177 S.E.2d 710
25960.Supreme Court of Georgia.ARGUED SEPTEMBER 14, 1970.
DECIDED OCTOBER 8, 1970. REHEARING DENIED OCTOBER 22, 1970.
The denial of the Cobb County Health Department’s prayer for injunction against the operation of a motel without a permit, was error.
ARGUED SEPTEMBER 14, 1970 — DECIDED OCTOBER 8, 1970 — REHEARING DENIED OCTOBER 22, 1970.
Injunction. Cobb Superior Court. Before Judge Ravan.
The Cobb County Health Department filed a complaint in Cobb Superior Court, pursuant to the provisions of Code Ann. § 88-302 (Ga. L. 1964, pp. 499, 519), to enjoin the appellee’s operation on his premises of a restaurant, which was alleged to be in violation of certain county health laws and regulations relating to sanitation, and a motel, for which no permit had been obtained. The defendant filed an answer to the complaint and, after a hearing, the trial judge granted an injunction as to the operation of the restaurant (for which, he found, a health permit had previously been issued, but was subsequently revoked following an administrative hearing), but denied one as to the operation of the motel (for which, he found, an application had been filed, but no administrative hearing held thereon). The county health department appealed from that
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portion of the judgment which denied the injunction of the operation of the motel.
Edwards, Bentley, Awtrey Parker, for appellant.
Berl Tate, for appellee.
FELTON, Justice.
Code Ann. § 88-1101 (Ga. L. 1964, pp. 499, 561) defines “tourist court” as including “motels … and any food, beverage, … or other facilities or establishments operated in conjunction therewith,” and § 88-1008 makes the operation of a tourist court (e.g., a motel and a restaurant operated in conjunction therewith) without a (single) valid permit, as required by § 88-1102 (Ga. L. 1964, pp. 499, 562), a misdemeanor, which may be enjoined under the provisions of § 88-302. In the absence of any statutory provisions for the operation of the motel (whether it was operated alone or conjunctively with the restaurant) while an application for a permit for its operation is pending, such unlawful operation is subject to the injunction sought under the provisions of § 88-302.
Appellee’s remedy for a wrongful withholding of a permit is by means of appeals, as provided by § 88-305 (Ga. L. 1964, pp. 499, 520); hence, this contended defense could not be raised for the first time as a defense to the injunction proceedings in an answer thereto, as was here attempted. Although the answer as amended also attacks the constitutionality of Code Ann. § 88-302, under which the present action was brought, there was no ruling thereon by the trial court nor does appellee raise this point by appeal.
It follows that the trial court properly enjoined the operation of the appellee’s restaurant, but erred in that portion of the judgment appealed from, i.e., the denial of an injunction against the unlawful operation of the motel without a permit.
Judgment reversed. All the Justices concur.