Date: Tue, 17 Oct 1995 00:54:59 -0400 From: NRA Alerts To: firearms-alert@shell.portal.com Subject: INFO: VA - Two letters regarding Concealed Carry License clarification Two letters regarding Concealed Carry Licenses in the Commonwealth of Virgina. COMMONWEALTH OF VIRGINIA Office of the Attorney General Richmond 23219 October 13, 1995 The Honorable Virgil H. Goode, Jr. Member, Senate of Virginia 124 Orchard Avenue Rocky Mount, VA 24151 My dear Senator Goode: You ask whether fifty dollars is the maximum fee that an applicant must pay to obtain a concealed weapon permit under the provisions of 18.2- 308 of the Code of Virginia.1 Section 18.2-308(K) establishes three separate fees to be charged for the issuance of a concealed weapon permit: (1) fees of the circuit court clerk for processing the application or issuing the permit; (2) fees of the local law-enforcement agencies for investigating the applicant; and (3) fees of the State Police for processing the application. The language of 18.2-308(K) is clear and unambiguous in connection with the fees of the clerk and the State Police.2 Section 18.2-308(K) provides that the clerk of the circuit court "shall charge a fee of ten dollars" for processing an application or issuing a permit (Emphasis added.) The use of "shall" indicates that the fee is mandatory.3 The amount of the clerk's fee is set at ten dollars. "The State Police may charge a fee not to exceed five dollars" to cover their costs in processing the application.4 The assessment of this fee is discretionary, as indicated by use of the word "may."5 While the amount of the fee may vary, depending on the costs the State Police incur in processing the application, it may not exceed five dollars. Section 18.2-308(K) also provides that "[t]he local law-enforcement agencies may charge a fee not to exceed thirty-five dollars" to cover the cost of investigating the applicant. (Emphasis added.) It is clear from this language that, like the State Police fee, a local law-enforcement agency fee is optional, and that, while the amount may vary in accordance with the costs incurred, it may not exceed the established maximum. It is not clear from the language of subsection K whether the General Assembly contemplated that, if more than one local law-enforcement agency were to investigate the same applicant each agency may charge a separate fee of up to thirty-five dollars. The primary goal in construing an ambiguous statute is to discern and give effect to legislative intent.6 The reading of a statute as a whole influences the proper construction of ambiguous individual provisions.7 It is my opinion that a reading of 18.2-308(K) as a whole indicates a legislative intent to establish a maximum fee for obtaining a concealed weapon permit. In one instance the General Assembly established a set amount. In two instances, the General Assembly used the language "not to exceed," followed by a set amount.8 The language setting the maximum fee for the State Police and for the local law-enforcement agencies is substantially the same. Had the General Assembly intended that each law- enforcement agency that investigates an applicant could charge up to thirty-five dollars, it could have used language indicative of an intent to treat law-enforcement agency fees differently from the other fees. There is, however, no language in 18.2-308(K) supporting a conclusion that the General Assembly intended to authorize local law-enforcement agencies to impose fees without being bound by the total maximum fee restriction placed on clerks of court and the State Police.9 It is my opinion that 18.2-308(K) indicates a legislative intent that the total a local law-enforcement agency may charge for investigating an applicant for a concealed weapon permit may not exceed thirty-five dollars.10 Allowing multiple law-enforcement agencies investigating the same applicant to each charge a fee of thirty-five dollars would be inconsistent with this intent. It is therefore, my opinion that the total maximum fee for obtaining a concealed weapon permit is not to exceed fifty dollars. With kindest regards, I am Very truly yours, James S. Gilmore, III Attorney General 1.The 1995 Session of the General Assembly substantially rewrote 18.2-308. See Ch. 829, 1995 Va. Acts Reg. Sess. 1727, 1727-31. 2.When the language of a statute is ambiguous, the statute's plain meaning and intent govern, making resort to any rules of statutory construction unnecessary. Ambrogi v. Koontz, 224 Va. 381, 386, 297 S.E. 2d 660, 662 (1982); Op. Va. Att'y Gen.: 1994 at 93, 95; 1994 at 99, 100. 3.The use of the word "shall" in a statute generally indicates that the procedure is mandatory, while "may" indicates that it is permissive. See Op. Va. Att'y Gen.: 1994 at 64, 68; id. at 71, 72; 1986-1987 at 300, 300, and opinions cited therein. 4.Section 18.2-308(K) (emphasis added) 5.See 1992 Op. Va. Att'y Gen.:133, 135, and opinions cited therein (statutes using word "may" grant permissive, not mandatory, authority). 