1150 (1982). Imposition of strict liability for injury resulting from sale of liquor has been found to be constitutional on basis that state enjoys a particularly broad police power as a result of U.S. Const., amend. 21, repealing prohibition. Reeves v. Bridges, 248 Ga. 600, 284 S.E.2d 416, 1981 Ga. LEXIS 1132 (1981). Amendment does not confer other

powers.

Although a state may, under U.S. Const., amend. 21, discriminate against imports of intoxicating beverages, the amendment does not confer any other powers. Hornsby v. Allen, 326 F.2d 605, 1964 U.S. App. LEXIS 6831 (5th Cir. 1964). States do not escape the operation of U.S. Const., amend. 14 in dealing with intoxicating beverages by reason of U.S. Const., amend. 21. Hornsby v. Allen, 326 F.2d 605, 1964 U.S. App. LEXIS 6831 (5th Cir. 1964). U.S. Const., amend. 21 confers upon the states broad regulatory power over the liquor traffic within their territories. However, even in the regulation of the sales of liquor, arbitrary or unreasonable licensing procedures are in violation of the due process and equal protection clauses of U.S. Const., amend. 14. Parks v. Allen, 409 F.2d 210, 1969 U.S. App. LEXIS 13063 (5th Cir. 1969), later appeal, 426 F.2d 610 (5th Cir. 1970). Act imposing excise tax on wines and malt beverages is within the state’s authority to determine conditions upon which liquor can come into its territory and what will be done with it after it gets there, and other alleged discriminatory provisions of the act were outside the pale of protection of the due process and equal protection clauses of U.S. Const., amend. 14, and the commerce clause, U.S. Const., art. I, sec. VIII, cl. 3, by reason of U.S. Const., amend. 21. Capitol Distrib. Co. v. Redwine, 206 Ga. 477, 57 S.E.2d 578, 1950 Ga. LEXIS 494 (1950). Regulations pertaining to the sale of alcohol are entitled to special deference when challenged in court. The broad sweep of U.S. Const., amend. 21 has been recognized as conferring something more than the normal state authority over public health, welfare, and morals. Trustees of Mtg. Trust of Am. v. Holland, 554 F.2d 237, 1977 U.S. App. LEXIS 12852 (5th Cir. 1977).

Time, place and manner of sale.

Local governing bodies have broad power under U.S. Const., amend. 21 to regulate the time, place and manner of the sale of liquor. Illusions on Peachtree Street, Inc. v. Young, 257 Ga. 142, 356 S.E.2d 510, 1987 Ga. LEXIS 765 (1987).

Offer of sexually-oriented communication where alcohol served.

Although a state may have a certain amount of its police power restored to it under the twenty-first amendment that would otherwise be limited under the first amendment, the expression involved in an establishment offering sexually-oriented communication where alcohol is served is still within the purview of the first amendment, and is still protected by Georgia’s free expression guarantees. Because Georgia has no constitutional equivalent to the twenty-first amendment, the state’s police power, though possibly not limited under the U.S. Constitution, is limited by Georgia’s Constitution. Harris v. Entertainment Sys., 259 Ga. 701, 386 S.E.2d 140, 1989 Ga. LEXIS 532 (1989).

Am. Jur. 2d.

45 Am. Jur. 2d, Intoxicating Liquors, §§ 38, 53, 247. 54A Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices, § 1068.

C.J.S.

15 C.J.S., Commerce, § 116. 48 C.J.S., Intoxicating Liquors, §§ 41, 51.

ALR.

Webb-Kenyon Act as affected by federal Constitution amendments or legislation relating to intoxicating liquor, 48 A.L.R. 362. Validity and construction of statute or ordinance requiring return deposits on soft drink or similar containers, 73 A.L.R.3d 1105. Validity of ordinances restricting location of “adult entertainment” or sex-oriented business, 10 A.L.R.4th 524; 10 A.L.R.5th 538.