Acts and resolutions of the General Assembly of the State of Georgia 2009 [2009]

ACTS AND RESOLUTIONS OF THE
GENERAL ASSEMBLY
OF THE STATE OF GEORGIA
2009
COMPILED AND PUBLISHED BY AUTHORITY OF THE STATE
Volume One Book One

COMPILER'S NOTE
General Acts and Resolutions of the 2009 Regular Session of the General Assembly of Georgia will be found in Volume One, Book One beginning at page 1. The Supplementary Appropriations Act for FY 07-08 and the Appropriations Act for FY 08-09 will be found in the Volume One, Book Two Appendix. These two Acts have been separately placed in the Appendix in order to maintain the special formatting and unique characteristics of the underlying bills. Local and Special Acts and Resolutions will be found in Volume Two beginning at page 3501. Home rule actions by counties and consolidated governments and by municipalities filed in the Office of the Secretary of State between May 1, 2008 and April30, 2009 are printed in Volume Two beginning at pages 4417 and 4441, respectively.
There are no numbered pages between page 1009, the last page ofVolume One, Book One, and page 3501, the first page of Volume Two. This allows both volumes to be prepared simultaneously. Volume One has been divided into two books because of the number of pages in the volume. The only page numbers in Volume One, Book Two will be those appearing in the underlying bills.
Indexes; lists of Acts, Bills, and Resolutions and their Georgia Laws page numbers; material related to courts; population charts; lists of members of the General Assembly; referendum results; the state auditor's report on funding of retirement bills; and the Governor's veto message are printed in Volume Three. Indexes cover material in both Volumes One and Two. The tabular indexes list matter by broad categories. The general index is a detailed alphabetical index by subject matter. When possible, general Acts have been indexed by reference to the titles of the Official Code of Georgia Annotated which they amend and the tabular index contains a list of Code sections which have been amended, enacted, or repealed.
Each Act and Resolution is preceded by a caption written by the compilers of the Georgia Laws solely to assist the reader in quickly determining the subject matter of the Act or Resolution. This caption includes the Act number assigned by the Governor and the House or Senate Bill or Resolution number which it was given when it was introduced in the General Assembly. These captions are not part of the Act or Resolution when they are enacted or adopted by the General Assembly. Each Act or Resolution which was signed by the Governor is followed by the approval date on which it was signed by the Governor.

GEORGIA LAWS 2009
TABLE OF CONTENTS
VOLUME ONE
Acts and Resolutions of General Application ............................... . Supplementary Appropriations Act for FY 06-07...................... Appendix General Appropriations Act for FY 07-08 ............................ Appendix
VOLUME TWO
Acts and Resolutions of Local Application............................... 3501 County and Consolidated Government Home Rule Actions.................. 4417 Municipal Home Rule Actions........................................ 4441
VOLUME THREE
Acts by Numbers-Page References....................................... 1A Bills and Resolutions-Act Number References.............................. 5A Index-Tabular........................................................ 9A Index-General. ..................................................... 52A Population of Georgia Counties-Alphabetically........................... 11 OA Population of Georgia Counties-Numerically............................. 114A Population of Municipalities-Alphabetically.............................. 119A Population of Municipalities-Numerically................................ 127A Population of Judicial Circuits......................................... 135A Georgia Senate Districts, Alphabetically by County........................ 140A Georgia Senators, Numerically by District. .............................. 142A Georgia House Districts, Alphabetically by County........................ 146A Georgia Representatives, Numerically by District.. ........................ 148A Status of Referendum Elections........................................ 158A Vetoes by the Governor.............................................. 380A Signing Statements by the Governor. ................................... 387A Legislative Services Committee and Staff................................ 394A

GEORGIA LAWS 2009 SESSION
LOCAL GOVERNMENT - REVENUE- HOMEOWNER TAX RELIEF GRANTS; APPROPRIATIONS; RESERVATION.
No. 1 (House Bill No. 143).
AN ACT
To amend Title 36 and Title 45 of the Official Code of Georgia Annotated, relating, respectively, to local government and public officers and employees, so as to change the manner and method of appropriating funds for homeowner tax relief grants; to provide for procedures, conditions, and limitations; to change certain provisions regarding certain reservation authority for appropriations; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Title 36 ofthe Official Code of Georgia Annotated, relating to local government, is amended by revising Code Section 36-89-3, relating to appropriations for homeowner tax reliefgrants, as follows:
'36-89-3. (a) In the fiscal year ending on June 30, 2009, the General Assembly shall appropriate to the Department of Revenue funds to provide homeowner tax relief grants to counties, municipalities, and county or independent school districts. When funds are so appropriated, the General Appropriations Act shall specify the amount appropriated and the eligible assessed value of each qualified homestead in the state for the specified tax year, which eligible assessed value shall, subject to annual appropriation by the General Assembly, be not less than that specified in the Fiscal Year 2004 General Appropriations Act. If for any reason the amount appropriated in the General Appropriations Act is insufficient to fund the eligible assessed value stated in the General Appropriations Act, the amount appropriated may be adjusted in amendments to the General Appropriations Act. Ifthe amount appropriated in the General Appropriations Act is sufficient to fund the eligible assessed value stated in the General Appropriations Act, that amount shall not be reduced or withdrawn for any reason. (b) In the fiscal year ending on June 30,2009, the General Assembly shall appropriate to the Department of Revenue funds to provide homeowner tax relief grants to counties, municipalities, and county or independent school districts. When funds are so appropriated, the supplemental appropriation bill shall specify the amount appropriated and the eligible assessed value of each qualified homestead in the state for the specified tax year. If for any reason the amount appropriated in the supplemental appropriation bill is

2

GENERAL ACTS AND RESOLUTIONS, VOL. I

insufficient to fund the eligible assessed value stated in the supplemental appropriation bill, the amount appropriated is authorized to be, but is not required to be, adjusted in the General Appropriations Act for the next succeeding fiscal year. Ifthe amount appropriated in the General Appropriations Act is sufficient to fund the eligible assessed value stated in the General Appropriations Act, that amount shall not be reduced or withdrawn for any reason. (c) Subject to the limitations of subsection (d) of this Code section, in each fiscal year beginning on or after July I, 2009, the General Assembly shall appropriate to the Department of Revenue funds to provide homeowner tax relief grants to counties, municipalities, and county or independent school districts. When funds are so appropriated, the supplemental appropriation bill shall specify the amount appropriated and the eligible assessed value of each qualified homestead in the state for the specified tax year. If for any reason the amount appropriated in the supplemental appropriation bill is insufficient to fund the eligible assessed value stated in the supplemental appropriation bill, the amount appropriated is authorized to be, but is not required to be, adjusted in the General Appropriations Act for the next succeeding fiscal year. Ifthe amount appropriated in the General Appropriations Act is sufficient to fund the eligible assessed value stated in the General Appropriations Act, that amount shall not be reduced or withdrawn for any reason.
(d)( 1) As used in this subsection, the term 'budget report' means the budget report prepared pursuant to Code Section 45-12-74. (2) For each fiscal year beginning on or after July 1, 2009, no funds shall be appropriated under subsection (c) of this Code section in any supplemental appropriation bill or General Appropriations Act unless the amount of estimated total revenues available for appropriation enumerated in the budget report for the current fiscal year exceeds the amount of estimated total revenues available for appropriation enumerated in the budget report for the most recent fiscal year in which homeowner tax relief grant funds were appropriated by 3 percent plus the percent change in the rate of economic inflation on individual taxpayers as determined under the Consumer Price Index for all urban consumers published by the Bureau of Labor Statistics of the United State Department of Labor. (e) When funds are appropriated as provided in this Code section, each fiscal authority shall follow the procedures specified in Code Section 36-89-4. When funds are not appropriated, each fiscal authority shall not follow the procedures specified in Code Section 36-89-4 and shall not include a notice on each tax bill regarding the unavailability of the credit.'

SECTION 2. Title 45 ofthe Official Code ofGeorgia Annotated, relating to public officers and employees, is amended by revising Code 45-12-86, relating to the Governor's reservation authority for appropriations, as follows:

GEORGIA LAWS 2009 SESSION

3

'45-12-86. (a) Except as otherwise provided in subsection (c) of this Code section, the Governor, during the first six months of a fiscal year period in which the current revenue estimate on which appropriations are based is expected to exceed actual revenues, is authorized to require state agencies to reserve such appropriations as specified by the Governor for budget reductions to be recommended to the General Assembly at its next regular session. (b) Except as otherwise provided in subsection (c) of this Code section, the Governor, during any fiscal year by which the current revenue estimate on which appropriations are based is expected to exceed actual revenues, is authorized to withhold a percentage of agency allotment requests as necessary to maintain spending within actual revenues. (c) During any fiscal year beginning on or after July 1, 2009, in which the current revenue estimate on which appropriations are based is expected to exceed actual revenues and an appropriation for homeowner tax relief grants pursuant to Chapter 89 of Title 36 has been made which does not comply with the limitations specified under subsection (d) of Code Section 36-89-3, the Governor shall either require the state agency to which the appropriation was made to reserve such appropriations as specified by the Governor for budget reductions to be recommended to the General Assembly at its next regular session or withhold the agency allotment request for such appropriation as necessary to maintain spending within actual revenues.'

SECTION 3. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved February 17, 2009.

4

GENERAL ACTS AND RESOLUTIONS, VOL. I

EDUCATION- ANNUAL CONTRACT DEADLINES; MASTER TEACHER PROGRAM SUNSET REMOVAL; LEADERSHIP DEGREE SALARY.

No. 6 (House Bill No. 455).

AN ACT

To amend Code Section 20-2-211 of the Official Code of Georgia Annotated, relating to annual contracts for certificated personnel in elementary and secondary education, so as to temporarily extend certain deadlines; to amend Code Section 20-2-205 of the Official Code of Georgia Annotated, relating to the Georgia Master Teacher Program, so as to remove the sunset provision for the Georgia Master Teacher Program; to amend Code Section 20-2-212 of the Official Code of Georgia Annotated, relating to salary schedules for certificated personnel under the "Quality Basic Education Act," so as to provide for placement on the state salary schedule for an educator who has a leadership degree but is not in a leadership position; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Code Section 20-2-211 of the Official Code of Georgia Annotated, relating to annual contracts for certificated personnel in elementary and secondary education, is amended by revising subsection (b) as follows:
(b) Any other provisions of this article or any other laws to the contrary notwithstanding, each local governing board shall, by not later than April 15 of the current school year, tender a new contract for the ensuing school year to each teacher and other professional employee certificated by the Professional Standards Commission on the payroll ofthe local unit of administration at the beginning of the current school year, except those who have resigned or who have been terminated as provided in Part 7 of Article 17 of this chapter, or shall notify in writing each such teacher or other certificated professional employee of the intention of not renewing his or her contract for the ensuing school year; provided, however, that for school year 2009-20 l 0 only, each local governing board shall have until May 15,2009, to tender such new contracts or provide such written notice. Such contracts when tendered to each teacher or other professional employee shall be complete in all terms and conditions of the contract, including the amount of compensation to be paid to such teacher or other professional employee during the ensuing school year, and shall not contain blanks or leave any terms and conditions of the contract open. A letter of intent or similar document shall not constitute a contract and shall not be construed to require or

GEORGIA LAWS 2009 SESSION

5

otherwise legally bind the teacher or other professional employee to return to such school system. Upon request, a written explanation for failure to renew such contract shall be made available to such certificated personnel by the executive officer. When such notice of intended termination has not been given by April 15, or by May 15, 2009, for school year 2009-2010 only, the employment of such teacher or other certificated professional employee shall be continued for the ensuing school year unless the teacher or certificated professional employee elects not to accept such employment by notifying the local governing board or executive officer in writing not later than May 1, or by June 1, 2009, for school year 2009-2010 only.'

SECTION lA. Code Section 20-2-205 of the Official Code of Georgia Annotated, relating to the Georgia Master Teacher Program, is amended by revising subsection (d) as follows:
'(d) Reserved.'

SECTION lB. Code Section 20-2-212 of the Official Code of Georgia Annotated, relating to salary schedules for certificated personnel under the "Quality Basic Education Act," is amended by adding to the end of subsection (a) the following:
'For purposes of this subsection, an educator's placement on the salary schedule shall not be based on a leadership degree, which shall mean a degree earned in conjunction with completion of an educator leadership preparation program approved by the Professional Standards Commission, if the degree was earned on or after July 1, 2010, unless the educator is employed in a leadership position as defined by the State Board of Education, but shall be placed on the salary schedule position attributable to the educator but for the leadership degree; provided, however, that this shall not apply to an educator who possessed a leadership degree prior to July 1, 2010, regardless of whether or not he or she is in a leadership position.'

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April6, 2009.

6

GENERAL ACTS AND RESOLUTIONS, VOL. I

REVENUE - INTERNAL REVENUE CODE; INCORPORATE INTO GEORGIA LAW.

No.7 (House Bill No. 74).

AN ACT

To amend Code Section 48-1-2 of the Official Code of Georgia Annotated, relating to definitions regarding revenue and taxation, so as to define the terms "Internal Revenue Code" and "Internal Revenue Code of 1986" and thereby incorporate certain provisions of the federal law into Georgia law; to define the terms "Internal Revenue Code" and "Internal Revenue Code of 1986" for certain taxable years and thereby incorporate certain provisions of the federal law into Georgia law and provide that such provisions shall supersede and control over certain other provisions; to provide an effective date; to provide for applicability; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Code Section 48-1-2 of the Official Code of Georgia Annotated, relating to definitions regarding revenue and taxation, is amended by revising paragraph (14) as follows:
"(14) 'Internal Revenue Code' or 'Internal Revenue Code of 1986' means for taxable years beginning on or after January I, 2009, the provisions of the United States Internal Revenue Code of 1986, as amended, provided for in federal law enacted on or before January I, 2009, except that Section 168(b)(3)(I), Section 168(e)(3)(B)(vii), Section 168(e)(3)(E)(ix), Section 168(e)(8), Section 168(k) (but not excepting Section 168(k)(2)(A)(i), Section 168(k)(2)(D)(i), and Section 168(k)(2)(E)), Section 168(m), Section 168(n), Section 172(b)(1 )(F), Section 172(b)(I )(J), Section 172(j), Section 199, Section 1400L, Section 1400N(d)(1), Section 1400N(f), Section 1400N(j), Section 1400N(k), and Section 1400N(o) of the Internal Revenue Code of 1986, as amended, shall be treated as if they were not in effect, and except that Section 168(e)(7), Section 172(i)(l ), and Section 1221 of the Internal Revenue Code of 1986, as amended, shall be treated as they were in effect before the 2008 enactment of federal Public Law 110-343. In the event a reference is made in this title to the Internal Revenue Code or the Internal Revenue Code of 1954 as it existed on a specific date prior to January 1, 2009, the term means the provisions of the Internal Revenue Code or the Internal Revenue Code of 1954 as it existed on the prior date. Unless otherwise provided in this title, any term used in this title shall have the same meaning as when used in a comparable provision or context in the Internal Revenue Code of 1986, as amended. For taxable years beginning on or after January 1, 2009, provisions of the Internal Revenue Code of 1986, as amended,

GEORGIA LAWS 2009 SESSION

7

which were as of January 1, 2009, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes.'

SECTION 2. Said Code section is further amended by adding a new paragraph to read as follows:
'(14.3) 'Internal Revenue Code' or 'Internal Revenue Code of 1986' means for taxable years beginning after December 31, 2007, but before January 1, 2009, the provisions of the United States Internal Revenue Code of 1986, as amended, provided for in federal law enacted on or before January 1, 2009, except that Section 168(b)(3)(I), Section 168(e)(3)(B)(vii), Section 168(e)(3)(E)(ix), Section 168(e)(8), Section 168(k) (but not excepting Section 168(k)(2)(A)(i), Section 168(k)(2)(D)(i), and Section 168(k)(2)(E)), Section 168(m), Section 168(n), Section 172(b)(1 )(F), Section 172(b)(1 )(J), Section 1720), Section 199, Section 1400L, Section 1400N(d)(l), Section 1400N(f), Section 1400N(j), Section 1400N(k), and Section 1400N(o) of the Internal Revenue Code of 1986, as amended, shall be treated as if they were not in effect, and except that Section 168(e)(7), Section 172(i)(l), and Section 1221 of the Internal Revenue Code of 1986, as amended, shall be treated as they were in effect before the 2008 enactment of federal Public Law 110-343. For such taxable years, provisions of the Internal Revenue Code of 1986, as amended, which were as of January 1, 2009, enacted into law but not yet effective shall be effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes. The provisions of this paragraph shall supersede and control over any provision of paragraph (14) of this Code section to the contrary.'

SECTION 3. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval. Section 1 of this Act shall be applicable to all taxable years beginning on or after January 1, 2009. Section 2 of this Act shall be applicable to all taxable years beginning after December 31, 2007, but before January 1, 2009.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved April 8, 2009.

8

GENERAL ACTS AND RESOLUTIONS, VOL. I

OFFICIAL CODE OF GEORGIA ANNOTATEDCODE REVISION; CORRECTIONS.

No. 8 (Senate Bill No. 46).

AN ACT

To amend the Official Code of Georgia Annotated, so as to correct typographical, stylistic, capitalization, punctuation, and other errors and omissions in the Official Code of Georgia Annotated and in Acts of the General Assembly amending the Official Code of Georgia Annotated; to reenact the statutory portion of the Official Code of Georgia Annotated, as amended; to provide for necessary or appropriate revisions and modernizations of matters contained in the Official Code of Georgia Annotated; to repeal portions of the Code and Acts related thereto which have become obsolete; to delete portions of the Code and Acts related thereto which have been superseded by subsequent state laws; to provide for and to correct citations in the Official Code of Georgia Annotated and other codes and laws of the state; to rearrange, renumber, and redesignate provisions ofthe Official Code of Georgia Annotated; to provide for other matters relating to the Official Code of Georgia Annotated; to provide effective dates; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

Reserved.

SECTION 1.

Reserved.

SECTION 2.

SECTION 3. Title 3 of the Official Code of Georgia Annotated, relating to alcoholic beverages, is amended in: (I) Code Section 3-6-21.1, relating to licensing of farm wineries to engage in retail and wholesale sales, surety bond, and excise taxes, by adding a colon after "and" at the end of the introductory language of paragraph (I) of subsection (a). (2) Code Section 3-9-5, relating to the meaning of the term "bona fide nonprofit civic organization," by replacing "26 U.S.C. Sections 501(c), 501(d), or 501(e)" with "subsection (c), (d), or (e) of26 U.S.C. Section 501".

GEORGIA LAWS 2009 SESSION

9

Reserved.

SECTION 4.

Reserved.

SECTION 5.

Reserved.

SECTION 6.

Reserved.

SECTION 7.

Reserved.

SECTION 8.

Reserved.

SECTION 9.

SECTION 10. Title 10 of the Official Code of Georgia Annotated, relating to commerce and trade, is amended in: (1) Code Section 10-1-236, which is repealed, by designating said Code section as reserved. (2) Code Section 10-1-793, relating to violations in regard to motor vehicle warranty rights, by replacing "'Fair Business Practice Act';" with '"Fair Business Practices Act';" in subsection (a). (3) Chapter 8, which is repealed, by designating said chapter as reserved.

Reserved.

SECTION 11.

SECTION 12. Title 12 of the Official Code of Georgia Annotated, relating to conservation and natural resources, is amended in:

(1) Code Section 12-6-20, relating to forestry investigators, by replacing "this Code Section" with "this Code section" in subsection (d).

Reserved.

SECTION 13.

10

GENERAL ACTS AND RESOLUTIONS, VOL. I

Reserved.

SECTION 14.

Reserved.

SECTION 15.

SECTION 16. Title 16 of the Official Code of Georgia Annotated, relating to crimes and offenses, is amended in: (1) Code Section 16-11-34.1, relating to preventing or disrupting General Assembly sessions or other meetings of members and unlawful activities within the state capitol or certain Capitol Square buildings, by inserting a comma after "knuckles" and after "material" in subsection (b). (2) Code Section 16-11-101, relating to furnishing knuckles or a knife to a person under the age of 18 years, by inserting a comma after "knuckles" and after "material". (3) Code Section 16-11-126, relating to carrying a concealed weapon, by inserting a comma after "knuckles" in subsection (a). (4) Code Section 16-11-127.1, relating to carrying weapons within school safety zones, at school functions, or on school property, by inserting a comma after "knuckles" in paragraph (2) of subsection (a). (5) Code Section 16-11-135, relating to public or private employer's parking lot, right of privacy in vehicles in employer's parking lot or invited guests on lot, severability, and rights of action in regard to carrying and possession of firearms, by replacing "their locked privately owned vehicle" with "his or her locked privately owned vehicle" in paragraph (4) of subsection (c). (6) Code Section 16-13-30.6, relating to prohibition on the purchase and sale of marijuana flavored products, by replacing "the purpose of this law" with "the purpose of this Code section" in the undesignated text at the end of subsection (b).

Reserved.

SECTION 17.

Reserved.

SECTION 18.

SECTION 19. Title 19 of the Official Code of Georgia Annotated, relating to domestic relations, is amended in: (l) Code Section 19-8-26, relating to how the surrender of parental rights is executed, how and when surrender may be withdrawn, and forms, by deleting the double quotation marks at the beginning and the end of the form in subsection (f).

GEORGIA LAWS 2009 SESSION

11

SECTION 20. Title 20 of the Official Code of Georgia Annotated, relating to education, is amended in: ( 1) Code Section 20-2-71, relating to the placement of twins or higher order multiples in the same classroom, by replacing "5 days" with "five days" both times it appears in subsection (b). (2) Code Section 20-2-154.1, relating to alternative education programs, intent, description, and funding, by replacing "community-based" with "community based" in subsection (e). (3) Code Section 20-2-167, relating to funding for direct instructional, media center, and staff development costs, computerized uniform budget and accounting system, submission of local budget to state board, and provision of certain information by local boards, by replacing "Office of Education Accountability" with "Office of Student Achievement" in paragraph (2) of subsection (b). (4) Code Section 20-2-168, relating to the distribution of federal funds, combined purchase of supplies and equipment, minimum school year, summer school programs, and year-round operation, by inserting a comma after "sudden" in subparagraph (c)(5)(B). (5) Code Section 20-2-171, relating to minimum direct classroom expenditures, waivers, sanctions for noncompliance, submission of budget and expenditure information, and rules and regulations, by replacing "January 1, 2006 to add specific non-classroom staff' with "January 1, 2006, to add specific nonclassroom staff' in paragraph (2) of subsection (a) and by replacing "Acts of God" with "acts of God" in paragraph (4) of subsection (b). (6) Code Section 20-2-182, relating to Quality Basic Education and program weights to reflect funds for payment of salaries and benefits, maximum class size, reporting requirements, and application to specific school years, by replacing "provided, further," with "provided, however," in paragraph (2) of subsection (i). (7) Code Section 20-2-217, relating to the State Board of Education professional and staff development stipends, by replacing "the terms 'paraprofessional,' 'aide,' and 'licensed personnel' shall be defined" with "the term 'paraprofessional' shall be defined". (8) Code Section 20-2-271, relating to regional educational service agencies and development ofa regional improvement plan, introduction ofcore services, instructional care teams, and establishment of alternative methods of teacher certification, by replacing "Educational Coordinating Council." with "Education Coordinating Council." in paragraph (4) of subsection (b). (9) Code Section 20-2-984.3, relating to educational personnel and the Professional Standards Commission and the preliminary investigations of violations, requirement for automatic investigation, and investigation of sexual offenses, by replacing "as provided for in Code Section 16-6-1 through 16-6-17, 16-6-20," with "as provided for in Code Sections 16-6-1 through 16-6-17 or Code Section 16-6-20," in paragraph (5) of subsection (a) and "as provided for in Code Sections 16-6-1 through 16-6-17, 16-6-20,'' with "as provided for in Code Sections 16-6-1 through 16-6-17 or Code Section 16-6-20," in subsection (d). (10) Code Section 20-2-2068.1, relating to charter schools and Quality Basic Education formula and grants, local tax revenue, and funds from local bonds, by replacing "five

12

GENERAL ACTS AND RESOLUTIONS, VOL. I

percent" with "5 percent" in paragraph (l) of subsection (c) and by replacing "nonQBE state grants," with "non-QBE state grants," in subsection (d). (ll) Code Section 20-2-2090, relating to funding for commission charter schools, by replacing "nonQBE state grants," with "non-QBE state grants," in paragraph (2) ofsubsection (a). (12) Code Section 20-3-39, relating to reassignment of responsibilities for operation and management of public libraries, employees, transfer of funding, and rules and regulations, by replacing "the Technical College System of Georgia" with "the Department of Technical and Adult Education, now known as the Technical College System of Georgia," three times in subsection (a) and by replacing "the Technical College System of Georgia," with "the Department of Technical and Adult Education, now known as the Technical College System of Georgia," in subsection (e). (13) Code Section 20-3-295, relating to the Georgia Higher Education Assistance Corporation maintaining a certified list of borrowers in default, administrative hearings, and appeals, by replacing "Federal Bankruptcy Code." with "federal Bankruptcy Code." at the end of paragraph (4) of subsection (a) and paragraph (6) of subsection (g). (14) Code Section 20-3-405.3, relating to the Education for Public Service Student Loan interest rate and recalculation, by replacing "subparagraph (A) ofparagraph (2) of subsection (a)" with "subparagraph (a)(2)(A)" in subparagraph (b)(2)(A) and by replacing "subparagraph (B) of paragraph (2) of subsection (a)" with "subparagraph (a)(2)(B)" in subparagraph (b )(2)(B). (15) Code Section 20-3-431, relating to the definition of an eligible student in regard to the North Georgia College Reserve Officers' Training Corps Grant Program, by replacing "For purposes of this article," with "For purposes of this subpart," at the beginning of the introductory language. (16) Code Section 20-3-519, relating to definitions in regard to HOPE scholarships and grants, by replacing "'Eligible high school'," with "'Eligible high school,"' at the beginning of paragraph (6). (17) Code Section 20-3-519.2, relating to the eligibility requirements for a HOPE scholarship at a public postsecondary institution and scholarship amount, by replacing "the Technical College System of Georgia" with "the Department of Technical and Adult Education, now known as the Technical College System ofGeorgia," in divisions (a)(2)(B)(i) and (a)(2)(C)(i). (18) Code Section 20-3-519.3, relating to the eligibility requirements for a HOPE scholarship at a private postsecondary institution and scholarship amount, by replacing "the Technical College System of Georgia" with "the Department of Technical and Adult Education, now known as the Technical College System ofGeorgia," in divisions (a)(2)(B)(i) and (a)(2)(C)(i). (19) Code Section 20-3-519.6, relating to HOPE GED vouchers, by replacing "the Technical College System of Georgia" with "the Department of Technical and Adult Education, now known as the Technical College System of Georgia," in subsection (a).

GEORGIA LAWS 2009 SESSION

13

(20) Code Section 20-3-519.12, relating to eligibility for the Promise II teacher's scholarship, amounts, application of scholarship, and no minimal hour enrollment, by replacing "the terms 'paraprofessional' and 'instructional aide' shall have the same meaning as" with "the term 'paraprofessional' shall have the same meaning as" in subsection (a). (21) Code Section 20-3-660, relating to the creation of a program of postsecondary education grants for foster children and adopted children, terms and conditions, applications, eligibility, duties of the Division of Family and Children Services, expenses and fees covered, and report by the Education Coordinating Council, by replacing the period with a semicolon at the end of subparagraph (D) of paragraph (1 ), by replacing "20 U.S.C. Sec. 108711," with "20 U.S.C. Section 1087ll,", "42 U.S.C. Sees. 2751-2756b," with "42 U.S.C. Sections 2751-2756b,", and the period with a semicolon at the end of subparagraph (B) of paragraph (2), by replacing "general educational development certificate;" with "general educational development (GED) diploma;" in subparagraph (A) of paragraph (3), by replacing the period with a semicolon at the end of subparagraph (C) of paragraph (3), by replacing the period with a semicolon at the end of subparagraph (C) of paragraph (4), by replacing the period with a semicolon at the end ofparagraph (5), and by replacing the period with"; and" at the end of paragraph (6). (22) Code Section 20-4-17, relating to agencies to receive federal funds and transfer of personnel to the Technical College System of Georgia, by replacing "Technical College System of Georgia" with "Department of Technical and Adult Education, now known as the Technical College System of Georgia" in subsections (a) and (b). (23) Code Section 20-4-25, relating to membership in the retirement system and professional personnel employed on or after July I, 1985, and nonprofessional personnel employed after July 1, 1987, by replacing "the Technical College System of Georgia" with "the Department ofTechnical and Adult Education, now known as the Technical College System of Georgia," and by replacing "the department" with "the Department of Technical and Adult Education, now known as the Technical College System of Georgia,". (24) Code Section 20-4-26, relating to membership in the retirement system and employees of schools formerly operated by a local board of education or area postsecondary technical education board, by replacing "the department" with "the Department ofTechnical and Adult Education, now known as the Technical College System of Georgia,". (25) Code Section 20-4-27, relating to service in the state merit system, by replacing "the system" with "the Technical College System of Georgia". (26) Code Section 20-5-5, relating to Internet safety policies in public libraries, by replacing "patrons under 18 years of age and library employees" with "patrons under 18 years of age, and library employees" in paragraph (1) of subsection (b).

Reserved.

SECTION 21.

14

GENERAL ACTS AND RESOLUTIONS, VOL. I

Reserved.

SECTION 22.

Reserved.

SECTION 23.

Reserved.

SECTION 24.

SECTION 25. Title 25 of the Official Code of Georgia Annotated, relating to fire protection and safety, is amended in: (1) Code Section 25-14-3, relating to the Safety Fire Commissioner and standards for testing cigarettes, reports, and exceptions, by replacing "commissioner" with "Commissioner" each time it appears in paragraphs (5) and (8) of subsection (b) and subsections (d) through (g). (2) Code Section 25-14-4, relating to written certification in regard to cigarettes, by replacing "commissioner" with "Commissioner" in subsection (e). (3) Code Section 25-14-5, relating to the required marking of cigarettes, by replacing "commissioner" with "Commissioner" each time it appears in subsections (c) through (f). (4) Code Section 25-14-6, relating to civil penalty and forfeiture in regard to the sale of cigarettes, by replacing "commissioner or Attorney General" with "Commissioner or Attorney General" each time it appears in subsections (f) and (g). (5) Code Section 25-14-7, relating to rules and regulations and inspections in regard to the sale of cigarettes, by replacing "The commissioner" with "The Commissioner" in subsection (a) and by replacing "the commissioner" with "the Commissioner" in subsection (b). (6) Code Section 25-14-8, relating to enforcement of chapter and cooperation during inspections, by replacing "the commissioner," with "the Commissioner," both times it appears. (7) Code Section 25-14-11, relating to the impact of changes in New York safety standards, by replacing "the commissioner" with "the Commissioner".

SECTION 26. Title 26 of the Official Code of Georgia Annotated, relating to food, drugs, and cosmetics, is amended in: (1) Code Section 26-4-81, relating to substitution of generic drugs for brand name drugs, by deleting subsection (h) which is a duplicate of subsection (e). (2) Code Section 26-4-118, relating to the Pharmacy Audit Bill of Rights, recoupment of disputed funds, appeals process for unfavorable reports, final audit report, and investigative audits based on criminal offenses, by replacing "as provided for in subsection (c)," with "as provided for in subsection (c) of this Code section," in paragraph (10) of subsection (b).

GEORGIA LAWS 2009 SESSION

15

SECTION 27. Title 27 of the Official Code of Georgia Annotated, relating to game and fish, is amended in: (1) Code Section 27-4-150, relating to the taking, possessing, and dealing in crabs and peelers and required records, by striking the paragraph (l) designation in subsection (a), as paragraph (2) of subsection (a) was automatically repealed on July l, 2008.

Reserved.

SECTION 28.

Reserved.

SECTION 29.

Reserved.

SECTION 30.

SECTION 31. Title 31 of the Official Code of Georgia Annotated, relating to health, is amended in: (1) Code Section 31-2-9, relating to suicide prevention programs and staffing, by replacing "external cause of injuries;" with "external causes of injury;" at the end of paragraph (8) of subsection (c). (2) Code Section 31-3-5.2, relating to the definition of "gray water" and lawful use, by replacing "photo labs" with "photography laboratories" in paragraph (3) of subsection (b). (3) Code Section 31-5A-8, relating to biopharmaceuticals and expedited review for Georgia based companies, by replacing "low income individuals" with "low-income individuals" in paragraph (6) of subsection (a). (4) Code Section 31-6-2, relating to definitions in regard to the planning and development of state health care services and facilities, by replacing "the Commissioner ofthe Department of Community Health." with "the commissioner of community health." at the end of paragraph (9), by replacing "$2,500,000.00" with "$2.5 million" in subparagraph (A) and "$1,000,000.00" with "$1 million" and "build out costs," with "build-out costs," in subparagraph (B) of paragraph (14), by replacing "the Department of Community Health." with "the department." in paragraph (19), and by replacing "and as appropriate," with "and, as appropriate," in paragraph (28). (5) Code Section 31-6-20, relating to the Health Strategies Council, by replacing "rural hospitals;" with "hospitals in rural counties;" in paragraph (2) and "urban hospitals;" with "hospitals in urban counties;" in paragraph (3) of subsection (a). (6) Code Section 31-6-21, relating to the Department of Community Health, by replacing "Board of Community Health." with "board." at the end ofboth sentences in subsection (a). (7) Code Section 31-6-40, relating to certificate ofneed required for new institutional health services and exemption, by replacing "$2,500,000.00" with "$2.5 million" in paragraph (2)

16

GENERAL ACTS AND RESOLUTIONS, VOL. I

and"$! ,000,000.00;" with "$1 million;" in paragraph (3) of subsection (a), by replacing "the Department of Community Health" with "the department" in paragraph (1) and "monies" with "moneys" in the undesignated text at the end ofparagraph (2) of subsection (c), and by replacing "service specific" with "service-specific" in subsection (d). (8) Code Section 31-6-40.1, relating to the acquisition of health care facilities, penalty for failure to notify the department, limitation on applications, agreement to care for indigent patients, requirements for destination cancer hospitals, and notice and hearing provisions for penalties authorized under this Code section, by replacing "$2,000,000.00" with "$2 million" both times it appears, "$4,000,000.00" with "$4 million", "$6,000,000.00" with "$6 million", "$8,000,000.00." with "$8 million.", and "any such fine" with "any such fines" in paragraph ( 1) of subsection (c.!). (9) Code Section 31-6-41, relating to the scope and term of validity of a certificate of need, by replacing "location, area, cost," with "location, service area, cost," in subsection (a). (I 0) Code Section 31-6-45, relating to the revocation of a certificate of need, enforcement of chapter, and regulatory investigations and examinations, by replacing "commissioner of the department" with "commissioner" in subsection (c). (11) Code Section 31-6-47, relating to exemptions from the chapter, by replacing "$2,500,000.00;" with "$2.5 million;" in division (a)(l8)(A)(i), by replacing "$5,000,000.00;" with "$5 million;" in subparagraph (a)(19)(A), and by replacing "the Department of Community Health;" with "the department;" in division (a)(26)(A)(iii). (12) Code Section 31-7-13, relating to the transfer of property upon the death of a patient, by replacing "pursuant to Chapter 7 of this title," with "pursuant to this chapter," in the introductory language of subsection (a). (13) Code Section 31-7-282, relating to collection and submission of health care data, by replacing "specified in paragraphs (I) through (4) of this Code section" with "specified in paragraphs (I) through (3) ofthis Code section" and by replacing "specified in paragraph (2), (3), or (4) of this Code section" with "specified in paragraph (2) or (3) of this Code section" in the undesignated text at the end. (14) Code Section 31-7-304, relating to private home care providers and application, license, and license renewal fees or similar fees, by replacing "or a similar fee and the amount" with "or a similar fee; and the amount". ( 15) Code Section 31-18-4, relating to the duties of the Brain and Spinal Injury Trust Fund Commission, by replacing "for whom a report is made in this chapter" with "for whom a report is made pursuant to this chapter" in subsection (a). (16) Code Section 31-34-2, relating to the purpose of the "Physicians for Rural Areas Assistance Act," by replacing "under served" with "underserved".

SECTION 32. Title 32 ofthe Official Code ofGeorgia Annotated, relating to highways, bridges, and ferries, is amended in:

GEORGIA LAWS 2009 SESSION

17

(1) Code Section 32-2-81, relating to the definition of" design-build procedure," procedures for utilization, receipt of letters of interest, limitation on contracting, and summary projects regarding Department of Transportation contracts, by replacing the single quotation marks with double quotation marks before and after "best and final offer" in subparagraph (d)(7)(B). (2) Code Section 32-4-2, relating to an official map, list, and records and rules and regulations regarding the state highway system, by replacing "World Wide Web page" with "web page" in subparagraph (a)(2)(B). (3) Code Section 32-5-30, relating to the allocation of state and federal funds, budgeting periods, and authorization of reduction of funds allocated regarding public roads, by replacing "appropriated funds shall be budgeted" with "appropriated funds, shall be budgeted" in paragraph (I) of subsection (a). (4) Code Section 32-7-4, relating to the procedure for disposition of property, by replacing "governing authority of the county" with "governing authority ofthe county or municipality" in subparagraph (b)(2)(A). (5) Code Section 32-10-63, relating to powers of the State Road and Tollway Authority generally, by replacing "to fix their compensation" with "to fix their compensation;" in paragraph (3). (6) Code Section 32-10-124, relating to the power of the board and meaning of the use of the word "bank" for purposes of this article in regard to the Georgia Transportation Infrastructure Bank, by replacing "required by subparagraph (a)(9)(B) of Code Section 32-10-124;" with "required by subparagraph (B) of paragraph (9) of this subsection;" in paragraph (17) of subsection (a).

SECTION 33. Title 33 of the Official Code of Georgia Annotated, relating to insurance, is amended in: (I) Code Section 33-63-4, relating to offering, selling, or providing to borrowers guaranteed asset protection waivers, by replacing "the federal Truth in Lending Act, 15 U.S.C. 1601 et seq.," with "the federal Truth in Lending Act, 15 U.S.C. Section 1601, et seq.," in subsection (c).

Reserved.

SECTION 34.

SECTION 35. Title 35 of the Official Code of Georgia Annotated, relating to law enforcement officers and agencies, is amended in: (1) Code Section 35-1-15, relating to fresh pursuit by law enforcement officers, authority and responsibilities of officers, and applicability, by replacing "their respective state" with "his or her respective state" in paragraph (2) of subsection (a), by replacing "law enforcement officer of this state. Provided, however, that" with "law enforcement officer of this state;

18

GENERAL ACTS AND RESOLUTIONS, VOL. I

provided, however, that", and by replacing "Chapter 13 of Title 17 of the Official Code of Georgia Annotated govern" with "Chapter 13 of Title 17 shall govern" in paragraph (2) of subsection (c).

SECTION 36. Title 36 ofthe Official Code of Georgia Annotated, relating to local government, is amended in: (1) Code Section 36-44-6, relating to the delegation of redevelopment powers to a redevelopment agency, by replacing "Except as provided in subsection (c) of this Code section, the" with "The" in paragraph (5) of subsection (b), as subsection (c) was repealed in 2006.

SECTION 37. Title 37 of the Official Code of Georgia Annotated, relating to mental health, is amended in: (1) Code Section 37-1-20, relating to the Division of Mental Health, Developmental Disabilities, and Addictive Diseases, by replacing "federal laws, rules and regulations" with "federal laws and rules and regulations" in paragraph (4) of subsection (b). (2) Code Section 37-2-6.3, relating to public body and debts, obligations, and liabilities, by deleting the comma following "not" in subsection (c).

SECTION 38. Title 38 of the Official Code of Georgia Annotated, relating to military, emergency management, and veterans affairs, is amended in: (I) Code Section 38-3-27, relating to local organizations for emergency management, creation, structure, powers, directors, appointment, qualifications, and compensation, state to provide financial assistance, and entitlement for funding, by replacing "To appropriate and expend funds, execute contracts, and to obtain and distribute" with "To appropriate and expend funds, to execute contracts, and to obtain and distribute" in paragraph (1), by replacing "health, medical and related services, and to police," with "health, medical, and related services and to police," in paragraph (5), and by replacing "transportation charges, which are necessary" with "transportation charges which are necessary" in paragraph (6) of subsection (b).

SECTION 39. Title 39 of the Official Code of Georgia Annotated, relating to minors, is amended in: (1) Code Section 39-5-1, relating to definitions regarding on-line Internet safety, by redesignating current paragraph (1) as new paragraph (3) and by redesignating current paragraph (3) as new paragraph (1), so as to put definitions in alphabetical order.

GEORGIA LAWS 2009 SESSION

19

SECTION 40. Title 40 of the Official Code of Georgia Annotated, relating to motor vehicles and traffic, is
amended in: (1) Code Section 40-6-391, relating to driving under the influence of alcohol, drugs, or other intoxicating substances, penalties, publication of notice of conviction for persons convicted for second time, and endangering a child, by deleting "or" at the end of paragraph (3), by replacing the period with a semicolon at the end of paragraphs (4) and (5), and by replacing the period with"; and" at the end of paragraph (6) of subsection (c). (2) Code Section 40-14-25, relating to complaints about traffic-control signal monitoring devices, rebuttable presumption, and remission of revenues, by replacing "attorneys fees" with "attorney fees" in subsection (c). (3) Code Section 40-14-26, relating to the revoking of a traffic-control signal monitoring device permit, hearing, and reconsideration, by deleting the comma following "permit" in subsection (b).

Reserved.

SECTION 41.

SECTION 42. Title 42 of the Official Code of Georgia Annotated, relating to penal institutions, is amended in: (I) Code Section 42-1-12, relating to the State Sexual Offender Registry, by replacing the commas with semicolons after "hair color" and "eye color" in subparagraph (a)(16)(A), by deleting "provide" in subparagraphs (a)(16)(C) through (a)(l6)(F), by deleting the comma following "last registered" in paragraph (5) of subsection (b), and by replacing "registered sexual offender and thereafter the records" with "registered sexual offender; thereafter, the records" in paragraph (5) of subsection (c). (2) Code Section 42-4-14, relating to the determination ofthe nationality of a person charged with a felony and confined in a jail facility, by replacing "county, any municipality or a jail" with "county or any municipality or a jail" in subsection (a).

Reserved.

SECTION 43.

