NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: February 20, 2024
S23G0405. VANTAGE CANCER CENTERS of GEORGIA, LLC et
al. v. GEORGIA DEPARTMENT OF COMMUNITY HEALTH et
al.
S23G0408. NORTHEAST GEORGIA MEDICAL CENTER, INC. et
al v. NORTHSIDE HOSPITAL, INC. d/b/a NORTHSIDE
HOSPITAL GWINNETT.
S23G0409. NORTHEAST GEORGIA MEDICAL CENTER, INC. et
al. v. GEORGIA DEPARTMENT OF COMMUNITY HEALTH.
BOGGS, Chief Justice.
This case concerns the standard of review that the
Commissioner of the Georgia Department of Community Health
must apply when reviewing the decision of a hearing officer on an
application for a certificate of need to establish a new health service.
The Court of Appeals held that in this case the Commissioner
applied the correct standard of review, see Northside Hosp., Inc. v.
Northeast Georgia Med. Ctr., Inc., 365 Ga. App. 778, 782-785 (880
SE2d 286) (2022), and we granted certiorari to review that decision.
We now vacate the Court of Appeals’ judgment, set forth the
standard applicable to the Commissioner’s review, and remand the
case to the Court of Appeals.
1. In 2020, Northside Hospital, Inc., d/b/a Northside Hospital
Gwinnett (“Northside”), applied to the Georgia Department of
Community Health (“the Department”) for a certificate of need
(“CON”) to establish a new radiation therapy service at the
Northside Gwinnett Hospital. Northside filed its application under
a Department regulation permitting need exceptions for atypical
barriers to care, asserting that atypical barriers impeded the
delivery of radiation therapy services to inpatients at Northside
Gwinnett.1 More specifically, Northside contended that its inpatient
cancer patients had to be transported offsite for radiation therapy
1 Ga. Comp. R. & Regs., r. 111-2-2-.42 sets forth the requirements for a
CON to establish a new radiation therapy service. Among other things, an
applicant must either show a need for the service, see Ga. Comp. R. & Regs., r.
111-2-2-.42 (3) (a), or establish grounds for applying an exception to the usual
need requirement. See Ga. Comp. R. & Regs., r. 111-2-2-.42 (3) (b). The atypical
barrier exception to the need standard permits the Department to issue a
certificate “[t]o remedy an atypical barrier to [radiation therapy] services based
on cost, quality, financial access and geographic accessibility.” Ga. Comp. R. &
Regs., r. 111-2-2-.42 (3) (b) (4).
2
and that, as a result, its inpatients experienced negative quality
issues, such as missed appointments and delayed treatment. The
Northeast Georgia Medical Center (“Northeast”), RCOG Cancer
Centers, LLC (“RCOG”), and Vantage Cancer Centers of Georgia,
LLC (“Vantage”), opposed the application. Northeast provides
radiation therapy service at three locations in Hall County, one of
which is just across the Gwinnett County line. Northeast provides
radiation therapy to numerous Gwinnett County residents.
Vantage and RCOG provide radiation therapy at facilities in
Gwinnett County that are about .3 miles and .8 miles from
Northside, respectively. 2 The Department’s staff granted the CON
on June 16, 2020, concluding, among other things, that Northside
had justified an exception to the numerical need methodology based
on quality of care. See OCGA § 31-6-43 (b) (providing that
Department staff makes an initial decision to grant or deny a CON).
2 See OCGA § 31-6-43 (d) (2) (A) (allowing certain parties to “oppose an
application for a certificate of need for a proposed project,” including parties
who “offer[ ] substantially similar services as proposed within a 35 mile radius
of the proposed project”).
3
(a) Appeal to Hearing Officer
Northeast, RCOG, and Vantage filed administrative appeals to
a hearing officer. See OCGA § 31-6-44 (d). The hearing officers are
part of a “Certificate of Need Appeal Panel” that is “an agency
separate and apart from the department,” the purpose of which is
“to serve as a panel of independent hearing officers to review the
department’s initial decision to grant or deny a certificate of need
application.” OCGA § 31-6-44 (a). The hearing officer conducts “a de
novo review of the decision of the department.” OCGA § 31-6-44 (f).
