GA Code § 2-2-9.1 (2021)
2021 Georgia Code|Title 2 - Agriculture|Chapter 2 - Department of Agriculture|§ 2-2-9.1. "Aggrieved or Adversely Affected" Defined; Administrative Authority of Commissioner; Hearing for Individuals Adversely Affected; Penalties; Final Decisions; Judicial Review of Final Decisions

  As used in this Code section, the term "aggrieved or adversely affected" means that the challenged action has caused or will cause the person injury in fact, and the injury is to an interest within the zone of interests to be protected or regulated by the statute that the Commissioner is empowered to administer and enforce.   The Commissioner shall issue all orders and perform actions to include impoundments; quarantine; the issuance, suspension, denial, or revocation of registrations, licenses, or permits; or approval or denial of applications for registrations, licenses, or permits provided for in such federal and state laws as are to be enforced by the Department of Agriculture.   Any administrative order issued by the Commissioner shall specify the alleged violation, monetary penalty, or other sanction; prescribe a reasonable time for some type of action to be accomplished; and provide notice of the right to a hearing. Any order issued pursuant to this Code section shall become final unless the aggrieved or adversely affected registrant, licensee, permittee, applicant, equine owner, livestock owner, dog or cat owner, exotic and pet bird owner, or farmer of crops or livestock, chickens, or other animals timely requests a hearing in writing as provided by this Code section.   Any registrant, licensee, permittee, applicant, equine owner, livestock owner, dog or cat owner, exotic and pet bird owner, or farmer of crops or livestock, chickens, or other animals aggrieved or adversely affected by any order or action of the Commissioner to include the issuance, suspension, denial, or revocation of a registration, license, permit, or application; impoundment; quarantine; or stop sale, stop use, or stop removal order; upon petition within 30 days after the issuance of such order or the taking of such action, shall have a right to a hearing before a hearing officer appointed or designated for such purpose by the Commissioner. The decision of the hearing officer shall constitute an initial decision of the Department of Agriculture, and any party to the hearing, including the Commissioner, shall have the right to final agency review before the Commissioner in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," and the provisions of this chapter.   Where a statute for which the Commissioner has responsibility for administration or enforcement or a provision of Article 1 of Chapter 13 of Title 50 provides for different administrative procedures in providing for a notice and opportunity to be heard other than those specified in this Code section, the Commissioner may elect which procedure to be used on a case-by-case basis.   In the event the Commissioner asserts in response to the petition before the hearing officer that the petitioner is not aggrieved or adversely affected, the hearing officer shall take evidence and hear arguments on such issue and thereafter make a ruling on such issue before continuing with the hearing. The burden of going forward with evidence on such issue shall rest with the petitioner. The decision of the hearing officer shall constitute the initial decision of the Commissioner; and any party to the hearing, including the Commissioner, shall have the right for final agency review before the Commissioner in accordance with Chapter 13 of Title 50.   Prior to notice, hearing, or determination, the Commissioner is authorized to impose civil penalties in settlement of contested cases through administrative consent orders. The Commissioner is authorized to impose through administrative consent orders civil penalties of up to and including the applicable maximum amounts provided by paragraph (1) of subsection (h) of this Code section. Any civil penalties recovered shall be paid over into the general fund of the state treasury in accordance with Code Section 45-12-92.     The Commissioner may seek civil penalties for the violation of those laws to be enforced by the Department of Agriculture; and where the imposition of such civil penalties is provided for therein, the Commissioner upon written request may cause a hearing to be conducted before a hearing officer appointed or designated by the Commissioner for the purpose of determining whether such civil penalties should be imposed in accordance with the applicable law; and where the imposition of such civil penalties is not provided for therein but violation of such law is punishable as a criminal offense, the Commissioner upon written request may cause a hearing to be conducted before a hearing officer appointed or designated by the Commissioner for the purpose of determining whether civil penalties in an amount not to exceed $1,000.00 per violation should be imposed. Any civil penalties recovered shall be paid over into the general fund of the state treasury in accordance with Code Section 45-12-92. The Commissioner may require any person to obtain a surety bond on the balance of a monetary penalty or suspended portion of a monetary penalty imposed on such person pursuant to a consent order or final decision from which no further review is taken or allowed. If any aggrieved or adversely affected party fails to follow the terms of such consent order or final decision, the Commissioner may commence and maintain an action against the principal and surety on the bond.   