AMUSEMENT LEASING, INC.
GEORGIA LOTTERY CORPORATION
BARNES, P. J., MERCIER and BROWN, JJ.
Barnes, Presiding Judge.
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.
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.
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.
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 GLC Rules.
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.
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.
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). 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 v. Intl. Keystone Knights of the Ku Klux Klan,
299 Ga. 392, 400 (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).
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., 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." (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 (1) (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 GLC is "not a state agency").
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. "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." (Footnote and punctuation omitted.)
Wright, 336 Ga.App. at 4 (2). 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.
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. 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.
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.
long-standing 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). 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 ...