Greene v

Dep’t of Cmty. Health, 293 Ga. App. 201, 666 S.E.2d 590 (2008). 50-13-19 Record contained no showing that the trial court applied an incorrect standard to any legal conclusions made by the Georgia Public Service Commission because both at the hearing and in the court’s order, the trial court correctly framed the issue and explicitly considered the issue at length; because there was no evidence in the record affirmatively showing that the trial court applied the wrong standard of review, the court of appeals would not presume error. MXenergy Inc. v. Ga. PSC, 310 Ga. App. 630, 714 S.E.2d 132 (2011). Order affirming the issuance of National Pollutant Discharge Elimination System permit was vacated and the case remanded with direction to the superior court to in turn remand the case to the administrative law judge (ALJ) for reconsideration because the ALJ applied an erroneous theory of law to the evidence and the evidence had to be considered anew in assessing whether the interference with legitimate water uses was unreasonable, as opposed to whether there was any interference. Altamaha Riverkeeper, Inc. v. Rayonier Performance Fibers, LLC, 346 Ga. App. 269, 816 S.E.2d 125 (2018), cert. denied, No. S18C1474, 2019 Ga. LEXIS 554 (Ga. 2019). Opportunity by agency to rule on objection as prerequisite. — Scope of judicial review is limited to those objections upon which the agency has had an opportunity to rule. Department of Pub. Safety v. Foreman, 130 Ga. App. 71, 202 S.E.2d 196 (1973). Court correctly held that an intervenor’s failure to raise the issue of allegedly improper ex parte communications before the Public Service Commission precluded the court’s consideration of the issue. Georgia Power Co. v. Georgia Pub. Serv. Comm’n, 196 Ga. App. 572, 396 S.E.2d 562 (1990). Consideration of new evidence which goes to merits is not authorized during judicial review of an agency decision. Caldwell v. Corbin, 152 Ga. App. 153, 262 S.E.2d 516 (1979). Service requirements met. — Trial court erred in substituting the court’s judgment for that of the Georgia Department of Motor Vehicle Services and in setting aside a driver’s license suspension 73 Scope of Judicial Review (Cont’d) as an officer complied with O.C.G.A. § 40-5-67.1(f )(1) by handing the driver a copy of the DPS Form 1205 when the driver was arrested. Davis v. Brown, 274 Ga. App. 48, 616 S.E.2d 826 (2005). Civil Practice Act, (see O.C.G.A. Ch. 11, T. 9) is inapplicable to judicial review of administrative agency decisions and motions for judgment on the pleadings and for summary judgment are ‘‘functionless’’ and are not appropriate in the superior court when that court is sitting as an appellate court under authority of the law. Walker v. Harden, 129 Ga. App. 782, 201 S.E.2d 483 (1973). Judicial review provided is not governed by the provisions of the Civil Practice Act (see O.C.G.A. Ch. 11, T. 9). Miller v. Georgia Real Estate Comm’n, 136 Ga. App. 718, 222 S.E.2d 183 (1975). Commissioner’s powers not transferred to courts. — Standards for review set forth in subsection (h) of this section, properly applied, do not transfer to courts powers which under the Constitution belong to the Insurance Commissioner, nor do the standards usurp the commissioner’s function to tell the commissioner how the commissioner should discharge the task and how the commissioner should protect the various interests which are deemed to be in the commissioner’s, not the court’s, keeping. National Council on Comp. Ins. v. Caldwell, 154 Ga. App. 528, 268 S.E.2d 793 (1980). Compliance with O.C.G.A. § 5-6-35(a)(1) required. — In a case involving a white supremacist organization being denied a permit for the Adopt-A-Highway program administered by the Georgia Department of Transportation (Department), the court dismissed the Department’s appeal for lack of jurisdiction because the Department sought review of a decision of a state administrative agency and was required under O.C.G.A. § 5-6-35(a)(1) to bring the Department’s appeal by way of an application for discretionary review, but failed to do so. State of Ga. v. International Keystone Knights of the Ku Klux Klan, Inc., 299 Ga. 392, 788 S.E.2d 455 (2016). Judicial review of air quality permit. — Trial court