Stay of Cease and Desist Order; Hearing

  1. Law
  2. Georgia Code
  3. Commerce and Trade
  4. Selling and Other Trade Practices
  5. Deceptive or Unfair Practices
  6. Fair Business Practices Act
  7. Stay of Cease and Desist Order; Hearing

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  1. Any person receiving a cease and desist order from the Attorney General, and who demonstrates in any superior court of competent jurisdiction, after petition to the court and notice to the Attorney General, that such order will unlawfully cause him or her irreparable harm, shall receive a temporary stay of the order pending the court's review of that order. Such temporary stay shall not exceed 30 days, during which time the court will review the order to determine if an interlocutory stay will be issued pending a final judicial determination of the issues.
  2. Where the Attorney General has issued any order prohibiting any unfair or deceptive act or practice, he or she shall promptly send by certified or registered mail or statutory overnight delivery or by personal service to the person or persons so prohibited a notice of opportunity for hearing. Hearings shall be conducted pursuant to this Code section by the Attorney General or his or her designated representative. Such notice shall state:
    1. The order which has issued and which is proposed to be issued;
    2. The ground for issuing such order and proposed order;
    3. That the person to whom such notice is sent will be afforded a hearing upon request if such request is made within ten days after receipt of the notice; and
    4. That the person to whom such notice is sent may obtain a temporary stay of the order upon a showing of irreparable harm in any superior court of competent jurisdiction.
  3. Whenever a person requests a hearing in accordance with this Code section, there shall promptly be set a date, time, and place for such hearing and the person requesting such hearing shall be notified thereof. The date set for such hearings shall be within 15 days, but not earlier than five days after the request for hearing has been made, unless otherwise agreed to by the Attorney General and the person requesting the hearing.
  4. In the case of any hearing conducted under this Code section, the Attorney General or his or her designated representative may conduct the hearing.
  5. The Attorney General shall have authority to do the following:
    1. Administer oaths and affirmations;
    2. Sign and issue subpoenas;
    3. Rule upon offers of proof;
    4. Regulate the course of the hearing, set the time and place for continued hearings, and fix the time for filing briefs;
    5. Dispose of motions to dismiss for lack of agency jurisdiction over the subject matter or parties or for any other ground;
    6. Dispose of motions to amend or to intervene;
    7. Provide for the taking of testimony by deposition or interrogatory; and
    8. Reprimand or exclude from the hearing any person for any indecorous or improper conduct committed in the presence of the agency.
  6. Subpoenas shall be issued without discrimination between public and private parties. When a subpoena is disobeyed, any party may apply to the superior court of the county where the hearing is being heard for an order requiring obedience. Failure to comply with such order shall be cause for punishment as for contempt of court. The costs of securing the attendance of witnesses, including fees and mileage, shall be computed and assessed in the same manner as prescribed by law in civil cases in the superior court.
  7. A record shall be kept in each contested case and shall include:
    1. All pleadings, motions, and intermediate rulings;
    2. A summary of the oral testimony plus all other evidence received or considered except that oral proceedings or any part thereof shall be transcribed or recorded upon request of any party. Upon written request therefor, a transcript of the oral proceedings or any part thereof shall be furnished to any party of the proceedings. The Attorney General shall set a uniform fee for such service;
    3. A statement of matters officially noticed;
    4. Questions and offers of proof and rulings thereon;
    5. Proposed findings and exceptions;
    6. Any decision, including any initial, recommended, or tentative decision, opinion, or report by the officer presiding at the hearing; and
    7. All staff memoranda or data submitted to the hearing officer or members of the agency in connection with their consideration of the case.
  8. Findings of fact shall be based exclusively on the evidence and on matters officially noticed.
  9. If the Attorney General does not receive a request for a hearing within the prescribed time where he or she has issued an order prohibiting any unfair or deceptive act or practices, he or she may permit an order previously entered to remain in effect or he or she may enter a proposed order. If a hearing is requested and conducted as provided in this Code section, the Attorney General shall issue a written order which shall:
    1. Set forth his or her findings with respect to the matters involved; and
    2. Enter an order in accordance with his or her findings.
  10. The Attorney General may promulgate such procedural rules and regulations as may be necessary for the effective administration of the authority granted to the Attorney General under this Code section.

(Code 1981, §10-1-398, enacted by Ga. L. 1988, p. 1659, § 2; Ga. L. 2000, p. 1589, § 4; Ga. L. 2015, p. 1088, § 2/SB 148; Ga. L. 2017, p. 774, § 10/HB 323.)

The 2015 amendment, effective July 1, 2015, substituted "Attorney General" for "administrator" throughout this Code section; inserted "or his or her designated representative" near the end of the introductory language of subsection (b); substituted the present provisions of subsection (d) for the former provisions, which read: "In the case of any hearing conducted under this Code section, the administrator may conduct the hearing or he may appoint a referee to conduct the hearing who shall have the same powers and authority in conducting the hearing as are in this Code section granted to the administrator. The referee shall have been admitted to the practice of law in this state and possess such additional qualifications as the administrator may require."; in subsection (e), substituted "Attorney General" for "administrator or referee authorized to hold a hearing" near the beginning of the introductory paragraph, and deleted "or the referee" following "the agency" at the end of paragraph (e)(8); and inserted "or her" in paragraphs (i)(1) and (i)(2).

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "him or her" for "him" in the middle of the first sentence of subsection (a), substituted "he or she" for "he" in the first sentence of the introductory paragraph of subsection (b), and substituted "he or she" for "he" three times in the introductory paragraph of subsection (i).

Editor's notes.

- Ga. L. 1988, p. 1659, § 2, effective July 1, 1988, repealed former Code Section 10-1-398, as enacted by Ga. L. 1975, p. 376, § 9, relating to actions by the administrator for damages, and enacted the current Code section.

Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.


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