Here, on April 21, 2021, following a hearing, the hearing officer
reversed the Department’s decision approving the CON. The
hearing officer’s decision contained 86 paragraphs designated as
“Findings of Fact” (“FOF”). FOF 29, for example, stated that “the
evidence at [the] hearing did not support the proposition that there
is any atypical quality barrier to care associated with a hospital’s
inpatients receiving radiation therapy at a nearby freestanding
center, as they have for decades.” FOF 34 stated that “[t]here is
nothing atypical about a hospital such as [Northside] utilizing
4
nearby freestanding [radiation therapy] providers staffed by
physicians on the hospital’s medical staff to treat its inpatients, and
that situation does not constitute an atypical barrier to care”; that
“[t]his is consistent with the overwhelmingly-outpatient nature of
the service, and medical transport to nearby radiation therapy
centers offers good access and quality for those few patients who
would benefit from radiation while admitted”; and that “[t]he
available data presented at the hearing further indicated that
inpatients at [Northside] are not accessing radiation at lower rates,
thus confirming that inpatients at [Northside] have good access, and
relying upon a detached nearby facility does not pose a barrier to
care.” Meanwhile, FOF 37 stated that the “[m]edical transport of
cancer inpatients for radiation therapy is routine, safe, and
effective” and “has been the practice at [Northside] for many years.”
(b) Appeal to the Commissioner
Northside and the Department appealed the hearing officer’s
decision to the Commissioner of the Department. See OCGA § 31-6-
44 (i) (permitting parties, including the Department, to appeal the
5
hearing officer’s decision to the commissioner). The Commissioner’s
scope of review is defined by OCGA § 31-6-44 (k) (1), which provides:
In the event an appeal of the hearing officer’s decision is
filed, the commissioner may adopt the hearing officer’s
order as the final order of the department or the
commissioner may reject or modify the conclusions of law
over which the department has substantive jurisdiction
and the interpretation of administrative rules over which
it has substantive jurisdiction. By rejecting or modifying
such conclusion of law or interpretation of administrative
rule, the department must state with particularity its
reasons for rejecting or modifying such conclusion of law
or interpretation of administrative rule and must make a
finding that its substituted conclusion of law or
interpretation of administrative rule is as or more
reasonable than that which was rejected or modified.
Rejection or modification of conclusions of law may not
form the basis for rejection or modification of findings of
fact. The commissioner may not reject or modify the
findings of fact unless the commissioner first determines
from a review of the entire record, and states with
particularity in the order, that the findings of fact were
not based upon any competent substantial evidence or
that the proceedings on which the findings were based did
not comply with the essential requirements of law.
Here, in conducting this review, the Commissioner quoted the
standard of review set forth in OCGA § 31-6-44 (k) (1), overturned
the hearing officer’s decision, and granted a CON for the project.
6
The Commissioner rejected many of the FOFs of the hearing officer
on the grounds that they were “conclusion[s] couched as a finding of
fact,” “irrelevant,” or “contain[ed] opinions.” The Commissioner
concluded, among other things, that:
Northside defined a population in need of the service it is
proposing. The gap, from a quality perspective, is the
service is not now available on site at its existing facility
and inpatients requiring such treatments must be
transported to nearby free-standing outpatient facilities
for radiation therapy. The balancing of the needs of the
patients, their comfort, their medical fragility, the costs
to transfer them for a regimen of radiation treatments,
and the involvement of clinical staff to transport the
patient relates directly to quality.
The Commissioner thus determined that Northside had
justified “an atypical barrier based on quality to inpatient
[radiation therapy] services for the population it serves.”
(c) Judicial Review in Superior Court
Vantage and RCOG filed a petition for judicial review in
Gwinnett Superior Court, and Northeast sought review in Hall
7
County Superior Court.3 See OCGA § 31-6-44.1 (a). Under OCGA §
31-6-44.1 (a), a superior court is authorized to reverse or modify the
Commissioner’s final decision only if “substantial rights of the
appellant have been prejudiced because the procedures followed by
the department, the hearing officer, or the commissioner or the
administrative findings, inferences, and conclusions contained in
the final decision are,” among other things, “[i]n violation of
constitutional or statutory provisions,” “[i]n excess of the statutory
authority of the department,” or
[n]ot supported by substantial evidence, which shall
mean that the record does not contain such relevant
evidence as a reasonable mind might accept as adequate
to support such findings, inferences, conclusions, or
decisions, which such evidentiary standard shall be in
excess of the ‘any evidence’ standard contained in other
statutory provisions[.]
3 The petitions for judicial review were filed in the superior courts of
different counties because OCGA § 31-6-44.1 (a) provides that a party “may
seek judicial review of the final decision in accordance with the method set
forth in Chapter 13 of Title 50” and because OCGA § 50-13-19 (b) provides that
an interested party may file a petition for judicial review in Fulton County or,
if the petitioner is a corporation, “in the superior court of the county where the
petitioner maintains its principal place of doing business in this state[.]”
