Amusement Leasing, Inc. v. Ga. Lottery Corp.

• Decision Date: 10 October 2019
• Docket Number: A19A1666
• Citation: 352 Ga.App. 243,834 S.E.2d 330
• Court: Georgia Court of Appeals
• Parties: AMUSEMENT LEASING, INC. v. GEORGIA LOTTERY CORPORATION.

352 Ga.App. 243

834 S.E.2d 330

AMUSEMENT LEASING, INC.

v.GEORGIA LOTTERY CORPORATION.

A19A1666

Court of Appeals of Georgia.

October 10, 2019

The Kennedy Firm, Donald Erik Kennedy, for Appellant.

Christopher M. Carr, Attorney General, W. Wright Banks, Jr., Deputy Attorney General, Julie A. Jacobs, Senior Assistant Attorney General, Brooke E. Heinz, Assistant Attorney General, for appellee.

Barnes, Presiding Judge.

After the Georgia Lottery Corporation ("GLC") revoked Amusement Leasing, Inc.’s coin-operated amusement machine master license, Amusement Leasing filed a petition for judicial review in the superior court. The superior court granted the GLC's motion to dismiss the petition on the ground that Amusement Leasing failed to exhaust its available administrative remedies. Amusement Leasing then filed this direct appeal from the superior court's order, and the GLC filed a motion to dismiss the appeal on the ground that Amusement Leasing was required to file an application for discretionary review. For the reasons discussed below, we deny the GLC's motion to dismiss the appeal and affirm the superior court's order.

The relevant procedural facts are undisputed. Amusement Leasing was the holder of a Class B coin-operated amusement machine ("COAM") master license granted by the GLC, which administers Georgia's statutory framework applicable to COAMs and COAM businesses. 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 S.E.2d 373 (2016) (discussing the COAM laws and their administration by the GLC). In 2016, the GLC issued three citations to Amusement Leasing for alleged violations of the COAM laws, and the GLC sent a letter notifying Amusement Leasing that its master license would be revoked, effective March 7, 2016.

Amusement Leasing requested and was granted a hearing before a GLC-appointed hearing officer to challenge the citations and license revocation. Following the hearing, on December 13, 2016, the hearing officer issued an executive order finding that Amusement Leasing had violated the COAM laws and provisions of the GLC Rules and Regulation Manual (the "GLC Rules") in several respects. The hearing officer, among other things, upheld the revocation of Amusement Leasing's master license and imposed an administrative penalty of $10,000.

On January 9, 2017, Amusement Leasing filed a timely request for reconsideration with the hearing officer, who denied the request on February 7, 2017 (the "Reconsideration Order"). The Reconsideration Order was served on Amusement Leasing on February 24, 2017. Over a year later, on July 24, 2018, Amusement Leasing filed an untimely motion for review with the Chief Executive Officer ("CEO") of the GLC in which it challenged the hearing officer's ruling and requested out-of-time consideration of the motion (the "Motion for Review"). The CEO did not issue an order on the Motion for Review within 30 days, and the motion was deemed denied under the GLC Rules.¹

On September 24, 2018, Amusement Leasing filed a petition for judicial review in the Superior Court of Fulton County in which it argued, among other things, that the GLC erred in revoking its master license. The superior court subsequently entered a final order dismissing Amusement Leasing's petition for failure to exhaust administrative remedies, and Amusement Leasing filed a notice of appeal from that order.

1. As an initial matter, we note that the GLC has filed a motion to dismiss this direct appeal on the jurisdictional ground that Amusement Leasing was required to follow our discretionary application procedure to obtain appellate review. Because Amusement Leasing was authorized to file a direct appeal from the superior court's final order reviewing the decision of the GLC, we deny the GLC's motion to dismiss.

Two Code sections principally determine the method that a party must follow to obtain appellate review in Georgia: OCGA §§ 5-6-34 and 5-6-35. See Grogan v. City of Dawsonville , 305 Ga. 79, 82 (2), 823 S.E.2d 763 (2019) ; Rebich v. Miles , 264 Ga. 467, 468, 448 S.E.2d 192 (1994). OCGA § 5-6-34 (a) lists several categories of trial court orders that may be appealed directly to this Court, including "[a]ll final judgments, that is to say, where the case is no longer pending in the court below, except as provided in Code Section 5-6-35." OCGA § 5-6-34 (a) (1).² In contrast, OCGA § 5-6-35 (a) lists several categories of trial court orders for which an application for discretionary review is required, including "[a]ppeals from decisions of the superior courts reviewing decisions of ... state and local administrative agencies." OCGA § 5-6-35 (a) (1). An administrative agency is "a governmental body charged with administering and implementing particular legislation." State of Ga. v. Intl. Keystone Knights of the Ku Klux Klan , 299 Ga. 392, 399 (4) (a) n. 20, 788 S.E.2d 455 (2016), quoting Black's Law Dictionary at 42 (5th ed. 1979). See Wolfe v. Bd. of Regents of the Univ. System of Ga. , 300 Ga. 223, 227 (2) (a), 794 S.E.2d 85 (2016). "The discretionary application procedure must be followed if the underlying subject matter is listed in OCGA § 5-6-35 (a), even when the party is appealing a judgment or order that is procedurally subject to a direct appeal under OCGA § 5-6-34 (a)." (Citation and punctuation omitted.) Grogan , 305 Ga. at 82 (2), 823 S.E.2d 763.