SECTION 44. Title 44 of the Official Code of Georgia Annotated, relating to property, is amended in: (I) Code Section 44-5-40, relating to conveyance of future interests or estates, by replacing "construction or other development plans, permits or entitlements" with "construction, or other development plans, permits, or entitlements" and by replacing "shall be descendible, devisable and alienable" with "shall be descendible, devisable, and alienable" in the last sentence.

20

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 45. Title 45 ofthe Official Code ofGeorgia Annotated, relating to public officers and employees, is amended in: (I) Code Section 45-9-81, relating to definitions in regard to the Georgia State Indemnification Fund, by replacing "worker's compensation benefits" with "workers' compensation benefits" in subparagraph (C) of paragraph (6). (2) Code Section 45-9-10 I, relating to definitions in regard to the Temporary Disability Compensation Program, by replacing "worker's compensation benefits" with "workers' compensation benefits" in subparagraph (B) of paragraph (5). (3) Code Section 45-12-86, relating to the Governor being authorized to require state agencies to reserve specified appropriations for budget reductions and withhold a percentage of agency allotments to maintain spending within actual revenues, by replacing "the current revenue estimate or which appropriations are based" with "the current revenue estimate on which appropriations are based" in subsection (b).

Reserved.

SECTION 46.

Reserved.

SECTION 47.

SECTION 48. Title 48 of the Official Code of Georgia Annotated, relating to revenue and taxation, is amended in: (I) Code Section 48-7-1, relating to definitions regarding income taxes, by replacing "division (iii) of subparagraph (A)" with "division (iii) of subparagraph (A) of this paragraph" in subparagraph (C) of paragraph (10). (2) Code Section 48-7-27, relating to the computation of taxable net income, by replacing "national guard" with "National Guard" in the introductory language of paragraph (12) of subsection (a) and in subparagraph (a)(12)(B), by replacing the semicolon with a period at the end of subparagraph (b)(I O)(A), and by replacing "; and" with a period at the end of subparagraph (b)(I O)(B). (3) Code Section 48-7-29.9, relating to a tax credit for qualified life insurance premiums for National Guard and Air National Guard members, by replacing "national guard" with "National Guard" and "air national guard" with "Air National Guard" in paragraphs (2) and (3) of subsection (a). (4) Code Section 48-7-29.11, relating to income tax credits forteleworking, definitions, and powers and duties, by replacing "December 31st" with "December 31" in paragraph (3) of subsection (e). (5) Code Section 48-7-29.13, relating to a tax credit for qualified health insurance expenses, by replacing "twelve consecutive months" with "12 consecutive months" in subsection (b).

GEORGIA LAWS 2009 SESSION

21

(6) Code Section 48-7-29.14, relating to income tax credit for clean energy property, by replacing "$2,500,000.00" with "$2.5 million" in subparagraphs (b)(3)(A) through (b)(3)(E). (7) Code Section 48-7-40.15, relating to alternative tax credits for base year port traffic increases and conditions and limitations, by replacing "or twenty-foot equivalent units (TEU's), of product" with "or twenty-foot equivalent units (TEU's) of product" in paragraph (l) of subsection (a). (8) Code Section 48-7-63, relating to taxpayer contributions to permitted stem cell research through income tax payment and refund process, by replacing "state revenue commissioner," with "commissioner," in subsection (a). (9) Code Section 48-7A-3, relating to persons entitled to claim tax credit, tax credits schedule, tax credit claimed against tax liability, period for filing claims for credit, applicability to food stamp recipients, and authority ofthe commissioner, by replacing "under this chapter" with "under Chapter 7 of this title" in paragraph (3) of subsection (a). (l 0) Code Section 48-8-2, relating to definitions in regard to general provisions of state sales and use tax, by deleting "or" at the end of subparagraph (J), by replacing the period with a semicolon at the end of subparagraph (K), and by replacing the period with "; or" at the end of subparagraph (L) of paragraph (3), by replacing "the 'Metropolitan Atlanta Rapid Transit Authority Act of 1965' or" with "the 'Metropolitan Atlanta Rapid Transit Authority Act of 1965'; or" in current paragraph (5.2), and by redesignating current paragraph (5.1) as new paragraph (5.2) and current paragraph (5.2) as new paragraph (5.1), respectively. (ll) Code Section 48-8-3, relating to state sales and use tax exemptions, by replacing the period with a semicolon at the end of subparagraph (H) of paragraph (33.1), by replacing the semicolon with a period at the end of subdivision (68)(C)(ii)(II), by replacing the semicolon with a colon at the end of subparagraph (B) ofparagraph (73), and by replacing "the effective date of this paragraph" with "June 4, 2003," in paragraph (76). (12) Code Section 48-8-13, relating to taxing jurisdiction for mobile telecommunications services, by replacing "ZIP code" with "ZIP Code" each time it appears in paragraphs (I) and (6) of subsection (a). (13) Code Section 48-8-50, relating to compensation of dealers for reporting and paying tax and reimbursement deduction, by replacing "paragraph (5.I) of Code Section 48-8-2," with "paragraph (5.2) of Code Section 48-8-2," in paragraph (4) of subsection (b). (14) Code Section 48-8-82, relating to the authorization of counties and municipalities to impose a joint sales and use tax, rate, and applicability to sales of motor fuels and food and beverages, by replacing "paragraph (5.2) of Code Section 48-8-2" with "paragraph (5.1) of Code Section 48-8-2". (15) Code Section 48-8-87, relating to the administration and collection of tax by commissioner, applicability of Article l of this chapter, first application of moneys to taxpayers' state tax liabilities, compensation of dealers if payments not delinquent, and rate, by replacing "paragraph (5.2) of Code Section 48-8-2;" with "paragraph (5.1) of Code Section 48-8-2;".

22

GENERAL ACTS AND RESOLUTIONS, VOL. I

(16) Code Section 48-8-102, relating to the creation of special districts, levying of tax, use of proceeds of tax, and restriction on levying taxes, by replacing "paragraph (5.2) of Code Section 48-8-2" with "paragraph (5.1) of Code Section 48-8-2" in subsection (b). (17) Code Section 48-8-104, relating to the exclusive administration of tax by the commissioner, identification of the location where the tax was collected, and manner of disbursement of proceeds, by replacing "paragraph (5.2) of Code Section 48-8-2;" with "paragraph (5.1) of Code Section 48-8-2;" in subsection (a). (18) Code Section 48-8-110.1, relating to the authorization for county special purpose local option sales tax, subjects of taxation, and applicability to sales of motor fuels and food and beverages, by replacing "paragraph (5.2) of Code Section 48-8-2" with "paragraph (5.1) of Code Section 48-8-2" in subsection (c). (19) Code Section 48-8-113, relating the administration and collection of tax by the commissioner, application, and deduction to dealers, by replacing "paragraph (5.2) of Code Section 48-8-2;" with "paragraph (5.1) of Code Section 48-8-2;". (20) Code Section 48-8-201, relating to intergovernmental contracts for distribution of tax proceeds, approval of referendum by voters, and a cap on the aggregate amount of tax, by replacing "paragraph (5.2) of Code Section 48-8-2;" with "paragraph (5.1) of Code Section 48-8-2;" in subparagraph (c)(l)(A). (21) Code Section 48-8-204, relating the administration and collection oftax and deduction, by replacing "paragraph (5.2) of Code Section 48-8-2;" with "paragraph (5.1) of Code Section 48-8-2;". (22) Code Section 48-9-14, relating to a second motor fuel tax, rate, exemptions, and applicability of Article 1 of Chapter 8 of this title, by replacing "paragraph (5.2) of Code Section 48-8-2." with "paragraph (5.1) of Code Section 48-8-2." in subparagraph (b)(2)(A). (23) Code Section 48-9-16, relating to penalties and interest, untimely return, failure to pay, false or fraudulent returns, failure to file returns, and dyed fuel oil violations, by replacing "subject to a penalty to 10 percent" with "subject to a penalty of 10 percent" in subsection (b). (24) Code Section 48-11-12, relating to the assessment of deficiencies and penalties for incorrect reports, nonpayment of tax, or purchase of insufficient stamps, assumption of illegal sale absent evidence to contrary, and penalty for deficiency due to fraud, by inserting "or" at the end of subparagraph (a)(l)(B). (25) Code Section 48-11-30, relating to the penalty for sale or possession of counterfeit cigarettes, by replacing "paragraphs (2) or (4)" with "paragraph (2) or (4)" in subsection (b). (26) Code Section 48-13-50.2, relating to definitions in regard to excise tax on rooms, lodgings, and accommodations, by replacing "section 501(c)(6)" with "Section 501(c)(6)" in paragraph (1 ). (27) Code Section 48-13-50.2, relating to definitions in regard to excise tax on rooms, lodgings, and accommodations, by replacing "regional development centers" with "regional commissions" in paragraph (5).

GEORGIA LAWS 2009 SESSION

23

(28) Code Section 48-13-51, relating to the county and municipal levies on public accommodations charges for promotion of tourism, conventions, and trade shows, by replacing "municipality levying tax;" with "municipality levying the tax;" in subparagraph (b)(5)(A).

SECTION 49. Title 49 of the Official Code of Georgia Annotated, relating to social services, is amended
in: (l) Code Section 49-2-13, relating to identifying transportation needs of the elderly and persons with disabilities and alternatives to meet them, by replacing "Any combination of above." with "Any combination of paragraphs (I) through (3) of this Code section." in paragraph (4). (2) Code Section 49-4-152.5, relating to pharmacy restocking fees, by replacing "pursuant to the 'Utilization of Unused Prescription Drugs Act' in Article 11 of Chapter 4 of Title 26." with "pursuant to Article 11 of Chapter 4 of Title 26, the 'Utilization of Unused Prescription Drugs Act"'. (3) Code Section 49-4-161, relating to definitions in regard to the Georgia Long-term Care Partnership Program, by replacing "as specified in 42 U.S.C. 1917(b)" with "as specified in 42 U.S.C. Section 1917(b)" in paragraph (4). (4) Code Section 49-4-168.1, relating to civil penalties for false or fraudulent Medicaid claims, by striking the comma after "used" in paragraphs (2) and (4), by striking the comma after "program" in paragraph (6), and by striking the commas after "used" and "Georgia" and inserting a comma after "repay" in paragraph (7) of subsection (a). (5) Code Section 49-4-168.2, relating to the role of the Attorney General in pursuing cases, civil actions by private persons, special procedures for civil actions by private persons, limitation on participation by a private person, stay of discovery, and receipt of proceeds from civil judgment by a private person and Indigent Care Trust Fund, by replacing "civil action, and shall not be" with "civil action and shall not be" in paragraph (1) of subsection (d). (6) Code Section 49-4-168.6, relating to venue, by replacing "multiple defendants, or" with "multiple defendants or" and replacing "can be found, transacts business or commits an act" with "can be found, transacts business, or commits an act". (7) Code Section 49-5-131, relating to definitions in regard to the Governor's Office for Children and Families, by deleting the subsection (a) designation, as there are no further subsection designations in this Code section. (8) Code Section 49-5-220, relating to legislative findings and intent and the State Plan for the Coordinated System of Care for severely emotionally disturbed children or adolescents, by replacing "The commissioner of the Department of Human Resources" with "The commissioner of human resources" once in subsection (d) and twice in subsection (e). (9) Code Section 49-6-60, relating to legislative intent, by replacing "community-based" with "community based" both times it appears.

24

GENERAL ACTS AND RESOLUTIONS, VOL. I

(1 0) Code Section 49-6-62, relating to the establishment of an elderly community care unit, provision of services, annual service plan, implementation plan, annual progress report, fees and contributions, and funding, by replacing "community-based" with "community based" each time it appears in subsections (d) and (e). (11) Code Section 49-6-63, relating to the establishment by lead agency of community care service system, certification for benefits, evaluation by assessment team, volunteers, and insurance coverage, by replacing "community-based" with "community based" each time it appears in subsections (e) and (f).

SECTION 50. Title 50 of the Official Code of Georgia Annotated, relating to state government, is amended m: (1) Code Section 50-5-60.1, which is repealed, by designating said Code section as reserved. (2) Code Section 50-5-83, relating to definitions and requirements for the state purchasing card program, by striking "gift cards," in paragraph (8) of subsection (b), which term is redundant ofparagraph (7) of subsection (b), and by replacing "20 years imprisonment," with "20 years' imprisonment," in subsections (c) and (d). (3) Code Section 50-7-70, relating to legislative findings, definitions, criteria and application process, fee, directional road signs, and rules and regulations regarding agricultural tourist attractions, by replacing "a one time application fee of up to $250 dollars." with "a one-time application fee of up to $250.00." in subsection (d). (4) Code Section 50-8-61, relating to the prohibited employment of an employee of a center or nonprofit corporation and penalties in regard to conflicts of interest in contract administration under the Department of Community Affairs, by replacing "center" with "commission" each time it appears in subsections (a) and (b). (5) Code Section 50-8-62, relating to employee's business transactions with center or nonprofit corporation prohibited and penalties, by replacing "center" with "commission". (6) Code Section 50-8-63, relating to disclosure of an employee's business transactions with a local government, exempt transactions, disclosure of loan transactions by a member of a board or advisory committee, and penalties, by replacing "center" with "commission" each time it appears in subsections (a) and (c). (7) Code Section 50-8-64, relating to competitive bidding requirements in regard to conflicts of interest in contract administration, by replacing "On or before January 1, 1993, each center" with "Each commission" and "board of directors of the center" with "board of directors of the commission". (8) Code Section 50-8-65, relating to the annual report to the Board of Community Affairs, by replacing "center" with "commission" each time it appears. (9) Code Section 50-12-31, relating to the creation of the Georgia Arts Alliance, purpose, governing organization, appointment of members of the board of trustees, terms, and advisory committee, by replacing "one of which" with "one of whom" each time the phrase appears in paragraph (1) of subsection (b).

GEORGIA LAWS 2009 SESSION

25

(10) Code Section 50-13-4, relating to the procedural requirements for adoption, amendment, or repeal of rules, emergency rules, limitation on action to contest rule, and legislative override, by replacing "chairmen" with "chairpersons" in paragraph (1) of subsection (f) and by replacing "the Senate Defense, Science and Technology Committee" with "the Senate Science and Technology Committee" and by replacing "the House Committee on Industry." with "the House Committee on Industrial Relations." in subsection (h). (11) Code Section 50-16-41, relating to rental agreements without competitive bidding being authorized, limitations, commission charged with managing administrative space of all state entities, standards governing the utilization of administrative space, reassignment of administrative space, and rules and regulations, by replacing "paragraph (2) of Code Section 48-7-40." with "paragraph (2) of subsection (b) of Code Section 48-7-40." in paragraph (2) of subsection (h). (12) Code Section 50-18-72, relating to the inspection of public records and when public disclosure is not required and disclosure ofexempting legal authority, by replacing "pursuant to Article 9" with "pursuant to Article 10" in paragraph (21) of subsection (a). (13) Code Section 50-32-2, relating to definitions in regard to the Georgia Regional Transportation Authority, by replacing "including but not limited to, the cost" with "including but not limited to the cost" in subparagraph (B) of paragraph (4) and by replacing "which are authorized" with "which is authorized" in paragraph (12). (14) Code Section 50-32-11, relating to the powers of the Georgia Regional Transportation Authority generally, by replacing "40 U.S.C. Section 4601, et seq.," with "42 U.S.C. Section 4601, et seq.," in paragraph (6) of subsection (a}, by replacing "paying in whole or in part, the cost" with "paying in whole or in part the cost" in subparagraph (a)(11)(A), and by replacing "not less than 60 days notice" with "not less than 60 days' notice" in paragraph (33) of subsection (a). (15) Code Section 50-32-14, relating to the expenditure of state or federal funds regarding the Georgia Regional Transportation Authority, by replacing "as determined by Department of Community Affairs" with "as determined by the Department of Community Affairs". (16) Code Section 50-32-15, relating to the issuance of bonds regarding the Georgia Regional Transportation Authority, by replacing "or the Georgia Rail Passenger Authority for the benefit" with "or the Georgia Rail Passenger Authority, for the benefit" in subsection (c). (17) Code Section 50-36-1, relating to verification requirements, procedures, and conditions, exceptions, regulations, and criminal and other penalties for violations regarding lawful presence within the United States, by replacing "every agency or a political subdivision" with "every agency or political subdivision" in subsection (a) and by replacing "federal Immigration and Nationality Act" with "federal Immigration and Nationality Act, Title 8 U.S.C., as amended," in paragraph (2) of subsection (d).

26 Reserved.

GENERAL ACTS AND RESOLUTIONS, VOL. I SECTION 51.

Reserved.

SECTION 52.

Reserved.

SECTION 53.

SECTION 54. Except for Title 47, the text of Code sections and title, chapter, article, part, subpart, Code section, subsection, paragraph, subparagraph, division, and subdivision numbers and designations as contained in the Official Code of Georgia Annotated published under authority of the state by The Michie Company in 1982 and contained in Volumes 3 through 40 of such publication or replacement volumes thereto, as amended by the text and numbering of Code sections as contained in the 2008 supplements to the Official Code of Georgia Annotated published under authority of the state in 2008 by LEXIS Publishing, are reenacted and shall have the effect of statutes enacted by the General Assembly of Georgia. Annotations; editorial notes; Code Revision Commission notes; research references; notes on law review articles; opinions of the Attorney General of Georgia; indexes; analyses; title, chapter, article, part, and subpart captions or headings, except as otherwise provided in the Code; catchlines of Code sections or portions thereof, except as otherwise provided in the Code; and rules and regulations ofstate agencies, departments, boards, commissions, or other entities which are contained in the Official Code of Georgia Annotated are not enacted as statutes by the provisions of this Act. Material which has been added in brackets or parentheses and editorial, delayed effective date, effect ofamendment, or other similar notes within the text of a Code section by the editorial staff of the publisher in order to explain or to prevent a misapprehension concerning the contents of the Code section and which is explained in an editorial note is not enacted by the provisions of this section and shall not be considered a part of the Official Code of Georgia Annotated. The reenactment of the statutory portion of the Official Code of Georgia Annotated by this Act shall not affect, supersede, or repeal any Act of the General Assembly, or portion thereof, which is not contained in the Official Code of Georgia Annotated and which was not repealed by Code Section 1-1-10, specifically including those Acts which have not yet been included in the text of the Official Code of Georgia Annotated because ofeffective dates which extend beyond the effective date of the Code or the publication date of the Code or its supplements. The provisions contained in other sections of this Act and in the other Acts enacted at the 2009 regular session of the General Assembly of Georgia shall supersede the provisions of the Official Code of Georgia Annotated reenacted by this section.

GEORGIA LAWS 2009 SESSION

27

SECTION 55. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval; except that: (I) The amendments to Chapter 14 of Title 25 made by paragraphs (1) through (7) of Section 25 of this Act shall become effective on January 1, 2010; (2) The amendment to paragraph (5) of Code Section 48-13-50.2 made by paragraph (27) of Section 48 of this Act shall become effective on July 1, 2009; and (3) The amendments to Chapter 8 ofTitle 50 made by paragraphs (4) through (8) of Section 50 of this Act shall become effective on July 1, 2009.

SECTION 56. All laws and parts of laws in conflict with this Act are repealed.

Approved April 14, 2009.

REVENUE-FAIR MARKET VALUE; FACTORS; FOREST LAND ASSESSMENT FILING DEADLINE; TAXPAYER NOTIFICATION OF CHANGES.
No. 9 (Senate Bill No. 55).
AN ACT
To amend Chapter 5 of Title 48 of the Official Code of Georgia Annotated, relating to ad valorem taxation of property, so as to change the factors required to be considered in determining fair market value of real property; to change the deadline for filing for forest land conservation use assessment; to change certain provisions regarding the establishment of the equalized adjusted property tax digest; to change certain provisions regarding notice of changes made in taxpayers' returns; to provide for an effective date; to provide for applicability; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 5 of Title 48 of the Official Code of Georgia Annotated, relating to ad valorem taxation ofproperty, is amended in Code Section 48-5-2, relating to definitions regarding ad valorem taxation of property, by revising subparagraph (B) of paragraph (3) as follows:

28

GENERAL ACTS AND RESOLUTIONS, VOL. I

'(B) The tax assessor shall consider the following criteria in determining the fair market value of real property:
(i) Existing zoning of property; (ii) Existing use of property, including any restrictions or limitations on the use of property resulting from state or federal law or rules or regulations adopted pursuant to the authority of state or federal law; (iii) Existing covenants or restrictions in deed dedicating the property to a particular use; (iv) Foreclosure sales, bank sales, other financial institution owned sales, or distressed sales, or any combination thereof, of comparable real property; (v) Decreased value of the property based on limitations and restrictions resulting from the property being in a conservation easement; and (vi) Any other existing factors deemed pertinent in arriving at fair market value."

SECTION 2. Said chapter is further amended by revising paragraph ( 1) of subsection (j) of Code Section 48-5-7.7, relating to forest land conservation use assessment, as follows:
'U)(l) For the taxable year beginning January 1, 2009, all applications for conservation use assessment under this Code section, including the covenant agreement required under this Code section, shall be filed on or before June 1 of the tax year for which such conservation use assessment is sought, except that in the case of property which is the subject ofa reassessment by the board oftax assessors an application for conservation use assessment may be filed in conjunction with or in lieu of an appeal of the reassessment. For each taxable year beginning on or after January 1, 2010, all applications for conservation use assessment under this Code section, including the covenant agreement required under this Code section, shall be filed on or before the last day for filing ad valorem tax returns in the county for the tax year for which such conservation use assessment is sought, except that in the case of property which is the subject of a reassessment by the board oftax assessors an application for conservation use assessment may be filed in conjunction with or in lieu of an appeal of the reassessment. An application for continuation of such conservation use assessment upon a change in ownership of all or a part of the qualified property shall be filed on or before the last date for filing tax returns in the year following the year in which the change in ownership occurred. Applications for conservation use assessment under this Code section shall be filed with the county board of tax assessors who shall approve or deny the application. The county board of tax assessors shall file a copy of the approved application in the office of the clerk of the superior court in the county in which the eligible property is located. The clerk of the superior court shall file and index such application in the real property records maintained in the clerk's office. If the application is not so recorded in the real property records, a transferee of the property affected shall not be bound by the covenant or subject to any penalty for its breach. The fee of the clerk of the superior

GEORGIA LAWS 2009 SESSION

29

court for recording such applications shall be paid by the qualified owner of the eligible property with the application for conservation use assessment under this Code section and shall be paid to the clerk by the board of tax assessors when the application is filed with the clerk. If the application is denied, the board of tax assessors shall notify the applicant in the same manner that notices of assessment are given pursuant to Code Section 48-5-306 and shall return any filing fees advanced by the owner. Appeals from the denial of an application by the board of tax assessors shall be made in the same manner that other property tax appeals are made pursuant to Code Section 48-5-311 .'

SECTION 3. Said chapter is further amended by revising subsection (c) of Code Section 48-5-274 relating to the establishment of the equalized adjusted property tax digest, as follows:
'(c) The assessment ratio of assessed value to fair market value of county property to be established by the state auditor for the purposes of paragraph (8) of subsection (b) of this Code section shall be established through the use ofpersonnel ofthe Department of Audits and Accounts who have sufficient competence and expertise by way of education, training, and experience in the fields of property evaluation and appraisal techniques. The Department of Audits and Accounts shall use the Standard on Assessment-Ratio Studies published by the International Association of Assessing Officers or its successors to determine the valid transactions necessary to establish accurately the measure of central tendency described in paragraph (8) of subsection (b) of this Code section; provided, however, that standard shall only be used to the extent it does not conflict with criteria enumerated in subparagraph (B) of paragraph (3) of Code Section 48-5-2.'

SECTION 4. Said chapter is further amended by revising subsections (a) and (b) of Code Section 48-5-306, relating to notice of changes made in taxpayers' returns, to read as follows:
'(a) Method ofgiving notice to taxpayer ofchanges made in such taxpayer's return. Each county board of tax assessors may meet at any time to receive and inspect the tax returns to be laid before it by the tax receiver or tax commissioner. The board shall examine all the returns of both real and personal property of each taxpayer and if in the opinion of the board any taxpayer has omitted from such taxpayer's returns any property that should be returned or has failed to return any of such taxpayer's property at its fair market value, the board shall correct the returns, assess and fix the fair market value to be placed on the property, make a note of such assessment and valuation, and attach the note to the returns. The board shall see that all taxable property within the county is assessed and returned at its fair market value and that fair market values as between the individual taxpayers are fairly and justly equalized so that each taxpayer shall pay as nearly as possible only such taxpayer's proportionate share of taxes. When any such corrections or changes, including valuation increases or decreases, or equalizations have been made by the board, the board shall, within five days, give written notice to the taxpayer of any such changes made in

30

GENERAL ACTS AND RESOLUTIONS, VOL. I

such taxpayer's returns. The notice may be given personally by leaving the notice at the taxpayer's dwelling house, usual place of abode, or place of business with some person of suitable age and discretion residing or employed in the house, abode, or business, or by sending the notice through the United States mail as first-class mail to the taxpayer's last known address. When notice is given by mail, the county board of tax assessors' return address shall appear in the upper left corner ofthe mailing face with the direction that if not delivered 'Return in five days to' the above return address, and the lower left comer of the mailing face shall be clearly marked in bold type- 'OFFICIAL TAX MATTER.' (b) Contents ofnotice.
(1) The notice required to be given by the county board of tax assessors under subsection (a) of this Code section shall be dated and shall contain the name and last known address of the taxpayer. If the assessment of the value of the taxpayer's property is changed, the notice shall contain:
(A) The amount of the previous assessment; (B) The amount of the current assessment; (C) The year for which the new assessment is applicable; (D) A brief description of the assessed property broken down into real and personal property classifications; (E) The fair market value of property of the taxpayer subject to taxation and the assessed value of the taxpayer's property subject to taxation after being reduced; and (F) The name and phone number of the person in the assessors' office who is administratively responsible for the handling of the appeal and who the taxpayer may contact if the taxpayer has questions about the reasons for the assessment change or the appeals process. (2) In addition to the items required under paragraph (1) of this subsection, the notice shall contain a statement of the taxpayer's right to an appeal, which statement shall be in substantially the following form: 'The amount of your ad valorem tax bill for this year will be based on the appraised and assessed values specified in this notice. You have the right to appeal these values to the county board of tax assessors either followed by an appeal to the county board of equalization or to arbitration and in either case, to appeal to the superior court. If you wish to file an appeal, you must do so in writing no later than 30 days after the date of this notice. If you do not file an appeal by this date, your right to file an appeal will be lost. For further information on the proper method for filing an appeal, you may contact the county board oftax assessors which is located at: (insert address) and which may be contacted by telephone at: (insert telephone number).''

SECTION 5. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall be applicable to all taxable years beginning on or after January 1, 2009.

GEORGIA LAWS 2009 SESSION

31

SECTION 6. All laws and parts of laws in conflict with this Act are repealed.

Approved Aprill4, 2009.

EDUCATION- AUTO- INJECTABLE EPINEPHRINE; STUDENTS.
No. 10 (Senate Bill No.8).
AN ACT
To amend Part 3 of Article 16 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to student health in elementary and secondary education, so as to provide for possession and self-administration of auto-injectable epinephrine by students; to provide for a definition; to provide for local board of education policies; to provide for requirements and conditions; to provide for disciplinary action for misuse of auto-injectable epinephrine; to provide for limited liability; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Part 3 of Article 16 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to student health in elementary and secondary education, is amended by adding a new Code section to read as follows:
'20-2-776. (a) As used in this Code section, the term 'auto-injectable epinephrine' means a disposable drug delivery device that is easily transportable and contains a premeasured single dose of epinephrine used to treat life-threatening allergic reactions. (b) Each local board of education shall adopt a policy authorizing a student to carry and self-administer prescription auto-injectable epinephrine. Such policy shall provide that in order to carry and self-administer prescription auto-injectable epinephrine, the student's parent or guardian shall provide:
(1) A written statement from a physician licensed under Chapter 34 of Title 43 detailing the name of the medication, method, amount, and time schedules by which the medication is to be taken, and confirming that the student is able to self-administer auto-injectable epinephrine; and

32

GENERAL ACTS AND RESOLUTIONS, VOL. I

(2) A written statement by the parent or guardian consenting to the self-administration, providing a release for the school nurse or other designated school personnel to consult with the physician regarding any questions that may arise with regard to the medication, and releasing the school system and its employees and agents from civil liability if the self-administering student suffers an adverse reaction as a result of self-administering auto-injectable epinephrine pursuant to this Code section. The written statements specified in this subsection shall be provided at least annually and more frequently if the medication, dosage, frequency of administration, or reason for administration changes. (c) The policy adopted pursuant to subsection (b) of this Code section shall include provisions to protect the safety of all students from the misuse or abuse of auto-injectable epinephrine. (d) Any student who is authorized for self-administration of epinephrine pursuant to this Code section may possess and use auto-injectable epinephrine: (1) While in school; (2) At a school sponsored activity; (3) While under the supervision of school personnel; or (4) While in before-school or after-school care on school operated property. (e) A student may be subject to disciplinary action if he or she uses auto-injectable epinephrine in a manner other than as prescribed. (f) A local school system and its employees and agents shall incur no liability other than for willful or wanton misconduct for any injury to a student caused by his or her use of auto-injectable epinephrine.'

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

PENAL INSTITUTIONS- PROBATION MANAGEMENT ACT.
No. 11 (Senate Bill No. 24).
AN ACT
To amend Chapter 8 of Title 42 of the Official Code of Georgia Annotated, relating to probation, so as to provide for comprehensive provisions regarding management of probationers; to provide for the 'Probation Management Act'; to provide administrative

GEORGIA LAWS 2009 SESSION

33

sanctions as an alternative to judicial modification or revocation of probation; to provide for preliminary administrative hearings and hearing officers; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Chapter 8 of Title 42 of the Official Code of Georgia Annotated, relating to probation, is amended by adding a new article to read as follows:

"ARTICLE 9

42-8-150. This article shall be known and may be cited as the 'Probation Management Act.'

42-8-151. For purposes of this article, the term:
( 1) 'Commissioner' means the commissioner of corrections. (2) 'Chief probation officer' means the highest ranking field probation officer in each judicial circuit. (3) 'Department' means the Department of Corrections. (4) 'Electronic monitoring' means supervising, mapping, or tracking the location of a probationer by means including electronic surveillance, voice recognition, facial recognition, fingerprinting or biometric scan, automated kiosk, automobile ignition interlock device, or global positioning systems which may coordinate data with crime scene information. (5) 'Hearing officer' means an impartial department employee or representative who has been selected and appointed to hear alleged cases regarding violations of probation for administrative sanctioning. (6) 'Initial sanction' means the sanction set by the judge upon initial sentencing. (7) 'Intensive probation' means a level ofprobation supervision which includes, but is not limited to, curfews, community service, drug testing, program participation, special conditions of probation, and general conditions of probation as set forth in Code Section 42-8-35. (8) 'Options system day reporting center' means a state facility providing supervision of probationers which includes, but is not limited to, mandatory reporting, program participation, drug testing, community service, all special conditions of probation, and general conditions of probation as set forth in Code Section 42-8-35. (9) 'Options system probationer' means a probationer who has been sentenced to the sentencing options system.

34

GENERAL ACTS AND RESOLUTIONS, VOL. I

(10) 'Probation supervision' means a level of probation supervision which includes, but is not limited to, general conditions ofprobation as set forth in Code Section 42-8-35 and all special conditions of probation. ( 11) 'Residential substance abuse treatment facility' means a state correctional facility that provides inpatient treatment for alcohol and drug abuse. (12) 'Sentencing options system' means a continuum of sanctions for probationers that includes the sanctions set forth in subsection (c) of Code Section 42-8-153.

42-8-152. (a) In addition to any other terms or conditions of probation provided for under this chapter, the trial judge may require that defendants who are sentenced to probation pursuant to subsection (c) of Code Section 42-8-34 be ordered to the sentencing options system. (b) Where a defendant has been ordered to the sentencing options system, the court shall retain jurisdiction throughout the period of the probated sentence as provided in subsection (g) of Code Section 42-8-34, and may modify or revoke any part of a probated sentence as provided in Code Section 42-8-34.1 and subsection (c) of Code Section 42-8-38.

42-8-153. (a) The department is authorized to establish by rules and regulations a system of administrative sanctions as an alternative to judicial modifications or revocations for probationers who violate the terms and conditions of the sentencing options system established under this article. The department may not, however, sanction probationers for violations of special conditions of probation or general conditions of probation for which the sentencing judge has expressed an intention that such violations be heard by the court pursuant to Code Section 42-8-34.1. (b) The department shall only impose restrictions which are equal to or less restrictive than the sanction cap set by the sentencing judge. (c) The administrative sanctions which may be imposed by the department are as follows, from most restrictive to least restrictive:
(1) Probation detention center or residential substance abuse treatment facility; (2) Probation boot camp; (3) Department of Corrections day reporting center; (4) Intensive probation; (5) Electronic monitoring; (6) Community service; or (7) Probation supervision. (d) The department may order offenders sanctioned pursuant to paragraphs (1) through (3) of subsection (c) of this Code section to be held in the local jail until transported to a designated facility.

GEORGIA LAWS 2009 SESSION

35

42-8-154. (a) Whenever an options system probationer is arrested on a warrant for an alleged violation of probation, an informal preliminary hearing shall be held within a reasonable time not to exceed 15 days. (b) A preliminary hearing shall not be required when:
(l) The probationer is not under arrest on a warrant; (2) The probationer signed a waiver of a preliminary hearing; or (3) The administrative hearing referred to in Code Section 42-8-155 will be held within 15 days of arrest.

42-8-155. (a) If an options system probationer violates the conditions of probation, the department may impose administrative sanctions as an alternative to judicial modification or revocation of probation. (b) Upon issuance of a petition outlining the alleged probation violations, the chief probation officer, or his or her designee, may conduct a hearing to determine whether an options system probationer has violated a condition of probation. If the chief probation officer determines that the probationer has violated a condition of probation, the chief probation officer is authorized to impose sanctions consistent with paragraphs (4) through (7) of subsection (c) of Code Section 42-8-153. The failure of an options system probationer to comply with a sanction imposed by the chief probation officer shall constitute a violation of probation.
(c)(l) Upon issuance of a petition outlining the alleged probation violations, the hearing officer may initiate an administrative proceeding to determine whether an options system probationer has violated a condition of probation. If the hearing officer determines by a preponderance of the evidence that the probationer has violated a condition of probation, the hearing officer may impose sanctions consistent with Code Section 42-8-153. (2) The administrative proceeding provided for under this subsection shall be commenced within 15 days, but not less than 48 hours after notice of the administrative proceeding has been served on the probationer. The administrative proceeding may be conducted electronically. (d) The failure of a probationer to comply with the sanction or sanctions imposed by the chief probation officer or hearing officer shall constitute a violation of probation. (e) An options system probationer may at any time waive a hearing and voluntarily accept the sanctions proposed by the department.

42-8-156. (a) The hearing officer's decision shall be final unless the options system probationer files a request for review with the senior hearing officer. A request for review must be filed within 15 days of the issuance of the department's decision. Such request shall not stay the

36

GENERAL ACTS AND RESOLUTIONS, VOL. I

department's decision. The senior hearing officer shall issue a response within seven days of receipt of the review request. (b) The senior hearing officer's decision shall be final unless the options system probationer files an appeal in the sentencing court. Such appeal shall name the commissioner as defendant and shall be filed within 30 days of the issuance ofthe decision by the senior hearing officer. (c) This appeal shall first be reviewed by the judge upon the record. At the judge's discretion, a de novo hearing may be held on the decision. The filing of the appeal shall not stay the department's decision. (d) Where the sentencing judge does not act on the appeal within 30 days of the date of the filing of the appeal, the department's decision shall be affirmed by operation of law.

42-8-157. Nothing contained in this article shall be construed as repealing any power given to any court of this state to place offenders on probation or to supervise offenders.

42-8-158. This article shall only apply in judicial circuits where the department has allocated certified hearing officers.

42-8-159. This article shall be liberally construed so that its purposes may be achieved."

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

GEORGIA LAWS 2009 SESSION

37

STATE GOVERNMENT- OPEN RECORDS; FEDERAL RECORDS; FIREFIGHTERS; EMERGENCY MEDICAL TECHNICIANS; ACCOUNT NUMBERS; PASSWORDS; CONTACT INFORMATION.

No. 12 (Senate Bill No. 26).

AN ACT

To amend Code Section 50-18-72 of the Official Code of Georgia Annotated, relating to when public disclosure ofpublic records is not required and the disclosure ofexempting legal authority, so as to clarify disclosure of federal records; to limit the disclosure of certain private information of firefighters and emergency medical technicians; to limit the disclosure of individual account numbers and passwords used to access accounts; to provide that public disclosure shall not be required for certain personal contact information of individuals obtained by a local government; to provide for disclosure of certain information; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Code Section 50-18-72 of the Official Code of Georgia Annotated, relating to when public disclosure of public records is not required and the disclosure of exempting legal authority, is amended by revising paragraph (1) of subsection (a), subparagraph (a)(11.3)(A), and paragraph (13) of subsection (a) as follows:
(1) Specifically required by federal statute or regulation to be kept confidential; "(11.3)(A) An individual's social security number, mother's birth name, credit card information, debit card information, bank account information, account number, including a utility account number, password used to access his or her account, financial data or information, and insurance or medical information in all records, and if technically feasible at reasonable cost, day and month of birth, which shall be redacted prior to disclosure of any record requested pursuant to this article; provided, however, that such information shall not be redacted from such records if the person or entity requesting such records requests such information in a writing signed under oath by such person or a person legally authorized to represent such entity which states that such person or entity is gathering information as a representative of a news media organization for use in connection with news gathering and reporting; and provided, further, that such access shall be limited to social security numbers and day and month of birth; and provided, further, that this news media organization exception for access to social security numbers and day and month of birth and the other protected information set forth in this subparagraph shall not apply to teachers, employees of a

38

GENERAL ACTS AND RESOLUTIONS, VOL. I

public school, or public employees as set forth in paragraph (13.1) of this subsection. For purposes of this subparagraph, the term 'public employee' means any nonelected employee of the State of Georgia or its agencies, departments, or commissions or any county or municipality or its agencies, departments, or commissions." 0 (13) Records that would reveal the home address or telephone number, social security number, or insurance or medical information of employees of the Department of Revenue, law enforcement officers, firefighters as defined in Code Section 25-4-2, judges, emergency medical technicians and paramedics, scientists employed by the Division of Forensic Sciences of the Georgia Bureau of Investigation, correctional employees, and prosecutors or identification ofimmediate family members or dependents thereof;"

SECTION 1.1. Said Code section is amended by revising paragraph (11.2) of subsection (a) as follows:
0 (11.2) Records that would reveal the names, home addresses, telephone numbers, security codes, e-mail addresses, or any other data or information developed, collected, or received by counties or municipalities in connection with neighborhood watch or public safety notification programs or with the installation, servicing, maintaining, operating, selling, or leasing of burglar alarm systems, fire alarm systems, or other electronic security systems; provided, however, that initial police reports and initial incident reports shall remain subject to disclosure pursuant to paragraph (4) of this subsection;u.

SECTION 1.2. Said Code section is further amended by revising subparagraph (a)(l1.3)(B) by striking "or" at the end of division (viii), by striking the period and inserting"; or" at the end of division (ix), and by adding a new division to read as follows:
u( x) The disclosure of the date of birth within criminal records."

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

GEORGIA LAWS 2009 SESSION

39

PUBLIC UTILITIES - GEORGIA NUCLEAR ENERGY ACT.

No. 13 (Senate Bill No. 31).

AN ACT

To enact the "Georgia Nuclear Energy Financing Act"; to amend Code Section 46-2-25 of the Official Code of Georgia Annotated, relating to the procedure for changing any rate, charge, classification, or service, so as to provide for a utility to recover from its customers the costs of financing associated with the construction of a nuclear generating plant; to provide a short title; to provide for the calculation and collection of the financing costs; to provide for the Georgia Public Service Commission to exercise discretion in setting the level of assistance for senior and low income customers; to provide the commission with the authority to authorize any specific accounting treatment for the costs recovered; to provide for review by the commission as to whether the costs recovered are being properly recorded; to provide for related matters; to provide for an effective date; 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 "Georgia Nuclear Energy Financing Act."

SECTION 2. Code Section 46-2-25 of the Official Code of Georgia Annotated, relating to the procedure for changing any rate, charge, classification, or service, is amended by adding a new subsection as follows:
"(c.l)(l) Notwithstanding any provision to the contrary, a utility shall recover from its customers, as provided in this subsection, the costs of financing associated with the construction of a nuclear generating plant which has been certified by the commission. The financing charges shall accrue on all applicable certified costs as they are recorded in the utility's construction work in progress accounts pursuant to generally accepted accounting and regulatory principles as approved by the commission. The financing costs shall be based on the utility's actual cost of debt, as reflected in its annual surveillance report filed with the commission, and based on the authorized cost of equity capital and capital structure as determined by the commission when setting the utility's current base rates. These financing costs shall be recovered from each customer through a separate rate tariff and allocated on an equal percentage basis to standard base tariffs which are designed to collect embedded capacity costs. The commission shall retain the discretion to consider the effect of this tariff when setting the level of any senior or low

40

GENERAL ACTS AND RESOLUTIONS, VOL. I

income assistance it may authorize; provided, however, that the income qualification for such assistance shall be 200 percent of the federal poverty level. (2) The commission shall have the authority to authorize any specific accounting treatment for the costs recovered pursuant to this subsection and to review whether costs recovered pursuant to this subsection are being properly recorded.
(3)(A) For any nuclear generating plant certified by the commission on or after July 1, 2009, the utility may begin recovering the costs of financing the construction of the nuclear generating plant at any time within five years after the date on which such nuclear generating plant is certified. Any such costs incurred between the time the plant is certified and the time the utility begins recovering its cost shall be accrued, capitalized, and included in the balance of the account and then amortized over the next five years following the date on which the utility begins recovering the costs of financing the construction and shall be recovered with one-fifth of those deferred costs being recovered each year for five years. (B) For any nuclear generating plant certified by the commission on or after January 1, 2009, and before July 1, 2009, the utility shall begin recovering on January 1, 2011, any costs of financing the construction of the nuclear generating plant. Any such costs incurred prior to January 1, 2011, shall be accrued, capitalized, and included in the balance of the account and then amortized over the next five years following January 1, 2011, and shall be recovered with one-fifth of those deferred costs being recovered each year for five years. (4) The costs recoverable pursuant to this subsection shall be recalculated and the level of the charges reset annually if necessary to reflect the level of construction costs expected to be incurred in the next 12 months consistent with the certificate and the financing costs expected to be incurred for the next 12 months together with a balanced accounting of actual expenditures and financing costs incurred in the preceding period. (5) The financing costs associated with a nuclear generating plant which has been certified by the commission shall continue to be recovered between the time that the generating plant begins commercial operation and until the next general rate case filed by the utility becomes effective, at which time the financing costs being collected for any generating plants which are then in commercial operation shall be included in the general revenue requirements of the utility and collected in the general base rates of the utility.'