8
OCGA § 31-6-44.1 (a) (1), (2), (5). Here, Northeast, Vantage, and
RCOG contended, among other things, that the Commissioner
violated the statutory standard of OCGA § 31-6-44 (k) (1) for
reviewing the findings of fact of the hearing officer and that the
Commissioner’s decision was not supported by substantial evidence.
The Gwinnett County court upheld the Commissioner’s decision,
concluding that the decision was supported by substantial evidence
and was consistent with the atypical barrier exception and that,
even if the Commissioner erred in failing to follow the standard of
review of OCGA § 31-6-44 (k) (1), Vantage and RCOG had failed to
show that the failure violated their substantial rights. On the other
hand, the Hall County court reversed the Commissioner’s decision,
concluding, among other things, that the Commissioner exceeded
the limits of his statutory authority under OCGA § 31-6-44 (k) (1) by
rejecting and modifying findings of fact without concluding that the
findings were “‘not based upon any competent substantial
evidence.’” The Hall County court concluded that Northeast’s
substantial rights were prejudiced by this error.
9
(d) Court of Appeals Decision
In the Gwinnett County case, Vantage and RCOG filed a joint
application for discretionary appeal in the Court of Appeals. In the
Hall County case, Northside and the Department filed separate
applications for discretionary appeal. The Court of Appeals granted
all three applications. In the Northside and the Department
appeals, the Court of Appeals reversed the judgment of the Superior
Court of Hall County. See Northside Hosp., 365 Ga. App. at 783-784.
The Court of Appeals concluded that the Hall County court
“conflated the commissioner’s scope of review with that of its own,”
id. at 783, when the trial court stated:
Like reviewing courts, the [c]ommissioner is not
authorized under the substantial evidence standard to
reweigh the evidence, perform a de novo review of the
facts, substitute his judgment for that of the hearing
officer as to the proper weight to give evidence, or make
his own factual findings.
Id. (emphasis in original). The Court of Appeals concluded that this
language indicated that the trial court “ignored the plain language
of OCGA § 31-6-44 (k) (1), which commands the commissioner to
10
review the entire record and to evaluate whether the hearing
officer’s findings of fact were supported — not only by substantial
evidence, as is required of the superior court — but by competent
substantial evidence.” Id. (emphasis in original). The Court of
Appeals reasoned that, unlike the limited authority granted to
superior courts on judicial review, the use of the word “competent”
“requires the commissioner to apply an additional layer of
qualitative inquiry” and that “[t]his higher inquiry comports with
[the Department’s] codified policy-making directive.” Id. at 784. The
Court of Appeals thus essentially concluded that the Commissioner,
in reviewing the hearing officer’s decision under OCGA § 31-6-44 (k)
(1), was not prohibited from reweighing the evidence that was
presented to the hearing officer like a superior court is constrained
by OCGA § 31-6-44.1 (a) (5) in reviewing whether the
Commissioner’s decision is supported by substantial evidence.
In addition, the Court of Appeals concluded that the
Commissioner did “state with particularity his reasons for rejecting
or modifying each finding of fact” in that he rejected them “as
11
conclusory, speculative, or mere opinion,” id. at 785, and that the
“clear inference” was that “the Commissioner viewed [the hearing
officer’s] findings — to the extent they are factual findings — as also
unsupported by competent substantial evidence,” thus substantially
complying with OCGA § 31-6-44 (k) (1). Northside Hosp., 365 Ga.
App. at 785 (emphasis in original). In reaching this conclusion,
however, the Court of Appeals majority opinion did not undertake to
determine the meaning of the requirement that the Commissioner
“state with particularity” his reasons for concluding that the hearing
officer’s findings of fact were not supported by “competent
substantial evidence.”
In Vantage’s appeal from the Gwinnett County court, the Court
of Appeals affirmed on the ground that it had determined in the
appeals by Northside and the Department that the Commissioner’s
decision was proper. Northside Hosp., 365 Ga. App. at 788.
