
    S90A0790.
    UPTON v. CITY OF ATLANTA.
    (392 SE2d 244)
   Weltner, Justice.

Upton, an employee of a wrecker service, was convicted of violation of Atlanta City Code § 14-9012 (g), which provides:

It shall be unlawful for any wrecker service to operate within the city without employing the services of a check approval agency and the major credit card services; and it shall be unlawful to refuse to accept, in lieu of cash, any check which can be insured by a check approval agency or any major credit card, for the payment of any or all fees and storage of the impounded vehicle.

Decided June 8, 1990.

Rubin & Wildau, Martin H. Rubin, for appellant.

Raines Carter, Solicitor, for appellee.

The evidence shows that Upton’s employer regularly accepts payment for services by the tender of checks that are approved by its check approval agency; and that Upton refused to receive a draft that was drawn on a credit union as payment for towing and storage fees.

1. (a) Upton contends that the requirement that wrecker services accept payments by check violates Art. I, Sec. VIII of the United States Constitution because it effects a change in legal tender; and that the ordinance violates Art. IX, Sec. II, Par. II of the Constitution of Georgia of 1983 because it is ultra vires the home rule powers conferred upon the city by OCGA § 36-35-6 (a) et seq.

(b) Both of these arguments were rejected in Porter v. City of Atlanta, 259 Ga. 526, 527, 529 (2) (384 SE2d 631) (1989).

2. (a) Upton insists that his refusal to receive a draft drawn on a credit union in payment of charges was not an act proscribed by the ordinance. OCGA § 11-3-104 (2) (b) defines the term “check” as “a draft drawn on a bank and payable on demand.” (Emphasis supplied.) OCGA § 7-1-4 (7) provides in part that the term “ ‘bank’ shall not include a credit union.”

(b) Because the drawee of the instrument in question was not a bank, Upton’s refusal to accept it in payment of charges was not a violation of the ordinance. His conviction, therefore, must be set aside.

Judgment reversed.

All the Justices concur.  