[Malum Prohibitum]

(d) Investigation of applicant; issuance of license. Each law enforcement agency, upon receiving such applications and obtaining such fingerprints, shall promptly conduct a thorough search of its records and records to which it has access and shall notify the judge of the probate court within 50 days, by telephone and in writing, of any findings relating to the applicant which may bear on his eligibility for a license under the terms of this Code section. When no derogatory information is found on the applicant bearing on his eligibility to obtain a 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 days after the date of the application the judge of the probate court 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 the requirements contained in this Code section.

It seems to me that the Attorney General's interpretation of this section is flat out wrong. I do not see any prerequisites in there. In fact, it appears to read that if at 60 days the judge is unaware of any reason to deny the license, he must issue it.

A "failure of the background check to return" or whatever other lies are being told is not a failure of the applicant to comply with the requirements of the code section.

Any thoughts?

 

[Gunstar1]

I have had one big thought since the day I found out about the AG's opinion, when/what year was the law changed to say "When no derogatory information is found on the applicant bearing on his eligibility to obtain a license, a report shall not be required."

The reason is that the AG's Unofficial Opinion was written in 1978 and it could very well be wrong if the law was changed after that date.

The opinion is not online and I had to have copy snail mailed to me. If you would like to read it click on the first link for an image of page one and the second link for page 2 and 3. It is almost unreadable because IE resizes the picture to fit the screen, so if you hover your mouse over the picture you will see a button appear at the bottom right of the picture to let you blow it up to full size and is easier to read.

http://www.gfodl.org/U78-45-1.jpg
http://www.gfodl.org/U78-45-2.jpg

 

[Malum Prohibitum]

Who snail mailed it to you?

 

[Malum Prohibitum]

I have never read the opinion in its entirety before, and I have to say that it really appears to be his personal preference rather than a reading of the statute. He creates out of thin air a "condition precedent" that does not exist, then offers his "unofficial opinion" that the word "shall" does not create a mandatory order. Since when is "shall" when used in a statute intended to declare something optional. Try THAT one next time you are in court for speeding (the speeding statute says "shall," too).

 

[Malum Prohibitum]

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. Op.Atty.Gen. No. U89-21, Aug. 25, 1989.

Is this one online?

 

[Gunstar1]

I had it sent from the state, at the top of the AG's opinion page:

To obtain a copy of an opinion issued prior to 1994, please email your request to [email protected] and include the complete identifying number of the opinion and the fax number to which you wish the copy sent.

I had no fax so they mailed it to me. I got a couple other opinions by email. Some opinions they have electronicly but not on the website, some they have only paper copies of.
___

There are 3 things I do not like about this opinion.

1. He says what if you give out the license before the check is done and they have a criminal history, it could put the judge in an "uncomfortable position". That is why you revoke the license, not delay it 4 months. I don't really care if a judge is put in an uncomfortable position, his job is to issue the permits as the law states whether he likes it or not.

2. Nowhere in the opinion is the sentance "When no derogatory information is found on the applicant bearing on his eligibility to obtain a license, a report shall not be required" referenced. So either it was added after this opinion was written or the AG decided to ignore it. Either way it makes the opinion wrong.

3. To quote exactly what a flunky at the AG office told me by phone "Shall does not mean must". Well since 1 is not used and 2 is wrong, how about a bill changing the shall's to must's and will's?

 

[Malum Prohibitum]

:lol: Shall does not mean must? Wow.

Anyway, I went back to 1982, and the wording of (d) is exactly the same, including the sentence you quoted. I do not have the ability to go back further into the past without extensive research. It appears that the section was carried over untouched from the way it was written in 1978, but I would need to do more work to verify this.

 

[Malum Prohibitum]

Collins v. Birchfield, 214 Ga. App. 144 (1994)

Regardless of the drug forfeiture statute, the issue here is whether the revenue department was required to hold the hearing on Birchfield's request within 30 days. Hardison v. Fayssoux, 168 Ga.App. 398, 309 S.E.2d 397 (1983), is instructive to our inquiry. In Hardison, the statute at issue was O.C.G.A. § 40-5-55, which provides that a person who is notified that his driver's license is to be suspended may request a hearing and within 30 days after receiving a written request for a hearing, the department shall hold a hearing as provided in Chapter 13 of Title 50, the Georgia Administrative Procedure Act. The hearing in Hardison had been rescheduled and fell outside of the 30-day period. Fayssoux contended that because the word "shall" was used in the section, the timing of the hearing was mandatory and that the failure to hold the hearing within the 30-day period warranted dismissal of the charges.
The Hardison court recognized that in its " 'ordinary signification "shall" is a word of command, and the context ought to be very strongly persuasive before that word is softened into mere permission.' " Id. at 400, 309 S.E.2d 397; see, e.g., Ring v. Williams, 192 Ga.App. 329(2), 384 S.E.2d 914 (1989); O.C.G.A. § 1-3-3(10). Nonetheless, the court noted that in the absence of injury to the defendant and in the absence of a penalty for failure to comply with the statute, " 'shall' denotes simple futurity rather than a command." Hardison, 168 Ga.App. at 400, 309 S.E.2d 397. The Hardison court then cited O.C.G.A. § 1-3-1(c) which provides that "substantial compliance with any statutory requirement, especially on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by law." Accordingly, the court held that the *147 superior court erred in reversing the Department of Public Safety's decision to suspend appellee's license. Compare Sanchez v. Walker County Dept. of Family & Children Services, 237 Ga. 406, 229 S.E.2d 66 (1976).

 

[Malum Prohibitum]

The holding in Collins:

Given the circumstances of this case, we find no error in the failure to hold the hearing within 30 days. There has been no harm shown by the delay and the statute contains no provision regarding the failure to hold the hearing within this time period. Accordingly, we conclude that the statute's provision is directive and not mandatory. The superior court's reversal of the agency's decision on this basis was erroneous. We reverse and remand for determination of the issues which the superior court failed to address below. We will not address Birchfield's various arguments regarding the constitutionality of the assessment statute.

 

[Malum Prohibitum]

On the other side of the scale, the legislature has provided that when it uses the word "may," it sometimes means "must" or "shall." OCGA § 1-3- 3(10).

Thebaut v. Georgia Bd. of Dentistry, 235 Ga.App. 194, 195 n.8, 509 S.E.2d 125, 128 n.8 (1998).

 

[Malum Prohibitum]

OCGA 1-3-3 has no definitions for Must or Shall.

Furthermore, the cases above relate to invalidating a later act if it is not done within a specified period of time. That is certainly not what we are trying to accomplish.

I think it would be perverse to describe 6 months as substantial compliance with a 60 day requirement. Also, that "substantial compliance" standard for public officers comes in a statute relating to declaring void acts taken after the time period has expired, again something we are not trying to accomplish.

 

[Malum Prohibitum]

All official duties should be faithfully performed; and whenever, from any cause, a defect of legal justice would ensue from a failure to perform or from improper performance, the writ of mandamus may issue to compel a due performance, if there is no other specific legal remedy for the legal rights.


O.C.G.A. § 9-6-20

 

[ber950]

How does one go about getting a writ of mandamus in this state?
What court would you file in for a case like this?

 

[Malum Prohibitum]

Superior.