SECTION 3. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

GEORGIA LAWS 2009 SESSION

41

ELECTIONS- CODE REVISION; CORRECTIONS.

No. 14 (Senate Bill No. 47).

AN ACT

To amend Title 21 of the Official Code of Georgia Annotated, relating to elections, so as to correct typographical, stylistic, and other errors and omissions in Title 21 of the Official Code of Georgia Annotated and in Acts of the General Assembly amending Title 21 of the Official Code of Georgia Annotated; to correct capitalization and spelling in Title 21 of the Official Code of Georgia Annotated; to provide for necessary or appropriate revisions and modernizations of matters contained in Title 21 of the Official Code of Georgia Annotated; to provide for other matters relating to Title 21 of the Official Code of Georgia Annotated; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Title 21 of the Official Code of Georgia Annotated, relating to elections, is amended in: (1) Code Section 21-2-381, relating to making of application for absentee ballot, determination of eligibility by ballot clerk, furnishing of applications to colleges and universities, and persons entitled to make application, by replacing "registar" with "registrar" in the last sentence of paragraph (4) of subsection (a). (2) Code Section 21-5-70, relating to definitions in regard to public officials' conduct and lobbyist disclosure, by replacing "vender" with "vendor" both times it appears in subparagraph (G) of paragraph (5).

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

42

GENERAL ACTS AND RESOLUTIONS, VOL. I

LABOR- INSURANCE- REPEAL WORKERS' COMPENSATION INSURER COSTS DISCLOSURE.

No. 15 (Senate Bill No. 76).

AN ACT

To amend Chapter 9 of Title 34 of the Official Code of Georgia Annotated, relating to workers' compensation, so as to repeal Code Section 34-9-135; to amend Chapter 9 of Title 33 of the Official Code of Georgia Annotated, relating to regulation of insurance rates, so as to remove certain references; to provide for related matters; to repeal conflicting laws; and for other purposes.

SECTION 1. Chapter 9 of Title 34 of the Official Code of Georgia Annotated, relating to workers' compensation, is amended by revising Code Section 34-9-135, relating to disclosure of costs by insurer, as follows:
"34-9-135. Reserved."

SECTION 2. Chapter 9 of Title 33 of the Official Code of Georgia Annotated, relating to regulation of insurance rates, is amended by revising paragraph (2) of subsection (a) in Code Section 33-9-21, relating to maintenance and filing of insurance rates, rating plans, rating systems, or underwriting rules and examination of claim reserve practices by the Commissioner of Insurance, as follows:
"(2) Shall require, not later than July 30, 1990, each domestic, foreign, and alien insurer, writing or authorized to write workers' compensation insurance in this state, to file such insurer's own individual rate filing for premium rates to be charged for workers' compensation insurance coverage written in this state. Such premium rates shall be developed and established based upon each individual insurer's experience in the State of Georgia to the extent actuarially credible. The experience filed shall include the loss ratios, reserves, reserve development information, expenses, including commissions paid and dividends paid, investment income, pure premium data adjusted for loss development and loss trending, profits, and all other data and information used by that insurer in formulating its workers' compensation premium rates which are used in this state and any other information or data required by the Commissioner. In establishing and maintaining loss reserves, no workers' compensation insurer shall be allowed to maintain any excess loss reserve for any claim or potential claim for more than 90 days after the amount of liability for such claim or potential claim has been established, whether by final

GEORGIA LAWS 2009 SESSION

43

judgment, by settlement agreement, or otherwise. This limitation on the maintenance of loss reserves shall be enforced through this Code section, as well as through Code Section 33-9-23, relating to examination of insurers, and any other appropriate enforcement procedures. The Commissioner is authorized to accept such rate classifications as are reasonable and necessary for compliance with this chapter. A rate filing required by this paragraph shall be updated by the insurer at least once every two years, the initial two-year period to be calculated from July 30, 1990; and"

SECTION 3. Said chapter is further amended by revising subsection (b) of Code Section 33-9-40.1, relating to rates of workers' compensation policies issued to business entities with majority interest held by the same person, limitations on maintenance of reserves, and investigations of complaints, as follows:
'(b) For experience rating purposes, no workers' compensation insurer shall maintain any case reserve for any claim in excess of the amount established by final judgment, by settlement, or otherwise. All reductions in case reserves shall be made and reported to the appropriate rating organization within 90 days. Any further adjustments upward in the case reserve shall only be made due to additional paid claims or a case reserve established on a claim which was previously closed but reopened due to a claimant's request for additional benefits. This limitation on the maintenance of reserves shall be enforced through this Code section, as well as through Code Section 33-9-21, relating to rate filings, Code Section 33-9-23, relating to examination ofinsurers, and any other appropriate enforcement procedures."

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

SOCIAL SERVICES- CHILD ABUSE RECORDS; NEAR FATALITY; RECORDS ACCESS.
No. 16 (Senate Bill No. 79).
AN ACT
To amend Article 2 of Chapter 5 of Title 49 of the Official Code of Georgia Annotated, relating to child abuse and deprivation records, so as to define a certain term; to provide for

44

GENERAL ACTS AND RESOLUTIONS, VOL. I

access by certain governmental entities and certain persons to records concerning reports of child abuse; to provide that certain records relating to a child fatality or near fatality shall not be confidential; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Article 2 of Chapter 5 of Title 49 ofthe Official Code of Georgia Annotated, relating to child abuse and deprivation records, is amended by revising subsection (a) of Code Section 49-5-40, relating to definitions, confidentiality of records, and restricted access to records, as follows:
'(a) As used in this article, the term: (l) 'Abused' means subjected to child abuse. (2) 'Child' means any person under 18 years of age. (3) 'Child abuse' means: (A) Physical injury or death inflicted upon a child by a parent or caretaker thereof by other than accidental means; provided, however, that physical forms of discipline may be used as long as there is no physical injury to the child; (B) Neglect or exploitation of a child by a parent or caretaker thereof; (C) Sexual abuse of a child; or (D) Sexual exploitation of a child. However, no child who in good faith is being treated solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall, for that reason alone, be considered to be an 'abused' child. (4) 'Near fatality' means an act that places a child in serious or critical condition as certified by a physician. (5) 'Sexual abuse' means a person's employing, using, persuading, inducing, enticing, or coercing any minor who is not that person's spouse to engage in any act which involves: (A) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (B) Bestiality; (C) Masturbation; (D) Lewd exhibition of the genitals or pubic area of any person; (E) Flagellation or torture by or upon a person who is nude; (F) Condition of being fettered, bound, or otherwise physically restrained on the part of a person who is nude; (G) Physical contact in an act of apparent sexual stimulation or gratification with any person's clothed or unclothed genitals, pubic area, or buttocks or with a female's clothed or unclothed breasts; (H) Defecation or urination for the purpose of sexual stimulation; or

GEORGIA LAWS 2009 SESSION

45

(I) Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure. 'Sexual abuse' shall not include consensual sex acts involving persons ofthe opposite sex when the sex acts are between minors or between a minor and an adult who is not more than five years older than the minor. This provision shall not be deemed or construed to repeal any law concerning the age or capacity to consent. (6) 'Sexual exploitation' means conduct by a child's parent or caretaker who allows, permits, encourages, or requires that child to engage in: (A) Prostitution, as defined in Code Section 16-6-9; or (B) Sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct, as defined in Code Section 16-12-100.8

SECTION 2. Said article is further amended by revising subsection (a) of Code Section 49-5-41, relating to persons and agencies permitted access to records, as follows:
'(a) Notwithstanding Code Section 49-5-40, the following persons or agencies shall have reasonable access to such records concerning reports of child abuse:
(1) Any federal, state, or local governmental entity, or any agency of any such entity, that has a need for information contained in such reports in order to carry out its legal responsibilities to protect children from abuse and neglect; (2) A court, by subpoena, upon its finding that access to such records may be necessary for determination of an issue before such court; provided, however, that the court shall examine such record in camera, unless the court determines that public disclosure of the information contained therein is necessary for the resolution of an issue then before it and the record is otherwise admissible under the rules of evidence; (3) A grand jury by subpoena upon its determination that access to such records is necessary in the conduct of its official business; (4) A district attorney of any judicial circuit in this state or any assistant district attorney who may seek such access in connection with official duty; (5) Any adult who makes a report of suspected child abuse as required by Code Section 19-7-5, but such access shall include only notification regarding the child concerning whom the report was made, shall disclose only whether the investigation by the department or governmental child protective agency of the reported abuse is ongoing or completed and, if completed, whether child abuse was confirmed or unconfirmed, and shall only be disclosed if requested by the person making the report; (6) Any adult requesting information regarding investigations by the department or a governmental child protective agency regarding the findings or information about the case of child abuse or neglect that results in a child fatality or near fatality, unless such disclosure of information would jeopardize a criminal investigation or proceeding, but such access shall be limited to a disclosure of the available facts and findings. Any identifying information, including but not limited to the child or caretaker's name, race,

46

GENERAL ACTS AND RESOLUTIONS, VOL. I

ethnicity, address, or telephone numbers and any other information that is privileged or confidential, shall be redacted to preserve the confidentiality of the child, other children in the household, and the child's parents, guardians, custodians, or caretakers. (7) The State Personnel Board, by administrative subpoena, upon a finding by an administrative law judge appointed by the chief state administrative law judge pursuant to Article 2 of Chapter 13 of Title 50, that access to such records may be necessary for a determination of an issue involving departmental personnel and that issue involves the conduct ofsuch personnel in child related employment activities, provided that only those parts of the record relevant to the child related employment activities shall be disclosed. The name of any complainant or client shall not be identified or entered into the record; (7 .I) A child advocacy center which is certified by the Child Abuse Protocol Committee of the county where the principal office of the center is located as participating in the Georgia Network of Children's Advocacy Centers or a similar accreditation organization and which is operated for the purpose of investigation of known or suspected child abuse and treatment of a child or a family which is the subject of a report of abuse, and which has been created and supported through one or more intracommunity compacts between such advocacy center and one or more police agencies, the office of the district attorney, a legally mandated public or private child protective agency, a mental health board, and a community health service board; provided, however, that any child advocacy center which is granted access to records concerning reports of child abuse shall be subject to the confidentiality provisions of subsection (b) of Code Section 49-5-40 and shall be subject to the penalties imposed by Code Section 49-5-44 for authorizing or permitting unauthorized access to or use of such records; (8) Police or any other law enforcement agency of this state or any other state or any medical examiner or coroner investigating a report of known or suspected abuse or any child fatality review panel or child abuse protocol committee or subcommittee thereof created pursuant to Chapter 15 of Title 19, it being found by the General Assembly that the disclosure of such information is necessary in order for such entities to carry out their legal responsibilities to protect children from abuse and neglect, which protective actions include bringing criminal actions for such abuse or neglect, and that such disclosure is therefore permissible and encouraged under the 1992 amendments to Section 107(b)(4) of the Child Abuse Prevention and Treatment Act, 42 U.S.C. Section 51 06(A)(b)(4); and (9) The Governor, the Attorney General, the Lieutenant Governor, or the Speaker of the House of Representatives when such officer makes a written request to the commissioner of the department which specifies the name of the child for which such access is sought and which describes such officer's need to have access to such records in order to determine whether the laws of this state are being complied with to protect children from abuse and neglect and whether such laws need to be changed to enhance such protection, for which purposes the General Assembly finds such disclosure is permissible and encouraged under the 1992 amendments to Section 107(b)(4) of the Child Abuse Prevention and Treatment Act, 42 U.S.C. Section 5106(A)(b)(4).8

GEORGIA LAWS 2009 SESSION

47

SECTION 3. Said article is further amended by revising subsection (e) of Code Section 49-5-41, relating to persons and agencies permitted access to records, as follows:
'(e) Notwithstanding any other provisions of law, with the exception of medical and mental health records made confidential by other provisions of law, child abuse and deprivation records applicable to a child who at the time of his or her fatality or near fatality was:
(1) In the custody of a state department or agency or foster parent; (2) A child as defined in paragraph (3) of Code Section 15-11-171; or (3) The subject of an investigation, report, referral, or complaint under Code Section 15-11-173 shall not be confidential and shall be subject to Article 4 of Chapter 18 of Title 50, relating to open records; provided, however, that any identifying information, including but not limited to the child or caretaker's name, race, ethnicity, address, or telephone numbers and any other information that is privileged or confidential, shall be redacted to preserve the confidentiality of the child, other children in the household, and the child's parents, guardians, custodians, or caretakers. Upon the release of documents pursuant to this subsection, the department may comment publicly on the case.'

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

GAME AND FISH - BEAVERS; TRAPPING ON ROAD RIGHT OF WAY.
No. 17 (Senate Bill No. 110).
AN ACT
To amend Code Section 27-3-63 of the Official Code of Georgia Annotated, relating to general offenses and penalties relative to trapping, trappers, and fur dealers, so as to provide an exception to a prohibition against trapping wildlife upon the rights of way of public roads or highways; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

48

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 1. Code Section 27-3-63 ofthe Official Code of Georgia Annotated, relating to general offenses and penalties relative to trapping, trappers, and fur dealers, is amended by revising paragraph (I) of subsection (a) as follows:
'(1) Trap any wildlife upon the right of way of any public road or highway of this state; provided, however, that this paragraph shall not apply to any person licensed as required by Code Section 27-3-60 who traps beaver upon the right of way of any state highway, county road, or municipal street as an authorized agent, employee, or contractor of the state, county, or municipality for the purpose ofpreventing, reducing, or stopping damage to such highway, road, or street resulting from beaver activity;'

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

GAME AND FISH- HUNTING; USE OF LIGHTS.
No. 18 (Senate Bill No. 111).
AN ACT
To amend Part I of Article I of Chapter 3 of Title 27 of the Official Code of Georgia Annotated, relating to general provisions relative to hunting wildlife, so as to provide for restrictions on hunting certain animals with lights; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Part 1 of Article 1 of Chapter 3 of Title 27 of the Official Code of Georgia Annotated, relating to general provisions relative to hunting wildlife, is amended by revising Code Section 27-3-2, relating to hunting at night, as follows:
'27-3-2. It shall be unlawful to hunt at night any game bird or game animal in this state except for alligators, raccoons, opossums, foxes, and bobcats. Any light used to hunt raccoons, opossums, foxes, or bobcats shall be carried on the person of a hunter, affixed to a helmet or hat worn by a hunter, or be part of a belt system worn by a hunter!

GEORGIA LAWS 2009 SESSION

49

SECTION 2. Said part is further amended by revising paragraph (5) of subsection (a) of Code Section 27-3-24, relating to restrictions on hunting feral hogs, as follows:
'(5) At night with a light, except that a light which is carried on the person of a hunter, affixed to a helmet or hat worn by a hunter, or part of a belt system worn by a hunter may be used for locating feral hogs; orn

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

EDUCATION- PUBLIC OFFICERS- POST-EMPLOYMENT HEALTH BENEFIT FUNDS; TEACHERS; STATE EMPLOYEES.
No. 19 (Senate Bill No. 122).
AN ACT
To amend Part 6 of Article 17 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to health insurance plans for teachers and other school personnel, so as to create the Georgia School Personnel Post-employment Health Benefit Fund; to amend Chapter 18 of Title 45 of the Official Code of Georgia Annotated, relating to employees' insurance and benefits plans, so as to create the Georgia State Employees Post-employment Health Benefit Fund; to define certain terms relative to such funds; to provide for certain responsibilities of the Department of Community Health relative to such funds; to provide for actuaries for such funds; to provide for control of such funds; to provide for investments; to provide for minimum annual contributions; to repeal provisions of Article 6 of such chapter; to provide for related matters; to provide effective dates; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Part 6 of Article 17 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to health insurance plans for teachers and other school personnel, is amended by redesignating current Subparts 1 and 2 as Subparts 2 and 3, respectively, and by adding a new Subpart 1 to read as follows:

50

GENERAL ACTS AND RESOLUTIONS, VOL. I

"Subpart 1

20-2-874. As used in this subpart, the term:
(1) 'Actuarial accrued liability' means that portion, as determined by a particular actuarial cost method, of the actuarial present value of fund obligations and administrative expenses which is not provided for by future normal costs. (2) 'Actuarial assumptions' means assumptions regarding the occurrence of future events affecting costs of the fund such as mortality, withdrawal, disability, and retirement; changes in compensation and offered post-employment benefits; rates of investment earnings and asset appreciation or depreciation; procedures used to determine the actuarial value of assets; and other such relevant items. (3) 'Actuarial cost method' means a method for determining the actuarial present value of the obligations and administrative expenses of the fund and for developing an actuarially equivalent allocation of such value to time periods, usually in the form of a normal cost and an actuarial accrued liability. Acceptable actuarial methods are the aggregate, attained age, entry age, frozen attained age, frozen entry age, and projected unit credit methods. (4) 'Actuarial valuation' means the determination, as of a valuation date, of the normal cost, actuarial accrued liability, actuarial value of assets, and related actuarial present values for the fund. (5) 'Actuarially sound' means that calculated contributions to the fund are sufficient to pay the full actuarial cost of the fund. The full actuarial cost includes both the normal cost of providing for fund obligations as they accrue in the future and the cost of amortizing the unfunded actuarial accrued liability over a period of no more than 30 years. (6) 'Administrative expenses' means all expenses incurred in the operation of the fund, including all investment expenses. (7) 'Annual required contribution' means the amount determined in accordance with requirements of Governmental Accounting Standards Board Statement No. 43 or any subsequent Governmental Accounting Standards Board statements that may be applicable to the fund. (8) 'Board' means the Board of Community Health. (9) 'Commissioner' means the commissioner of community health. (I 0) 'Covered health care expenses' means all actual health care expenses incurred by the health plans on behalf of fund beneficiaries. Actual health care expenses include claims incurred by fund beneficiaries and providers and premiums incurred by intermediary entities and health care providers by the health plans. (11) 'Department' means the Department of Community Health.

GEORGIA LAWS 2009 SESSION

51

(12) 'Eligible to participate' means employees of employers who are participating in one of the health plans and those employees of employers who qualify to participate in the health plan but choose not to do so. (13) 'Employer' means the entity with which the fund beneficiary had the direct, in the case of employees, or indirect, in the case of dependents, employment relationship that gave rise to the fund beneficiary's eligibility for post-employment health benefits under the health plan. (14) 'Fund' means the Georgia School Personnel Post-employment Health Benefit Fund established under this subpart. (15) 'Fund beneficiaries' means all persons receiving post-employment health care benefits through the health plans. (16) 'Health plans' means the health insurance plan for public school teachers established under Subpart 2 of this part and the health insurance plan for public school employees established under Subpart 3 of this part. (17) 'Normal cost' means that portion of the actuarial present value of the fund obligations and expenses which is allocated to a valuation year by the actuarial cost method used for the fund. (18) 'Obligations' means the administrative expenses of the fund and the cost of covered health care expenses incurred on behalf of fund beneficiaries less any amounts received by or on behalf of fund beneficiaries. (19) 'State plan for other post-employment benefits' means the State of Georgia fiscal funding plan for retiree post-employment health care benefits as it relates to Governmental Accounting Standards Board Statement No. 43 or any subsequent Governmental Accounting Standards Board statements that may be applicable to the fund. (20) 'Unfunded actuarial accrued liability' means for any actuarial valuation the excess of the actuarial accrued liability over the actuarial value of the assets of the fund under an actuarial cost method utilized by the fund for funding purposes.

20-2-875. (a) There is created the Georgia School Personnel Post-employment Health Benefit Fund to provide for the costs of post-employment health insurance benefits. The fund shall be a trust fund ofpublic funds; the board in its official capacity shall be the fund's trustee; and the commissioner in his or her official capacity shall be its administrator. (b) On August 31,2009, the board shall identify the funds held in the Georgia Retiree Health Benefit Fund created by Article 6 of Chapter 18 of Title 45 for the payment of postretirement health benefits for public school teachers and public school employees and shall on that date transfer such funds to the fund created by subsection (a) of this Code section. (c) The fund shall be available and dedicated without fiscal year limitations for covered health care expenses and administration costs. All employer and fund beneficiary

52

GENERAL ACTS AND RESOLUTIONS, VOL. f

contributions, appropriations, earnings, and reserves for the payment of obligations under this subpart shall be irrevocably credited to the fund. The amounts remaining in the fund, if any, after such health care expenses and administration costs have been paid shall be retained in the fund as a special reserve for covered health care expenses and administration costs. The board shall determine the time and amounts of distributions from the special reserve for covered health care expenses and administration costs. All assets of the fund shall be used solely for the payment of fund obligations and for no other purpose and shall be protected from creditors of the state and the employers.

20-2-876. (a) Responsibility for the proper operation of the fund is vested in the department. (b) The board shall adopt actuarial assumptions as it deems necessary and prudent. (c) The board may adopt any rules and regulations that it finds necessary to properly administer the fund. (d) The board shall adopt rules and regulations to account for employer contributions and other assets separately. (e) The commissioner, as executive officer of the board, shall employ such personnel as may be needed to carry out the provisions of this subpart and such personnel shall be employees of the department. The pro rata share of the costs of operating the department in the manner prescribed by law shall be a part of the administrative costs of the fund. (f) The department may employ or contract for the services of actuaries and other professionals as required to carry out the duties established by this subpart. (g) The department shall contract with the Division oflnvestment Services ofthe Teachers Retirement System of Georgia for any necessary services with respect to fund investments. (h) The department shall maintain all necessary records regarding the fund in accordance with generally accepted accounting principles, as applicable to the fund. (i) The department shall collect all moneys due to the fund and shall pay any administrative expenses necessary and appropriate for the operation of the fund from the fund. (j) The department shall prepare an annual report of fund activities for the board, the House Committee on Appropriations, and the Senate Appropriations Committee. Such reports shall include, but not be limited to, audited financial statements. The reports shall contain the most recent information reasonably available to the department reflecting the obligations of the fund, earnings on investments, and such other information as the board deems necessary and appropriate. This report is due September 30 and shall reflect activity on a state fiscal year basis. (k) Notwithstanding any other provision of law to the contrary, the department shall be entitled to any information that it deems necessary and appropriate from a retirement system in order that the provisions of Code Section 20-2-877 may be carried out.

GEORGIA LAWS 2009 SESSION

53

20-2-877. (a) The actuary employed or retained by the department shall provide technical advice to the department and to the board regarding the operation of the fund. (b) Utilizing the actuarial assumptions most recently adopted by the board, the actuary shall set annual actuarial valuations of normal cost, actuarial liability, actuarial value of assets, and related actuarial present values for the state plan for other post-employment benefits.

20-2-878. (a) Subject to the supervision of the board, the commissioner shall have control over the fund established by this subpart. The obligations provided for in this subpart and all administrative expenses shall be paid from the fund. The department may expend moneys from the fund for any purpose authorized by this subpart. (b) Subject to the supervision of the board, the commissioner shall have full power to invest and reinvest its assets, subject to all of the terms, conditions, limitations, and restrictions imposed by Article 7 of Chapter 20 of Title 47, the 'Public Retirement Systems Investment Authority Law' for large retirement systems. Subject to such terms, conditions, limitations, and restrictions, the commissioner shall have full power to hold, purchase, sell, assign, transfer, and dispose of any securities and investments in which any of the moneys are invested, including the proceeds of any investments and other moneys belonging to the fund. The records maintained by the fund shall have the same exemption from public inspection as that provided in Code Section 47-1-14. (c) Except as otherwise provided in this subpart, no member of the board or employee of the department shall have any personal interest in the gains or profits from any investment made by the board or use the assets of the fund in any manner, directly or indirectly, except to make such payments as may be authorized by the board or by the commissioner as the executive officer of the board in accordance with this subpart.

20-2-879. (a) The board shall annually determine the minimum annual required contributions sufficient to maintain the fund in an actuarially sound manner in accordance with Governmental Accounting Standards Board Statement No. 43 or any subsequent Governmental Accounting Standards Board statements that may be applicable to the fund. (b) The board may annually establish required employer contributions to the fund which are supplemental to required employer contributions to the health plans as set forth in Subparts 2 and 3 of this part. (c) It shall be the responsibility of employers to make contributions to the fund in accordance with the employer contribution rates established by the board.'

54

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 2. Chapter 18 of Title 45 of the Official Code of Georgia Annotated, relating to employees' insurance and benefits plans, is revised in Article 1, relating to the State Employees' Health Insurance Plan, by designating the existing Code sections as Part 1 and adding a new part to read as follows:

'Part 2

45-18-24. As used in this part, the term:
( 1) 'Actuarial accrued liability' means that portion, as determined by a particular actuarial cost method, of the actuarial present value of fund obligations and administrative expenses which is not provided for by future normal costs. (2) 'Actuarial assumptions' means assumptions regarding the occurrence of future events affecting costs of the fund such as mortality, withdrawal, disability, and retirement; changes in compensation and offered post-employment benefits; rates of investment earnings and asset appreciation or depreciation; procedures used to determine the actuarial value of assets; and other such relevant items. (3) 'Actuarial cost method' means a method for determining the actuarial present value of the obligations and administrative expenses of the fund and for developing an actuarially equivalent allocation of such value to time periods, usually in the form of a normal cost and an actuarial accrued liability. Acceptable actuarial methods are the aggregate, attained age, entry age, frozen attained age, frozen entry age, and projected unit credit methods. (4) 'Actuarial valuation' means the determination, as of a valuation date, ofthe normal cost, actuarial accrued liability, actuarial value of assets, and related actuarial present values for the fund. (5) 'Actuarially sound' means that calculated contributions to the fund are sufficient to pay the full actuarial cost of the fund. The full actuarial cost includes both the normal cost of providing for fund obligations as they accrue in the future and the cost of amortizing the unfunded actuarial accrued liability over a period of no more than 30 years. (6) 'Administrative expenses' means all expenses incurred in the operation of the fund, including all investment expenses. (7) 'Annual required contribution' means the amount determined in accordance with requirements of Governmental Accounting Standards Board Statement No. 43 or any subsequent Governmental Accounting Standards Board statements that may be applicable to the fund. (8) 'Board' means the Board of Community Health. (9) 'Commissioner' means the commissioner of community health.

GEORGIA LAWS 2009 SESSION

55

(10) 'Covered health care expenses' means all actual health care expenses incurred by the health plan on behalf of fund beneficiaries. Actual health care expenses include claims incurred by fund beneficiaries and providers and premiums incurred by intermediary entities and health care providers by the health plan. (11) 'Department' means the Department of Community Health. (12) 'Eligible to participate' means employees of employers who are participating in the health plan and those employees of employers who qualify to participate in the health plan but choose not to do so. (13) 'Employer' means the entity with which the fund beneficiary had the direct, in the case of employees, or indirect, in the case of dependents, employment relationship that gave rise to the fund beneficiary's eligibility for post-employment health benefits under the health plan. (14) 'Fund' means the Georgia State Employees Post-employment Health Benefit Fund established under this part. (15) 'Fund beneficiaries' means all persons receiving post-employment health care benefits as retirees or derivatively through retirees through the health plan. (16) 'Health plan' means the state employees' health insurance plan established under Part 1 of this article. (17) 'Normal cost' means that portion of the actuarial present value of the fund obligations and expenses which is allocated to a valuation year by the actuarial cost method used for the fund. (18) 'Obligations' means the administrative expenses of the fund and the cost of covered health care expenses incurred on behalf of fund beneficiaries less any amounts received by or on behalf of fund beneficiaries. (19) 'State plan for other post-employment benefits' means the State of Georgia fiscal funding plan for retiree post-employment health care benefits as it relates to Governmental Accounting Standards Board Statement No. 43 or any subsequent Governmental Accounting Standards Board statements that may be applicable to the fund. (20) 'Unfunded actuarial accrued liability' means for any actuarial valuation the excess of the actuarial accrued liability over the actuarial value of the assets of the fund under an actuarial cost method utilized by the fund for funding purposes.

45-18-25 0 (a) There is created the Georgia State Employees Post-employment Health Benefit Fund to provide for the costs of post-employment health insurance benefits. The fund shall be a trust fund of public funds; the board in its official capacity shall be the fund's trustee; and the commissioner in his or her official capacity shall be its administrator. (b) On August 31, 2009, the board shall identify the funds held in the Georgia Retiree Health Benefit Fund created by Article 6 of this chapter for the payment of postretirement

L

56

GENERAL ACTS AND RESOLUTIONS, VOL. I

health benefits for state employees and shall on that date transfer such funds to the fund created by subsection (a) of this Code section. (c) The fund shall be available and dedicated without fiscal year limitations for covered health care expenses and administration costs. All employer and fund beneficiary contributions, appropriations, earnings, and reserves for the payment of obligations under this part shall be irrevocably credited to the fund. The amounts remaining in the fund, if any, after such health care expenses and administration costs have been paid shall be retained in the fund as a special reserve for covered health care expenses and administration costs. The board shall determine the time and amounts of distributions from the special reserve for covered health care expenses and administration costs. All assets of the fund shall be used solely for the payment of fund obligations and for no other purpose and shall be protected from creditors of the state and the employers.

45-18-102. (a) Responsibility for the proper operation of the fund is vested in the department. (b) The board shall adopt actuarial assumptions as it deems necessary and prudent. (c) The board may adopt any rules and regulations that it finds necessary to properly administer the fund. (d) The board shall adopt rules and regulations to account for employer contributions and other assets separately. (e) The commissioner, as executive officer of the board, shall employ such personnel as may be needed to carry out the provisions of this part and such personnel shall be employees of the department. The pro rata share of the costs of operating the department in the manner prescribed by law shall be a part of the administrative costs of the fund. (f) The department may employ or contract for the services of actuaries and other professionals as required to carry out the duties established by this part. (g) The department shall contract with the Division of Investment Services of the Employees' Retirement System of Georgia for any necessary services with respect to fund investments. (h) The department shall maintain all necessary records regarding the fund in accordance with generally accepted accounting principles, as applicable to the fund. (i) The department shall collect all moneys due to the fund and shall pay any administrative expenses necessary and appropriate for the operation of the fund from the fund. (j) The department shall prepare an annual report of fund activities for the board, the House Committee on Appropriations, and the Senate Appropriations Committee. Such reports shall include, but not be limited to, audited financial statements. The reports shall contain the most recent information reasonably available to the department reflecting the obligations of the fund, earnings on investments, and such other information as the board deems necessary and appropriate. This report is due September 30 and shall reflect activity on a state fiscal year basis.

GEORGIA LAWS 2009 SESSION

57

(k) Notwithstanding any other provision of law to the contrary, the department shall be entitled to any information that it deems necessary and appropriate from a retirement system in order that the provisions of Code Section 45-18-26 may be carried out.

45-18-26. (a) The actuary employed or retained by the department shall provide technical advice to the department and to the board regarding the operation of the fund. (b) Utilizing the actuarial assumptions most recently adopted by the board, the actuary shall set annual actuarial valuations of normal cost, actuarial liability, actuarial value of assets, and related actuarial present values for the state plan for other post-employment benefits.

45-18-27. (a) Subject to the supervision of the board, the commissioner shall have control over the fund established by this part. The obligations provided for in this part and all administrative expenses shall be paid from the fund. The department may expend moneys from the fund for any purpose authorized by this part. (b) Subject to the supervision of the board, the commissioner shall have full power to invest and reinvest its assets, subject to all of the terms, conditions, limitations, and restrictions imposed by Article 7 of Chapter 20 of Title 47, the 'Public Retirement Systems Investment Authority Law' for large retirement systems. Subject to such terms, conditions, limitations, and restrictions, the commissioner shall have full power to hold, purchase, sell, assign, transfer, and dispose of any securities and investments in which any of the moneys are invested, including the proceeds of any investments and other moneys belonging to the fund. The records maintained by the fund shall have the same exemption from public inspection as that provided in Code Section 47-1-14. (c) Except as otherwise provided in this part, no member of the board or employee of the department shall have any personal interest in the gains or profits from any investment made by the board or use the assets of the fund in any manner, directly or indirectly, except to make such payments as may be authorized by the board or by the commissioner as the executive officer of the board in accordance with this part.

45-18-28. (a) The board shall annually determine the minimum annual required contributions sufficient to maintain the fund in an actuarially sound manner in accordance with Governmental Accounting Standards Board Statement No. 43 or any subsequent Governmental Accounting Standards Board statements that may be applicable to the fund. (b) The board may annually establish required employer contributions to the fund which are supplemental to required employer contributions to the health plans as set forth in Part I of this article.

58

GENERAL ACTS AND RESOLUTIONS, VOL. I

(c) It shall be the responsibility of state agencies to make contributions to the fund, subject to appropriations, in accordance with the employer contribution rate established by the board. (d) It shall be the responsibility of all other employers to make contributions to the fund in accordance with the employer contribution rates established by the board."

SECTION 3. Said chapter is further amended by repealing in its entirety Article 6, relating to the Georgia Retiree Health Benefit Fund, which reads as follows:

"ARTICLE 6

45-18-100. As used in this article, the term:
(1) 'Actuarial accrued liability' means that portion, as determined by a particular actuarial cost method, of the actuarial present value of fund obligations and administrative expenses which is not provided for by future normal costs. (2) 'Actuarial assumptions' means assumptions regarding the occurrence of future events affecting costs of the fund such as mortality, withdrawal, disability, and retirement; changes in compensation and offered post-employment benefits; rates of investment earnings and asset appreciation or depreciation; procedures used to determine the actuarial value of assets; and other such relevant items. (3) 'Actuarial cost method' means a method for determining the actuarial present value of the obligations and administrative expenses of the fund and for developing an actuarially equivalent allocation of such value to time periods, usually in the form of a normal cost and an actuarial accrued liability. Acceptable actuarial methods are the aggregate, attained age, entry age, frozen attained age, frozen entry age, and projected unit credit methods. (4) 'Actuarial present value of total projected benefits' means the present value, at the valuation date, of the cost to finance benefits payable in the future, discounted to reflect the expected effects of the time value of money and the probability of payment. (5) 'Actuarial valuation' means the determination, as of a valuation date, of the normal cost, actuarial accrued liability, actuarial value of assets, and related actuarial present values for the fund. (6) 'Actuarially sound' means that calculated contributions to the fund are sufficient to pay the full actuarial cost of the fund. The full actuarial cost includes both the normal cost of providing for fund obligations as they accrue in the future and the cost of amortizing the unfunded actuarial accrued liability over a period of no more than 30 years. (7) 'Administrative expenses' means all expenses incurred in the operation of the fund, including all investment expenses.

GEORGIA LAWS 2009 SESSION

59

(8) 'Annual required contribution' means the amount determined in accordance with requirements of Governmental Accounting Standards Board Statement No. 43, or any subsequent Governmental Accounting Standards Board statements that may be applicable to the fund. (9) 'Board' means the Board of Community Health. (9.1) 'Commissioner' means the commissioner of community health. (10) 'Covered health care expenses' means all actual health care expenses incurred by the health plan with respect to fund beneficiaries. Actual health care expenses include claims incurred with respect to fund beneficiaries and providers and premiums incurred with respect to intermediary entities and health care providers by the health plan. (11) 'Department' means the Department of Community Health. (12) 'Eligible to participate' means employees of employers who are participating in the health plan and those employees of employers who qualify to participate in the health plan but choose not to do so. (13) 'Employer' means the State of Georgia; the departments, agencies, or institutions of the state; and any political subdivision of the state that employs persons who are eligible to participate in the health plan. (14) 'Fund' means the Georgia Retiree Health Benefit Fund established under this article. (15) 'Fund beneficiaries' means all persons receiving post-employment health care benefits as retirees or derivatively through retirees through the health plan. (16) 'Fund participants' means employees of an employer who are eligible to participate in the health plan. (17) 'Health plan' means the state employees' health insurance plan established under Article I of this chapter, the health insurance plan for public school teachers established under Subpart 1 of Part 6 of Article 17 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, and the health insurance plan for public school employees established under Subpart 2 of Part 6 of Article 17 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated. (18) 'Normal cost' means that portion of the actuarial present value of the fund obligations and expenses which is allocated to a valuation year by the actuarial cost method used for the fund. (19) 'Obligations' means the administrative expenses of the fund and the cost of covered health care expenses incurred on behalf of fund beneficiaries less any amounts received by or on behalf of fund beneficiaries. (20) 'Retirement plan' means any retirement or pension plan or any other plan or program which exists on July 1, 2006, or which is created or established on or after that date, and which is maintained by an employer or maintained pursuant to law or other authority of an employer for the purpose ofpaying retirement benefits to fund beneficiaries. The term shall also include any plan or program that creates a retired position, including, but not limited to, emeritus positions, which provides a salary for such position in lieu of a retirement benefit. The term shall also include a plan that provides for an individual

60

GENERAL ACTS AND RESOLUTIONS, VOL. I

account for each participant and for benefits determined solely upon the amounts contributed by the employer and the participant to the participant's account and any income, expenses, gains, and losses. (21) 'State plan for other post-employment benefits' means the State of Georgia fiscal funding plan for retiree post"employment health care benefits as it relates to Governmental Accounting Standards Board Statement No. 43, or any subsequent Governmental Accounting Standards Board statements that may be applicable to the fund. (22) 'Unfunded actuarial accrued liability' means for any actuarial valuation the excess of the actuarial accrued liability over the actuarial value of the assets of the fund under an actuarial cost method utilized by the fund for funding purposes.

45-18-101. (a) There is created the Georgia Retiree Health Benefit Fund to provide for the costs of retiree post-employment health insurance benefits. The fund shall be a trust fund of public funds; the board in its official capacity shall be the fund's trustee; and the commissioner in his or her official capacity shall be its administrator. (b) The fund shall be available and dedicated without fiscal year limitations for covered health care expenses and administration costs. All employer and retiree contributions, appropriations, earnings, and reserves for the payment of obligations under this article shall be irrevocably credited to such fund. The amounts remaining in such fund, if any, after such health care expenses and administration costs have been paid shall be retained in such fund as a special reserve for covered health care expenses and administration costs. The board shall determine the time and amounts of distributions from the special reserve for covered health care expenses and administration costs. All assets of the fund excluding amounts identified in subsection (c) of this Code section shall be used solely for the payment of fund obligations and for no other purpose and shall be protected from creditors of the state and the employers.

45-18-102. (a) Responsibility for the proper operation of the fund is vested in the department. (b) The board shall adopt actuarial assumptions as it deems necessary and prudent. (c) Reserved. (d) The board may adopt any rules and regulations that it finds necessary to properly administer the fund. (e) The board shall adopt rules and regulations to account for employer contributions and other assets separately and by each pension plan separately. (f) The commissioner, as executive officer of the board, shall employ such personnel as may be needed to carry out the provisions of this article and such personnel shall be employees of the Department of Community Health. The pro rata share of the costs of

GEORGIA LAWS 2009 SESSION

61

operating the Department of Community Health in the manner prescribed by law shall be a part of the administrative costs of the fund. (g) The department may employ or contract for the services of actuaries and other professionals as required to carry out the duties established by this article. (h) The department shall contract with the Division oflnvestment Services ofthe Teachers Retirement System of Georgia and the Employees' Retirement System of Georgia for any necessary services with respect to fund investments. (i) The department shall maintain all necessary records regarding the fund in accordance with generally accepted accounting principles, as applicable to the fund. (j) The department shall collect all moneys due to the fund and shall pay any administrative expenses necessary and appropriate for the operation of the fund from the fund. (k) The department shall prepare an annual report of fund activities for the board, the House Appropriations Committee, and the Senate Appropriations Committee. Such reports shall include, but not be limited to, audited financial statements. The reports shall contain the most recent information reasonably available to the department reflecting the obligations of the fund, earnings on investments, and such other information as the board deems necessary and appropriate. This report is due September 30 and shall reflect activity on a state fiscal year basis. (1) Notwithstanding any other provision of law to the contrary, the department shall be entitled to any information that it deems necessary and appropriate from a retirement system in order that the provisions of Code Section 45-18-103 may be carried out.

45-18-103. (a) The actuary employed or retained by the department shall provide technical advice to the department and to the board regarding the operation of the fund. (b) Utilizing the actuarial assumptions most recently adopted by the board, the actuary shall set annual actuarial valuations of normal cost, actuarial liability, actuarial value of assets, and related actuarial present values for the state plan for other post-employment benefits.

45-18-104. (a) Subject to the supervision of the board, the commissioner shall have control over the fund established by this chapter. The obligations provided for in this chapter and all administrative expenses shall be paid from the fund. The department may expend moneys from the fund for any purpose authorized by this chapter. (b) Subject to the supervision of the board, the commissioner shall have full power to invest and reinvest its assets, subject to all of the terms, conditions, limitations, and restrictions imposed by Article 7 of Chapter 20 of Title 47, the 'Public Retirement Systems Investment Authority Law.' Subject to such terms, conditions, limitations, and restrictions, the commissioner shall have full power to hold, purchase, sell, assign, transfer, and dispose

62

GENERAL ACTS AND RESOLUTIONS, VOL. I

of any securities and investments in which any of the moneys are invested, including the proceeds of any investments and other moneys belonging to the fund. (c) Except as otherwise provided in this chapter, no member of the board or employee of the department shall have any personal interest in the gains or profits from any investment made by the board or use the assets of the fund in any manner, directly or indirectly, except to make such payments as may be authorized by the board or by the commissioner as the executive officer of the board in accordance with this article.

45-18-105. (a) The board shall annually determine the minimum annual required contributions sufficient to maintain the fund in an actuarially sound manner in accordance with Governmental Accounting Standards Board Statement No. 43, or any subsequent Governmental Accounting Standards Board statements that may be applicable to the fund. (b) In addition to the employer contributions required to be made to the fund for the health plan as determined from fiscal year to fiscal year under Part 6 of Article 17 of Chapter 2 of Title 20 and under Article 1 of this chapter, the board may annually establish employer contribution rates in accordance with the state plan for other post-employment benefits. (c) It shall be the responsibility of state agencies to make contributions to the fund, subject to appropriations, in accordance with the employer contribution rate established by the board. (d) It shall be the responsibility of all other employers to make contributions to the fund in accordance with the employer contribution rates established by the board in addition to the employer contributions required to be made to the fund for the health plan as determined from fiscal year to fiscal year under Part 6 of Article 17 of Chapter 2 of Title 20 and Article 1 of this chapter."

