Lead Opinion
This is an appeal by the Georgia State Licensing Board for Residential and General Contractors (“Board”) from two orders of the Superior Court of Muscogee County in this suit by more than 40 contractors, Richard Allen et al. (collectively “plaintiffs”), against
The Board is responsible for licensing and regulating residential and general contractors in Georgia. See OCGA § 43-41-1 et seq. On and after July 1, 2008, a valid residential or general contractor license issued by the Board is required to lawfully engage in the business of residential and general contracting within the state. OCGA §§ 43-41-9 (a),
OCGA § 43-41-17 (c)
In the present action, plaintiffs claimed, inter alia, that they had all paid for and received a certificate of qualification from the County entitling them to apply for and obtain building and construction permits from the County “Office of Inspections and Code” for 2008; that such certificate constituted a valuable Fifth Amendment property right; that they all qualified for the examination exemption under the licensing law; that they did not timely apply for the examination exemption because they did not know about the licensing law because of the lack of timely notice by the County as required by OCGA § 43-41-14 (b);
1. The Board contends that the superior court erred in holding that venue as to the Board was proper in Muscogee County, the domicile of the County defendant, rather than in Bibb County, the alleged domicile of the Board. It argues that this is so because the suit is an equitable action, and there is not substantial equitable relief common to it and to the County. However, the contention is unavailing.
The plaintiffs maintain that as the Board is a State agency, it may be sued in any Georgia county. See OCGA § 50-13-2;
2. The Board challenges the grant of the preliminary injunction on the bases that the superior court erred: when it based the injunction on its finding that individuals in Muscogee County who held certificates of qualification were not given notice to apply for examination exemption before July 2, 2007; when by the injunction it changed rather than maintained the status quo; when it ordered the County building officials to violate the enacted law, OCGA § 43-41-14 (a); when by the injunction it assisted, encouraged, and allowed the unlicensed practice of residential and general contracting in Muscogee County and implicitly enjoined the Board from enforcing the licensing law in that County; and when it issued an interlocutory injunction based upon an unverified complaint.
The attack on the notice provision must fail for yet another more basic reason. By the plain language of OCGA § 43-41-14 (b), what is required to be posted are the “licensing requirements” and “the effective dates of such licensing requirements,” not a way to avoid such requirements by exemption. In any event, even assuming that the enacted statutory posting provision was meant to apply, somehow retroactively, to the availability of exemption from examination or that the late effectiveness of the provision or the County’s failure to timely post it caused detriment to the plaintiffs, this did not justify the injunctive relief granted on the basis of unconstitutional or insufficient notice under OCGA § 43-41-14 (b). OCGA § 1-3-6 provides that: “After they take effect, the laws of this state are obligatory upon all the inhabitants thereof. Ignorance of the law excuses no one.” Thus, under this general statute the plaintiffs were charged with notice of the licensing law, OCGA § 43-41-1 et seq., including the time-limited provision allowing examination exemp
To the extent that the superior court entered the preliminary injunction on a basis other than the notice provision of OCGA § 43-41-14 (b), the relief granted was unwarranted for yet another reason. The only appropriate purpose for granting an interlocutory injunction is to preserve the status quo of the parties pending a final adjudication of the case. American Lien Fund v. Dixon,
whether the greater harm would result by the granting or the refusal of the interlocutory relief. In other words, if the danger to one party is great, while the probable harm to the other is minimal, then relief ought to be granted or refused in line with such probabilities. Accordingly, it has been held that an interlocutory injunction should be refused where its grant would operate oppressively on the defendant’s rights, especially in such a case that the denial of the temporary injunction would not work irreparable injury to the plaintiff or leave the plaintiff practically remediless in the event it should thereafter establish the truth of (its) contention.
Metropolitan Atlanta Rapid Transit Auth. v. Wallace,
Here, the grant of the preliminary injunction operated oppressively on not only the rights of the defendant County and the defendant Board but on the rights of the citizens of this State. It effectively enjoined, without apparent valid basis, the operation of a licensing law enacted by the General Assembly expressly, “in the interest of public health, safety, and welfare, to safeguard homeowners, other property owners, tenants, and the general public against faulty, inadequate, inefficient, and unsafe residential and general contractors.” OCGA § 43-41-1. Moreover, the refusal to grant the requested injunction would not work irreparable injury to the plaintiffs or leave them without remedy in the event they should ultimately prevail in their challenge to the licensing law. The plaintiff contractors have not shown that they could not lodge claims for money damages from any lost work or business opportunities as a result of operation of the licensing law during the applicable periods of time.