decision invalidating 50-13-19 an air quality permit issued by the Environmental Protection Division (EPD) of the Georgia Department of Natural Resources to a power company to construct a pulverized coal-fired electric power plant in a particular county contained an erroneous ruling that the permit was invalid because the permit failed to include a limit on the power plant’s carbon dioxide gas (CO2) emissions since no provisions of the Clean Air Act (CAA), 42 U.S.C. § 7401 et seq., or the state implementation plan controlled or limited CO2 emissions. Because CO2 was not a pollutant that ‘‘otherwise is subject to regulation under the CAA,’’ CO2 was not a regulated new source review pollutant in the Prevention of Significant Deterioration (PSD) program and was not required to be controlled by use of best available control technology (BACT), therefore, the trial court erred by ruling that the PSD permit was required to include a BACT emission limit to control the power company’s CO2 emissions. Longleaf Energy Assocs., LLC v. Friends of the Chattahoochee, Inc., 298 Ga. App. 753, 681 S.E.2d 203 (2009), cert. denied, No. S09C1879, 2009 Ga. LEXIS 809 (Ga. 2009). Sufficiency of Evidence Appellate review for sufficiency of evidence. — Paragraphs (h)(1) through (6) of this section clearly authorize appellate review of the sufficiency of the evidence to support the agency’s decision on questions of law. Stevens v. Board of Regents, 129 Ga. App. 347, 199 S.E.2d 620 (1973). Reversal when no evidence to authorize trial court’s findings. — When the trial judge would be authorized to reverse the administrative agency pursuant to paragraph (h)(5) of this section, the appellate court is still bound by the evidence rule and can only reverse when there is no competent evidence to authorize the findings by the trial court. Hicks v. Harden, 133 Ga. App. 789, 213 S.E.2d 49 (1975). ‘‘Any evidence’’ test. — Under paragraph (h)(5) of this section, ‘‘clearly erroneous’’ is the ‘‘any evidence rule,’’ making findings of facts under this section binding on appeal unless wholly unsupported. 74 Georgia Dep’t of Human Resources v. Holland, 133 Ga. App. 616, 211 S.E.2d 635 (1974). ‘‘Clearly erroneous’’ criterion for judicial review is the same as the ‘‘any evidence rule,’’ which has long been binding on the appellate courts. Georgia Real Estate Comm’n v. Hooks, 139 Ga. App. 34, 227 S.E.2d 864 (1976). Paragraph (h)(5) of this section precludes review if ‘‘any evidence’’ on the record substantiates the administrative agency’s findings of fact and conclusions of law. Flowers v. Georgia Real Estate Comm’n, 141 Ga. App. 105, 232 S.E.2d 586 (1977). ‘‘Clearly erroneous’’ criterion of paragraph (h)(5) of this section for judicial review is the same as the ‘‘any evidence rule.’’ DOT v. Rushing, 143 Ga. App. 235, 237 S.E.2d 722 (1977). ‘‘Clearly erroneous’’ language of paragraph (h)(5) of this section is the same as the ‘‘any evidence rule.’’ Hall v. Ault, 143 Ga. App. 158, 237 S.E.2d 653 (1977), aff ’d, 240 Ga. 585, 242 S.E.2d 101 (1978). Rather than applying the ‘‘any evidence’’ standard of review, a trial court improperly made an independent determination that a university registrar’s termination was ‘‘arbitrary and capricious and was not the meaningful hearing that due process requires.’’ Under the ‘‘any evidence’’ standard, the trial court was not allowed to substitute the court’s judgment for that of the administrative law judge. The administrative law judge properly upheld a university registrar’s termination since the evidence showed that the registrar’s office was in chaos; that students, alumni, parents, and faculty complained about the office; that registrar staff employees complained about the registrar; that the registrar did not know how to use the student information management system on the computer; and that the registrar had not done an adequate job of staff development. Bd. of Regents of the Univ. Sys. of Ga. v. Hogan, 298 Ga. App. 454, 680 S.E.2d 518 (2009). ‘‘Any-evidence’’ standard was the appropriate standard of review for the superior court in reviewing the grant of a zoning variance by a county board of commissioners. Emory Univ. v. Levitas, 260 Ga. 894, 401 S.E.2d 691 (1991). 