SECTION 4. Section 3 of this Act shall become effective on September 1, 2010. The remaining sections of this Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 5. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

GEORGIA LAWS 2009 SESSION

63

SOCIAL SERVICES- MEDICAID; PEACHCARE; ELIGIBILITY VERIFICATION.

No. 20 (Senate Bill No. 165).

AN ACT

To amend Title 49 of the Official Code of Georgia Annotated, relating to social services, so as to authorize the Department ofCommunity Health to obtain income eligibility verification from the Department of Revenue for applicants for Medicaid and the PeachCare for Kids Program; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Title 49 of the Official Code of Georgia Annotated, relating to social services, is amended in Code Section 49-4-146.1, relating to unlawful acts, violations and penalties, recovery of excess amounts, termination and reinstatement of providers, and the duty of the department to identify and investigate violations and notify proper authorities under the Medicaid program, by adding a new subsection to read as follows:
'(j) As necessary to enforce the provisions of this article, the department or its duly authorized agents may submit to the state revenue commissioner the names of applicants for medical assistance or other benefits or payments provided under this article, as well as the relevant income threshold specified therein. If the department elects to contract with the state revenue commissioner for such purposes, the state revenue commissioner and his or her agents or employees shall notify the department whether or not each submitted applicant's income exceeds the relevant income threshold provided. The department shall pay the state revenue commissioner for all costs incurred by the Department of Revenue pursuant to this subsection. No information shall be provided by the Department of Revenue to the department without an executed cooperative agreement between the two departments. Any tax information secured from the federal government by the Department of Revenue pursuant to express provisions of Section 6103 of the Internal Revenue Code may not be disclosed by the Department of Revenue pursuant to this subsection. Any person receiving any tax information under the authority of this subsection is subject to the provisions of Code Section 48-7-60 and to all penalties provided under Code Section 48-7-61 for unlawful divulging of confidential tax information.'

64

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 2. Said title is further amended in Code Section 49-5-273, relating to the creation of the PeachCare for Kids Program, by adding a new subsection to read as follows:
'(o) As necessary to enforce the provisions of this article, the department or its duly authorized agents may submit to the state revenue commissioner the names of applicants for health care benefits or payments provided under this article, as well as the relevant income threshold specified therein. If the department elects to contract with the state revenue commissioner for such purposes, the state revenue commissioner and his or her agents or employees shall notify the department whether or not each submitted applicant's income exceeds the relevant income threshold provided. The department shall pay the state revenue commissioner for all costs incurred by the Department ofRevenue pursuant to this subsection. No information shall be provided by the Department of Revenue to the department without an executed cooperative agreement between the two departments. Any tax information secured from the federal government by the Department of Revenue pursuant to express provisions of Section 6103 of the Internal Revenue Code may not be disclosed by the Department of Revenue pursuant to this subsection. Any person receiving any tax information under the authority of this subsection is subject to the provisions of Code Section 48-7-60 and to all penalties provided under Code Section 48-7-61 for unlawful divulging of confidential tax information.'

SECTION 3. This Act shall become effective on January 1, 2010.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

CRIMINAL PROCEDURE- TRANSITIONAL CENTER; WORK RELEASE.
No. 21 (Senate Bill No. 193).
AN ACT
To amend Code Section 17-10-6.1 of the Official Code of Georgia Annotated, relating to punishment for serious violent offenders, so as to authorize the Department of Corrections to consider certain offenders for participation in a transitional center or work release program

GEORGIA LAWS 2009 SESSION

65

during the offender's final year of incarceration; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Code Section 17-10-6.1 of the Official Code of Georgia Annotated, relating to punishment for serious violent offenders, is amended in paragraph (3) of subsection (c) as follows:
'(3) Any sentence imposed for the first conviction of any serious violent felony other than a sentence of life imprisonment or life without parole or death shall be served in its entirety as imposed by the sentencing court and shall not be reduced by any form of parole or early release administered by the State Board of Pardons and Paroles or by any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections, the effect of which would be to reduce the period of incarceration ordered by the sentencing court; provided, however, during the final year of incarceration an offender so sentenced shall be eligible to be considered for participation in a department administered transitional center or work release program.'

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

MOTOR VEHICLES- DRIVER'S LICENSE REQUIREMENTS; RIGHT OF WAY INJURY TO MOTORCYCLIST, PEDESTRIAN, BICYCLIST, OR FARMER; DUI PROGRAM FEES; BICYCLE OPERATION ON SIDEWALK.
No. 22 (Senate Bill No. 196).
AN ACT
To amend Title 40 ofthe Official Code of Georgia Annotated, relating to motor vehicles and traffic, so as to change certain provisions relating to driver's license requirements; to change certain provisions relating to driving while license is suspended or revoked; to revise penalties for causing serious injury due to a right of way violation resulting in a collision with a motorcyclist, pedestrian, bicyclist, or farmer hauling agricultural products; to provide

66

GENERAL ACTS AND RESOLUTIONS, VOL. I

a penalty for a second offense; to provide for license suspension; to change provisions relating to pedestrians walking on or along a roadway; to increase the assessment fees for approved DUI Alcohol or Drug Use Reduction Programs; to authorize local governments by ordinance orresolution to authorize the operation ofbicycles on sidewalks by certain persons within the jurisdiction of such local governments; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Title 40 of the Official Code of Georgia Annotated, relating to motor vehicles and traffic, is amended by revising subsection (a) of Code Section 40-5-20, relating to driver's license requirement, as follows:
'(a) No person, except those expressly exempted in this chapter, shall drive any motor vehicle upon a highway in this state unless such person has a valid driver's license under this chapter for the type or class of vehicle being driven. Any person who is a resident of this state for 30 days shall obtain a Georgia driver's license before operating a motor vehicle in this state. Any violation of this subsection shall be punished as provided in Code Section 40-5-121, except the violation of driving with an expired license, or a violation of Code Section 40-5-29 or if such person produces in court a valid driver's license issued by this state to such person, he or she shall not be guilty of such offenses. Any court having jurisdiction over traffic offenses in this state shall report to the department the name and other identifying information of any individual convicted of driving without a license.'

SECTION 2. Said title is further amended in Article 3 of Chapter 5, relating to cancellation, suspension, and revocation of licenses, by adding a new Code section to read as follows:
40-5-57.3. (a) The driver's license of any person who is convicted for a second or subsequent offense of violating Code Section 40-6-77 within a five-year period of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted, shall be suspended for 30 days. The person shall submit his or her driver's license to the court upon conviction and the court shall forward the driver's license to the department. (b) After the suspension period and the person pays a restoration fee of $60.00 or, when processed by mail, $50.00, the suspension shall terminate and the department shall return the person's driver's license to such person.'

GEORGIA LAWS 2009 SESSION

67

SECTION 3. Said title is further amended by revising subsection (a) of Code Section 40-5-121, relating to driving while license suspended or revoked, as follows:
'(a) Except when a license has been revoked under Code Section 40-5-58 as a habitual violator, any person who drives a motor vehicle on any public highway of this state without being licensed as required by subsection (a) of Code Section 40-5-20 or at a time when his or her privilege to so drive is suspended, disqualified, or revoked shall be guilty of a misdemeanor for a first conviction thereof and, upon a first conviction thereof or plea of nolo contendere within five years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted, shall be fingerprinted and shall be punished by imprisonment for not less than two days nor more than 12 months, and there may be imposed in addition thereto a fine of not less than $500.00 nor more than $1,000.00. Such fingerprints, taken upon conviction, shall be forwarded to the Georgia Crime Information Center where an identification number shall be assigned to the individual for the purpose of tracking any future violations by the same offender. For the second and third conviction within five years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea ofnolo contendere is accepted, such person shall be guilty of a high and aggravated misdemeanor and shall be punished by imprisonment for not less than ten days nor more than 12 months, and there may be imposed in addition thereto a fine of not less than $1,000.00 nor more than $2,500.00. For the fourth or subsequent conviction within five years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted, such person shall be guilty of a felony and shall be punished by imprisonment for not less than one year nor more than five years, and there may be imposed in addition thereto a fine of not less than $2,500.00 nor more than $5,000.00."

SECTION 4. Said title is further amended by revising Code Section 40-6-77, relating to penalties for causing serious injury due to right of way violation resulting in a collision with a motorcyclist, pedestrian, bicyclist, or farmer hauling agricultural products, as follows:
'40-6-77. (a) For purposes of this Code section, 'serious injury' shall include, but shall not be limited to, causing bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, by seriously disfiguring his or her head or body or a member thereof, or by causing organic brain damage which renders the body or any member thereof useless.

68

GENERAL ACTS AND RESOLUTIONS, VOL. I

(b) Any person who causes a serious injury to another person as a result of a collision with a motorcyclist, bicyclist, pedestrian, or farmer operating any vehicle used to transport agricultural products, livestock, farm machinery, or farm supplies by committing any right of way violation under this chapter when such motorcyclist, bicyclist, pedestrian, or farmer operating any vehicle used to transport agricultural products, livestock, farm machinery, or farm supplies is abiding by the provisions of this title shall be guilty of a misdemeanor and shall be punished:
(1) For a first offense, by a fine of not less than $250.00 in addition to any other penalties stipulated by law and the court shall report such conviction to the Department of Driver Services; and (2) For a second or subsequent offense within a five-year period of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted, by a fine of not less than $500.00 nor more than $1,000.00 and imprisonment for not less than ten days nor more than 12 months. Any fine imposed under this paragraph shall be mandatory and shall not be suspended or waived or conditioned upon the completion of any course or sentence. The court imposing punishment under this subsection shall forward a record ofthe disposition of the case to the Department of Driver Services.'

SECTION 5. Said title is further amended by revising Code Section 40-6-96, relating to pedestrians walking on or along a roadway, as follows:
8 40-6-96. (a) As used in this Code section, the term 'pedestrian' means any person afoot and shall include, without limitation, persons standing, walking, jogging, running, or otherwise on foot. (b) Where a sidewalk is provided, it shall be unlawful for any pedestrian to stand or stride along and upon an adjacent roadway unless there is no motor vehicle traveling within 1,000 feet of such pedestrian on such roadway or the available sidewalk presents an imminent threat of bodily injury to such pedestrian. (c) Where a sidewalk is not provided but a shoulder is available, any pedestrian standing or striding along and upon a highway shall stand or stride only on the shoulder, as far as practicable from the edge of the roadway. (d) Where neither a sidewalk nor a shoulder is available, any pedestrian standing or striding along and upon a highway shall stand or stride as near as practicable to an outside edge of the roadway, and, if on a two-lane roadway, shall stand or stride only on the left side of the roadway. (e) Except as otherwise provided in this chapter, any pedestrian upon a roadway shall yield the right of way to all vehicles upon the roadway.

GEORGIA LAWS 2009 SESSION

69

(f) No pedestrian shall enter or remain upon any bridge or approach thereto beyond the bridge signal, gate, or barrier after a bridge operation signal indication has been given. (g) No pedestrian shall pass through, around, over, or under any crossing gate or barrier at a railroad grade crossing or bridge while such gate or barrier is closed or is being opened or closed."

SECTION 6. Said title is further amended by revising subsection (e) of Code Section 40-5-83, relating to establishment and approval of driver clinics and programs, as follows:
(e) The department is designated as the agency responsible for establishing criteria for the approval ofDUI Alcohol or Drug Use Risk Reduction Programs. An applicant shall meet the certification criteria promulgated by the department through its standards and shall provide the following services: (I) the assessment component and (2) the intervention component. The department is designated as the agency responsible for establishing rules and regulations concerning the contents and duration of the components ofDUI Alcohol or Drug Use Risk Reduction Programs, qualifications of instructors, attendance requirements for students, examinations, and program evaluations. Qualified instructors shall be certified for periods of four years each, which may be renewed. Approved DUI Alcohol or Drug Use Risk Reduction Programs shall charge a fee of $82.00 for the assessment component and $190.00 for the intervention component. An additional fee for required student program materials shall be established by the department in such an amount as is reasonable and necessary to cover the cost of such materials. No DUI Alcohol or Drug Use Risk Reduction Program shall be approved unless such clinic agrees in writing to submit reports as required in the rules and regulations ofthe department and to allow the examination and audit of the books, records, and financial statements of such DUI Alcohol or Drug Use Risk Reduction Program by the department or its authorized agent. DUI Alcohol or Drug Use Risk Reduction Programs may be operated by any public, private, or governmental entity; provided, however, that, except as otherwise provided in this subsection, in any political subdivision in which a DUI Alcohol or Drug Use Risk Reduction Program is operated by a private entity, whether for profit or nonprofit, neither the local county board of health nor any other governmental entity shall fund any new programs in that area. Programs currently in existence which are operated by local county boards of health or any other governmental entities shall be authorized to continue operation. New programs may be started in areas where no private DUI Alcohol or Drug Use Risk Reduction Programs have been made available to said community. The Department of Corrections is authorized to operate DUI Alcohol or Drug Use Risk Reduction Programs in its facilities where offenders are not authorized to participate in such programs in the community, provided that such programs meet the certification criteria promulgated by the Department of Driver Services. All such programs operated by the Department of Corrections shall be exempt from all fee provisions established in this subsection specifically including the rebate of any fee for the costs of administration. No

70

GENERAL ACTS AND RESOLUTIONS, VOL. I

DUI Alcohol or Drug Use Risk Reduction Program shall be approved unless such clinic agrees in writing to pay to the state, for the costs of administration, a fee of $22.00, for each offender assessed or each offender attending for points reduction, provided that nothing in this Code section shall be construed so as to allow the department to retain any funds required by the Constitution of Georgia to be paid into the state treasury; and provided, further, that the department shall comply with all provisions of Part 1 of Article 4 of Chapter 12 of Title 45, the 'Budget Act,' except Code Section 45-12-92, prior to expending any such miscellaneous funds!

SECTION 7. Said title is further amended by revising Code Section 40-6-144, relating to emerging from alley, driveway, or building, as follows:
"40-6-144. The driver of a vehicle emerging from an alley, building, private road, or driveway within a business or residential district shall stop such vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across such alley, building entrance, road, or driveway or, in the event there is no sidewalk area, shall stop at the point nearest the street to be entered where the driver has a view of approaching traffic thereon. The driver of a vehicle shall yield the right of way to any pedestrian on a sidewalk. Except as provided by resolution or ordinance of a local government for sidewalks within the jurisdiction of such local government authorizing the operation of bicycles on sidewalks by persons 12 years of age or younger, no person shall drive any vehicle upon a sidewalk or sidewalk area except upon a permanent or duly authorized driveway!

SECTION 8. This Act shall become effective on July 1, 2009.

SECTION 9. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

GEORGIA LAWS 2009 SESSION

71

CONSERVATION - EMISSION INSPECTION FEES; CERTIFICATES.

No. 23 (Senate Bill No. 198).

AN ACT

To amend Code Section 12-9-46 of the Official Code of Georgia Annotated, relating to the power ofthe Board ofNatural Resources to regulate air quality in nonattainment areas in this state, so as to provide the costs to be covered by the fee charged by emission inspection stations shall include the activities of the director of the Environmental Protection Division necessary to achieve compliance with state and federal clean air laws; to amend Code Section 12-9-48 of the Official Code of Georgia Annotated, relating to certificates of emission inspection, so as to provide for a time extension; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Code Section 12-9-46 of the Official Code of Georgia Annotated, relating to the power of the Board of Natural Resources to regulate air quality in nonattainment areas in this state, is amended by revising paragraph (11) of subsection (a) as follows:
'(11) To prescribe by rule or regulation an administrative fee to be collected by the director from each emission inspection station in a manner determined by the board by rule or regulation to cover the direct and indirect cost of:
(A) Required and adequate oversight to confirm that inspections are being done in a proper and adequate manner, including, without limitation, the operation and maintenance of a data system and network for emission inspection data and related information; the performance of audits and quality control and quality assurance for certified emission inspection stations and licensed inspectors; the dissemination of information to individuals, corporations, governmental agencies, and any other entity regarding emission inspection requirements and related information; and the issuance of waivers, exemptions, and extensions of the emission inspection requirement; (B) Activities of the director within designated nonattainment areas that are necessary to achieve compliance with this article and the federal Clean Air Act including, without limitation, ambient monitoring, attainment plan development, maintenance plan development, emission inventories, data analysis, and coordination and consultation with other governmental planning organizations; and (C) Any other requirements that the board determines are appropriate to implement, enforce, and ensure compliance with the requirements of this article and the rules and regulations promulgated pursuant to this article; provided, however, that $1.00 of each

72

GENERAL ACTS AND RESOLUTIONS, VOL. I

such administrative fee shall be remitted to the county for each responsible motor vehicle that is registered in that county; and

SECTION 2. Code Section 12-9-48 of the Official Code of Georgia Annotated, relating to certificates of emission inspection, is revised by adding a new subsection (e) and redesignating existing subsections (e) through (i) as (t) through U), as follows:
' (e) A time extension, not to exceed the period ofthe inspection frequency, may be granted to obtain needed repairs on a vehicle in the case of economic hardship when waiver requirements contained in subsection (d) of this Code section have not been met. After having received a time extension under this subsection, a vehicle must fully pass the applicable test standards before becoming eligible for another time extension:

SECTION 3. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved April 21, 2009.

EDUCATION- HOME SCHOOL STUDENTS; HONORS PROGRAM.
No. 24 (Senate Bill No. 210).
AN ACT
To amend Code Section 20-2-306 of the Official Code of Georgia Annotated, relating to the honors program and residential high school program, so as to include home schooled students among those students eligible to participate in the student honors program; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

GEORGIA LAWS 2009 SESSION

73

SECTION 1. Code Section 20-2-306 of the Official Code of Georgia Annotated, relating to the honors program and residential high school program, is amended by revising subsection (a) as follows:
'(a) The State Board of Education is authorized to inaugurate an honors program for students in the public and private high schools of this state and for resident students who attend a home school program who have manifested exceptional abilities or unique potentials or who have made exceptional academic achievements. This program shall be conducted during summer months between normal school year terms at institutions of higher learning or other appropriate centers within this state with facilities adequate to provide challenging opportunities for advanced study and accomplishments by such students. The student honors program shall be implemented and operated in accordance with criteria established by the state board, and operating costs shall be paid by the state board from funds made available for this purpose by the General Assembly. The state board is authorized to enter into cooperative agreements with the Board of Regents of the University System of Georgia for operating and sharing the costs of such programs.'

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

CIVIL PRACTICE- ELECTRONIC SERVICE; PLEADINGS; PRESUMPTIONS; STAYS.
No. 25 (House Bill No. 29).
AN ACT
To amend Chapter 11 of Title 9 of the Official Code of Georgia Annotated, relating to the "Georgia Civil Practice Act," so as to provide for electronic service ofpleadings subsequent to the original complaint; to provide for presumptions regarding service of pleadings by e-mail on an attorney; to provide for a stay of discovery when a motion to dismiss is filed; to provide for related matters; to provide for an effective date and applicability; to repeal conflicting laws; and for other purposes.

74

GENERAL ACTS AND RESOLUTIONS, VOL. I

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Chapter II of Title 9 of the Official Code of Georgia Annotated, relating to the "Georgia Civil Practice Act," is amended by revising subsection (b) of Code Section 9-11-5, relating to service and filing of pleadings subsequent to the original complaint and other papers, as follows:
'(b) Same- How made. Whenever under this chapter service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to the person to be served or by mailing it to the person to be served at the person's last known address or, if no address is known, by leaving it with the clerk of the court. As used in this Code section, the term 'delivery of a copy' means handing it to the person to be served or leaving it at the person to be served's office with a person in charge thereof or, if such office is closed or the person to be served has no office, leaving it at the person to be served's dwelling house or usual place of abode with some person of suitable age and discretion residing therein. 'Delivery of a copy' also means transmitting a copy via e-mail in portable document format (PDF) to the person to be served using all e-mail addresses provided pursuant to subsection (f) of this Code section and showing in the subject line of the e-mail message the words 'STATUTORY ELECTRONIC SERVICE' in capital letters. Service by mail is complete upon mailing. Proof of service may be made by certificate of an attorney or of his or her employee, by written admission, by affidavit, or by other proof satisfactory to the court. Failure to make proof of service shall not affect the validity of service.'

SECTION 2. Said chapter is further amended by adding a new subsection to Code Section 9-11-5, relating to commencement of action and service, to read as follows:
"(f) Electronic service ofpleadings. (I) A person to be served may consent to being served with pleadings electronically by: (A) Filing a notice of consent to electronic service and including the person to be served's e-mail address or addresses in such pleading; or (B) Including the person to be served's e-mail address or addresses in or below the signature block of the complaint or answer, as applicable to the person to be served. (2) A person to be served may rescind his or her election to be served with pleadings electronically by filing and serving a notice of such rescission. (3) If a person to be served agrees to electronic service of pleadings, such person to be served bears the responsibility of providing notice of any change in his or her e-mail address or addresses. (4) If electronic service of a pleading is made upon a person to be served, and such person certifies to the court under oath that he or she did not receive such pleading, it

GEORGIA LAWS 2009 SESSION

75

shall be presumed that such pleading was not received unless the serving party disputes the assertion of nonservice, in which case the court shall decide the issue of service of such pleading."

SECTION 3. Said chapter is further amended by revising subsection (e) of Code Section 9-11-6, relating to time, as follows:
'(e) Additional time after service by mail or e-mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper, other than process, upon him or her, and the notice or paper is served upon the party by mail or e-mail, three days shall be added to the prescribed period."

SECTION 4. Said chapter is further amended by adding a new subsection to Code Section 9-11-12, relating to answers, defenses, and objections in civil practice, to read as follows:
'(j)(l) Stay ofdiscovery. If a party files a motion to dismiss before or at the time of filing an answer and pursuant to the provisions of this Code section, discovery shall be stayed for 90 days after the filing of such motion or until the ruling of the court on such motion, whichever is sooner. The court shall decide the motion to dismiss within the 90 days provided in this paragraph. (2) The discovery period and all discovery deadlines shall be extended for a period equal to the duration of the stay imposed by this subsection. (3) The court may upon its own motion or upon motion of a party terminate or modify the stay imposed by this subsection but shall not extend such stay. (4) If a motion to dismiss raises defenses set forth in paragraph (2), (3), (5), or (7) of subsection (b) of this Code section or if any party needs discovery in order to identify persons who may be joined as parties, limited discovery needed to respond to such defenses or identify such persons shall be permitted until the court rules on such motion. (5) The provisions of this subsection shall not modify or affect the provisions of paragraph (2) of subsection (f) of Code Section 9-11-23 or any other power of the court to stay discovery."

SECTION 5. This Act shall become effective on July 1, 2009, and shall apply to motions to dismiss filed after July 1, 2009.

SECTION 6. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

76

GENERAL ACTS AND RESOLUTIONS, VOL. I

REVENUE- SALES TAX EXEMPTION; DYED FUEL OILS; RATIFY EXECUTIVE ORDER.

No. 26 (House Bill No. 46).

AN ACT

To amend Title 48 of the Official Code of Georgia Annotated, relating to revenue and taxation, so as to provide for an exemption for a limited period of time with respect to state sales and use taxes applicable to sales of dyed fuel oils, as defined in paragraph (5.1) of Code Section 48-9-2, which are used exclusively for agricultural purposes, timber growing or harvesting purposes, or mining or construction purposes and used directly by such industry sectors for such purposes and not for highway use as defined in paragraph (8) of Code Section 48-9-2; to provide for legislative findings; to provide for procedures, conditions, and limitations; to provide for powers, duties, and authority of the state revenue commissioner with respect to the foregoing; to ratify an executive order of the Governor suspending the collection of such taxes; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Title 48 of the Official Code of Georgia Annotated, relating to revenue and taxation, is amended by adding a new Code section to read as follows:
'48-8-16. (a) The General Assembly finds that:
(I) The price ofdyed fuel oils, as used primarily for off-road, agricultural uses, including timber growing or harvesting and mining or construction, has risen substantially; and (2) This spike in the price of dyed fuel oils has produced an acute strain on Georgia's agricultural, timber growing or harvesting, and mining or construction sectors. (b) The General Assembly of Georgia ratifies the Executive Order of the Governor dated May 15, 2008, and filed in the official records of the Office of the Governor as Executive Order 05.15.08.0 I which suspended the collection of state sales and use taxation as that tax applies to the sales of dyed fuel oils as defined in paragraph (5.1) of Code Section 48-9-2 which are used exclusively for agricultural purposes, timber growing or harvesting purposes, or mining or construction purposes and used directly by such industry sectors for such purposes and not for highway use as defined in paragraph (8) of Code Section 48-9-2. (c) For the time period commencing on May 12, 2008, as specified in the Executive Order of the Governor dated May 15,2008, and filed in the official records of the Office of the Governor as Executive Order 05.15.08.01 and concluding on the last moment ofthe earlier

GEORGIA LAWS 2009 SESSION

77

of the last day of the month of the effective date of this act or May 31, 2009, state sales and use taxation pursuant to Code Section 48-8-30 as that tax applies to the sale or use of dyed fuel oils, as defined in paragraph (5 .1) of Code Section 48-9-2, which are used exclusively for agricultural purposes, timber growing or harvesting purposes, or mining or construction purposes and used directly by such industry sectors for such purposes and not for highway use as defined in paragraph (8) of Code Section 48-9-2 shall be governed by the provisions of this Code section notwithstanding any provisions of Code Section 48-8-30 or any other law to the contrary. (d) The temporary sales and use tax exemption provided for in this Code section shall not apply to local sales and use taxes levied and imposed in an area consisting of less than the entire state, however authorized, including, but not limited to, such taxes authorized by or pursuant to constitutional amendment; by or pursuant to Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, known as the 'Metropolitan Atlanta Rapid Transit Authority Act of 1965'; or by or pursuant to Article 2, 2A, 3, or 4 of this chapter. Such local taxes shall remain applicable to sales or uses of such dyed fuel oils. (e) The commissioner is authorized to prescribe forms and promulgate rules and regulations deemed necessary in order to administer and effectuate this Code section."

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April 21, 2009.

SOCIAL SERVICES- GEORGIA BOARD FOR PHYSICIAN WORKFORCE; POWERS.
No. 27 (House Bill No. 49).
AN ACT
To amend Chapter 10 of Title 49 of the Official Code of Georgia Annotated, relating to the Georgia Board for Physician Workforce, so as to revise certain provisions relating to the

78

GENERAL ACTS AND RESOLUTIONS, VOL. I

powers, duties, and responsibilities of the board; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Chapter 10 of Title 49 of the Official Code of Georgia Annotated, relating to the Georgia Board for Physician Workforce, is amended by revising Code Section 49-10-3, relating to the powers, duties, and responsibilities of the board, as follows:
8 49-10-3. The board shall have the following powers, duties, and responsibilities:
(1) To locate and determine specific underserved areas of the state in which unmet priority needs exist for physicians by monitoring and evaluating the supply and distribution of physicians by specialty and geographical location; (2) To approve and allocate state appropriations for family practice training programs, including but not limited to fellowships in geriatrics and other areas of need as may be identified by the board; (3) To approve and allocate state appropriations for designated pediatric training programs; (4) To approve and allocate any other state funds appropriated to the Georgia Board for Physician Workforce to carry out its purposes; (5) To coordinate and conduct with other state, federal, and private entities, as appropriate, activities to increase the number of graduating physicians who remain in Georgia to practice with an emphasis on medically underserved areas of the state; (6) To apply for grants and to solicit and accept donations, gifts, and contributions from any source for the purposes of studying or engaging one or more contractors to study issues relevant to medical education or implementing initiatives designed to enhance the medical education infrastructure of this state and to meet the physician workforce needs of Georgia communities; and (7) To carry out any other functions assigned to the board by general law:

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

GEORGIA LAWS 2009 SESSION

79

REVENUE- SALES TAX EXEMPTIONS; PRESCRIPTION DRUGS; CONTROLLED SUBSTANCES; DANGEROUS DRUGS; NEW ANIMAL DRUGS; MEDICAL DEVICES; RATIFY EXECUTIVE ORDER.

No. 28 (House Bill No. 59).

AN ACT

To amend Title 48 of the Official Code of Georgia Annotated, relating to revenue and taxation, so as change certain provisions regarding the exemption from sales and use taxes on prescription drugs; to provide for additional exemptions from sales and use taxes on certain controlled substances, dangerous drugs, new animal drugs, or medical devices; to provide for legislative findings; to provide for definitions; to provide for procedures, conditions, and limitations; to provide for powers, duties, and authority of the state revenue commissioner with respect to the foregoing; to ratify an executive order of the Governor suspending the collection of such taxes; to provide for effective dates; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Title 48 of the Official Code of Georgia Annotated, relating to revenue and taxation, is amended by adding a new Code section to read as follows:
'48-8-18. (a) The General Assembly finds that:
(I) Pharmaceutical samples provide a zero-cost option for some Georgians to obtain medication necessary to maintain their health and sustain their lives; (2) Pharmaceutical medications used in clinical trials are often provided without cost; and (3) It is in the best interests of Georgians to exempt from sales and use taxes pharmaceutical medications that are distributed without cost for several reasons, including:
(A) The ability to distribute needed medicines to persons who might not otherwise be able to afford them; (B) The attraction of clinical trials to Georgia for the betterment of the health of Georgians and to continue the state's place as a leader in cutting-edge health research; and (C) The elimination of an inconsistency in the law whereby pharmaceutical medicines that are sold at retail are not taxed, but those that are distributed for free are subject to taxation.

80

GENERAL ACTS AND RESOLUTIONS, VOL. I

(b) The General Assembly of Georgia ratifies the Executive Order of the Governor dated August 29, 2008, and filed in the official records of the Office of the Governor as Executive Order 08.29.08.01 which suspended the collection of any rate of sales and use taxation as that tax applies to those controlled substances and dangerous drugs, as defined by Code Section 16-13-1, lawfully dispensable by prescription for the treatment of natural persons which are dispensed without charge to physicians, dentists, clinics, hospitals, or any other person or entity located in Georgia by a pharmaceutical manufacturer or distributor and the collection of any such taxes on controlled substances and dangerous drugs, as defined by Code Section 16-13-1, lawfully dispensed without charge for the purposes of a clinical trial approved by an institutional review board which has been accredited by the Association for the Accreditation of Human Research Protection Programs. (c) For the time period commencing on September 1, 2008, as specified in the Executive Order ofthe Governor dated August 29, 2008, and filed in the official records ofthe Office ofthe Governor as Executive Order 08.29.08.01 and concluding on the last moment ofJune 30, 2009, sales and use taxation pursuant to Code Section 48-8-30 as that tax applies to those controlled substances and dangerous drugs, as defined by Code Section 16-13-1, lawfully dispensable by prescription for the treatment of natural persons which are dispensed without charge to physicians, dentists, clinics, hospitals, or any other person or entity located in Georgia by a pharmaceutical manufacturer or distributor and as such tax applies to controlled substances and dangerous drugs, as defined by Code Section 16-13-1, lawfully dispensed without charge for the purposes of a clinical trial approved by an institutional review board which has been accredited by the Association for the Accreditation ofHuman Research Protection Programs, shall be governed by the provisions of this Code section notwithstanding any provisions of Code Section 48-8-30 or any other law to the contrary. (d) The commissioner is authorized to prescribe forms and promulgate rules and regulations deemed necessary in order to administer and effectuate this Code section.'

SECTION 2. Said title is further amended in Code Section 48-8-3, relating to exemptions from sales and use tax, by revising paragraph (47) as follows:
'(47)(A)(i) The sale or use of controlled substances and dangerous drugs which are lawfully dispensed by prescription for the treatment of natural persons, and sales of prescription eyeglasses and contact lenses including, without limitation, prescription contact lenses distributed by the manufacturer to licensed dispensers as free samples not intended for resale and labeled as such. (ii) The sale or use of those controlled substances and dangerous drugs lawfully dispensable by prescription for the treatment of natural persons which are dispensed or distributed without charge to physicians, dentists, clinics, hospitals, or any other person or entity located in Georgia by a pharmaceutical manufacturer or distributor;

GEORGIA LAWS 2009 SESSION

81

and the use ofcontrolled substances, dangerous drugs, new animal drugs, and medical devices lawfully dispensed or distributed without charge solely for the purposes of a clinical trial approved by either the United States Food and Drug Administration or by an institutional review board. (B) For purposes of this paragraph, the term: (i) 'Controlled substance' means the same as provided in Code Section 16-13-1. (ii) 'Dangerous drug' means the same as provided in Code Section 16-13-1. (iii) 'Institutional review board' means an institutional review board as provided in 21 C.F.R. Section 56. (iv) 'Medical device' means a device as defined in subsection (h) of 21 U.S.C. Section 321. (v) 'New animal drug' means a new animal drug as defined in subsection (v) of 21 U.S.C. Section 321. (C) The commissioner is authorized to prescribe forms and promulgate rules and regulations deemed necessary in order to administer and effectuate this paragraph;"

SECTION 3. (a) Except as otherwise provided in subsection (b) of this section, this Act shall become effective upon its approval by the Governor or upon its becoming law without such approval. (b) Section 2 of this Act shall become effective July 1, 2009.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

HEALTH- PUBLIC OFFICERS- CAUSE OF DEATH; MEDICAL CERTIFICATION; CORONERS; NOTIFICATION.
No. 29 (House Bill No. 64).
AN ACT
To amend Code Section 31-10-15 of the Official Code of Georgia Annotated, relating to death certificate filings, so as to provide for the completion and filing of the medical certification as to the cause and circumstances of death during a certain period of time; to provide for penalties; to provide that a coroner shall be authorized to complete and sign a medical certification as to the cause and circumstances of death under certain circumstances;

82

GENERAL ACTS AND RESOLUTIONS, VOL. I

to amend Chapter 16 of Title 45 of the Official Code of Georgia Annotated, relating to coroners, so as to provide for certain notification requirements when a death occurs in a different county than where the acts or events resulting in the death occurred; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Code Section 31-10-15 of the Official Code of Georgia Annotated, relating to death certificate filings, is amended by revising subsections (b) and (c) as follows:
"(b) The funeral director or person acting as such who first assumes custody of the dead body shall file the certificate of death within 72 hours. Such director or person shall obtain the personal data from the next of kin or the best qualified person or source available and shall obtain the medical certification from the person responsible therefor.
(c)( 1) The medical certification as to the cause and circumstances of death shall be completed, signed, and returned to the funeral director or person acting as such within 72 hours after death by the physician in charge of the patient's care for the illness or condition which resulted in death, except when inquiry is required by Article 2 of Chapter 16 of Title 45, the 'Georgia Death Investigation Act.' In the absence of said physician or with that physician's approval the certificate may be completed and signed by an associate physician, the chief medical officer of the institution in which death occurred, or the physician who performed an autopsy upon the decedent, provided that such individual has access to the medical history of the case, views the deceased at or after death, and death is due to natural causes. If, 30 days after a death, the physician in charge of the patient's care for the illness or condition which resulted in death has failed to complete, sign, and return the medical certification as to the cause and circumstances of death to the funeral director or person acting as such, the funeral director or person acting as such shall be authorized to report such physician to the Composite State Board of Medical Examiners for discipline pursuant to Code Section 43-34-3 7. (2) In any area in this state which is in a state of emergency as declared by the Governor due to an influenza pandemic, in addition to any other person authorized by law to complete and sign a death certificate, any registered professional nurse employed by a long-term care facility, advanced practice nurse, physician's assistant, registered nurse employed by a home health agency, or nursing supervisor employed by a hospital shall be authorized to complete and sign the death certificate, provided that such person has access to the medical history ofthe case, such person views the deceased at or after death, the death is due to natural causes, and an inquiry is not required under Article 2 of Chapter 16 of Title 45, the 'Georgia Death Investigation Act.' In such a state of emergency, the death certificate shall be filed by the funeral director in accordance with subsection (b) of this Code section; or, if the certificate is not completed and signed by an appropriate physician or coroner, the public health director ofpreparedness shall cause

GEORGIA LAWS 2009 SESSION

83

the death certificate to be completed, signed, and filed by some other authorized person within ten days after death!

SECTION lA. Chapter 16 of Title 45 of the Official Code of Georgia Annotated, relating to coroners, is amended by adding a new subsection to Code Section 45-16-22, relating to medical examiners' inquiries, as follows:
'(f.1) When death occurs in a hospital as a direct result and consequence of acts or events taking place in a county other than the one in which such death occurs, the hospital shall immediately notify the coroner or the county medical examiner of the county in which the acts or events resulting in the death occurred."

SECTION lB. Said chapter is further amended in subsection (a) of Code Section 45-16-24, relating to notification of suspicious or unusual deaths, by revising paragraph (9) and the undesignated text at the end of subsection (a) as follows:
'(9) After having been admitted to a hospital in an unconscious state and without regaining consciousness within 24 hours of admission, it shall be the duty of any law enforcement officer or other person having knowledge of such death to notify immediately the coroner or county medical examiner of the county in which the acts or events resulting in the death occurred or the body is found. For the purposes of this Code section, no person shall be deemed to have died unattended when the death occurred while the person was a patient of a hospice licensed under Article 9 of Chapter 7 of Title 31.'

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

84

GENERAL ACTS AND RESOLUTIONS, VOL. I

REVENUE - PREPAID STATE TAXES; SECOND MOTOR FUEL TAX; RATIFY EXECUTIVE ORDER.

No. 30 (House Bill No. 121).

AN ACT

To amend Title 48 of the Official Code of Georgia Annotated, relating to revenue and taxation, so as to provide for an exemption for a limited time with respect to the collection of any rate of prepaid state taxes as defined in paragraph (5.1) of Code Section 48-8-2 to the extent it differs from the rate levied as of January 1, 2008, pursuant to Code Section 48-9-14 as it applies to sales of motor fuel and aviation gasoline as those terms are defined in Code Section 48-9-2; to provide for legislative findings; to provide for procedures, conditions, and limitations; to provide for powers, duties, and authority of the state revenue commissioner with respect to the foregoing; to ratify executive orders of the Governor suspending the collection of such taxes and providing for a termination date of the suspension of the collection of such taxes; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Title 48 of the Official Code of Georgia Annotated, relating to revenue and taxation, is amended by adding a new Code section to read as follows:
'48-8-17. (a) The General Assembly finds that:
(I) Motor fuels and aviation gasoline are essential commodities used by Georgians for transportation; (2) The price of gasoline has increased dramatically since the adjournment of the 2008 General Assembly, namely rising in price by approximately 10 percent from one month ago and almost 24 percent since last year at this time; (3) The increases in the cost of gasoline and other motor fuels have and will continue to impose significant financial burdens on all Georgians and Georgia's businesses; (4) This inflated cost can prevent Georgians from spending on other necessary goods and business expansion; and (5) The significant increase in motor fuel prices will result in a windfall to the state in the form of surplus state taxes on these commodities. (b) The General Assembly of Georgia ratifies the Executive Order of the Governor dated June 2, 2008, and filed in the official records of the Office of the Governor as Executive

GEORGIA LAWS 2009 SESSION

85

Order 06.02.08.0 I which suspended the collection of any rate of prepaid state taxes as defined in paragraph (5.1) of Code Section 48-8-2 to the extent it differs from the rate levied as of January I, 2008, pursuant to Code Section 48-9-14 as it applies to sales of motor fuel and aviation gasoline as those terms are defined in Code Section 48-9-2. (c) For the time period commencing on June 2, 2008, as specified in the Executive Order of the Governor dated June 2, 2008, and filed in the official records of the Office of the Governor as Executive Order 06.02.08.0 I, the collection of any rate of prepaid state taxes as defined in paragraph (5.1) of Code Section 48-8-2 to the extent it differs from the rate levied as of January I, 2008, pursuant to Code Section 48-9-14 as it applies to sales of motor fuel and aviation gasoline as those terms are defined in Code Section 48-9-2 shall be governed by the provisions ofthis Code section notwithstanding any provisions of Code Section 48-9-14 or any other law to the contrary. (d) The temporary prepaid state tax exemption provided for in this Code section shall not apply to local prepaid taxes as defined in paragraph (5.2) of Code Section 48-8-2. (e) The commissioner is authorized to prescribe forms and promulgate rules and regulations deemed necessary in order to administer and effectuate this Code section.'

SECTION 2. Said title is further amended by adding a new Code section to read as follows:
'48-8-17.1. (a) The General Assembly finds that:
(I) Sonny Perdue, as Governor ofGeorgia, issued an Executive Order ('EO 06.02.08.0 I') that suspended the collection of any rate of prepaid taxes as defined in paragraph (5.1) of Code Section 48-8-2 to the extent it differed from the rate levied as ofJanuary I, 2008, pursuant to Code Section 48-9-14 as it applied to sales of motor fuel and aviation gasoline as those terms are defined in Code Section 48-9-2 until the General Assembly acts upon the suspension; (2) Such suspension maintained the rate of prepaid state taxes for motor fuel and gasoline at the January I, 2008, rate instead of allowing the rate to increase; (3) Such suspension was warranted given the sharp increase in motor fuel and gasoline prices; (4) Motor fuel and gasoline prices have recently declined such that ending the suspension provided for in EO 06.02.08.0 I on the last moment of December 31, 2008, will have resulted in a rate of prepaid state taxes on motor fuel and gasoline being lower than if the suspension provided for in EO 06.02.08.01 remained in effect on January I, 2009; and (5) Such reduced rate of taxation will continue to provide meaningful relief to the taxpayers of Georgia. (b) The General Assembly of Georgia ratifies the Executive Order of the Governor dated November 26, 2008, and filed in the official records of the Office of the Governor as Executive Order 11.26.08.01 which terminated the suspension provided for in EO 06.02.08.0 I as of the last moment of December 31, 2008.

86

GENERAL ACTS AND RESOLUTIONS, VOL. I

(c) The suspension provided for in EO 06.02.08.01 terminated as of the last moment of December 31, 2008."

SECTION 3. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved April 21, 2009.