3. Our decision in Division 2 renders it unnecessary to address
Judgment denying the motion to dismiss or, in the alternative, motion to transfer affirmed; judgment granting a preliminary injunction reversed.
Notes
OCGA § 43-41-9 (a) provides:
If an individual applicant proposes to engage in residential or general contracting in the individual’s own name or a trade name where the individual is doing business as a sole proprietorship, the license shall be issued only to that individual. Where an applicant under this chapter is seeking issuance of a residential or general contractor license on behalf and for the benefit of a business organization seeking to engage in residential or general contracting as a business organization, the application for a license under this chapter must be submitted by and through an individual qualifying agent for such business organization or entity and expressly on behalf of such business organization or entity. In such case, the license shall be issued to the individual qualifying agent and to the affiliated business organization or entity on whose behalf the application was made. It shall be unlawful for any person, firm, corporation, or association to operate a business organization or entity engaged in the business of residential or general contracting without first obtaining a license from the appropriate division after the effective date of the licensing requirements as specified in subsection (a) of Code Section 43-41-17. The appropriate division shall not issue a license to any business organization or entity to engage in residential or general contracting unless such business organization or entity employs at least one currently licensed individual residential or general contractor serving as its qualifying agent who is actually engaged by ownership or employment in the practice of residential or general contracting for such business organization or entity and provides adequate supervision and is responsible for the projects of such business organization or entity. A business organization may allow more than one person to act as a qualifying agent for such organization, subject to each such individual qualifying agent having successfully satisfied the requirements for issuance of a license under this chapter and having obtained issuance of such a license by the appropriate division. Each such business organization shall have at least one qualifying agent in order to be considered authorized to engage in such contracting business.
OCGA § 43-41-17 (a) provides:
The licensing requirements imposed by this chapter and the sanctions and consequences relating thereto shall not become effective and enforceable until July 1, 2008. On and after such date, no person, whether an individual or a business organization, shall have the right to engage in the business of residential contract
OCGA § 43-41-6 (a) states:
Anyone seeking to be licensed as a residential contractor or as a general contractor in this state shall file an application on a form provided by the residential contractor or general contractor division, respectively, accompanied by an application fee as provided by the board. Such an application may be submitted either by:
(1) An individual person seeking issuance of a license in his or her own name for purposes of engaging in the profession of residential or general contracting in his or her own name or doing business as an individual in a trade name as a sole proprietorship; or
(2) An individual person affiliated by ownership or employment with and acting as a qualifying agent for a business organization seeking to engage in the profession of residential or general contracting in the name of the business organization in accordance with and pursuant to Code Section 43-41-9.
Additionally, all applicants must submit to and successfully pass an examination prepared by, prepared for, or approved by the appropriate division, except where an applicant is otherwise qualified for licensure and has satisfied the appropriate division requirements and regulations for licensure pursuant to Code Section 43-41-8 exempting such applicant from the examination requirement or where the applicant is an individual acting as a qualifying agent for a business organization and has previously obtained and maintained continuously a license issued by the appropriate division, either as an individual doing business in his or her own name or doing business as an individual in a trade name as a sole proprietor or as a qualifying agent for another business organization.
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OCGA § 43-41-17 (c) provides:
Any person who holds a license issued under this chapter may engage in the business of residential or general contracting, but only as prescribed by the license, throughout the state and no municipality or county may require any such person licensed under this chapter to comply with any additional licensing requirements imposed by such municipality or county relative to the performance of construction work subject to the licensing requirements under this chapter. However, nothing in this chapter shall preclude the implementation and enforcement by any municipal
(1) Engage in the construction of improvements to real property to the extent such activities are not encompassed by this chapter or by Chapter 14 of this title; or
(2) Engage in residential or general contracting within such jurisdiction; provided, however, that:
(A) The requirements and criteria for issuance of such local license, registration, or certification shall have been at least as strict and stringent, in the sole judgment of the board, as those for the issuance of a corresponding state-wide license issued under this chapter;
(B) Such local license, registration, or certification shall only apply to activities performed within the geographical limits of such municipality or county; and
(C) Such requirement shall not prevent or foreclose any contractor not holding such local license, registration, or certification but holding a valid and current state-wide license issued under this chapter or Chapter 14 of this title from the transaction of contracting business in such local jurisdiction within the scope of his or her state-wide license.
