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Georgia Lottery Corp. v. Tabletop Media LLC

Court of Appeals of Georgia, Fourth Division

June 21, 2018


          Doyle, Presiding Judge

         Tabletop Media, LLC, d/b/a Ziosk ("Tabletop") develops, produces, and distributes its Ziosk brand tabletop computer tablets, which it leases to restaurants. After the Georgia Lottery Corporation ("GLC") issued an executive order finding that the Ziosk was a coin-operated amusement machine ("COAM")[1] subject to licensing requirements and regulations of GLC pursuant to OCGA § 50-27-70, Tabletop filed a petition for judicial review in superior court. The superior court reversed GLC's decision, finding that the Ziosk was not a COAM, and this Court granted GLC's application for discretionary review. On appeal, GLC argues that the trial court erred by: failing to give deference to GLC's interpretation of the relevant statute, OCGA § 50-27-70 (b) (2) (A); failing to consider the legislative history behind that Code section; and ultimately concluding that the Ziosk did not constitute a COAM subject to licensing and regulation by GLC. For the reasons that follow, we affirm.

         The facts in this case are undisputed. The Ziosk is a seven-inch, Android-based touchscreen tablet that Tabletop sells or leases (along with accompanying customizable software and services) to restaurants, which place the tablets on tables and bars. The Ziosk is used for two purposes: (1) a restaurant management function, and (2) amusement. The restaurant management function, which is free for customers, permits customers to view nutritional information, place food and drink orders, summon a server, complete surveys, enroll or participate in loyalty or reward programs, view promotions and advertisements, scan coupons, pay for their meals, leave comments, and email or print a copy of their receipt. Customers can also use the Ziosk to play free games.[2] Customers can also, however, pay a one-time fee to access "premium entertainment, " including videos, sports news, and unlimited games, which require the use of skill by the player. Revenue from the premium entertainment is split between Tabletop and the restaurants; customers do not receive a reward or redemption when playing premium games.

         On September 17, 2015, GLC issued a notice entitled "Tablets as Class A Coin Operated Amusement Machines" ("Notice") in response to a question from Ryan, LLC, regarding whether "tablets that are becoming more common in restaurants and retail establishments as a form of entertainment" are considered Class A COAMs subject to State COAM rules and laws. The Notice stated:

each tablet offered to the public by a business that allows a customer to pay for access to games or music is considered a Class A COAM within the State of Georgia. Even if a tablet is not for the sole and exclusive purpose of playing games/music but allows it as an option, the tablet would still be a Class A COAM . . . [as defined by] OCGA § 50-27-70 (b) (3) and GLC Rule 13.1.2. . . .
In other words, any tablet that a business uses to allow customers to pay to play games (that involve skill, including trivia) or music is subject to COAM laws and rules, including licensing requirements for the entity that owns the devices and the location in which the devices are used.
If a location is offering Class A COAMs [i]n the form of tablets to its customers, such location must be licensed as a Class A COAM location[, ] and the entity that owns such tablets must also be licensed as a Class A COAM master. Additionally, each Class A COAM placed in a licensed location must have a valid Class A COAM permit sticker affixed to it [pursuant to] OCGA § 50-27-78 (b). Accordingly, a Class A COAM permit sticker should be purchased for each tablet made available to the public at the location.

         On September 21, 2015, GLC sent a letter to Ryan, LLC, advising that the Android tablets addressed in Ryan's inquiry are considered COAMs by GLC pursuant to the Notice.[3]

         Tabletop formally challenged the Notice, and following a hearing, GLC issued an executive order finding that the Ziosk was a COAM. After GLC denied Tabletop's motion for reconsideration and its motion for review, [4] Tabletop filed a petition for judicial review in superior court.[5]

         The appeal to superior court was "confined to the record" and was decided by the court without a jury pursuant to OCGA § 50-27-76 (a). The parties agreed that the facts were not in dispute and that the issue was purely one of law. The superior court reversed GLC's decision, concluding that the Ziosk does not constitute a COAM under OCGA § 50-27-70 (b) (2) (A). This Court granted GLC's application for discretionary review, and this appeal followed.

         1. GLC argues that the trial court erred by failing to give deference to the GLC's interpretation of the COAM statute. We disagree.

         OCGA § 50-27-76 (b) provides the standard of review a superior court must apply when reviewing a decision by GLC:

The court shall not substitute its judgment for that of [GLC] as to the weight of the evidence on questions of fact committed to the discretion of [GLC]. The court may affirm the decision of [GLC] in whole or in part; the court shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because [GLC's] findings, inferences, conclusions, or decisions are:
(1)In violation of constitutional or statutory provisions;
(2)In excess of the statutory authority of [GLC];
(3)Made upon unlawful procedures;
(4)Affected by other error of law;
(5)Not reasonably supported by substantial evidence in view of the reliable and probative evidence in the record as a whole; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

         This Code section is "essentially identical" to the standard of review provided in the Administrative Procedure Act.[6] Thus, although GLC is "an instrumentality of the [S]tate, and not a [S]tate agency, "[7] we conclude that the trial court properly applied the standard of review applicable to administrative decisions.

         In Handel v. Powell, [8] the Supreme Court of Georgia applied this same standard of review to a decision by the Secretary of State on the Secretary's challenge to a candidate's qualifications.[9] The same rationale applies to the instant case. Thus, consistent with the Supreme Court's decision in Handel, we hold that when reviewing a decision of the GLC or its CEO,

[the superior court] must accept [GLC's] findings of fact if there is any evidence to support the findings[. T]he court must first determine if there is evidence to support the factual findings; the court then is statutorily required to examine the soundness of the conclusions of law drawn from the findings of fact supported by any evidence.[10]

         In this case, as in Handel, the facts are undisputed, and the trial court confined its review to the soundness of GLC's legal conclusions. As the Supreme Court explained:

While judicial deference is afforded an agency's interpretation of statutes it is charged with enforcing or administering, the agency's interpretation is not binding on the courts, which have the ultimate authority to construe statutes. It is the role of the judicial branch to interpret the statutes enacted by the legislative branch and enforced by the executive branch), and administrative rulings will be adopted only when they conform to the meaning which the court deems should properly be given. The judicial branch makes an independent determination as to whether the interpretation of the administrative agency correctly reflects the plain language of the statute and comports with the legislative intent.[11]

         As the superior court properly concluded in this case, this same rationale applies to a superior court's review of a GLC decision. Accordingly, ...

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