The decision of the hearing officer shall constitute the initial decision of the Commissioner; and any party to the hearing, including the Commissioner, shall have the right of final agency review before the Commissioner in accordance with Chapter 13 of Title 50.   In rendering a decision on a requested civil penalty, the hearing officer shall consider all relevant factors including, but not limited to, the following:   The amount of civil penalty necessary to ensure immediate and continued compliance and the extent to which the violator may have profited by failing or delaying to comply;   The conduct of the person incurring the civil penalty in promptly taking all feasible steps or procedures necessary or appropriate to comply with or to correct the violation or failure to comply;   Any prior violations of, or failures by, such person to comply with statutes, rules, regulations, or orders administered, adopted, or issued by the Commissioner;   The character and degree of injury to or interference with public health or safety which is caused or threatened to be caused by such violation or failure to comply;   The character and degree of injury to or interference with reasonable use of property which is caused or threatened to be caused by such violation or failure to comply; and   The character and degree of intent with which the conduct of the person incurring the civil penalty was carried out.         Once the hearing officer issues an initial decision, that decision may be appealed by any party to the Commissioner for final agency review. The party requesting final agency review shall have 30 days from notice of the initial decision to file an application for final agency review. If the initial decision is not appealed within 30 days by any party, it shall be deemed final without need of any further proceedings.   In application, the party requesting final agency review from the Commissioner shall include a short and plain statement of:   The reasons for seeking review; and   Any alleged errors in the initial decision.     The Commissioner may in his or her discretion seek review on his or her own motion pursuant to subsection (a) of Code Section 50-13-17.   Opposing parties may submit statements in response within 20 days of service of an application for final agency review.   A copy of any application for final agency review or in opposition of application for review shall be served on all parties and their counsel as well as the Commissioner.       The standard for final agency review of the initial decision shall be de novo review.   The Commissioner may only review the record considered by the hearing officer in the initial decision hearing. The Commissioner shall not rely on investigative files.   The Commissioner shall possess all the powers that the hearing officer had during the initial decision hearing.   There shall be a presumption of correctness for the hearing officer's credibility determination of witnesses appearing before the hearing officer.   The Commissioner shall not base his or her decision on conjecture, speculation, or impermissible inferences.       The hearing officer shall forward to the Commissioner prior to review:   A copy of the record of the case including the initial decision;   All pleadings;   Transcripts of the hearing; and   All exhibits.     During the final agency review, the Commissioner may hear or take testimony from any party, including the registrant, licensee, permittee, applicant, equine owner, livestock owner, dog or cat owner, exotic and pet bird owner, or farmer of crops or livestock, chickens, or other animals based on such authority as existed during the initial decision hearing.   A party may file a motion not less than 14 days prior to the date of the final agency review to introduce evidence not submitted at the initial decision hearing. Additional evidence may be admitted only if it is material and if good cause exists for not presenting the evidence at the initial decision hearing. Opposing parties may submit responding motions in support of suppression of additional evidence seven days prior to the final agency review. Copies of all motions shall be served on the other party and its counsel as well as the Commissioner.       The final decision shall be in writing, and if an initial decision is modified, the Commissioner shall give his or her reasons therefor in the form of findings of fact and conclusions of law, separately stated, along with the effective date of the final decision. If the Commissioner does not issue a final decision within 30 days, the initial decision shall be deemed final without need of further proceedings. Further, once the initial decision is final, a party's right to judicial review shall be extinguished.   The Commissioner's final decision shall be rendered not later than 30 days from the date of the filing of an application for final agency review unless such period is extended pursuant to paragraph (4) of this subsection.   The Commissioner may modify sanctions after review of an initial decision on appeal, stating the sanctions in the final decision. The Commissioner shall not have to make separate findings of fact to justify modified sanctions.   The period of decision may be extended due to complexity of issues or volume of record materials. All parties involved shall be notified of any extension. A decision shall be rendered as soon as practicable.   The Commissioner shall serve on the:   Opposing party;   Opposing party's counsel;   Agency counsel; and   Original hearing officer  any resulting decision or notify the above parties if there is no change to the initial decision along with a statement of rights on appeal to the opposing party and counsel within 30 days of any such decision.          A party, or the Commissioner on his or her own motion, may seek reconsideration by the Commissioner of a final agency decision.   