You have requested my official opinion regarding the Armored Car Industry Reciprocity Act of 1993, 15 U.S.C.A. § 5901 et seq. ("the Act"). First, you ask whether the Act requires the Georgia Board of Private Detective and Security Agencies ("the Board") to conduct annual background checks on all individuals issued a weapon permit by the Board. You also ask whether the Act preempts the Board's licensing requirements when an individual is temporarily operating as an armored car crew member in Georgia and carrying a weapon based on a permit from a state that meets the Act's minimum state requirements in 15 U.S.C.A. § 5902(b). Finally, you ask whether the response would be different if that person were primarily, rather than temporarily, employed as an armored car crew member in Georgia.

Your inquiry is resolved by an analysis of the preemptive effect of this federal legislation on the applicable state statutes. The general rule in this Circuit involves a three part inquiry:

First, Congress, in drafting a statute, may use language that dictates the extent to which the statute preempts state law. Second, despite the absence of such language, the wording of the statute or its

legislative history may evince Congress' intent to occupy a given regulatory field to the exclusion of state law. Third, even when Congress has not occupied the entire regulatory field, federal law nevertheless may implicitly preempt state law to the extent that state law conflicts with a federal regulatory scheme.

3M Health Care, Ltd. v. Grant, 908 F.2d 918, 920 (11th Cir. 1990) (quoting Taylor v. General Motors Corp., 875 F.2d 816, 822 (11th Cir. 1989)).

With this framework in mind, the Act sets forth a mechanism whereby states are to reciprocally accept weapon licenses issued to armored car crew members by states meeting the Act's minimum state license requirements. 15 U.S.C.A. § 5902. These requirements include yearly classroom and range training as well as a yearly criminal record background check.

In answer to your first question, the Act merely requires reciprocity for armored car company crew members who are licensed by a state complying with the Act. 15 U.S.C.A. § 5902(a). States are given discretion regarding compliance with the minimum requirements of 15 U.S.C.A. § 5902(b). Congress expressly limited the scope of the Act to allowing "certain armored car crew members to lawfully carry a weapon in any State, while protecting the security of valuable goods in interstate commerce" when issued a license by a state satisfying the minimum requirements. Congress did not expand the Act to regulating the issuance of weapon permits by state licensing boards. See, e.g., Roth v. United States, 354 U.S. 476 (1957) (presumption is against preemption where state legislation involves exercise of police power).

As to your second question, the Act expressly preempts the Board's licensing requirements where an individual is temporarily operating as an armored car crew member in Georgia if the individual has an effective license issued by a state agency where the individual is primarily employed and if that state agency meets the Act's minimum requirements. 15 U.S.C.A. § 5902(a).

Regarding the third question, the Act provides that reciprocity is limited to armored car crew members who are licensed and "primarily employed" in a state complying with the Act. Any armored car crew member who is "primarily employed" in Georgia must be licensed in Georgia but under the current standards would not be entitled to reciprocity under the Act. The Act requires yearly background checks of licensed individuals. 15 U.S.C.A. § 5902(b). Pursuant to O.C.G.A. § 43-38-9, the Board may reprocess background checks of a licensee "at such times as the board may require." The Board has not adopted rules regarding frequency of background checks, and its policy has been to conduct a single background check, unless circumstances warrant reprocessing. Accordingly, any armored car crew member who is primarily employed in Georgia and is licensed in Georgia must presumably obtain a license in all other states where that individual carries a weapon.

Therefore, it is my official opinion that the Georgia State Board of Private Detective and Security Agencies is not required by federal law to modify the frequency of background checks conducted on individuals issued weapon permits pursuant to O.C.G.A. § 43-38-10, but the Armored Car Industry Reciprocity Act of 1993 does preempt licensing requirements for armored car crew members who are carrying weapons based on a federal reciprocity agreement.

Prepared by:

KEVIN H. HUDSON
Assistant Attorney General