CopyCited 32 times | Published | Supreme Court of Georgia | Nov 19, 2001 | 274 Ga. 624, 2001 Fulton County D. Rep. 3476
...ns in this case and would instead reach and resolve the issues on the merits, I must respectfully dissent to the majority opinion. I am authorized to state that Chief Justice FLETCHER joins in this dissent. NOTES [1] OCGA §
16-14-1 et seq. [2] OCGA §
10-5-1 et seq....
...hip estate of no use in compensating the victims of appellants' purported fraudulent investment scheme. Three days later, on February 26, the State moved to dismiss its RICO action. [6] See 11 USC §§ 101(1)(A), 543(a). [7] OCGA §
16-8-3. [8] OCGA §
10-5-12....
CopyCited 7 times | Published | Supreme Court of Georgia | Jan 10, 2005 | 607 S.E.2d 549, 2005 Fulton County D. Rep. 119
HINES, Justice.
We granted certiorari in Garvin v. Secretary of State,
266 Ga. App. 66 (596 SE2d 166) (2004), to determine whether the Court of Appeals erred in concluding that the term “willfully” as used in OCGA §
10-5-13 (a) (1) (A) (iv) requires a knowing and intentional violation of the Georgia Securities Act of 1973 (“Act”), OCGA§
10-5-1 et seq. For the reasons which follow, we find that the Court of Appeals set an incorrect standard for establishing a willful violation in order to impose an administrative penalty under OCGA §
10-5-13(a) (1) (A) (iv); the term “willfully” requires proof only that the defendant intended to commit the conduct which is violative of the Act....
...e of the determination by the Commissioner of Securities that by selling and promoting the contracts as an investment venture, the contracts were securities under the Act. However, the Court of Appeals concluded that the term “willfully” in OCGA §
10-5-13 (a) (1) (A) (iv) required a knowing and intentional violation of the Act in order for the civil penalties authorized therein to be imposed, reversed that portion of the superior court’s judgment affirming the determination that Garvin’...
...d the case with the direction that the record on that issue be reconsidered in light of its determination of the legal standard of “willfully.” Garvin, supra at 71-74 (2).
The Court of Appeals’s conclusion was premised upon a flawed analysis. Section
10-5-13 of the Act provides, in relevant part, for the imposition of administrative sanctions:
(a) Whenever it may appear to the commissioner, either upon complaint or otherwise, that any person has engaged in or is engaging in or is about t...
...s chapter, the commissioner may, at his or her discretion, act under any or all of the following paragraphs:
(1) Impose administrative sanctions as provided in this paragraph:
(A) Subject to notice and opportunity for hearing in accordance with Code Section
10-5-16, unless the right to notice is waived by the person against whom the sanction is imposed, the commissioner may: ....
...ted proceedings;. . .
(Emphasis supplied.)
Acknowledging that the Act does not define the term “willfully,” the Court of Appeals relied on Greenhill v. State,
199 Ga. App. 218 *905(404 SE2d 577) (1991), to determine that “willfully” in OCGA §
10-5-13 (a) (1) (A) (iv) means knowingly and intentionally violating the Act....
...at constitute the violation, not that the person knowingly intend to violate the Act. Consequently, Greenhill fails to provide authority for the holding that a party must knowingly violate the Act in order to be subject to a civil penalty under OCGA §
10-5-13 (a) (1) (A) (iv).
Another portion of the Act also sheds light on the appropriate standard for the imposition of administrative penalties....
