PRYOR ORGANIZATION, INC. v. Stewart

• Decision Date: 01 October 2001
• Docket Number: No. S01A1174.,S01A1174.
• Citation: 274 Ga. 487,554 S.E.2d 132
• Parties: PRYOR ORGANIZATION, INC. v. STEWART.
• Court: Georgia Supreme Court

554 S.E.2d 132

274 Ga. 487

PRYOR ORGANIZATION, INC. v. STEWART.

No. S01A1174.

Supreme Court of Georgia.

October 1, 2001.

Reconsideration Denied November 19, 2001.

Meadows, Ichter & Trigg, P.C., Michael J. Bowers, T. Joshua R. Archer, Strongwater & Cherniak, Leeza R. Cherniak, Atlanta, for appellant.

Beck, Owen & Murray, James R. Fortune, Jr., Griffin, for appellee.

CARLEY, Justice.

For a number of years, Pryor Organization, Inc. (Pryor) engaged in the bail bond business in Spalding County. In January of 2001, however, the newly elected Sheriff of Spalding County Dee Stewart informed Pryor that he would not allow it to continue to write bonds in the county. At that time, the only reason the Sheriff gave for his action was that he did not need Pryor's services. Pryor filed a petition for mandamus, seeking to compel the Sheriff to reinstate it.

Prior to the hearing, the Sheriff gave Pryor written notice of the numerous specific grounds upon which he based his decision. Although he relied upon all of those reasons before the trial court, only two of them are relevant to this appeal. First, he expressed his concern about the moral character of Mark Pryor, the corporation's principal officer, who had been arrested for impersonating a police officer and a public official, and also for failing to display a county decal on his tag. However, since the State eventually dropped all charges except the traffic offense, the trial court found that this was not a valid reason for the Sheriff to disapprove Pryor to write bonds in the county. The second basis offered by the Sheriff for his decision was a television advertisement filmed by Pryor in the lobby of the Spalding County Sheriff's Office some two years previously. Although the then-sheriff expressly approved the filming, the trial court found that Pryor's act of making the commercial supported the Sheriff's decision because OCGA § 17-6-52 prohibits bondsmen from soliciting or loitering about or around the jail for business purposes. The trial court found that the Sheriff did not abuse his discretion by relying upon OCGA § 17-6-52, and entered a final order denying mandamus. Pryor appeals from that order.

1. Mandamus is an extraordinary remedy that can be granted only when the petitioner has a clear legal right to the relief sought and no other adequate remedy at law. She, Inc. v. West, 269 Ga. 201, 498 S.E.2d 257 (1998). Pryor concedes that the Sheriff has discretion to determine the acceptability of the sureties who write bonds in the county. See Jarvis v. J & J Bonding Co., 239 Ga. 213, 236 S.E.2d 370 (1977). Mandamus will not issue to compel performance of a discretionary act unless the public official has grossly abused his or her discretion. Dickerson v. Augusta-Richmond County Comm., 271 Ga. 612, 613(1), 523 S.E.2d 310 (1999). Thus, Pryor had the burden of showing that the Sheriff's refusal to allow it to continue to write bonds was a gross abuse of his discretion.

The Sheriff's discretion is not absolute, but is circumscribed by the statutes from which his authority derives. See Jarvis v. J & J Bonding Co., supra. OCGA § 17-6-50 establishes the qualifications of "professional bondspersons." If Pryor met those statewide qualifications, then the refusal to permit it to conduct business on the county level cannot be upheld. The Sheriff's decision, under those circumstances, would be "without legal justification or excuse, ... arbitrary, illegal and capricious and an abuse of discretion...." McWhorter v. Settle, 202 Ga. 334, 335(3), 43 S.E.2d 247 (1947). See also Fulton County v. Bartenfeld, 257 Ga. 766, 771(4), 363 S.E.2d 555 (1988); Arras v. Herrin, 255 Ga. 11, 12, 334 S.E.2d 677 (1985). "[T]he legally flawed exercise of discretion is the same as refusal to exercise any discretion, which is a manifest abuse of discretion. [Cits.]" Wilson v. State Farm Mut. Auto. Ins. Co., 239 Ga.App. 168, 172, 520 S.E.2d 917 (1999). Therefore, we must determine if the evidence demanded a finding that Pryor satisfied the requirements set forth in OCGA § 17-6-50 for approval as a "professional bondsperson."

