Georgia Administrative Procedure Act

Administrative State

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The Georgia Administrative Procedure Act is the law governing procedures for state administrative agencies to propose and issue regulations and provides for judicial review of agency adjudications and other final decisions in Georgia. It can be found in Title 50, Chapter 13 of the Georgia Code.^[1]

Article 1: General provisions

Text of Article 1:

§ 50-13-1: Short title, purpose

This chapter shall be known and may be cited as the "Georgia Administrative Procedure Act." It is not intended that this chapter create or diminish any substantive rights or delegated authority, but this chapter is meant to provide a procedure for administrative determination and regulation where expressly authorized by law or otherwise required by the Constitution or a statute of this state.^[2]

§ 50-13-2: Definitions

As used in this chapter, the term:

(1) "Agency" means each state board, bureau, commission, department, activity, or officer authorized by law expressly to make rules and regulations or to determine contested cases, except the General Assembly; the judiciary; the Governor; the State Board of Pardons and Paroles; the State Financing and Investment Commission; the State Properties Commission; the Board of Bar Examiners; the Board of Corrections and its penal institutions; the State Board of Workers' Compensation; all public authorities except as otherwise expressly provided by law; the State Personnel Board; the Department of Administrative Services or commissioner of administrative services; the Technical College System of Georgia; the Nonpublic Postsecondary Education Commission; the Department of Labor when conducting hearings related to unemployment benefits or overpayments of unemployment benefits; the Department of Revenue when conducting hearings relating to alcoholic beverages, tobacco, or bona fide coin operated amusement machines or any violations relating thereto; the Georgia Tobacco Community Development Board; the Georgia Higher Education Savings Plan; the Georgia ABLE Program Corporation; any school, college, hospital, or other such educational, eleemosynary, or charitable institution; or any agency when its action is concerned with the military or naval affairs of this state. The term "agency" shall include the State Board of Education and Department of Education, subject to the following qualifications:

(A) Subject to the limitations of subparagraph (B) of this paragraph, all otherwise valid rules adopted by the State Board of Education and Department of Education prior to January 1, 1990, are ratified and validated and shall be effective until January 1, 1991, whether or not such rules were adopted in compliance with the requirements of this chapter; and

(B) Effective January 1, 1991, any rule of the State Board of Education or Department of Education which has not been proposed, submitted, and adopted in accordance with the requirements of this chapter shall be void and of no effect.

(2) "Contested case" means a proceeding, including, but not restricted to, rate making, price fixing, and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing.

(2.1) "Electronic" means, without limitation, analog, digital, electronic, magnetic, mechanical, optical, chemical, electromagnetic, electromechanical, electrochemical, or other similar means.

(3) "License" means the whole or part of any agency permit, certificate, approval, registration, charter, or similar form of permission required by law, but it does not include a license required solely for revenue purposes. "Licensing" includes the agency process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license.

(3.1) "Mailed" includes electronic means of communication.

(3.2) "Mailing list" includes electronic means of distribution.

(4) "Party" means each person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party.

(5) "Person" means any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency.

(5.1) "Record" means information created, transmitted, received, or stored either in human perceivable form or in a form that is retrievable in human perceivable form.

(6) "Rule" means each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of any agency. The term includes the amendment or repeal of a prior rule but does not include the following:

(A) Statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public;

(B) Declaratory rulings issued pursuant to Code Section 50-13-11;

(C) Intra-agency memoranda;

(D) Statements of policy or interpretations that are made in the decision of a contested case;

(E) Rules concerning the use or creation of public roads or facilities, which rules are communicated to the public by use of signs or symbols;

(F) Rules which relate to the acquiring, sale, development, and management of the property, both real and personal, of the state or of an agency;

(G) Rules which relate to contracts for the purchases and sales of goods and services by the state or of an agency;

(H) Rules which relate to the employment, compensation, tenure, terms, retirement, or regulation of the employees of the state or of an agency;

(I) Rules relating to loans, grants, and benefits by the state or of an agency; or

(J) The approval or prescription for the future of rates or prices.^[3]

§ 50-13-3: Adoption of rules of organization and practice, public inspection and validity of rules, policies, orders, decisions, and opinions

(a) In addition to other rule-making requirements imposed by law, each agency shall:

(1) Adopt as a rule a description of its organization, stating the general course and method of its operations and the methods whereby the public may obtain information or make submissions or requests;

(2) Adopt rules of practice setting forth the nature and requirements of all formal and informal procedures available, including a description of all forms and instructions used by the agency;

(3) Make available for public inspection all rules and all other written statements of policy or interpretations formulated, adopted, or used by the agency in the discharge of its functions; and

(4) Make available for public inspection all final orders, decisions, and opinions except those expressly made confidential or privileged by statute.

(b) No agency rule, order, or decision shall be valid or effective against any person or party nor may it be invoked by the agency for any purpose until it has been published or made available for public inspection as required in this Code section. This provision is not applicable in favor of any person or party who has actual knowledge thereof.^[4]

§ 50-13-4: Procedural requirements for adoption, amendment, or repeal of rules, emergency rules, limitation on action to contest rule, legislative override

(a) Prior to the adoption, amendment, or repeal of any rule, other than interpretive rules or general statements of policy, the agency shall:

(1) Give at least 30 days' notice of its intended action. The notice shall include an exact copy of the proposed rule and a synopsis of the proposed rule. The synopsis shall be distributed with and in the same manner as the proposed rule. The synopsis shall contain a statement of the purpose and the main features of the proposed rule, and, in the case of a proposed amendatory rule, the synopsis also shall indicate the differences between the existing rule and the proposed rule. The notice shall also include the exact date on which the agency shall consider the adoption of the rule and shall include the time and place in order that interested persons may present their views thereon. The notice shall also contain a citation of the authority pursuant to which the rule is proposed for adoption and, if the proposal is an amendment or repeal of an existing rule, the rule shall be clearly identified. The notice shall be mailed to all persons who have requested in writing that they be placed upon a mailing list which shall be maintained by the agency for advance notice of its rule-making proceedings and who have tendered the actual cost of such mailing as from time to time estimated by the agency;

(2) Afford to all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing. In the case of substantive rules, opportunity for oral hearing must be granted if requested by 25 persons who will be directly affected by the proposed rule, by a governmental subdivision, or by an association having not less than 25 members. The agency shall consider fully all written and oral submissions respecting the proposed rule. Upon adoption of a rule, the agency, if requested to do so by an interested person either prior to adoption or within 30 days thereafter, shall issue a concise statement of the principal reasons for and against its adoption and incorporate therein its reason for overruling the consideration urged against its adoption;

(3) In the formulation and adoption of any rule which will have an economic impact on businesses in the state, reduce the economic impact of the rule on small businesses which are independently owned and operated, are not dominant in their field, and employ 100 employees or less by implementing one or more of the following actions when it is legal and feasible in meeting the stated objectives of the statutes which are the basis of the proposed rule:

(A) Establish differing compliance or reporting requirements or timetables for small businesses;

(B) Clarify, consolidate, or simplify the compliance and reporting requirements under the rule for small businesses;

(C) Establish performance rather than design standards for small businesses; or

(D) Exempt small businesses from any or all requirements of the rules; and

(4) In the formulation and adoption of any rule, an agency shall choose an alternative that does not impose excessive regulatory costs on any regulated person or entity which costs could be reduced by a less expensive alternative that fully accomplishes the stated objectives of the statutes which are the basis of the proposed rule.

