In this declaratory judgment action, Cleo Magby, who runs an in-home daycare for children, seeks to invalidate City of Riverdale Code § 68-33-1, which requires every business that operates in the city to pay an annual occupation tax.1 In 2007, 2008, and 2009, the City cited Magby for violating the ordinance, and each year she belatedly paid the occupation tax. When the prosecution of the 2009 violation was pending in the City’s Environmental Court City Court, Magby filed this lawsuit in Clayton County Superior Court to have the ordinance declared unconstitutional and to enjoin enforcement of the ordinance against her. The trial court denied the complaint after a bench trial and entered judgment in the City’s favor. Magby appealed, and we now affirm. 1. The case before us involves only future prosecutions under Code § 68-33-1. In response to the City’s motion to dismiss the complaint, the trial court correctly ruled that Magby could not challenge the prosecution of her prior conduct in a declaratory judgment action. As we have previously explained, “declaratory relief is not the proper remedy for attacking the constitutionality of a municipal ordinance where the alleged criminal activity has already taken place.” Shantha v. Municipal Court of Atlanta , 240 Ga. 280, 282 240 SE2d 32 1977. The way for Magby to challenge her past and pending City Court prosecutions was to file a petition for certiorari in the Clayton County Superior Court. See OCGA § 5-4-3 authorizing superior court review of municipal court judgments. She did so when the City Court convicted her of violating the ordinance for operating a business in the City in 2009 without timely paying the occupation tax and securing the required permit. Magby’s appeal was not successful, ending in the denial of a petition for certiorari by this Court. See Case No. S10C0922 June 28, 2010.
At oral argument, Magby characterized her attack on future application of Code § 68-33-1 as an as-applied challenge rather than a facial challenge. We agree. Magby claims that the ordinance violates her due process and equal protection rights because it unreasonably sanctions her for the lawful act of failing to renew an occupation tax permit, it fails to provide her with sufficient notice that the City could sanction her if she fails to renew her permit, and it places her in a class of persons unreasonably sanctioned for not renewing their permits. In terms of relief, the complaint requests a judicial declaration that Code § 68-33-1 is unconstitutional and injunctive relief barring the City from enforcing it against Magby in the future. While a declaration that Code § 68-33-1 is unconstitutional might affect other prosecutions, Magby’s claim is limited to the impact that the ordinance has on her.