Presiding Judge Dillard dissented in both cases on the ground
that “the commissioner repeatedly violated the unambiguous
requirements and prohibitions delineated in OCGA § 31-6-44 (k)
12
(1).” Northside Hosp., 365 Ga. App. at 788. He explained that “the
commissioner never used the words ‘competent,’ ‘substantial,’ or
even ‘evidence’ in applying OCGA § 31-6-44 (k) (1)”; that “the
commissioner . . . needs to establish which specific standard of
evidentiary review he applied and do so with particularity”; that
“not only did the commissioner fail to apply the competent
substantial evidence standard of OCGA § 31-6-44 (k) (1), he instead
gave a laundry list of statutorily prohibited reasons for rejecting or
modifying the hearing officer’s findings of fact”; and that “[t]he trial
court’s judgments . . . should be vacated and the cases remanded
with instructions to vacate the [the Department’s] final decision and
instruct the commissioner to issue a new decision.” Id. at 792-794
(emphasis in original).
RCOG and Vantage filed a timely petition for certiorari, which
we granted. Northeast filed two companion petitions for certiorari,
and we granted both. We granted the petitions to address the
meaning of the standard of review that OCGA § 31-6-44 (k) (1)
13
requires the Commissioner to apply in reviewing the hearing
officer’s findings of fact.
2. As explained below, we conclude that the Court of Appeals
erred in determining the meaning of the phrase “competent
substantial evidence” in OCGA § 31-6-44 (k) (1). Moreover, we
undertake to define the meaning of the requirement that the
Commissioner must “state with particularity” his reasons for
rejecting or modifying a finding of fact of the hearing officer. Because
we conclude that the Court of Appeals should determine in the first
instance whether the Commissioner complied with the standard of
review of OCGA § 31-6-44 (k) (1), as that standard is applied
properly, we vacate and remand the case to it for proceedings
consistent with this opinion.
“When we consider the meaning of a statute, we must presume
that the General Assembly meant what it said and said what it
meant.” Camp v. Williams, 314 Ga. 699, 702 (879 SE2d 88) (2022)
(cleaned up). “To that end, we must afford the statutory text its plain
and ordinary meaning, we must view the statutory text in the
14
context in which it appears, and we must read the statutory text in
its most natural and reasonable way, as an ordinary speaker of the
English language would.” McBrayer v. Scarbrough, 317 Ga. 387, 393
(893 SE2d 660) (2023) (cleaned up). Of course, “as we have said
many times before when interpreting legal text, we do not read
words in isolation, but rather in context.” Seals v. State, 311 Ga. 739,
740 (860 SE2d 419) (2021) (cleaned up), disapproved on other
grounds by Gonzales v. State, 315 Ga. 661, 665 n.7 (884 SE2d 339)
(2023). “For context, we may look to other provisions of the same
statute, the structure and history of the whole statute, and the other
law — constitutional, statutory, and common law alike — that forms
the legal background of the statutory provision in question.”
Zaldivar v. Prickett, 297 Ga. 589, 591 (774 SE2d 688) (2015) (cleaned
up).
The text of OCGA § 31-6-44 (k) (1) requires the Commissioner
to accept the hearing officer’s findings of fact “unless the
commissioner first determines from a review of the entire record,
and states with particularity in the order, that the findings of fact
15
were not based upon any competent substantial evidence.” Several
interpretive issues are presented by this language. One is the
meaning of “competent substantial evidence,” and another is the
meaning of the requirement that the Commissioner “state[ ] with
particularity in the order” why the Commissioner is rejecting or
modifying a finding of fact.
(a) We turn first to the phrase “competent substantial
evidence.” We note that the term is not defined by the laws
governing the certificate of need program, see OCGA § 31-6-40 et
seq., and has not been interpreted by the courts of this State.
However, the phrase “substantial evidence” is defined in another
provision of the act governing the certificate of need program, OCGA
§ 31-6-44.1 (a) (5), Northside contends that that definition is
controlling, and “there is a natural presumption that identical words
used in different parts of the same act are intended to have the same
meaning.” Zaldivar, 297 Ga. at 592 (cleaned up). In this regard,
OCGA § 31-6-44.1 (a) (5), which sets forth the standard for a
16
superior court’s review of the Department’s final decision, provides
that a superior court
may reverse or modify the final decision only if . . . the
administrative findings, inferences, and conclusions
contained in the final decision are . . . [n]ot supported by
substantial evidence, which shall mean that the record
does not contain such relevant evidence as a reasonable
mind might accept as adequate to support such findings,
inferences, conclusions, or decisions, which such
evidentiary standard shall be in excess of the ‘any
evidence’ standard contained in other statutory
provisions[.]