A party's written request for reconsideration must be submitted to the Commissioner within ten days of service of the final decision. The request shall include a short and plain statement of:   All matters alleged to have been erroneously decided; and   Any newly discovered factual matters and the reasons why any matters were not raised previously.     Opposing parties may submit statements in response within 20 days of service of the request of the consideration.   All requests for reconsideration and statements in opposition shall be served on all parties and the Commissioner.   If the final agency decision is modified, the Commissioner shall give his or her reasons therefor in the form of findings of fact and conclusions of law along with the effective date of the decision.   The Commissioner's reconsideration decision shall be rendered within 30 days following the latest filing deadline.     Judicial review of the Commissioner's final decision may be had in accordance with Code Section 50-13-19.     Any order issued by the Commissioner under the laws of this state to be enforced by the Department of Agriculture pursuant to a final decision, either unappealed from as provided by law or affirmed or modified on any review or appeal, and from which no further review is taken or allowed, may be filed, by certified copy of the order or final decision from the department, in the superior court of the county wherein the person under order resides, or if such person is a corporation in the county wherein the corporation maintains its principal place of business, or in the county wherein the violation occurred or in which jurisdiction is appropriate; whereupon such superior court shall render judgment in accordance therewith and notify the parties. Such judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same, as though such judgment had been rendered in an action duly heard and determined by such court.   The Commissioner may commence an action in any superior court of proper venue to enforce any order issued by him or her and made an order of the superior court pursuant to this Code section.       If a judicial review of the Commissioner's final decision is sought in accordance with Code Section 50-13-19, and the matter involves the impoundment of equines under Chapter 13 of Title 4, the "Georgia Humane Care for Equines Act," the Commissioner shall, along with his or her answer to the petition, include a statement of the costs incurred in the impoundment and care of the impounded animal or animals and an estimate of the future costs expected to be incurred in the care of the impounded animal or animals. The judge of the superior court may then require the petitioner to submit a surety bond to the court in an amount necessary to provide for the reasonable costs of care for the impounded animal or animals. In lieu of a surety bond, the court may accept a cash bond or property bond, which shall in all respects be subject to the same claims and actions as would exist against a surety bond.   Upon the entering of a final adverse decision against an aggrieved party by the superior court, the Commissioner shall within 15 days deliver to the court and to the aggrieved party a statement of the costs incurred in the impoundment and care of the impounded animal or animals. The aggrieved party shall then render payment of such costs to the Commissioner within 15 days after the service of the statement of the costs. If the aggrieved party fails to render payment to the Commissioner within the time period required in this paragraph, the Commissioner may commence and maintain an action against the principal and surety on the bond of the aggrieved party as in any civil action.       (Code 1981, §2-2-9.1, enacted by Ga. L. 2004, p. 598, § 1; Ga. L. 2009, p. 446, § 1/SB 152; Ga. L. 2012, p. 698, § 1/HB 746; Ga. L. 2012, p. 1116, § 1/SB 367.)   Code Commission notes.   - Pursuant to Code Section § 28-9-5, in 2004, "section" was substituted for "Section" in subsection (a), punctuation was revised in subsections (b) and (d), and "for" was inserted after "statute" in subsection (e).   Editor's notes.   - Ga. L. 2009, p. 446, § 7/SB 152, not codified by the General Assembly, provided that the amendment to this Code section shall apply to violations occurring on or after May 1, 2009.   Law reviews.   - For annual survey on administrative law, see 64 Mercer L. Rev. 39 (2012).   JUDICIAL DECISIONS   Hearing held not required before impounding horses under the Georgia Humane Care for Equines Act.    - Requiring hearings before impounding horses under the Georgia Humane Care for Equines Act, O.C.G.A. § 4-13-1 et seq., could cause further harm to animals being deprived of adequate food and water, thus, there was no due process violation and defendant agency officials had qualified immunity on the plaintiff animal owner's claim; the safeguards of O.C.G.A. §§ 4-13-3 and4-13-4, in connection with any seizure, and the procedure for requesting a hearing under O.C.G.A. § 2-2-9.1(d) after any seizure, were adequate. Reams v. Irvin, 561 F.3d 1258 (11th Cir. 2009).    Because the plaintiff equine owner could, pursuant to O.C.G.A. § 2-2-9.1(n), seek judicial review of the defendant Georgia Department of Agriculture Commissioner's final decision as to the seizure of defendant's animals, and O.C.G.A. § 50-13-19(a) and (h), provided a judicial safety valve for review, the owner had no constitutional challenge to the procedural adequacy of the hearing-and-appeal procedure set forth in the Georgia Humane Care for Equines Act, O.C.G.A. § 4-13-1 et seq., and the Commissioner thus had qualified immunity on a due process claim. Reams v. Irvin, 561 F.3d 1258 (11th Cir. 2009).