BANKS- COMMERCE- FINANCIAL INSTITUTIONS; NUMEROUS REVISIONS; DECEPTIVE TRADE PRACTICES.
No. 31 (House Bill No. 141).
AN ACT
To amend Chapter 1 of Title 7 of the Official Code of Georgia Annotated, relating to financial institutions, so as to update definitions; to provide for penalties for failure to provide requested information by financial institutions; to include bank holding companies in the definition of financial institutions; to include credit unions in restricted nomenclature; to broaden the definition of legal lending limit; to provide for payment of dividends by Subchapter S banks; to change the amount of par value; to provide for the investigative powers of the Department of Banking and Finance; to provide for immunity from civil liability for proper disclosure of information; to change certain provisions relative to the renewal of licenses; to update the records required to be retained by a licensee; to prohibit employment of persons that have a final cease and desist order entered against them; to provide for transmittal of certain monies within five days; to provide that mobile check cashing facilities are subject to regulation; to amend Code Section 10-1-393, relating to unlawful unfair or deceptive practices in consumer transactions an in trade and commerce, so as to provide further illustration of an unfair or deceptive trade practices applying to financial and other business institutions; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

GEORGIA LAWS 2009 SESSION

87

SECTION 1. Chapter 1 of Title 7 of the Official Code of Georgia Annotated, relating to financial institutions, is amended by revising paragraph (24) of Code Section 7-1-4, relating to definitions relative to financial institutions, as follows:
'(24) 'Net assets' means the amount by which the total assets exceed the total debts of a financial institution. Total assets shall include but not be limited to both tangible and intangible assets, including prepaid expenses, prepaid taxes, and accrued income using book values determined in accordance with generally accepted accounting principles applicable to financial institutions. Total assets shall not include intangible assets in the form of good will, core deposit intangibles, or other intangible assets related to the purchase, acquisition, or merger of a bank charter. Total debts shall include all liabilities, other than contingent liabilities, including accrued expenses, deferred or unearned income, and valuation reserves, all determined in accordance with generally accepted accounting principles applicable to financial institutions.'

SECTION 2. Said chapter is further amended by revising subsection (d) of Code Section 7-1-68, relating to reports to the Department of Banking and Finance and publication of summaries, as follows:
'(d) Any financial institution which fails to prepare or publish any report or to furnish any proof of publication, in accordance with this Code section, or fails to provide any facts or information requested under subsection (a) of this Code section, shall pay the department a penalty of $100.00 for each day after the time fixed by the department for filing such report, making such publication, or furnishing such proofofpublication, but the department may, in its discretion, relieve any financial institution from the payment of such penalty, in whole or in part, if good cause be shown. If a financial institution fails to pay a penalty from which it has not been relieved, the department may, through the Attorney General, maintain an action at law to recover it.'

SECTION 3. Said chapter is further amended by revising subsection (h) of Code Section 7-1-91, relating to orders by the Department of Banking and Finance, as follows:
'(h) The term 'financial institution' as used in this Code section shall include a bank holding company as defined in Code Section 7-1-605 and those entities required to be licensed pursuant to Article 4A of this chapter and any officer, director, employee, agent, or other person participating in the conduct of the affairs of the financial institution subject to the orders issued pursuant to this Code section.'

88

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 4. Said chapter is further amended by adding a new subsection (a.1) and revising subsection (c) of Code Section 7-1-243, relating to restrictions on using bank and trust nomenclature, as follows:
0 (a.1) Except as provided in subsection (c) of this Code section, no person or corporation except a credit union or a federal credit union shall use the words 'credit union', or any other similar name indicating that the business done is that of a credit union upon any sign at its place of business or elsewhere, or upon any of its letterheads, billheads, blank checks, blank notes, receipts, certificates, circulars, advertisements, or any other written or printed matter.n
n(c) Nothing in this Code section shall be construed to: (1) Prevent the use of the words 'banks,' 'banker,' 'banking,' 'banker's,' 'trust,' or any similar word in a context clearly not purporting to refer to a banking or a trust business or to a business primarily engaged in the lending of money, underwriting or sale of securities, acting as a financial planner, financial service provider, investment or trust adviser, or acting as a loan broker; (1.1) Prevent the use of the words 'credit union', or any similar word in a context clearly not purporting to refer to a credit union or to a business primarily engaged in the lending of money, or accepting shares or deposits or acting as a loan broker; (2) Prohibit advertisement in media distributed in or transmitted into this state by persons or corporations lawfully engaged in the banking, credit union, or trust business outside of this state; or (3) Prevent any person or corporation from continuing to use its name legally in use on April 1, 1989.0

SECTION 5. Said chapter is further amended by revising subsections (b) and (e) of Code Section 7-1-285, relating to limits on obligations to one person or corporation, as follows:
n(b) Except as provided in subsection (c) of this Code section, a bank shall not directly or indirectly make loans to any one person or corporation which in aggregate exceed 15 percent of the statutory capital base of the bank unless the entire amount of such loans is secured by good collateral or other ample security and does not exceed 25 percent of the statutory capital base. Except as otherwise indicated in subsection (c) ofthis Code section, the purchase or discount of agreements for the payment of money or evidences of indebtedness shall be regarded as indirect loans to the person or corporation receiving the proceeds of such transactions. In estimating the legal lending limit for any individual person, loans to related corporations, partnerships, and other entities shall be combined subject to regulations established by the departmene 0 (e) The department may, by regulation not inconsistent with this Code section, prescribe definitions of and requirements for transactions included in or excluded from the indebtedness to which this Code section applies. The department may also by regulation

GEORGIA LAWS 2009 SESSION

89

prescribe less restrictive limitations than those listed in subsections (a) through (c) of this Code section for banks meeting certain financial and management criteria. In addition, the department may, by regulation or otherwise, specify that the liabilities of a group of one or more persons or corporations or both shall be considered as owed by one person or corporation for the purposes of this Code section because the group relies substantially on a common source for the payment of its obligations or makes common use of funds received by it, or meets other criteria established by the department for the combination of indebtedness for legal lending limitation purposes."

SECTION 6. Said chapter is further amended by revising paragraph (2) of subsection (a) of Code Section 7-1-460, relating to restrictions on payment of dividends and limitation of actions for dividends or distributions, as follows:
'(2) Dividends may not be declared or paid at any time that the bank or trust company does not have the paid-in capital and appropriated retained earnings required by Code Section 7-1-411, except the department may approve the payment of dividends by a Subchapter S bank, prior to cumulative profitability, for the sole purpose of providing its shareholders with a source of funds to pay federal and state income taxes on the Subchapter S bank's income that is taxable to those shareholders;"
SECTION 7. Said chapter is further amended by revising subsection (a) of Code Section 7-1-651, relating to membership of credit unions, as follows:
'(a) The membership of the credit union shall consist of the initial subscribers and such other persons within the field ofmembership as may have subscribed to one share and have paid for same together with the required entrance fee and complied with all other requirements contained in the bylaws. No subscriber or other member shall hold more than one share out of any class of shares. The bylaws may provide for separate classes of shares for borrowers and depositors and for the par value of each share for each class but in no event shall the par value be less than $1.00."
SECTION 8. Said chapter is further amended by adding new subsections (c) through (h) of Code Section 7-1-684.1, relating to examination of books and records of licensees by the Department of Banking and Finance, as follows:
'(c) The department, in its discretion, may: (I) Make such public or private investigations within or outside of this state as it deems necessary to determine whether any person has violated this article or any rule, regulation, or order under this article, to aid in the enforcement of this article, or to assist in the prescribing of rules and regulations pursuant to this article;

90

GENERAL ACTS AND RESOLUTIONS, VOL. I

(2) Require or permit any person to file a statement in writing, under oath or otherwise as the department determines, as to all the facts and circumstances concerning the matter to be investigated; (3) Disclose information concerning any violation of this article or any rule, regulation, or order under this article, provided the information is derived from a final order of the department; and (4) Disclose the imposition of an administrative fine or penalty under this article. (d)( 1) For the purpose of conducting any investigation as provided in this Code section, the department shall have the power to administer oaths, to call any party to testify under oath in the course of such investigations, to require the attendance of witnesses, to require the production of books, records, and papers, and to take the depositions of witnesses; and for such purposes the department is authorized to issue a subpoena for any witness or for the production of documentary evidence. Such subpoenas may be served by certified mail or statutory overnight delivery, return receipt requested, to the addressee's business mailing address, by examiners appointed by the department, or shall be directed for service to the sheriff of the county where such witness resides or is found or where the person in custody of any books, records, or paper resides or is found. The required fees and mileage of the sheriff, witness, or person shall be paid from the funds in the state treasury for the use of the department in the same manner that other expenses of the department are paid. (2) The department may issue and apply to enforce subpoenas in this state at the request of a government agency regulating sellers of checks or money transmitters of another state if the activities constituting the alleged violation for which the information is sought would be a violation of this article if the activities had occurred in this state. (e) In case of refusal to obey a subpoena issued under this article to any person, a superior court of appropriate jurisdiction, upon application by the department, may issue to the person an order requiring him or her to appear before the court to show cause why he or she should not be held in contempt for refusal to obey the subpoena. Failure to obey a subpoena may be punished as contempt by the court. (f) Examinations and investigations conducted under this article and information obtained by the department in the course of its duties under this article are confidential, except as provided in this subsection, pursuant to the provisions of Code Section 7-1-70. In addition to the exceptions set forth in subsection (b) of Code Section 7-1-70, the department is authorized to share information obtained under this article with other state and federal regulatory agencies or law enforcement authorities. In the case of such sharing, the safeguards to confidentiality already in place within such agencies or authorities shall be deemed adequate. The commissioner or an examiner specifically designated may disclose such limited information as is necessary to conduct a civil or administrative investigation or proceeding. Information contained in the records of the department which is not confidential and may be made available to the public either on the department's website or upon receipt by the department of a written request shall include:

GEORGIA LAWS 2009 SESSION

91

(1) The name, business address, and telephone, fax, and license numbers of a licensee or registrant; (2) The names and titles of the principal officers; (3) The name of the owner or owners thereof; (4) The business address of a licensee's or registrant's agent for service; (5) The terms of or a copy of any bond filed by a licensee or registrant; and (6) The name, business address, telephone number, and fax number of all agents of a licensee. (g) In the absence of malice, fraud, or bad faith, a person is not subject to civil liability arising from the filing of a complaint with the department or furnishing other information required by this Code section or required by the department under the authority granted in this article. No civil cause of action of any nature shall arise against such person: (1) For any information relating to suspected prohibited transactions furnished to or received from law enforcement officials, their agents, or employees or to or from other regulatory or licensing authorities; (2) For any such information furnished to or received from other persons subject to the provisions of this title; or (3) For any such information furnished in complaints filed with the department. (h) The commissioner or any employee or agent is not subject to civil liability, and no civil cause of action of any nature exists against such persons arising out of the performance of activities or duties under this article or by publication of any report of activities under this Code section.'

SECTION 9. Said chapter is further amended by revising Code Section 7-1-685, relating to renewal of licenses and the annual license fee, as follows:
A license may be renewed for a period to be established by regulations of the department upon the filing of an application conforming to the requirements of Code Section 7-1-683 with such modifications as the department may allow. No investigation fee shall be payable in connection with such renewal application; but an annual license fee established by regulation of the department to defray the cost of supervision shall be paid with each renewal application, which fee shall not be refunded or prorated if the renewal application is approved.'

SECTION 10. Said chapter is further amended by revising subsection (b) of Code Section 7-1-686, relating to a notice of action or change in number of locations by a licensee, as follows:
'(b) A licensee shall give notice to the department by registered or certified mail or statutory overnight delivery of the name and address of any new or additional locations at which it engages in the business of selling or issuing checks over the number previously reported in either its original or renewal application and shall show to the department that

92

GENERAL ACTS AND RESOLUTIONS, VOL. I

the bond or assets required under Code Section 7-1-683 have been increased accordingly. This notice shall be given to the department by the licensee as follows:
(1) For the period January 1 through June 30 of each year, on or before the first business day of September; and (2) For the period July 1 through December 31 of each year, on or before the first business day of March. Failure to provide such notice shall be punished with a fine, other administrative action, or both. At any time the department is shown that a licensee has decreased the number of locations at or through which it proposes to engage in the business, the department may decrease the bond or security requirements accordingly.u

SECTION 11. Said chapter is further amended by revising subsection (a) of Code Section 7-1-687.1, relating to records required to be kept by licensee for a five-year period, as follows:
0 (a) Each licensee shall make, keep, and reserve the following books, accounts, and other records for a period of five years:
(1) A record of each check sold; (2) A general ledger which shall be posted at least monthly containing all assets, liabilities, capital, and income and expense accounts; (3) Settlement sheets received from agents; (4) Bank statements and bank reconciliation records; (5) Records of outstanding checks; (6) Records of each check paid; (7) A list of the names and addresses of all of the licensee's agents; (8) A copy of all Currency Transaction Reports that are required to be filed by the licensee; and (9) For money transmitters, records of all money transmissions sent or received."

SECTION 12. Said chapter is further amended by adding a new Code section to read as follows:
n7-1-689.2. The department may not issue a license to an applicant and may revoke a license from a licensee if such person employs any other person against whom a final cease and desist order has been issued within the preceding five years if such order was based on a violation of this article. Each applicant and licensee shall, before hiring an employee, examine the department's public records to determine that such employee is not subject to a cease and desist order.u

SECTION 13. Said chapter is further amended by adding a new subsection (d) of Code Section 7-1-692, relating to prohibited actions by licensees, as follows:

GEORGIA LAWS 2009 SESSION

93

'(d) All licensees or agents oflicensees shall transmit monies received by them within five business days of receiving such monies, unless the licensee's written terms and conditions call for an agent to make an earlier transmission of funds. Failure to timely transmit funds shall subject the licensee to fines and may result in the revocation of its license. In the case of an agent, failure to timely transmit funds may result in the imposition of fines and the designation of a licensee's agent being refused or suspended by the department."

SECTION 14. Said chapter is further amended by revising Code Section 7-1-703, relating to license renewal, as follows:
A license or registration may be renewed for a period to be established by regulations of the department upon the filing of an application substantially conforming to the requirements of Code Section 7-1-701 with such modifications as the department may specify and as may be necessary. No investigation fee shall be payable in connection with such renewal application; but an annual license or registration fee established by regulation of the department to defray the cost of supervision shall be paid with each renewal application, which fee shall not be refunded or prorated if the renewal application is approved.'

SECTION 15. Said chapter is further amended by revising subsection (b) and adding a new subsections (e) through (i) ofCode Section 7-1-704, relating to enforcement ofprovisions by the Department of Banking and Finance, as follows:
'(b) To assure compliance with the provisions of this article and in consideration of any application to renew a license or registration pursuant to the provisions of Code Section 7-1-703, the department or its designated agent may examine the books and records of any licensee or registrant to the same extent as it is authorized to examine financial institutions under this chapter. Each licensee or registrant shall pay an examination fee as established by regulations of the department to cover the cost of such examination. The department, in its discretion, may:
(1) Make such public or private investigations within or outside of this state as it deems necessary to determine whether any person has violated this article or any rule, regulation, or order under this article, to aid in the enforcement of this article, or to assist in the prescribing of rules and regulations pursuant to this article; (2) Require or permit any person to file a statement in writing, under oath or otherwise as the department determines, as to all the facts and circumstances concerning the matter to be investigated; (3) Disclose information concerning any violation of this article or any rule, regulation, or order under this article, provided the information is derived from a final order of the department; and (4) Disclose the imposition of an administrative fine or penalty under this article."

94

GENERAL ACTS AND RESOLUTIONS, VOL. I

(e)( 1) For the purpose of conducting any investigation as provided in this Code section, the department shall have the power to administer oaths, to call any party to testify under oath in the course of such investigations, to require the attendance ofwitnesses, to require the production of books, records, and papers, and to take the depositions of witnesses; and for such purposes the department is authorized to issue a subpoena for any witness or for the production of documentary evidence. Such subpoenas may be served by certified mail or statutory overnight delivery, return receipt requested, to the addressee's business mailing address, by examiners appointed by the department, or shall be directed for service to the sheriff of the county where such witness resides or is found or where the person in custody of any books, records, or paper resides or is found. The required fees and mileage of the sheriff, witness, or person shall be paid from the funds in the state treasury for the use of the department in the same manner that other expenses of the department are paid. (2) The department may issue and apply to enforce subpoenas in this state at the request of a government agency regulating check cashing of another state if the activities constituting the alleged violation for which the information is sought would be a violation of this article if the activities had occurred in this state. (f) In case of refusal to obey a subpoena issued under this article to any person, a superior court of appropriate jurisdiction, upon application by the department, may issue to the person an order requiring him or her to appear before the court to show cause why he or she should not be held in contempt for refusal to obey the subpoena. Failure to obey a subpoena may be punished as contempt by the court. (g) Examinations and investigations conducted under this article and information obtained by the department in the course of its duties under this article are confidential, except as provided in this subsection pursuant to the provisions of Code Section 7-1-70. In addition to the exceptions set forth in subsection (b) of Code Section 7-1-70, the department is authorized to share information obtained under this article with other state and federal regulatory agencies or law enforcement authorities. In the case of such sharing, the safeguards to confidentiality already in place within such agencies or authorities shall be deemed adequate. The commissioner or an examiner specifically designated may disclose such limited information as is necessary to conduct a civil or administrative investigation or proceeding. Information contained in the records of the department that is not confidential and may be made available to the public either on the department's website or upon receipt by the department of a written request shall include: (1) The name, business address, and telephone, fax, and license numbers of a licensee or registrant; (2) The names and titles of the principal officers; (3) The name of the owner or owners thereof; (4) The business address of a licensee's or registrant's agent for service; and (5) The name, business address, telephone number, and fax number of all locations of a licensee.

GEORGIA LAWS 2009 SESSION

95

(h) In the absence of malice, fraud, or bad faith, a person is not subject to civil liability arising from the filing of a complaint with the department or furnishing other information required by this Code section or required by the department under the authority granted in this article. No civil cause of action of any nature shall arise against such person:
(1) For any information relating to suspected prohibited conduct furnished to or received from law enforcement officials, their agents, or employees or to or from other regulatory or licensing authorities; (2) For any such information furnished to or received from other persons subject to the provisions of this title; or (3) For any such information furnished in complaints filed with the department. (i) The commissioner or any employee or agent is not subject to civil liability, and no civil cause of action of any nature exists against such persons arising out of the performance of activities or duties under this article or by publication of any report of activities under this Code section."

SECTION 16. Said chapter is further amended by adding a new Code section to read as follows:
*7-1-707.2. The department may not issue a license or registration to an applicant and may revoke a license from a licensee or a registration from a registrant if such person employs any other person against whom a final cease and desist order has been issued within the preceding five years if such order was based on a violation of this article. Each applicant, licensee and registrant shall, before hiring an employee, examine the department's public records to determine that such employee is not subject to a cease and desist order."

SECTION 17. Said chapter is further amended by adding a new Code section to read as follows:
*7-1-707.3. The operation of a mobile check cashing facility must be conducted in accordance with the rules of the department."

SECTION 18. Code Section 10-1-393, relating to unlawful unfair or deceptive practices in consumer transactions, is amended in subsection (b) by adding a new paragraph to read as follows:
*(34) For any person, firm, partnership, business, association, or corporation to willfully and knowingly accept or use an individual taxpayer identification number issued by the Internal Revenue Service for fraudulent purposes and in violation of federal law:

SECTION 19. This Act shall become effective on July 1, 2009.

96

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 20. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

DOMESTIC RELATIONS - CHILD SUPPORT; INCOME; TIME; DEVIATIONS.
No. 32 (House Bill No. 145).
AN ACT
To amend Code Section 19-6-15 of the Official Code of Georgia Annotated, relating to child support in final verdict or decree, guidelines for determining amount of child support award, and the duration of support, so as to revise a definition; to correct cross-references and clarify certain provisions of the Code section; to revise and clarify provisions relating to the low income deviation; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Code Section 19-6-15 of the Official Code of Georgia Annotated, relating to child support in final verdict or decree, guidelines for determining amount of child support award, and the duration of support, is amended by revising paragraph (17) of subsection (a) as follows:
"(17) 'Parenting time deviation' means a deviation allowed for the noncustodial parent based upon the noncustodial parent's court ordered visitation with the child. For further reference see subsections (g) and (i) of this Code section."
SECTION 2. Said Code section is further amended by revising paragraph (8) of subsection (b) as follows:
"(8) In accordance with subsection (i) of this Code section, deviations subtracted from or increased to the presumptive amount of child support are applied, if applicable, and if supported by the required findings of fact and application of the best interest of the child standard. The proposed deviations shall be entered on the Child Support Schedule E Deviations. In the court's or the jury's discretion, deviations may include, but are not limited to, the following:

GEORGIA LAWS 2009 SESSION

97

(A) High income; (B) Low income; (C) Other health related insurance; (D) Life insurance; (E) Child and dependent care tax credit; (F) Travel expenses; (G) Alimony; (H) Mortgage; (I) Permanency plan or foster care plan; (J) Extraordinary expenses; (K) Parenting time; and (L) Nonspecific deviations;"

SECTION 3. Said Code section is further amended by revising paragraph (4) of subsection (c) as follows:
'(4) In all cases, the parties shall submit to the court their worksheets and schedules and the presence or absence of other factors to be considered by the court pursuant to the provisions of this Code section. The child support worksheet and, if there are any deviations, Schedule E shall be attached to the final court order or judgment; provided, however, that any order entered pursuant to Code Section 19-13-4 shall not be required to have such worksheet and schedule attached thereto."

SECTION 4. Said Code section is further amended by revising subparagraph (i)(2)(B) as follows:
'(B) LOW INCOME. (i) If the noncustodial parent requests a low-income deviation, such parent shall demonstrate no earning capacity or that his or her pro rata share of the presumptive amount of child support would create an extreme economic hardship for such parent. A noncustodial parent whose sole source of income is supplemental security income received under Title XVI of the federal Social Security Act shall be considered to have no earning capacity.
(ii) In considering a noncustodial parent's request for a low-income deviation, the court or the jury shall examine all attributable and excluded sources of income, assets, and benefits available to the noncustodial parent and may consider all reasonable expenses of the noncustodial parent, ensuring that such expenses are actually paid by the noncustodial parent and are clearly justified expenses. (iii) In considering a noncustodial parent's request for a low-income deviation, the court or the jury shall then weigh the income and all attributable and excluded sources ofincome, assets, and benefits and all reasonable expenses of each parent, the relative hardship that a reduction in the amount of child support paid to the custodial parent would have on the custodial parent's household, the needs of each parent, the needs

98

GENERAL ACTS AND RESOLUTIONS, VOL. I

of the child for whom child support is being determined, and the ability of the noncustodial parent to pay child support. (iv) Following a review of such noncustodial parent's gross income and expenses, and taking into account each parent's adjusted child support obligation and the relative hardships on the parents and the child, the court or the jury may consider a downward deviation to attain an appropriate award of child support which is consistent with the best interest of the child. (v) For the purpose of calculating a low-income deviation, the noncustodial parent's minimum child support for one child shall be not less than $100.00 per month, and such amount shall be increased by at least $50.00 for each additional child for the same case for which child support is being ordered. (vi) A low-income deviation granted pursuant to this subparagraph shall apply only to the current child support amount and shall not prohibit an additional amount being ordered to reduce a noncustodial parent's arrears. (vii) If a low-income deviation is granted pursuant to this subparagraph, such deviation shall not prohibit the court or jury from granting an increase or decrease to the presumptive amount of child support by the use of any other specific or nonspecific deviation.'

SECTION 5. Said Code section is further amended by revising division (i)(2)(K)(ii) as follows:
'(ii) If the court or the jury determines that a parenting time deviation is applicable, then such deviation shall be included with all other deviations and be treated as a deduction.'

SECTION 6. Said Code section is further amended by revising paragraph ( 1) ofsubsection (m) as follows:
'(1) The child support worksheet shall be used to record information necessary to determine and calculate child support. Schedules and worksheets shall be prepared by the parties for purposes of calculating the amount of child support. Information from the schedules shall be entered on the child support worksheet. The child support worksheet and, if there are any deviations, Schedule E shall be attached to the final court order or judgment; provided, however, that any order entered pursuant to Code Section 19-13-4 shall not be required to have such worksheet and schedule attached thereto.'

SECTION 7. This Act shall become effective on September 1, 2009.

GEORGIA LAWS 2009 SESSION

99

SECTION 8. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

PENAL INSTITUTIONS- PROBATION DETENTION CENTER; CONFINEMENT.
No. 33 (House Bill No. 226).
AN ACT
To amend Chapter 6 of Title 9 of the Official Code of Georgia Annotated, relating to extraordinary writs, so as to provide that no writ of mandamus or writ of prohibition to compel the removal of a judge shall issue where no motion to recuse has been filed in a timely manner or where a motion to recuse has been denied; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 6 of Title 9 of the Official Code of Georgia Annotated, relating to extraordinary writs, is amended by revising Code Section 9-6-20, relating to when mandamus may issue, as follows:
'9-6-20. All official duties should be faithfully performed, and whenever, from any cause, a defect oflegaljustice would ensue from a failure to perform or from improper performance, the writ ofmandamus may issue to compel a due performance if there is no other specific legal remedy for the legal rights; provided, however, that no writ of mandamus to compel the removal of a judge shall issue where no motion to recuse has been filed, if such motion is available, or where a motion to recuse has been denied after assignment to a separate judge for hearing.'
SECTION 2. Said chapter is further amended by revising Code Section 9-6-40, relating to prohibition counterpart of mandamus, as follows:

100

GENERAL ACTS AND RESOLUTIONS, VOL. I

'9-6-40. The writ of prohibition is the counterpart of mandamus, to restrain subordinate courts and inferior judicial tribunals from exceeding their jurisdiction where no other legal remedy or relief is given. The granting or refusal thereof is governed by the same principles of right, necessity, and justice as apply to mandamus; provided, however, that no writ of prohibition to compel the removal of a judge shall issue where no motion to recuse has been filed, if such motion is available, or where a motion to recuse has been denied after assignment to a separate judge for hearing.'

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

SOCIAL SERVICES- DEPARTMENT OF HUMAN RESOURCES; ADOPTIVE PARENTS; FINANCIAL ASSISTANCE.
No. 34 (House Bill No. 237).
AN ACT
To amend Code Section 49-5-8 of the Official Code of Georgia Annotated, relating to the powers and duties of the Department of Human Resources with respect to programs and protection for children, so as to revise a provision relating to financial assistance for adoptive parents; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Code Section 49-5-8 of the Official Code of Georgia Annotated, relating to the powers and duties of the Department of Human Resources with respect to programs and protection for children, is amended by revising subparagraph (a)(7)(F) as follows:
(F) Providing financial assistance to families adopting children once the child has been placed for adoption, determined eligible for assistance, and the adoption assistance agreement has been signed prior to the finalization of the adoption by all parties. Financial assistance may only be granted for hard-to-place children with physical, mental, or emotional disabilities or with other problems for whom it is difficult to find a permanent home. Financial assistance may not exceed 100 percent of the amount that

GEORGIA LAWS 2009 SESSION

101

would have been paid for boarding such child in a family foster home and for special services such as medical care not available through insurance or public facilities. Such supplements shall only be available to families who could not provide for the child adequately without continued financial assistance. The department may review the supplements paid at any time but shall review them at least annually to determine the need for continued assistance;'

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

EDUCATION-NATIONAL BOARD FOR PROFESSIONAL TEACHING STANDARDS; LIMITATIONS ON TEACHER SALARY INCREASES.
No. 35 (House Bill No. 243).
AN ACT
To amend Subpart 2 of Part 6 of Article 6 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to conditions of employment of certificated personnel in elementary and secondary education, so as to provide that only teachers currently receiving salary increases for National Board for Professional Teaching Standards certification shall be eligible for continuing increases; to provide for an exception for teachers enrolled in the process as of March 1, 2009; to provide that if an individual leaves a teaching position, he or she is no longer eligible for the salary increase; to provide that such increases are subject to appropriations by the General Assembly; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Subpart 2 of Part 6 of Article 6 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to conditions of employment of certificated personnel in elementary and secondary education, is amended by revising Code Section 20-2-212.2, relating to salary increases for persons receiving certification from the National Board for Professional Teaching Standards, as follows:

102

GENERAL ACTS AND RESOLUTIONS, VOL. I

'20-2-212.2. (a) As used in this Code section, the term:
( 1) 'High-needs school' means a Georgia public school that has received an unacceptable rating for a period of two or more consecutive years; and (2) 'National certification' means certification obtained from the National Board for Professional Teaching Standards. (b) For initial national certification prior to July 1, 2006, and subsequent renewals anytime thereafter, (1) Any person who:
(A) Is currently teaching full time in a Georgia public school and holds a valid Georgia teaching certificate; and (B) Has successfully completed the prerequisite portfolio of student work and examination and has received national certification shall receive not less than a 10 percent rate increase in state salary for each year he or she holds national certification. Such increase shall be awarded beginning on the date such certification is received. The 10 percent increase shall be computed based on the state salary for such individual when national certification is received and recomputed each subsequent year based on the individual's state salary for that school year. In the case of a person who has received such national certification prior to July 1, 2000, and is receiving or is eligible to receive a 5 percent rate increase, the 5 percent rate increase shall be changed to a 10 percent rate increase effective with the commencement of the 2000-2001 school year. The increase in state salary provided by this Code section shall be in addition to any other increase for which the person is eligible. An individual receiving a salary increase pursuant to this subsection shall cease to receive such increase if he or she leaves a teaching position after March 1, 2009. This subsection shall be subject to appropriations by the General Assembly. (2) A teacher for whom the State of Georgia pays a portion of the national certification participation fee and who does not teach in a Georgia public school for at least one year after receiving certification shall repay the state's portion of the participation fee to the state. Repayment is not required if the teacher is unable to complete the additional year of teaching due to the death or disability of the teacher, and repayment is not required if the teacher fails to receive national certification. (3) The portion of the national certification program participation fee paid by the participant shall be reimbursed by the state upon certification for any teacher who is eligible for an increase pursuant to paragraph (1) ofthis subsection. This paragraph shall be subject to appropriations by the General Assembly. (4) A teacher for whom the State of Georgia reimburses the cost of the participation fee and who does not teach in a Georgia public school for at least one year after receiving certification shall repay the reimbursement payment to the state. Repayment is not required if the teacher is unable to complete the additional year of teaching due to the death or disability of the teacher.

GEORGIA LAWS 2009 SESSION

103

(b.l) Any person who has enrolled in the process, as determined by the Professional Standards Commission, of attaining national certification on or before March 1, 2005, and who obtains initial certification and subsequent renewals after July 1, 2006, shall be eligible for salary increases, subject to appropriations by the General Assembly, pursuant to subsection (b) of this Code section if such person otherwise meets the requirements of subsection (b) of this Code section. (c) Except as provided for in subsections (b. I) and (c.l) of this Code section, for initial national certification between July 1, 2006, and March 1, 2009, and subsequent renewals anytime thereafter,
(1) Any person who: (A) Is currently teaching full time in a high-needs school and holds a valid Georgia teaching certificate as defined by the Professional Standards Commission; and (B) Has successfully completed the prerequisite portfolio of student work and examination and has received national certification
shall receive not less than a 10 percent rate increase in state salary for each year he or she holds national certification. Such increase shall be awarded beginning on the date such certification is received. The I 0 percent increase shall be computed based on the state salary for such individual when national certification is received. A teacher who transfers to a high-needs school after such individual receives national certification shall receive such increase beginning on the effective date of transfer if the teacher meets the requirements of this subsection, and such increase shall be computed based on the state salary for such individual on the effective date of the transfer. Provided such individual remains employed in a high-needs school or in a school that was designated as a high-needs school at the time the individual received national certification or transferred to such school and otherwise continues to meet the requirements of this subsection, the 10 percent increase shall be recomputed each subsequent year based on such individual's state salary for that school year. An individual receiving a salary increase pursuant to this subsection shall cease to receive such increase ifhe or she leaves a teaching position after March 1, 2009. This subsection shall be subject to appropriations by the General Assembly. (2) The Professional Standards Commission shall provide annually to the Department of Education a roster of teachers who have retained national certification and are eligible for the annual increase. (c.l) Any person who has enrolled in the process, as determined by the Professional Standards Commission, ofattaining national certification on or before March 1, 2009, shall be eligible for salary increases, subject to appropriations by the General Assembly, pursuant to subsection (c) of this Code section if such person otherwise meets the requirements of subsection (c) of this Code section. (d) Except as provided in subsection (c.l) of this Code section, on and after July 1, 2009, only teachers receiving a salary increase pursuant to this Code section as of March 1, 2009, shall be eligible to continue receiving such salary increases, subject to appropriations by

104

GENERAL ACTS AND RESOLUTIONS, VOL. I

the General Assembly, but only if such teachers otherwise meet all applicable requirements.'

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

COURTS- DELINQUENT CHILDREN; DISPOSITION.
No. 36 (House Bill No. 245).
AN ACT
To amend Part 7 of Article 1 of Chapter 11 of Title 15 of the Official Code of Georgia Annotated, relating to delinquent and unruly children, so as to change provisions relating to disposition ofdelinquent children; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Part 7 of Article 1 of Chapter 11 of Title 15 of the Official Code of Georgia Annotated, relating to delinquent and unruly children, is amended by revising paragraph (1) of subsection (b) of Code Section 15-11-66, relating to disposition of a delinquent child, as follows:
'(b)(1) At the conclusion of the dispositional hearing provided in subsection (a) of Code Section 15-11-65, if the child is found to have committed a delinquent act, the court may, in addition to any other treatment or rehabilitation, suspend the driver's license of such child for any period not to exceed the date on which the child becomes 18 years of age or, in the case of a child who does not have a driver's license, prohibit the issuance of a driver's license to such child for any period not to exceed the date on which the child becomes 18 years of age. The court shall retain the driver's license for a period of suspension and return it to the offender at the end of such period. The court shall notify the Department of Driver Services of any such actions taken pursuant to this subsection. If the child is adjudicated for the commission of a delinquent act, the court may in its discretion in those cases involving: (A) a violation of probation involving another adjudicated delinquent act and upon the court making a finding of fact that the child has

GEORGIA LAWS 2009 SESSION

105

failed to respond to the graduated alternative sanctions set forth in paragraph (2) of this subsection; (B) an offense that would be a felony if committed by an adult; or (C) an offense that would be a misdemeanor of a high and aggravated nature if committed by an adult and involving bodily injury or harm or substantial likelihood of bodily injury or harm, in addition to any other treatment or rehabilitation, order the child to serve up to a maximum of 30 days in a youth development center, or after assessment and with the court's approval, in a treatment program provided by the Department of Juvenile Justice or the juvenile court. A child ordered to a youth development center under this paragraph and detained in a secured facility pending placement in the youth development center shall be given credit for time served in the secured facility awaiting placement. On and after July 1, 2011, the maximum number of days that the court may order a child to serve in a youth development center under this paragraph shall be increased to 60 days.'

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

COURTS- JUVENILE PROCEEDINGS; ADULT RELATIVES; LOCATION; NOTICE.
No. 37 (House Bill No. 254).
AN ACT
To amend Chapter 11 of Title 15 of the Official Code of Georgia Annotated, relating to juvenile proceedings, so as to provide that the Department ofHuman Resources shall attempt to locate the adult relatives of a child removed from the custody of his or her parents; to provide for notice; to provide that the court shall order the disclosure of adult relatives of such child; to provide conditions for the placement of a child following a termination order; to provide for findings of fact; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

106

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 1. Chapter II of Title 15 of the Official Code of Georgia Annotated, relating to juvenile proceedings, is amended by revising paragraph (2) of subsection (a) of Code Section 15-11-55, relating to disposition of deprived child and policy favoring stable placements, as follows:
(2)(A) Subject to conditions and limitations as the court prescribes, transfer temporary legal custody to any of the persons or entities described in this paragraph. Without limiting the generality of the foregoing, such conditions and limitations shall include a provision that the court shall approve or direct the retransfer of the physical custody of the child back to the parents, guardian, or other custodian either upon the occurrence of specified circumstances or in the discretion of the court. Any such retransfer of physical custody may be made subject to such further conditions and limitations as the court prescribes, including supervision for the protection of the child. The persons or entities to whom or which temporary legal custody may be transferred shall include the following:
(i) Any individual including a putative father who, after study by the probation officer or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child; (ii) An agency or other private organization licensed or otherwise authorized by law to receive and provide care for the child; (iii) Any public agency authorized by law to receive and provide care for the child; provided, however, that for the purpose ofthis Code section, the term 'public agency' shall not include the Department of Juvenile Justice; or (iv) An individual in another state with or without supervision by an appropriate officer under Code Section 15-11-89. (B) Except for dispositions pursuant to paragraph (I) of subsection (a) of Code Section 15-11-66 and Code Section 15-11-67, within 30 days after the removal of a child from the custody of the parent or parents of the child, the department shall exercise due diligence to identify a parent or relative of the child or other persons who have demonstrated an ongoing commitment to the child. All identified adult relatives of the child, subject to exceptions due to family or domestic violence, shall be provided with notice: (i) Specifying that the child has been or is being removed from parental custody; (ii) Explaining the options the relative has to participate in the care and placement of the child and any options that may be lost by failing to respond to the notice; (iii) Describing the process for becoming an approved foster family home and the additional services and supports available for children placed in approved foster homes; and (iv) Describing any financial assistance for which the relative may be eligible. (C) The results of such search and notification shall be documented in writing and filed with the court by the time of the first review. During such 30 day period, the court may

GEORGIA LAWS 2009 SESSION

107

order that the child be placed in the temporary legal custody of the Department of Human Resources or any other appropriate entity or person. (D) The court shall order in its preliminary disposition that the parent or other legal guardian of the child shall provide within ten days the names and addresses of all relatives and other persons who might be considered as possible placements for the child. The parties shall have an ongoing duty to supplement this information during the course of the case at each judicial review or citizen panel review. The court shall include in all published summons a notice that this information must be provided. (E) The Council of Juvenile Court Judges shall be authorized to create uniform rules and forms to implement the provisions of this paragraph; or"

SECTION 2. Said chapter is further amended by revising Code Section 15-11-103, relating to placement of child following termination order, custodial authority, and review of placement, as follows:
'15-11-103. (a) Upon the entering of an order terminating the parental rights of a parent, a placement may be made only if the court finds that such placement is in the best interest of the child and in accordance with the child's court approved permanency plan created pursuant to Code Section 15-11-58. In determining which placement is in the child's best interest, the court shall enter findings of fact reflecting its consideration of the following:
(1) The child's need for a placement that offers the greatest degree of legal permanence and security; (2) The least disruptive placement alternative for the child; (3) The child's sense of attachment and need for continuity of relationships; and (4) Any other factors the court deems relevant to its determination. (b) A placement effected under the provisions of this Code section shall be conditional upon the person who is given permanent custody or who is granted an adoption ofthe child agreeing to abide by the terms and conditions of the order of the court. (c) The court shall transmit a copy of every final order terminating the parental rights of a parent to the Office of Adoptions of the Department of Human Resources within 15 days of the filing of such order. (d) The custodian has authority to consent to the adoption ofthe child, the child's marriage, the child's enlistment in the armed forces of the United States, and surgical and other medical treatment for the child. (e) In those cases in which the court has placed the child pursuant to a permanency plan of adoption, if a petition seeking the adoption of the child is not filed within six months after the date of the disposition order, the court shall then, and at least every six months thereafter as long as the child remains unadopted, review the circumstances of the child to determine what efforts have been made to assure that the child will be adopted. The court may then enter such orders as it deems necessary to further the adoption, including but not

108

GENERAL ACTS AND RESOLUTIONS, VOL. I

limited to another placement. In those cases where parental rights to the child were terminated without the designation of a permanent guardian or adoptive family, the court shall, at least every six months thereafter as long as the child remains subject to the jurisdiction of the court, review the circumstances ofthe child to determine that placement in the family home-like setting continues to be in the child's best interest.'

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

CORPORATIONS- LIMITED LIABILITY COMPANIES; NUMEROUS REVISIONS.
No. 38 (House Bill No. 308).
AN ACT
To amend Chapter 11 of Title 14 of the Official Code of Georgia Annotated, relating to limited liability companies, so as to amend the "Georgia Limited Liability Company Act"; to provide certain technical corrections to previously enacted legislation; to clarify certain provisions in the existing statute; to make certain provisions consistent with parallel provisions in the Georgia Business Corporations Code; to clarify the provisions governing the operating agreement of a limited liability company and its binding effect; to provide for automatic resignation of a registered agent following the dissolution of a limited liability company; to provide that statutory liability for wrongful distributions is based solely on violations of the statutory limitations on distributions; to reduce the risk of an unintended dissolution of the limited liability company; to limit the rights of judgment creditors of a member to interfere with management or force the dissolution of a limited liability company; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 11 of Title 14 of the Official Code of Georgia Annotated, relating to limited liability companies, is amended in Code Section 14-11-101, relating to definitions relative to limited liability companies, by revising paragraphs (12) and (18) as follows:

GEORGIA LAWS 2009 SESSION

109

"(12) 'Limited liability company' means a limited liability company formed under this chapter." "(18) 'Operating agreement' means any agreement, written or oral, of the member or members as to the conduct of the business and affairs of a limited liability company. In the case of a limited liability company with only one member, a writing signed by that member stating that it is intended to be a written operating agreement shall constitute a written operating agreement and shall not be unenforceable by reason of there being only one person who is a party to the operating agreement. A limited liability company is not required to execute its operating agreement and, except as otherwise provided in the operating agreement, is bound by its operating agreement whether or not the limited liability company executes the operating agreement. An operating agreement may provide enforceable rights to any person, including a person who is not a party to the operating agreement, to the extent set forth therein."

SECTION 2. Said chapter is further amended in Code Section 14-11-203, relating to formation of limited liability companies, by adding a new subsection to read as follows:
'(e) During any period when a limited liability company has any members it may have one or more members."

SECTION 3. Said chapter is further amended in Code Section 14-11-212, relating to conversion to a limited liability company, by revising subsection (a), paragraph (6) of subsection (b), and paragraph (2) of subsection (c), as follows:
'(a) A corporation, foreign corporation, foreign limited liability company, limited partnership, foreign limited partnership, general partnership, or foreign general partnership may elect to become a limited liability company. Such election shall require (1) compliance with Code Section 14-2-1109.1 in the case of a Georgia corporation, or (2) the approval of all of its partners, members or shareholders (or such other approval or compliance as may be sufficient under applicable law or the governing documents of the electing entity to authorize such election) in the case of a foreign corporation, foreign limited liability company, limited partnership, foreign limited partnership, general partnership, or foreign general partnership.'
'(6) A statement setting forth either (A) the manner and basis for converting the ownership interests in the entity making the election into interests as members of the limited liability company formed pursuant to such election or canceling them, or (B)(i) that a written operating agreement has been entered into among the persons who will be the members of the limited liability company formed pursuant to such election, (ii) that such operating agreement will be effective immediately upon the effectiveness of such election, and (iii) that such operating agreement provides for the manner and basis of such conversion or cancellation.'

