08 LC 28
4343S
COMMITTEE
OF CONFERENCE SUBSTITUTE TO HB 89
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
provide a short title; to amend Part 1 of Article 4 of Chapter 11 of Title 16 of
the Official Code of Georgia Annotated, relating to dangerous instrumentalities
and practices, so as to provide for a felony for soliciting, persuading,
encouraging, or enticing any dealer to transfer or otherwise convey a firearm to
anyone other than the actual buyer; to amend Part 3 of Article 4 of Chapter 11
of Title 16 of the Official Code of Georgia Annotated, relating to the carrying
and possession of firearms, so as to change certain provisions relating to
carrying deadly weapons to or at public gatherings; to provide for constables to
carry pistols in publicly owned or operated buildings; to exempt constables from
the prohibition of carrying weapons within school safety zones, at school
functions, or on school property; to change certain provisions regarding the
transportation and carrying of certain firearms; to prohibit the carrying of
firearms and other weapons into certain buildings; to provide a definition; to
authorize the carrying of firearms in certain locations; to require the timely
issuance of firearm licenses; to prohibit certain employers from searching the
private vehicles of employees; to prohibit employers from conditioning
employment based upon certain regulations regarding the possession of a firearm;
to provide exceptions; to provide certain immunity for employers; to provide for
civil remedies; to provide for the timely issuance of firearms permits and
licenses; to provide for remedies for failure to receive firearms permits or
licenses under certain circumstances; to prohibit the consumption of alcoholic
beverages while carrying a firearm under certain circumstances; to amend Title
51 of the Official Code of Georgia Annotated, relating to torts, so as to
provide certain immunity from liability for certain persons and entities that
voluntarily and without compensation assist state agencies during times of
declared emergencies; to provide for related matters; to repeal conflicting
laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
This
Act shall be known and may be cited as the "Business Security and Employee
Privacy Act."
SECTION
2.
Part
1 of Article 4 of Chapter 11 of Title 16 of the Official Code of Georgia
Annotated, relating to dangerous instrumentalities and practices, is amended by
adding a new Code section to read as follows:
"16-11-113.
Any
person who attempts to solicit, persuade, encourage, or entice any dealer to
transfer or otherwise convey a firearm other than to the actual buyer, as well
as any other person who willfully and intentionally aids or abets such person,
shall be guilty of a felony. This Code section shall not apply to a federal law
enforcement officer or a peace officer, as defined in Code Section 16-1-3, in
the performance of his or her official duties or other person under such
officer´s direct supervision."
SECTION
3.
Part
3 of Article 4 of Chapter 11 of Title 16 of the Official Code of Georgia
Annotated, relating to the carrying and possession of firearms, is amended by
revising Code Section 16-11-126, relating to the offense of carrying a concealed
weapon, as follows:
"16-11-126.
(a)
A person commits the offense of carrying a concealed weapon when such person
knowingly has or carries about his or her person, unless in an open manner and
fully exposed to view, any bludgeon, metal knuckles, firearm, knife designed for
the purpose of offense and defense, or any other dangerous or deadly weapon or
instrument of like character outside of his or her home or place of business,
except as permitted under this Code section.
(b)
Upon conviction of the offense of carrying a concealed weapon, a person shall be
punished as follows:
(1)
For the first offense, he or she shall be guilty of a misdemeanor;
and
(2)
For the second offense, and for any subsequent offense, he or she shall be
guilty of a felony and, upon conviction thereof, shall be imprisoned for not
less than two years and not more than five years.
(c)
This Code section shall not permit, outside of his or her home, motor vehicle,
or place of business, the concealed carrying of a pistol, revolver, or
concealable firearm by any person unless that person has on his or her person a
valid license issued under Code Section 16-11-129 and the pistol, revolver,
or firearm may only be carried in a shoulder holster, waist belt holster, any
other holster, hipgrip, or any other similar device, in which event the weapon
may be concealed by the person´s clothing, or a handbag, purse, attache
case, briefcase, or other closed container.
Carrying on
the person in a concealed manner other than as provided in this subsection shall
not be permitted and shall be a violation of this Code
section.
Any person
having been issued a license to carry a concealed weapon pursuant to Code
Section 16-11-129 shall be permitted to carry such weapon, subject to the
limitations of this part, in all parks, historic sites, or recreational areas as
defined by Code Section 12-3-10 and in all wildlife management
areas.
(d)
This Code section shall not forbid the transportation of any firearm by a person
who is not among those enumerated as ineligible for a license under Code Section
16-11-129, provided the firearm is enclosed in a case, unloaded, and separated
from its ammunition.