(b) If any agency finds that an imminent peril to the public health, safety, or welfare, including but not limited to, summary processes such as quarantines, contrabands, seizures, and the like authorized by law without notice, requires adoption of a rule upon fewer than 30 days' notice and states in writing its reasons for that finding, it may proceed without prior notice or hearing or upon any abbreviated notice and hearing that it finds practicable to adopt an emergency rule. Any such rule adopted relative to a public health emergency shall be submitted as promptly as reasonably practicable to the House of Representatives and Senate Committees on Judiciary. The rule may be effective for a period of not longer than 120 days but the adoption of an identical rule under paragraphs (1) and (2) of subsection (a) of this Code section is not precluded; provided, however, that such a rule adopted pursuant to discharge of responsibility under an executive order declaring a state of emergency or disaster exists as a result of a public health emergency, as defined in Code Section 38-3-3, shall be effective for the duration of the emergency or disaster and for a period of not more than 120 days thereafter.

(c) It is the intent of this Code section to establish basic minimum procedural requirements for the adoption, amendment, or repeal of administrative rules. Except for emergency rules which are provided for in subsection (b) of this Code section, the provisions of this Code section are applicable to the exercise of any rule-making authority conferred by any statute, but nothing in this Code section repeals or diminishes additional requirements imposed by law or diminishes or repeals any summary power granted by law to the state or any agency thereof.

(d) No rule adopted after April 3, 1978, shall be valid unless adopted in exact compliance with subsections (a) and (e) of this Code section and in substantial compliance with the remainder of this Code section. A proceeding to contest any rule on the ground of noncompliance with the procedural requirements of this Code section must be commenced within two years from the effective date of the rule.

(e) The agency shall transmit the notice provided for in paragraph (1) of subsection (a) of this Code section to the legislative counsel. The notice shall be transmitted at least 30 days prior to the date of the agency's intended action. Within three days after receipt of the notice, if possible, the legislative counsel shall furnish the presiding officers of each house with a copy of the notice, and the presiding officers shall assign the notice to the chairperson of the appropriate standing committee in each house for review and any member thereof who makes a standing written request. In the event a presiding officer is unavailable for the purpose of making the assignment within the time limitations, the legislative counsel shall assign the notice to the chairperson of the appropriate standing committee. The legislative counsel shall also transmit within the time limitations provided in this subsection a notice of the assignment to the chairperson of the appropriate standing committee. Each standing committee of the Senate and the House of Representatives is granted all the rights provided for interested persons and governmental subdivisions in paragraph (2) of subsection (a) of this Code section.

(f)

(1) In the event a standing committee to which a notice is assigned as provided in subsection (e) of this Code section files an objection to a proposed rule prior to its adoption and the agency adopts the proposed rule over the objection, the rule may be considered by the branch of the General Assembly whose committee objected to its adoption by the introduction of a resolution for the purpose of overriding the rule at any time within the first 30 days of the next regular session of the General Assembly. It shall be the duty of any agency which adopts a proposed rule over such objection so to notify the presiding officers of the Senate and the House of Representatives, the chairpersons of the Senate and House committees to which the rule was referred, and the legislative counsel within ten days after the adoption of the rule. In the event the resolution is adopted by such branch of the General Assembly, it shall be immediately transmitted to the other branch of the General Assembly. It shall be the duty of the presiding officer of the other branch of the General Assembly to have such branch, within five days after the receipt of the resolution, to consider the resolution for the purpose of overriding the rule. In the event the resolution is adopted by two-thirds of the votes of each branch of the General Assembly, the rule shall be void on the day after the adoption of the resolution by the second branch of the General Assembly. In the event the resolution is ratified by less than two-thirds of the votes of either branch, the resolution shall be submitted to the Governor for his or her approval or veto. In the event of his or her veto, the rule shall remain in effect. In the event of his or her approval, the rule shall be void on the day after the date of his or her approval.

(2) In the event each standing committee to which a notice is assigned as provided in subsection (e) of this Code section files an objection to a proposed rule prior to its adoption by a two-thirds' vote of the members of the committee who were voting members on the tenth day of the current session, after having given public notice of the time, place, and purpose of such vote at least 48 hours in advance, as well as the opportunity for members of the public including the promulgating agency, to have a reasonable time to comment on the proposed committee action at the hearing, the effectiveness of such rule shall be stayed until the next legislative session at which time the rule may be considered by the General Assembly by the introduction of a resolution in either branch of the General Assembly for the purpose of overriding the rule at any time within the first 30 days of the next regular session of the General Assembly. In the event the resolution is adopted by the branch of the General Assembly in which it was introduced, it shall be immediately transmitted to the other branch of the General Assembly. It shall be the duty of the presiding officer of the other branch of the General Assembly to have such branch, within five days after the receipt of the resolution, to consider the resolution for the purpose of overriding the rule. In the event the resolution is adopted by two-thirds of the votes of each branch of the General Assembly, the rule shall be void on the day after the adoption of the resolution by the second branch of the General Assembly. In the event the resolution is ratified by less than two-thirds of the votes of either branch, the resolution shall be submitted to the Governor for his or her approval or veto. In the event of his or her veto, the rule shall remain in effect. In the event of his or her approval, the rule shall be void on the day after the date of his or her approval. If after the thirtieth legislative day of the legislative session of which the challenged rule was to be considered the General Assembly has not considered an override of the challenged rule pursuant to this subsection, the rule shall then immediately take effect.

(g)

(1) Subsection (f) of this Code section shall not apply to the Environmental Protection Division of the Department of Natural Resources as to any rule for which, as part of the notice required by paragraph (1) of subsection (a) of this Code section, the director of the division certifies that such rule is required for compliance with federal statutes or regulations or to exercise certain powers delegated by the federal government to the state to implement federal statutes or regulations, but paragraph (2) of this subsection shall apply to the Environmental Protection Division of the Department of Natural Resources as to any rule so certified. As part of such certification, the director shall cite the specific section or sections of federal statutes or regulations which the proposed rule is intended to comply with or implement. General references to the name or title of a federal statute or regulation shall not suffice for the purposes of this paragraph. Any proposed rule or rules that are subject to this paragraph shall be noticed separately from any proposed rule or rules that are not subject to this paragraph.

(2) In the event the chairperson of any standing committee to which a proposed rule certified by the director of the division pursuant to paragraph (1) of this subsection is assigned notifies the director that the committee objects to the adoption of the rule or has questions concerning the purpose, nature, or necessity of such rule, it shall be the duty of the director to consult with the committee prior to the adoption of the rule.

(h) The provisions of subsections (e) and (f) of this Code section shall apply to any rule of the Department of Public Health that is promulgated pursuant to Code Section 31-2A-11 or 31-45-10, except that the presiding officer of the Senate is directed to assign the notice of such a rule to the chairperson of the Senate Science and Technology Committee and the presiding officer of the House of Representatives is directed to assign the notice of such a rule to the chairperson of the House Committee on Industry and Labor. As used in this subsection, the term "rule" shall have the same meaning as provided in paragraph (6) of Code Section 50-13-2 and shall include interpretive rules and general statements of policy, notwithstanding any provision of subsection (a) of this Code section to the contrary.