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OCGA § 43-41-14 (b) provides:
The licensing requirements imposed by this chapter and the effective dates of such licensing requirements must be posted by any county or municipality in this state charged with the duty of issuing building or other permits for construction work requiring performance by either a licensed residential contractor or a licensed general contractor in the same location in which such building or other permits are issued.
OCGA § 50-13-2 provides in relevant part:
As used in this chapter, the term:
(1) “Agency” means each state board, bureau, commission, department,*816 activity, or officer authorized by law expressly to make rules and regulations or to determine contested cases. . . .
Dissenting Opinion
dissenting.
I respectfully disagree with the majority’s determination that the trial court erred in granting a preliminary injunction that enjoined appellant and the Consolidated Government of Columbus-Muscogee County from enforcing against appellees the state licensing law governing residential and general contractors. The trial court found it was “highly likely” that the local licenses issued by the consolidated government and held by appellees were valuable property interests protected by constitutional due process requirements; that appellees were not given notice of their right to apply for an “exam-less” state license; and that appellees had suffered immediate and irreparable damages as a result. Inasmuch as “[t]he granting and continuing of injunctions shall always rest in the sound discretion of the judge, according to the circumstances of each case” (OCGA § 9-5-8), and an appellate court will not disturb the trial court’s exercise of its “wide discretion . . . unless a manifest abuse of that discretion is shown” (Glen Oak, Inc. v. Henderson,
The major issue for determination in appellees’ complaint for declaratory and injunctive relief and their claim for monetary damages is their entitlement to notice that they could apply to be exempt from the testing requirement of the new state-wide licensing program. See OCGA §§ 43-41-8 (a), 43-41-17 (c). The state-wide legislation, initially enacted in 2004 but, through a series of amendments, not effective until July 1, 2008,
Furthermore, prior to the enactment of the state licensing legislation on July 1, 2004, the consolidated government had required local contractors to obtain a locally-issued license in order to do contracting work in Columbus-Muscogee County. In light of the long-time existence of the consolidated government’s licensing program, the consolidated government was entitled statutorily to implement and enforce its local licensing requirements if, in the sole judgment of the state licensing board, the requirements for issuance of the local license were “at least as strict and stringent... as those for the issuance of a corresponding state-wide license. . . .” OCGA § 43-41-17 (c) (2) (A). This statutory language echoes the language of OCGA § 43-41-8 (a) (1) (one with a locally-issued license
Because appellees were not notified of their ability to apply for and receive an exam-less license and because appellees are no longer able to work in their field since they do not have state-issued licenses, though they hold locally-issued licenses, I believe the trial court acted appropriately when it maintained the status quo by staying enforcement of the state licensing scheme against appellees and giving appellees the opportunity to apply for and receive the exam-less state licenses for which they qualify. Inasmuch as the facts of this case do not reflect a manifest abuse of the trial court’s wide discretion with regard to the grant or denial of a preliminary injunction, I would uphold the trial court’s exercise of its discretion. Accordingly, I dissent from the majority’s decision to reverse that judgment.
I am authorized to state that Presiding Justice Carley and Justice Thompson join this dissent.
The General Assembly’s 2004 enactment of the state-wide licensing scheme for residential and general contractors initially had an effective date of two years following a line item appropriation of funds (Ga. L. 2004, p. 786, § 2), and licensed contractors who wished to apply for the exam-less exemption could do so for a six-month period which began one year after the effective date of the chapter. Ga. L. 2004, p. 809. In 2005, the General Assembly amended the legislation by removing the funding contingency and providing for an effective date of July 1, 2007, and for a six-month period during which applications for an exam-less exemption could be made, starting six months after the effective date of the legislation, i.e.,
Those local governments that issued building or other permits for construction work to be done by a licensed residential or general contractors.