Unified Gov’t v

Ga. PSC, 293 Ga. App. 786, 668 S.E.2d 296 (2008). Superior court failed to address basis for agency’s conclusions. — Judgment reversing a decision of the Georgia Department of Transportation overruling an administrative law judge’s finding that one owner had a valid multiple message permit for ithe owner’s sign and that a second owner’s application for a permit was properly denied was remanded because the superior court ignored the basis for the GDOT’s conclusion and reviewed the ALJ’s decision instead, and the findings and conclusions of the Deputy Commissioner of the GDOT pertaining to governmental restrictions on commercial speech did not properly address and resolve the issues; in its final agency decision, the Deputy Commissioner essentially sidestepped the issues the ALJ addressed and resolved and did not directly address the issue of whether, apply- 63 General Consideration (Cont’d) ing the applicable provisions and regulations, the first owner failed to make the necessary revisions to the owners’ sign, and the GDOT’s conclusion that allowing the first owner to keep the owner’s permit would be unduly restrictive was arbitrary and capricious. Lamar Co., LLC v. Whiteway Neon-Ad, 303 Ga. App. 495, 693 S.E.2d 848 (2010). Administrative Procedures Act, O.C.G.A. § 50-13-1 et seq., clearly contemplated applications to an agency to review initial decisions in contested cases; accordingly, even when an agency referred administrative proceedings to an administrative law judge with the Office of State Administrative Hearings for an initial decision pursuant to O.C.G.A. § 50-13-41, a person aggrieved by the initial decision can make application to the agency under O.C.G.A. § 50-13-17 for review of that initial decision. Alexander v. Dep’t of Revenue, 316 Ga. App. 543, 728 S.E.2d 320 (2012). Revocation of teacher’s certificate. — Superior court exceeded the court’s authority in overturning the Professional Standards Commission’s (PSC) decision to revoke a teacher’s teaching certificate because the PSC’s decision had a rational basis since the record contained evidence of an adverse consequence to a female student as well as evidence about the teacher’s lack of leadership and unprofessional behavior; the PSC specifically adopted an administrative law judge’s findings of fact and conclusions of law based on the full record, and the superior court was bound to uphold the PSC’s judgment because the record contained evidence supporting the sanction. Prof ’l Stds. Comm’n v. Adams, 306 Ga. App. 343, 702 S.E.2d 675 (2010). Irreparable harm to election candidate. — Superior court’s decision that a candidate had not shown irreparable harm justifying immediate appeal to the superior court under O.C.G.A. § 50-13-19(a) from an interim decision of the Georgia Government Transparency and Campaign Finance Commission was a final decision appealable to the Court of Appeals. Oxendine v. Gov’t Transparency 50-13-19 & Campaign Fin. Comm’n, 341 Ga. App. 901, 802 S.E.2d 310 (2017). Service by mail sufficient for placement of name on Child Protective Services Information System. — Trial court erred by dismissing the petition for judicial review of the placement of petitioner’s name on Georgia’s Child Protective Services Information System pursuant to former O.C.G.A. § 49-5-181, for failure to serve the Division of Family and Children Services of the Department of Human Services because personal service, as opposed to service by mail, was not required. Dessalines v. Dep’t of Human Servs., 356 Ga. App. 826, 849 S.E.2d 673 (2020). Cited in Epstein v. Maddox, 277 F. Supp. 613 (N.D. Ga. 1967); Salerno v. Board of Dental Exmrs., 119 Ga. App. 743, 168 S.E.2d 875 (1969); Burson v. Faith, 227 Ga. 526, 181 S.E.2d 827 (1971); Burson v. Webb, 125 Ga. App. 824, 189 S.E.2d 120 (1972); Department of Pub. Safety v. Byars, 127 Ga. App. 190, 192 S.E.2d 926 (1972); Freeman v. Department of Pub. Safety, 127 Ga. App. 773, 195 S.E.2d 203 (1972); Butts v. Department of Pub. Safety, 128 Ga. App. 490, 197 S.E.2d 474 (1973); Howell v. Harden, 129 Ga. App. 200, 198 S.E.2d 890 (1973); Clark v. Georgia Real Estate Comm’n, 129 Ga. App. 741, 200 S.E.2d 926 (1973); Graham v. Board of Exmrs., 133 Ga. App. 430, 211 S.E.2d 385 (1974); Wall v. American Optometric Ass’n, 379 F. Supp. 175 (N.D. Ga. 1974); Gainesville-Hall County Economic Opportunity Org., Inc. v. Blackmon, 233 Ga. 507, 212 S.E.2d 341 (1975); Georgia Power Co. v. Allied Chem. Corp., 233 Ga. 558, 212 S.E.2d 628 (1975); Tellis v. Saucier, 133 Ga. App. 779, 213 S.E.2d 39 (1975); Kirton v. Biggers, 135 Ga. App. 416, 218 S.E.2d 113 (1975); Hinson v. Georgia State Bd. of Dental Exmrs., 135 Ga. App. 488, 218 S.E.2d 162 (1975); Pfeffer v. Department of Pub. Safety, 136 Ga. App. 448, 221 S.E.2d 658 (1975); Turner v. Harden, 136 Ga. App. 842, 222 S.E.2d 621 (1975); Allied Chem. Corp. v. Georgia Power Co., 236 Ga. 548, 224 S.E.2d 396 (1976); Turner Communications Corp. v. Georgia DOT, 139 Ga. App. 436, 228 S.E.2d 399 (1976); Hawthorn Envtl. Preservation Ass’n v. Coleman, 417 64 F. Supp. 1091 (N.D. Ga. 1976); Georgia Real Estate