(i) This Code section shall not apply to any comprehensive state-wide water management plan or revision thereof prepared by the Environmental Protection Division of the Department of Natural Resources and proposed, adopted, amended, or repealed pursuant to Article 8 of Chapter 5 of Title 12; provided, however, that this Code section shall apply to any rules or regulations implementing such a plan.^[5]

§ 50-13-4.1: Agency reporting on required regulation

Each agency shall prepare annually a report that specifies with detail those federal government mandates that require agency promulgation of rules and regulations rather than enactment of law by the General Assembly. Such report shall also identify state and federal regulatory duplication. A copy of such report shall be submitted to the Governor, Secretary of State, President of the Senate, Speaker of the House of Representatives, Secretary of the Senate, Clerk of the House of Representatives, and legislative counsel.^[6]

§ 50-13-5: Filing of previously adopted rules

(a) Within 20 days after July 1, 1965, each agency shall file with the Secretary of State a certified copy of all rules which were adopted by the agency prior to July 1, 1965, and which are still of full force and effect and a certified copy of all rules which were adopted by the agency prior to July 1, 1965, and which do not become effective until after July 1, 1965.

(b) The copy of each rule shall contain a citation of the authority pursuant to which the rule was adopted.

(c) The Secretary of State shall endorse on each copy the time and date of filing and shall maintain a record of the rules for public inspection.

(d) Any rule made by an agency prior to July 1, 1965, shall be void and of no effect unless filed in accordance with subsections (a) through (c) of this Code section.^[7]

§ 50-13-6: Rules not effective until 20 days after filed with Secretary of State, maintenance of record of the rules, exceptions, rules governing manner and form of filing

(a) Each rule adopted after July 1, 1965, shall not become effective until the expiration of 20 days after the rule is filed in the office of the Secretary of State. Each rule so filed shall contain a citation of the authority pursuant to which it was adopted and, if an amendment, shall clearly identify the original rule.

(b) The Secretary of State shall endorse on each rule thus filed the time and date of filing and shall maintain a record of the rules for public inspection.

(c) The 20 day filing period is subject to the following exceptions:

(1) Where a statute or the terms of the rule require a date which is later than the 20 day period, then the later date is the effective date; and

(2) Any emergency rule adopted pursuant to subsection (b) of Code Section 50-13-4 may become effective immediately upon adoption or within a period of less than 20 days. The emergency rule, with a copy of the finding as required by subsection (b) of Code Section 50-13-4, shall be filed with the office of the Secretary of State within four working days after its adoption.

(d) The Secretary of State shall prescribe rules governing the manner and form in which regulations shall be prepared for filing. The Secretary may refuse to accept for filing any rule that does not conform to such requirements.^[8]

§ 50-13-7: Secretary of State to publish compilation of rules and quarterly bulletin

(a) The Secretary of State shall compile, index, and publish in print or electronically all rules adopted by each agency and remaining in effect. Compilations shall be supplemented or revised as often as necessary and at least once every two years.

(b) The Secretary of State shall publish in print or electronically a quarterly bulletin in which the Secretary of State shall set forth the text of all rules filed during the preceding quarter.

(c) The Secretary of State, in his or her discretion, may omit rules from the bulletin or compilation if their publication would be unduly cumbersome, expensive, or otherwise inexpedient, provided that the omitted rules are made available in electronic, printed, or processed form on application to the adopting agency and that the bulletin or compilation contains a notice stating the general subject matter of the rules so omitted and stating how copies thereof may be obtained.

(d) The official compilation, Rules and Regulations of the State of Georgia, and bulletins shall be made available upon request free of charge to the heads of all departments, bureaus, agencies, commissions, and boards of this state; members of the General Assembly; Justices of the Supreme Court, Judges of the Court of Appeals; judges, clerks, and district attorneys of the superior courts. The compilation and bulletins shall be made available upon request to other persons at a price fixed by the Secretary of State to cover publication and mailing costs.

(e) The Secretary of State may engage the services of a privately operated editorial and publication firm experienced in the publication of annotated law books to compile, index, and publish such rules. The compilation shall conform in its arrangement as near as practicable to the Code of this state.^[9]

§ 50-13-8: Judicial notice of rules

The courts shall take judicial notice of any rule which has become effective pursuant to this chapter.^[10]

§ 50-13-9: Petition for promulgation, amendment, or repeal of rule, agency response

An interested person may petition an agency requesting the promulgation, amendment, or repeal of a rule. Each agency shall prescribe by rule the form for petitions and the procedure for their submission, consideration, and disposition. Within 30 days after submission of a petition, the agency either shall deny the petition in writing, stating its reasons for the denial, or shall initiate rule-making proceedings in accordance with Code Section 50-13-4.^[11]

§ 50-13-9.1: Variances or waivers to rules

(a) The General Assembly finds and declares that the strict application of rules can lead to unreasonable, uneconomical, and unintended results in particular instances. The General Assembly further declares that it is appropriate in such cases to adopt a procedure for agencies to provide relief to persons subject to regulation.

(b) As used in this Code section, the term:

(1) "Substantial hardship" means a significant, unique, and demonstrable economic, technological, legal, or other type of hardship to the person requesting a variance or waiver which impairs the ability of the person to continue to function in the regulated practice or business.

(2) "Variance" means a decision by an agency to grant a modification to all or part of the literal requirements of a rule to a person who is subject to the rule.

(3) "Waiver" means a decision by an agency not to apply all or part of a rule to a person who is subject to the rule.

(c) Except as provided in subsection (h) of this Code section, an agency is authorized to grant a variance or waiver to a rule when a person subject to that rule demonstrates that the purpose of the underlying statute upon which the rule is based can be or has been achieved by other specific means which are agreeable to the person seeking the variance or waiver and that strict application of the rule would create a substantial hardship to such person. A register of all pending requests for variances and waivers and all approved variances and waivers shall be maintained by the department granting the waiver or variance and shall be updated upon each grant of waiver or variance and be made available, upon request, to members of the public. The register and each entry on the register shall be posted on the GeorgiaNet. Any member of the public, including interested parties, shall have the opportunity to submit written comments concerning proposed variances or waivers prior to the approval of a variance or waiver pursuant to this Code section.

(d) Except as provided in subsection (h) of this Code section, a person who is subject to regulation by an agency rule may file a petition with that agency requesting a variance or waiver from the agency's rule. In addition to any other requirements which may be imposed by the agency, each petition shall specify:

(1) The rule from which a variance or waiver is requested;

(2) The type of action requested;

(3) The specific facts of substantial hardship which would justify a variance or waiver for the petitioner, including the alternative standards which the person seeking the variance or waiver agrees to meet and a showing that such alternative standards will afford adequate protection for the public health, safety, and welfare; and

(4) The reason why the variance or waiver requested would serve the purpose of the underlying statute.

