(Ga. L. 1964, p. 338, § 14; Ga. L. 1965, p. 283, § 13; Ga. L. 1982, p. 3, § 50; Ga. L. 1994, p. 1270, § 9; Ga. L. 2012, p. 318, § 13/HB 100.)
The 2012 amendment, effective January 1, 2013, in subsection (c), substituted "Subsection (a)" for "Except in cases in which a hearing has been demanded under Code Section 50-13-12, subsection (a)" at the beginning and added "or in the Georgia Tax Tribunal in accordance with Chapter 13A of this title" at the end.
Cross references.- Subpoenas generally, § 24-13-20 et seq.
Conduct of hearings before Public Service Commission by hearing officers, § 46-2-58.
Law reviews.- For article discussing and comparing the principal means by which a Georgia taxpayer may obtain judicial review of his state tax liability with emphasis on income and sales tax, see 27 Mercer L. Rev. 309 (1975). For article surveying developments in Georgia workers' compensation law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 323 (1981). For annual survey of administrative law, see 57 Mercer L. Rev. 1 (2005). For article, "The Chevron Two-Step in Georgia's Administrative Law," see 46 Ga. L. Rev. 871 (2012). For note, "Notice Requirements and the Entrapment Defense Under the Georgia Administrative Procedure Act" in light of Schaffer v. State Bd. of Veterinary Medicine, 143 Ga. App. 68, 237 S.E.2d 510 (1977), see 30 Mercer L. Rev. 347 (1978). For comment on Pope v. Cokinos, 232 Ga. 425, 207 S.E.2d 63 (1974), see 26 Mercer L. Rev. 337 (1974).
JUDICIAL DECISIONS
Procedural irregularities in investigation were cured by subsequent procedures.
- Even if the Georgia Commission on Professional Standards failed to comply with the proper statutory procedures under O.C.G.A. §§ 20-2-984(h) and20-2-984.4(b) in conducting the Commission's investigation of a school superintendent, the superintendent's substantial rights were not prejudiced by the impropriety. O.C.G.A. § 50-13-19(h), which was cured by subsequent compliance with O.C.G.A. §§ 20-2-984.3(a)(2),20-2-984.5(d), and50-13-13(a)(2)(D). Quigg v. Ga. Prof'l Stds. Comm'n, 344 Ga. App. 142, 809 S.E.2d 267 (2017).
Agency's choice of adoptive parents.
- Contesting of adoption agency's choice of adoptive parents by the child's foster parents is not a "contested case" within the meaning of this section, as the choice is entirely discretionary in nature. Drummond v. Fulton County Dep't of Family & Children Servs., 237 Ga. 449, 228 S.E.2d 839 (1976), cert. denied, 432 U.S. 905, 97 S. Ct. 2949, 53 L. Ed. 2d 1077 (1977).
Rescheduling of the hearing on the suspension of a driver's license for refusal to submit to a breath analysis test beyond the 30-day period provided for in former subsection (d) of O.C.G.A. § 40-5-55 involves no "unlawful procedure" but is within the scope of statutory authority. Hardison v. Fayssoux, 168 Ga. App. 398, 309 S.E.2d 397 (1983).
No subpoena authority for discovery in teacher termination action.
- There is no statutory authority for the Professional Practices Commission (sitting for a local school board) to issue subpoenas for discovery purposes in teacher termination cases. Lansford v. Cook, 252 Ga. 414, 314 S.E.2d 103 (1984).
No entitlement to tape recording when transcript provided.
- When the appellant is provided with a transcript of the administrative hearing, the appellant is not entitled to the tape recording from which the transcript was prepared. Nolen v. Department of Human Resources, 151 Ga. App. 455, 260 S.E.2d 353 (1979), cert. denied, 444 U.S. 1092, 100 S. Ct. 1059, 62 L. Ed. 2d 782 (1980).
Close scrutiny when prosecutor acts as legal advisor for hearing board.
- When a prosecutor is also acting as the legal advisor for the hearing board, the court must closely scrutinize the relationship between the two. If it appears that the prosecutor has prevailed upon the board in an unfair manner, the board's decision should not be affirmed. Schaffer v. State Bd. of Veterinary Medicine, 143 Ga. App. 68, 237 S.E.2d 510 (1977), overruled on other grounds, In re Kennedy, 266 Ga. 249, 466 S.E.2d 1 (1996), overruled on other grounds, In re Henley, 271 Ga. 21, 518 S.E.2d 418 (1999).
