Jackson County Board of Health v. Fugett Construction, Inc.

514 S.E.2d 28, 270 Ga. 667, 99 Fulton County D. Rep. 1043, 1999 Ga. LEXIS 304
CourtSupreme Court of Georgia
DecidedMarch 15, 1999
DocketS98A1837
StatusPublished
Cited by3 cases

This text of 514 S.E.2d 28 (Jackson County Board of Health v. Fugett Construction, Inc.) 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
Jackson County Board of Health v. Fugett Construction, Inc., 514 S.E.2d 28, 270 Ga. 667, 99 Fulton County D. Rep. 1043, 1999 Ga. LEXIS 304 (Ga. 1999).

Opinion

Benham, Chief Justice.

EEE ZZZ Lay Drain Company (hereinafter “EZ”) manufactures systems for on-site management of sewage (septic tanks). This case arose when Fugett Construction sought approval from the Jackson County Board of Health (hereinafter “Board”) for the installation of one of EZ’s systems. When the Board would only grant approval if the system were installed with more material than is called for in the manufacturer’s specifications, Fugett Construction and EZ filed an action for mandamus and injunctive relief. EZ contended first that its systems had been approved for state-wide use under the present statutory scheme, established by a 1997 amendment to OCGA § 31-2-7, pursuant to which the Georgia Department of Human Resources grants state-wide approval of on-site sewage management systems. In the alternative, EZ contended that since its systems had earned state-wide approval under the statutory scheme in effect prior to 1997, pursuant to which systems were subject to approval by individual county boards of health, but could achieve state-wide approval when ten county boards of health had approved them, it had a vested right in continuation of that approval. The 1997 amendment to the statute, however, did not include EZ’s systems in the definition of “prior approved systems,” i.e., those which were not subject to the newly instituted procedure for approval of on-site sewage management systems. That exclusion, EZ contends, unconstitutionally deprived it of its vested right to approval.

The trial court ruled that EZ had failed to prove that it had gotten state-wide approval under the current procedures, but found that one of EZ’s four systems had been approved statewide prior to the 1997 amendment. Interpreting the pre-1997 statute as bestowing a vested right to continuing approval once it was achieved, the trial court held that the statute which carried over approval of other systems but not EZ’s was unconstitutional because it was a retroactive statute which deprived EZ of a vested right. The Board appeals the latter ruling in the main appeal, and in the cross-appeal, EZ appeals the trial court’s holding that it had not proved that all of its systems were approved under the current procedure.

1. Under the principle that cases should be decided on constitutional grounds only as a last resort (Grantham v. Grantham, 269 Ga. 413 (2) (499 SE2d 67) (1998)), we turn first to the cross-appeal because a reversal there would obviate the need to consider the constitutional issue. EZ argues that the trial court erred in sustaining a [668]*668best-evidence objection to testimony which EZ asserts would establish that its on-site sewage management systems had been approved under the 1997 statutory scheme. The thrust of EZ’s argument on this issue is that the evidence sought was not the contents of a document, but the fact of approval of the systems. However, where questioning of a witness refers to a document and seeks production of the contents of that document, the best evidence rule is properly invoked. Webster v. Brown, 213 Ga. App. 845 (4) (446 SE2d 522) (1994). In the present case, the questioning of EZ’s witness by EZ’s counsel referred specifically to a document, the “Manual for On-Site Sewage Management Systems,” and sought to establish that EZ’s systems were listed in that document as approved systems. Under those circumstances, we hold that the trial court did not err in sustaining the best-evidence objection. Id.

EZ argues that there was other evidence of approval of its systems pursuant to the amended statutory scheme, and we note that there was, indeed, testimony regarding recommendations of approval. However, there was also testimony that the recommendations had not yet ripened into approval, supporting the trial court’s finding that the systems had not yet been approved. Since the trial court’s findings in that regard are not clearly erroneous, this Court will not disturb them. City of Roswell v. Heavy Machines Co., 256 Ga. 472, 474 (349 SE2d 743) (1986). We conclude that the trial court did not err in holding that EZ had not borne its burden of proving approval of its systems under the amended statute. That portion of the judgment attacked by the cross-appeal is, therefore, affirmed.

2. The trial court held that the 1997 amendment of the statutory scheme for approval of on-site sewage management systems violated the constitutional proscription against retroactive laws because it deprived EZ of a vested right. “An enactment under the police power does not ordinarily violate any constitutional prohibition against retroactive statutes. Nevertheless, our Constitution forbids passage of retroactive laws which injuriously affect the vested rights of citizens. [Cits.]” Recycle & Recover, Inc. v. Ga. Bd. of Natural Resources, 266 Ga. 253 (2) (466 SE2d 197) (1996). The first question to be answered, therefore, is whether EZ has a vested right which the new statutory scheme injuriously affects.

“To be vested, in its accurate legal sense, a right must be complete and consummated, and one of which the person to whom it belongs cannot be divested without his consent. A divestible right is never, in a strict sense, a vested right.” [Cit.] It has also been said that: “the term Vested rights,’ which cannot be interfered with by retrospective laws, means interests which it is proper for the state to recognize [669]*669and protect and of which the individual cannot be deprived arbitrarily without injustice.” [Cits.]

Hayes v. Howell, 251 Ga. 580 (2) (b) (308 SE2d 170) (1983).

EZ bases its claim to a vested right on its contention that statewide approval under the pre-1997 version of OCGA § 31-2-7 was the functional equivalent of a license. It argues that a manufacturer of sewage management systems, having fulfilled all the requirements for state-wide approval of the system, gained the entitlement and right to market and sell its products. That entitlement and right, EZ asserts, cannot be taken from it absent culpable conduct on its part.

If former OCGA § 31-2-7 operated as EZ posits it does, we would be inclined to agree that state-wide approval pursuant to the statute would be in the nature of a license. However, we do not believe EZ is correct in its interpretation of the pre-1997 statutory scheme for the regulation of on-site sewage management systems. The pre-1997 version of OCGA § 31-2-7 (b) provided that a system which had been approved statewide as provided for elsewhere in the statute “shall ... be approved for installation in every county of the state; provided, however, that such on-site, individual sewage management system shall be required to meet local regulations authorized by law.” At that time, OCGA § 31-3-5.1 provided that

each county board of health shall have the power and duty to adopt regulations providing standards and requirements governing the installation of septic tanks or individual sewage management systems within the unincorporated areas of the county. Such regulations shall include, but shall not be limited to,

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Bluebook (online)
514 S.E.2d 28, 270 Ga. 667, 99 Fulton County D. Rep. 1043, 1999 Ga. LEXIS 304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-county-board-of-health-v-fugett-construction-inc-ga-1999.