Georgia Lottery Corporation v. 1100 Shorter Dollar, LLC

• Court: Court of Appeals of Georgia
• Decided: August 22, 2019
• Docket: A19A1298
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, C. J., MCMILLIAN, P. J., and GOSS, J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules

August 22, 2019

In the Court of Appeals of Georgia A19A1298. GEORGIA LOTTERY CORPORATION et al. v. 1100 SHORTER DOLLAR, LLC.

MCFADDEN, Chief Judge.

Georgia Lottery Corporation and its chief executive officer and president

appeal the order granting 1100 Shorter Dollar, LLC’s petition for mandamus and

denying Georgia Lottery Corporation’s motion to dismiss the petition.

Georgia Lottery Corporation Rules provide a mechanism for seeking a stay of

its orders — the relief Shorter Dollar sought in its mandamus petition — but Shorter

Dollar did not pursue that mechanism. We express no opinion about whether that

mechanism is still available to Shorter Dollar. But because it was available at some

time, Shorter Dollar cannot pursue that relief via mandamus. So we reverse. The relevant facts are largely undisputed. Shorter Dollar is a retail business in

Rome, Georgia that operates Class B coin-operated amusement machines (“COAMs”)

pursuant to a licence granted by Georgia Lottery Corporation under the COAM laws.

See OCGA §§ 16-12-35 and 50-27-70 to 50-27-104. See generally Gebrekidan v. City

of Clarkston, 298 Ga. 651, 655-658 (3) (a) (784 SE2d 373) (2016).

Georgia Lottery Corporation issued a citation to Shorter Dollar alleging that

Shorter Dollar violated Georgia Lottery Corporation Rule 13.1.10 (5) and OCGA §

50-27-84 (c) and (e) by failing to provide certain monthly reports. The matter was

referred to a hearing officer, who conducted a hearing on March 21, 2018. Shorter

Dollar failed to appear. The hearing officer found Shorter Dollar guilty of the charge,

imposed a $5,000 fine, and revoked Shorter Dollar’s COAM license, effective

immediately. Instead of filing a motion for reconsideration or seeking further review

from the chief executive officer of Georgia Lottery Corporation as contemplated by

the Georgia Lottery Corporation Rules, Ga. Comp. R. & Regs., r. 560-2-19-.05 (1),

Shorter Dollar filed a petition for certiorari review of the hearing officer’s decision.

When Georgia Lottery Corporation failed to reinstate Shorter Dollar’s license

and reactivate its COAMs, Shorter Dollar filed this petition for a writ of mandamus,

asking the trial court to order Georgia Lottery Corporation to reinstate Shorter

2 Dollar’s license and to reactivate its COAMs. The mandamus petition was transferred

to the same judge presiding over the certiorari petition. Georgia Lottery Corporation

filed a limited appearance answer and moved to dismiss the petition. The superior

court agreed with Shorter Dollar, granted the petition for writ of mandamus, denied

the motion to dismiss, and ordered the chief executive officer of Georgia Lottery

Corporation to allow Shorter Dollar to operate its location license, to reconnect its

COAMs, and to restore Shorter Dollar’s COAM licensing rights pending resolution

of the certiorari action or further order in the mandamus action. This appeal followed.

“The writ of mandamus is properly issued only if (1) no other adequate legal

remedy is available to effectuate the relief sought; and (2) the applicant has a clear

legal right to such relief.” Ga. Assn. of Professional Process Servers v. Jackson, 302

Ga. 309, 312 (2) (806 SE2d 550) (2017) (citation and punctuation omitted). Accord

Gaddy v. Ga. Dept. of Revenue, 301 Ga. 552, 561-562 (3) (802 SE2d 225) (2017)

(“Mandamus is an extraordinary remedy to compel a public officer to perform a

required duty when there is no other adequate legal remedy.”) (punctuation omitted);

OCGA § 9-6-20 (“[T]he writ of mandamus may issue to compel a due performance

if there is no other specific legal remedy for the legal rights . . . .”). Shorter Dollar

“bears the burden to show that it lacks an adequate legal remedy so that an action for

3 mandamus will lie.” Merchant Law Firm v. Emerson, 301 Ga. 609, 611 (1) (800 SE2d

557) (2017).

An “adequate remedy at law” is defined as “[a] legal remedy . . . that provides

sufficient relief to the petitioning party, thus preventing the party from obtaining

equitable relief.” Black’s Law Dictionary (11th ed. 2019). “(W)here a statute provides

a party with a means of review by an administrative agency, such procedure is

generally an adequate remedy at law so as to preclude the grant of equitable relief.”

Ga. Dept. of Human Svcs. v. Addison, 304 Ga. 425, 433 (4) (819 SE2d 20) (2018)

(citation and punctuation omitted). Moreover, “[i]f there be a specific remedy by

certiorari, the right of mandamus will not lie.” DeKalb County v. Wal-Mart Stores,

278 Ga. 501, 502 (604 SE2d 162) (2004) (citation and punctuation omitted).

Shorter Dollar had the opportunity to pursue administrative and certiorari

review. The COAM rules provide an administrative appeal procedure that involves

requesting reconsideration from the hearing officer and then moving for review by

the president and chief executive officer. Ga. Comp. R. & Regs., r. 560-2-19-.05 (1).

The rules provide explicitly that the president and chief executive officer as well as

the hearing officer may stay the execution of the executive order, Ga. Comp. R. &

Regs., r. 560-2-19-.05 (2), the relief Shorter Dollar seeks here, but that “[u]nless the

4 execution of the [o]rder is stayed by the [chief executive officer] or [h]earing

[o]fficer, the execution of the [o]rder is to be effective on the date specified in the

[o]rder or upon service of the [o]rder if no other effective date is so specified.” Ga.

Comp. R. & Regs., r. 560-2-19-.04 (3).1 OCGA § 50-27-76 (a) grants to a person

affected by an action of Georgia Lottery Corporation or its chief executive officer the

right to appeal to the Superior Court of Fulton County. Shorter Dollar cites no

authority prohibiting a certiorari petitioner from seeking the relief it seeks here. Cf.

OCGA § 50-13-19 (d) (1) (expressly providing in proceedings for review under the

Georgia Administrative Procedure Act that the agency and the reviewing court may

stay enforcement of decisions).

Pretermitting whether it still may pursue such relief, Shorter Dollar had the

opportunity to pursue an adequate remedy at law, whether through agency review or

through the certiorari proceedings. DeKalb County, 278 Ga. at 502. Accordingly,

Shorter Dollar could not pursue mandamus relief and the superior court erred by

granting mandamus relief and denying Georgia Lottery’s motion to dismiss. Goldman

v. Johnson, 297 Ga. 115, 116 (772 SE2d 704) (2015) (petitioner could not file

1 Ga. Comp. R. & Regs., r. 560-2-19-.04 (3) speaks of the “commissioner,” but Ga. L. 2013, p. 37 substituted “chief executive officer” for “commissioner.”

5 mandamus petition to remove judge from presiding in another case because petitioner

could have appealed denial of motion to recuse in that case but did not); Titelman v.

Stedman, 277 Ga. 460, 462 (591 SE2d 774) (2003) (entry of written order denying

relief was an appealable judicial act, so mandamus was not available to review it).

Judgment reversed. McMillian, P.J., and Goss, J., concur.