Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided prior to the 1988 enactment of O.C.G.A. § 51-1-40, concerning liability for acts of intoxicated persons and under former Code 1993 §§ 58-612 and Ga. L. 1937-38, Ex. Sess., p. 103.

Determining whether buyer is minor.

- O.C.G.A. § 3-3-23 does not state that it is the duty of the person furnishing or selling liquor to make a determination as to whether or not the person to whom an alcoholic beverage is sold is a minor. Monteford v. State, 162 Ga. App. 491, 292 S.E.2d 93 (1982).

Person furnishing alcohol to intoxicated minor liable to person injured.

- A person who encourages a noticeably intoxicated person under the legal drinking age to become further intoxicated and who furnishes to such intoxicated person more alcohol, knowing that such person will soon be driving a vehicle, is liable in tort to a person injured by the negligence of such intoxicated driver. Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716 (1985).

O.C.G.A. § 51-1-6 does not establish a cause of action based on the violation of O.C.G.A. § 3-3-23. Lumpkin v. Mellow Mushroom, 256 Ga. App. 83, 567 S.E.2d 728 (2002).

No recovery by consumer causing injuries.

- A consumer of alcohol cannot recover damages from the provider of the alcohol for injuries caused by the consumer to a third person. Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716 (1985).

Knowledge of minor's degree of intoxication.

- Evidence was insufficient to show that any breach of duty by a bowling alley relating to alcohol was the proximate cause of the death of a passenger in a car driven by a minor who had been served beer at the bowling alley, where there was no evidence that any employee had knowledge that the minor was intoxicated or would be driving an automobile. Kalpa v. Perczak, 658 F. Supp. 235 (N.D. Ga. 1987).

"Force and arms" was not an element of the offenses of statutory rape, O.C.G.A. § 16-6-3, child molestation, O.C.G.A. § 16-6-4, or furnishing alcohol to a minor, O.C.G.A. § 3-3-23, and since an indictment was couched in the words of the statutes and correctly informed the defendant of the offenses charged, the indictment's allegation of use of force was mere surplusage and was properly disregarded. Colon v. State, 275 Ga. App. 73, 619 S.E.2d 773 (2005).

Liability for subsequent death of under aged drinker.

- In a negligence action, a drinking establishment breached its duty, under O.C.G.A. § 3-3-23(a)(1), to abstain from serving alcohol to an under aged drinker who later died from injuries sustained from falling from a jeep. Lumpkin v. Mellow Mushroom, 256 Ga. App. 83, 567 S.E.2d 728 (2002).

Offenses of furnishing alcohol to minors and maintaining a disorderly house did not merge, because each of the offenses had elements not required by the other and each prohibited a distinct type of criminal conduct. Tate v. State, 198 Ga. App. 276, 401 S.E.2d 549 (1991).

"Giving" defined.

- O.C.G.A. § 3-3-23 (c)'s requirement to "give" appears to be satisfied if the parents constructively "give" the alcoholic beverage, by authorizing a person under 21 to consume alcohol in their home. Krebsbach v. State, 209 Ga. App. 474, 433 S.E.2d 649 (1993).

Possession by minor as delinquent or unruly offense.

- Possession of alcohol by a minor may be either a delinquent or an unruly offense, and, since it may be a delinquent act, violating a court-ordered probation imposed for such an offense may likewise be a delinquent act. In re C.P., 217 Ga. App. 505, 458 S.E.2d 166 (1995).

County ordinance not preempted.

- The effect of the Effingham County ordinance is to prohibit sales to minors under more specific circumstances than does O.C.G.A. § 3-3-23's general prohibition against furnishing alcoholic beverages to minors. In so doing, the Effingham County ordinance only augments and strengthens § 3-3-23, and does not conflict with that section in any manner. Accordingly, the Effingham County ordinance is not preempted by § 3-3-23, and hence is not invalid pursuant to Ga. Const. 1983, Art. III, Sec. VI, Para. IV(a). Grovenstein v. Effingham County, 262 Ga. 45, 414 S.E.2d 207 (1992).

City ordinance was unconstitutional as conflicting with statute.

- Trial court erred by rejecting entertainers' challenge under the uniformity clause, Ga. Const. 1983, Art. III, Sec.VI, Para. IV(a), to a city's ordinance prohibiting persons aged 18 to 21 from entering adult entertainment establishments where alcohol was served because the ordinance conflicted with O.C.G.A. §§ 3-3-23 and3-3-24(a), allowing persons over 18 to work in such establishments. Willis v. City of Atlanta, 285 Ga. 775, 684 S.E.2d 271 (2009).