(e) The agency subject to the provisions of subsections (c) and (d) of this Code section shall grant or deny a petition for variance or waiver in writing no earlier than 15 days after the posting of the petition on the register and no more than 60 days after the receipt of the petition. The agency's decision to grant or deny the petition shall be in writing and shall contain a statement of the relevant facts and the reasons supporting the agency's action.

(f) The agency's decision to deny a petition for variance or waiver shall be subject to judicial review in accordance with Code Section 50-13-19. The validity of any variance or waiver which is granted by an agency may be determined in an action for declaratory judgment in accordance with Code Section 50-13-10.

(g) Nothing in this Code section shall authorize an agency to grant variances or waivers to any statutes or to the agency itself or any other agency. This Code section does not supersede and is cumulative of any other variance or waiver provisions in other statutes or rules.

(h) This Code section shall not apply, and no variance or waiver shall be sought or authorized, when:

(1) Any agency rule or regulation has been adopted or promulgated in order to implement or promote a federally delegated program;

(2) Any rule or regulation is promulgated or adopted by the Department of Corrections concerning any institutional operations or inmate activities;

(3) Any rule or regulation is promulgated or adopted by the Department of Community Health;

(4) Any rule or regulation is promulgated or adopted by the Department of Agriculture;

(5) Any rules, regulations, standards, or procedures are adopted or promulgated by the Department of Natural Resources for the protection of the natural resources, environment, or vital areas of this state; or

(6) The granting of a waiver or variance would be harmful to the public health, safety, or welfare.

(i) All waivers granted pursuant to this Code section shall be reported to the General Assembly within the first ten days of the next session. Such information shall contain the name, address, and telephone number of the person or corporation obtaining such waiver; the name, address, and telephone number of any representative or attorney who represented such person or corporation requesting the waiver; and a description of the waiver granted including a detail of the variance from any rule or regulation.^[12]

§ 50-13-10: Declaratory judgment on validity of rules, venue for actions

(a) The validity of any rule, waiver, or variance may be determined in an action for declaratory judgment when it is alleged that the rule, waiver, or variance or its threatened application interferes with or impairs the legal rights of the petitioner. A declaratory judgment may be rendered whether or not the petitioner has first requested the agency to pass upon the validity of the rule, waiver, or variance in question.

(b) The agency shall be made a party to the action and a copy of the petition shall be served on the Attorney General. The action shall be brought in the Superior Court of Fulton County or in the superior court of the county of residence of the petitioner. When the petitioner is a corporation, the action may be brought in the Superior Court of Fulton County or in the superior court of the county where the petitioner maintains its principal place of doing business in this state. All actions for declaratory judgment, however, with respect to any rule, waiver, or variance of the Public Service Commission must be brought in the Superior Court of Fulton County.

(c) Actions for declaratory judgment provided for in this Code section shall be in accordance with Chapter 4 of Title 9, relating to declaratory judgments.^[13]

§ 50-13-11: Declaratory rulings by agencies

Each agency shall provide by rule for the filing and prompt disposition of petitions for declaratory rulings as to the applicability of any statutory provision or of any rule or order of the agency, provided that nothing herein shall limit or impair the right of an agency to seek the opinion of the Attorney General on any question of law connected with the duties of the agency pursuant to Code Section 45-15-3 or any other applicable statutory or constitutional provision. Rulings disposing of petitions have the same status as agency decisions or orders in contested cases.^[14]

§ 50-13-12: Department of Revenue to hold hearing when demanded by aggrieved taxpayer; election of remedies

Reserved. Repealed by Ga. L. 2012, p. 318, § 12/HB 100, effective January 1, 2013.^[15]

§ 50-13-13: Opportunity for hearing in contested cases, notice, counsel, subpoenas, record, enforcement powers, revenue cases

(a) In addition to any other requirements imposed by common law, constitution, statutes, or regulations:

(1) In any contested case, all parties shall be afforded an opportunity for hearing after reasonable notice served personally or by mail;

(2) The notice shall include:

(A) A statement of the time, place, and nature of the hearing;

(B) A statement of the legal authority and jurisdiction under which the hearing is to be held;

(C) A reference to the particular section of the statutes and rules involved;

(D) A short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time, the notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished; and

(E) A statement as to the right of any party to subpoena witnesses and documentary evidence through the agency;

(3) Opportunity shall be afforded all parties to be represented by legal counsel and to respond and present evidence on all issues involved;

(4) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default;

(5) Unless specifically precluded by statute, in addition to the agency, any contested case may be held before any agency representative who has been selected and appointed by the agency for such purpose. Before appointing a hearing representative, the agency shall determine that the person under consideration is qualified by reason of training, experience, and competence;

(6) The agency, the hearing officer, or any representative of the agency authorized to hold a hearing shall have authority to do the following: administer oaths and affirmations; sign and issue subpoenas; rule upon offers of proof; regulate the course of the hearing, set the time and place for continued hearings, and fix the time for filing briefs; dispose of motions to dismiss for lack of agency jurisdiction over the subject matter or parties or for any other ground; dispose of motions to amend or to intervene; provide for the taking of testimony by deposition or interrogatory; and reprimand or exclude from the hearing any person for any indecorous or improper conduct committed in the presence of the agency or the hearing officer;

(7) 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 contested case 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;

(8) A record shall be kept in each contested case and shall include:

(A) All pleadings, motions, and intermediate rulings;

(B) 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 proceeding or any part thereof shall be furnished to any party of the proceeding. The agency shall set a uniform fee for such service;

(C) A statement of matters officially noticed;

(D) Questions and offers of proof and rulings thereon;

(E) Proposed findings and exceptions;

(F) Any decision (including any initial, recommended, or tentative decision), opinion, or report by the officer presiding at the hearing; and

(G) All staff memoranda or data submitted to the hearing officer or members of the agency in connection with their consideration of the case; and

(9) Findings of fact shall be based exclusively on the evidence and on matters officially noticed.

(b) In proceedings before the agency, the hearing officer, or any representative of the agency authorized to hold a hearing, if any party or an agent or employee of a party disobeys or resists any lawful order of process; or neglects to produce, after having been ordered to do so, any pertinent book, paper, or document; or refuses to appear after having been subpoenaed; or, upon appearing, refuses to take the oath or affirmation as a witness; or after taking the oath or affirmation, refuses to testify, the agency, hearing officer, or other representative shall have the same rights and powers given the court under Chapter 11 of Title 9, the "Georgia Civil Practice Act." If any person or party refuses as specified in this subsection, the agency, hearing officer, or other representative may certify the facts to the superior court of the county where the offense is committed for appropriate action, including a finding of contempt. The agency, hearing officer, or other representative shall have the power to issue writs of fieri facias in order to collect fines imposed for violation of a lawful order of the agency, hearing officer, or other representative.

