Appeals

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    1. Any person who is a party to a proceeding and who is aggrieved or adversely affected by any final order or action of a county board of health or agency of the department may have review thereof by appeal to the department. Any person who is a party to a proceeding and who is aggrieved or adversely affected by any final order or action of the department may have review thereof by appeal to the superior court in the county in which the action arose or to the Superior Court of Fulton County.
    2. Appeals to the department shall be heard by it after not less than 20 days' notice delivered by certified mail or statutory overnight delivery is given to all parties and their counsel of record, at such times and places as are set forth in such notice; provided, however, if such appeal is not heard and determined within a period of 90 days, the decision shall stand reversed unless all parties consent to an extension of time. Review on appeal to the department shall be confined to the record transmitted from below and the questions raised in the appeal. Orders, rules, regulations, or other decisions of county boards of health or other agencies of the department shall not be set aside on appeal to the department unless contrary to law or rules and regulations of the department, or unsupported by substantial evidence on the record as a whole, or unreasonable.
    3. Appeal to the superior court shall be by petition which shall be filed in the clerk's office of such court within 30 days after the final order or action of the department; the petition shall set forth the names of the parties taking the appeal, the order, rule, regulation, or decision appealed from, and the reason it is claimed to be erroneous. The enforcement of the order or action appealed from shall not be stayed until and unless so ordered and directed by the reviewing court. A reviewing court may order a stay only if the court makes a finding that the public health, safety, and welfare will not be harmed by the issuance of the stay. Upon the filing of such petition, the petitioner shall serve on the commissioner a copy thereof in a manner prescribed by law for the service of process, unless such service of process is waived. The review shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the department, not shown in the record, proof thereon may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs. The court shall not substitute its judgment for that of the department as to the weight of the evidence on questions of fact. The court may affirm the decision of the department or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
      1. In violation of constitutional or statutory provisions;
      2. In excess of the statutory authority of the department;
      3. Made upon unlawful procedure;
      4. Affected by other error of law;
      5. Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
      6. Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
  2. Upon perfection of the appeal as provided in subsection (a) of this Code section, it shall be the duty of the agency whose order, rule, regulation, or decision is under review by the department to cause a transcript of all pleadings, orders, evidence, and other proceedings including a copy of the appeal and motion for reconsideration, if any, filed with it to be transmitted to the department or the superior court in not more than 30 days. For the proceedings not reported, the agency or the department shall cause to be written out a narrative transcript of all evidence and proceedings before it under certificate of its director or examiner or other official conducting such hearings.

(Code 1933, § 88-305, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1986, p. 1280, § 1; Ga. L. 2000, p. 1589, § 3.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1986, in paragraph (a)(3) the paragraphs (1) through (6) added were redesignated as subparagraphs (a)(3)(A) through (a)(3)(F), respectively.

Editor's notes.

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provided that the 2000 amendment was applicable to notices delivered on or after July 1, 2000.

Law reviews.

- For annual survey of administrative law, see 38 Mercer L. Rev. 17 (1986).

JUDICIAL DECISIONS

Appeal from assessment of inspection fees.

- O.C.G.A. § 31-5-3 did not provide a hotel, motel, and restaurant association with an avenue of administrative appeal from a county board of health's assessment of inspection fees since there was no "proceeding" or hearing conducted by the board to which the association could have been a party. Aldridge v. Georgia Hospitality & Travel Ass'n, 251 Ga. 234, 304 S.E.2d 708 (1983).

Cited in Cobb County Health Dep't v. Henson, 226 Ga. 801, 177 S.E.2d 710 (1970).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 39, 89.

C.J.S.

- 39A C.J.S., Health and Environment, § 20 et seq.

ALR.

- Right of public officer or board to appeal from a judicial decision affecting his or its order or decision, 117 A.L.R. 216.


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