Administrative Law

• Publication year: 2020

Administrative Law

Chelsea M. Lamb

Moses Tincher

Matthew M. White

Administrative Law

by Chelsea M. Lamb^* Moses Tincher^** and Matthew M. White^***

I. Introduction

This Article surveys cases from the Georgia Supreme Court and the Georgia Court of Appeals from June 1, 2019, through May 31, 2020, in which principles of administrative law were a central focus of the case.¹ Exhaustion of remedies will be the first topic discussed, followed by a review of decisions by administrative agencies, followed by cases discusses administrative scope of authority, with statutory construction to follow. The Article will conclude with cases discussing the standard of review of decisions by administrative agencies.

II. Exhaustion of Administrative Remedies

In Amazing Amusements Group, Inc. v. Wilson,² the Georgia Court of Appeals held O.C.G.A. § 50-27-76(a)³ did not permit Amazing Amusements Group, Inc. (AAG) to bypass administrative exhaustion requirements before seeking judicial review of the Georgia Lottery

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Corporation's (GLC) decision.⁴ AAG held a master license issued by the GLC, which provided AAG with a license to lease coin operated amusement machines (COAMs) to licensed retail businesses.⁵ In 2016, the GLC issued a citation to AAG alleging violations of GLC's rules, which AAG contested. Thereafter, a hearing officer conducted a three-day evidentiary hearing with both parties present and represented by counsel. The hearing officer considered the evidence presented and issued a twenty-seven page "Executive Order" listing his findings, analysis, and conclusions. The Executive Order revoked AAG's master license for ten years, revoked any other business licenses, and fined AAG $75,000.⁶ Rather than pursue an appeal of the hearing officer's decision available under GLC Rule 13.2.1,⁷ AAG filed a petition in the Superior Court of Fulton County seeking a writ of certiorari under O.C.G.A. § 5-4-1⁸ and judicial review under O.C.G.A. § 50-27-76(a),⁹ and the GLC filed a motion to dismiss the petition.¹⁰ The superior court granted the GLC's motion to dismiss and denied AAG's motion for reconsideration. AAG then sought discretionary review with the court of appeals, which was granted.¹¹

On appeal, AAG argued that based on the language of O.C.G.A. § 50-27-76(a) any and all actions by the GLC or its Chief Executive Officer are appealable to the superior court at any time, regardless of whether the decision was appealed at the agency level.¹² The GLC's rules state that "[a] party must follow the intra-agency appeal procedure as outlined in this Rule. The failure of a party to follow such appeal procedure shall constitute a waiver of its appeal rights."¹³ On the other hand, O.C.G.A. § 50-27-76(a) provides that an "[a]ppeal by an affected person from all actions of the [GLC] or chief executive officer shall be to the Superior Court of Fulton County. The review shall be conducted by the court and shall be confined to the record."¹⁴ AAG

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contended that "all actions" should be read in the broadest sense, regardless if the action is final, temporary, pending, or otherwise, and thus, AAG did not have to engage in the appeal process required by the GLC's rules.¹⁵ AAG reasoned that because the language in the GLC's rules conflicted with the statutory language of o.C.G.A. § 50-27-76(a), the GLC's rules must yield to the statutory language.¹⁶ The Supreme Court of Georgia, however, disagreed and held that AAG failed to exhaust its administrative remedies as required by the GLC's rules.¹⁷

In reviewing the GLC's rules and the statutory language, the supreme court noted that because "all actions" is not defined by the statute, the court must "presume the statute was enacted by the legislation with full knowledge of existing condition of the law."¹⁸ The legislature authorized the GLC to establish the intra-agency appeal process and did not limit the exclusivity of the administrative remedy.¹⁹ In addition, the supreme court determined that reading O.C.G.A. § 50-27-76 in the manner AAG requested would render meaningless other statutes applicable to the GLC's authority and the process for aggrieved parties to challenge certain GLC actions.²⁰ Thus, the supreme court held the phrase "all actions" must be read in conjunction with "the statutory provisions that authorize parties to challenge GLC actions and the statutory provisions that authorize the GLC to establish an appeal process for those."²¹ Moreover, the supreme court stated that this determination upholds long-standing Georgia law that requires parties aggrieved by a state agency's decision to raise all issues before the agency and exhaust all available administrative remedies.²² "[B]ecause AAG failed to exhaust the required administrative remedies available to it," the supreme court upheld the superior court's dismissal of AAG's petition for review.²³