We note that this definition of “substantial evidence” is consistent
with the meaning of the term as used in a legal context. See Black’s
Law Dictionary 599 (8th ed. 2004) (“substantial evidence” means
“[e]vidence that a reasonable mind could accept as adequate to
support a conclusion; evidence beyond a scintilla”). See Zaldivar,
297 Ga. at 596 (looking to Black’s Law Dictionary for “the usual and
customary meaning of [a] term as used in a legal context”). Cf.
Biestek v. Berryhill, 587 U.S. ___ (139 SCt 1148, 1154, 1156, 203
LE2d 504) (2019) (explaining that “the phrase ‘substantial evidence’
is a ‘term of art’ used throughout administrative law to describe how
17
courts are to review agency factfinding”; that it means reviewing the
administrative record for “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion”; that the
standard is a “deferential” one; and that the threshold for such
evidentiary sufficiency is not high, but is “more than a mere
scintilla”) (cleaned up)). Moreover, in two cases involving the
predecessors to OCGA § 31-6-44.1 (a) (5) (formerly OCGA §§ 31-6-44
(m) and 31-6-44 (i) (5)) and involving the exact same definition of
“substantial evidence,” the Court of Appeals held that the standard
was a deferential one that did not permit a reviewing court to
reweigh findings of fact. See Dept. of Community Health v. Gwinnett
Hosp. System, 262 Ga. App. 879, 883 (586 SE2d 762) (2003); Hosp.
Auth. of Gwinnett County v. State Health Planning Agency, 211 Ga.
App. 407, 409-410 (438 SE2d 912) (1993).
Given that the term “substantial evidence” is defined in
another provision of our certificate-of-need laws and that the
definition tracks the commonly understood meaning of that
standard in the legal context, we conclude that the phrase
18
“substantial evidence” in OCGA § 31-6-44 (k) (1), has the meaning
given to that term by OCGA § 31-6-44.1 (a) (5).4 See Zaldivar, 297
Ga. at 592.
4 Presiding Justice Peterson recently noted that a petition for certiorari
“persuasively suggest[ed]” that this Court and the Court of Appeals “may have
gone astray” by on occasion interpreting the phrase “substantial evidence” in
Georgia statutes governing review of administrative agency decisions “to mean
essentially ‘any evidence.’” Fla. Rock Indus., Inc. v. Clayton County Bd. of
Commissioners, 316 Ga. 380, 381-382 (888 SE2d 573) (2023) (Peterson, P.J.,
concurring in the denial of certiorari). He explained that
it appears that the phrase “substantial evidence” had an
identifiable, stable meaning in the law by the time many of our
state’s review provisions were enacted. See, e.g., Consol. Edison
Co. v. Nat. Labor Relations Bd., 305 U.S. 197, 229 (59 SCt 206, 83
LE 126) (1938) (“Substantial evidence . . . means such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.”) . . . . And that meaning . . . apparently referred to
something more than literally any evidence. See Universal Camera
Corp. v. Nat. Labor Relations Bd., 340 U.S. 474, 477 (71 SCt 456,
95 LEd 456) (1951) (“substantial evidence is more than a mere
scintilla . . . it must do more than create a suspicion of the existence
of the fact to be established”).
Fla. Rock, 316 Ga. at 381-382 (cleaned up). Despite his reservations about prior
case law interpreting the “substantial evidence” standard of review as “any
evidence,” Presiding Justice Peterson concurred in the denial of certiorari
because the statute at issue in that petition would no longer be in force by the
time we could have decided the case. Id. at 382. Here, we need not address
those cases because the General Assembly has defined the phrase “substantial
evidence” in the context of cases involving certificates of need.
19
(b) Resolving the meaning of “substantial evidence” in OCGA §
31-6-44 (k) (1), however, does not end our inquiry, because the
applicable standard in subsection (k) (1) is “competent substantial
evidence.” See State v. SASS Grp., 315 Ga. 893, 902 (885 SE2d 761)
(2023) (explaining that “courts generally should avoid a construction
that makes some language mere surplusage” (cleaned up)).