Judicial immunity for Peace Officer Standards and Training Council.
- Based on the statutory scheme as to Georgia Peace Officer Standards and Training Council's power to certify or discipline a police chief and the council's investigative powers under O.C.G.A. §§ 35-8-7.1 and35-8-7.2, and the chief's remedies under Georgia's Administrative Procedure Act, O.C.G.A. § 50-13-1 et seq., the council's members and investigators had absolute immunity via quasi-judicial immunity, and thus, the chief's civil rights action against the council members and investigators, alleging through 42 U.S.C. §§ 1983 and 1985(3), violations of the chief's First and Fourteenth Amendment substantive due process rights was dismissed. Evans v. Ga. Peace Officer Stds. & Training Council, F. Supp. 2d (N.D. Ga. Mar. 29, 2006).
Letter of concern issued by professional licensing board.
- When the Georgia Board of Dentistry conducted an adjudicatory hearing, made findings of fact justifying discipline, and issued a letter of concern, the fact that the board could have issued a letter of concern without such procedures did not preclude judicial review since the sanction was issued as the result of contested case proceedings. Thebaut v. Georgia Bd. of Dentistry, 235 Ga. App. 194, 509 S.E.2d 125 (1998).
Reversing agency decision on ground not raised before agency.
- In a proceeding wherein a trial court affirmatively granted a peace officer's reinstatement, the court held that the trial court erred by reversing the decision of the council based on grounds that were never urged before the trial court and that were not raised in the petition for judicial review or at the hearing on the petition. Ga. Peace Officer Standards and Training Council v. Hodges, 330 Ga. App. 145, 767 S.E.2d 286 (2014).
Motion to intervene.
- Hearing officer did not err in allowing the healthcare provider's competitors to intervene in the proceeding to determine whether the healthcare provider was required to obtain a certificate of need; since the intervenors were competitors of the certificate of need applicant, the intervenors had standing. N. Atlanta Scan Assocs. v. Dep't of Cmty. Health, 277 Ga. App. 583, 627 S.E.2d 67 (2006).
Rule nisi issued by Public Service Commission provided reasonable notice of the commission's intent to investigate the authorized return on equity of a Tier 2 local exchange company and to adjust the commission's rates prior to the commission's election of alternative regulation. Georgia PSC v. ALLTEL Ga. Communs. Corp., 244 Ga. App. 645, 536 S.E.2d 542 (2000).
Landowners not entitled to a hearing regarding neighbors' planned dock.
- Landowners' claims against the state for declaratory judgment, mandamus, an unconstitutional taking, and due process and equal protection violations, all arising out of the issuance of a license to their neighbors to build a private dock in a coastal marshland area, all failed. The Coastal Marshlands Protection Act did not apply to a private dock, pursuant to O.C.G.A. § 12-5-295(7); therefore, the landowners were not entitled to a hearing under the Act pursuant to O.C.G.A. § 12-5-283(b) and the Administrative Procedure Act, O.C.G.A. § 50-13-1 et seq.). Hitch v. Vasarhelyi, 302 Ga. App. 381, 691 S.E.2d 286 (2010).
Cited in Salerno v. Board of Dental Exmrs., 119 Ga. App. 743, 168 S.E.2d 875 (1969); Pope v. Cokinos, 231 Ga. 79, 200 S.E.2d 275 (1973); Wall v. American Optometric Ass'n, 379 F. Supp. 175 (N.D. Ga. 1974); Georgia Real Estate Comm'n v. Horne, 141 Ga. App. 226, 233 S.E.2d 16 (1977); Department of Natural Resources v. American Cyanamid Co., 239 Ga. 740, 238 S.E.2d 886 (1977); Atlanta Gas Light Co. v. Georgia Pub. Serv. Comm'n, 152 Ga. App. 366, 262 S.E.2d 628 (1979); National Council on Comp. Ins. v. Caldwell, 154 Ga. App. 528, 268 S.E.2d 793 (1980); Shepard v. Byrd, 581 F. Supp. 1374 (N.D. Ga. 1984); DeKalb County Sch. Dist. v. Ga. State Bd. of Educ., 294 Ga. 349, 751 S.E.2d 827 (2013).
