☢ test - Í
restrictions, or limitations with respect to the handling or disposal of municipal solid waste; (2) On the power of a municipality, county, authority, or special district to declare, prohibit, and abate nuisances;....’ The county ordinance is, by its terms, aimed at abating certain nuisances. Further, it does not set forth regulations that are in conflict with the Act. Consequently, the ordinance falls within the constitutional exception to preemption because it is expressly authorized by statute. See Envtl. Waste Reductions, Inc. v. Legal Envtl. Assistance Foundation, Inc., 216 Ga.App. 699, 702(2) (455 S.E.2d 393) (1995); compare Old South Duck Tours v. Mayor, etc., of Savannah, 272 Ga. 869, 871(1) (535 S.E.2d 751) (2000) (concluding a local ordinance prohibiting certain vehicles on city streets fell within the constitutional exception to the doctrine of preemption since the General Assembly enacted general laws authorizing local governments to exercise their police powers to regulate and control the use of roads).” Castillo-Solis v. State, 292 Ga. 755, 740 S.E.2d 583 (March 25, 2013). Interlocutory appeal in prosecution for driving without license under OCGA § 40-5-20(a). Trial court properly denied defendant’s constitutional challenge to 40-5-20(a). OCGA § 40-5-20(a) isn’t pre-empted by federal law as an attempt to implement Georgia’s own immigration policy. “Georgia law is preempted only ‘(1) where there is direct conflict between state and federal regulation; (2) where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress; or (3) where Congress has occupied the field in a given area so as to oust all state regulation.’ Hernandez v. State, 281 Ga. 559, 561 (639 S.E.2d 473) (2007). Accord Arizona v. United States, 567 U.S. ___, 132 S.Ct. 2492, 2500- 2501, 183 L.Ed.2d 351) (2012). The Supreme Court of the United States has recently reiterated that federal immigration laws do not preempt all state laws relating to illegal immigrants and indeed that ‘courts should assume that “the historic police powers of the States” are not superseded “unless that was the clear and manifest purpose of Congress.”’ Id. at ___ , 132 S.Ct. at 2501 (citation omitted). OCGA § 40-5-20(a) constitutes an exercise of Georgia's ‘authority under its police powers to enact reasonable laws regulating the use and operation of motor vehicles upon the public highways.’ Dennis v. State, 226 Ga. 341, 342 (175 S.E.2d 17) (1970). Thus, to prevail on his preemption claim, Appellant was required to show the ‘clear and manifest purpose of Congress’ to preempt § 40-5-20(a), yet he has cited not a single federal statute or regulation in support of his claim. Accordingly, we reject Appellant's assertion that federal law somehow preempts OCGA § 40-5-20(a).” Gomez-Ramos v. State, 297 Ga.App. 113, 676 S.E.2d 382 (March 11, 2009). Trial court properly forfeited defendant’s property bond despite fact that she had been involuntarily deported from the U.S. and couldn’t return for her court date. Forfeiture was not pre-empted by federal government’s deportation. Legislatively superseded by HB 147, amending OCGA § 17-6-72, effective May 5, 2009. Hernandez v. State, 281 Ga. 559, 639 S.E.2d 473 (January 8, 2007). Identity fraud statute is not pre-empted by federal laws prohibiting illegal immigrants from using falsified identification documents. “Hernandez contends that OCGA § 16- 9-121 is preempted by federal law, namely Section 1324c of the Immigration Reform and Control Act of 1986 (8 USC Section 1324c) which subjects an illegal immigrant using falsified identification documents to a cease and desist order and civil monetary penalties. ‘The preemption doctrine of the Supremacy Clause may apply: (1) where there is direct conflict between state and federal legislation; (2) where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, or (3) where Congress has occupied the field in a given area so as to oust all state regulation.’ (Citations and punctuation omitted.) Aman v. State, 261 Ga. 669, 671(3) (409 S.E.2d 645) (1991). ‘Furthermore, in the area of enforcement of state criminal laws, the presumption is against federal preemption and, thus, favors an active exercise of criminal jurisdiction by the state.’ (Citation and punctuation omitted.) State v. Klinakis, 206 Ga.App. 318, 321(1)(b) (425 S.E.2d 665) (1992). Here, there is neither direct, implied, or field preemption. Nothing in the federal law explicitly overrides state law, and the two laws do not conflict in their operation or enforcement. Therefore, the trial court did not err in finding that OCGA § 16-9-121 is not preempted by federal law.” Briggs v. State, 281 Ga. 329, 638 S.E.2d 292 (November 29, 2006). “OCGA § 16-8-60(b), which criminalizes the possession and distribution of sounds or images in violation of copyright protection,” is neither “(1) unconstitutionally vague or overbroad, or (2) preempted by federal copyright law.” As to preemption : “State law rights that are the equivalent of those protected under the federal copyright law are preempted. 17 USCA § 301. To determine whether a state law is the equivalent of the federal copyright law, the courts often apply what has become known as Nimmer’s [footnote: See Nimmer, The Law of Copyright, § 1.01] ‘extra-element’ test: ‘[A] right which is “equivalent to copyright” is one which is infringed by the mere act of reproduction, performance, distribution or display.... If under state law the act of reproduction, performance, distribution or display, ... will in itself infringe the state created right, then such right is preempted. But if other elements are required, in addition to or instead of, the acts of reproduction, performance, distribution or display, in order to constitute a state created cause of action, then the right does not lie “within the general
Made with FlippingBook Ebook Creator