110

GENERAL ACTS AND RESOLUTIONS, VOL. I

'(2) The ownership interests in the entity making the election shall be converted or canceled on the basis stated or referred to in the certificate of conversion in accordance with paragraph (6) of subsection (b) of this Code section;'

SECTION 4. Said chapter is further amended in Code Section 14-11-303, relating to liability to third parties, by revising subsection (a) as follows:
'(a) A person who is a member, manager, agent, or employee of a limited liability company is not liable, solely by reason of being a member, manager, agent, or employee of the limited liability company, under a judgment, decree, or order of a court, or in any other manner, for a debt, obligation, or liability of the limited liability company, including liabilities and obligations of the limited liability company to any member or assignee, whether arising in contract, tort, or otherwise, or for the acts or omissions of any other member, manager, agent, or employee of the limited liability company, whether arising in contract, tort, or otherwise. Notwithstanding the provisions of this subsection, a member, manager, or employee may be personally liable for tax liabilities arising from the operation of the limited liability company as provided in Code Section 48-2-52.'

SECTION 5. Said chapter is further amended in Code Section 14-11-311, relating to notice, by revising paragraph (2) as follows:
'(2) Notice may be communicated in person; by telephone, electronic transmission, or other form of wire or wireless communication; or by mail or private carrier. If these forms ofpersonal notice are impracticable, notice may be communicated by a newspaper of general circulation in the area where published or by radio, television, or other form of public broadcast communication;'

SECTION 6. Said chapter is further amended in Code Section 14-11-408, relating to liability upon wrongful distribution, by revising subsection (a) and paragraph (2) of subsection (b) as follows:
'(a) A member or manager who votes for or expressly consents to a distribution that is made in violation of Code Section 14-11-407 is personally liable to the limited liability company for the amount of the distribution that exceeds what could have been distributed without violating Code Section 14-11-407, if it is established that such member or manager did not act in compliance with Code Section 14-11-407 and violated a duty owed under Code Section 14-11-305 (without regard to any limitation on such duty permitted by paragraph (4) of Code Section 14-11-305).'
'(2) From each member for the amount the member received knowing that the distribution was made in violation of Code Section 14-11-407:

GEORGIA LAWS 2009 SESSION

111

SECTION 7. Said chapter is further amended in Code Section 14-11-504, relating to rights of a judgment creditor, by revising subsection (b) as follows:
'(b) The remedy conferred by this Code section shall not be deemed exclusive of others which may exist, including, without limitation, the right of a judgment creditor to reach the limited liability company interest of the member by process of garnishment served on the limited liability company, provided that, except as otherwise provided in the articles of organization or a written operating agreement, a judgment creditor shall have no right under this chapter or any other state law to interfere with the management or force dissolution of a limited liability company or to seek an order of the court requiring a foreclosure sale of the limited liability company interest.'

SECTION 8. Said chapter is further amended in Code Section 14-11-505, relating to admission of members, by revising said Code section as follows:
'14-11-505. (a) In connection with the formation of a limited liability company, a person is admitted as a member of the limited liability company upon the later to occur of:
( l) The formation of the limited liability company; or (2) The time provided in and upon compliance with the articles of organization or a written operating agreement or, if the articles of organization and any written operating agreement do not so provide, when the person's admission is reflected in the records of the limited liability company. (b) After the formation of a limited liability company, a person is admitted as a member of the limited liability company at the time provided in and upon compliance with the articles of organization and any written operating agreement or, if the articles of organization or a written operating agreement does not so provide, upon the consent of all members and when the person's admission is reflected in the records of the limited liability company. (c) An assignee is admitted as a member of the limited liability company upon compliance with paragraph ( l) of Code Section 14-11-503 and at the time provided in and upon compliance with the articles of organization and any written operating agreement or, if the articles of organization or a written operating agreement does not so provide, when any such person's permitted admission is reflected in the records of the limited liability company; provided, however, that an assignee shall not be admitted as a member of the limited liability company until such assignee has consented to such admission. (d) A written operating agreement may provide that a person shall be admitted as a member of a limited liability company, or shall become an assignee of a limited liability company interest or other rights or powers of a member to the extent assigned, and shall become bound by the operating agreement and the provisions ofthe articles oforganization (A) if such person (or a representative authorized by such person) executes the operating

112

GENERAL ACTS AND RESOLUTIONS, VOL. I

agreement or any other writing evidencing the intent of such person to become a member or assignee, or (B) without such execution, if such person (or a representative authorized by such person) complies with the conditions for becoming a member or assignee as set forth in the written operating agreement or any other writing and such person or representative requests in writing that the records of the limited liability company reflect such admission or assignment. (e) A person may be admitted to a limited liability company as a member of the limited liability company and may receive a limited liability company interest in the limited liability company without making a contribution or being obligated to make a contribution to the limited liability company. Unless otherwise provided in a written operating agreement, a person may be admitted to a limited liability company as a member of the limited liability company without acquiring a limited liability company interest in the limited liability company. Unless otherwise provided in a written operating agreement, a person may be admitted as the sole member of a limited liability company without making a contribution or being obligated to make a contribution to the limited liability company or without acquiring a limited liability company interest in the limited liability company. (f) In the case of a person being admitted as a member of a surviving limited liability company pursuant to a merger in accordance with Article 9 of this chapter, a person is admitted as a member of the limited liability company as provided in the operating agreement of the surviving limited liability company or in the agreement of merger, and in the event of any inconsistency, the terms of the agreement of merger shaH control. In connection with the conversion into a limited liability company in accordance with Code Section 14-11-212, a person is admitted as a member of the limited liability company as provided in the limited liability company agreement.'

SECTION 9. Said chapter is further amended in Code Section 14-11-506, relating to powers of the estate of a deceased or incompetent member, by revising said Code section as foHows:
'14-11-506. Except as otherwise provided in the articles of organization or a written operating agreement, if a member who is an individual dies or a court of competent jurisdiction adjudges him or her to be incompetent to manage his or her person or his or her property, the member's executor, administrator, guardian, conservator, or other legal representative has aH of the rights of an assignee ofaH of the member's limited liability company interest. Except as otherwise provided in the articles of organization or a written operating agreement, if the last member of a limited liability company dies or a court of competent jurisdiction adjudges him or her to be incompetent to manage his or her person or his or her property, the member's executor, administrator, guardian, conservator, or other legal representative shaH become a member of the limited liability company, unless such executor, administrator, guardian, conservator, or other legal representative elects not to become a member by written notice given to the limited liability company within 90 days

GEORGIA LAWS 2009 SESSION

113

of such death or adjudication (or within such other period as is provided for in a written operating agreement)!

SECTION 10. Said chapter is further amended in Code Section 14-11-602, relating to dissolution, by revising said Code section as follows:
'14-11-602. (a) Effective for limited liability companies formed prior to July I, 1999, a limited liability company is dissolved and its affairs shall be wound up upon the first to occur of the following:
(1) At the time specified in the articles of organization or a written operating agreement; (2) Upon the happening of events specified in the articles of organization or a written operating agreement; (3) Subject to contrary provision in the articles of organization or a written operating agreement, at a time approved by all the members; (4) Subject to contrary provision in the articles of organization or a written operating agreement, 90 days after any event of dissociation with respect to any member (other than an event specified in paragraph (1) of subsection (b) of Code Section 14-11-601 ), unless within such 90 day period the limited liability company is continued by the written consent of all other members or as otherwise provided in the articles of organization or a written operating agreement; or (5) Entry of a decree of judicial dissolution under subsection (a) of Code Section 14-11-603. (b) Effective for limited liability companies formed on or after July I, 1999, a limited liability company is dissolved and its affairs shall be wound up upon the first to occur of the following: (1) At the time specified in the articles of organization or a written operating agreement; (2) Upon the happening of events specified in the articles of organization or a written operating agreement; (3) Subject to contrary provision in the articles of organization or a written operating agreement, at a time approved by all the members; (4) Subject to contrary provision in the articles of organization or a written operating agreement, 90 days after an event of dissociation with respect to the last remaining member, unless otherwise provided in the articles of organization or a written operating agreement; or (5) Entry of a decree of judicial dissolution under subsection (a) of Code Section 14-11-603. (c) Notwithstanding paragraphs (1), (2), (3), and (4) of subsections (a) and (b) of this Code section, the limited liability company shall not be dissolved and its affairs shall not be wound up if, prior to the filing of a certificate of termination in the office of the Secretary of State, either:

114

GENERAL ACTS AND RESOLUTIONS, VOL. I

(1) The limited liability company's articles of organization or operating agreement, or both, are amended such that, after giving effect to such amendment, such event does not result in dissolution of the limited liability company pursuant to subsection (a) or (b) of this Code section; or (2) If the limited liability company then has at least one member, a decision to continue the limited liability is taken by all of the members of the limited liability company (and all other persons, if any, with power to require dissolution of the limited liability company under its articles of organization or written operating agreement). Any amendment or other action contemplated by paragraph ( 1) or (2) of this subsection shall, to the extent necessary to achieve the purposes of this subsection, be effective as of and from and after the applicable event described in subsection (a) or (b) of this Code section."

SECTION 11. Said chapter is further amended in Code Section 14-11-610, relating to certificate of termination, by revising said Code section as follows:
'14-11-610. A dissolved limited liability company may deliver to the Secretary of State for filing a certificate of termination when the statements required to be included therein can be truthfully made. Such a certificate of termination shall set forth:
( 1) The name of the limited liability company; (2) That all known debts, liabilities, and obligations ofthe limited liability company have been paid, discharged, or barred or that adequate provision has been made therefor; and (3) That there are no actions pending against the limited liability company in any court, or that adequate provision has been made for the satisfaction of any judgment, order, or decree that may be entered against it in any pending action."

SECTION 12. Said chapter is further amended in Code Section 14-11-901, relating to mergers, by revising subsection (a) as follows:
'(a) Pursuant to a written agreement, which, unless otherwise provided therein, will constitute the plan of merger required by Code Section 14-11-902 if it contains the provisions required by that Code section, a limited liability company may merge with or into one or more business entities with such limited liability company or other business entity as the agreement shall provide being the surviving limited liability company or other business entity."

SECTION 13. Said chapter is further amended in Code Section 14-11-905, relating to effects of merger, by revising paragraphs (7) and (8) of subsection (a) as follows:

GEORGIA LAWS 2009 SESSION

115

*(7) The articles of organization of the surviving limited liability company shall be amended to the extent provided in the articles of merger; and (8) The interests or shares in each merging constituent business entity that are to be converted into interests of the surviving limited liability company, or into cash or other property under the terms of the plan of merger, or cancelled, are so converted or cancelled, and the former holders thereof are entitled only to the rights provided in the plan of merger or their rights otherwise provided by law.'

SECTION 14. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

EDUCATION- GRADE POINT AVERAGE; CALCULATION.
No. 39 (House Bill No. 313).
AN ACT
To amend Part 3 of Article 6 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to educational programs within the "Quality Basic Education Act," so as to revise certain provisions relating to calculating grade point averages for purposes of determining eligibility for enrollment and scholarships for postsecondary education; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Part 3 of Article 6 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to educational programs within the "Quality Basic Education Act," is amended by revising Code Section 20-2-157, relating to the uniform reporting system for high school grades for purposes of determining eligibility for enrollment and scholarships for postsecondary education, as follows:
'20-2-157. (a) It is the intent of the General Assembly to establish a uniform reporting system to be used as one of the criteria to determine eligibility of students seeking enrollment in postsecondary courses pursuant to Code Section 20-2-161.1 or seeking educational

116

GENERAL ACTS AND RESOLUTIONS, VOL. I

scholarships, grants, or loan assistance administered by the Georgia Student Finance Commission pursuant to Article 7 of Chapter 3 of this title. (b) Each school system and private school shall adopt the reporting system described in this subsection for purposes of identifying and qualifying graduating seniors for the HOPE scholarship program and other programs identified in this Code section:
(I) Each school system and private school shall transmit, in a manner and at times prescribed by the Georgia Student Finance Commission, an electronic transcript of courses and course grades for each graduating senior that reflects the complete high school academic record of the student, including scores on any state tests required for graduation, the grading scales used by the school system or private school for the time periods referenced by the transcripts, and any other pertinent information as determined by the Georgia Student Finance Commission. Each grade reported by a school system or private school to the commission for the purpose of calculating the grade point average for HOPE scholarship eligibility shall be the actual grade earned by the student, with no weighting or addition of points by the local school system or private school; (2) The Georgia Student Finance Commission shall calculate a grade point average for the purpose of determining eligibility for the HOPE scholarship from these electronic transcripts and shall notify students of their eligibility and high schools as to the eligibility of students; (3) For students otherwise qualified and enrolling as freshmen students in eligible public or private postsecondary institutions for the first time on May 1, 2007, or thereafter, except as otherwise provided in paragraph (3 .1) of this subsection, the Georgia Student Finance Commission shall calculate grade point averages for determining eligibility for the HOPE scholarship and other scholarships referenced in this Code section as follows:
(A) For students receiving a college preparatory diploma, each grade for a student in attempted coursework in English, mathematics, science, social studies, and foreign language that would, if successfully completed, satisfy a core graduation requirement for the college preparatory curriculum shall be equated to a grade on a 4.0 scale, such that a grade of 'A'= 4.0, a grade of 'B' = 3.0, a grade of 'C' = 2.0, a grade of 'D' = 1.0, and a grade of 'F' = 0; or (B) For students receiving a career/technical diploma, each grade for a student in attempted coursework in English, mathematics, science, and social studies that would, if successfully completed, satisfy a core graduation requirement for the career/technical curriculum shall be equated to a grade on a 4.0 scale, such that a grade of 'A' = 4.0, a grade of'B' = 3.0, a grade of'C' = 2.0, a grade of'D' = 1.0, and a grade of'F' = 0. Grades for coursework that is classified as advanced placement or international baccalaureate shall be weighted by the Georgia Student Finance Commission in calculating the overall grade point averages for students, provided that the weighting of such course grades is uniformly applied to all students in the state taking the specified coursework. The sum of the equated grades shall be divided by the number of course grades, adjusted for term length, to yield a grade point average on a 4.0 scale;

GEORGIA LAWS 2009 SESSION

117

(3 .1) For students otherwise qualified and enrolling in the ninth grade for the first time during the 2008-2009 school year and thereafter, the Georgia Student Finance Commission shall calculate grade point averages for determining eligibility for the HOPE scholarship and other scholarships referenced in this Code section by equating each grade for a student in attempted coursework in English, mathematics, science, social studies, and foreign language during the student's ninth, tenth, eleventh, or twelfth grade year to
a grade on a 4.0 scale, such that a grade of'A' = 4.0, a grade of'B' = 3.0, a grade of'C' = 2.0, a grade of 'D' = 1.0, and a grade of 'F' = 0. Grades for coursework that is classified
as advanced placement or international baccalaureate shall be weighted by the Georgia Student Finance Commission in calculating the overall grade point averages for students, provided that the weighting of such course grades is uniformly applied to all students in the state taking the specified coursework. The sum ofthe equated grades shall be divided by the number of course grades, adjusted for term length, to yield a grade point average on a 4.0 scale; and (4} Qualification for the HOPE scholarship shall be determined from the grade point average calculated either as set out in paragraph (3) of this subsection or as set out in paragraph (3 .1) of this subsection for students enrolling in the ninth grade for the first time in a Georgia public school during the 2008-2009 school year and thereafter. Beginning May 1, 2007, students with grade point averages equal to or in excess of 3.0 on the 4.0 scale with a college preparatory diploma shall meet achievement standards for the HOPE scholarship; students receiving a career/technical diploma shall meet achievement standards for the HOPE scholarship with a grade point average equal to or in excess of 3.2 on a 4.0 scale. For students enrolling in the ninth grade for the first time in a Georgia public school during the 2008-2009 school year and thereafter, such students with grade point averages equal to or in excess of 3.0 on a 4.0 scale shall meet achievement standards for the HOPE scholarship. This paragraph shall apply regardless of when a student graduated from high school and regardless of such student's eligibility status prior to May 1, 2007 ."

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

118

GENERAL ACTS AND RESOLUTIONS, VOL. I

LABOR- WORKERS' COMPENSATION; SERVICE OF DECISIONS; CONFIDENTIALITY WAIVERS; INSURANCE ISSUED IN OTHER STATES; FINAL SETTLEMENT PAYMENTS.

No. 40 (House Bill No. 330).

AN ACT

To amend Chapter 9 of Title 34 of the Official Code of Georgia Annotated, relating to workers' compensation, so as to change certain provisions relating to service of decisions of an administrative law judge and decisions of the appellate division; to provide that an employee's waiver of confidentiality includes past medical history with respect to any condition or complaint related to the condition for which the employee claims compensation; to provide the conditions under which employers from other states engaged in the construction industry with workers' compensation insurance coverage issued in such other states shall be considered to be in compliance with the requirement of providing insurance for payment ofworkers' compensation in this state; to provide that final settlement payments may be paid by the employer to a person or corporation appointed by the superior court in certain circumstances; to correct a cross-reference; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Chapter 9 of Title 34 of the Official Code of Georgia Annotated, relating to workers' compensation, is amended by revising subsection (f) of Code Section 34-9-102, relating to hearing before administrative law judge, as follows:
'(f) Decision of the administrative law judge. Within 30 days following the completion of evidence, unless the time for filing the decision is extended by the board, the administrative law judge shall determine the questions and issues and file the decision with the record of the hearing. At the time of the filing, a copy of the decision shall be sent to all parties and counsel of record at their addresses of record. Notice to counsel of record of a party shall constitute service of notice to the party, if a copy of the decision was sent to the address of record of said party. The decision of the administrative law judge shall be made in the form of a compensation award, appropriately titled to show its purpose and containing a concise report of the case, with findings of fact and conclusions of law and any other necessary explanation of the action taken. The administrative law judge may reconsider the official decision prior to its becoming final to correct apparent errors or omissions. The compensation award shall be final20 days after issuance of notice of the award unless an appeal is filed in accordance with Code Section 34-9-103.'

GEORGIA LAWS 2009 SESSION

119

SECTION 2. Said chapter is further amended by revising subsection (a) ofCode Section 34-9-103, relating to appeal of decision, remand, and reconsideration, amendment, or revision of award, as
follows: '(a) Any party dissatisfied with a decision of an administrative law judge of the trial division of the State Board of Workers' Compensation may appeal that decision to the appellate division of the State Board of Workers' Compensation which shall have original appellate jurisdiction in all workers' compensation cases. An application for review shall be made to the appellate division within 20 days of issuance of notice of the award. The appellee may institute cross appeal by filing notice thereof within 30 days of the notice of the award. If a timely application for review, cross appeal, or both, is made to the appellate division, the appellate division shall review the evidence and shall then make an award with findings of fact and conclusions of law. A copy of the award so made on review shall immediately be sent to the parties and counsel of record at dispute at their addresses of record. Notice to counsel of record of a party shall constitute service of notice to the party, if a copy of the award was sent to the address of record of said party. Upon review, the appellate division may remand to an administrative law judge in the trial division any case before it for the purpose ofreconsideration and correction of apparent errors and omissions and issuance of a new award, with or without the taking of additional evidence, or for the purpose of taking additional evidence for consideration by the appellate division in rendering any decision or award in the case. The findings of fact made by the administrative law judge in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the records.0

SECTION 3. Said chapter is further amended by revising Code Section 34-9-121, relating to compensation for injury outside of state, as follows:
'34-9-121. (a) Unless otherwise ordered or permitted by the board, every employer subject to the provisions of this chapter relative to the payment of compensation shall secure and maintain full insurance against such employer's liability for payment of compensation under this article, such insurance to be secured from some corporation, association, or organization licensed by law to transact the business of workers' compensation insurance in this state or from some mutual insurance association formed by a group of employers so licensed; or such employer shall furnish the board with satisfactory proof of such employer's financial ability to pay the compensation directly in the amount and manner and when due, as provided for in this chapter. In the latter case, the board may, in its discretion, require the deposit of acceptable security, indemnity, or bond to secure the payment of compensation liabilities as they are incurred; provided, however, that it shall be satisfactory proof of the employer's financial ability to pay the compensation directly

120

GENERAL ACTS AND RESOLUTIONS, VOL. I

in the amount and manner when due, as provided for in this chapter, and the equivalent of acceptable security, indemnity, or bond to secure the payment of compensation liabilities as they are incurred, if the employer shall show the board that such employer is a member of a mutual insurance company duly licensed to do business in this state by the Commissioner of Insurance, as provided by the laws of this state, or of an association or group of employers so licensed and as such is exchanging contracts of insurance with the employers of this and other states through a medium specified and located in their agreements with each other, but this proviso shall in no way restrict or qualify the right of self-insurance as authorized in this Code section. Nothing in this Code section shall be construed to require an employer to place such employer's entire insurance in a single insurance carrier.
(b)( 1) Any employer from another state engaged in the construction industry within this state with a workers' compensation insurance policy issued under the laws of such other state so as to cover that employer's employees while in this state shall be in compliance with subsection (a) of this Code section if:
(A) Such other state recognizes the extraterritorial provisions of Code Section 34-9-242; and (B) Such other state recognizes and gives effect within such state to workers' compensation policies issued to employers of this state. (2) Nothing in this subsection shall be construed to void any insurance coverage. (c) The board shall have the authority to promulgate rules and regulations to set forth requirements for third-party administrators and servicing agents, including insurers acting as third-party administrators or servicing agents, with regard to their management or administration of workers' compensation claims. All Title 33 regulations shall remain in the Insurance Department. (d) Wherever a self-insurer has been required to post bond, should it cease to be a corporation, obtain other coverage, or no longer desire to be a self-insurer, the board shall be allowed to return the bond in either instance, upon the filing of a certificate certifying to the existence of an insurance contract to take over outstanding liability resulting from any presently pending claim or any future unrepresented claims; and the board shall be relieved of any liability arising out of a case where the injuries were incurred, or liability therefor, prior to the returning of the bonds.'

SECTION 4. Said chapter is further amended by revising Code Section 34-9-207, relating to employee's waiver of confidentiality of communications with physician and release for medical records and information, as follows:
'34-9-207. (a) When an employee has submitted a claim for workers' compensation benefits or is receiving payment of weekly income benefits or the employer has paid any medical expenses, that employee shall be deemed to have waived any privilege or confidentiality

GEORGIA LAWS 2009 SESSION

121

concerning any communications related to the claim or history or treatment of injury arising from the incident that the employee has had with any physician, including, but not limited to, communications with psychiatrists or psychologists. This waiver shall apply to the employee's medical history with respect to any condition or complaint reasonably related to the condition for which such employee claims compensation. Notwithstanding any other provision of law to the contrary, when requested by the employer, any physician who has examined, treated, or tested the employee or consulted about the employee shall provide within a reasonable time and for a reasonable charge all information and records related to the examination, treatment, testing, or consultation concerning the employee. (b) When an employee has submitted a claim for workers' compensation benefits or is receiving payment of weekly income benefits or the employer has paid any medical expenses, the employee, upon request, shall provide the employer with a signed release for medical records and information related to the claim or history or treatment of injury arising from the incident, including information related to the treatment for any mental condition or drug or alcohol abuse and to such employee's medical history with respect to any condition or complaint reasonably related to the condition for which such employee claims compensation. Said release shall designate the provider to whom the release is directed. If a hearing is pending, any release shall expire on the date of the hearing. (c) Ifthe employee refuses to provide a signed release for medical information as required by this Code section and, in the opinion of the board, the refusal was not justified under the terms of this Code section, then such employee shall not be entitled to any compensation at any time during the continuance of such refusal or to a hearing on the issues of compensability arising from the claim:

SECTION 5. Said chapter is further amended by revising Code Section 34-9-223, relating to lump sum payments to trustees, as follows:
'34-9-223. Whenever the board deems it expedient, any lump sum, subject to the provisions of Code Section 34-9-222, or final settlement, subject to the provisions of Code Section 34-9-15, shall be paid by the employer to some suitable person or corporation appointed by the superior court ofthe county wherein the accident occurred or the original hearing was held as trustee to administer such payment for the benefit of the person or persons entitled thereto in the manner provided by the board. The receipt by such trustees of the amount so paid shall discharge the employer or anyone else who is liable therefor:

SECTION 6. Said chapter is further amended by revising subsection (d) ofCode Section 34-9-385, relating to bankruptcy of participants, as follows:
'(d) When a participant is determined to be an insolvent self-insurer, the board of trustees is empowered to and shall assume on behalf of the participant its outstanding workers'

122

GENERAL ACTS AND RESOLUTIONS, VOL. I

compensation obligations excluding penalties, fines, and claimant's attorneys' fees assessed pursuant to subsection (b) of Code Section 34-9-108 and shall take all steps necessary to collect, recover, and enforce all outstanding securities, indemnity, insurance, or bonds furnished by such participant guaranteeing the payment of compensation provided in this chapter for the purpose of paying outstanding obligations of the participant. The board shall convert and deposit into the fund such securities and any amounts received under agreements of surety, guaranty, insurance, or otherwise on behalf of the participant. Any amounts remaining from such securities, indemnity, insurance, bonds, guaranties, and sureties, following payment of all compensation costs and related administrative fees ofthe board of trustees including attorneys' fees, and following exhaustion of all amounts assessed and received pursuant to subsections (a) and(d) of Code Section 34-9-121 and any applicable rule of the board may be refunded by the fund as directed by the board of trustees, subject to the approval of the board, to the appropriate party one year from the date of final payment, provided no outstanding liabilities remain against the fund."

SECTION 7. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

LAW ENFORCEMENT- MOTOR CARRIER COMPLIANCE; WEIGHT INSPECTOR.
No. 41 (House Bill No. 343).
AN ACT
To amend Article 5 of Chapter 2 of Title 35 of the Official Code of Georgia Annotated, relating to the Motor Carrier Compliance Division of the Department of Public Safety, so as to provide for the position of weight inspector for the Motor Carrier Compliance Division of the Department of Public Safety; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Article 5 of Chapter 2 of Title 35 of the Official Code of Georgia Annotated, relating to the Motor Carrier Compliance Division of the Department of Public Safety, is amended in Code

GEORGIA LAWS 2009 SESSION

123

Section 35-2-100, relating to the creation of members designated as law enforcement officers, as follows:
'35-2-100. There is created and established a division ofthe Department of Public Safety to be known as the Motor Carrier Compliance Division. Except as provided in Code Section 35-2-102, the members of the Motor Carrier Compliance Division shall be known and designated as 'law enforcement officers.'

SECTION 2. Said article is further amended by adding a new Code section to read as follows:
'35-2-1 02. (a) The commissioner is authorized to establish a position to be known as 'weight inspector' within the Motor Carrier Compliance Division of the Department of Public Safety. Weight inspectors shall be assigned to fixed scales facilities and shall not be authorized to operate outside such facilities. The number of such positions shall be determined by the commissioner within the limits set by available appropriations. Weight inspectors may be divided into such ranks as the commissioner deems appropriate. (b) The commissioner shall ensure that a weight inspector is properly trained regarding laws governing commercial motor vehicle weight, registration, size, and load, including, but not limited to, commercial motor vehicle provisions in Article 2 of Chapter 6 of Title 32 and safety standards for commercial motor vehicles and such motor vehicle components. The training required in the areas required by this subsection shall be equivalent to training provided to certified officers in the Motor Carrier Compliance Division. (c) A weight inspector, at the fixed scales facility, shall be authorized to:
(I) Enforce noncriminal provisions relating to commercial motor vehicle weight, registration, size, and load and assess a civil penalty for a violation of such provisions; and (2) Detain a commercial motor vehicle that:
(A) Has a safety defect which is critical to the continued safe operation of the vehicle; (B) Is being operated in violation of any criminal law; or (C) Is being operated in violation of an out-of-service order as reported on the federal Safety and Fitness Electronic Records data base. The detention authorized by this paragraph shall be for the purpose of contacting a certified member of the Motor Carrier Compliance Division or Georgia State Patrol. A certified officer shall report to the scene of a detained vehicle and take any further action deemed appropriate including completing the inspection and investigation, making an arrest, or bringing criminal or civil charges. (d) A weight inspector is not a peace officer and shall not be authorized to carry a firearm or exercise any power of arrest other than a citizen's arrest in accordance with Code Sections 17-4-60 and 17-4-61. At all times while a weight inspector is on duty, there shall

124

GENERAL ACTS AND RESOLUTIONS, VOL. I

be a supervisor over the weight inspector also on duty who shall be a certified peace officer."

SECTION 3. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved April2l, 2009.

PENAL INSTITUTIONS- FELONY DEFENDANTS; DAY REPORTING CENTER; ADDITIONAL CHARGE.
No. 42 (House Bill No. 344).
AN ACT
To amend Code Section 42-8-34 of the Official Code of Georgia Annotated, relating to probation hearings and determinations, referral of cases to probation supervisors, probation or suspension of a sentence, payment of a fine or costs, disposition of a defendant prior to a hearing, continuing jurisdiction, transferal of probation supervision, and probation fees, so as to authorize a sentencing court to impose an additional charge on a felony defendant sentenced to a day reporting center; to provide for related matters; to provide for an effective date and applicability; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Code Section 42-8-34 of the Official Code of Georgia Annotated, relating to probation hearings and determinations, referral of cases to probation supervisors, probation or suspension of a sentence, payment of a fine or costs, disposition of a defendant prior to a hearing, continuing jurisdiction, transferal of probation supervision, and probation fees, is amended by revising subsection (d) to read as follows:
"(d)(l) In every case that a court of this state or any other state sentences a defendant to probation or any pretrial release or diversion program under the supervision of the department, in addition to any fine or order ofrestitution imposed by the court, there shall

GEORGIA LAWS 2009 SESSION

125

be imposed a probation fee as a condition of probation, release, or diversion in the amount equivalent to $23.00 per each month under supervision, and in addition, a one-time fee of$50.00 where such defendant was convicted of any felony. The probation fee may be waived or amended after administrative process by the department and approval of the court, or upon determination by the court, as to the undue hardship, inability to pay, or any other extenuating factors which prohibit collection of the fee; provided, however, that the imposition of sanctions for failure to pay fees shall be within the discretion of the court through judicial process or hearings. Probation fees shall be waived on probationers incarcerated or detained in a departmental or other confinement facility which prohibits employment for wages. All probation fees collected by the department shall be paid into the general fund of the state treasury, except as provided in subsection (t) of Code Section 17-15-13, relating to sums to be paid into the Georgia Crime Victims Emergency Fund. Any fees collected by the court under this paragraph shall be remitted not later than the last day of the month after such fee is collected to the Georgia Superior Court Clerks' Cooperative Authority for deposit into the general fund of the state treasury. (2) In addition to any other provision oflaw, any person convicted of a violation of Code Section 40-6-391 or subsection (b) of Code Section 16-13-2 who is sentenced to probation or a suspended sentence by a municipal, magistrate, probate, recorder's, mayor's, state, or superior court shall also be required by the court to pay a one-time fee of$25.00. The clerk of court, or ifthere is no clerk the person designated to collect fines, fees, and forfeitures for such court, shall collect such fee and remit the same not later than the last day of the month after such fee is collected to the Georgia Superior Court Clerks' Cooperative Authority for deposit into the general fund of the state treasury. (3) In addition to any fine, fee, restitution, or other amount ordered, the sentencing court may also impose as a condition of probation for felony criminal defendants sentenced to a day reporting center an additional charge, not to exceed $10.00 per day for each day such defendant is required to report to a day reporting center; provided, however, that no fee shall be imposed or collected if the defendant is unemployed or has been found indigent by the sentencing court. The charges required by this paragraph shall be paid by the probationer directly to the department. Funds collected by the department pursuant to this subsection shall only be used by the department in the maintenance and operation of the day reporting center program."

SECTION 2. This Act shall become effective on July 1, 2009, and shall apply to persons convicted on or after such date.

126

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

CRIMES - CONTROLLED SUBSTANCES; DANGEROUS DRUGS.
No. 43 (House Bill No. 368).
AN ACT
To amend Chapter 13 of Title 16 of the Official Code of Georgia Annotated, relating to controlled substances, so as to change certain provisions relating to Schedule II, III, and IV controlled substances; to change certain provisions relating to the definition of "dangerous drug"; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 13 of Title 16 of the Official Code of Georgia Annotated, relating to controlled substances, is amended in Code Section 16-13-26, relating to Schedule II controlled substances, as follows:
'16-13-26. The controlled substances listed in this Code section are included in Schedule II:
( 1) Any of the following substances, or salts thereof, except those narcotic drugs specifically exempted or listed in other schedules, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis:
(A) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate, excluding naloxone hydrochloride, but including the following:
(i) Raw opium; (ii) Opium extracts; (iii) Opium fluid extracts; (iv) Powdered opium; (v) Granulated opium; (vi) Tincture of opium; (vii) Codeine;

GEORGIA LAWS 2009 SESSION

127

(viii) Ethylmorphine; (ix) Hydrocodone; (x) Hydromorphone; (xi) Metopon; (xii) Morphine; (xiii) Oripavine; (xiv) Oxycodone; (xv) Oxymorphone; (xvi) Thebaine; (B) Any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any ofthe substances referred to in subparagraph (A) ofthis paragraph, except that these substances shall not include the isoquinoline alkaloids of opium; (C) Opium poppy and poppy straw; (D) Cocaine, coca leaves, any salt, compound, derivative, stereoisomers of cocaine, or preparation of coca leaves, and any salt, compound, derivative, stereoisomers of cocaine, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions which do not contain cocaine or ecgonine; (2) Any of the following opiates, including their isomers, esters, ethers, salts, and salts of isomers, whenever the existence of these isomers, esters, ethers, and salts is possible within the specific chemical designation: (A) Alfentanil; (A.l) Alphaprodine; (B) Anileridine; (C) Bezitramide; (D) Dihydrocodeine; (E) Diphenoxylate; (F) Fentanyl; (G) Isomethadone; (G.5) Levo-alphacetylmethadol (some other names: levomethadyl acetate, LAAM); (H) Levomethorphan; (I) Levorphanol; (J) Methazocine; (K) Methadone; (L) Methadone-Intermediate, 4-cyano-2-dimethylamino-4, 4-diphenyl butane; (M) Moramide-Intermediate, 2-methyl-3-morpholino-1, 1-diphenyl-propane-carboxylic acid; (N) Pethidine (meperidine); (0) Pethidine-Intermediate-A, 4-cyano-1-methyl-4-phenylpiperidine; (P) Pethidine-Intermediate-B, ethyl-4-phenylpiperidine-4-carboxylate;

128

GENERAL ACTS AND RESOLUTIONS, VOL. I

(Q) Pethidine-Intermediate-C, 1-methyl-4-phenylpiperidine-4-carboxylic acid; (R) Phenazocine; (S) Piminodine; (T) Racemethorphan; (U) Racemorphan; (U .1) Remifentanil; (V) Sufentanil; (W) 4-anilino-N -phenethyl-4-piperidine (ANPP); (3) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances included as having a stimulant effect on the central nervous system: (A) Amphetamine, its salts, optical isomers, and salts of its optical isomers; (B) Any substance which contains any quantity of methamphetamine, including its salts, isomers, and salts of isomers; (C) Phenmetrazine and its salts; (D) Methylphenidate, including its salts, isomers, and salts of isomers; (E) Carfentanil; (F) Nabilone; (G) Lisdexamfetamine; (4) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any of the following substances included as having a depressant effect on the central nervous system, including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation: (A) Amobarbital; (A.5) Glutethimide; (B) Secobarbital; (C) Pentobarbital.'

SECTION 2. Said chapter is further amended in Code Section 16-13-27, relating to Schedule III controlled substances, by adding new subparagraphs to paragraph (6) to read as follows:
'(A.5) Boldione (Androsta-1,4-diene-3,17-dione);' '(BB) 19-nor-4,9(10)-androstadienedione (estra-4,9( 10)-diene-3,17 -dione);' '(D.1) Desoxymethyltestosterone (17a-methyl-5a-androst-2-en-17-ol, madol);'

SECTION 3. Said chapter is further amended in Code Section 16-13-28, relating to Schedule IV controlled substances, by adding a new paragraph to subsection (a) to read as follows:
'(16.15) Indiplon;'

GEORGIA LAWS 2009 SESSION

129

SECTION 4. Said chapter is further amended in Code Section 16-13-28, relating to Schedule IV controlled substances, by deleting paragraph (11.5) of subsection (a), which reads as follows:
(11.5) Eszopiclone;"

SECTION 5. Said chapter is further amended in Code Section 16-13-71, relating to the definition of dangerous drug, by adding new paragraphs to subsection (b) to read as follows:
'(26.5) Alvimopan;" '(82.7) Bendamustine;" '(160) Certolizumab;" '(196.5) Clevidipine;" '(240.6) Darifenacin;' '(256.5) Desvenlafaxine;" '(277 .57) Difluprednate;' '(331.06) Eltrombopag;' '(379.5) Etravirine;" '(381. 75) Fenofibric acid;" '(383.45) Fesoterodine;' '(406.35) Fosaprepitant;" '(406.93) Fospropofol;' '(408.85) Gadoxetate;" '(509.7) Lacosamide;" '(517 .25) Levoleucovorin;' '(604.5) Methylnaltrexone;" '(742.3) Plerixafor;' '(832.5) Regadenoson;' '(842.17) Rilonacept;' '(845.15) Romiplostim;' '(848.5) Rufinamide;" '(855.9) Silodosin;" '(939.5) Tetrabenazine;'

SECTION 6. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 7. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

130

GENERAL ACTS AND RESOLUTIONS, VOL. I

RETIREMENT- INVESTMENT AUTHORITY OF LARGE SYSTEMS.
No. 44 (House Bill No. 371).
AN ACT
To amend Article 7 of Chapter 20 of Title 47 of the Official Code of Georgia Annotated, relating to the "Public Retirement Systems Investment Authority Law," so as to change the investment authority of large retirement systems; to provide that public retirement systems having assets in excess of $200 million shall be a large retirement system; to provide investment options; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Article 7 of Chapter 20 of Title 47 of the Official Code of Georgia Annotated, relating to the "Public Retirement Systems Investment Authority Law," is amended by revising Code Section 47-20-84, relating to large retirement systems, as follows:
"47-20-84. (a) As used in this Code section, the term 'large retirement system' means:
(1) Any retirement system created by this title which has an accumulated unfunded actuarial accrued liability not greater than 25 percent of the total of its assets; (2) The Georgia Municipal Employees Benefit System created by Chapter 5 of this title; (3) Any association of like political subdivisions which, on, before, or after July 1, 1999, contracts with its members for the pooling of assets; (4) Any public retirement system other than a retirement system defined in paragraphs (1), (2), and (3) of this subsection which meets the following criteria:
(A) The retirement system has: (i) An accumulated unfunded actuarial liability not greater than 25 percent ofthe total of its assets; or (ii) Assets in excess of $50 million and an accumulated unfunded actuarial liability not greater than 30 percent of the total of its assets;
(B) The retirement system provides a defined benefit plan; (C) The retirement system investments are managed by one or more independent professional investment managers recognized by the National Association of Securities Dealers and the United States Securities and Exchange Commission and which adhere to the code of ethical standards and conduct of the Association for Investment Management and Research; and

GEORGIA LAWS 2009 SESSION

131

(D) The retirement system investments are limited to those equities of investment grade quality or better, provided that leverage techniques, option techniques, futures, commodities, private placements, and direct participation plans may not be used in making equity investments; and (5) Any public retirement system which has more than $200 million in assets. (b) A large retirement system may invest in corporations or in obligations of corporations organized in a country other than the United States or Canada subject to the provisions of paragraph (l) of subsection (a) of Code Section 47-20-83. (c) A fund shall not invest more than 55 percent of retirement system assets in equities; provided, however, that prior to July 1, 2010, a large retirement system shall invest not more than 65 percent of its assets in equities; on and after July 1, 2010, a large retirement system shall invest not more than 70 percent of its assets in equities; and on and after July 1, 2011, a large retirement system shall invest not more than 75 percent of its assets in equities; provided, further, that no fund shall increase its assets in equities through purchase by more than 20 percent in any fiscal year. Any fund which is not in compliance with the limitations imposed by this subsection shall be granted a two-year period to come into compliance; provided, however, that during such two-year period, the fund shall not increase the percentage of its assets invested in equities. (d) Subject to all other limitations in this chapter, a large retirement system may invest in securities issued by a unit investment trust or an open-end company: (1) That is listed on a securities exchange; (2) The assets of which consist of securities managed so that the fund replicates a listed index or specific market sector; (3) In which continuous markets are quoted by market makers in the applicable unit investment trust or open-end company; and (4) That has the capability of creating or redeeming shares as necessary to reflect demand. (e) A large retirement system may enter into contracts, agreements, and other instruments designed to manage risk exposure.'

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

132

GENERAL ACTS AND RESOLUTIONS, VOL. I

LOCAL GOVERNMENT - ENTERPRISE ZONE; CRITERIA; PERVASIVE POVERTY.

No. 45 (House Bill No. 427).

AN ACT

To amend Code Section 36-88-6, relating to criteria for an enterprise zone, so as to provide for certain criteria for pervasive property; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Code Section 36-88-6, relating to criteria for an enterprise zone, is amended by revising subsection (b) as follows:
'(b) Pervasive poverty shall be evidenced by showing that poverty is widespread throughout the nominated area and shall be established by using the following criteria:
(1) The poverty rate shall be determined from the data in the most current United States decennial census prepared by the U.S. Bureau of Census; (2) For parcels within the nominated area, the parcels must be within or adjacent to a census block group where the ratio of income to poverty level for at least 15 percent of the residents shall be less than 1.0; (3) Census geographic block groups with no population shall be treated as having a poverty rate which meets the standards of paragraph (2) of this subsection; and (4) All parcels of a nominated area must abut and may not contain a noncontiguous parcel, unless such nonabutting parcel qualifies separately under the criteria set forth under paragraph (2) of this subsection."

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

GEORGIA LAWS 2009 SESSION

133

STATE GOVERNMENT- GEORGIA TECHNOLOGY AUTHORITY; STATE INFORMATION TECHNOLOGY REPORT; ACCRUAL ACCOUNTING; OTHER REPORTS.

No. 46 (House Bill No. 436).