Northside and the Department contend that the use of the word
“competent” in OCGA § 31-6-44 (k) (1) signifies that the General
Assembly intended for the addition of “competent” in the
“substantial evidence” component of OCGA § 31-6-44 (k) (1) to give
the Commissioner greater power in reviewing the hearing officer’s
findings of fact than that of “substantial evidence” as defined in
OCGA § 31-6-44.1 (a) (5). More specifically, Northside argues that
the word “competent” permits the Commissioner to consider the
proper weight to be given to evidence introduced before the hearing
officer, to permit the Commissioner to review the evidence in light
of his expertise, and to review the evidence before the hearing officer
for reliability. In the same vein, the Court of Appeals concluded that
20
use of the phrase “competent substantial evidence” permitted the
Commissioner “to apply an additional layer of qualitative inquiry”
to the review permitted by the “substantial evidence” prong of OCGA
§ 31-6-44.1 (a) (5). Northside Hosp., 365 Ga. App. at 783-784. The
Court of Appeals also suggested that the word “competent” permits
the Commissioner to consider policy concerns in reviewing the
hearing officer’s findings of fact. Id. at 784 (noting that “additional
layer of qualitative inquiry” “comports with [the Department’s]
codified policy-making directive.”).
We disagree that “competent substantial evidence” carries
such meanings. In determining the meaning of “competent
substantial evidence,” we may look to other statutory law that
“forms the legal background of the statutory provision in question.”
Zaldivar, 297 Ga. at 591 (cleaned up). At the time of the
enactment of OCGA § 31-6-44 (k) (1) in 2008, former OCGA § 24-1-
1 (1) provided that “[c]ompetent evidence is that which is
admissible.” See also Guye v. Home Indem. Co., 241 Ga. 213, 215
(244 SE2d 864 (1978) (citing to former version of OCGA § 24-1-1 (1)
21
for the proposition that “[c]ompetent evidence is that which is
admissible”). This definition, in fact, has existed since Georgia’s first
Code in 1863. See Code of 1863, § 3671 (“Competent evidence is that
which is admissible”); Code of 1933, § 38-102 (same). This legal
background is relevant context for understanding the meaning of
“competent substantial evidence.” See Zaldivar, 297 Ga. at 591. See
also Black’s Law Dictionary 596 (8th ed. 2004) (defining “competent
evidence” as “admissible evidence” and “relevant evidence”). Accord
Undisclosed LLC v. State, 302 Ga. 418, 428-430 (807 SE2d 393)
(2017) (in determining the meaning of court rules, which are
interpreted in the same way as statutes, we looked to a statute as it
existed at the time the court rule was adopted for relevant context).5
Given the longstanding definition of “competent evidence” in our
statutory law at the time OCGA § 31-6-44 (k) (1) was enacted, we
conclude that “competent” in the phrase “competent substantial
5 We note that the provision of the old Evidence Code defining
“competent evidence” was repealed in 2013 by our current Evidence Code. See
Ga. L. 2011, p. 99, 100. That repeal had no effect on the meaning OCGA § 31-
6-44 (k) (1) had when it was enacted years earlier.
22
evidence” is most naturally and reasonably understood to mean
substantial evidence that was admissible.
Northside, however, asserts several arguments against this
reading of “competent substantial evidence.” Northside notes that a
reviewing court is authorized to reject factual findings when they
are not supported by “substantial evidence,” OCGA § 31-6-44.1 (a)
(5), and correctly notes that the word “competent” is not included in
that standard of review. It argues that a superior court could not
reverse a final decision of the agency for errors relating to the
admissibility of evidence under the “substantial evidence” review
authorized by OCGA § 31-6-44.1 (a) (5) if “competent” evidence
equals admissible evidence, because then “substantial evidence”
would not encompass admissibility determinations. Lack of
“substantial evidence,” however, is not the only basis for judicial
review. See OCGA § 31-6-44.1 (a) (3) and (4) (authorizing judicial
review, respectively, when final decisions are “[m]ade upon unlawful
procedures” and “[a]ffected by other error of law”). Those grounds for
judicial review are broad enough to permit a court to consider
23
whether the final decision of an agency rested upon inadmissible
evidence. See, e.g., Jackson Elec. Membership Corp. v. Georgia
Public Serv. Comm., 294 Ga. App. 253, 260 (2008) (noting standard
of review of agency decision regarding competency or relevancy of
evidence in administrative proceedings under APA); Georgia Real
Estate Comm. V. Peavy, 229 Ga. App. 201, 201, 204 (493 SE2d 602)
(1997) (reviewing a superior court’s reversal of a final agency
decision under OCGA § 50-13-19 (h), which mirrors OCGA § 31-6-
44.1 (a), for an error regarding the admissibility of evidence).
Northside further contends that “competent substantial
evidence” could not mean admissible evidence because the rules of
evidence do not strictly apply in administrative proceedings.