Administration of alco-sensor test not improper.

- Defendant's claim that the administration of an alco-sensor test was improper because a positive alco-sensor of a minor established guilt of the crime of minor in possession of alcohol by consumption under O.C.G.A. § 3-3-23 was incorrect; O.C.G.A. § 3-3-23(a) explicitly provided that underage alcohol consumption was not a crime if the consumption was otherwise authorized by law. Brown v. State, 299 Ga. App. 402, 683 S.E.2d 614 (2009).

Evidence sufficient to support conviction of "underage consumption of alcohol."

- See Lee v. State, 201 Ga. App. 827, 412 S.E.2d 563 (1991); Gilbert v. State, 262 Ga. 840, 426 S.E.2d 155 (1993); Lee v. State, 224 Ga. App. 542, 481 S.E.2d 264 (1997); Baggs v. State, 265 Ga. App. 282, 593 S.E.2d 734 (2004).

Defendant's conviction for underage drinking of an alcoholic beverage was upheld on appeal since the police officer smelled alcohol on the defendant's breath in the county wherein the defendant was arrested, which was enough to establish venue, pursuant to O.C.G.A. § 17-2-2(h), and because the defendant never produced evidence that a parent or guardian gave the defendant the beer that the defendant admitted to drinking and that the possession of the beer was in the home and presence of a parent or guardian, the defendant failed to establish the affirmative defense under O.C.G.A. § 3-3-23(a)(2). Burchett v. State, 283 Ga. App. 271, 641 S.E.2d 262 (2007).

No requirement to prove alcohol level.

- Crimes of possession of alcoholic beverage by underage person and furnishing alcohol to minor do not require state to prove certain alcohol level in defendants. State v. Ealum, 283 Ga. App. 799, 643 S.E.2d 262 (2007).

Evidence was sufficient to support defendant's conviction for furnishing alcohol to a minor. The victim testified that defendant gave the victim, a minor, alcohol to drink in defendant's home, and the victim's parent testified that when the victim returned home, the victim's eyes were bloodshot and the parent could smell the alcohol on the victim's breath. Dockery v. State, 309 Ga. App. 584, 711 S.E.2d 100 (2011).

Exclusion in comprehensive business liability insurance policy applying to sale of intoxicating beverages to a minor or to an intoxicated person excluded coverage for claims based on violations of statute on sales of alcohol to minors and dram shop law and was not void as against public policy. Hartford Ins. Co. v. Franklin, 206 Ga. App. 193, 424 S.E.2d 803 (1992).

Charge erroneously dismissed.

- The trial court erroneously dismissed an accusation charging the defendant with possession of alcohol by an underage person in violation of O.C.G.A. § 3-3-23(a)(2) based solely on the defendant's completion of an alcohol education course, without providing notice to the state or the defendant, and without conducting a sentencing hearing, as such impermissibly interfered with the state's right to prosecute and no defect on the face of the accusation existed; moreover, the trial court erred in withdrawing the defendant's no contest plea absent a formal defense motion seeking the plea. State v. Carr, 287 Ga. App. 691, 652 S.E.2d 597 (2007).

Evidence sufficient to support conviction of "underage possession of alcohol".

- See Hadaway v. State, 190 Ga. App. 5, 378 S.E.2d 127 (1989); Dickerson v. State, 193 Ga. App. 605, 388 S.E.2d 736 (1989), overruled on other grounds by Zilke v. State, 2016 Ga. LEXIS 422 (Ga. 2016).

Refusal of instruction on requirement to prove defendant's knowledge.

- When defendant was prosecuted under O.C.G.A. § 3-3-23(a)(1) for serving alcohol to a minor, it was not error for a trial court to refuse to give defendant's proffered instructions on the requirement to prove defendant's knowledge of the age of the person to whom alcohol was served or on mistake of fact because the jury was instructed, inter alia, on the requirement that defendant knowingly served alcohol to a minor, and, pursuant to § 3-3-23(h), that, when a reasonable person could reasonably be in doubt as to whether a person to whom alcohol was served was 21 years old or older, it was a defendant's duty to request identification and that defendant's failure to do so could be considered in determining if defendant knowingly furnished alcohol to a minor. Butler v. State, 298 Ga. App. 129, 679 S.E.2d 361 (2009).

Reversal of conviction for failure to give requested instruction.

