§ 43-17-16 - Hearings; notice; powers and orders of the Secretary of State - Georgia Statutes

O.C.G.A. 43-17-16 (2010)
43-17-16. Hearings; notice; powers and orders of the Secretary of State

(a) Where the Secretary of State has issued any order forbidding the solicitation or acceptance of contributions under Code Section 43-17-7, he or she shall promptly send to the charitable organization a notice of opportunity for hearing. Before entering an order refusing to register any person under Code Section 43-17-3 or 43-17-5 and after the entering of any order for revocation or suspension, the Secretary of State shall promptly send to such person and if such person is a paid solicitor to the charitable organization who employs or proposes to employ such person, a notice of opportunity for hearing. Hearings shall be conducted pursuant to this Code section by the Secretary of State or a person designated by the Secretary of State.

(b) Notices of opportunity for hearing shall be served by investigators appointed by the Secretary of State or sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the addressee's business mailing address or residential address as shown on information filed with the Secretary of State or directed for service to the sheriff of the county where such person resides or is found. Such notice shall state:

(1) The order which has been issued or which is proposed to be issued;

(2) The ground for issuing such order or proposed order; and

(3) That the person to whom such notice is sent will be afforded a hearing upon request if such request is made within ten days after receipt of the notice.

(c) Whenever a person requests a hearing in accordance with this Code section, there shall immediately be set a date, time, and place for such hearing and the person requesting such hearing shall forthwith be notified thereof. Except as provided in subsection (b) of Code Section 43-17-7, the date set for such hearing shall be within 30 days, but not earlier than five days after the request for hearing has been made, unless otherwise agreed to by the charitable organization and the persons requesting the hearing.

(d) For the purpose of conducting any hearing as provided in this Code section, the Secretary of State shall have the power to administer oaths, to call any party to testify under oath at such hearing, to require the attendance of witnesses and the production of books, records, and papers, and to take the depositions of witnesses; and for such purposes the Secretary of State is authorized, at the request of the person requesting the hearing or upon his or her own initiative, to issue a subpoena for any witness or a subpoena for production of documentary evidence to compel the production of any books, records, or papers. The subpoenas may be served by registered or certified mail or statutory overnight delivery, return receipt requested, to the addressee's business mailing address or residential address as shown on information filed with the Secretary of State or by investigators appointed by the Secretary of State or shall be directed for service to the sheriff of the county where such witness resides or is found or where the person in custody of any books, records, or papers resides or is found. The fees and mileage of the sheriff, witness, or person shall be paid from the funds in the state treasury for the use of the Secretary of State in the same manner that other expenses of the Secretary of State are paid.

(e) (1) At any hearing conducted under this Code section, a party or any affected person may appear in his or her own behalf or may be represented by an attorney.

(2) A stenographic record of the testimony and other evidence submitted shall be taken unless the Secretary of State and the persons requesting the hearing shall agree that such a stenographic record of the testimony shall not be taken.

(3) The Secretary of State shall pass upon the admissibility of such evidence, but a party may at any time make objections to any such rulings thereon; and, if the Secretary of State refuses to admit evidence, the party offering the same shall make a proffer thereof and such proffer shall be made a part of the record of the hearing.

(f) (1) In the case of any hearing conducted under this Code section, the Secretary of State may conduct the hearing or may appoint a referee to conduct the hearing who shall have the same powers and authority in conducting the hearing as are granted in this Code section to the Secretary of State.

(2) The referee shall have been admitted to the practice of law in this state and possess such additional qualifications as the Secretary of State may require.

(3) In any case where a hearing is conducted by a referee, the referee shall submit to the Secretary of State a written report including the transcript of the testimony and evidence (if such transcript is requested by the Secretary of State), the findings of fact and conclusions of law, and a recommendation of action to be taken by the Secretary of State. Within five days of the time of submission thereof to the Secretary of State, a copy of such written report and recommendations shall be served upon the person who requested the hearing or his or her attorney or other representative of record by registered or certified mail or statutory overnight delivery. That person or his or her attorney, within ten days of service of the copy of such written report and recommendations, may file with the Secretary of State written objections to the report and recommendations which shall be considered by the Secretary of State before a final order is entered.

(4) No recommendation of the referee shall be approved, modified, or disapproved by the Secretary of State until after ten days after service of such report and recommendations as provided in this subsection.

(5) The recommendations of the referee may be approved, modified, or disapproved by the Secretary of State. The Secretary of State may direct his or her referee to take additional testimony or to permit the introduction of further documentary evidence.

(6) In any hearing conducted by a referee, a transcript of testimony, evidence, and objections, if any, shall have the same force and effect as if such hearing or hearings had been conducted by the Secretary of State.

(7) All recommendations of the referee shall be advisory only and shall not have the effect of an order of the Secretary of State.

(g) If the Secretary of State does not receive a request for a hearing within the prescribed time, he or she may permit an order previously entered to remain in effect or may enter a proposed order. If a hearing is requested and conducted as provided in this Code section, the Secretary of State shall issue a written order which shall:

(1) Set forth his or her findings with respect to the matters involved; and

(2) Enter an order in accordance with his or her findings.

(h) All orders entered pursuant to Code Sections 43-17-3, 43-17-5, 43-17-7, and 43-17-13 shall be entered pursuant to this Code section, except where:

(1) The Secretary of State deems that the public health, safety, or welfare imperatively requires emergency action and incorporates a finding to that effect in the order, in which case the order may be effective immediately pending proceedings, which proceedings shall be promptly instituted and determined; or

(2) The order is expressly required by a court order, to be made without the right to a hearing or continuance of any type.