Georgia State Licensing Board for Residential & General Contractors v. Allen

692 S.E.2d 343, 286 Ga. 811, 2010 Fulton County D. Rep. 1005, 2010 Ga. LEXIS 278
CourtSupreme Court of Georgia
DecidedMarch 25, 2010
DocketS09A1831
StatusPublished
Cited by8 cases

This text of 692 S.E.2d 343 (Georgia State Licensing Board for Residential & General Contractors v. Allen) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Georgia State Licensing Board for Residential & General Contractors v. Allen, 692 S.E.2d 343, 286 Ga. 811, 2010 Fulton County D. Rep. 1005, 2010 Ga. LEXIS 278 (Ga. 2010).

Opinions

HINES, Justice.

This is an appeal by the Georgia State Licensing Board for Residential and General Contractors (“Board”) from two orders of the Superior Court of Muscogee County in this suit by more than 40 contractors, Richard Allen et al. (collectively “plaintiffs”), against [812]*812the Board and the Columbus Muscogee County Consolidated Government (“County”) seeking declaratory judgment, injunctive relief, and damages in regard to a statewide licensing system for residential and general contractors (“licensing law”). See OCGA § 43-41-1 et seq. The first order at issue denied the Board’s “Special Appearance Motion to Dismiss or, in the Alternative, Motion to Transfer Proceedings”; the second challenged order granted the plaintiffs a preliminary injunction regarding the enforcement of the licensing law. For the reasons that follow, we affirm the judgment denying dismissal and a change in venue and reverse the judgment granting a preliminary injunction.

The Board is responsible for licensing and regulating residential and general contractors in Georgia. See OCGA § 43-41-1 et seq. On and after July 1, 2008, a valid residential or general contractor license issued by the Board is required to lawfully engage in the business of residential and general contracting within the state. OCGA §§ 43-41-9 (a),1 43-41-17 (a).2 For an eighteen-month period [813]*813beginning January 1, 2006, it was possible for a contractor to apply for licensure by exemption from examination by filing an application with the Board with the required proof of the basis of the exemption. OCGA § 43-41-17 (a). After July 1, 2007, any applicant seeking licensure from the Board had to pass an examination and meet other qualifications. OCGA §§ 43-41-6 (a);3 43-41-17 (a).

OCGA § 43-41-17 (c)4 provides for an exception to the require[814]*814ment to have state licensure, if the local municipality’s or county’s criteria for local licensure is “at least as strict and stringent, in the sole judgment of the board, as those for the issuance of a corresponding state-wide license.” OCGA § 43-41-17 (c) (2) (A). The County had a local licensing program in place prior to the time the licensing law went into effect.

In the present action, plaintiffs claimed, inter alia, that they had all paid for and received a certificate of qualification from the County entitling them to apply for and obtain building and construction permits from the County “Office of Inspections and Code” for 2008; that such certificate constituted a valuable Fifth Amendment property right; that they all qualified for the examination exemption under the licensing law; that they did not timely apply for the examination exemption because they did not know about the licensing law because of the lack of timely notice by the County as required by OCGA § 43-41-14 (b);5 and that the licensing law violated their rights to due process and equal protection under the State and Federal Constitutions. They petitioned the superior court for a preliminary injunction restraining the Board and the County from enforcing the licensing law pending a final determination in the case; a permanent injunction restraining enforcement of the licensing law until such time as “proper notice” was provided; a judgment [815]*815declaring that portions of the licensing law are void, unconstitutional, and ineffective; an award of damages against the County; and an award of attorney fees and expenses of litigation. At the hearing in the matter, the attorney for the plaintiffs informed the superior court that the only constitutional challenge the plaintiffs were pursuing was a due process argument regarding OCGA § 43-41-14 (b), and that it was the only portion of the licensing law that the plaintiffs sought to have declared unconstitutional. The superior court found, inter alia, that the County was one of the few counties in Georgia with its own residential and general contractor’s examination and certification process; that the Board was unable to determine whether the County’s licensing program was sufficient to meet the standards of OCGA § 43-41-17 (c), until shortly before the licensing law came into effect; that the Board’s decision came after the examination exemption deadline had passed; that even though the General Assembly recognized that “a lot of people had not received notice of the new law,” it either “forgot” or “intentionally omitted” extending the date by which an applicant could file for an examination exemption; that it appeared likely that notice was not given in Muscogee County to individuals holding certificates of qualification and business licenses of the right to apply for an exam exemption before July 2, 2007, as such a notice requirement was not mandated by the then applicable law; and that the immediate and irreparable harm to the plaintiffs outweighed the burden on the Board and the County. The court ordered that the County Office of Code and Enforcement return to the permitting practices in place on June 30, 2007 and continue to do so until further order of the court, and that building permits be issued to those individuals and entities holding certificates of qualification and business licenses in the County for 2007 and who would have otherwise been entitled to such permit on June 30, 2007. The court made no express determination about the constitutionality of any aspect of the licensing law.

1. The Board contends that the superior court erred in holding that venue as to the Board was proper in Muscogee County, the domicile of the County defendant, rather than in Bibb County, the alleged domicile of the Board. It argues that this is so because the suit is an equitable action, and there is not substantial equitable relief common to it and to the County. However, the contention is unavailing.

The plaintiffs maintain that as the Board is a State agency, it may be sued in any Georgia county. See OCGA § 50-13-2;6 Hoffman [816]*816v. Dept. of Corrections, 218 Ga. App. 363 (460 SE2d 882) (1995). But, pretermitting a finding of statewide venue, it is plain that venue of the present suit is proper in Muscogee County. OCGA § 43-1-6

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Cite This Page — Counsel Stack

Bluebook (online)
692 S.E.2d 343, 286 Ga. 811, 2010 Fulton County D. Rep. 1005, 2010 Ga. LEXIS 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/georgia-state-licensing-board-for-residential-general-contractors-v-ga-2010.