In Amusement Leasing, Inc. v. Georgia Lottery Corporation,²⁴ the Georgia Court of Appeals held Amusement Leasing, Inc. (Amusement Leasing) could directly appeal the trial court's dismissal of a petition for review of the GLC's decision, but Amusement Leasing failed to exhaust

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administrative remedies.²⁵ Amusement Leasing held a master license issued by the GLC to operate COAMs in Georgia. In 2016, the GLC issued three citations to Amusement Leasing for violations of the GLC's rules and COAM laws, which Amusement Leasing contested. Thereafter, a GLC-appointed hearing officer conducted an evidentiary hearing. The hearing officer issued an executive order finding Amusement Leasing violated the GLC's rules and COAM laws, revoking Amusement Leasing's master license, and fining Amusement leasing $10,000. Amusement Leasing filed a timely request for reconsideration with the hearing officer. The hearing officer issued a "Reconsideration Order," denying the request. Over a year after receiving the Reconsideration Order, Amusement Leasing filed an untimely motion for review with the Chief Executive Officer (CEO) of the GLC. The motion for review was ultimately deemed denied under the GLC rules.²⁶ After this denial, Amusement Leasing filed a petition for judicial review in the Superior Court of Fulton County, arguing in part that the GLC erred in revoking its master license. The superior court dismissed Amusement Leasing's petition for failure to exhaust administrative remedies, and Amusement Leasing filed a notice of appeal from that order to the Georgia Court of Appeals.²⁷

In response, the GLC filed a motion to dismiss the direct appeal, arguing Amusement Leasing failed to follow the discretionary application procedure required by O.C.G.A. § 5-6-35(a)²⁸ to obtain appellate review.²⁹ O.C.G.A. § 5-6-35(a) outlines several categories of trial courts for which an application for discretionary review is required, including "[a]ppeals from decisions of the superior courts reviewing decisions of . . . state and local administrative agencies."³⁰ The court of appeals dismissed the GLC's motion, holding Amusement Leasing was permitted to file a direct appeal from the superior court's final order pursuant to O.C.G.A. § 5-6-34³¹ "because the General Assembly has expressly provided that the GLC is not to be treated as a state agency."³² As such, the GLC's motion to dismiss the appeal was denied.³³

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Nonetheless, the court of appeals upheld the superior court's order and dismissed Amusement Leasing's appeal for failure to exhaust available administrative remedies.³⁴ Under the GLC's rules, an aggrieved party seeking relief from a hearing officer's executive order "must follow a two-step appeal procedure within the GLC, including requesting reconsideration from the hearing officer and then moving for review by the GLC's CEo."³⁵ Failure to follow this procedure within the applicable timelines provided by the GLC will result in a waiver of appeal rights.³⁶ Here, Amusement Leasing filed a timely request for reconsideration but failed to file a motion for review with the GLC's CEO within the ten-day timeframe. Thus, the court of appeals held that by failing to comply with the mandatory deadline provided by the GLC's rule, Amusement Leasing failed to exhaust its available administrative remedies before seeking review in the superior court.³⁷

III. Review of Decisions Made by Administrative Agencies

In Cobb Hospital, Inc. v. Georgia Department of Community Health,³⁸ the Supreme Court of Georgia held the Georgia Department of Community Health (DCH) Commissioner was not required to rule on a constitutional claim in order for the claim to be preserved for appellate review.³⁹ In 2016, Emory University Hospital Smyrna (EUHS) applied with the DCH for a new certificate of need (CoN) to undertake improvements and renovations totaling $33.8 million.⁴⁰ Other hospitals, such as Cobb Hospital, Kennestone Hospital, and Wellstar Kennestone Hospital (collectively, wellstar) objected to the application, "arguing that the application 'seeks to develop a new hospital' rather than reopening and renovating the former Emory-Adventist Hospital."⁴¹ The DCH granted EUHS's application, awarding it a new CoN, and, in accordance with O.C.G.A. § 31-6-44,⁴² Wellstar appealed to the Certificate of Need Appeals Panel.⁴³ A panel officer affirmed the DCH decision on the ground that Wellstar's appeal concerned the scope and validity of EUHS's original CON, and the CON Appeals Panel lacked

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the authority to review the determination of the original CON. Wellstar appealed that decision to the DCH commissioner, arguing in part that the decision violated Wellstar's constitutional right to due process. The DCH commissioner affirmed the panel officer's decision, and Wellstar appealed to the Superior Court of Cobb County, who denied the petition for judicial review. Wellstar then appealed to the Georgia Court of Appeals.⁴⁴

In Division 2 of its opinion, the court of appeals held the constitutional due process claim enumerated by Wellstar was not preserved for appellate review...