(c) Subsection (a) of this Code section and the other provisions of this chapter concerning contested cases shall not apply to any case arising in the administration of the revenue laws, which case is subject to a subsequent de novo trial of the law and the facts in the superior court or in the Georgia Tax Tribunal in accordance with Chapter 13A of this title.^[16]

§ 50-13-14: Intervention in contested cases

In contested cases:

(1) Upon timely application, any person shall be permitted to intervene when a statute confers an unconditional right to intervene or when the representation of an applicant's interest is or may be inadequate; or

(2) Upon timely application, any person may be permitted to intervene when a statute confers a conditional right to intervene or when the applicant's claim or defense and the main action have a question of law or fact in common. In exercising its discretion, the agency shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of existing parties.^[17]

§ 50-13-15: Rules of evidence in contested cases, official notice, conducting hearings by utilizing remote telephonic communications

In contested cases:

(1) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The rules of evidence as applied in the trial of civil nonjury cases in the superior courts shall be followed. When necessary to ascertain facts not reasonably susceptible of proof under such rules, evidence not admissible thereunder may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs or if it consists of a report of medical, psychiatric, or psychological evaluation of a type routinely submitted to and relied upon by an agency in the normal course of its business. Agencies shall give effect to the rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and the interest of the parties will not be prejudiced substantially, any part of the evidence may be received in written form;

(2) Documentary evidence may be received in the form of copies or excerpts if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original or have it established as documentary evidence according to the rules of evidence applicable to the superior courts of this state;

(3) A party may conduct such cross-examination as shall be required for a full and true disclosure of the facts;

(4) Official notice may be taken of judicially cognizable facts. In addition, official notice may be taken of generally recognized technical or scientific facts within the agency's specialized knowledge. Parties shall be notified either before or during the hearing, by reference in preliminary reports or otherwise, of the material noticed, including any staff memoranda or data, and they shall be afforded an opportunity to contest the material so noticed. The agency's experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence; and

(5) Any hearing which is required or permitted hereunder may be conducted by utilizing remote telephonic communications if the record reflects that all parties have consented to the conduct of the hearing by use of such communications and that such procedure will not jeopardize the rights of any party to the hearing.^[18]

§ 50-13-16: Proposal for decision in contested cases, opportunity to file exceptions and present briefs and arguments

When in a contested case a majority of the officials of the agency who are to render the final decision have not heard the case or read the record, the decision, if adverse to a party to the proceeding other than the agency itself, shall not be made until a proposal for decision is served upon the parties and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral argument to the officials who are to render the decision. The proposal for decision shall contain a statement of the reasons therefor and of each issue of fact or law necessary to the proposed decision, prepared by the person who conducted the hearing or one who has read the record. The parties by written stipulation may waive compliance with this Code section.^[19]

§ 50-13-17: Initial decisions in contested cases, review of initial decisions, final decisions and orders, Public Service Commission exceptions

(a) In contested cases in which the agency has not presided at the reception of the evidence, the agency representative who presided shall initially decide the case or the agency shall require the entire record before the agency representative to be certified to it for initial decision. When the representative makes the initial decision, and in absence of an application to the agency within 30 days from the date of notice of the initial decision for review, or an order by the agency within such time for review on its motion, the initial decision shall, without further proceedings, become the decision of the agency. On review from the initial decision of the representative, the agency shall have all the powers it would have in making the initial decision and, if deemed advisable, the agency may take additional testimony or remand the case to the hearing representative for such purpose. When the agency makes the initial decision without having presided at the reception of evidence, the agency representative shall first recommend a decision, a copy of which shall be sent to each party and which shall be made a part of the record.

(b) A final decision or order adverse to a party, other than the agency, in a contested case shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law, separately stated, and the effective date of the decision or order. Findings of fact shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. Each agency shall maintain a properly indexed file of all decisions in contested cases, which file shall be open for public inspection with the exceptions provided in paragraph (4) of subsection (a) of Code Section 50-13-3. A copy of the decision or order and accompanying findings and conclusions shall be delivered or mailed promptly to each party or to his attorney of record. Nothing in this Code section shall prevent agencies from entering summary decisions or orders for contested cases informally disposed of under paragraph (4) of subsection (a) of Code Section 50-13-13. Moreover, nothing in this Code section shall prevent the parties to a contested case before the Public Service Commission from waiving the requirements of this Code section relating to findings of fact and conclusions of law, nor preclude the commission from adopting a rule or rules prescribing the procedure whereby parties to a contested case before it may waive such requirements.

(c) Each agency shall render a final decision in contested cases within 30 days after the close of the record required by Code Section 50-13-13 except that any agency, by order, may extend such period in any case in which it shall find that the complexity of the issues and the length of the record require an extension of the period, in which event the agency shall render a decision at the earliest date practicable. Notwithstanding any other provisions of this law to the contrary, the procedures prescribed by Code Section 46-2-25, relating to procedure for utility rate changes, shall be applicable to and available to any person, firm, or corporation subject to the jurisdiction of the Public Service Commission; and nothing contained herein shall be deemed to abrogate or limit, in any manner, such Code section as it pertains to any rate, charge, classification, or service which may constitute the basis of a contested case, proceeding, hearing, or matter before the Public Service Commission.

(d) The Public Service Commission shall not be required to include findings of fact and conclusions of law in its orders and decisions in cases in which it presides at the reception of the evidence where no person appears in protest or opposition to the relief or authority sought; provided, however, that such cases shall not include those in which the relief sought is an increase or decrease in the rate or rates of any person subject to its jurisdiction; and provided, further, that, if an aggrieved person files a petition seeking judicial review pursuant to Code Section 50-13-19 with respect to such an order or decision, the Public Service Commission shall nevertheless prepare such findings of fact and conclusions of law and include the same in the record of the proceedings transmitted to the reviewing court pursuant to subsection (e) of Code Section 50-13-19.^[20]

§ 50-13-18: Procedure upon grant, denial, renewal, revocation, suspension, annulment, or withdrawal of licenses

(a) When the grant, denial, or renewal of a license is required by law to be preceded by notice and opportunity for hearing, Code Section 50-13-13 shall apply.

(b) When a licensee has made timely and sufficient application for the renewal of a license or for a new license with reference to any activity of a continuing nature, the existing license does not expire until the application has been finally determined by the agency and, in case the application is denied or the terms of the new license limited, until the last day for seeking review of the agency order or at a later date fixed by order of the reviewing court.

(c) No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency has sent notice, by certified mail or statutory overnight delivery to the licensee, of individual facts or conduct which warrant the intended action and the licensee has been given an opportunity to show compliance with all lawful requirements for the retention of the license except where:

(1) The agency finds that the public health, safety, or welfare imperatively requires emergency action and incorporates a finding to that effect in its order, in which case summary suspension of a license may be ordered pending proceedings for revocation or other action, which proceeding shall be promptly instituted and determined; or

(2) The agency's order is expressly required, by a judgment or a statute, to be made without the right to a hearing or continuance of any type.

(d)

(1) In contested cases which could result in the revocation, suspension, or limitation of a license, when a licensee makes a general or specific request for exculpatory, favorable, or arguably favorable information that is relative to pending allegations concerning a license, an agency must furnish the requested information, indicate that no such information exists, or refuse to furnish the information requested prior to a hearing. An agency shall not be required to release information which is made confidential by state or federal law, until such requested information has been determined to be exculpatory, favorable, or arguably favorable pursuant to the in camera procedure specified in paragraph (2) of this subsection.