(e)
This Code section shall not forbid any person who is not among those enumerated
as ineligible for a license under Code Section 16-11-129 from transporting a
loaded firearm in any private passenger motor vehicle
in an open
manner and fully exposed to view or in the glove compartment, console, or
similar compartment of the vehicle; provided, however, that any person in
possession of a valid permit issued pursuant to Code Section 16-11-129 may carry
a handgun in any location in a motor
vehicle.
(e)(f)
On and after October 1, 1996, a person licensed to carry a handgun in any state
whose laws recognize and give effect within such state to a license issued
pursuant to this part shall be authorized to carry a handgun in this state, but
only while the licensee is not a resident of this state; provided, however, that
such
licenseholder
license
holder shall carry the handgun in
compliance with the laws of this state."
SECTION
4.
Said
part is further amended by revising Code Section 16-11-127, relating to carrying
deadly weapons to or at public gatherings, as follows:
"16-11-127.
(a)
Except as provided in Code Section 16-11-127.1, a person
is
shall
be guilty of a misdemeanor when he or she
carries to or while at a public gathering any explosive compound, firearm, or
knife designed for the purpose of offense and defense.
(b)
For the purpose of this Code section, 'public gathering' shall include, but
shall not be limited to, athletic or sporting events, churches or church
functions, political rallies or functions, publicly owned or operated buildings,
or establishments at which alcoholic beverages are sold for consumption on the
premises and
which derive less than 50 percent of their total annual gross food and beverage
sales from the sale of prepared meals or
food. Nothing in this Code section shall
otherwise prohibit the carrying of a firearm in any other public place by a
person licensed or permitted to carry such firearm by this part.
(c)(1)
This Code section shall not apply to competitors participating in organized
sport shooting events.
(2)
Law enforcement officers, peace officers retired from
state,
local, or federal law enforcement
agencies, judges, magistrates,
constables,
solicitors-general, and district attorneys may carry pistols in publicly owned
or operated
buildings;
provided, however, that a courthouse security plan adopted in accordance with
paragraph (10) of subsection (a) of Code Section 15-16-10 may prohibit the
carrying of a pistol.
(d)
It
is
shall
be an affirmative defense to a violation
of this Code section if a person notifies a law enforcement officer or other
person employed to provide security for a public gathering of the presence of
such item as soon as possible after learning of its presence and surrenders or
secures such item as directed by
the
such
law enforcement officer or other person employed to provide security for
a
such
public gathering.
(e)
A person licensed or permitted to carry a firearm by this part shall be
permitted to carry such firearm, subject to the limitations of this part, in all
parks, historic sites, and recreational areas, including all publicly owned
buildings located in such parks, historic sites, and recreational areas and in
wildlife management areas, notwithstanding Code Section 12-3-10, in wildlife
management areas notwithstanding Code Section 27-3-1.1 and 27-3-6, and in public
transportation notwithstanding Code Sections 16-12-122 through 16-12-127;
provided, however, that a person shall not carry a firearm into a place
prohibited by federal law.
(f)
A person licensed or permitted to carry a firearm by this part shall not consume
alcoholic beverages in a restaurant or other eating establishment while carrying
a firearm. Any person violating this subsection shall be guilty of a
misdemeanor."
SECTION
5.
Said
part is further amended in Code Section 16-11-127.1, relating to carrying
weapons within school safety zones, at school functions, or on school property,
by striking "or" at the end of paragraph (16), by replacing the period with ";
or" at the end of paragraph (17), and by adding a new paragraph to subsection
(c) to read as follows:
"(18)
Constables of any county of this state."
SECTION
6.
Said
part is further amended by revising subsection (d) of Code Section 16-11-129,
relating to a license to carry a pistol or revolver and temporary renewal
permits, and by adding a new subsection to said Code section to read as
follows:
"(d)
Investigation of
applicant; issuance of license; renewal.
(1)
For both license applications and requests for license renewals, the judge of
the probate court shall
within two
business days following the receipt of the application or
request direct the law enforcement agency
to request a fingerprint based criminal history records check from the Georgia
Crime Information Center and Federal Bureau of Investigation for purposes of
determining the suitability of the applicant and return an appropriate report to
the judge of the probate court. Fingerprints shall be in such form and of such
quality as prescribed by the Georgia Crime Information Center and under
standards adopted by the Federal Bureau of Investigation. The Georgia Bureau of
Investigation may charge such fee as is necessary to cover the cost of the
records search.
