Appellants Nathaniel Glenn and John Dunlap challenged the constitutionality of OCGA § 16-17-1 et seq. “the Act”, after they were charged with violating OCGA § 16-17-2, which prohibits the making of “payday loans,” i.e., loans of $3,000 or less with illegal interest rates.1 See USA Payday Cash Advance Centers v. Oxendine , 262 Ga. App. 632, 633 585 SE2d 924 2003 ” ‘payday loan is a loan of short duration, typically two weeks, at an astronomical annual interest rate’ “ . First time violators of OCGA § 16-17-2 are guilty of a misdemeanor of a high and aggravated nature. Id. at d. Appellants were both convicted of multiple violations of OCGA § 16-17-22 and they appeal, contending that the trial court erred by rejecting their equal protection and vagueness challenges to the Act. For the reasons that follow, we affirm. 1. Appellants contend that OCGA § 16-17-2 denies them equal protection of the law because it grants explicit exemptions to out-of-state banks that make payday loans in Georgia3 and the local agents of such out-of-state banks, when operating under certain defined financial circumstances,4 thereby treating out-of-state banks differently than in-state residents. To prevail on their equal protection challenge, appellants have the burden of showing initially that they are similarly situated to the out-of-state banks accorded the different treatment. See Farley v. State , 272 Ga. 432, 433 531 SE2d 100 2000. Appellants cannot make that showing. We agree with the State that appellants are not similarly situated with the out-of-state banks designated in OCGA § 16-17-2 a 3 because appellants, as in-state lenders, are subject to Georgia statutes regulating or restricting high interest rates on loans, whereas the out-of-state banks are not. See 12 USC § 1831d a bank may, “notwithstanding any State constitution or statute which is hereby preempted for the purposes of this section,” charge interest at rate allowed by state where bank is chartered. This case is thus distinguishable from the case on which appellants rely, Ciak v. State , 278 Ga. 27 1 597 SE2d 392 2004, which involved a statute treating similarly situated drivers differently.
Even if appellants were similarly situated, “an equal protection challenge is assessed under the ‘rational relationship’ test when as here neither a suspect class nor a fundamental right is affected by the challenged statute. Cit.” Love v. State , 271 Ga. 398, 400 1 517 SE2d 53 1999. Under that test, the legislative classification created by OCGA § 16-17-2 a can withstand constitutional assault when the classification is based on rational distinctions and bears a direct and real relation to the legitimate object or purpose of the legislation. See Roberts v. Burgess , 279 Ga. 486 1 614 SE2d 25 2005. In light of the protected status of out-of-state banks under Federal law, we conclude that the Legislature had a rational basis for creating a class based on those in-state payday lenders who are subject to State regulation and we hold that the classification bears an obvious and direct relation to the legitimate purposes of the legislation as set forth in OCGA § 16-17-1 c, d deterring illegal, unconscionable payday lending in Georgia because of its adverse effect on the citizens of this State.