6.See Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E. 2d 337, 338 (1983); Vollin v. Arlington Co. Electoral Bd., 216 Va. 674, 679 222 S.E. 2d 793, 797 (1976); 1994 Op. Va. Att'y Gen.: 109, 112. 7.See id. 8.Section 18.2-308(K) 9.The General Assembly's use of the plural "law-enforcement agencies" in 18.2-308(K), as opposed to the singular "clerk" and "State Police," does not establish an intent to authorize multiple fees for law-enforcement agencies. This choice of language recognizes that, in contrast to a clerk of court or the State Police, various law-enforcement agencies operate within Virginia localities, and more than one such agency may be involved in the investigation of an applicant. This conclusion is supported by the use of the singular descriptive "an" in the sentence in 18.2-308(K), "[t]he local law-enforcement agencies may charge a fee not to exceed thirty-five dollars to cover the cost of conducting an investigation." (Emphasis added.) 10.This is not to say that more than one local agency may not be involved in the investigation. The maximum fee for the investigation, however, may not exceed thirty-five dollars. Commonwealth of Virginia Office of the Attorney General Richmond 23219 James S. Gilmore, III 900 East Main Street Attorney General Richmond, Virginia 23219 804-786-2071 804-371-8946 TDD The Honorable Barnes Lee Kidd Member, House of Delegates Rural Route 5, Box 126 North Tazewell, Virginia 24630 My dear Delegate Kidd: You ask whether the circuit court may require that a psychosocial assessment accompany an application for a permit to carry a concealed handgun under the provisions of 18.2-308 of the Code of Virginia. You relate that the circuit court has issued a Notice requiring a psychosocial assessment from all applicants. The notice requires a certified psychiatrist or psychologist to either make or supervise the assessment. No application is considered complete until this assessment has been administered. Section 18.2-308(D) specifies the procedure for obtaining a concealed handgun permit in Virginia. The General Assembly substantially amended this section in the 1995 Session. Former 18.2-308(D) required the circuit court to determine that "the applicant is of good character, ... is physically and mentally competent to carry such weapon and is not prohibited by law from receiving, possessing, or transporting such weapon" before issuing such a permit. The statute allowed the court to grant a permit in its discretion upon a finding of a demonstrated need. The last sentence of 18.2-308(D) now provides: The court, after consulting the law-enforcement authorities of the county or city and receiving a report from the Central Criminal Records Exchange, shall issue the permit within forty-five days of receipt of the completed application unless it appears that the applicant is disqualified, except that any permit issued prior to July 1, 1996, shall be issued within ninety days of receipt of the completed application. Section 18.2-308(E) is a new provision that lists the following individuals, among others, who shall be deemed disqualified by the General Assembly from obtaining a permit: 1. Individuals who were ineligible to possess a firearm pursuant to 18.2-308.1:2 (persons adjudicated legally incompetent or mentally incapacitated), and whose competency or capacity was restored less than five years before the date of application; 2. Individuals who were ineligible to possess a firearm under 18.2-308.1:3 (persons involuntarily committed), and who were released from commitment less than five years before the date of application; 3. Individuals who are addicted to, or are unlawful users or distributors of, marijuana or any controlled substance; and 4. Individuals who, in the opinion of the sheriff, chief of police, or Commonwealth's attorney, are likely to use a weapon unlawfully or negligently to endanger others. A rule of statutory construction requires the presumption that, in amending 18.2-308(D), the General Assembly had full knowledge of the existing law and the construction placed upon it by courts, and intended to charge the then existing law. Furthermore, when new provisions are added to existing legislation by an amendatory act, such as the addition of subsection E to 18.2-308, a presumption norma11y arises shat a change in the law was intended. Therefore, in its 1995 Session, the General Assembly intended to change the law regarding the issuance of concealed handgun permits in Virginia. When a statute creates a specific grant of authority, the authority exists only to the extent specifically granted in the statute. The mention of one thing in a statute implies the exclusion of another. Pursuant to the clear language of 18.2-308(D), the decision of the circuit court must be based only on information required on the application form prescribed by the Supreme Court, on information received from local law-enforcement officials, on any sworn