50-13-19 Trial court applied the correct ‘‘any evidence’’ standard of review to the administrative law judge’s findings that the factual evidence of misrepresentation and concealment regarding a solid waste landfill permit application satisfied the clear and convincing evidence standard of O.C.G.A. § 12-8-23.1(a)(3)(B)(ii). Bartram Envtl., Inc. v. Reheis, 235 Ga. App. 204, 509 S.E.2d 114 (1998). Conflicting evidence satisfies any evidence test. — Under O.C.G.A. § 50-13-19(h)(5), the ‘‘any evidence’’ is the applicable touchstone and the presence of conflicting evidence is sufficient to satisfy that test. Bowman v. Palmour, 209 Ga. App. 270, 433 S.E.2d 380 (1993). Presence of conflicting evidence, including dueling experts, is sufficient to satisfy the ‘‘any evidence’’ standard. Sawyer v. Reheis, 213 Ga. App. 727, 445 S.E.2d 837 (1994). Judgment affirming a decision of the Department of Community Health based on the court’s finding that there was evidence to support the judgment was error because, under O.C.G.A. § 50-13-19(h), a reviewing court was authorized to reverse or modify an agency decision if its application of the law to the facts was erroneous; a reviewing court was statutorily required to examine the soundness of the conclusions of law drawn from the findings of fact supported by any evidence. A determination that the findings of fact were supported by evidence did not end judicial review of an administrative decision. Pruitt Corp. v. Ga. Dep’t of Cmty. Health, 284 Ga. 158, 664 S.E.2d 223 (2008). Error of law found. — Georgia Department of Community Health made an error of law under O.C.G.A. § 50-13-19(h)(4) in testing whether a patient’s hyperbaric oxygen therapy treatment was an accepted treatment that was medically necessary; in determining whether the treatment was reimbursable under Medicaid, the proper standard was, under 42 U.S.C. § 1396d(r)(5), whether the treatment was necessary ‘‘to correct or ameliorate a physical or mental defect or condition’’ regardless of whether the treatment was an accepted medical practice. Ga. Dep’t of Cmty. Health v. Freels, 258 Ga. App. 446, 576 S.E.2d 2 (2002). 75 Sufficiency of Evidence (Cont’d) Trial court could have found that the Georgia Department of Motor Vehicle Services acted arbitrarily and capriciously and abused the Department’s discretion in applying the 10-day notice requirement as it could be inferred that the DPS Form 1205 served on a driver was seized by an officer during the driver’s arrest; the driver was entitled to a hearing before an administrative law judge, despite the driver’s failure to request a hearing within the 10-day time period. Davis v. Brown, 274 Ga. App. 48, 616 S.E.2d 826 (2005). Georgia Public Service Commission was authorized to dismiss a natural gas company’s application for certification because creation of a natural gas company as a Limited Liability Company (LLC) wholly owned by the city’s utility board was in derogation of a city charter as the charter required the utility board to create a wholly owned subsidiary in the form of a non-profit corporation rather than a LLC, thus, the city’s creation of a LLC was an ultra vires act. Infinite Energy v. Marietta Natural Gas, 349 Ga. App. 343, 826 S.E.2d 189 (2019). Expert testimony. — Superior court erred in the court’s determination that the Georgia Department of Community Health’s experts were not qualified to testify about the efficacy of hyperbaric oxygen therapy, and in substituting the court’s judgment for that of the department, which was entitled to rely on the department’s experts’ testimony. Ga. Dep’t of Cmty. Health v. Freels, 258 Ga. App. 446, 576 S.E.2d 2 (2002). Suspension of educator certificate justified. — Georgia Professional Standards Commission’s suspension of a school superintendent’s educator certificate for one year for violating Interim Ethics Rules 505-2-.03(1)(n) and (o), Ga. Comp. R. & Regs. r. 505-2-.03(1)(n) and (o), was not clearly erroneous since: (1) the superintendent, believing that the Sheriff ’s Department’s response to an elderly friend’s report of suspicions of criminal activity was too slow, twice confronted a suspect; (2) the superintendent displayed a firearm to the suspect; (3) the superintendent in- 50-13-19 stigated the confrontations on a public highway, on a school day, during school hours; (4) the superintendent was a role model to students; and (5) violence and the use of weapons by students was a significant public policy concern in the Georgia educational system. Prof ’l Stds. Comm’n v. Alberson, 273 Ga. App. 1, 614 S.E.2d 132 (2005). Suspension of student justified. — Trial court’s order requiring a student’s reinstatement as a student and a member of a university’s varsity football team was reversed due to a lack of a justiciable controversy as: (1) Ga. Const. 