Cox v. Garvin

• Decision Date: 10 January 2005
• Docket Number: No. S04G1152.,S04G1152.
• Citation: 278 Ga. 903,607 S.E.2d 549
• Parties: COX v. GARVIN et al.
• Court: Georgia Supreme Court

607 S.E.2d 549

278 Ga. 903

COX v. GARVIN et al.

No. S04G1152.

Supreme Court of Georgia.

January 10, 2005.

Reconsideration Denied February 7, 2005.

Daniel M. Formby, Deputy Atty. Gen., John B. Ballard, Jr., Senior Asst. Atty. Gen., William Wright Banks, Jr., Asst. Atty. Gen., Oscar Baldwin Fears, III, Asst. Atty. Gen., Hon. Thurbert E. Baker, Atty. Gen., Robin Ann Golivesky, Office of Secretary of State, for Appellant.

George T. Smith, Browning & Smith, Marietta, for Appellee.

HINES, Justice.

We granted certiorari in Garvin v. Secretary of State, 266 Ga.App. 66, 596 S.E.2d 166 (2004), to determine whether the Court of Appeals erred in concluding that the term "willfully" as used in OCGA § 10-5-13(a)(1)(A)(iv) requires a knowing and intentional violation of the Georgia Securities Act of 1973 ("Act"), OCGA § 10-5-1 et seq. For the reasons which follow, we find that the Court of Appeals set an incorrect standard for establishing a willful violation in order to impose an administrative penalty under OCGA § 10-5-13(a)(1)(A)(iv); the term "willfully" requires proof only that the defendant intended to commit the conduct which is violative of the Act. Accordingly, we reverse.

The following facts are set forth in the opinion of the Court of Appeals. In 1999, Garvin, acting on behalf of Bee Communications, Inc. ("Bee"), sold Kommor five coin-operated payphones for $7,000 each. According to Kommor, she agreed to pay $35,000 for the payphones because Garvin sold them to her as part of an investment venture whereby she purchased the payphones from Bee and then, via an equipment lease program, leased them to ETS Payphones, Inc. ("ETS") for five years. Garvin told Kommor that ETS would operate and maintain the payphones, and that she would receive a fixed monthly income of $75 from each payphone, regardless of the revenue generated by each payphone. However, ETS declared bankruptcy in 2000, and Kommor lost her investment.

Garvin was not registered to sell securities in Georgia pursuant to OCGA § 10-5-3, nor were the contracts involved in the investment sold to Kommor registered in Georgia as securities under OCGA § 10-5-5. Garvin contended that no registration was required because the contracts were not securities under the Act.

The Court of Appeals affirmed the superior court's affirmance of the determination by the Commissioner of Securities that by selling and promoting the contracts as an investment venture, the contracts were securities under the Act. However, the Court of Appeals concluded that the term "willfully" in OCGA § 10-5-13(a)(1)(A)(iv) required a knowing and intentional violation of the Act in order for the civil penalties authorized therein to be imposed, reversed that portion of the superior court's judgment affirming the determination that Garvin's conduct was willful and the resultant penalty, and remanded the case with the direction that the record on that issue be reconsidered in light of its determination of the legal standard of "willfully." Garvin, supra at 71-74(2), 596 S.E.2d 166.

The Court of Appeals's conclusion was premised upon a flawed analysis. Section 10-5-13 of the Act provides, in relevant part, for the imposition of administrative sanctions:

(a) Whenever it may appear to the commissioner, either upon complaint or otherwise, that any person has engaged in or is engaging in or is about to engage in any act or practice or transaction which is prohibited by this chapter or by any rule, regulation, or order of the commissioner promulgated or issued pursuant to any Code section of this chapter or which is declared to be unlawful under this chapter, the commissioner may, at his or her discretion, act under any or all of the following paragraphs:

(1) Impose administrative sanctions as provided in this paragraph:

(A) Subject to notice and opportunity for hearing in accordance with Code Section 10-5-16, unless the right to notice is waived by the person against whom the sanction is imposed, the commissioner may: ...

(iv) Issue an order against an applicant, registered person, or other person who willfully violates this chapter, imposing a civil penalty up to a maximum of $50,000.00 for a single violation or up to $500,000.00 for multiple violations in a single proceeding or a series of related proceedings;... (Emphasis added).