However, OCGA § 31-6-44 (e) provides that, with exceptions not
applicable here, “the hearing officer shall act, and the hearing shall
be conducted as a full evidentiary hearing, in accordance with
Chapter 13 of Title 50, the ‘Georgia Administrative Procedure Act,’
relating to contested cases.” OCGA § 50-13-15 governs evidentiary
24
issues in contested cases under the APA. Among other things, that
statute says:
Irrelevant, immaterial, or unduly repetitious evidence
shall be excluded. The rules of evidence as applied in the
trial of civil nonjury cases in the superior courts shall be
followed. When necessary to ascertain facts not reasonably
susceptible of proof under such rules, evidence not
admissible thereunder may be admitted, except where
precluded by statute, if it is of a type commonly relied upon
by reasonably prudent men in the conduct of their affairs
or if it consists of a report of medical, psychiatric, or
psychological evaluation of a type routinely submitted to
and relied upon by an agency in the normal course of its
business. Agencies shall give effect to the rules of privilege
recognized by law.
OCGA § 50-13-15 (1) (emphasis supplied). The italicized language
indicates that there is a limited exception to the application of the
rules of evidence to contested hearings, but the rules of evidence as
applied in “civil nonjury cases” otherwise apply and “[i]rrelevant,
immaterial, or unduly repetitious evidence shall be excluded.” Id.
Thus, contrary to Northside’s contention, the notion of admissible
evidence does have meaning in administrative proceedings.
25
Next, Northside correctly notes that OCGA § 50-13-15 (4) says
that, in contested cases, “[t]he agency’s experience, technical
competence, and specialized knowledge may be utilized in the
evaluation of the evidence” and argues that the phrase “competent
substantial evidence” should be read to permit the Commissioner in
CON cases to use his experience and specialized knowledge to judge
the weight of the evidence heard by the hearing officer. Northside
essentially argues that the Commissioner should be able to review
the evidence that was presented to the hearing officer de novo to the
extent the Commissioner’s specialized knowledge is applicable.
However, under the CON statute, when a case is contested, it
is the hearing officer, rather than the agency, that is tasked with
evaluating the evidence. OCGA § 31-6-44 (e) says that the hearing
before the hearing officer “shall be conducted as a full evidentiary
hearing, in accordance with [the APA], relating to contested cases,
except as otherwise specified in this Code section.” In contested CON
cases, after the Department’s staff makes its initial decision, see
OCGA § 31-6-43 (b), the hearing officer conducts the full evidentiary
26
hearing de novo, see OCGA § 31-6-44 (f), and OCGA § 31-6-44 (a)
provides that the purpose of a panel of hearing officers “shall be to
serve as a panel of independent hearing officers to review the
department’s initial decision to grant or deny a certificate of need
application.” After the evidentiary hearing, the hearing officer, not
the Commissioner, evaluates the evidence and “make[s] written
findings of fact and conclusions of law.” OCGA § 31-6-44 (i). Because
the Commissioner plays no role in the evidentiary hearing under
OCGA § 31-6-44, the provision of OCGA § 50-13-15 (4) that permits
an agency that is conducting a hearing to evaluate the evidence
presented at that hearing based on its expertise does not apply to
contested CON hearings.
Moreover, to the extent that the Commissioner is arguing that
OCGA § 50-13-15 (4) should be incorporated into his review of the
hearing officer’s decision under OCGA § 31-6-44 (k) (1), the
argument has no merit. To begin, there is nothing in the limited
power of review granted to the Commissioner by OCGA § 31-6-44 (k)
(1) that permits the Commissioner to independently evaluate the
27
evidence before the hearing officer based on his expertise. In
contrast, the General Assembly granted agencies broader powers to
review the initial decisions of one of their own agency
representatives under the APA. In this regard, OCGA § 50-13-17 (a)
provides that, when an agency is reviewing an initial decision of an
agency representative in a contested case, the agency “shall have all
the powers it would have in making the initial decision,” which
would include the power to evaluate the evidence based on its
specialized knowledge, as authorized by OCGA § 50-13-15 (4). OCGA
§ 50-13-17 (a), however, is inapplicable here, as the hearing officer
panel that was created by OCGA § 31-6-44 (a) is an “agency separate
and apart from the department.”
Finally, the Commissioner expresses concern that, given his
expertise in health planning, he should not be hamstrung in making
decisions about healthcare delivery systems in Georgia by the
findings of fact of a hearing officer, who does not have similar
expertise. However, although the General Assembly could have
included language in OCGA § 31-6-44 (k) (1) granting the
28
Commissioner the authority to review the hearing officer’s findings
of fact in light of his expertise and specialized knowledge, as it did
in OCGA § 50-13-15 (4), the text of OCGA § 31-6-44 indicates that
the General Assembly did not do so and instead created a system
that requires the Commissioner to give deference to the hearing
officer’s findings of fact.