Comm’n v. Horne, 141 Ga. App. 226, 233 S.E.2d 16 (1977); Cofer v. Schultz, 146 Ga. App. 771, 247 S.E.2d 586 (1978); Smith v. State, 147 Ga. App. 549, 249 S.E.2d 353 (1978); Courts v. Economic Opportunity Auth. for Savannah— Chatham County Area, Inc., 451 F. Supp. 587 (S.D. Ga. 1978); General Communications Serv., Inc. v. Georgia Pub. Serv. Comm’n, 149 Ga. App. 466, 254 S.E.2d 710 (1979); Georgia Real Estate Comm’n v. Burnette, 243 Ga. 516, 255 S.E.2d 38 (1979); Georgia Consumer Ctr., Inc. v. Georgia Power Co., 150 Ga. App. 511, 258 S.E.2d 250 (1979); Atlanta Gas Light Co. v. Georgia Pub. Serv. Comm’n, 152 Ga. App. 366, 262 S.E.2d 628 (1979); Georgia State Bd. of Pharmacy v. Purvis, 155 Ga. App. 597, 271 S.E.2d 870 (1980); Bituminous Cas. Corp. v. United Servs. Auto. Ass’n, 158 Ga. App. 739, 282 S.E.2d 198 (1981); Georgia Dep’t of Human Resources v. Montgomery, 248 Ga. 465, 284 S.E.2d 263 (1981); Village Ctrs., Inc. v. DeKalb County, 248 Ga. 177, 281 S.E.2d 522 (1981); Fluker v. Edwards, 161 Ga. App. 418, 288 S.E.2d 684 (1982); Geron v. Calibre Cos., 250 Ga. 213, 296 S.E.2d 602 (1982); Hicks v. Georgia State Bd. of Pharmacy, 553 F. Supp. 314 (N.D. Ga. 1982); DOT v. Gibson, 251 Ga. 66, 303 S.E.2d 19 (1983); Loyd v. Georgia State Health Planning & Dev. Agency, 168 Ga. App. 850, 310 S.E.2d 738 (1983); North Fulton Community Hosp. v. State Health Planning & Dev. Agency, 168 Ga. App. 801, 310 S.E.2d 764 (1983); DOT v. Sapp Outdoor Adv. Co., 171 Ga. App. 228, 319 S.E.2d 87 (1984); Kariuki v. DeKalb County, 253 Ga. 713, 324 S.E.2d 450 (1985); Johnson v. Ellis, 174 Ga. App. 861, 331 S.E.2d 884 (1985); Swafford v. Tanner, 180 Ga. App. 468, 349 S.E.2d 498 (1986); Ledbetter v. Foster, 180 Ga. App. 696, 350 S.E.2d 31 (1986); Coin Call, Inc. v. Southern Bell Tel. & Tel. Co., 636 F. Supp. 608 (N.D. Ga. 1986); Carnes v. Charlock Invs. (USA), Inc., 258 Ga. 771, 373 S.E.2d 742 (1988); Georgia Dep’t of Natural Resources v. Union Timber Corp., 258 Ga. 873, 375 S.E.2d 856 (1989); Earp v. Harris, 191 Ga. App. 414, 382 S.E.2d 156 (1989); Wills v. Composite State Bd. of Medical Exmrs., 259 Ga. 549, 384 S.E.2d 636 (1989); First Union Nat’l Bank v. 50-13-19 Independent Ins. Agents of Ga., Inc., 197 Ga. App. 227, 398 S.E.2d 254 (1990); Board of Regents v. Cohen, 197 Ga. App. 463, 398 S.E.2d 758 (1990); Colquitt Elec. Membership Corp. v. City of Moultrie, 197 Ga. App. 794, 399 S.E.2d 497 (1990); Board of Natural Resources v. Walker County, 200 Ga. App. 301, 407 S.E.2d 436 (1991); Department of Medical Assistance v. Presbyterian Home, Inc., 200 Ga. App. 885, 409 S.E.2d 881 (1991); Nix v. Long Mtn. Resources, Inc., 262 Ga. 506, 422 S.E.2d 195 (1992); Ledbetter v. McDougald, 209 Ga. App. 907, 434 S.E.2d 763 (1993); Atlanta Gas Light Co. v. Georgia Pub. Serv. Comm’n, 212 Ga. App. 575, 442 S.E.2d 860 (1994); Johnsen v. Collins, 875 F. Supp. 1571 (S.D. Ga. 1994); Georgia Real Estate Comm’n v. Peavy, 229 Ga. App. 201, 493 S.E.2d 602 (1997); Georgia Pub. Serv. Comm’n v. Alltel Ga. Communications Corp., 230 Ga. App. 563, 497 S.E.2d 50 (1998); Reheis v. AZS Corp., 232 Ga. App. 852, 503 S.E.2d 36 (1998); Miles v. Smith, 239 Ga. App. 641, 521 S.E.2d 687 (1999); Georgia PSC v. ALLTEL Ga. Communs. Corp., 244 Ga. App. 645, 536 S.E.2d 542 (2000); Ga. Bd. of Natural Res. v. Ga. Emission Testing Co., 249 Ga. App. 817, 548 S.E.2d 141 (2001); Ga. Dep’t of Cmty. Health, Div. of Health Planning v. Gwinnett Hosp. Sys., 262 Ga. App. 879, 586 S.E.2d 762 (2003); Couch v. Parker, 280 Ga. 580, 630 S.E.2d 364 (2006); Prof ’l Stds. Comm’n v. Peterson, 284 Ga. App. 424, 643 S.E.2d 899 (2007); Carolina Tobacco Co. v. Baker, 295 Ga. App. 115, 670 S.E.2d 811 (2008); Scarborough v. Hunter, 293 Ga. 431, 746 S.E.2d 119 (2013); Barnett v. Ga. Dep’t of Labor, 323 Ga. App. 882, 748 S.E.2d 688 (2013); DeKalb County Sch. Dist. v. Ga. State Bd. of Educ., 294 Ga. 349, 751 S.E.2d 827 (2013); Pandora Franchising, LLC v. Kingdom Retail Group, LLLP, 299 Ga. 723, 791 S.E.2d 786 (2016); Lathrop v. Deal, 301 Ga. 408, 801 S.E.2d 867 (2017); C&M Enters. of Ga., LLC v. Williams, 346 Ga. App. 79, 816 S.E.2d 44 (2018); Crittenden v. White, 346 Ga. App. 179, 816 S.E.2d 308 (2018); Ga. Lottery Corp. v. Tabletop Media, LLC, 346 Ga. App. 498, 816 S.E.2d 438 (2018); Ga. Dep’t of Human Servs. v. Addison, 304 Ga. 425, 819 S.E.2d 20 (2018); Central Ga. Elec. Mbrshp. Corp. v. 65 General Consideration (Cont’d) Ga. Pub. Serv. Comm’n, 351 Ga. App. 69, 830 S.E.2d 459 (2019); Dep’t of Cmty. Health v. Emory Univ., 351 Ga. App. 257, 830 S.E.2d 628 (2019); Schuman v. Dep’t of Human Servs., 354 Ga. App. 509, 841 S.E.2d 218 (2020). Prerequisites to Judicial Review ‘‘Aggrieved,’’ as used in O.C.G.A. § 50-13-19(a), has been interpreted to mean that the person seeking to appeal must show that the person has an interest in the agency decision that has been specially and adversely affected thereby. Georgia Power Co. v. Campaign for a Prosperous Ga., 255 Ga. 253, 336 S.E.2d 790 (1985); Thebaut v. Georgia Bd. of Dentistry, 235 Ga. App. 194, 509 S.E.2d 125 (1998). Provision for immediate review under O.C.G.A. § 50-13-19(a) is not applicable simply