statements submitted by local law-enforcement officials, and on information contained in the report from the Central Criminal Records Exchange. The General Assembly's 1995 amendments to 18.2-308 do not authorize the circuit court to require additional information for determining the advisability of granting an applicant a permit for reasons not enumerated in the statute. Furthermore, the circuit court is prohibited from prescribing a rule that is inconsistent with any statutory provision, or which has the effect of abridging the substantive right of persons before such court. Exemptions to statutory licensing and permit requirements must be strictly construed. In addition, it is a recognized principle of statutory construction that when a statute specifies how something is to be done, it evinces the intent of the General Assembly that it not be done another way. Therefore, a circuit court lacks the statutory authority to add to 18.2-308(E) an exclusion to grant a permit either based on an applicant's refusal to submit to a psychosocial assessment or based on the results of such assessment. I am unaware of any authority, whether by statute, rule or precedent, that authorizes the court to sua sponte order individuals to undergo psychosocial assessments. Even in situations when the court is authorized by statute to order an individual to undorgo a mental evaluation, it may do so only when an individual's mental condition is in controversy and/or there is good cause for doing so under the particular facts of an individual case. I am, therefore, of the opinion that a circuit court is without authority to require applicants for concealed handgun permits to submit to psychosocial assessments. With kindest regards, I am Very truly yours, (signed) James S. Gilmore, III Attorney General 1.The 1995 Session of the General Assembly substantially rewrote 18.2-308. See Ch. 829, 1995 Va. Acts Reg. Sess. 1727, 1727-31. 2.See 1995 Va. Acts, supra, at 1728. 3.Id. 4.See id.; see also 1981-1982 Op. Va. Att'y Gen. 168. 5.Section 18.2-308(E)(3). 6.Section 18.2-308(E)(4). 7.Section 18.2-308(E)(8). 8.Section 18.2-308(E)(13). 9.See Richmond v. Sutherland, 114 Va. 688, 693, 77 S.E. 470, 472 (1913). 10.Wisniewski v. Johnson, 223 Va. 141, 144, 286 S.E. 2d 223, 224- 25 (1982); see also Op. Va. Att'y Gen.: 1990 at 156, 157, and opinion cited therein. 11.See 2A NORMAN J. SINGER, SUTHERLAND STAT. CONST. 47.23 (5th ed.1992 & Supp. 1995); Op. Va. Att'y Gen.: 1992 at 145, 146, and opinions cited therein. 12.See also 18.2-308(E)(13). 13.See 1972-1974 Op. Va. Att'y Gen. 201, 203 (former 19.1-319 (recodified 19.2-335) contains no authorization for circuit court judge to make factual determination whether attorney's fee certified by lower court judge is reasonable or warranted and then to reduce or delete such fee). 14.Section 8.01-4; see also Davis v. Sexton, 211 Va. 410, 177 S.E. 2d 524 (1970) (absent statutory authority, circuit court judge could not forbid judge of court not of record from practicing law in his court); 1977-1978 Op. Va. Att'y Gen. 243, 244 (absent statutory authority, judge is without authority to require magistrate to pay cost for reissuance of warrant due to clerical errors). 15.Commonwealth v. Bailey, 124 Va. 800, 803, 97 S.E. 774, 775 (1919) ("those claiming to come within such exemption [to hunting license statute] must make it clearly appear"); 1990 Op Va. Att'y Gen. 266,267 (construing exception foster home licensing statute). 16.Grigg v. Commonwealth, 224 Va. 356, 264, 297 S.E. 2d 799, 803 (1982); see also 2A NORMAN J. SINGER, supra note 11, at 217 (when legislature expresses things through list, it is assumed that what is not listed is excluded); Op. Va. Att'y Gen.: 1990 at 105, 107; 1989 at 144, 147. 17."Of his or its own will or motion; voluntarily; without prompting or suggestion." BLACK'S LAW DICTIONARY 1424 (6th ed. 1990) 18.See, e.g., 19.2-169.1(A) (when there is probable cause to believe criminal defendant lacks substantial capacity to understand proceedings against him or to assist his attorney in his own defense); 19.2-176(A) (after conviction, if judge has reasonable grounds to question defendant's mental state); VA. SUP. CT. R. 4:10(a) (when mental condition of party is in controversy, only on motion for good cause shown); see also Schlagenhauf v. Holder, 279 U.S. 104 (1964) (mandamus proceeding to review federal district court's order for mental and physical examinations under Fed. R. Civ. P. 35 (a). =+=+=+=+ This information is provided as a service of the National Rifle Association Institute for Legislative Action, Fairfax, VA. This and other information on the Second Amendment and the NRA is available at any of the following URL's: http://WWW.NRA.Org, gopher://GOPHER.NRA.Org, wais://WAIS.NRA.Org, ftp://FTP.NRA.Org, mailto:LISTPROC@NRA.Org (Send the word help as the body of a message) Information may also be obtained by connecting directly to the NRA-ILA GUN-TALK Bulletin Board System at (703) 934-2121.