- Defendant's conviction for serving alcohol to a minor, under O.C.G.A. § 3-3-23(a)(1), was reversed because: (1) the state relied on circumstantial evidence to show that defendant knowingly served alcohol to a minor; and (2) the trial court erroneously refused defendant's request for an instruction on circumstantial evidence under O.C.G.A. § 24-4-6. Butler v. State, 298 Ga. App. 129, 679 S.E.2d 361 (2009).

This section does not create a civil cause of action. Keaton v. Kroger Co., 143 Ga. App. 23, 237 S.E.2d 443 (1977) (decided under former Code 1993 § 58-612 and Ga. L. 1937-38, Ex. Sess., p. 103).

Cited in Bishop v. Fair Lanes Bowling, Inc., 623 F. Supp. 1195 (N.D. Ga. 1985); Spivey v. Sellers, 185 Ga. App. 241, 363 S.E.2d 856 (1987); Darracott v. State, 191 Ga. App. 675, 382 S.E.2d 664 (1989); Riley v. H & H Operations, Inc., 263 Ga. 652, 436 S.E.2d 659 (1993); In re B.J.G., 234 Ga. App. 285, 506 S.E.2d 449 (1998); Beaman v. City of Peachtree City, 256 Ga. App. 62, 567 S.E.2d 715 (2002); David v. State, 261 Ga. App. 468, 583 S.E.2d 135 (2003); Penny v. McBride, 282 Ga. App. 590, 639 S.E.2d 561 (2006); Beckom v. State, 286 Ga. App. 38, 648 S.E.2d 656 (2007).

Preferential treatment of military personnel not unconstitutional.

- O.C.G.A. § 3-3-23 (purchase of alcoholic beverages) does not violate the equal treatment clause of the Fourteenth Amendment because it treats 18 year old members of the armed forces differently from all other 18 year olds. Kelley v. State, 252 Ga. 208, 312 S.E.2d 328 (1984).

Distinctions do not violate equal protection.

- O.C.G.A. § 3-3-23 is constitutional and does not violate equal protection since the General Assembly made rational distinctions with respect to the possession of alcohol and recognized that young people were more accountable under certain supervised settings or conditions. Hanson v. State, 275 Ga. 470, 569 S.E.2d 513 (2002).

Editor's notes.

- In light of the similarity of the statutory provisions, opinions rendered under former Code 1933, § 58-612 and Ga. L. 1937-38, Ex. Sess., p. 103 are included in the annotations for this Code section.

The sale of alcoholic beverages to minors is prohibited in this state. 1965-66 Op. Att'y Gen. No. 65-75 (rendered under former Code 1993 §§ 58-612 and Ga. L. 1937-38, Ex. Sess., p. 103).

Am. Jur. 2d.

- 45 Am. Jur. 2d, Intoxicating Liquors, §§ 182 et seq., 253 et seq., 314, 335, 343, 351, 394, 502, 503.

C.J.S.

- 48 C.J.S., Intoxicating Liquors, §§ 43, 166, 229, 259, 288, 337, 338, 348.

ALR.

- Criminal responsibility of one authorized generally to sell intoxicating liquors for particular illegal sale thereof by employee or agent, 139 A.L.R. 306.

Entrapment to commit offense against laws regulating sales of liquor, 55 A.L.R.2d 1322.

Liability, under dramshop acts, of one who sells or furnishes liquor otherwise than in operation of regularly established liquor business, 8 A.L.R.3d 1412.

Criminal offense of selling liquor to a minor or permitting him to stay on licensed premises as affected by ignorance or mistake regarding his age, 12 A.L.R.3d 991.

Serving liquor to minor in home as unlawful sale or gift, 14 A.L.R.3d 1186.

What constitutes violation of enactment prohibiting sale of intoxicating liquor to minor, 89 A.L.R.3d 1256.

Liability of state or municipality in tort for damages arising out of sale of intoxicating liquor by state or municipally operated liquor store or establishment, 95 A.L.R.3d 1243.

Common-law right of action for damage sustained by plaintiff in consequence of sale or gift of intoxicating liquor or habit-forming drug to another, 97 A.L.R.3d 528; 62 A.L.R.4th 16.

Intoxicating liquors: employer's liability for furnishing or permitting liquor on social occasion, 51 A.L.R.4th 1048.

Social host's liability for injuries incurred by third parties as a result of intoxicated guest's negligence, 62 A.L.R.4th 16.

Social host's liability for death or injuries incurred by person to whom alcohol was served, 54 A.L.R.5th 313.