because an administrative ruling risks duplication of effort or expense; instead, there must be some suggestion that the administrative ruling, if incorrect, could not be remedied so as to cause irreparable harm. Schlachter v. Georgia State Bd. of Exmrs. of Psychologists, 215 Ga. App. 171, 450 S.E.2d 242 (1994). Irreparable harm justifying immediate review not shown. — Candidate had not shown irreparable harm justifying immediate appeal to the superior court under O.C.G.A. § 50-13-19(a) from an interim decision of the Georgia Government Transparency and Campaign Finance Commission because judicial review would be available after the final decision; that the charges had been pending over eight years and alleged damage to the candidate’s reputation was not irreparable harm. Oxendine v. Gov’t Transparency & Campaign Fin. Comm’n, 341 Ga. App. 901, 802 S.E.2d 310 (2017). Untimely appeal. — Because challengers who opposed a decision of the Coastal Marshlands Protection Committee granting a permit to a developer failed to comply with O.C.G.A. § 50-13-19(b), the trial court lacked jurisdiction to consider the challengers’ untimely petition; nevertheless, because the committee and 50-13-19 the developer filed timely petitions for review in the trial court, and then appealed to the court of appeals, the challengers’ appeals were properly before the court of appeals as cross-appeals filed pursuant to O.C.G.A. § 5-6-38(a). Coastal Marshlands Prot. Comm. v. Ctr. for a Sustainable Coast, 286 Ga. App. 518, 649 S.E.2d 619 (2007), aff ’d, 284 Ga. 736, 670 S.E.2d 429 (2008). Statute of limitations of subsection (b). — Applicable 30-day statute of limitations of the Georgia Administrative Procedures Act, O.C.G.A. § 50-13-19(b), applied to defeat a suit contesting an administrative order that plaintiff State Department of Education reimburse parents of a disabled child for the child’s placement under 20 U.S.C. § 1415(j), the ‘‘stay-put’’ provision of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. Ga. State Dep’t of Educ. v. Cherry, 314 F.3d 545 (11th Cir. 2002). Compliance with O.C.G.A. § 50-13-19( f ) required. — Superior court erred in reversing the suspension and reinstating a driver’s license based on grounds and proffered evidence that the driver had not urged in the driver’s original petition for judicial review and that were not covered by amendment to the original petition or prior application to the court to present additional evidence. Department of Pub. Safety v. Bell, 215 Ga. App. 301, 450 S.E.2d 320 (1994). Determination of timeliness. — Georgia Civil Practice Act’s three-day rule under O.C.G.A. § 9-11-6(e) was inapplicable to a determination of timeliness with respect to a petition for judicial review of a Medicaid applicant’s claim for benefits, pursuant to O.C.G.A. § 50-13-19; similarly, the certified mail rule under O.C.G.A. § 50-13-23 was expressly deemed inapplicable pursuant to O.C.G.A. § 49-4-153(c) and, accordingly, the applicant’s petition was properly denied as untimely. Gladowski v. Dep’t of Family & Children Servs., 281 Ga. App. 299, 635 S.E.2d 886 (2006). Exhaustion of administrative remedies required in Medicaid reimbursement disputes. — In an action involving a dispute over Medicaid reimbursement rates, the plaintiffs were not excused from 66 the exhaustion of administrative remedies requirement because the plaintiffs were required to raise the plaintiffs’ defective notice claims in the administrative review process in the first instance and O.C.G.A. § 49-4-153 governed that administrative review process. Ga. Dep’t of Behavioral Health & Developmental Disabilities v. United Cerebral Palsy of Ga., Inc., 298 Ga. 779, 784 S.E.2d 781 (2016). Matter held to be ‘‘contested case.’’ — Matter before the state revenue commissioner (the proposed termination by a liquor producer of four of its designated wholesalers) was a ‘‘contested case’’ within the meaning of the Administrative Procedure Act (APA), not involving the suspension or cancellation of licenses, and the trial court was thus correct in treating the review of the commissioner’s order denying the proposal as a petition for judicial review pursuant to the APA; and, there having been no application to appeal the decision of the superior court affirming the commissioner’s order, as required by O.C.G.A. § 5-6-35, the motion to dismiss the appeal was granted. Schieffelin & Co. v. Strickland, 253 Ga. 385, 320 S.E.2d 358 (1984). Matter was not a ‘‘contested case.’’ — Trial court did not err in dismissing a retailer’s petition for judicial review of the orders entered on an investigatory docket proceeding by the Georgia Public Service Commission, as it was not a contested case permitting review under O.C.G.A. § 50-13-19(a); further, this disposition did not prevent the retailer in pursuing a remedy in its rate case against the Georgia Power Company. Federated Dep’t Stores, Inc. v. Ga. PSC, 278 Ga. App. 239, 628 S.E.2d 658 (2006). Judicial review available after contested case proceedings. — Although the Georgia Board of Dentistry conducted an adjudicatory hearing, made findings of fact justifying discipline, and issued a letter of concern, the fact that the board could have issued a letter of concern without such procedures did not preclude judicial review since the sanction was issued as the result of contested case proceedings. Thebaut v. Georgia Bd. of Dentistry, 235 Ga. App. 194, 509 S.E.2d 125 (1998). Party aggrieved by professional sanction. — Dentist was ‘‘aggrieved’’ by 50-13-19 the Board of Dentistry’s action in issuing a letter of concern and was therefore entitled to judicial review, in spite of the non-public nature of the letter, since the dentist had a professional interest in the board’s decision that criticized the dentist’s actions. Thebaut v. Georgia Bd. of Dentistry, 235 Ga. App. 194, 509 S.E.2d 125 (1998). Aggrievement not shown. — Physicians and a sociologist had not shown aggrievement and thus lacked standing to seek judicial review of a decision of the Georgia Composite State Board of Medical Examiners (now Georgia Composite Medical Board) in which the board refused to open a disciplinary investigation against physicians who had participated in executions; they had not shown how the board’s refusal to act adversely affected their practice of medicine or threatened them with an economic injury, and they had not shown how any injuries were special to them, rather than common to all those physicians practicing medicine in Georgia. Zitrin v. Ga. Composite State Bd. of Med. Examiners, 288 Ga. App. 295, 653 S.E.2d 758 (2007), cert. denied, No. S08C0500, 2008 Ga. LEXIS 285 (Ga. 2008). First property owner’s petition for judicial review of a decision by the Georgia Public Service Commission not to consider the propriety of the siting of an electrical substation near the first owner’s residential property was denied because the first owner was not aggrieved under O.C.G.A. § 50-13-19(a) as no evidence was presented of any specific damage unique to the first owner’s property. Ga. PSC v. Turnage, 284 Ga. 610, 669 S.E.2d 138 (2008). Superior court must dismiss untimely appeal. — When an appeal of an adverse decision by an administrative agency is filed beyond the time allowed by law, the superior court has no jurisdiction to take any action other than to dismiss the case. Miller v. Georgia Real Estate Comm’n, 136 Ga. App. 718, 222 S.E.2d 183 (1975). Finality of decision is unyielding prerequisite to judicial review. Department of Human Resources v. Williams, 130 Ga. App. 149, 202 S.E.2d 504 (1973). 67 Prerequisites to Judicial Review (Cont’d) Final order required for judicial review. — Trial court erred by affirming a decision of the Georgia Public Service Commission (PSC) in a ratemaking appeal filed by a gas distribution company and by denying the PSC’s motion to dismiss the company’s appeal; the trial court lacked jurisdiction to hear the company’s petition for judicial review since one order appealed from was an interim order, and not a final order, and a voice vote appealed from was not even a decision subject to review. Atmos Energy Corp. v. Ga. PSC, 290 Ga. App. 243, 659 S.E.2d 385 (2008). Because the order of the Georgia Public Service Commission (PSC) regarding a construction monitoring report was the result of a semi-annual review process, the order stated that jurisdiction over the matters was expressly retained for the purpose of entering such further order or orders as the PSC might deem just and proper, and the order explained that all PSC decisions regarding cost recovery would be made after a prudence review at the end of construction, the order was not a final decision by the PSC, and the superior court properly held that the court lacked jurisdiction to review the order under the portion of O.C.G.A. § 50-13-19 providing for judicial review of a final decision. Ga. Interfaith Power & Light, Inc. v. Georgia Power Co., 352 Ga. App. 670, 835 S.E.2d 656 (2019). Agency review of constitutional attacks. — Fact that one basis, or even the sole basis, of a respondent’s complaint as to the hearing officer’s initial decision is a constitutional attack does not eliminate the necessity for agency review as a prerequisite to judicial review. Department of Pub. Safety v. Foreman, 130 Ga. App. 71, 202 S.E.2d 196 (1973); Georgia Bd. of Dentistry v. Pence, 223 Ga. App. 603, 478 S.E.2d 437 (1996). Constitutional attack on notice of appeal provision must first be made before agency, and then before the superior court. Sparks v. Caldwell, 244 Ga. 530, 261 S.E.2d 590 (1979). Exhaustion of remedies necessary for judicial review. — No provision per- 50-13-19 mits an aggrieved party to ignore prerequisite of agency review of an initial decision before petitioning the courts for relief. Department of Pub. Safety v. MacLafferty, 230 Ga. 22, 195 S.E.2d 748 (1973). Exhaustion of all administrative remedies available within the Department of Public Safety is necessary for judicial review of a final decision in a contested case. Department of Pub. Safety v. Foreman, 130 Ga. App. 71, 202 S.E.2d 196 (1973). Agency review is a necessary step in exhaustion of administrative remedies as a prerequisite to judicial review. Department of Pub. Safety v. Foreman, 130 Ga. App. 71, 202 S.E.2d 196 (1973). Exhaustion of administrative remedies available within the agency is necessary for judicial review of a final decision in a contested case, and an aggrieved person who fails to seek review by the agency of an initial decision of a hearing officer fails to exhaust administrative remedies. Carnes v. Crawford, 246 Ga. 677, 272 S.E.2d 690 (1980). Trial court properly denied the defendant’s amended motion for a new trial holding that the administration of breath tests pursuant to Ga. Comp. R. & Regs. 92-3-.06(12)(b) did not violate the due process clause under both U.S. Const., amend. 