(2)
For both license applications and requests for license renewals, the judge of
the probate court shall
within two
business days following the receipt of the application or
request also direct the law enforcement
agency to conduct a background check using the Federal Bureau of
Investigation´s National Instant Criminal Background Check System and
return an appropriate report to the probate judge.
(3)
When a person who is not a United States citizen applies for a license or
renewal of a license under this Code section, the judge of the probate court
shall direct the law enforcement agency to conduct a search of the records
maintained by the United States Bureau of Immigration and Customs Enforcement.
As a condition to the issuance of a license or the renewal of a license, an
applicant who is in nonimmigrant status shall provide proof of his or her
qualifications for an exception to the federal firearm prohibition pursuant to
18 U.S.C. Section 922(y).
(4)
The law enforcement agency shall
notify
report
to the judge of the probate court within
50
30
days, by telephone and in writing, of any findings relating to the applicant
which may bear on his or her eligibility for a license or renewal license under
the terms of this Code section. When no derogatory information is found on the
applicant bearing on his or her eligibility to obtain a license or renewal
license, a report shall not be required. The law enforcement agency shall
return the application and the blank license form with the fingerprint thereon
directly to the judge of the probate court within such time period. Not later
than
60
ten
days after
the date of
the application the judge of the probate
court receives
the report from the law enforcement agency concerning the suitability of the
applicant for a firearms license, the judge of the probate
court shall issue
the
such
applicant a license or renewal license to carry any pistol or revolver
if
no
unless
facts establishing ineligibility have been reported
and
if
or
unless the judge determines
the
such
applicant has
not
met all the qualifications, is
not
of good moral character,
and has
complied
or has failed
to comply with
all
any
of the requirements contained in this Code
section. The
judge of the probate court shall date stamp the report from the law enforcement
agency to show the date on which the report was received by the judge of the
probate court."
"(j)
When an eligible applicant who is a United States citizen fails to receive a
license, temporary permit, or renewal license within the time period required by
this Code section and the application or request has been properly filed, the
applicant may bring an action in mandamus or other legal proceeding in order to
obtain a license, temporary license, or renewal license, and such applicant
shall be entitled to recover his or her costs in such action, including
reasonable attorney´s fees."
SECTION
7.
Said
part is further amended by adding a new Code section to read as
follows:
"16-11-135.
(a)
Except as provided in this Code section, no private or public employer,
including the state and its political subdivisions, shall establish, maintain,
or enforce any policy or rule that has the effect of allowing such employer or
its agents to search the locked privately owned vehicles of employees or invited
guests on the employer´s parking lot and access thereto.
(b)
Except as provided in this Code section, no private or public employer,
including the state and its political subdivisions, shall condition employment
upon any agreement by a prospective employee that prohibits an employee from
entering the parking lot and access thereto when the employee´s privately
owned motor vehicle contains a firearm that is locked out of sight within the
trunk, glove box, or other enclosed compartment or area within such privately
owned motor vehicle, provided that any applicable employees possess a Georgia
firearms license.
(c)
Subsection (a) of this Code section shall not apply:
(1)
To searches by certified law enforcement officers pursuant to valid search
warrants or valid warrantless searches based upon probable cause under exigent
circumstances;
(2)
To vehicles owned or leased by an employer;
(3)
To any situation in which a reasonable person would believe that accessing a
locked vehicle of an employee is necessary to prevent an immediate threat to
human health, life, or safety; or
(4)
When an employee consents to a search of their locked privately owned vehicle by
licensed private security officers for loss prevention purposes based on
probable cause that the employee unlawfully possesses employer
property.
(d)
Subsections (a) and (b) of this Code section shall not apply:
(1)
To an employer providing applicable employees with a secure parking area which
restricts general public access through the use of a gate, security station,
security officers, or other similar means which limit public access into the
parking area, provided that any employer policy allowing vehicle searches upon
entry shall be applicable to all vehicles entering the property and applied on a
uniform and frequent basis;
(2)
To any penal institution, correctional institution, detention facility,
diversion center, jail, or similar place of confinement or confinement
alternative;
(3)
To facilities associated with electric generation owned or operated by a public
utility;
(4)
To any United States Department of Defense contractor, if such contractor
operates any facility on or contiguous with a United States military base or
installation or within one mile of an airport;
(5)
To an employee who is restricted from carrying or possessing a firearm on the
employer´s premises due to a completed or pending disciplinary
action;
(6)
Where transport of a firearm on the premises of the employer is prohibited by
state or federal law or regulation;
(7)
To parking lots contiguous to facilities providing natural gas transmission,
liquid petroleum transmission, water storage and supply, and law enforcement
services determined to be so vital to the State of Georgia, by a written
determination of the Georgia Department of Homeland Security, that the
incapacity or destruction of such systems and assets would have a debilitating
impact on public health or safety; or
(8)
To any area used for parking on a temporary basis.
