2021 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

1. 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:
      1. A statement of the time, place, and nature of the hearing;
      2. A statement of the legal authority and jurisdiction under which the hearing is to be held;
      3. A reference to the particular section of the statutes and rules involved;
      4. 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
      5. 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:
      1. All pleadings, motions, and intermediate rulings;
      2. A summary of the oral testimony plus all other evidence received or considered except that oral proceedings or any part thereof shall be transcribed or recorded upon request of any party. Upon written request therefor, a transcript of the oral proceeding or any part thereof shall be furnished to any party of the proceeding. The agency shall set a uniform fee for such service;
      3. A statement of matters officially noticed;
      4. Questions and offers of proof and rulings thereon;
      5. Proposed findings and exceptions;
      6. Any decision (including any initial, recommended, or tentative decision), opinion, or report by the officer presiding at the hearing; and
      7. All staff memoranda or data submitted to the hearing officer or members of the agency in connection with their consideration of the case; and
   9. Findings of fact shall be based exclusively on the evidence and on matters officially noticed.
2. 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.
3. 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.

(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.)

- Subpoenas generally, § 24-13-20 et seq.

Conduct of hearings before Public Service Commission by hearing officers, § 46-2-58.

- Ga. L. 2012, p. 318, § 16(b)/HB 100, not codified by the General Assembly, provides: "Sections 1 through 14 of this Act shall become effective on January 1, 2013, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case."

- 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).

- 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).

- Reference in O.C.G.A. § 50-13-13 to a person or party being "ordered" to produce any "book, paper, or document" is a reference to a subpoena for the production of things. Ga. Gov't Transparency & Campaign Fin. Comm'n v. New Ga. Project Action Fund, 359 Ga. App. 32, 856 S.E.2d 733 (2021).

- 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).

- When the Georgia Government Transparency and Campaign Finance Commission initiated a preliminary investigation and issued administrative subpoenas to the appellees, the Commission could seek judicial enforcement of its administrative subpoenas in accordance with the Georgia Administrative Procedure Act because the subpoenas issued "commanded" and "compelled" the respective appellees to produce various communications and records; and those subpoenas sufficiently "ordered" the respective appellees to produce the requested materials, the alleged noncompliance with which would allow for the Commission to seek enforcement in the superior court. Ga. Gov't Transparency & Campaign Fin. Comm'n v. New Ga. Project Action Fund, 359 Ga. App. 32, 856 S.E.2d 733 (2021).

- 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).

- 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).

- 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).

- 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).

- 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).

- While "proceedings before the agency" in the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-1 et seq., can be understood to reference a more formal process - including a contested case - the phrase can also be understood to encompass an agency's investigations. Ga. Gov't Transparency & Campaign Fin. Comm'n v. New Ga. Project Action Fund, 359 Ga. App. 32, 856 S.E.2d 733 (2021).

- 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' 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).

Purpose and intent of Ga. L. 1968, p. 338, § 1 et seq. (see O.C.G.A. T. 50, C. 13) 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.

- 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.

- 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.

- With the passage of Ga. L. 1968, p. 338, § 1 et seq. (see O.C.G.A. T. 50, C. 13) 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.

- 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 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.

- 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. T. 50, C. 13) 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.

- 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.

- Model State Administrative Procedure Act (U.L.A.) § 4-201 et seq.

- 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.