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Annual Report 2016

Pulpit rock Topic: Articles

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Appellate litigator Robert P. Marcovitch joins OSAH as Special Assistant Administrative Law Judge

Pulpit rock Topic: Court News

Judge_Robert_P_Marchovitch

I am pleased to announce that distinguished litigator Bob Marcovitch will join OSAH as a Special Assistant Administrative Law Judge.  Judge Marcovitch has been an appellate litigator since the early 1990s when he was an Assistant U.S. Attorney in the Appellate Section of the United States Attorney’s Office in Atlanta. He has extensive experience in state and federal courts across the country in a wide variety of subject matters—including product liability, premises liability, intentional torts, class actions, will and trust disputes, real estate matters, business disputes, and government enforcement proceedings—and he leads the Appellate Practice Group of Weinberg, Wheeler, Hudgins, Gunn & Dial.  Judge Marcovitch is known for the depth and clarity of his analysis of complex legal and factual issues.  Beginning July 2016, he will hold court in Rockdale, Walton, and Greene counties.

Columbia University, B.A.,
summa cum laude1984
Phi Beta Kappa

Harvard Law School, J.D.,
magna cum laude, 1987

Michael Malihi
Acting Chief Judge

OSAH is Awarded the Governor’s Cup and the Governor’s Award for the Highest Charitable Contribution Per Employee

Pulpit rock Topic: Court News

During last year’s 2015-2016 campaign, state employees pledged more than $1.4 million to over 1,350 charities. On Thursday, June 9, 2016, OSAH was awarded the Governor’s Cup for the highest charitable contribution per employee.  OSAH also received the Governor’s Award for the highest level of [..] Read More..

Elimination of railroad crossing must be reasonably necessary in the interest of public safety.

Topic: Railroad Crossings, Decided by Judge Howells 
Docket Number: 1619206 , Decision Date: 2016-05-27 
Attachment: Click here to download the decision. 

A railroad company petitioned the City of Royston to eliminate four highway-rail grade crossings.   The City denied the petition, but employed none of the criteria for evaluating a crossing’s safety.  After applying said criteria, the Georgia Department of Transportation (GDOT) determined that two of the [..] Read More..

Constitutionality of warrantless blood test not within the scope of hearing.

Topic: DUI, Decided by Judge Howells 
Docket Number: 1649872 , Decision Date: 2016-07-06 
Attachment: Click here to download the decision. 

Whether the United States Supreme Court’s holding in Birchfield v. North Dakota invalidates the Georgia implied consent statute’s requirement that a driver submit to a warrantless test of his or her blood is outside of the scope of an administrative license suspension hearing.

Incidental beneficiary to sale of dealership lacked standing under Franchise Practices Act.

Topic: Franchise Practices Act, Decided by Judge Malihi 
Docket Number: 1635899 , Decision Date: 2016-05-25 
Attachment: Click here to download the decision. 

Welborn Chevrolet, a motor vehicle dealer, challenged General Motors’ (GM’s) refusal to approve of an agreement between two other dealers.  The agreement, if finalized, would have resulted in the relocation of a Buick-GMC dealership such that it would share a location with Welborn Chevrolet’s dealership.  [..] Read More..

State need not establish that every screening officer at roadblock had sufficient training and experience.

Topic: DUI, Decided by Judge Brown 
Docket Number: 1627741 , Decision Date: 2016-05-31 
Attachment: Click here to download the decision. 

In establishing the validity of a roadblock, the state is required to show that the screening officer who made the determination to administer field sobriety tests had sufficient training to qualify him or her as a screening officer.  Accordingly, where a roadblock was executed by [..] Read More..

Atlanta Bar Magazine, Judge Walker, March 2016

Pulpit rock Topic: Articles

Traffic stop did not commence when officer briefly activated emergency lights.

Topic: DUI, Decided by Judge Malihi 
Docket Number: 1635960 , Decision Date: 2016-05-25 
Attachment: Click here to download the decision. 

An officer’s activation of emergency lights may constitute a “show of authority” effectuating a seizure.  However, activation of blue lights is not irrefutable evidence of a traffic stop; whether an individual has been seized must be determined by analyzing “all of the circumstances surrounding the [..] Read More..

Scope of review limited to whether candidate met residency qualifications for office.

Topic: Elections, Decided by Judge Walker 
Docket Number: 1638940 , Decision Date: 2016-05-18 
Attachment: Click here to download the decision. 

A candidate for State House District 151 failed to establish that he met the residency requirements for that office.  The evidence showed that, as a result of decennial redistricting by the state legislature, James Ricardo Williams’s residence was moved from District 151 to District 154 [..] Read More..

Adoption assistance not available to college student placed on adoptive status at age 3.

Topic: Public Assistance, Decided by Judge Walker-Russell 
Docket Number: 1647700 , Decision Date: 2016-07-06 
Attachment: Click here to download the decision. 

A child must be placed on adoptive status at age 13 or older in order to receive Adoption Assistance benefits while attending college after he or she reaches age 18.  Accordingly, Petitioner could not continue to receive Adoption Assistance benefits after her child turned 18 [..] Read More..

Licensee not in default where service of hearing notice not perfected.

Topic: Procedure, Decided by Judge Walker 
Docket Number: 1642577 , Decision Date: 2016-06-20 
Attachment: Click here to download the decision. 

The Court declined to enter a default order for a licensee’s failure to appear at the hearing where service of the Notice of Hearing by certified mail was unsuccessful and the Georgia Board of Nursing did not demonstrate that it attempted personal service, sought to [..] Read More..

Principal suspended for misuse of school funds.

Topic: Educators, Decided by Judge Howells 
Docket Number: 1638782 , Decision Date: 2016-06-22 
Attachment: Click here to download the decision. 