(2) Once an agency has furnished exculpatory, favorable, or arguably favorable information, has indicated that no such information exists, or has refused to furnish such information, the licensee may request a prehearing in camera inspection of the remainder of the investigative file by the person or persons presiding over the hearing. Such person or persons shall furnish the licensee with all material that would aid in the licensee's defense that is exculpatory, favorable, or arguably favorable. Such person or persons shall seal a copy of the entire investigative file in order to preserve it in the event of an appeal.^[21]

§ 50-13-19: Judicial review of contested cases

(a) Any person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter. This Code section does not limit utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.

(b) Proceedings for review are instituted by filing a petition within 30 days after the service of the final decision of the agency or, if a rehearing is requested, within 30 days after the decision thereon. The petition may be filed in the Superior Court of Fulton County or in the superior court of the county of residence of the petitioner; or, if the petitioner is a corporation, the appeal may be brought in the Superior Court of Fulton County or in the superior court of the county where the petitioner maintains its principal place of doing business in this state; and provided, further, that all proceedings for review with respect to orders, rules, regulations, or other decisions or directives of the Commissioner of Agriculture may also be brought in the Superior Court of Tift County or the Superior Court of Chatham County. All proceedings for review, however, with respect to orders, rules, regulations, or other decisions or directives of the Public Service Commission must be brought in the Superior Court of Fulton County. Copies of the petition shall be served upon the agency and all parties of record. The petition shall state the nature of the petitioner's interest, the fact showing that the petitioner is aggrieved by the decision, and the ground as specified in subsection (h) of this Code section upon which the petitioner contends that the decision should be reversed or modified. The petition may be amended by leave of court.

(c) Irrespective of any provisions of statute or agency rule with respect to motions for rehearing or reconsideration after a final agency decision or order, the filing of such a motion shall not be a prerequisite to the filing of any appeal for judicial review or relief; provided, however, that no objection to any order or decision of any agency shall be considered by the court upon petition for review unless such objection has been urged before the agency.

(d)

(1) The filing of the petition for judicial review in superior court does not itself stay enforcement of the agency decision. Except as otherwise provided in this subsection, the agency may grant, or the reviewing court may order, a stay upon appropriate terms for good cause shown.

(2) In cases involving the grant of a permit, permit amendment, or variance by the director of the Environmental Protection Division of the Department of Natural Resources in which the petition for judicial review in superior court was filed by any person to whom such contested order or action is not directed, a stay shall not be granted unless by order of the superior court upon motion for a temporary restraining order or interlocutory injunction in accordance with Code Section 9-11-65.

(3) The provisions of paragraphs (1) and (2) of this subsection notwithstanding, in any case involving the grant of a permit, permit amendment, or variance by the director of the Environmental Protection Division of the Department of Natural Resources regarding water withdrawal for farm uses under Code Section 12-5-31 or Code Section 12-5-105, no stay shall be authorized if the petition for judicial review in superior court was filed by any person to whom such order or action is not directed.

(4) In contested cases involving a license to practice medicine or a license to practice dentistry in this state, a reviewing court may order a stay or an agency may grant a stay only if the court or agency makes a finding that the public health, safety, and welfare will not be harmed by the issuance of the stay.

(e) Within 30 days after the service of the petition or within further time allowed by the court, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require or permit subsequent corrections or additions to the record.

(f) If, before the date set for hearing, application is made to the court for leave to present additional evidence and it is shown to the satisfaction of the court that the additional evidence is material and there were good reasons for failure to present it in the proceedings before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.

(g) 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 agency, 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.

(h) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency 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 agency;

(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.^[22]

§ 50-13-20: Review of final judgment

An aggrieved party may obtain a review of any final judgment of the superior court under this chapter by the Court of Appeals or the Supreme Court, as provided by law. In contested cases involving a license to practice medicine or a license to practice dentistry in this state, the filing of an application for appeal or a notice of appeal shall not by itself stay enforcement of the agency decision. In such cases, the superior court which considered the petition for judicial review or the Court of Appeals or the Supreme Court may order a stay only if such court makes a finding that the public health, safety, and welfare will not be harmed by the issuance of the stay.^[23]

§ 50-13-20.1: Judicial review of final decision in contested case issued by administrative law judge

A petition for judicial review of a final decision in a contested case issued by an administrative law judge pursuant to subsection (e) of Code Section 50-13-41 shall be subject to judicial review in the same manner as provided in Code Section 50-13-19 except that the procedure and standard of judicial review specifically provided for an agency shall be applied and shall not be affected, altered, or changed by Article 2 of this chapter.^[24]

§ 50-13-21: Compliance with filing and hearing requirements by Safety Fire Commissioner and Commissioner of Insurance

As to such regulations, standards, and plans as are required by law to be filed and kept on file with the office of the Secretary of State, the Commissioner of Insurance, when performing the duties as Safety Fire Commissioner, may comply with the filing requirements of this chapter by filing with the office of the Secretary of State merely the name and designation of such regulations, standards, and plans, provided the regulations, standards, and plans are kept on file in the office of the Commissioner of Insurance by the titles otherwise applicable under this chapter and the regulations, standards, and plans are open for public examination and copying. The Commissioner of Insurance, when performing the duties as Safety Fire Commissioner, may also satisfy the procedure for conduct of hearings on contested cases and rule making required under this chapter by following Chapter 2 of Title 33. The Commissioner of Insurance, when performing the duties as Commissioner of Insurance, may satisfy the procedure for conduct of hearings on contested cases required under this chapter by following Chapter 2 of Title 33. When the Commissioner of Insurance is performing rule-making duties as Commissioner of Insurance, he shall satisfy the procedures required under this chapter and under Chapter 2 of Title 33. In the event of any conflicts between rule-making procedures of this chapter and Chapter 2 of Title 33 as it respects duties of the Commissioner of Insurance, this chapter shall govern.^[25]

§ 50-13-22: Construction of chapter

Nothing in this chapter shall be held to diminish the constitutional rights of any person, to limit or repeal additional requirements imposed by statute or otherwise recognized by law, to diminish any delegation of authority to any agency, nor to create any substantive rights; but this chapter shall be procedural. Except as otherwise required by law, all requirements or privileges relating to evidence or procedure shall apply equally to agencies and persons. Every agency is granted all authority necessary to comply with the requirements of this chapter through the issuance of rules or otherwise.^[26]

§ 50-13-23: Determining date when documents received by or filed with agencies

Notwithstanding any provision of law to the contrary, any document required by law, rule, or regulation to be received by or filed with any agency pursuant to the requirements of this chapter shall be deemed to be received by or filed with such agency on the earlier of: (1) the date such document is actually received by such agency; (2) the official postmark date such document was mailed, properly addressed with postage prepaid, by registered or certified mail; or (3) the date on which such document was delivered to a commercial delivery company for statutory overnight delivery as provided in Code Section 9-10-12 as evidenced by the receipt provided by the commercial delivery company.^[27]

Article 2: Office of state administrative hearings

Text of Article 2:

§ 50-13-40: Office created, chief state administrative law judge

(a) There is created within the executive branch of state government the Office of State Administrative Hearings. The office shall be independent of state administrative agencies and shall be responsible for impartial administration of administrative hearings in accordance with this article. The office shall be assigned for administrative purposes only, as that term is defined in Code Section 50-4-3, to the Department of Administrative Services.

