One argument is that because the Act throughout either exempts, or otherwise has no application to, out-of-state online payday advance Hicksville banks, this Court should conclude that the Georgia legislature also intended to exempt out-of-state banks from liability as an aider-and-abettor of the payday stores’ violations of the Act
Any person who violates subsection (a) or (b) of this Code section shall be guilty of a misdemeanor of a high and aggravated nature and upon conviction thereof shall be punished by imprisonment for not more than one year or by a fine not to exceed $5, or both. Any person who aids or abets such a violation, including any arbiter or arbitration company, shall likewise be guilty of a misdemeanor of a high and aggravated nature and shall be punished as set forth in this subsection. If a person has been convicted of violations of subsection (a) or (b) of this Code section on three prior occasions, then all subsequent convictions shall be considered felonies punishable by a fine of $10, or five years imprisonment or both.
The parties do not dispute that penalties for any direct violation of the Act do not apply to out-of-state banks. Subsection (d) of § 16-17-2 begins with the language that » [a]ny person who violates subsection (a) or (b) . shall be guilty of a misdemeanor. » Id. § 16-17-2(d). Because out-of-state banks are exempt from liability under subsections (a) and (b), an out-of-state bank is not «any person» who can violate subsection (a) or (b). See id. §§ 16-17-2(a) (3), (b).
Section 27(a) does not preempt state legislation imposing penalties on: (1) payday stores who enter into illegal agency agreements; and (2) out-of-state banks who aid and abet such violations
However, in addition to the penalties for a violation of subsections (a) or (b), the third sentence in subsection (d) goes on to state that » [a]ny person who aids or abets such [a direct] violation» is also guilty of a misdemeanor. Id. § 16-17-2(d).
Although the Act grants an exception for liability to out-of-state banks in subsections (a) and (b), and in the first and last sentences of subsection (d), it does not grant a similar exception in the aid-and-abet sentence in subsection (d). 26 However, when a legislative body «`includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that [the legislative body] acts intentionally and purposely in the disparate inclusion or exclusion.'» KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. ___, 125 S. Ct. 542, 548, 160 L. Ed. 2d 440 (2004) (quoting Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 300, 78 L. Ed. 2d 17 (1983)).
We do note that the State of Georgia avows here that it has no intention of prosecuting out-of-state banks as aiders and abettors. We ultimately need not decide this question of Georgia law because even if the aid-and-abet provision in subsection (d), as written, permits the State of Georgia to prosecute out-of-state banks as aiders and abettors, we conclude that subsection (d) is not preempted.
Because Georgia has the power to keep in-state payday stores from acting as agents for out-of-state banks in the limited circumstances where the stores retain the predominate economic interest in the payday loan, we conclude that the State of Georgia is not prohibited from reasonably punishing not only such violators but also those who aid and abet such violations. This is precisely what § 16-17-2(d) does, and, therefore, it is not preempted.