AN ACT

To amend Title 50 of the Official Code of Georgia Annotated, relating to state government, so as to change certain powers of the Georgia Technology Authority; to authorize the authority to develop certain plans and reports; to remove the requirement to maintain a three-year technology plan; to provide for a State Information Technology Report and the contents thereof; to provide that the authority may adopt an accrual method of accounting; to provide for certain agency reports; to remove the requirement that the authority, the Office of Planning and Budget, and the state accounting officer jointly develop a technology resources budget; to eliminate certain reports; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Title 50 ofthe Official Code of Georgia Annotated, relating to state government, is amended by revising paragraphs (9) and (13) of subsection (a) of Code Section 50-25-4, relating to the general powers of the Georgia Technology Authority, as follows:
'(9) Reserved;' '(13) To develop such plans and reports as are deemed necessary and useful and to require agencies to submit periodic reports at such frequency and with such content as the board shall define;'

SECTION 2. Said title is further amended by revising paragraph (4) of subsection (b) of Code Section 50-25-5.1, relating to the powers and duties of the chief information officer, as follows:
'(4) To submit an annual budget for approval and adoption by the board;'

SECTION 3. Said title is further amended by repealing Code Section 50-25-7.10, relating to the contents ofthe annual report of the Georgia Technology Authority, in its entirety and inserting a new Code section to read as follows:

134

GENERAL ACTS AND RESOLUTIONS, VOL. I

"50-25-7.10. (a) The executive director shall publish an annual state information technology report that shall include:
(1) A report on the state's current and planned information technology expenditures, in cooperation with the Office of Planning and Budget and the state accounting officer, that shall include, but not be limited to, line-item detail expenditures on systems development, personal services, and equipment from the previous fiscal year and anticipated expenditures for the upcoming fiscal year; (2) A prioritization of information technology initiatives to address unmet needs and opportunities for significant efficiencies or improved effectiveness within the state information technology enterprise; and (3) A prioritized funding schedule for all major projects or initiatives, as well as cost estimates of the fiscal impact of the recommended information technology initiatives. The state information technology report shall be submitted to the Governor, the General Assembly, and the board on or before October 1 of each year. The authority may adopt an accrual method of accounting. The authority shall not be required to distribute copies of the annual report to members of the General Assembly, but shall notify the members of the availability of the report in the manner in which it deems to be the most effective and efficient. (b) Agencies shall be required to submit information technology reports to the authority not more than twice annually and with such content as the board shall define. The authority shall establish standards for agencies to submit the reports or updates. Standards shall include, without limitation, content, format, and frequency of updates."

SECTION 4. Said title is further amended by revising Code Section 50-25-7.12, relating to joint development of budgeting and accounting system, as follows:
"50-25-7.12. Reserved."

SECTION 5. Said title is further amended by revising subsection (c) of Code Section 50-29-12, relating to authorization for state agencies to establish pilot projects to serve as models for application of technology, as follows:
"(c) State agencies establishing pilot projects shall submit quarterly progress reports on such projects to the Georgia Technology Authority. The authority shall monitor the success of such pilot projects and provide technical assistance to the extent that resources of the authority are available."

GEORGIA LAWS 2009 SESSION

135

SECTION 6. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 7. All laws and parts of laws in conflict with this Act are repealed.

Approved April 21, 2009.

COURTS- FILING FEES; AUTOMATED INFORMATION; CHANGE SUNSET DATES.
No. 47 (House Bill No. 453).
AN ACT
To amend Article 2 of Chapter 6 of Title 15 of the Official Code of Georgia Annotated, relating to clerks of superior courts, so as to change sunset dates for real estate or personal property filing fees; to change a sunset date relating to the state-wide uniform automated information system; to change a sunset date relating to collection and remittance of real estate or personal property filing fees; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Article 2 of Chapter 6 of Title 15 of the Official Code of Georgia Annotated, relating to clerks of superior courts, is amended by revising the introductory language to subsections (f) and (f.l) of Code Section 15-6-77, relating to fees and construction of fee provisions, as follows:
*(f) Until July l, 2014, sums for filing documents, instruments, etc., pertaining to real estate or personal property, such sums to include recording and returning where applicable, shall be as follows:" *(f.l) On and after July l, 2014, sums for filing documents, instruments, etc., pertaining to real estate or personal property, such sums to include recording and returning where applicable, shall be as follows:"

136

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 2. Said article is further amended by revising subsection (c) of Code Section 15-6-97, relating to development and implementation ofstate-wide uniform automated information system and additional powers and duties of the Georgia Superior Court Clerks' Cooperative Authority, as follows:
'(c) This Code section shall be repealed in its entirety on July 1, 2014.'

SECTION 3. Said article is further amended by revising subsection (d) of Code Section 15-6-98, relating to collection of fees and remittance of real estate or personal property filing fees to the Georgia Superior Court Clerks' Cooperative Authority, as follows:
'(d) This Code section shall be repealed in its entirety on July 1, 2014.'

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

PENAL INSTITUTIONS- INMATES; MEDICAL COSTS.
No. 48 (House Bill No. 464).
AN ACT
To amend Article 3 of Chapter 5 of Title 42 of the Official Code of Georgia Annotated, relating to conditions ofdetention generally, so as to modify provisions relating to deductions from an inmate account to provide for the payment of certain medication costs; to provide for definitions; to provide for exceptions for payment of medication costs; to provide for related matters; to amend Code Section 42-5-2 of the Official Code of Georgia Annotated, relating to responsibilities of a governmental unit with custody of an inmate generally, costs ofemergency and follow-up care, and access to medical services or hospital care for inmates, so as to provide for requirements for hospitals that provide emergency health care services to state inmates; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

GEORGIA LAWS 2009 SESSION

137

SECTION 1. Article 3 of Chapter 5 of Title 42 of the Official Code of Georgia Annotated, relating to conditions of detention generally, is amended by revising Code Section 42-5-55, relating to deductions from an inmate account for the payment of certain damages and medical costs, limits on deductions, and fee for managing inmate accounts, as follows:
'42-5-55. (a) As used in this Code section, the term:
(1) 'Chronic illness' means an illness requiring care and treatment over an extended period of time. Chronic illness includes, but is not limited to, hypertension, diabetes, pulmonary illness, a seizure disorder, acquired immune deficiency syndrome, cancer, tuberculosis B, hepatitis C, rheumatoid arthritis, an autoimmune disorder, and renal disease. (2) 'Detention facility' means a state, county, or private correctional institution, workcamp, or other state or county detention facility used for the detention of persons convicted of a felony or a misdemeanor. (3) 'Inmate' means a person who is detained in a detention facility by reason of being convicted of a felony or a misdemeanor. (4) 'Medical treatment' means each visit initiated by the inmate to an institutional physician; physician's extender, including a physician's assistant or a nurse practitioner; registered nurse; licensed practical nurse; medical assistant; dentist; dental hygienist; optometrist; or psychiatrist for examination or treatment. (5) 'Officer in charge' means the warden, captain, or superintendent having the supervision of any detention facility. (b) The commissioner or, in the case of a county or private facility, the officer in charge may establish by rules or regulations criteria for a reasonable deduction from money credited to the account of an inmate to: ( 1) Repay the costs of:
(A) Public property or private property in the case of an inmate housed in a private correctional facility willfully damaged or destroyed by the inmate during his or her incarceration; (B) Medical treatment and prescription medication for injuries inflicted by the inmate upon himself or herself or others unless the inmate has a severe mental health designation as determined by the department; (C) Searching for and apprehending the inmate when he or she escapes or attempts to escape; such costs to be limited to those extraordinary costs incurred as a consequence of the escape; or (D) Quelling any riot or other disturbance in which the inmate is unlawfully involved; or (2) Defray the costs paid by the state or county for: (A) Medical treatment for an inmate when the request for medical treatment has been initiated by the inmate; and

138

GENERAL ACTS AND RESOLUTIONS, VOL. I

(B) Medication prescribed for the treatment of a medical condition unrelated to pregnancy or a chronic illness. (c) The provisions of paragraph (2) of subsection (b) ofthis Code section shall in no way relieve the governmental unit, agency, or subdivision having physical custody ofan inmate from furnishing him or her with needed medical treatment. (d) Notwithstanding any other provisions ofthis Code section, the deductions from money credited to the account of an inmate as authorized under subsection (b) of this Code section shall not be made whenever the balance in the inmate's account is $10.00 or less. (e) The officer in charge of any detention facility is authorized to charge a fee for establishing and managing inmate money accounts. Such fee shall not exceed $1.00 per month."

SECTION lA. Code Section 42-5-2 of the Official Code of Georgia Annotated, relating to responsibilities of a governmental unit with custody of an inmate generally, costs of emergency and follow-up care, and access to medical services or hospital care for inmates, is amended by adding a new subsection to read as follows:
'(c) A hospital authority or hospital which is not a party to a contract with the Georgia Department of Corrections or its agents on July 1, 2009, shall be reimbursed no more than the applicable Georgia Medicaid rate for emergency services provided to such state inmate. For purposes of this subsection, the term 'state inmate' means any inmate for whom the Georgia Department of Corrections shall be responsible for the payment of medical care thereof. Nothing in this Code section shall prohibit the Georgia Department ofCorrections from negotiating higher fees or rates with health care providers. It is the intent of the General Assembly that the Georgia Department of Corrections or its agents enter into negotiations with health care providers to contract for the provision of services as provided in this Code section."

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

GEORGIA LAWS 2009 SESSION

139

LABOR- STATE GOVERNMENT- ECONOMY AND LABOR MARKET STIMULATION; COMPREHENSIVE PROVISIONS.

No. 49 (House Bill No. 581 ).

AN ACT

To amend Titles 34 and 50 of the Official Code of Georgia Annotated, relating to labor and industrial relations and state government, respectively, so as to provide for implementation of provisions allowing for stimulation of the economy and labor market within the state; to protect the solvency of the Georgia Unemployment Trust Fund by providing incentives to employers to comply with the Employment Security Law; to protect existing jobs and to stimulate job creation; to reduce employer payment requirements for de minimis tax amounts; to extend suspension of adjustments based upon the State-wide Reserve Ratio; to provide for a reduced adjustment in contribution rates through a certain time period; to reauthorize certain federal moneys for the administration of Chapter 8 of Title 34; to change a definition; to provide for additional weeks of benefits for persons in certain types of job training for high-demand occupations; to provide for restrictions on disclosure ofconfidential information; to change certain provisions relating to the base period; to change certain provisions relating to eligibility requirements for extended benefits; to change certain provisions relating to withdrawals from the Unemployment Trust Fund; to provide for applicability; to change certain provisions regarding powers of the Georgia State Financing and Investment Commission; to provide for related matters; to provide for an effective date; to rep,eal 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 "Georgia Works Job Creation and Protection Act of 2009."

SECTION 2. Title 34 ofthe Official Code of Georgia Annotated, relating to labor and industrial relations, is amended by revising Code Section 34-8-150, relating to payment of contributions by employers, to read as follows:
'34-8-150. (a) Contributions shall accrue from each employer for each calendar year in which the employer is subject to this chapter with respect to wages payable for employment, except as provided in Code Sections 34-8-158 through 34-8-162. Except as otherwise provided in this Code section, such contributions shall become due and be paid before the last day

140

GENERAL ACTS AND RESOLUTIONS, VOL. I

of the month next following the end of the calendar quarter to which they apply, in accordance with such regulations as the Commissioner may prescribe; provided, however, that with respect to employers as defined in paragraph (2) of subsection (a) of Code Section 34-8-33, the Commissioner shall provide by regulation that such contributions shall become due and be paid on an annual basis not later than such date as shall be prescribed by resolution ofthe Commissioner. Such contributions shall become delinquent ifnot paid when due and shall not be deducted, in whole or in part, from the wages of individuals in such employer's employ.
(b)(1) For calendar quarters beginning on or after July 1, 2009, when the combined amount of contributions under this Code section and assessments under Code Section 34-8-180 or 34-8-181 due from an employer for any calendar quarter does not exceed $5.00, such amount maybe regarded as a de minimis amount with respect to that calendar quarter. (2) Payment of such de minimis amount for such calendar quarter, otherwise due before the last day ofthe month next following the end of the calendar quarter, may be deferred, at the option of the employer, until the January 31 reporting date next following, if the employer:
(A) Files all quarterly wage and tax reports, including a report of such de minimis amount due; (B) Timely pays all other amounts due; and (C) Makes full payment of any deferred de minimis amount by the January 31 report date next following. (3) In the event that an employer fails to comply with paragraph (2) of this subsection, any such deferred de minimis amount shall become delinquent as of the date originally due under this Code section and Code Section 34-8-165, 34-8-180, or 34-8-181, as applicable, and the employer shall be subject to all the provisions thereof. (c) In the payment of any contributions, a fractional part of a cent shall be disregarded unless it amounts to one-half cent or more, in which case it shall be increased to one cent.'

SECTION 3. Said title is further amended by revising subparagraph (d)(4)(B) of Code Section 34-8-156, relating to the State-wide Reserve Ratio for unemployment compensation, to read as follows:
'(B) Except for any year or portion of a year during which the provisions of paragraph (I) of subsection (t) of Code Section 34-8-155 apply, when the State-wide Reserve Ratio, as calculated above, is less than I. 7 percent, there shall be an overall increase in the rate, as of the computation date, for each employer whose rate is computed under a rate table in Code Section 34-8-155 in accordance with the following table:

GEORGIA LAWS 2009 SESSION

141

If the State-wide Reserve Ratio:

Equals or Exceeds

But Is Less Than

Overall Increase

1.5 percent

1.7 percent

25 percent

1.25 percent

1.5 percent

50 percent

0.75 percent

1.25 percent

75 percent

Under 0.75 percent

100 percent

provided, however, that for the periods of January 1 through December 31, 2004; January 1 through December 31, 2005; and January I through December 31,2006, the overall increase in the rate required under this subparagraph shall be suspended and the provisions of this subparagraph shall be null and void, except in the event the State-wide Reserve Ratio, as calculated above, is less than 1.00 percent on the computation date with respect to rates applicable to calendar year 2004, 2005, or 2006, then for each such year the Commissioner of Labor shall have the option of imposing an increase in the overall rate of up to 35 percent, as of the computation date, for each employer whose rate is computed under a rate table in Code Section 34-8-155; and provided, further, that for the periods of January I through December 31, 2007, January 1 through December 31,2008, January I through December 31,2009, January 1 through December 31, 2010, and January 1 through December 31, 2011, the overall increase in the rate required under this subparagraph shall be suspended and the provisions of this subparagraph shall be null and void, except in the event the State-wide Reserve Ratio, as calculated above, is less than 1.25 percent on the computation date with respect to rates applicable to calendar year 2007, 2008, 2009, 2010, or 2011, then for each such year the Commissioner of Labor shall have the option of imposing an increase in the overall rate of up to 35 percent, as of the computation date, for each employer whose rate is computed under a rate table in Code Section 34-8-155.'

SECTION 4. There is appropriated to the Department of Labor out of funds credited to and held in this state's account in the Unemployment Trust Fund by the Secretary of the Treasury of the United States pursuant to and in accordance with Section 903 of the Social Security Act, as amended, an additional amount of $1 ,885,551.11. Of said additional amount, the sum of $1,885,551.11 is authorized to be allocated for expenses incurred in the administration of Chapter 8 of Title 34 of the Official Code of Georgia Annotated, the "Employment Security Law" as amended, including personal services and operating and other expenses incurred in the administration of said law, as well as for the purchase or rental, either or both, of

142

GENERAL ACTS AND RESOLUTIONS, VOL. I

improvements, repairs, or alterations to and of offices, lands, buildings or parts of buildings, fixtures, furnishings, equipment, technology, data, reports and studies, supplies, and the construction ofbuildings or parts ofbuildings suitable for use in this state by the Department of Labor, and for the payment of expenses incurred for the acquisition, purchase, rental, construction, maintenance, improvements, repairs, or alterations of and to such real or personal property. Notwithstanding any other provision of this section, the amount appropriated in this section shall not exceed the amount in the Unemployment Trust Fund, which may be obligated for expenditure for such purposes as provided in Code Section 34-8-85 of the Official Code of Georgia Annotated, relating to certain withdrawals from the Unemployment Trust Fund, and the amount which may be obligated shall not exceed the limitations provided in Code Section 34-8-85 of the Official Code of Georgia Annotated, relating to certain withdrawals from the Unemployment Trust Fund; provided, however, that said additional funds shall not be obligated for expenditure, as provided in this section, after the close of the two-year period which begins on the date of enactment of this section.

SECTION 5. Said title is further amended by revising Code Section 34-8-24, relating to an individual's status as bona fide in the labor market, which revision is intended to satisfy the requirements and conditions to qualify for incentive payments provided for as Special Transfers for Unemployment Compensation Modernization in Section 2003 ofthe American Recovery and Reinvestment Act of 2009, Public Law 111-5, to read as follows:
'34-8-24. As used in this chapter, the term 'bona fide in the labor market' means that any person claiming benefits under this chapter must be available for full-time employment, as that term is generally understood in the trade or work classification involved, without regard to prior work restrictions, provided that no individual who is otherwise eligible shall be deemed ineligible for benefits solely because the individual seeks, applies for, or accepts only part-time work, instead of full-time work, provided the individual claiming benefits worked part-time during a majority of the weeks of work in the base period and the individual is available for part-time work for at least 20 hours per week.'

SECTION 6. Said title is further amended by revising subsection (d) of Code Section 34-8-193, relating to determination of weekly benefit amount, which revision is intended to satisfy the requirements and conditions to qualify for incentive payments provided for as Special Transfers for Unemployment Compensation Modernization in Section 2003 ofthe American Recovery and Reinvestment Act of2009, Public Law 111-5, to read as follows:
(d)(l) Except as otherwise provided in this subsection, the maximum benefits payable to an individual in a benefit year shall be the lesser of 26 times the weekly benefit amount or one-fourth of the base period wages. If the amount computed is not a multiple of the weekly benefit amount, the total will be adjusted to the nearest multiple of the weekly

GEORGIA LAWS 2009 SESSION

143

benefit amount. The duration of benefits shall be extended in accordance with Code Section 34-8-197. (2) In addition to and subsequent to payment of all benefits otherwise allowed under paragraph (l) of this subsection and without restriction with respect to an individual's benefit year, for claims filed on or after January 1, 2010, weekly unemployment compensation shall be payable under this subsection to any individual who is unemployed, has exhausted all rights to regular unemployment compensation under the provisions of Article 7 of this chapter, and is enrolled and making satisfactory progress, as determined by the Commissioner, in a training program approved by the department, or in a job training program authorized under the Workforce Investment Act of 1998, Public Law 105-220, and not receiving similar stipends or other training allowances for nontraining costs. Each such training program approved by the department or job training program authorized under the Workforce Investment Act of 1998 shall prepare individuals who have been separated from a declining occupation, as designated by the department from time to time, or who have been involuntarily and indefinitely separated from employment as a result of a permanent reduction of operations at the individual's place of employment, for entry into a high-demand occupation, as designated by the department from time to time. The amount of unemployment compensation payable under this subsection to an individual for a week of unemployment shall be equal to the individual's weekly benefit amount for the individual's most recent benefit year less deductible earnings, if any. The total amount of unemployment compensation payable under this subsection to any individual shall be equal to at least 26 times the individual's weekly benefit amount for the individual's most recent benefit year. The provisions of subsection (d) of Code Section 34-8-195 shall apply to eligibility for benefits under this subsection. Except when the result would be inconsistent with other provisions of this subsection, all other provisions of Article 7 of this chapter shall apply to the administration of the provisions of this subsection.0

SECTION 7. Said title is further amended by revising Code Section 34-8-121, relating to information or records to be kept private and confidential, release of authorized maintenance ofrecords, and destruction of outdated records, to read as follows:
'34-8-121. (a) Any information or records concerning an individual or employing unit obtained by the department pursuant to the administration of this chapter or other federally funded programs for which the department has responsibility shall be private and confidential, except as otherwise provided in this article or by regulation. This article does not create a rule of evidence. Information or records may be released by the department when the release is required by the federal government in connection with, or as a condition of funding for, a program being administered by the department. The provisions of

144

GENERAL ACTS AND RESOLUTIONS, VOL. I

paragraphs (1) through (3) of subsection (a) of Code Section 34-8-125 shall not apply to such release.
(b)(1) Each employing unit shall keep true and accurate records containing such information as the Commissioner may prescribe. Such records shall be open to inspection and be subject to being copied by the Commissioner or an authorized representative of the Commissioner at any time and as often as may be necessary. In addition to information prescribed by the Commissioner, each employer shall keep records of and report to the Commissioner quarterly the street address of each establishment, branch, outlet, or office of such employer, the nature of the operation, the number of persons employed, and the wages paid at each establishment, branch, outlet, or office. (2) The Commissioner or an authorized representative of the Commissioner may require from any employing unit any sworn or unsworn reports deemed necessary for the effective administration of this chapter. Any member of the board of review, any administrative hearing officer, or any field representative may require from any employing unit any sworn or unsworn reports, with respect to persons employed by it, which are deemed necessary for the effective administration of this chapter. (3) Information, statements, transcriptions of proceedings, transcriptions of recordings, electronic recordings, letters, memoranda, and other documents and reports thus obtained or obtained from any individual, claimant, employing unit, or employer pursuant to the administration ofthis chapter, except to the extent necessary for the proper administration and enforcement of this chapter, shall be held confidential and shall not be subject to subpoena in any civil action or proceeding, published, or open to public inspection, other than to public employees in the performance of their public duties, in any manner revealing the individual's or employing unit's identity; but any claimant, employer, or a duly authorized representative, at a hearing before an administrative hearing officer or the board of review, shall be supplied with information from such records to the extent necessary for the proper presentation of his or her claim. Any person who violates any provision of this paragraph shall upon conviction be guilty of a misdemeanor. (4) Notwithstanding the provisions of Code Sections 50-6-9 and 50-6-29 relating to the powers of the state auditor to disclose private and confidential information or records obtained by the department pursuant to the administration of this chapter or other federally funded programs for which the department has responsibility, such private and confidential information or records may be disclosed by the state auditor only in accordance with all provisions of this article and the requirements of20 C.F.R. 603 and, afternotice and review, upon the written direction ofthe Commissioner issued in advance of such disclosure. (5) On orders of the Commissioner, any records or documents received or maintained by the Commissioner under the provisions of this chapter or the rules and regulations promulgated under this chapter may be destroyed under such safeguards as will protect their confidential nature two years after the date on which such records or documents last

GEORGIA LAWS 2009 SESSION

145

serve any useful, legal, or administrative purpose in the administration of this chapter or in the protection of the rights of anyone.'

SECTION 8. Said title is further amended by revising Code Section 34-8-21, relating to base period, as follows:
'34-8-21. (a) Except as provided in subsection (b) of this Code section, as used in this chapter, the term 'base period' means the first four of the last five completed calendar quarters immediately preceding the first day ofan individual's benefit year; provided, however, that, in the case of a combined wage claim under Code Section 34-8-80, the base period shall be that applicable under the unemployment compensation law of the paying state. (b) If an individual does not have sufficient wages to qualify for benefits under the definition of base period in subsection (a) of this Code section, then his or her base period shall be calculated using the last four completed quarters immediately preceding the first day of the individual's benefit year. Such base period shall be known as the 'alternative base period.' Applicants shall receive written notice of the alternative base period. Implementation of the alternative base period shall commence on January 1, 2003. Implementation of the alternative base period under this subsection shall be under such terms and conditions as the Commissioner may prescribe by rules and regulations.'

SECTION 9. Said title is further amended by revising Code Section 34-8-197, relating to eligibility requirements for extended benefits, to read as follows:
'34-8-197. (a) Definitions. As used in this Code section, the term:
(1) 'Eligibility period' of an individual means the period consisting of the weeks in his or her benefit year which begin in an extended benefit period and, if his or her benefit year ends within such extended benefit period, any weeks thereafter which begin in such period; provided, however, that with respect to extended benefit periods established under division (a)(3)(B)(i) of this Code section pertaining to Section 2005 ofPublic Law 111-5 and any extension thereof that does not impose any new condition upon receipt of such federal funding, 'eligibility period' of an individual also means the period consisting of the weeks during which such individual is eligible for Emergency Unemployment Compensation provided for by the Supplemental Appropriations Act of 2008, Title IV Emergency Unemployment Compensation, Public Law 110-252, and the Unemployment Compensation Extension Act of 2008, Public Law 110-449, when such weeks begin in that extended benefit period and, if his or her eligibility for such emergency unemployment compensation ends within such extended benefit period, any weeks thereafter which begin in such period, except as otherwise limited by the provisions in division (a)(3)(B)(ii) of this Code section.

146

GENERAL ACTS AND RESOLUTIONS, VOL. I

(2) 'Exhaustee' means an individual who, with respect to any week of unemployment in his or her eligibility period:
(A) Has received, prior to such week, all of the regular benefits that were available to him or her under this chapter or any other state law, including dependents' allowances and benefits payable to federal civilian employees and ex-service personnel under 5 U.S.C. Chapter 85, in his or her current benefit year that includes such week, provided that for the purposes of this subparagraph an individual shall be deemed to have received all of the regular benefits that were available to him or her, although, as a result of a pending appeal with respect to wages that were not considered in the original monetary determination in his or her benefit year, he or she may subsequently be determined to be entitled to added regular benefits; (B) His or her benefit year having expired prior to such week, has no or insufficient wages on the basis of which he or she could establish a new benefit year that would include such week; and
(C)(i) Has no right to unemployment benefits or allowances under the Railroad Unemployment Insurance Act and such other federal laws as are specified in regulations issued by the United States secretary of labor. (ii) Has not received and is not seeking unemployment benefits under the unemployment compensation law of Canada; but if he or she is seeking such benefits and the appropriate agency finally determines that he or she is not entitled to benefits under such law, he or she is considered an exhaustee. (3)(A) 'Extended benefit period' means a period which: (i) Begins with the third week after a week for which there is a state 'on' indicator; and (ii) Ends with either of the following weeks, whichever occurs later:
(I) The third week after the first week for which there is a state 'off indicator; or (II) The thirteenth consecutive week of such period. However, no extended benefit period may begin by reason of a state 'on' indicator before the fourteenth week following the end of a prior extended benefit period which was in effect with respect to this state. There is a state 'on' indicator for a week if, for the period consisting of such week and the immediately preceding 12 weeks, the rate of insured unemployment under the state law for the period equaled or exceeded 120 percent of the average of such rates for the corresponding 13 week period ending in each of the preceding two calendar years and equaled or exceeded 5 percent. (B)(i) With respect to weeks of unemployment beginning on or after February 1, 2009, there is a state 'on' indicator for a week if: (I) The average rate of total unemployment, seasonally adjusted, as determined by the United States secretary of labor, for the period consisting of the most recent three months for which data for all states are published before the close of such week equals or exceeds 6 1/2 percent; and

GEORGIA LAWS 2009 SESSION

147

(II) The average rate of total unemployment in this state, seasonally adjusted, as determined by the United States secretary of labor, for the three-month period referred to in subdivision (I) of this subparagraph, equals or exceeds 110 percent of such average for either or both of the corresponding three-month periods ending in the two preceding calendar years. (ii) This subparagraph shall apply through the week ending three weeks prior to the last week for which 100 percent federal funding is authorized and provided pursuant to either Section 2005(a) of Public Law 111-5 or any extension thereof that does not impose any new condition upon receipt of such federal funding. (C) There is a state 'off indicator for a week if, for the period consisting of such week and the immediately preceding 12 weeks, none of the options specified in subparagraphs (A) and (B) of this paragraph result in an 'on' indicator. (4) 'Rate of insured unemployment,' for purposes of paragraph (3) of this subsection, means the percentage derived by dividing: (A) The average weekly number of individuals filing claims in this state, not including individuals filing claims for extended benefits or regular benefits claimed by federal civilian employees and ex-service personnel, for weeks of unemployment with respect to the most recent 13 consecutive week period, as determined by the Commissioner on the basis of the Commissioner's reports to the United States secretary of labor; by (B) The average monthly employment covered under this chapter for the first four of the most recent six completed calendar quarters ending before the end of such 13 week period. (5) 'Regular benefits' means benefits payable to an individual under this chapter or under any other state law, including benefits payable to federal civilian employees and to ex-service personnel pursuant to 5 U.S.C. Chapter 85, other than extended benefits. (6) 'State law' means the unemployment insurance law of any state approved by the United States secretary of labor under Section 3304 of the Internal Revenue Code. (7) 'Suitable work' means, with respect to any individual, any work which is within such individual's capabilities, provided that, if the individual furnishes evidence satisfactory to the Commissioner that such individual's prospects for obtaining work in the customary occupation of such individual within a reasonably short period are good, the determination of whether any work is suitable work with respect to such individual shall be made in accordance with this chapter. (b) Applicability ofprovisions as to regular benefits to claims for and payment ofextended benefits. Except when the result would be inconsistent with the other provisions of this Code section, as provided in the regulations of the Commissioner, the provisions of this chapter which apply to claims for, or the payment of, regular benefits shall apply to claims for, and the payment of, extended benefits. To establish entitlement to extended benefits, an individual must have been paid in at least two quarters of the base period and total wages in the base period must equal or exceed 150 percent of the highest quarter base

148

GENERAL ACTS AND RESOLUTIONS, VOL. I

period wages. The alternative computation for entitlement as required by Code Section 34-8-193 shall not apply to extended benefits. (c) Eligibility requirementsfor extended benefits. An individual shall be eligible to receive extended benefits with respect to any week of unemployment in the eligibility period ofthe individual only if the Commissioner finds that with respect to such week:
(1) He or she is an 'exhaustee' as defined in paragraph (2) of subsection (a) of this Code section; and (2) He or she has satisfied the requirements of this chapter for the receipt of regular benefits that are applicable to individuals claiming extended benefits, including not being subject to a disqualification for the receipt of benefits; provided, however, that the total extended benefits otherwise payable to an individual who has filed an interstate claim under the interstate benefit payment plan shall not exceed two weeks whenever an extended benefit period is not in effect for such week in the state where the claim is filed; provided, further, if an individual has been disqualified in his or her most recent benefit year or on his or her extended benefit claim, only those who are required to return to work and to earn additional insured wages in employment in order to terminate this disqualification and who satisfy this requirement shall be eligible to receive extended benefits; provided, further, if the benefit year of a claimant ends within an extended benefit period, the number of weeks of extended benefits that such claimant would be entitled to in that extended benefit period, but for this subsection, shall be reduced, but not below zero, by the number of weeks for which the claimant was entitled to trade readjustment allowances during such benefit year. For purposes of this subsection, the terms 'benefit year' and 'extended benefit period' shall have the same respective meanings. (d) Weekly extended benefit amount. The weekly extended benefit amount payable to an individual for a week of total unemployment in the eligibility period of such individual shall be an amount equal to the weekly benefit amount payable to him or her during his or her applicable benefit year. (e) Total extended benefit amount. Except as provided in paragraph (1) of this section, the total extended benefit amount payable to any eligible individual with respect to his or her applicable benefit year shall be the least of the following amounts: (1) Fifty percent of the total amount of regular benefits which were payable to him or her under this chapter in his or her applicable benefit year; (2) Thirteen times his or her weekly benefit amount which was payable to him or her under this chapter for a week of total unemployment in the applicable benefit year; or (3) Thirty-nine times the individual's weekly benefit amount which was payable to the individual under this chapter for a week of total unemployment in the applicable benefit year, reduced by the total amount of regular benefits which were paid or deemed paid to him or her under this chapter with respect to the benefit year. (f) Notice as to beginning and termination of extended benefit period. Whenever an extended benefit period is to become effective in this state as a result of the state 'on'

GEORGIA LAWS 2009 SESSION

149

indicator or whenever an extended benefit period is to be terminated in this state as a result of the state 'off indicator, the Commissioner shall make an appropriate announcement. (g) Computations. Computations required by paragraph (4) of subsection (a) of this Code section shall be made by the Commissioner in accordance with regulations prescribed by the United States secretary of labor. (h) Nonpayment ofextended benefits for failure to seek or accept work. Notwithstanding other provisions ofthis Code section, payment ofextended benefits under this Code section shall not be made to any individual for any week of unemployment in his or her eligibility period during which he or she fails:
(I) To accept any offer of suitable work or fails to apply for any suitable work to which he or she was referred by the State Employment Service; or (2) To engage actively in seeking work. For the purposes of this paragraph, an individual shall be treated as actively engaged in seeking work during any week if:
(A) The individual has engaged in a systematic and sustained effort to obtain work during such week; and (B) The individual provides tangible evidence to the satisfaction of the Commissioner that he or she has engaged in such an effort during such week. (i) Period ofnonpaymentfor extended benefits. If any individual is ineligible for extended benefits for any week by reason of a failure described in paragraph (I) or (2) of subsection (h) of this Code section, the individual shall be ineligible to receive extended benefits for any week which begins during a period which: (I) Begins with the week following the week in which such failure occurs; and (2) Does not end until such individual has been employed during at least four weeks which begin after such failure and for which the total of the remuneration in insured wages for services in employment earned by the individual for being so employed is not less than the product of four multiplied by the individual's weekly benefit amount for his or her benefit year. U) Exceptions to subsection (h) of this Code section. No individual shall be denied extended benefits under paragraph (I) of subsection (h) of this Code section for any week by reason of a failure to accept an offer of or apply for suitable work: (I) If the gross average weekly remuneration payable to such individual for the position does not exceed the sum of: (A) The individual's weekly benefit amount for such individual's benefit year; and (B) The amount, if any, of supplemental unemployment compensation benefits, as defined in Code Section 34-8-45, payable to such individual for such week; (2) If the position was not offered to such individual in writing and was not listed with the State Employment Service; (3) If such failure would not result in a denial of benefits under this chapter to the extent that such provisions are not inconsistent with paragraph (7) of subsection (a) ofthis Code section and the provisions of subsection (h) of this Code section which relate to individuals actively engaged in seeking work; or

150

GENERAL ACTS AND RESOLUTIONS, VOL. I

(4) If the position pays wages less than the higher of: (A) The minimum wage provided by Section 6(a)(1) of the Fair Labor Standards Act of 1938, without regard to any exemption; or (B) The Georgia minimum wage.
(k) Referral of claimants to suitable work. A claimant for extended benefits shall be referred to any suitable work as provided for in paragraph (7) of subsection (a) of this Code section which is not excluded by subsection (j) of this Code section. (I) Effective with respect to weeks beginning in a high-unemployment period, the total extended benefit amount payable to an eligible individual with respect to the applicable benefit year shall be the least of the following amounts:
(I) Eighty percent of the total amount of regular benefits that were payable to the individual pursuant to this chapter in the individual's applicable benefit year; (2) Twenty times the individual's weekly benefit amount that was payable to the individual pursuant to this chapter for a week of total unemployment in the applicable benefit year; or (3) Forty-six times the individual's weekly benefit amount which was payable to the individual under this chapter for a week of total unemployment in the applicable benefit year, reduced by the total amount of regular benefits which were paid or deemed paid to him or her under this chapter with respect to the benefit year. (m) For purposes ofsubsection (I) ofthis Code section, 'high-unemployment period' means a period during which an extended benefit period would be in effect if subdivision (a)(3)(B)(i)(l) of this Code section were applied by substituting '8 percent' for '6 112 percent.' (n) Subsections (I) and (m) of this Code section shall apply through the week ending three weeks prior to the last week for which 100 percent federal funding is authorized and provided pursuant to either Section 2005(a) of Public Law 111-5 or any extension thereof that does not impose any new condition upon receipt of such federal funding.'

SECTION 10. Said title is further amended by revising paragraph (5) of Code Section 34-8-85, relating to withdrawals from the Unemployment Trust Fund for expenditures under chapter, as follows:
'(5) APPROPRIATIONS TO DEPARTMENT OF LABOR. There is authorized to be appropriated by the General Assembly to the Department of Labor any part of or all moneys credited to the account of this state in the Unemployment Trust Fund by the secretary ofthe treasury ofthe United States pursuant to Section 903 of the federal Social Security Act, as amended, and as provided in this Code section; provided, however, that notwithstanding any other provisions of this Code section to the contrary, moneys credited with respect to federal fiscal years 1999, 2000, and 200 I, and moneys credited with respect to the special transfer made under Section 903(g) of said Act, shall be used solely for the administration of the unemployment insurance program in Georgia and are not subject to appropriations by the General Assembly.'

GEORGIA LAWS 2009 SESSION

151

SECTION 11. Title 50 of the Official Code of Georgia Annotated, relating to state government, is amended by revising subsection (d) of Code Section 50-17-22, relating to powers of the Georgia State Financing and Investment Commission, as follows:
'(d) Powers. The commission shall have those powers set forth in the Constitution and the powers necessary and incidental thereto. In addition to such powers, the commission shall have power:
(l) To have a seal and alter the same at pleasure; (2) To make contracts and to execute all instruments necessary or convenient, including contracts with any and all political subdivisions, institutions, or agencies of the state and state authorities, upon such terms and for such purposes as it deems advisable; and such political subdivisions, institutions, or agencies of the state and state authorities are authorized and empowered to enter into and perform such contracts; (3) To employ such other experts, agents, and employees as may be in the commission's judgment necessary to carry on properly the business of the commission; to fix the compensation for such officers, experts, agents, and employees and to promote and discharge the same; (4) To do and perform all things necessary or convenient to carry out the powers conferred upon the commission by this article; (5) To make reasonable regulations or adopt the standard specifications or regulations of the Department of Transportation or the state authorities, or parts thereof, for the construction, reconstruction, building, rebuilding, renovating, surfacing, resurfacing, acquiring, leasing, maintaining, repairing, removing, installing, planning, or disposing of projects for which public debt has been authorized, or for such other purposes as deemed necessary by the commission; and
(6)(A) To apply for, arrange for, accept, and administer federal funds for capital outlay and construction related services and for authorization or payment of public debt. (B) Without limitation, the commission may:
(i) Deposit, or arrange for, federal funds to be deposited into the State of Georgia General Obligation Debt Sinking Fund or into the State of Georgia Guaranteed Revenue Debt Common Reserve Fund, and the fiscal officer of the state shall accept such deposits; (ii) Arrange for the disbursement of federal funds directly to trustees, paying agents, or other persons for the payment of public debt; (iii) Cooperate with any public agency, authority, or officer in applying for, accepting, and administering federal funds for public purposes mutual to the commission and any other agency, authority, or officer; (iv) Apply or arrange to participate in and take all actions the commission determines appropriate to obtain the benefits of federal programs which provide tax credits, incentives, or other inducements to the state or to holders of public debt;

152

GENERAL ACTS AND RESOLUTIONS, VOL. I

(v) Apply or arrange to participate in federal programs which require the allocation of funds or bonding authority among geographical areas, governmental jurisdictions and entities, or other categories, and perform such allocation unless another officer, agency, or instrumentality is explicitly authorized by state law to perform such allocation and all officers, agencies, or instrumentalities are required to provide such assistance, cooperation, and information as the commission directs related to any federal programs; and (vi) Apply or arrange to participate in any other federal program which provides benefits consistent with state law and supportive of functions of the commission. (C) The use of federal funds as part of the authorization for the issuance of general obligation debt or the issuance of guaranteed revenue debt shall be by appropriation as provided by law. The payment of federal funds into the sinking fund to pay annual debt service requirements shall be by appropriation or by direction of the commission in the absence of appropriation. The payment of federal funds into the State of Georgia Guaranteed Revenue Debt Common Reserve Fund as part of the common reserve shall be by appropriation or by direction of the commission in the absence of appropriation. (D) The commission may delegate to the fiscal officer of the state its authority to arrange for and accept federal funds as provided in this Code section.'

SECTION 12. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval; provided, however, that the Commissioner of Labor may delay the implementation of Section 9 of this Act for a period of time not to extend beyond May 25, 2009, if the Commissioner of Labor determines that it is not reasonably practicable to commence implementation of such section as of the effective date.

SECTION 13. All laws and parts of laws in conflict with this Act are repealed.

Approved April21, 2009.

GEORGIA LAWS 2009 SESSION

153

STATE GOVERNMENT- CLEAN ENERGY PROPERTY; GRANTS; SALES TAX EXEMPTION; GEORGIA TECHNOLOGY AUTHORITY.

No. 50 (House Bill No. 473).

