X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Hodges, Judge. In this action between two vendors concerning placement of coin-operated amusement machines (“COAMs”), Lucky Fortune, LLC appeals from an order of the Superior Court of Fulton County dismissing its petition for certiorari following an agency decision by the Georgia Lottery Corporation (the “GLC”). Lucky Fortune contends that the trial court erred in finding that its administrative appeal from a hearing officer to the GLC chief executive officer was untimely. Finding no error, we affirm. In a superior court’s review of the decision of the GLC chief executive officer, “the chief executive officer’s legal conclusions shall not be set aside unless there is an error of law.” Ultra Group of Cos. v. S & A 1488 Mgmt., 357 Ga. App. 757, 758-759 (849 SE2d 531) (2020); see also OCGA §§ 50-27-76 (b), 50-27-102 (d) (5). “When this Court reviews a superior court’s order in an administrative proceeding, our duty is not to review whether the record supports the superior court’s decision but whether the record supports the final decision of the administrative body.” (Citation and punctuation omitted.) Ultra Group of Cos., 357 Ga. App. at 759. So viewed, the record indicates that the predecessor in interest for Lucky Fortune and Deltaone, LLC entered into a “Location Rental Agreement” to place a COAM in Deltaone’s Atlanta gas station in 2013. In November 2020, Deltaone notified Lucky Fortune of its intention to terminate the location agreement, although Lucky Fortune claimed it never received the notice. Thereafter, Lucky Fortune certified to the GLC that there was a dispute between the parties concerning the COAM, and the GLC referred the parties to arbitration and appointed a hearing officer as required by law. See OCGA § 50-27-102 (d) (1). A hearing officer entered an order essentially granting Deltaone’s motion for judgment on the pleadings or, in the alternative, motion for summary judgment on September 16, 2021, finding that [t]here is no current, enforceable written agreement for the operation of COAMs at [Deltaone's] location. [Deltaone] may begin the process of decommissioning [Lucky Fortune's] COAMs at the location in question in the manner required by GLC rules and regulations. The hearing officer’s order left open the issue of attorney fees and established a schedule for submitting argument and supporting materials on that singular issue. On September 27, 2021, Lucky Fortune filed a motion for reconsideration of the September 16 order with the hearing officer, which the hearing officer denied in an October 13, 2021 order. Of particular relevance, the hearing officer acknowledged that he had granted Deltaone’s motion for judgment on the pleadings or, in the alternative, motion for summary judgment in the September 16 order, but added that the September 16 order “was not a final Executive Order, as disputed issues remained pending before the Hearing Officer for determination[;]” the only disputed issue identified by the hearing officer was that “ parties had not submitted evidence and argument regarding . . . [Deltaone's] attorney’s fees claim.” In conclusion, the hearing officer’s October 13, 2021 order stated that it “shall be deemed a ‘Final Executive Order’ for all purposes including, without limitation, the triggering of any appellate time computation.” Lucky Fortune’s administrative appeal to the GLC chief executive officer was denied due to inaction,[1] and Lucky Fortune then petitioned for certiorari in the trial court. Deltaone moved to dismiss Lucky Fortune’s petition, asserting that Lucky Fortune failed to timely pursue an administrative appeal through the GLC because its motion for reconsideration, filed with the hearing officer, did not toll the time for filing an appeal to the GLC chief executive officer. The trial court agreed and dismissed Lucky Fortune’s petition, and this appeal followed. In a single enumeration of error, Lucky Fortune contends that the trial court erred in finding that its administrative appeal to the GLC chief executive officer was untimely. Resolution of this question requires that we decide whether Lucky Fortune could appeal, and needed to appeal, the hearing officer’s September 16, 2021 order. For the following reasons, we conclude that the September 16 order was appealable, and that Lucky Fortune failed to timely file an administrative appeal from that order. As we recently noted, Georgia courts have long recognized that the General Assembly is empowered to enact laws of general application and then delegate to administrative officers or agencies the authority to make rules and regulations necessary to effectuate such laws. In this connection, . . . GLC has the power to approve hearing and appeal procedures, including an exhaustion requirement. (Citation and punctuation omitted.) Amazing Amusements Group v. Wilson, 353 Ga. App. 256, 261-262 (835 SE2d 781) (2019). Relevant to this case, GLC Rule (“RU”) 13.2 governs administrative hearings held by the GLC concerning COAMs. See GLC RU 13.2.1 (1); see also OCGA § 50-27-74 (c). Once an administrative hearing has occurred, the hearing officer, “[a]s soon as possible after the close of [the] hearing, . . . shall issue an Executive Order (the “Order”) in the case and forward that Order to the GLC for service and execution.” RU 13.2.4 (1). The unsuccessful party may then pursue the GLC’s two-step appeal procedure, the first step of which provides that [a] licensee or former licensee who is aggrieved by the Order entered by a Hearing Officer appointed under OCGA § 50-27-102 (d), may appeal by filing a Request for Reconsideration with the Chief Executive Officer or his or her designee no later than ten (10) days after receipt of the Order. (Emphasis supplied.) RU 13.2.5 (1) (a) (3); see also OCGA §§ 50-27-75 (a), 50-27-102 (d) (5) (“The decision of the hearing officer may be appealed to the chief executive officer or his or her designee.”). The second step of the procedure to appeal “an Order entered by a Hearing Officer appointed under OCGA § 50-27-102 (d)” requires the aggrieved party “to file with the President/CEO a written Motion for Review” within ten days of the hearing officer’s order.[2] RU 13.2.5 (1) (b) (1) (B). At the first step of the appeal procedure, then, an aggrieved party may appeal an order entered by a hearing officer appointed pursuant to OCGA § 50-27-102 (d) by “filing a Request for Reconsideration with the Chief Executive Officer or his or her designee. . . .” RU 13.2.5 (1) (a) (3). In contrast, RU 13.2.5 (1) (a) (1) allows for the filing of “a Request for Reconsideration with the Hearing Officer” when the order being challenged is “ other than an Order entered by a Hearing Officer appointed under OCGA § 50-27-102 (d)[.]” (Emphasis supplied.) Therefore, when read in concert, these provisions make clear that no request for reconsideration to the hearing officer is contemplated when the hearing officer has been appointed pursuant to OCGA § 50-27-102 (d), as was the case here. Moreover, there is no provision in the GLC’s rules limiting the type of order from which an appeal may be filed. See RU 13.2.5 (1) (a) (3). Even so, there is no provision in the GLC’s rules, nor does Georgia law generally provide, that the time for filing an appeal from an adverse judgment is tolled by a motion for reconsideration. Cf. Harned v. Piedmont Healthcare Foundation, 356 Ga. App. 870, 872 (849 SE2d 726) (2020) (“It is well settled that motions for reconsideration do not toll the time period for filing a notice of appeal.”). Accordingly, to preserve its right to appeal, and notwithstanding any other direction by the hearing officer to the contrary, Lucky Fortune was required to file a “Request for Reconsideration with the Chief Executive Officer or his or her designee no later than ten (10) days after receipt of the [September 16] Order.” RU 13.2.5 (1) (a) (3). It was not until October 25, 2021 that Lucky Fortune filed such a request with the GLC chief executive officer. It follows that the trial court correctly held that Lucky Fortune’s first-step appeal to the GLC chief executive officer was untimely.[3] Therefore, we affirm the trial court’s order dismissing Lucky Fortune’s petition for certiorari. Judgment affirmed. Barnes, P. J., and Brown, J., concur.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
June 20, 2024
Atlanta, GA

