Research Information:

GA Attorney General Opinions

u89-21

[*1]

RE: The judge of the probate court, in considering an application for a firearms permit under O.C.G.A. § 16-11-129, has no discretion to exercise, but must issue the permit unless provided with information indicating the disqualification of the applicant.

Honorable Nancy K. Aspinwall

Judge, Probate Court of Liberty County

P.O. Box 28

Hinesville, Georgia 31313

MICHAEL J. BOWERS, Attorney General

Prepared by: NEAL B. CHILDERS, Assistant Attorney General

Recently, you have requested an unofficial opinion from this office regarding certain issues arising in the consideration of applications for firearms permits pursuant to O.C.G.A. § 16-11-129. For clarity, I have set forth your questions below, followed by my opinion in response to each question.

(1) If an individual has been charged with the offense of simple battery and tenders a plea of nolo contendere which is accepted by the trial court and a suspended sentence of twelve months imprisonment is imposed, is this individual eligible for a firearms permit pursuant to O.C.G.A. § 16-11-129(a)?

O.C.G.A. § 16-11-129, which governs firearms licenses, provides therein that, not later than 60 days after the application is made, the [*2] probate judge "shall issue the applicant a license to carry any pistol or revolver if no facts establishing ineligibility have been reported and if the judge determines the applicant has met all the qualifications, is of good moral character and has complied with all of the requirements contained herein." O.C.G.A. § 16-11-129(d). Of course, a determination of an individual's "good moral character" is a determination that must be made on a case-by-case basis and is inappropriate for consideration in this unofficial opinion.

Assuming that the individual is of good moral character, and further assuming that he has satisfied the requirements enumerated in O.C.G.A. § 16-11-129 in the submission of his application for a firearms permit, it must be determined if the charge and disposition referenced in your question are "facts establishing ineligibility." There are four categories of individuals who are ineligible for a firearms permit. Two of those are irrelevant to this particular question (a minimum age requirement of 21 years, and in-patient hospitalization in any mental hospital or alcohol or drug treatment center within five years of application). O.C.G.A. § 16-11-129(b)(2) prohibits [*3] the issuance of a license to a person who is a fugitive from justice or against whom charges for felony or forceful misdemeanor or specific offenses relating to firearms are pending until those charges have been adjudicated. That disqualification is also not implicated here. Finally, persons convicted of felonies, forceful misdemeanors, or specified violations with respect to firearms are disqualified for periods of time based upon the severity of the offense. O.C.G.A. § 16-11-129(b)(3).

In the scenario which you have posed, the individual pleaded nolo contendere to the charge of simple battery. Under Georgia law, a plea of nolo contendere is not an admission of guilt and may not be considered as a conviction for the purpose of imposing a civil disqualification imposed upon a person convicted of a violation of the laws of the State. O.C.G.A. § 17-7-95(c); 1974 Op. Att'y Gen. No. U74-67. Accordingly, an individual in the situation which you have posed is not thereby ineligible for issuance of a firearms permit.

(2) What discretion does the probate judge have in issuing or denying a firearms permit?

Generally speaking, the current statutory provisions do not provide for [*4] the exercise of discretion by the probate judge in passing upon an application for a firearms permit. The sole exception contained in the statute relates to the authorization for the judge to exercise discretion in determining whether or not to authorize a firearms permit for an individual who has been hospitalized as an in-patient in a mental hospital or alcohol or drug treatment center during the five years immediately proceeding application for a permit. O.C.G.A. § 16-11-129(b)(4). Otherwise, the judge "shall issue the applicant a license to carry any pistol or revolver if no facts establishing ineligibility have been reported and if the judge determines the applicant has met all of the qualifications, is of good moral character, and has complied with the requirements contained herein." O.C.G.A. § 16-11-129(d). This provision was enacted in 1976, and anything to the contrary in 1975 Op. Att'y Gen. No. U75-10, 1974 Op. Att'y Gen. No. U74-67, and 1972 Op. Att'y Gen. No. U72-112 is hereby withdrawn, and these opinions are withdrawn to the extent they conflict with this opinion.