5 or Ga. Const. 1983, Art. I, Sec. I, Para. I, given that: (1) the claim was raised for the first time in the new trial motion, and was thus untimely; (2) the defendant had an alternative remedy under the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-1 et seq., by filing an action for a declaratory judgment; (3) the defendant failed to show that the Division of Forensic Sciences (DFS) eliminated meaningful procedures for conducting breath tests when it promulgated the rule; and (4) the techniques and methods approved by DFS were sufficient to ensure fair and accurate testing. Palmaka v. State, 280 Ga. App. 761, 634 S.E.2d 883 (2006). That the Administrative Procedure Act, O.C.G.A. § 50-13-19(a), refers to a ‘‘person’’ does not negate the Act’s requirement that all administrative remedies be exhausted; in order to exhaust administrative remedies before the Georgia Public 68 Service Commission, a person must file a timely application for leave to intervene and participate in the certification proceedings. Fulton County Taxpayers Found., Inc. v. Ga. PSC, 287 Ga. 876, 700 S.E.2d 554 (2010). Court of appeals erred in ruling that a society of surgery centers did not have to exhaust administrative remedies under the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-19(a), in the society’s action seeking to prevent the Georgia Department of Community Health and the Department’s Commissioner from requiring the society’s members to respond to certain disputed requests in an annual survey because the futility exception to the exhaustion requirement was inapplicable; the Commissioner’s position in the lawsuit did not establish futility because actions taken to defend a lawsuit could not establish futility. Ga. Dep’t of Cmty. Health v. Ga. Soc’y of Ambulatory Surgery Ctrs., 290 Ga. 628, 724 S.E.2d 386 (2012). Court of Appeals erred in ruling that a society of surgery centers did not have to exhaust administrative remedies under the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-19(a), in the society’s action seeking to prevent the Georgia Department of Community Health (DCH) and the Department’s Commissioner from requiring the society’s members to respond to certain disputed requests in an annual survey because the ‘‘acting outside statutory authority’’ exception to the exhaustion requirement did not apply; the society did not allege that DCH was acting wholly outside DCH’s jurisdiction under O.C.G.A. § 31-6-70 to conduct surveys, but instead, the society claimed that the manner in which the survey was being conducted did not fully comply with the procedural requirements of the statute. Ga. Dep’t of Cmty. Health v. Ga. Soc’y of Ambulatory Surgery Ctrs., 290 Ga. 628, 724 S.E.2d 386 (2012). Superior court did not err in dismissing a taxpayer’s petition for judicial review of a decision of the Department of Revenue because the taxpayer failed to exhaust the administrative remedies available; the taxpayer never asked the commissioner of revenue to review the department’s initial decision. Alexander v. Dep’t of Revenue, 316 Ga. App. 543, 728 S.E.2d 320 (2012). 50-13-19 Because the Georgia Society of Ambulatory Surgical Centers represented the interests of members that had adequate administrative remedies, and those members had not exhausted those remedies, the trial court was required to dismiss its case alleging that an annual survey the Georgia Department of Community Health (DCH) issued to ambulatory surgery centers (ACS) sought information beyond the scope of O.C.G.A. § 31-6-70. Furthermore, because the procedures set forth in the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-19 and O.C.G.A. §§ 31-6-40(c), and 31-6-47(a)(18), and Ga. Comp. R. & Regs. 111-2-2-.05(2)(e) were available to ASCs before DCH took any final adverse action against them for failing to provide the required survey information, the procedures afforded adequate administrative remedies to aggrieved ACSs. Ga. Soc’y of Ambulatory Surgery Ctrs. v. Ga. Dep’t of Cmty. Health, 316 Ga. App. 433, 729 S.E.2d 565 (2012). Trial court properly upheld an agency decision that a power company had the right to continue service to an apartment complex under the grandfather clause to the Georgia Territorial Electric Service Act, O.C.G.A. § 46-3-8(b), after individual meters were installed to replace one master meter because none of the exceptions to the grandfather clause existed and the challenging electric corporation