(b) The head of the office shall be the chief state administrative law judge who shall be appointed by the Governor, shall serve a term of six years, shall be eligible for reappointment, and may be removed by the Governor for cause. The chief state administrative law judge shall have been admitted to the practice of law in this state for a period of at least five years. The chief state administrative law judge shall be in the unclassified service as defined by Code Section 45-20-2 and shall receive a salary to be determined by the Governor. All successors shall be appointed in the same manner as the original appointment and vacancies in office shall be filled in the same manner for the remainder of the unexpired term.

(c) The chief state administrative law judge shall promulgate rules and regulations and establish procedures to carry out the provisions of this article.

(d) The chief state administrative law judge shall have the power to employ clerical personnel and court reporters necessary to assist in the performance of his or her duties.

(e)

(1) The chief state administrative law judge shall have the power to employ full-time assistant administrative law judges who shall exercise the powers conferred upon the chief state administrative law judge in all administrative cases assigned to them. Each assistant administrative law judge shall have been admitted to the practice of law in this state for a period of at least three years. The chief state administrative law judge may establish different levels of administrative law judge positions and the compensation for such positions shall be determined by the chief state administrative law judge.

(2) The chief state administrative law judge may appoint a special assistant administrative law judge on a temporary or case basis as may be necessary for the proper performance of the duties of the office, pursuant to a fee schedule established in advance by the chief state administrative law judge. A special assistant administrative law judge shall have the same qualifications and authority as a full-time assistant administrative law judge.

(3) The chief state administrative law judge may designate in writing a qualified full-time employee of an agency other than an agency directly connected with the proceeding to conduct a specified hearing, but such appointment shall only be with the prior consent of the employee's agency. Such employee shall then serve as a special designated assistant administrative law judge for the purposes of the specific hearing and shall not be entitled to any additional pay for this service.

(4) When the character of the hearing requires utilization of a hearing officer with special skill and technical expertise in the field, the chief state administrative law judge may so certify in writing and appoint as a special lay assistant administrative law judge a person who is not a member of the bar of this state or otherwise not qualified under this Code section. Such appointment shall specify in writing the reasons such special skill is required and the qualifications of the appointed individual.

(5) The chief state administrative law judge may designate a class of hearings for which individuals with the necessary skill and training need not meet the qualifications of paragraphs (1) through (4) of this subsection. These full-time associate administrative law judges shall exercise the powers conferred upon the chief state administrative judge in the class of administrative cases assigned to them. The chief state administrative law judge shall determine the compensation for such positions.

(f) The chief state administrative law judge and any administrative law judge employed on a full-time basis: (1) shall not otherwise engage in the practice of law; and (2) shall not, except in the performance of his or her duties in a contested case, render legal advice or assistance to any state board, bureau, commission, department, agency, or officer.^[28]

§ 50-13-41: Hearing procedures, powers of administrative law judge, issuance of decision; review

(a)

(1) Whenever a state agency authorized by law to determine contested cases initiates or receives a request for a hearing in a contested case which is not presided over by the agency head or board or body which is the ultimate decision maker, the hearing shall be conducted by the Office of State Administrative Hearings, and such hearings shall be conducted in accordance with the provisions of this chapter and the rules and regulations promulgated under this article.

(2) An administrative law judge shall have the power to do all things specified in paragraph (6) of subsection (a) of Code Section 50-13-13.

(b) An administrative law judge shall have all the powers of the referring agency with respect to a contested case. Subpoenas issued by an administrative law judge shall be enforced in the manner set forth in paragraph (7) of subsection (a) of Code Section 50-13-13. Nothing in this article shall affect, alter, or change the ability of the parties to reach informal disposition of a contested case in accordance with paragraph (4) of subsection (a) of Code Section 50-13-13.

(c) Within 30 days after the close of the record, an administrative law judge shall issue a decision to all parties in the case except when it is determined that the complexity of the issues and the length of the record require an extension of this period and an order is issued by an administrative law judge so providing. Every decision of an administrative law judge shall contain findings of fact, conclusions of law, and a recommended disposition of the case.

(d) Except as otherwise provided in this article, in all cases every decision of an administrative law judge shall be treated as an initial decision as set forth in subsection (a) of Code Section 50-13-17, including, but not limited to, the taking of additional testimony or remanding the case to the administrative law judge for such purpose. On review, the reviewing agency shall consider the whole record or such portions of it as may be cited by the parties. In reviewing initial decisions by the Office of State Administrative Hearings, the reviewing agency shall give due regard to the administrative law judge's opportunity to observe witnesses. If the reviewing agency rejects or modifies a proposed finding of fact or a proposed decision, it shall give reasons for doing so in writing in the form of findings of fact and conclusions of law.

(e)

(1) A reviewing agency shall have a period of 30 days following the entry of the decision of the administrative law judge in which to reject or modify such decision. If a reviewing agency fails to reject or modify the decision of the administrative law judge within such 30 day period, then the decision of the administrative law judge shall stand affirmed by the reviewing agency by operation of law.

(2) A reviewing agency may prior to the expiration of the review period provided for in paragraph (1) of this subsection extend such review period by order of the reviewing agency in any case wherein unusual and compelling circumstances render it impracticable for the reviewing agency to complete its review within such period. Any such order shall recite with particularity the circumstances which render it impracticable for the reviewing agency to complete its review within such review period. Any such extension by the reviewing agency shall be for a period of time not to exceed 30 days. Prior to the expiration of the extended review period, the review period may be further extended by further order of the reviewing agency for one additional period not to exceed 30 days if unusual and compelling circumstances render it impracticable to complete the review within the extended review period. Such further order further extending the review period shall likewise recite with particularity the circumstances which render it impracticable for the reviewing agency to complete its review within the review period as previously extended. If a reviewing agency fails to reject or modify the decision of the administrative law judge within the extended review period, then the decision of the administrative law judge shall stand affirmed by the reviewing agency by operation of law.

(3) An agency may provide by rule that proposed decisions in all or in specified classes of cases before the Office of State Administrative Hearings will become final without further agency action and without expiration of the 30 day review period otherwise provided for in this subsection.^[29]

§ 50-13-42. Applicability of article

(a) In addition to those agencies expressly exempted from the operation of this chapter under paragraph (1) of Code Section 50-13-2, this article shall not apply to the Commissioner of Agriculture, the Public Service Commission, the Certificate of Need Appeal Panel, or the Department of Community Health, unless specifically provided otherwise for certain programs or in relation to specific laws, or to the Department of Labor with respect to unemployment insurance benefit hearings conducted under the authority of Chapter 8 of Title 34. Such exclusion does not prohibit such office or agencies from contracting with the Office of State Administrative Hearings on a case-by-case basis.

(b) This article shall apply to hearings conducted pursuant to Code Sections 45-20-8 and 45-20-9. The State Personnel Board may provide by rule that proposed decisions in all or in specified classes of cases before the Office of State Administrative Hearings will become final without further action by the board and without expiration of the 30 day review period otherwise provided for in subsection (e) of Code Section 50-13-41.

