Georgia Department of Agriculture v. Brown

607 S.E.2d 259, 270 Ga. App. 646, 2004 Fulton County D. Rep. 3859, 2004 Ga. App. LEXIS 1568
CourtCourt of Appeals of Georgia
DecidedNovember 29, 2004
DocketA04A1426
StatusPublished
Cited by4 cases

This text of 607 S.E.2d 259 (Georgia Department of Agriculture v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Georgia Department of Agriculture v. Brown, 607 S.E.2d 259, 270 Ga. App. 646, 2004 Fulton County D. Rep. 3859, 2004 Ga. App. LEXIS 1568 (Ga. Ct. App. 2004).

Opinion

Barnes, Judge.

The Georgia Department of Agriculture (“GDA”) seeks review of a superior court order reversing the revocation of Tommie Brown’s license to sell produce at the State Farmers’ Market in Columbus. For the reasons that follow, we reverse.

Brown owns a family farm, and he and his family have sold produce at the Columbus Farmers’ Market for approximately 40 years. The market manager began receiving complaints about loud music from vehicles parked at Brown’s stall, about Brown employees videotaping customers at other stalls, and about employees and visitors to Brown’s stall washing their vehicles with common water intended only for washing produce. The market manager forwarded several written complaints to the GDA regarding these acts, and testified that Brown or his employees had obstructed traffic with stacks of firewood, cut wood within the market, and failed to clean up wood debris.

Based on these complaints and under the authority of the Marketing Act, OCGA § 2-10-60 (1), (2), the Commissioner of the GDA (“Commissioner”) entered an administrative order listing the complained-of acts and revoking Brown’s license to sell at the market effective ten days from the order’s receipt, unless he requested a hearing. Brown timely requested a hearing pursuant to OCGA § 2-10-60 (2), which was conducted before an Administrative Law Judge who received evidence and heard testimony from witnesses for both sides. The ALJ found that Brown’s license to use the State Farmers’ Market stated on its face that it was subject to revocation for violation of the Georgia Marketing Act, and its rules and regulations.

The ALJ found as facts that Brown or his agents improperly disposed of trash, disrupted the market by playing very loud music, which continued after requests to lower the volume, continued to cut firewood and obstruct traffic after requests to cease, and harassed customers. The market manager received both verbal and written complaints from customers and other vendors. The ALJ concluded that the Commissioner proved by a preponderance of evidence that Brown had violated the rules and regulations implementing the Marketing Act, and suspended his license to sell at the Columbus Farmers’ Market for six months.

Brown filed an application for a GDAreview of the ALJ’s decision pursuant to OCGA §§ 50-13-17 and 50-13-41. The Commissioner accepted the ALJ’s findings of fact and conclusions of law, but modified Brown’s sanction to revoke his license rather than suspend it. The Commissioner noted that the ALJ found that Brown had [647]*647violated two regulations in addition to the one alleged in the initial administrative order, and had stated no mitigating circumstances that would warrant a lesser sanction.

Brown then appealed to the Superior Court of Schley County, which reversed the Commissioner’s order and reinstated Brown’s license. The court based its ruling on two grounds, that Brown was never notified in writing of the conduct complained of, as required by OCGA § 50-13-18 (c), and that the evidence of violations was insufficient to support the revocation. The court thus concluded that the Commissioner’s order exceeded his statutory authority, that the procedures he used were unlawful, and that his findings and conclusions were clearly erroneous. The court further held that the administrative decision was arbitrary, capricious, and an abuse of discretion.

The GDA appealed, arguing that the superior court erred in construing the notice provisions of the Administrative Procedure Act and the Marketing Act, and in using an improper standard of review. Brown failed to file a responsive brief, despite being ordered by this court to do so.

1. The GDA contends that the trial court erred in finding that the agency violated OCGA §§ 50-13-18 (c) and 50-13-19 (h) because it gave Brown no opportunity to respond to complaints before revoking his license.

The GDA’s authority to revoke Brown’s license is controlled by the Marketing Act, OCGA § 2-10-50 et seq. In revoking Brown’s license, the GDArelied on former OCGA§ 2-10-60 (1), which provided that the Commissioner may issue an order revoking a license upon violation of farmers’ market rules and regulations, that order to be effective “upon a later date without [a] hearing” unless the recipient of the order requests a hearing within ten days of receipt. By contrast, OCGA § 50-13-18 (c) of the APA provides in pertinent part, “No revocation ... of any license is lawful unless, prior to the institution of agency proceedings, the agency has sent notice ... 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.”

The issue is thus whether the GDA’s administrative order is sufficient to demonstrate compliance with OCGA§ 50-13-18 (c). The superior court determined that it was not, because notice and opportunity to be heard were not given “prior to the institution of agency proceedings” as required by OCGA § 50-13-18 (c). The court further determined that the agency exceeded its statutory authority, used unlawful procedures, and was clearly erroneous because the record showed that Brown committed no violations after he received the revocation order.

[648]*648Our case law does not support the superior court’s analysis. In Hinson v. Ga. State Bd. of Dental Examiners, 135 Ga. App. 488 (218 SE2d 162) (1975), we held that the intent of OCGA § 50-13-18 (c)

is to give a licensee a hearing, and an opportunity to be heard where he can demonstrate that at the time of the alleged violation he was in full compliance with the law. Appellant here was afforded a hearing where he endeavored to show that his conduct was lawful. He was entitled no other hearing under the statute.

Id. at 489. Hinson did not interpret OCGA§ 50-13-18 (c) in relation to any specific agency notice and hearing statute, but its explanation that the intent behind OCGA § 50-13-18 (c) is satisfied when a licensee receives a hearing to contest agency action is applicable to this situation. See also, e.g., City Council of St. Marys v. Crump, 251 Ga.

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Bluebook (online)
607 S.E.2d 259, 270 Ga. App. 646, 2004 Fulton County D. Rep. 3859, 2004 Ga. App. LEXIS 1568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/georgia-department-of-agriculture-v-brown-gactapp-2004.