The Daily Report is honoring those attorneys and judges who have made a remarkable difference in the legal profession.


Learn More
May 15, 2024
Philadelphia, PA

The Legal Intelligencer honors lawyers leaving a mark on the legal community in Pennsylvania and Delaware.


Learn More
May 16, 2024
Dallas, TX

Consulting Magazine recognizes leaders in technology across three categories Leadership, Client Service and Innovation.


Learn More

Truly exceptional Bergen County New Jersey Law Firm is growing and seeks strong plaintiff's personal injury Attorney with 5-7 years plaintif...


Apply Now ›

Epstein Becker & Green is seeking an associate to joins its Commercial Litigation practice in our Columbus or Cincinnati offices. Ca...


Apply Now ›

Job Opportunity: Location: Prestigious Florida Law Firm seeks to hire a Business attorney with at least 5 years of experience for their Ft. ...


Apply Now ›
04/29/2024
The National Law Journal

Professional Announcement


View Announcement ›
04/15/2024
Connecticut Law Tribune

MELICK & PORTER, LLP PROMOTES CONNECTICUT PARTNERS HOLLY ROGERS, STEVEN BANKS, and ALEXANDER AHRENS


View Announcement ›
04/11/2024
New Jersey Law Journal

Professional Announcement


View Announcement ›