The GLC argues that OCGA § 5-6-35 (a) (1) applies to cases involving the superior court's review of the GLC's decisions. We disagree because the General Assembly has expressly provided that the GLC is not to be treated as a state agency. The GLC was created by the General Assembly in 1992 under the authority of the Georgia Lottery for Education Act (the "Education Act"), OCGA § 50-27-1 et seq.,³ and OCGA § 50-27-4 of the Education Act provides in relevant part: "There is created a body corporate and politic to be known as the Georgia Lottery Corporation which shall be deemed to be an instrumentality of the state, and not a state agency , and a public corporation."⁴ (Emphasis supplied.) "When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant." (Citation and punctuation omitted.) Deal v. Coleman , 294 Ga. 170, 172 (a), 751 S.E.2d 337 (2013). By its plain language, OCGA § 50-27-4 makes clear that the GLC is not to be deemed a state agency. See Ga. Lottery Corp. v. Tabletop Media , 346 Ga. App. 498, 501, 816 S.E.2d 438 (2018) (quoting OCGA § 50-27-4 for proposition that the GLC is "not a state agency").

Furthermore, the "contextual backdrop" of a statute is relevant in determining its meaning. Wright v. Brown , 336 Ga. App. 1, 4 (2), 783 S.E.2d 405 (2016). When OCGA § 50-27-4 was enacted in 1992 as part of the Education Act, OCGA § 5-6-35 (a) (1) had been in force for many years.⁵ "We must ... presume that the General Assembly had full knowledge of the existing state of the law and enacted [ OCGA § 50-27-4 ] with reference to it." (Citations and punctuation omitted.) Wright , 336 Ga. App. at 5 (2), 783 S.E.2d 405. See Buice v. Dixon , 223 Ga. 645, 647, 157 S.E.2d 481 (1967). We therefore presume that the General Assembly's express statement that the GLC is "not a state agency" was a matter of considered choice made with knowledge of the existing law of appellate procedure. See id.

Accordingly, based on the language of OCGA § 50-27-4 and the contextual backdrop in which it was enacted, a superior court order reviewing a decision of the GLC does not fall within the ambit of OCGA § 5-6-35 (a) (1), and an application for discretionary review therefore is not required.⁶ Compare Kyle v. Georgia Lottery Corp. , 290 Ga. 87, 88-91 (1), 718 S.E.2d 801 (2011) (GLC entitled to sovereign immunity under the Georgia Tort Claims Act, given that both instrumentalities and agencies are included in the definition of "state" under the Act). Because Amusement Leasing was entitled to bring a direct appeal from the superior court's final order under OCGA § 5-6-34 (a) (1), the GLC's motion to dismiss the appeal is denied.

2. In several related enumerations of error, Amusement Leasing contends that the superior court erred in dismissing its petition for judicial review for failure to exhaust available administrative remedies. We disagree.

"Under longstanding Georgia law, the failure of plaintiffs to exhaust their available administrative remedies ordinarily precludes judicial relief." Ga. Dept. of Behavioral Health & Developmental Disabilities v. United Cerebral Palsy of Ga. , 298 Ga. 779, 786 (2) (a), 784 S.E.2d 781 (2016). The General Assembly has authorized the GLC to adopt rules and regulations "for the regulation of its affairs and the conduct of its business," OCGA § 50-27-9 (a) (3), and, more specifically, for the enforcement of the COAM laws, OCGA § 50-27-81 (b). Under the GLC Rules, after a hearing officer issues an executive order applying the COAM laws, an aggrieved party seeking relief must follow a two-step appeal procedure within the GLC that involves requesting reconsideration from the hearing officer and then moving for review by the GLC's president/CEO. GLC Rule 13.2.5 (1).⁷ The GLC Rules expressly state that a party must follow this appeal procedure and that the failure to follow the procedure "shall constitute a waiver of ... appeal rights." GLC Rule 13.2.5 (3). Given these mandatory rules adopted by the GLC, if a party fails to utilize the available appeal procedures afforded by the GLC Rules before seeking review in the superior court, the party has failed to exhaust its administrative remedies, and the superior court action should be dismissed. See Diverse Power v. Jackson , 285 Ga. 340, 341-342, 676 S.E.2d 204 (2009).

Amusement Leasing failed to exhaust its available administrative remedies under the two-step appeal procedure set out in the GLC Rules. Under that procedural framework, an aggrieved party who wishes to...