1983, Art. VIII, Sec. V, Para. II clearly manifested an intent to entrust the schools to supervising authorities rather than the courts; (2) the student admitted that the suspension arose from a telephone call the student made to facilitate a drug sale and it was not clearly erroneous or arbitrary and capricious for lack of evidence; (3) the student suffered no deprivation of constitutional or statutory rights as there was no right to participate in extracurricular sports; and (4) the suspension did not prejudice the student’s substantial rights as the suspension was tailored to permit the student’s eventual re-enrollment to complete the student’s degree requirements, did not render the student ineligible for a scholarship, and was not a deprivation of major proportion warranting judicial intervention. Bd. of Regents of the Univ. Sys. of Ga. v. Houston, 282 Ga. App. 412, 638 S.E.2d 750 (2006). Incomplete record. — Under O.C.G.A. § 50-13-19(e), an administrative agency was responsible for transmitting the entire record of the agency proceeding to the trial court upon a petition seeking review of an agency decision; since an appellate court was unable to locate transcripts from a hearing before an administrative law judge, or a proceeding before the full agency board, the appellate court concluded that the trial court improperly reviewed a psychologist’s petition for review of the board’s decision without the entire record, and the trial court’s judgment affirming the agency decision was vacated and the case was remanded. Farrar v. Ga. Bd. of Examiners of Psychologists, 280 Ga. App. 455, 634 S.E.2d 79 (2006). 76 Application to rate increases. — Since the Public Service Commission granted a rate increase, but disallowed some of the utility company’s costs in calculating the rate base for a fair increase because the commission concluded that some of the costs were the result of the company’s imprudent management of the project, in that some were attributable to avoidable delay and some were caused by poor productivity of the construction work force, the agency’s decision was within the agency’s authority and was supported by the facts. Georgia Power Co. v. Georgia Pub. Serv. Comm’n, 196 Ga. App. 572, 396 S.E.2d 562 (1990). Evidence sustaining denial of application for hospital certificate of need. — Appellate court reinstated the agency denial of a Certificate of Need to establish an inpatient psychiatric hospital because the agency’s conclusion that the applicant did not meet the applicant’s burden of establishing no adverse impact on similar existing programs was supported by substantial evidence, in particular, expert testimony and exhibits re- 50-13-19 garding the applicant’s unrealistic projections, overinflated market share, and failure to account for an existing facility’s additional 30 pediatric beds. Tanner Med. Ctr., Inc. v. Vest Newnan, LLC, 337 Ga. App. 884, 789 S.E.2d 258 (2016). Evidence sufficient. — Electric membership corporation alleged that an electric utility company, a consumer’s designated territorial supplier, falsely told the consumer that the consumer did not qualify as a large load consumer under O.C.G.A. § 46-3-8(a) and thus had to select the utility as the consumer’s provider, and that the consumer’s request-for-services form was void because the form was based on this misrepresentation. As the hearing officer’s findings—that the allegations of misrepresentation were untenable and that the consumer and utility had a binding contract—were supported by the evidence, the findings were upheld. Jackson Elec. Mbrshp. Corp. v. Ga. PSC, 294 Ga. App. 253, 668 S.E.2d 867 (2008), cert. denied, No. S09C0356, 2009 Ga. LEXIS 201 (Ga. 2009).