failed to raise its challenge to the application of the grandfather clause before the agency. Excelsior Elec. Mbrshp. Corp. v. Ga. PSC, 322 Ga. App. 687, 745 S.E.2d 870 (2013). Exhaustion of administrative remedies not necessary in certain circumstances. — Mere existence of an unexhausted administrative remedy does not, standing alone, afford a defendant an absolute defense to a legal action. AT&T Wireless PCS, Inc. v. Leafmore Forest Condominium Ass’n of Owners, 235 Ga. App. 319, 509 S.E.2d 374 (1998). Because the plaintiffs’ challenge was to the authority of the Coastal Marshlands Protection Committee to issue a water bottom lease, plaintiffs were not required to exhaust administrative remedies under O.C.G.A. § 50-13-19 before filing a declaratory judgment action. DBL, Inc. v. Car- 69 Prerequisites to Judicial Review (Cont’d) son, 284 Ga. App. 898, 645 S.E.2d 56, cert. denied, No. S07C1191, 2007 Ga. LEXIS 566 (2007). Agency’s rules precluding hearing. — Public assistance recipients’ claim against the commissioner of the Department of Human Resources for automatic grant adjustments was not barred by the recipients’ failure to exhaust administrative remedies since the department’s rules precluded a hearing in cases of requests for automatic grant adjustments. Wilson v. Ledbetter, 260 Ga. 180, 390 S.E.2d 846 (1990). Exhaustion of remedies as prerequisite for standing. — Aggrieved party has no standing to complain of a hearing officer’s initial decision if the hearing officer does not exhaust administrative remedies by applying to the agency for review of the hearing officer’s decision. Department of Pub. Safety v. MacLafferty, 230 Ga. 22, 195 S.E.2d 748 (1973). Brief not required. — Although petitioners for judicial review of an administrative decision have the right to file briefs if the petitioners wish to do so under O.C.G.A. § 50-13-19(g), briefs are not required for superior court review of such decisions as a general matter. Board of Regents of the Univ. Sys. of Ga./Albany State College v. Moore, 210 Ga. App. 623, 436 S.E.2d 789 (1993). Standing established by requiring review of ‘‘contested case.’’ — ‘‘Standing to challenge’’ the administrative decision is what is intended to be established by the requirement in Ga. L. 1978, p. 1362, § 1 (see O.C.G.A. § 50-13-19) that the judicial review be of a ‘‘contested case’’; and that is what is meant to be described by the language at Ga. L. 1975, p. 404, § 3 (see O.C.G.A. § 50-13-2). National Council on Comp. Ins. v. Caldwell, 154 Ga. App. 528, 268 S.E.2d 793 (1980). Lack of standing to seek judicial review. — Trial court properly concluded that the taxpayers lacked standing to seek judicial review of the Georgia Public Service Commission’s (PSC) certification order because the taxpayers did not file a timely application to intervene in the cer- 50-13-19 tification proceedings and, thus, did not satisfy the first requirement of the Administrative Procedure Act, O.C.G.A. § 50-13-19(a); the taxpayers had an available administrative remedy by applying for intervention status in the proceedings conducted by the PSC on the company’s application for certification within 30 days following the first published notice of the proceeding, O.C.G.A. § 46-2-59(c), but the taxpayers did not seek to intervene until eight months after notice of the proceedings were first published by the PSC. Fulton County Taxpayers Found., Inc. v. Ga. PSC, 287 Ga. 876, 700 S.E.2d 554 (2010). Optional administrative process. — Litigant is not required to exhaust an optional administrative process before seeking redress to the courts. Motor Fin. Co. v. Harris, 150 Ga. App. 762, 258 S.E.2d 628 (1979). Administrative review of conversion plan. — When the plaintiffs sought an interpretation of a plan of conversion which had been reviewed and approved by the Commissioner of Insurance, the parties were required to follow the administrative review process before seeking judicial review. Cerulean Cos. v. Tiller, 271 Ga. 65, 516 S.E.2d 522 (1999). Trial court erred in accepting jurisdiction over a proceeding seeking an interpretation of a plan of conversion because the Commissioner of Insurance had reviewed the plan, approved the plan, and participated in the conversion process after approval, and the parties were required to follow the administrative review process before seeking judicial review. Blue Cross & Blue Shield of Ga., Inc. v. Deal, 244 Ga. App. 700, 536 S.E.2d 590 (2000). Review of decertification. — Because a peace officer’s invocation of a right against self-incrimination could not shield that officer from an inquiry into the effect of that assertion on the officer’s job performance, and because the record supported an administrative decision that the officer’s refusal to cooperate in an investigation provided sufficient grounds for the Georgia Peace Officer Standards and Training Council to enter an order of decertification, the superior court erred in 70 reversing an administrative law judge’s decision upholding the decertification. Ga. Peace Officers Stds. & Training Council v. Anderson, 290 Ga. App. 91, 658 S.E.2d 840 (2008). When risk of criminal prosecution involved. — Dentist’s action for declaratory and injunctive relief, seeking to prevent the board of dentistry from taking action against the dentist based on an opinion of the attorney general to the effect that certain procedures being performed by the dentist were not within the lawful scope of the practice of dentistry, was not barred by a failure to exhaust administrative remedies since the only way for the dentist to challenge the board’s position was to continue performing the procedures, thereby risking criminal prosecution for the felony offense of practicing medicine without a license and/or the initiation of administrative proceedings to revoke a dentist’s license to practice dentistry. Thomas v. Georgia Bd. of Dentistry, 197 Ga. App. 589, 398 S.E.2d 730 (1990). O.C.G.A. § 50-13-19( f ) establishes a two-prong test that must be met before a superior court can grant an application for leave to present additional evidence. The evidence sought to be introduced must be material and good reason for failure to present such evidence at the hearing must be shown. Golden v. Georgia Bureau of Investigation, 198 Ga. App. 115, 400 S.E.2d 668 (1990), cert. denied, 198 Ga. App. 897, 400 S.E.2d 668 (1991). Jurisdiction over unnamed party served with petition. — Trial court erred in dismissing a petition for failure to join a party to an appellate proceeding when such party was served with the petition (though not specifically named therein) and was therefore subject to the appellate court’s jurisdiction. Campaign for a Prosperous Georgia v. Georgia Power Co., 174 Ga. App. 263, 329 S.E.2d 570, aff ’d, 255 Ga. 253, 336 S.E.2d 790 (1985). Remand not needed if appellant abandons request for hearing in trial court. — Although a trial court erred in failing to hear oral argument and receive written briefs as requested by a power company, a remand was unnecessary because the company, by requesting that the 50-13-19 appellate court consider the merits of the company’s appeal of a Public Service Commission ruling, had essentially withdrawn or abandoned the company’s briefing and hearing request. Ga. Power Co. v. Ga. PSC, 296 Ga. App. 556, 675 S.E.2d 294 (2009). Scope of Judicial Review Effect of remand on jurisdiction of reviewing court. — Reviewing superior court does not lose jurisdiction of case on remand to agency but the court retains jurisdiction under subsection ( f ). Howell v. Harden, 231 Ga. 594, 203 S.E.2d 206 (1974). No need to exhaust administrative remedy under O.C.G.A. § 46-2-90. — Trial court erred in concluding that the petitioners failed to exhaust their administrative remedies and by dismissing the petition challenging the calculation of municipal franchise fees because the petitioners were not required to exhaust any administrative remedy before proceeding under O.C.G.A. § 46-2-90 as that statute does not contemplate any administrative proceedings before the Georgia Public Service Commission. Cazier v. Georgia Power Company, 339 Ga. App. 506, 793 S.E.2d 668 (2016), aff ’d, 303 Ga. 820, 815 S.E.2d 922 (2018). Because it was unclear whether the superior court determined that a case in which the Georgia Public Service Commission (PSC) explained in its order that all PSC decisions regarding cost recovery would be made after a prudence review at the end of construction was the type of case where the lack of adequate remedy exception would never be applicable or whether the superior court determined that the appellants had not shown that review of the PSC’s final decision would not provide an adequate remedy, the case was remanded to determine whether the appellants met the appellants’ burden to show that review of the PSC’s final order would not provide the appellants an adequate remedy, thereby authorizing the superior court to review the order under O.C.G.A. § 50-13-19. Ga. Interfaith Power & Light, Inc. v. Georgia Power Co., 352 Ga. App. 670, 835 S.E.2d 656 (2019). 71 Scope of Judicial Review (Cont’d) Appellate court determines error of law by superior court. — Function of an appellate court is to determine whether the judge of the superior court has in the judge’s own final ruling committed an error of law. DeWeese v. Georgia Real Estate Comm’n, 136 Ga. App. 154, 220 S.E.2d 458 (1975). Ripeness for judicial review. — Under O.C.G.A. § 50-13-19(h)(1), another superior court could consider a claim provided that the claim was preserved in the administrative proceedings below; thus, the claim for taking was ripe for judicial review at the time the administrative decision was appealed to the superior court. GSW, Inc. v. Dep’t of Natural Res., 254 Ga. App. 283, 562 S.E.2d 253 (2002). Georgia Department of Community Health (DCH) erred by deeming recovery from a Medicaid claimant’s estate appropriate under O.C.G.A. § 49-4-147.1(a) as the claimant was still alive. But nothing in O.C.G.A. § 50-13-19(h) authorized the trial court to bar DCH from ever pursuing the claimant’s estate to recover Medicaid payments. Ga. Dep’t of Cmty. Health v. Medders, 292 Ga. App. 439, 664 S.E.2d 832 (2008). Challenge to