Acknowledging that the Act does not define the term "willfully," the Court of Appeals relied on Greenhill v. State, 199 Ga.App. 218, 404 S.E.2d 577 (1991), to determine that "willfully" in OCGA § 10-5-13(a)(1)(A)(iv) means knowingly and intentionally violating the Act. Garvin, supra at 71(2), 596 S.E.2d 166. It reasoned that such definition of the term was required because it had held in Greenhill that "willfully" as used in the felony criminal provisions of OCGA § 10-5-24¹ meant knowingly and intentionally violating the Act. Id. However, in Greenhill, the Court of Appeals upheld a jury charge in a criminal prosecution under OCGA § 10-5-24 that instructed the jury that "willful means knowingly and intentionally committing the acts that constituted the violation." (Emphasis added). Greenhill at 220(3), 404 S.E.2d 577. Thus, Greenhill actually sanctioned a definition of "willfully" that requires only that a party knowingly and intentionally commit the acts that constitute the violation, not that the person knowingly intend to violate the Act. Consequently, Greenhill fails to provide authority for the holding that a party must knowingly violate the Act in order to be subject to a civil penalty under OCGA § 10-5-13(a)(1)(A)(iv).

Another portion of the Act also sheds light on the appropriate standard for the imposition of administrative penalties. The term "willfully" appears in OCGA § 10-5-4(a)(2).² This portion of the Act contains similar provisions to Section 412 of the Uniform Securities Act (2002),³ which outlines administrative sanctions for a party who "willfully violated or willfully failed to comply with [the Uniform Securities Act]."⁴ Unif. Sec. Act (2002) § 412(d)(2). The Official Comment relating to Section 412 states that in regard to the term " willfully," "[a]ll that is required is proof that the person acted intentionally in the sense that the person was aware of what he or she was doing. Proof of evil motive or intent to violate the law or knowledge that the law was being violated is not required." Unif. Sec. Act (2002) § 508 cmt. Such an interpretation of "willfully" is consistent with the federal construction of the term in the context of the Securities Exchange Act of 1934. The federal courts have held that, "`willfully' simply requires the intentional doing of the wrongful acts-no knowledge of the rule or regulation is required." Wonsover v. SEC, 205 F.3d 408, 414 (2000); United States v. O'Hagan, 139 F.3d 641, 647 (1998). See also United States v. Brown, 578 F.2d 1280, 1284 (1978).

Likewise, numerous state courts in interpreting the term "willfully" in the context of securities statutes have refused to adopt a requirement that the person intended to violate the law; the key is that the person intended to do the act prohibited by statute.⁵

Finally, there are strong policy reasons to reject the standard adopted by the Court of Appeals. The Act is remedial in nature, intended for the protection of investors; therefore, it must be broadly and liberally construed to effectuate its aim. Dunwoody Country Club, etc. v. Fortson, 243 Ga. 236, 242, 253 S.E.2d 700 (1979). The definition of "willfully" set forth by the Court of Appeals would frustrate the purpose of safeguarding investors by making it very difficult to impose civil penalties for a violation of the Act. Assertions that the accused party did not knowingly and intentionally sell securities in violation of the Act or that the party believed the securities were exempt from registration would be virtually impossible to overcome; a seller of unregistered securities would likely be able to avoid a finding of "willfulness" unless the seller had been the subject of a prior action for selling virtually the same securities.

The Court of Appeals's interpretation of "willfully" in this case is contrary to its own precedent, the weight of federal and state authority, and the goal of investor protection. Accordingly, the judgment of the Court of Appeals is reversed.

Judgment reversed.

All the Justices concur, except CARLEY, J., who dissents.

CARLEY, Justice, dissenting.

OCGA § 10-5-13(a)(1)(A)(iv) authorizes Secretary of State Cox, acting in her capacity as the Commissioner of Securities (Commissioner), to

[i]ssue an order against an applicant, registered person, or other person who willfully violates [the Georgia Securities Act of 1973(Act)], imposing a civil penalty up to a maximum of $50,000.00 for a single violation or up to $500,000.00 for multiple violations in a single proceeding or a series of related proceedings .... (Emphasis supplied.)

The issue presented for resolution is the meaning of the statutory phrase "willfully violates." The Court of Appeals held that it means that "there must be a knowing and intentional violation of the Act." Garvin v. Secretary of State, 266 Ga.App. 66, 71(2), 596 S.E.2d 166 (2004). Today, a majority of this Court reverses, concluding that "willfully violates" "requires only that a party knowingly and intentionally commit the acts that constitute the violation, not that the person knowingly intend to violate the Act." Majority opinion, p. 5. Because I believe that the Court of Appeals correctly defined "willfully violates," I must respectfully dissent.

"Willful" means "[v]oluntary and intentional, but not necessarily malicious...." Black's Law Dictionary (7th ed.), p. 1593. Derivations of that term appear only twice in OCGA § 10-5-13(a)(1), which statute deals with the authority of the Commissioner to impose administrative sanctions. As noted, subparagraph (A)(iv) of the statute refers to the Commissioner's power to sanction...