After her plan to cater an alumni event hosted at her school fell through, a principal directed the caterer, whom she had improperly paid directly from school funds, to deliver the food to her friend’s party.  The Commission sought to suspend the principal’s educator certificate [..] Read More..

CAPS benefits paid to corporation could not be recovered from individuals absent showing of fraud.

Topic: Early Care & Learning, Decided by Judge Kennedy 
Docket Number: 1509315 , Decision Date: 2016-05-18 
Attachment: Click here to download the decision. 

The Department of Early Care and Learning (DECAL) sought to recover Child and Parent Services (CAPS) Program benefits paid to a corporation doing business as a daycare center.  DECAL alleged that the parents of the owner of the corporation, who had previously operated a different [..] Read More..

Records authored by child support obligor are insufficient evidence of payment.

Topic: Child Support, Decided by Judge Walker-Russell 
Docket Number: 1629767 , Decision Date: 2016-06-01 
Attachment: Click here to download the decision. 

Copies of receipts written by a child support obligor to herself could not serve to corroborate her testimony that she made timely payments of child support.

Company did not “reproduce” WIC vendor stamp by using generic stamp to clarify store number.

Topic: Public Health, Decided by Judge Kennedy 
Docket Number: 1637592 , Decision Date: 2016-05-02 
Attachment: Click here to download the decision. 
Attachment: Click here to download the decision on appeal. 

The parent company of several WIC-participating grocery stores used a generic four-digit rotary stamp to clarify the store numbers on vouchers that had been returned for illegible or missing vendor stamp imprints.  The Department of Public Health sought to terminate WIC participation for several of [..] Read More..

Registered nurse suspended indefinitely for diverting controlled substances for personal use.

Topic: Professional Licensing, Decided by Judge Malihi 
Docket Number: 1634115 , Decision Date: 2016-04-11 
Attachment: Click here to download the decision. 

While working in the emergency room of a hospital, a registered nurse repeatedly withdrew controlled substances from an automated medication administration machine, and failed to document that she thereafter administered them to patients.  The results of a drug screen indicated that the nurse had three [..] Read More..

Lack of utilities in candidate’s purported home refutes residence claim.

Topic: Elections, Decided by Judge Miller 
Docket Number: 1638942 , Decision Date: 2016-04-20 
Attachment: Click here to download the decision. 

A candidate for the Georgia legislature failed to establish that he met residency requirements in the district for which he sought office where his purported home in the district was without water service during the time he claimed to have resided there.  Further, the candidate’s [..] Read More..

Facility’s failure to provide adequate supervision during outing resulted in resident’s death.

Topic: Health Law, Decided by Judge Woodard 
Docket Number: 1630927 , Decision Date: 2016-04-20 
Attachment: Click here to download the decision. 

The owner of a personal care home organized a river tubing outing for four of its residents, all of whom had some level of cognitive impairment.  The owner was the only staff member on hand to supervise the residents during the outing, and was unable [..] Read More..

Employee was not provided with adequate notice of grounds for demotion.

Topic: Employment, Decided by Judge Teate 
Docket Number: 1634698 , Decision Date: 2016-04-13 
Attachment: Click here to download the decision. 

A community service board was not authorized to demote a classified employee for alleged “misconduct,” “inefficiency in performing assigned duties” and “conduct reflecting discredit” on the board where the notice of the proposed demotion provided only that the board had received complaints from six employees, [..] Read More..

Driver did not refuse test where he provided one adequate breath sample.

Topic: DUI, Decided by Judge Woodard 
Docket Number: 1635913 , Decision Date: 2016-03-24 
Attachment: Click here to download the decision. 

A driver agreed to submit to a state-administered breath test after he was arrested for DUI and read the implied consent notice.  During the test, the driver provided one adequate breath sample, but failed to provide a second sample.  The officer thereafter indicated on the [..] Read More..

Revocation of registration to operate daycare does not require denial of paraprofessional license.

Topic: Educators, Decided by Judge Howells 
Docket Number: 1629432 , Decision Date: 2016-04-01 
Attachment: Click here to download the decision. 

The Professional Standards Commission denied Petitioner’s paraprofessional license application due to a 2012 arrest that resulted in the revocation of her registration to operate a daycare center.  Petitioner was arrested for Cruelty to Children in 2012 due to her conduct in leaving children in her [..] Read More..

LPN’s license revoked for diverting meds and failing to undergo examination.

Topic: Professional Licensing, Decided by Judge Howells 
Docket Number: 1628845 , Decision Date: 2016-03-14 
Attachment: Click here to download the decision. 

A licensed practical nurse (LPN) was ordered by the Georgia Board of Nursing to undergo a mental/physical examination following conduct in 2012 involving diverting narcotics, destroying records, and testing positive for opiates.  The Board sought to revoke the LPN’s license after she failed to comply [..] Read More..

Daycare’s license revoked for employing individual with unsatisfactory background check.

Topic: Early Care & Learning, Decided by Judge Kennedy 
Docket Number: 1628271 , Decision Date: 2016-03-17 
Attachment: Click here to download the decision. 

The Department of Early Care and Learning notified the owner of a family day care home (FDCH) that it could not make a fitness determination with regard to two of its employees for lack of complete files, and that the employees were therefore prohibited from [..] Read More..

Reflex action is not “willful.”

Topic: Nurse Aide Registry, Decided by Judge Teate 
Docket Number: 1627980 , Decision Date: 2016-03-17 
Attachment: Click here to download the decision. 

A nurse aide was not shown to have abused a resident where the evidence on record showed that she slapped the resident “reflexively” in response to being struck in the face, as “abuse” under the governing regulation requires a showing of willfulness.

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