For the foregoing reasons, we conclude that the term
“competent substantial evidence” is most reasonably understood to
refer to evidence that is “relevant” such that “a reasonable mind
might accept [it] as adequate to support” a finding of fact, OCGA §
31-6-44.1 (a) (5), and that is admissible. Moreover, as the foregoing
indicates, this standard is a deferential one that does not permit the
Commissioner to reweigh the evidence, judge the credibility of
witnesses, or substitute his judgment on factual issues for that of
the hearing officer based on the Commissioner’s expertise.
(c) We now address the meaning of the language that the
Commissioner must “state with particularity in the order” his
reasons for concluding that a finding of fact of the hearing officer is
29
“not based upon any competent substantial evidence.” OCGA § 31-
6-44 (k) (1).
To begin, we note that the phrase “state with particularity” is
not defined in OCGA § 31-6-44 or elsewhere in the CON laws. We
may therefore look to “dictionaries that were in use” around the time
the statute was enacted in 2008. McBrayer, 317 Ga. at 394. Around
that time, “particularity” was defined as “attentiveness to detail:
exactness,” Merriam-Webster’s Collegiate Dictionary (11th ed.
2003). It was also defined as “[t]he quality or state of being
particular rather than general”; “[e]xactitude of detail”; and
“[a]ttention to or concern with detail.” The American Heritage
Dictionary of the English Language (1992). This understanding of
“particularity” is also reflected in decisional law around the time
OCGA § 31-6-44 (k) (1) was enacted. For example, Georgia courts
have said that the requirement of OCGA § 9-11-9 (b) that fraud be
pled with “particularity” means that “a general allegation of fraud
amounts to nothing” and that “it is necessary that the complainant
show, by specifications, wherein the fraud consists.” Fairfax v. Wells
30
Fargo Bank, N.A., 312 Ga. App. 171, 172 (718 SE2d 16) (2011)
(cleaned up) (holding that the plaintiff failed to satisfy the
particularity requirement of OCGA § 9-11-9 (b) by failing to make
“specific factual allegations” to support her fraud claim); Dockens v.
Runkle Consulting, Inc., 285 Ga. App. 896, 900 (648 SE2d 80) (2007)
(setting forth same requirements for pleading fraud with
particularity and holding that purchaser of property failed to meet
those requirements by failing to allege specific facts in her complaint
that an engineer intentionally made false statements).
Given these meanings of the term “particularity” and given the
context in which the “particularity” requirement appears — the
hearing officer conducting a de novo evidentiary hearing
independent of the Department, and the Commissioner given
limited ability to overturn the officer’s findings of fact — we conclude
that the most reasonable understanding of the “particularity”
requirement is that the Commissioner must provide sufficient detail
in his order from which a reviewing court can determine whether
the Commissioner has or has not improperly substituted his
31
judgment for the findings of fact of the hearing officer. See T-Mobile
S., LLC v. City of Roswell, Ga., 574 U.S. 293, 301 (135 SCt 808, 190
LE2d 679) (2015) (holding that the substantial evidence standard of
review requires a local government to provide reasons for denying
an application to build a cell tower that are sufficient to enable a
reviewing court to carry out its duty of judicial review); Johnson v.
State, 300 Ga. 252, 258 (794 SE2d 60) (2016) (explaining that
findings of fact required on a defendant’s claim of the denial of his
constitutional right to a speedy trial should be consistent with the
framework of such a claim and sufficient to provide a basis for
appellate review of the issue), overruled on other grounds by
Johnson v. State, 315 Ga. 876 (885 SE2d 725) (2023); Brogdon v.
Brogdon, 290 Ga. 618, 625 (723 SE2d 421) (2012) (holding that
required statutory findings on deviation of child support must be
sufficient so that “we know that the court considered the correct
factors in exercising its discretion”).
3. Because the Court of Appeals’ conclusions regarding the
Commissioner’s “competent substantial evidence” standard of
32
review under OCGA § 31-6-44 (k) (1) do not comport with the
discussion above and because the Court of Appeals should
undertake in the first instance to determine whether the
Commissioner complied with the “particularity” requirement of
OCGA § 31-6-44 (k) (1) as defined above, we vacate its judgments
and remand the case to that Court for proceedings consistent with
this opinion.
Judgments vacated and case remanded with direction. All the
Justices concur.
33