(e)
No employer, property owner, or property owner´s agent shall be held liable
in any criminal or civil action for damages resulting from or arising out of an
occurrence involving the transportation, storage, possession, or use of a
firearm, including, but not limited to, the theft of a firearm from an
employee´s automobile, pursuant to this Code section unless such employer
commits a criminal act involving the use of a firearm or unless the employer
knew that the person using such firearm would commit such criminal act on the
employer´s premises. Nothing contained in this Code section shall create a
new duty on the part of the employer, property owner, or property owner´s
agent. An employee at will shall have no greater interest in employment created
by this Code section and shall remain an employee at will.
(f)
In any action relating to the enforcement of any right or obligation under this
Code section, an employer, property owner, or property owner´s agent´s
efforts to comply with other applicable federal, state, or local safety laws,
regulations, guidelines, or ordinances shall be a complete defense to any
employer, property owner, or property owner´s agent´s
liability.
(g)
In any action brought against an employer, employer´s agent, property
owner, or property owner´s agent relating to the criminal use of firearms
in the workplace, the plaintiff shall be liable for all legal costs of such
employer, employer´s agent, property owner, or property owner´s agent
if such action is concluded in such employer, employer´s agent, property
owner, or property owner´s agent´s favor.
(h)
This Code section shall not be construed so as to require an employer, property
owner, or property owner´s agent to implement any additional security
measures for the protection of employees, customers, or other persons.
Implementation of remedial security measures to provide protection to employees,
customers, or other persons shall not be admissible in evidence to show prior
negligence or breach of duty of an employer, property owner, or property
owner´s agent in any action against such employer, its officers or
shareholders, or property owners.
(i)
All actions brought based upon a violation of subsection (a) of this Code
section shall be brought exclusively by the Attorney General.
(j)
In the event that subsection (e) of this Code section is declared or adjudged by
any court to be invalid or unconstitutional for any reason, the remaining
portions of this Code section shall be invalid and of no further force or
effect. The General Assembly declares that it would not have enacted the
remaining provisions of this Code section if it had known that such portion
hereof would be declared or adjudged invalid or unconstitutional.
(k)
Nothing in this Code section shall restrict the rights of private property
owners or persons in legal control of property through a lease, a rental
agreement, a contract, or any other agreement to control access to such
property. When a private property owner or person in legal control of property
through a lease, a rental agreement, a contract, or any other agreement is also
an employer, his or her rights as a private property owner or person in legal
control of property shall govern."
SECTION
8.
Title
51 of the Official Code of Georgia Annotated, relating to torts, is amended by
revising Code Section 51-1-29.2 as follows:
"51-1-29.2.
Any
natural person
and any
association, fraternal organization, private for profit entity, not for profit
entity, religious organization, or charitable organization and the officers,
directors, employees, and agents of such associations, organizations, and
entities, when such persons, associations, organizations, or entities are
working in coordination and under the direction of an appropriate state
agency, who voluntarily and without the
expectation or receipt of compensation provides services
or goods in
preparation for, anticipation of, or
during a time of emergency and in a place of emergency as declared by the
Governor for the benefit of any
individual
natural person
or his or her property to prevent or minimize harm to such natural person
or to prevent, minimize, and repair injury
and damage to
such
person´s property resulting from
biological,
chemical, or nuclear agents; terrorism; pandemics or epidemics of infectious
disease; or catastrophic acts of nature,
including, but
not limited to, fire, flood, earthquake,
wind, storm, or wave action,
or any other
occurrence which warrants the declaration of a state of emergency or disaster by
the Governor pursuant to Code Section 38-3-51 or by a federal
agency shall not be
civilly
liable to any
individual
natural
person receiving such assistance as a
result of any act or omission in rendering such service if such
natural
person,
association, organization, or entity was
acting in good faith and unless the damage or injury was caused by the willful
or wanton negligence or misconduct of such
natural
person,
association, organization, or entity. Nothing in this Code section shall be
construed to amend, repeal, alter, or affect in any manner any other provision
of law granting immunity or limiting liability. Nothing in this Code section
shall be construed to abrogate the sovereign immunity of this state as to all
actions executed by any party under this Code
section."
SECTION
9.
All
laws and parts of laws in conflict with this Act are repealed.