OCGA § 17-6-50(b)(4) provides that Pryor must remain "in good standing with respect to all applicable ... state ... laws...." OCGA § 17-6-52 is such a law, and by its terms, it prohibits professional bondsmen from either soliciting business or loitering "about or around jails, places where prisoners are confined, or the courts for the purpose of engaging in or soliciting business as such bondsmen." Pryor filmed the advertisement in a public building which houses county prisoners. Thus, the statute forbids solicitation of bail bond business about or around those premises, and we must decide whether the making of the film at that site constituted a proscribed act of solicitation by Pryor.

OCGA § 17-6-52 is a criminal statute. Jackson v. Beavers, 156 Ga. 71, 73(2), 118 S.E. 751 (1923). Therefore, it must be strictly construed in favor of Pryor. See Busch v. State, 271 Ga. 591, 592, 523 S.E.2d 21 (1999). The statute does not, by its terms, forbid bondsmen from using a jail or courthouse as the backdrop for an advertisement. Previously, this Court has held that the underlying purpose of the enactment is to regulate "[t]he business of professional bondsmen [which] affords peculiar opportunity for fraud and imposition upon the persons whom they serve." Jackson v. Beavers, supra at 75(5), 118 S.E. 751.

[S]uch business may be so conducted as to seriously interfere with the fair and proper administration of the criminal laws. The unscrupulous may devise means and methods for the escape of violators of the penal statutes. They may use improper and illegal means to secure the acquittal of their clients. For these and other reasons which could be given, this business comes within the police power of the State.

Jackson v. Beavers, supra at 75(5), 118 S.E. 751. These recognized justifications for imposing a limitation on the solicitation of bail bond business all relate to the potential adverse impact on the judicial system occasioned by a bondsman's actual physical presence in or around a jail facility or courthouse or his actual physical contact with incarcerated individuals. Such an adverse impact or physical contact did not result from Pryor's mere use of the lobby of the sheriff's office to film its commercial. Pryor's presence on the premises was not for the purpose of soliciting potential clients who were currently incarcerated or who were then presently awaiting arraignment or trial. No individual prisoner was approached and only the general public was solicited when the advertisement subsequently ran on television. Thus, Pryor did not avail itself of any "peculiar opportunity" to commit fraud or to impose upon those whom it served. The advertisement was directed only at those who might need the services of a bondsman at some future time. Construing OCGA § 17-6-52 strictly, it is not intended to have such a far-reaching application as to prohibit a free-market solicitation of the general public by means of a commercial filmed on location at a jail or court facility. Thus, the Sheriff abused his discretion in citing the advertisement as justification for his decision, and the trial court erred in denying mandamus on the ground that Pryor violated OCGA § 17-6-52. See McWhorter v. Settle, supra at 335(3), 43 S.E.2d 247.

2. Although the Sheriff also based his decision upon the arrest of Mr. Pryor for the various offenses, the trial court concluded that this was not a proper reason. On appeal, however, the Sheriff continues to assert that this was a valid ground for the exercise of his discretion. Because a judgment that is right for any reason should be affirmed, we will consider the viability of this alternative basis for upholding the Sheriff's decision.

A "professional bondsperson" must be one who is "of good moral character and [who] has not been convicted of a felony or any crime involving moral turpitude...." (Emphasis supplied.) OCGA § 17-6-50(b)(3). Because the two requirements are stated in the conjunctive, the mere fact that Mr. Pryor was never convicted of the crimes for which he was arrested is not dispositive. Harrison v. Wigington, 269 Ga. 388, 390(2), 497 S.E.2d 568 (1998). The lack of prior convictions does not necessarily equate to good moral character. Even in the criminal context, neither an acquittal nor a failure to prosecute necessarily bars the admission of relevant evidence of the defendant's prior bad acts. See Moore v. State, 254 Ga. 674, 333 S.E.2d 605 (1985); McGuire v. State, 188 Ga.App. 891(1), 374 S.E.2d 816 (1988). Thus, if Mr. Pryor committed the acts for which he was arrested, and those acts were sufficient to show his lack of good moral character, then the Sheriff's exercise of his discretion on that ground must be upheld.

By his own admission, Mr. Pryor pursued a speeding vehicle in Pike County and, using his radio, contacted a deputy sheriff in a nearby patrol car. After identifying himself as "Spalding 707," Mr. Pryor informed the deputy sheriff that he was following a suspected stolen vehicle and asked the officer for assistance. According to him, Spalding 707 was his "assigned number ... at the Spalding County Sheriff's Department when [he] was a deputy coroner for eight months." Mr. Pryor does not contend that that official authorized him to engage in the type of law enforcement work he was then performing in Pike...