OPINIONS OF THE ATTORNEY GENERALPurpose and intent of Ga. L. 1968, p. 338, § 1 et seq. (see O.C.G.A. Ch. 13, T. 50) is not to create additional substantive requirements in what is cause for revocation of a license by an administrative agency; rather, the purpose and intent of the law is to provide uniform, minimum procedural requirements to be followed by an administrative agency in determining the legal rights, duties, or privileges of a party in a matter in which the particular agency regulates and to which the law applies. 1965-66 Op. Att'y Gen. No. 65-73.
Notice and hearing required before license revocation.- Due process clauses of U.S. Const., amend. 14 and Ga. Const. 1976, Art. I, Sec. I, Para. I (see Ga. Const. 1983, Art. I, Sec. I, Para. I) require notice and a hearing by an administrative agency before any action may be taken to revoke a license; this constitutional requirement must be met even though the act granting the right to revoke the license provides for an appeal to the superior court. 1958-59 Op. Att'y Gen. p. 1.
Law should prescribe notice and hearing.- It is necessary that the law under which administrative hearings are conducted prescribe notice and hearing, and it is not sufficient that a notice and hearing are given, even though not required by law. 1958-59 Op. Att'y Gen. p. 1.
Conduct of hearings in informal manner.- With the passage of Ga. L. 1968, p. 338, § 1 et seq. (see O.C.G.A. Ch. 13, T. 50) the bell was tolled on the practice of conducting hearings in an informal manner except by stipulation of the parties, agreed settlement, the entry of consent orders, or defaults. 1965-66 Op. Att'y Gen. No. 66-36.
Hearings by Office of State Administrative Hearings.- Unless otherwise exempted or excluded, contested cases not presided over by the agency head or board or body which is the ultimate decision maker are to be conducted by the Office of State Administrative Hearings. 1995 Op. Att'y Gen. No. 95-5.
Commissioner of Agriculture not obligated to provide formal administrative appeal.- Commissioner of Agriculture has neither a statutory nor a constitutional obligation to provide a formal means of administratively appealing the decision to bar a party from a state-owned and regulated farmers' market. 1965-66 Op. Att'y Gen. No. 66-217.
Momentary compliance by one with history of noncompliance.- Administrative agency may proceed to revoke license of licensee in conformity with Ga. L. 1968, p. 338, § 1 et seq. (see O.C.G.A. Ch. 13, T. 50) and the fact that the licensee shows at the agency's proceedings that the licensee is momentarily complying with all lawful requirements for the retention of the license would be immaterial; the real question to be resolved by the agency's proceedings would be whether the licensee had been in noncompliance with all lawful requirements for the retention of the license at the time that the licensee is alleged to have been in noncompliance with such requirements. 1965-66 Op. Att'y Gen. No. 65-73.
RESEARCH REFERENCES
Am. Jur. 2d.
- 2 Am. Jur. 2d, Administrative Law, §§ 298 et seq., 363, 368.
C.J.S.- 73 C.J.S., Public Administrative Law and Procedure, §§ 37, 95, 106 et seq., 157 et seq. 73A C.J.S., Public Administrative Law and Procedure, § 223 et seq.
U.L.A.- Model State Administrative Procedure Act (U.L.A.) § 4-201 et seq.
ALR.- Administrative decision or finding based on evidence secured outside of hearing, and without presence of interested party or counsel, 18 A.L.R.2d 552.
Administrative decision by officer not present when evidence was taken, 18 A.L.R.2d 606.
Power of administrative agency, in investigation of nonjudicial nature, to issue subpoenas against persons not subject to agency's regulatory jurisdiction, 27 A.L.R.2d 1208.
Waiver of, or estoppel to assert, failure to give required notice of claim of injury to municipality, county, or other governmental agency or body, 65 A.L.R.2d 1278.
Revocation of teacher's certificate for moral unfitness, 97 A.L.R.2d 827.
Effectiveness of stipulation of parties or attorneys, notwithstanding its violating form requirements, 7 A.L.R.3d 1394.
Failure to give notice of application for default judgment where notice is required only by custom, 28 A.L.R.3d 1383.
Right to assistance by counsel in administrative proceedings, 33 A.L.R.3d 229.
Sufficiency of notice or hearing required prior to termination of welfare benefits, 47 A.L.R.3d 277.
Necessity of notice and hearing before revocation or suspension of motor vehicle driver's license, 60 A.L.R.3d 361.
Sufficiency of notice and hearing before revocation or suspension of motor vehicle driver's license, 60 A.L.R.3d 427.