(c) This article shall not apply with respect to any matter as to which an aggrieved party is permitted to file a petition with the Georgia Tax Tribunal in accordance with Chapter 13A of this title.^[30]

§ 50-13-43: Agencies to cooperate with chief state administrative law judge, Office of State Administrative Hearings to comply with federal law, rules and regulations

All agencies shall cooperate with the chief state administrative law judge in the discharge of his or her duties. The Office of State Administrative Hearings shall comply with all applicable federal statutes, regulations, and guidelines, including those related to time frames for hearings, release of decisions, and other procedural requirements. The Office of State Administrative Hearings shall promulgate, when necessary for any class of hearings, specific rules and regulations in order to ensure compliance with federal requirements and receipt and retention of federal funding, tax credits, and grants.^[31]

§ 50-13-44: Administrative transfer of individuals to Office of State Administrative Hearings; approval of chief state administrative law judge; funding of transferred positions; transferred employees status

(a) Any full-time hearing officer or equivalent position, used exclusively or principally to conduct or preside over hearings for a covered agency immediately prior to July 1, 1994, shall be administratively transferred to the Office of State Administrative Hearings, if such employee qualifies under Code Section 50-13-40. Any person serving immediately prior to July 1, 1994, as an independent hearing officer or equivalent under contract or written order of appointment shall be administratively transferred to the Office of State Administrative Hearings as of July 1, 1994, and shall continue as a special assistant administrative law judge. All full-time staff of covered agencies who have exclusively or principally served as support staff for administrative hearings shall be administratively transferred to the Office of State Administrative Hearings as of July 1, 1994. All equipment or other tangible property in possession of covered agencies which is used or held exclusively or principally by personnel transferred under this Code section shall be transferred to the Office of State Administrative Hearings as of July 1, 1994.

(b) All such transfers shall be subject to the approval of the chief state administrative law judge and such personnel or property shall not be transferred if the chief state administrative law judge determines that the hearing officer, staff, equipment, or property should remain with the transferring agency.

(c) Funding for functions and positions transferred to the Office of State Administrative Hearings under this article shall be transferred as provided for in Code Section 45-12-90. The employees of the Office of State Administrative Hearings shall be in the unclassified service unless they are in the classified service as such term is defined by Code Section 45-20-2.

(d) The chief state administrative law judge shall assess agencies the cost of services rendered to them in the conduct of hearings.

(e)

(1) Any full-time hearing officer of the State Personnel Board used exclusively or principally to conduct or preside over hearings for such board immediately prior to July 1, 1997, shall be administratively transferred to the Office of State Administrative Hearings if such employee qualifies under Code Section 50-13-40. Any person serving immediately prior to July 1, 1997, as an independent hearing officer under contract or written order of appointment shall be administratively transferred to the Office of State Administrative Hearings as of July 1, 1997, and shall continue as a special assistant administrative law judge. All full-time staff of the State Personnel Board who have exclusively or principally served as support staff for administrative hearings conducted by such hearing officers shall be administratively transferred to the Office of State Administrative Hearings as of July 1, 1997. All equipment or other tangible property in possession of the State Personnel Board which is used or held exclusively or principally by personnel transferred under this subsection shall be transferred to the Office of State Administrative Hearings as of July 1, 1997.

(2) Funding for functions and positions transferred to the Office of State Administrative Hearings under this subsection shall be transferred as provided for in Code Section 45-12-90.^[32]

External links

Footnotes

[geo-1] ttps://law.justia.com/codes/georgia/2020/title-50/chapter-13/ JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions," accessed May 8, 2023]

[2] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-1. Short title; purpose," accessed May 8, 2023

[3] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-2. Definitions," accessed May 8, 2023

[4] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-3. Adoption of rules of organization and practice; public inspection and validity of rules, policies, orders, decisions, and opinions," accessed May 8, 2023

[5] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-4. Procedural requirements for adoption, amendment, or repeal of rules; emergency rules; limitation on action to contest rule; legislative override," accessed May 8, 2023

[6] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-4.1. Agency reporting on required regulation," accessed May 8, 2023

[7] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-5. Filing of previously adopted rules," accessed May 8, 2023

[8] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-6. Rules not effective until 20 days after filed with Secretary of State; maintenance of record of the rules; exceptions; rules governing manner and form of filing," accessed May 8, 2023

[9] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-7. Secretary of State to publish compilation of rules and quarterly bulletin," accessed May 8, 2023

[10] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-8. Judicial notice of rules," accessed May 8, 2023

[11] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-9. Petition for promulgation, amendment, or repeal of rule; agency response," accessed May 8, 2023

[12] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-9.1. Variances or waivers to rules," accessed May 8, 2023

[13] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-10. Declaratory judgment on validity of rules; venue for actions," accessed May 8, 2023

[14] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-11. Declaratory rulings by agencies," accessed May 8, 2023

[15] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-12. Department of Revenue to hold hearing when demanded by aggrieved taxpayer; election of remedies," accessed May 8, 2023

[16] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-13. Opportunity for hearing in contested cases; notice; counsel; subpoenas; record; enforcement powers; revenue cases," accessed May 8, 2023

[17] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-14. Intervention in contested cases," accessed May 8, 2023

[18] JUSTIA, "2017 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-15. Rules of evidence in contested cases; official notice; conducting hearings by utilizing remote telephonic communications," accessed May 8, 2023

[19] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-16. Proposal for decision in contested cases; opportunity to file exceptions and present briefs and arguments," accessed May 8, 2023

[20] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-17. Initial decisions in contested cases; review of initial decisions; final decisions and orders; Public Service Commission exceptions," accessed May 8, 2023

[21] JUSTIA, "2017 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-18. Procedure upon grant, denial, renewal, revocation, suspension, annulment, or withdrawal of licenses," accessed May 8, 2023

[22] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-19. Judicial review of contested cases," accessed May 8, 2023

[23] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-20. Review of final judgment," accessed May 8, 2023

[24] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-20.1. Judicial review of final decision in contested case issued by administrative law judge," accessed May 8, 2023

[25] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-21. Compliance with filing and hearing requirements by Safety Fire Commissioner and Commissioner of Insurance," accessed May 8, 2023

[26] JUSTIA, "2020 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-22. Construction of chapter," accessed May 8, 2023

[27] JUSTIA, "2017 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-23. Determining date when documents received by or filed with agencies," accessed May 8, 2023

[28] JUSTIA, "2017 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-40. Office created; chief state administrative law judge," accessed November 13, 2018

[29] JUSTIA, "2017 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-41. Hearing procedures; powers of administrative law judge; issuance of decision; review," accessed November 13, 2018

[30] JUSTIA, "2017 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-42. Applicability of article," accessed November 13, 2018

[31] JUSTIA, "2017 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-43. Agencies to cooperate with chief state administrative law judge; Office of State Administrative Hearings to comply with federal law; rules and regulations," accessed November 13, 2018

[32] JUSTIA, "2017 Georgia Code Title 50 - State Government Chapter 13 - Administrative Procedure Article 1 - General Provisions § 50-13-44. Administrative transfer of individuals to Office of State Administrative Hearings; approval of chief state administrative law judge; funding of transferred positions; transferred employees status," accessed November 13, 2018

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