validity of rule limited. — Action for declaratory judgment challenging the validity of an agency rule has no place once judicial review of an administrative decision is sought. State Health Planning Agency v. Coastal Empire Rehabilitation Hosp., 261 Ga. 832, 412 S.E.2d 532 (1992). Interpretation of narrative standard rule as to discharges. — Georgia Department of Natural Resources Environmental Protection Division’s (EPD’s) interpretation of the narrative standard was entitled to deference as it was proper for the EPD to interpret the narrative standard as not intended to convert the designated use of a water body to a more protected use as the plain language of the narrative standard does not specify the degree of interference with legitimate water uses that would constitute a violation of the rule. Altamaha Riverkeeper, Inc. v. Rayonier Performance Fibers, LLC, 346 Ga. App. 269, 816 S.E.2d 125 (2018), cert. 50-13-19 denied, No. S18C1474, 2019 Ga. LEXIS 554 (Ga. 2019). Judicial review contemplated is appellate in nature and is not such a ‘‘pretrial, trial, or post trial procedure’’ as is provided for in Ga. L. 1966, p. 609, § 1 (see O.C.G.A. Ch. 11, T. 9). Howell v. Harden, 231 Ga. 594, 203 S.E.2d 206 (1974). Rehearing and reconsideration distinguished from review. — Rehearing or reconsideration contemplates a second, a de novo, consideration of a cause or a retrial of the issues; while a review involves only the examination of the record by an appellate tribunal and consideration for the purpose of correction. Department of Pub. Safety v. MacLafferty, 230 Ga. 22, 195 S.E.2d 748 (1973). Review limited to record. — Absent an application to the court for leave to present additional evidence, appellate review of administrative decisions is confined to the record. Quarterman v. Edwards, 169 Ga. App. 300, 312 S.E.2d 643 (1983); Department of Pub. Safety v. Ramey, 215 Ga. App. 334, 450 S.E.2d 332 (1994). Trial court did not err in affirming the state community health department’s administrative decision to order the healthcare provider to cease operations until the healthcare provider obtained a certificate of need; with judicial review limited to the record, the healthcare provider did not show that the state community health department committed an error of law in issuing that order. N. Atlanta Scan Assocs. v. Dep’t of Cmty. Health, 277 Ga. App. 583, 627 S.E.2d 67 (2006). By the statute’s express provisions, an appeal from the denial of a request to expunge a criminal record under O.C.G.A. § 35-3-37(d)(6) is as provided in O.C.G.A. § 50-13-19. In such case, the review shall be conducted by the court without a jury and shall be confined to the record; the court, upon request, shall hear oral argument and receive written briefs. Grimes v. Catoosa County Sheriff ’s Office, 307 Ga. App. 481, 705 S.E.2d 670 (2010). Appellate issue was limited to the propriety of the judgment. — Because a city could have challenged an agency consent order under O.C.G.A. §§ 12-2-2(c) 72 and 50-13-19, but did not, the city’s appeal of a judgment to enforce the consent order did not fall under O.C.G.A. § 5-6-35(a)(1), but arose from proceedings under O.C.G.A. § 12-5-189; since the city did not appeal the director’s decision, the appellate issue was limited to the propriety of the judgment and not the correctness of the decision. City of Rincon v. Couch, 272 Ga. App. 411, 612 S.E.2d 596 (2005). Clearly erroneous standard of review to be applied by the superior court prevents a de novo determination of evidentiary questions leaving only a determination of whether the facts found by the administrative law judge were supported by any evidence. Commissioner of Ins. v. Stryker, 218 Ga. App. 716, 463 S.E.2d 163 (1995). Standard of review. — Superior court erroneously conducted a de novo review of an ALJ’s findings affirming a decision to suspend a driver’s license, when, after being advised of the implied consent rights and of the consequences of refusing to submit to a state-administered breath test, the driver refused the test; as the correct standard of review was the ‘‘any evidence’’ test, because the hearing before the ALJ was conducted pursuant to O.C.G.A. § 40-5-67.1, the appeal in the superior court was expressly excepted from O.C.G.A. § 40-5-66(a), and had to be conducted pursuant to § 40-5-67.1(h); moreover, the administered breath tests were not invalid merely because the officer gave the tests ten minutes apart, and the driver’s failure to give an adequate sample could not be used to suspend the license. Dozier v. Pierce, 279 Ga. App. 464, 631 S.E.2d 379 (2006). Trial court erred by failing to apply the proper standard of review to a decision of the Georgia Department of Community Health that terminated a claimant’s medical assistance under a Medicaid waiver program available to qualifying children. The appellate court directed that the standard of review set forth in O.C.G.A. § 49-4-153(c) was applicable to the case, which called for application of the substantial evidence standard set forth in the Administrative Procedure Act, O.C.G.A. § 50-13-19. Greene v.