AN ACT

To amend Title 50 of the Official Code of Georgia Annotated, relating to state government, so as to provide for grants for clean energy property for a limited period of time from federal funds allocated for such purposes; to provide for definitions; to provide for procedures, conditions, and limitations; to exempt the Georgia Technology Authority from certain sales and use taxes; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Title 50 of the Official Code of Georgia Annotated, relating to state government, is amended by adding a new Code section to read as follows:
'50-23-21. (a) As used in this Code section, the term:
(1) 'Authority' means the Georgia Environmental Facilities Authority. (2) 'Clean energy property' includes any of the following:
(A) Solar energy equipment that uses solar radiation as a substitute for traditional energy for water heating, active and passive space heating and cooling, generating electricity, distillation, desalinization, or the production of industrial or commercial process heat, as well as related devices necessary for collecting, storing, exchanging, conditioning, or converting solar energy to other useful forms of energy; (B) Energy Star certified geothermal heat pump systems; (C) Energy efficient projects as follows:
(i) LIGHTING RETROFIT PROJECTS. 'Lighting retrofit project' means a lighting retrofit system that employs dual switching (ability to switch roughly half the lights off and still have fairly uniform light distribution), delamping, daylighting, relamping, or other controls or processes which reduce annual energy and power consumption by 30 percent compared to the American Society of Heating, Refrigerating, and Air Conditioning Engineers 2004 standard (ASHRAE 90.1.2004); and (ii) ENERGY EFFICIENT BUILDINGS. 'Energy efficient building' means for other than single-family residential property new or retrofitted buildings that are designed, constructed, and certified to exceed the standards set forth in the American Society

154

GENERAL ACTS AND RESOLUTIONS, VOL. I

of Heating, Refrigerating, and Air Conditioning Engineers 2004 standard (ASHRAE 90.1.2004) by 30 percent; and (D) Wind equipment required to capture and convert wind energy into electricity or mechanical power as well as related devices that may be required for converting, conditioning, and storing the electricity produced by wind equipment. (3) 'Cost' means: (A) In the case of clean energy property owned by a person, cost is the aggregate funds actually invested and expended by a person to put into service the clean energy property; and (B) In the case of clean energy property a person leases from another, cost is eight times the net annual rental rate, which is the annual rental rate paid by the person less any annual rental rate received by the person from subrentals. (4) 'Installation' means the year in which the clean energy property is put into service and becomes eligible for a grant allowed by this Code section. (b)(l) The authority may issue a grant to any person for the construction, purchase, or lease of clean energy property that is placed into service in this state, other than in single-family residential structures, between January I, 2009, and December 31,2012, subject to the provisions of this Code section. (2) A person that receives a grant allowed under this Code section shall not be eligible to claim any tax credit under Code Section 48-7-29.14 or any other grant under this Code section with respect to the same clean energy property. (3) A person shall not receive a grant allowed in this Code section for clean energy property the person leases from another unless such person obtains the lessor's written certification that the lessor will not receive a grant under this Code section or claim a credit under Code Section 48-7-29.14 with respect to the same clean energy property. (4) Grants shall not be issued under this Code section except to effect participation in a federal government program which authorizes the use of federal funds for purposes of this Code section. In no event shall the total amount of grants allowed by this Code section exceed federal funds allocated by the authority for such purposes. No funds derived from any other sources shall be granted under this Code section. (5)(A) Any person seeking any grant provided for under this Code section shall submit an application to the authority for approval of such grant. The authority shall promulgate the forms on which the application is to be submitted. The authority shall review such application and shall approve such application upon determining that it meets the requirements of this Code section within 60 days after receiving such application, subject to availability of funds as provided by paragraph (4) of this subsection. (B) To apply for a grant allowed by this Code section, the person shall provide any information required by the authority. Every person receiving a grant under this Code section shall maintain and make available for inspection by the authority any records that the authority considers necessary to determine and verify the amount of the grant

GEORGIA LAWS 2009 SESSION

155

to which the person is entitled. The burden of proving eligibility for a grant and the amount of the grant shall rest upon the applicant, and no grant shall be allowed to a person that fails to maintain adequate records or to make them available for inspection. (C) The authority shall issue the grants on a first come, first served basis. In no event shall the aggregate amount of grants approved by the authority for all applicants under this Code section exceed the limitations specified in paragraph (4) of this subsection. (6) Any grant allowed by paragraph (1) of this subsection shall not exceed the lesser of 35 percent of the cost of the clean energy property described in subparagraphs {a)(2)(A) through (a)(2)(D) of this Code section or the following grant amounts for any clean energy property: (A) A ceiling of $500,000.00 per installation applies to solar energy equipment for solar electric (photovoltaic), other solar thermal electric applications, and active space heating and wind equipment as described in subparagraphs (a)(2)(A) and (a)(2)(D), of this Code section; (B) The sum of $100,000.00 per installation applies to clean energy property related to solar energy equipment for domestic water heating as described in subparagraph (a)(2){A) of this Code section which is certified for performance by the Solar Rating Certification Corporation, Florida Solar Energy Center, or by a comparable entity approved by the authority to have met the certification of Solar Rating Certification Corporation OG-1 00 or Florida Solar Energy Center-G0-80 for solar thermal collectors; (C) For Energy Star certified geothermal heat pump systems as described in subparagraph (a)(2)(B) of this Code section, the sum of $1 00,000.00; (D) For a lighting retrofit project as described in division (a)(2)(C)(i) of this Code section, the sum of $0.60 per square foot of the building with a maximum of $100,000.00; and (E) For an energy efficient building as described in division (a)(2)(C)(ii) of this Code section, the sum of the cost of energy efficient products installed during construction at $1.80 per square foot of the building, with a maximum of $100,000.00. (c) The authority shall be authorized to adopt rules and regulations to provide for the administration of any grant provided by this Code section. Specifically, the authority shall create a mechanism to track and report the status and availability of grants for the public to review at a minimum on a quarterly basis. (d) The authority shall provide an annual report of: (1) The number of persons that claimed the grants allowed in this Code section; (2) The cost of clean energy property with respect to which grants were issued; (3) The type of clean energy property installed and the location; (4) A determination of associated energy and economic benefits to the state; and (5) The total amount of grants allowed.'

156

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION lC. Said title is further amended by revising Code Section 50-25-8, relating to tax exemptions for the Georgia Technology Authority, as follows:
'50-25-8. It is found, determined, and declared that the creation of the authority and the carrying out of its corporate purposes are in all respects for the benefit of the people of this state and are public purposes and that the authority will be performing an essential governmental function in the exercise of the powers conferred upon it by this chapter. The authority shall be required to pay no taxes or assessments upon any property acquired or under its jurisdiction, control, possession, or supervision. The tax exemption provided for in this Code section shall include an exemption from all sales and use tax on property purchased or used by the authority.'

SECTION 2. This Act shall become effective 30 days after the date it is approved by the Governor or becomes law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April 22, 2009.

EDUCATION- MATHEMATICS OR SCIENCE TEACHERS; COMPENSATION; STANDARDS.
No. 51 (House Bill No. 280).
AN ACT
To amend Part 6 of Article 6 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to employment under the "Quality Basic Education Act," so as to provide for additional compensation for teachers in mathematics or science under certain conditions; to provide for standards for mathematics and science endorsements; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

GEORGIA LAWS 2009 SESSION

!57

SECTION 1. Part 6 of Article 6 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to employment under the "Quality Basic Education Act," is amended by adding a new Code section to read as follows:
'20-2-212.5. (a)( I) On and after July I, 20 I0, and until such date as may be determined by the State Board of Education that mathematics, science, or both are no longer areas in which there is an insufficient supply of teachers, a secondary school teacher in a local school system who is or becomes certified in mathematics or science by the Professional Standards Commission shall be moved to the salary step on the state salary schedule that is applicable to six years of creditable service, unless he or she is already on or above such salary step. From such salary step, the teacher shall be attributed one additional year of creditable service on the salary schedule each year for five years. (2) After five years, such teacher may continue to be attributed one additional year of creditable service on the salary schedule each year if he or she meets or exceeds student achievement criteria established by the Office of Student Achievement. (3) Upon expiration of five years, or any year thereafter that the teacher does not meet or exceed student achievement criteria as required by paragraph (2) of this subsection, such teacher shall be moved to the salary step applicable to the actual number of years of creditable service which the teacher has accumulated. (4) This subsection shall be subject to appropriations of the General Assembly. (b)(I)(A) On and after July I, 20 I 0, a kindergarten or elementary school teacher in a local school system who receives an endorsement in mathematics, science, or both from the Professional Standards Commission shall receive a stipend of $1,000.00 per endorsement for each year each such endorsement is in effect, up to a maximum of five years. (B) After five years, such teacher may continue to receive such stipend if he or she meets or exceeds student achievement criteria established by the Office of Student Achievement. (C) Upon expiration of five years, or any year thereafter that such a teacher does not meet or exceed student achievement as required by subparagraph (B) ofthis paragraph, such teacher shall cease to receive the stipend. (D) This paragraph shall be subject to appropriations by the General Assembly. (2)(A) In order to qualify for the stipend pursuant to paragraph (I) of this subsection, math and science endorsements shall: (i) Be based on post-baccalaureate nondegree programs, independent of an initial preparation program in early childhood education; (ii) Consist of a minimum of three courses, of which two courses shall be focused on the advancement ofcontent knowledge and one course, or any additional course, shall be focused on content-specific pedagogy and proven strategies for teaching math or science to children in kindergarten through fifth grade; and

158

GENERAL ACTS AND RESOLUTIONS, VOL. I

(iii) Include an authentic residency experience with a focus on application of knowledge and skills. (B) The Professional Standards Commission shall establish standards for the math and science endorsements provided for in this subsection:

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved April 22, 2009.

LOCAL GOVERNMENT -REDEVELOPMENT POWERS LAW; PAYMENTS IN LIEU OF TAXES.
No. 52 (House Bill No. 63).
AN ACT
To amend Title 36 of the Official Code of Georgia Annotated, relating to local government, so as to provide for the comprehensive revision of redevelopment powers; to repeal in its entirety Chapter 44, the "Redevelopment Powers Law"; to reenact provisions regarding redevelopment; to provide for a short title; to provide for definitions; to provide for legislative purposes; to provide for redevelopment agencies; to provide for redevelopment powers and delegation thereof; to provide for redevelopment plan proposals and approved plans; to provide for creation and termination of the allocation districts; to provide for tax increment financing; to provide for redevelopment costs; to provide for tax allocation bonds and bond anticipation notes; to provide for millage rates; to provide for contractual agreements; to provide for use of funds; to provide for conflicts of interest, voidable contracts, and misconduct; to provide for comprehensive procedures, conditions, limitations, requirements, and applicability with regard to the foregoing; to place restrictions on the ability oflocal government authorities to issue revenue bonds and other revenue obligations that are payable from payments in lieu ofproperty taxes; to provide for the applicability and nonapplicability of such restrictions; to provide for powers, duties, and responsibilities of each county board of tax assessors and local governments and local government authorities with respect to the foregoing; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

GEORGIA LAWS 2009 SESSION

!59

SECTION 1. Title 36 of the Official Code ofGeorgia Annotated, relating to local government, is amended by repealing in its entirety Chapter 44, the "Redevelopment Powers Law."

SECTION 2. Said title is further amended by adding a new chapter to read as follows:

"CHAPTER 44

36-44-1. This chapter shall be known and may be cited as the 'Redevelopment Powers Law.'

36-44-2. It is found and declared that economically and socially depressed areas exist within counties and municipalities of this state and that these areas contribute to or cause unemployment, limit the tax resources of counties and municipalities, and create a greater demand for governmental services and, in general, have a deleterious effect upon the public health, safety, morals, and welfare. It is, therefore, in the public interest that such areas be redeveloped to the maximum extent practicable to improve economic and social conditions therein in order to abate or eliminate such deleterious effects. To encourage such redevelopment, it is essential that the counties and municipalities of this state have additional powers to form a more effective partnership with private enterprise to overcome economic limitations that have previously impeded or prohibited redevelopment of such areas. It is the purpose of this chapter, therefore, to grant such additional powers to the counties and municipalities ofthis state, and it is the intention ofthe General Assembly that this chapter be liberally construed to carry out such purpose.

36-44-3. As used in this chapter, the term:
(!) 'Ad valorem property taxes' means all ad valorem property taxes levied by each political subdivision and each county and independent board of education consenting to the inclusion of that board of education's property taxes as being applicable to a tax allocation district as provided by Code Section 36-44-9, except:
(A) Those ad valorem property taxes levied to repay bonded indebtedness; (B) Unless otherwise provided in the resolution creating such district, those ad valorem property taxes levied on personal property or on motor vehicles; and (C) Unless otherwise provided in the resolution creating such district, those ad valorem property taxes levied on the assessed value of property owned by public utilities and railroad companies, as determined pursuant to the provisions of Chapter 5 of Title 48. (2) 'Area of operation' means, in the case of a municipality or its redevelopment agency, the territory lying within the corporate limits of such municipality; in the case of a county

160

GENERAL ACTS AND RESOLUTIONS, VOL. I

or its redevelopment agency, the territory lying within the unincorporated area of the county; and, in the case of a consolidated government or its redevelopment agency, the area lying within the territorial boundaries of the consolidated government. 'Area of operation' may also mean the combined areas of operation ofpolitical subdivisions which participate in the creation of a common redevelopment agency to serve such participating political subdivisions as provided in subsection (d) of Code Section 36-44-4. (3) 'Local legislative body' means the official or body in which the legislative powers of a political subdivision are vested. (4) 'Political subdivision' means any county, municipality, or consolidated government of this state. (5) 'Redevelopment' means any activity, project, or service necessary or incidental to achieving the development or revitalization of a redevelopment area or a portion thereof designated for redevelopment by a redevelopment plan or the preservation or improvement of historical or natural assets within a redevelopment area or a portion thereof designated for redevelopment by a redevelopment plan. Without limiting the generality ofthe foregoing, redevelopment may include any one or more ofthe following:
(A) The construction of any building or other facility for use in any business, commercial, industrial, governmental, educational, charitable, or social activity; (B) The renovation, rehabilitation, reconstruction, remodeling, repair, demolition, alteration, or expansion of any existing building or other facility for use in any business, commercial, industrial, governmental, educational, charitable, or social activity; (C) The construction, reconstruction, renovation, rehabilitation, remodeling, repair, demolition, alteration, or expansion of public or private housing; (D) The construction, reconstruction, renovation, rehabilitation, remodeling, repair, demolition, alteration, or expansion of public works or other public facilities necessary or incidental to the provision of governmental services; (E) The identification, preservation, renovation, rehabilitation, reconstruction, remodeling, repair, demolition, alteration, or restoration of buildings or sites which are of historical significance; (F) The preservation, protection, renovation, rehabilitation, restoration, alteration, improvement, maintenance, and creation of open spaces, green spaces, or recreational facilities; (G) The construction, installation, preservation, renovation, rehabilitation, reconstruction, restoration, alteration, improvement, and maintenance of public art and arts and cultural facilities; (H) The development, construction, reconstruction, repair, demolition, alteration, or expansion of structures, equipment, and facilities for mass transit; (I) The development, construction, reconstruction, renovation, rehabilitation, repair, demolition, alteration, or expansion of telecommunication infrastructure;

GEORGIA LAWS 2009 SESSION

161

(J) The development, construction, reconstruction, renovation, rehabilitation, repair, demolition, alteration, or expansion of facilities for the improvement of pedestrian access and safety; (K) Improving or increasing the value of property; and (L) The acquisition and retention or acquisition and disposition of property for redevelopment purposes or the use for redevelopment purposes of property already owned by a political subdivision or any agency or instrumentality thereof. (6) 'Redevelopment agency' means the local legislative body of a political subdivision or a public body corporate and politic created as the redevelopment agency of the political subdivision or an existing public body corporate and politic designated as the redevelopment agency of the political subdivision pursuant to Code Section 36-44-4. (7) 'Redevelopment area' means an urbanized area as determined by current data from the U.S. Bureau of the Census or an area presently served by sewer that qualifies as a 'blighted or distressed area,' a 'deteriorating area,' or an 'area with inadequate infrastructure,' as follows: (A) A 'blighted or distressed area' is an area that is experiencing one or more conditions of blight as evidenced by:
(i) The presence of structures, buildings, or improvements that by reason of dilapidation; deterioration; age; obsolescence; inadequate provision for ventilation, light, air, sanitation, or open space; overcrowding; conditions which endanger life or property by fire or other causes; or any combination of such factors, are conducive to ill heath, transmission of disease, infant mortality, high unemployment, juvenile delinquency, or crime and are detrimental to the public health, safety, morals, or welfare; (ii) The presence of a predominant number of substandard, vacant, deteriorated, or deteriorating structures; the predominance of a defective or inadequate street layout or transportation facilities; or faulty lot layout in relation to size, accessibility, or usefulness; (iii) Evidence of pervasive poverty, defined as being greater than 10 percent of the population in the area as determined by current data from the U.S. Bureau of the Census, and an unemployment rate that is 10 percent higher than the state average; (iv) Adverse effects of airport or transportation related noise or environmental contamination or degradation or other adverse environmental factors that the political subdivision has determined to be impairing the redevelopment of the area; or (v) The existence of conditions through any combination of the foregoing that substantially impair the sound growth of the community and retard the provision of housing accommodations or employment opportunities; (B) A 'deteriorating area' is an area that is experiencing physical or economic decline or stagnation as evidenced by two or more of the following: (i) The presence of a substantial number of structures or buildings that are 40 years old or older and have no historic significance;

162

GENERAL ACTS AND RESOLUTIONS, VOL. I

(ii) High commercial or residential vacancies compared to the political subdivision as a whole; (iii) The predominance of structures or buildings of relatively low value compared to the value of structures or buildings in the surrounding vicinity or significantly slower growth in the property tax digest than is occurring in the political subdivision as a whole; (iv) Declining or stagnant rents or sales prices compared to the political subdivision as a whole; (v) In areas where housing exists at present or is determined by the political subdivision to be appropriate after redevelopment, there exists a shortage of safe, decent housing that is not substandard and that is affordable for persons of low and moderate income; or (vi) Deteriorating or inadequate utility, transportation, or transit infrastructure; and (C) An 'area with inadequate infrastructure' means an area characterized by: (i) Deteriorating or inadequate parking, roadways, bridges, pedestrian access, or public transportation or transit facilities incapable of handling the volume of traffic into or through the area, either at present or following redevelopment; or (ii) Deteriorating or inadequate utility infrastructure either at present or following redevelopment. (8) 'Redevelopment costs' means any expenditures made or estimated to be made or monetary obligations incurred or estimated to be incurred to achieve the redevelopment of a redevelopment area or any portion thereof designated by a redevelopment plan or any expenditures made to carry out or exercise any powers granted by this chapter. Without limiting the generality of the foregoing, redevelopment costs may include any one or more of the following: (A) Capital costs, including the costs incurred or estimated to be incurred for the construction ofpublic works or improvements, new buildings, structures, and fixtures, including facilities owned or operated by school districts and systems; the renovation, rehabilitation, reconstruction, remodeling, repair, demolition, alteration, or expansion of existing buildings, structures, and fixtures, including facilities owned or operated by school districts and systems; the acquisition of equipment; and the clearing and grading of land; (B) Financing costs, including, but not limited to, all necessary and incidental expenses related to the issuance of obligations and which may include payment of interest on any obligations issued under this chapter occurring during the estimated period of construction of any project with respect to which any capital costs within the meaning of subparagraph (A) of this paragraph are financed in whole or in part by such obligations and for a period not to exceed 42 months after completion of any such construction and including reasonable reserves related thereto and all principal and interest paid to holders of evidences of indebtedness issued to pay for other

GEORGIA LAWS 2009 SESSION

163

redevelopment costs and any premium paid over the principal amount thereof because of the redemption of such obligations prior to maturity; (C) Professional service costs, including those costs incurred for architectural, planning, engineering, financial, marketing, and legal advice and services; (D) Imputed administrative costs, including reasonable charges for the time spent by public employees in connection with the implementation of a redevelopment plan; (E) Relocation costs as authorized by a redevelopment plan for persons or businesses displaced by the implementation of a redevelopment plan, including but not limited to, those relocation payments made following condemnation under Chapter 4 of Title 22, 'The Georgia Relocation Assistance and Land Acquisition Policy Act'; (F) Organizational costs, including the costs of conducting environmental impact and other studies, and the costs of informing the public with respect to the creation and implementation of redevelopment plans; (G) Payments to a political subdivision or board of education in lieu of taxes to compensate for any loss of tax revenues or for any capital costs incurred because of redevelopment activity; provided, however, that any such payments to a political subdivision or board of education shall not exceed in any year the amount of the contribution to the tax allocation increment in that year by such political subdivision or board of education; and (H) Real property assembly costs. (9) 'Redevelopment plan' means a written plan of redevelopment for a redevelopment area or a designated portion thereof which: (A) Specifies the boundaries of the proposed redevelopment area; (B) Explains the grounds for a finding by the local legislative body that the redevelopment area on the whole has not been subject to growth and development through private enterprise and would not reasonably be anticipated to be developed without the approval ofthe redevelopment plan or that the redevelopment area includes one or more natural, historical, or cultural assets which have not been adequately preserved, protected, or improved and such asset or assets would not reasonably be anticipated to be adequately preserved, protected, or improved without the approval of the redevelopment plan; (C) Explains the proposed uses after redevelopment of real property within the redevelopment area; (D) Describes any redevelopment projects within the redevelopment area proposed to be authorized by the redevelopment plan, estimates the cost thereof, and explains the proposed method of financing such projects; (E) Describes any contracts, agreements, or other instruments creating an obligation for more than one year which are proposed to be entered into by the political subdivision or its redevelopment agency or both for the purpose of implementing the redevelopment plan;

164

GENERAL ACTS AND RESOLUTIONS, VOL. I

(F) Describes the type of relocation payments proposed to be authorized by the redevelopment plan; (G) Includes a statement that the proposed redevelopment plan conforms with the local comprehensive plan, master plan, zoning ordinance, and building codes of the political subdivision or explains any exceptions thereto; (H) Estimates redevelopment costs to be incurred or made during the course of implementing the redevelopment plan; (I) Recites the last known assessed valuation of the redevelopment area and the estimated assessed valuation after redevelopment; (J) Provides that property which is to be redeveloped under the plan and which is either designated as a historic property under Article 2 of Chapter 10 of Title 44, the 'Georgia Historic Preservation Act,' or is listed on or has been determined by any federal agency to be eligible for listing on the National Register of Historic Places will not be:
(i) Substantially altered in any way inconsistent with technical standards for rehabilitation; or (ii) Demolished unless feasibility for reuse has been evaluated based on technical standards for the review of historic preservation projects, which technical standards for rehabilitation and review shall be those used by the state historic preservation officer, although nothing in this subparagraph shall be construed to require approval of a redevelopment plan or any part thereof by the state historic preservation officer; (K) Specifies the proposed effective date for the creation of the tax allocation district and the proposed termination date; (L) Contains a map specifying the boundaries of the proposed tax allocation district and showing existing uses and conditions ofreal property in the proposed tax allocation district; (M) Specifies the estimated tax allocation increment base of the proposed tax allocation district; (N) Specifies ad valorem property taxes for computing tax allocation increments determined in accordance with Code Section 36-44-9 and supported by any resolution required under paragraph (3) of Code Section 36-44-8; (0) Specifies the amount of the proposed tax allocation bond issue or issues and the term and assumed rate of interest applicable thereto; (P) Estimates positive tax allocation increments for the period covered by the term of the proposed tax allocation bonds; (Q) Specifies the property proposed to be pledged for payment or security for payment of tax allocation bonds which property may include positive tax allocation increments derived from the tax allocation district, all or part of general funds derived from the tax allocation district, and any other property from which bonds may be paid under Code Section 36-44-14, subject to the limitations of Code Sections 36-44-9 and 36-44-20;

GEORGIA LAWS 2009 SESSION

165

(R) If the plan proposes to include in the tax allocation increment ad valorem taxes levied by a board of education, the plan shall contain a school system impact analysis addressing the financial and operational impact on the school system of the proposed redevelopment, including but not limited to an estimate ofthe number ofnet new public school students that could be anticipated as redevelopment occurs; the location of school facilities within the proposed redevelopment area; an estimate of educational special purpose local option sales taxes projected to be generated by the proposed redevelopment, if any; and a projection of the average value of residential properties resulting from redevelopment compared to current property values in the redevelopment area; and (S) Includes such other information as may be required by resolution of the political subdivision whose area of operation includes the proposed redevelopment area. (1 0) 'Resolution' means a resolution or ordinance by which a local legislative body takes official legislative action, and any duly-adopted amendment thereto. (11) 'Special fund' means the fund provided for in subsection (c) of Code Section 36-44-11. (12) 'Tax allocation bonds' means one or more series ofbonds, notes, or other obligations issued by a political subdivision to finance, wholly or partly, redevelopment costs within a tax allocation district and which are issued on the basis of pledging for the payment or security for payment of such bonds positive tax allocation increments derived from the tax allocation district, all or part of general funds derived from the tax allocation district, and any other property from which bonds may be paid under Code Section 36-44-14, as determined by the political subdivision subject to the limitations of Code Sections 36-44-9 and 36-44-20. Tax allocation bonds shall not constitute debt within the meaning of Article IX, Section V of the Constitution. (13) 'Tax allocation district' means a contiguous geographic area within a redevelopment area which is defined and created by resolution of the local legislative body of a political subdivision pursuant to subparagraph (B) of paragraph (3) of Code Section 36-44-8 for the purpose of issuing tax allocation bonds to finance, wholly or partly, redevelopment costs within the area. (14) 'Tax allocation increment' means that amount obtained by multiplying the total ad valorem property taxes, determined as provided in Code Section 36-44-9, levied within a tax allocation district in any year by a fraction having a numerator equal to that year's taxable value of all taxable property subject to ad valorem property taxes within the tax allocation district minus the tax allocation increment base and a denominator equal to that year's taxable value of all taxable property subject to ad valorem property taxes within the tax allocation district. In any year, a tax allocation increment is 'positive' if the tax allocation increment base is less than that year's taxable value of all taxable property subject to ad valorem property taxes and 'negative' if such base exceeds such taxable value.

166

GENERAL ACTS AND RESOLUTIONS, VOL. I

( 15) 'Tax allocation increment base' means the taxable value of all taxable property subject to ad valorem property taxes, as certified by the state revenue commissioner, located within a tax allocation district on the effective date such district is created pursuant to Code Section 36-44-8. (16) 'Taxable property' means all real and personal property subject to ad valorem taxation by a political subdivision, including property subject to local ad valorem taxation for educational purposes. (17) 'Taxable value' means the current assessed value of taxable property as shown on the tax digest of the county in which the property is located.

36-44-4. (a) As an alternative to the creation of a redevelopment agency provided for by subsections (b) through (f) of this Code section, the local legislative body of a political subdivision, by resolution, may designate itself as its respective redevelopment agency and may exercise, within its respective area of operation, the redevelopment powers provided by this chapter. (b) The local legislative body of a political subdivision may create a public body corporate and politic to serve as its redevelopment agency. Any such public corporation may be created by resolution adopted by the local legislative body ofthe political subdivision. Such resolution may provide for the membership of the board of directors of such public corporation and their terms of office, for the powers and duties of such public corporation, and for such other matters as may reasonably be necessary and convenient for the creation and activation of such public corporation as the redevelopment agency of the political subdivision. (c) In the event a political subdivision has activated a public corporation as its 'urban redevelopment agency' or designated a housing authority as its 'urban redevelopment agency' pursuant to Code Sections 36-61-17 and 36-61-18 of the 'Urban Redevelopment Law,' the local legislative body of such political subdivision may designate such public corporation as its redevelopment agency for the purposes of this chapter. Any action taken pursuant to the authority of this subsection shall be by resolution duly adopted by the local legislative body of the political subdivision. (d) Any county, municipality, and consolidated government, or any combination of such political subdivisions, by resolution of their respective local legislative bodies, may jointly create a public corporation, or designate an existing public corporation which already exercises 'redevelopment powers' under any other law, to serve as the common redevelopment agency on behalf of such political subdivisions. The membership of the board of directors and their terms of office of any such jointly created public corporation and the powers and duties of such public corporation shall be as mutually agreed upon by the local legislative bodies of the participating political subdivisions, as evidenced by a resolution duly adopted by each such local legislative body. In the event a public corporation is created or designated, as authorized in this Code section, to serve as the

GEORGIA LAWS 2009 SESSION

167

common redevelopment agency of two or more political subdivisions, then the area of operation of such redevelopment agency shall be the combined areas of operation of the political subdivisions jointly creating or designating such redevelopment agency. (e) A political subdivision may participate in the creation or designation of a public corporation to serve as a common redevelopment agency as provided by subsection (d) of this Code section as well as create or designate a public corporation to serve as the redevelopment agency ofthe political subdivision. In such event, the members ofthe board of directors of the public corporation created or designated as the redevelopment agency of the political subdivision may also serve, in accordance with the provisions of the resolution of the local legislative body of the political subdivision participating in the creation or designation of a public corporation to serve as a common redevelopment agency, as members of the board of directors of the jointly created public corporation. (f) For purposes of redevelopment in its downtown area, any municipality may designate a downtown development authority created pursuant to Chapter 42 of this title to serve as a redevelopment agency. Such designation shall not affect any other redevelopment agency that may exist as a part ofthe municipality. The area of operation ofany downtown development agency designated as a redevelopment agency pursuant to this subsection shall not exceed the area of operation of the downtown development authority established pursuant to Chapter 42 of this title.

36-44-5. (a) Subject to the limitation of subsection (b) of this Code section, a political subdivision may exercise any powers necessary or convenient to carry out the purposes of this chapter, including, but not limited to, the power to:
(1) Describe the boundaries of one or more redevelopment areas within its area of operation, but any redevelopment area so described shall conform to the definition of a redevelopment area provided by paragraph (7) of Code Section 36-44-3; (2) Cause redevelopment plans to be prepared, to approve by resolution the plans, and to implement the provisions and effectuate the purposes of the plans; (3) Create within redevelopment areas tax allocation districts and define the boundaries thereof or designate an entire redevelopment area as a tax allocation district; (4) Define the boundaries ofportions of a redevelopment area or an entire redevelopment area for the implementation of redevelopment plans other than plans calling for the creation of tax allocation districts; (5) Issue tax allocation bonds; (6) Deposit moneys into and disburse moneys from the special fund of any tax allocation district; (7) Enter into and execute any contracts, leases, mortgages, or other agreements, including agreements with bondholders or lenders, determined by the local legislative body to be necessary or convenient to implement the provisions and effectuate the purposes of redevelopment plans. The contracts or agreements may include conditions,

168

GENERAL ACTS AND RESOLUTIONS, VOL. I

restrictions, or covenants which either run with the land or otherwise regulate the use of land; (8) Acquire and retain or acquire and dispose of property or interests therein for redevelopment purposes or use or dispose ofproperty or interests therein presently owned by the political subdivision for redevelopment purposes; and any disposition of such property or interests therein may be by public or private sale or lease; and (9) Exercise, for the purposes of this chapter, any powers conferred upon political subdivisions by Chapter 61 of this title, the 'Urban Redevelopment Law.' (b) The powers granted to political subdivisions by subsection (a) ofthis Code section and by this chapter and any powers delegated to a redevelopment agency pursuant to Code Section 36-44-6 may be exercised only for the purpose of adopting and implementing redevelopment plans, but this limitation shall not be construed to interfere with the exercise of any power now or hereafter possessed by a political subdivision which is granted by any other law.

36-44-6. (a) Subject to the limitations of subsection (b) of this Code section, the local legislative body of a political subdivision, by resolution, may delegate any of its redevelopment powers to its redevelopment agency created or designated pursuant to Code Section 36-44-4. The local legislative body shall have authority to delegate some or all such powers in such manner and pursuant to such terms and conditions as the local legislative body shall provide by resolution. Any such resolution shall specify any powers delegated to a redevelopment agency, and such resolution may be amended, modified, or repealed by the local legislative body adopting it. (b) Any delegation of redevelopment powers pursuant to the authority of subsection (a) of this Code section shall be limited by the following requirements:
(1) Any redevelopment plan must be approved by resolution of the local legislative body of the political subdivision as a condition precedent to the implementation of said redevelopment plan, and such approval shall be subject to the requirements of Code Section 36-44-7; (2) The boundaries of any redevelopment area must be described by resolution of the local legislative body of the political subdivision; (3) A tax allocation district must be created by resolution of the local legislative body of the political subdivision; (4) The issuance of any tax allocation bonds shall be by resolution of the local legislative body of the political subdivision; (5) The power of eminent domain may only be exercised under this chapter by the local legislative body of a political subdivision; and (6) A local legislative body may not delegate to a redevelopment agency created under subsection (b), (c), (d), or (e) of Code Section 36-44-4 any urban redevelopment project

GEORGIA LAWS 2009 SESSION

169

powers except those which may be conferred on an urban redevelopment agency under Code Section 36-61-17 of the 'Urban Redevelopment Law.'

36-44-7. (a) A redevelopment plan may be proposed by the redevelopment agency of a political subdivision, but such plan may not be implemented until it is approved by the adoption of a resolution of the local legislative body of the political subdivision as provided in this chapter. (b) When a proposed redevelopment plan is prepared, it shall be submitted by the redevelopment agency to the local legislative body. Within the 60 day period after the plan is submitted, the local legislative body shall hold at least one public hearing on the proposed redevelopment plan. The local legislative body shall cause the time, date, place, and purpose of each such public hearing to be advertised in one or more newspapers of general circulation within the area of operation of the political subdivision at least once during a period of five days immediately preceding the date of each public hearing. (c) Within 45 days after completing the public hearings required by subsection (b) of this Code section, the local legislative body of the political subdivision shall schedule and hold a meeting of the local legislative body for the purpose of considering the approval of the redevelopment plan. The local legislative body shall cause the date, time, place, and purpose of such meeting to be advertised in one or more newspapers of general circulation within the area of operation of the political subdivision at least once during a period offive days immediately preceding the date of such meeting. At such meeting the redevelopment plan shall be approved as submitted, amended and approved, or rejected and returned to the redevelopment agency for further consideration. Any redevelopment plan rejected by the local legislative body shall be returned to the redevelopment agency and shall be subject to the public hearing requirements of subsection (b) of this Code section if it is again submitted to the local legislative body for approval, either in the same or amended form. (d) Once approved by the local legislative body, a redevelopment plan may be amended only by the local legislative body of the political subdivision. The local legislative body shall cause the date, time, place, and purpose of any meeting of the local legislative body at which an amendment to a redevelopment plan is to be considered to be advertised in the same manner as prescribed by subsection (c) ofthis Code section for a meeting to consider the adoption of a redevelopment plan.

36-44-8. In order to create and carry out the purposes of a tax allocation district, the following steps are required:
( 1) Preparation by the redevelopment agency of a redevelopment plan for the proposed tax allocation district and its submission for consent to the political subdivision or board of education required to consent, if the plan proposes to include in the tax allocation increment ad valorem property taxes levied by a political subdivision or board of

170

GENERAL ACTS AND RESOLUTIONS, VOL. I

education required to consent to such inclusion under Code Section 36-44-9, or ifthe plan proposes to pledge for payment or security for payment of tax allocation bonds and other redevelopment costs the general funds of a county required to consent to such inclusion under Code Section 36-44-9; (2) Submission of the redevelopment plan to the local legislative body of the political subdivision whose area of operation will include the tax allocation district; (3) Adoption by the local legislative body of a resolution approving the redevelopment plan and which:
(A) Describes the boundaries of the tax allocation district with sufficient definiteness to identify with ordinary and reasonable certainty the territory included. The boundaries shall include only those whole units of property assessed for ad valorem property tax purposes; (B) Creates the district on December 31 following the adoption of the resolution or on December 31 of a subsequent year as determined by the local legislative body; (C) Assigns a name to the district for identification purposes. The first district created shall be known as 'Tax Allocation District Number 1,' followed by the name of the political subdivision within whose area of operation the district is located; (D) Specifies the estimated tax allocation increment base; (E) Specifies ad valorem property taxes to be used for computing tax allocation increments; (F) Specifies the property proposed to be pledged for payment or security for payment of tax allocation bonds which property may include positive tax allocation increments derived from the tax allocation district, all or part of general funds derived from the tax allocation district, and any other property from which bonds may be paid under Code Section 36-44-14, as determined by the political subdivision subject to the limitations of Code Sections 36-44-9 and 36-44-20; and (G) Contains findings that:
(i) The redevelopment area on the whole has not been subject to growth and development through private enterprise and would not reasonably be anticipated to be developed without the approval of the redevelopment plan or includes one or more natural, historical, or cultural assets which have not been adequately preserved or protected and such asset or assets would not reasonably be anticipated to be adequately preserved, protected, or improved without the approval of the redevelopment plan; and (ii) The improvement of the area is likely to enhance the value of a substantial portion of the other real property in the district. If any information required to be included in the resolution approving the redevelopment plan under subparagraphs (A) through (G) of this paragraph is contained in the redevelopment plan, then the resolution approving the redevelopment plan may incorporate by reference that portion of the redevelopment plan containing said information; and

GEORGIA LAWS 2009 SESSION

171

(4) A certified copy of any resolution giving the consent required under paragraph (1) of this Code section must be submitted to the local legislative body of the political subdivision whose area of operation will include the tax allocation district prior to inclusion of such ad valorem property taxes or general funds in calculation of the tax allocation increment.

36-44-9. (a) When a tax allocation district is created within the area of operation of a municipality by the local legislative body of such municipality, property taxes for computing tax allocation increments shall be based on all ad valorem property taxes levied by the municipality. If the municipality has an independent school system, ad valorem property taxes levied for educational purposes by the municipality shall be included in computing the tax allocation increments if the local legislative body ofthe municipality is empowered to make the determination of the municipal ad valorem tax millage rate for educational purposes. If the board of education of the independent school system is empowered to set the ad valorem tax millage rate for educational purposes and the local legislative body of the municipality does not have the authority to modify such rate set by the board of education, the tax allocation increment shall not be computed on the basis of municipal taxes for educational purposes unless the board of education of the independent school system consents, by resolution duly adopted by said board of education, to the inclusion of educational ad valorem property taxes as a basis for computing tax allocation increments. (b) County ad valorem property taxes may be included in the computation oftax allocation increments of a municipal tax allocation district if the local legislative body of the county consents to such inclusion by resolution duly adopted by said local legislative body. For those municipalities which do not have an independent school system, ad valorem property taxes levied for county school district purposes may be included in the computation of tax allocation increments of a municipal tax allocation district ifthe county board of education or the local legislative body of the county, whichever is authorized to establish the ad valorem tax millage rate for educational purposes, consents to such inclusion by resolution duly adopted by said board of education or local legislative body, respectively. (c) When a tax allocation district is created within the area of operation of a county by the local legislative body ofthe county, property taxes for computing tax allocation increments shall be based on all county ad valorem property taxes levied for county governmental purposes. Ad valorem property taxes levied for county school district purposes may be included in the computation oftax allocation increments for a county tax allocation district if the board of education of the county school district or the local legislative body of the county, whichever is authorized to establish the ad valorem tax millage rate for educational purposes, consents to such inclusion by resolution duly adopted by said board of education or local legislative body, respectively.

172

GENERAL ACTS AND RESOLUTIONS, VOL. I

(d) When a tax allocation district is created within the area of operation of a consolidated government by the local legislative body of the consolidated government, property taxes for computing tax allocation increments shall be based on all consolidated government ad valorem property taxes levied for consolidated government purposes. Ad valorem property taxes levied for school district purposes within the boundaries of the consolidated government may be included in the computation of tax allocation increments for a consolidated government tax allocation district if the board of education of such school district or the local legislative body of the consolidated government, whichever is authorized to establish the ad valorem tax millage rate for educational purposes within the school district, consents to such inclusion by resolution duly adopted by said board of education or local legislative body, respectively. (e) The resolution of any county, municipality, consolidated government or board of education consenting to the inclusion of ad valorem property taxes in the computation of tax increments shall not specify the inclusion of any ad valorem property taxes not specified in the resolution creating the tax allocation district. (f) A county may pledge all or part of county general funds derived from a municipal tax allocation district for payment or security of payment of tax allocation bonds issued by the municipality and for payment of other redevelopment costs of the tax allocation district if the local legislative body of the county consents to the use of such general funds by resolution duly adopted by said local legislative body. (g) Any consent by a local board of education to the inclusion of educational ad valorem property taxes as a basis for computing tax allocation increments and any authorization to use such funds for such purposes that was approved before January 1, 2009, and not rescinded or repealed prior to the effective date of this Code section is ratified and confirmed pursuant to the authority granted by Article IX, Section II, Paragraph VII of the Constitution, as amended by a resolution ratified at the November, 2008 general election, Ga. L. 2008, p. 777, to authorize the use of county, municipal, and school tax funds, or any combination thereof, for redevelopment purposes and programs notwithstanding Article VIII, Section VI or any other provision of the Constitution and regardless of whether any county, municipality, or local board of education approved the use of such tax funds for such purposes and programs before or after January 1, 2009.

36-44-10. (a) No later than the effective date of the creation of the tax allocation district, the redevelopment agency shall apply, in writing, to the state revenue commissioner for a determination of the tax allocation increment base of the tax allocation district. Within a reasonable time, and not exceeding 60 days after the effective date of the creation of the tax allocation district, the state revenue commissioner shall certify such tax allocation increment base, as of the effective date of the creation of the tax allocation district, to the redevelopment agency, and such certification, unless amended pursuant to subsection (b)

GEORGIA LAWS 2009 SESSION

173

of this Code section, shall constitute the tax allocation increment base of the tax allocation district. (b) If the local legislative body of a political subdivision adopts an amendment to the resolution which created a tax allocation district and such amendment changes the boundaries of that tax allocation district so as to cause additional redevelopment costs for which tax allocation increments may be received by the political subdivision, the tax allocation increment base for the revised or amended district shall be redetermined pursuant to subsection (a) of this Code section as of the effective date of such amendment. The tax allocation increment base as redetermined under this subsection is effective for the purposes of this chapter only if it exceeds the original tax allocation increment base determined under subsection (a) of this Code section. (c) It is a rebuttable presumption that any property within a tax allocation district acquired or leased as lessee by the political subdivision, or any agency or instrumentality thereof, within one year immediately preceding the date of the creation of the district was so acquired or leased in contemplation of the creation of the district. The presumption may be rebutted by the political subdivision with proof that the property was so leased or acquired primarily for a purpose other than to reduce the tax allocation increment base. If the presumption is not rebutted, in determining the tax allocation increment base of the district, but for no other purpose, the taxable status of the property shall be determined as though such lease or acquisition had not occurred. (d) For each political subdivision whose area of operation includes a tax allocation district, the county board of tax assessors, joint city-county board of tax assessors, or board of tax assessors for a consolidated government, as the case may be, shall identify upon the tax digests of the political subdivision those parcels ofproperty which are within each existing tax allocation district, specifying the name of each district. A similar notation shall appear on tax digests submitted to the state revenue commissioner pursuant to Code Section 48-5-302, relative to the submission of tax digests to the state revenue commissioner. (e) The county board of tax assessors, joint city-county board of tax assessors, or consolidated government board of tax assessors shall annually give notice to the county tax collector or tax commissioner and to the municipal official responsible for collecting municipal ad valorem property taxes as to both the current taxable value ofproperty subject to ad valorem property taxes within each tax allocation district and the tax allocation increment base. The notice shall also explain that any taxes collected as a result of increases in the tax allocation increment base constitute tax allocation increments and shall be paid to the appropriate political subdivision as provided by subsection (b) of Code Section 36-44-11.

36-44-11. (a) Positive tax allocation increments of a tax allocation district shall be allocated to the political subdivision which created the district for each year from the effective date of the creation of the district until that time when all redevelopment costs and all tax allocation

174

GENERAL ACTS AND RESOLUTIONS, VOL. I

bonds of the district have been paid or provided for, subject to any agreement with bondholders. General funds derived from the tax allocation district which have been pledged for payment or security for payment of tax allocation bonds and other redevelopment costs of the tax allocation district shall also be allocated to the political subdivision which created the district for each year from the effective date of the creation ofthe district until that time when all redevelopment costs and all tax allocation bonds have been paid or provided for, subject to any agreement with bondholders.
(b)( 1) Each county tax collector or tax commissioner, municipal official responsible for collecting municipal ad valorem property taxes, or consolidated government official responsible for collecting consolidated government ad valorem property taxes shall, on the dates provided by law for the payment of taxes collected to the respective political subdivisions, pay over to the appropriate fiscal officer of each political subdivision having created a tax allocation district, out of taxes collected on behalf of such political subdivision, including but not limited to taxes collected for a political subdivision or board of education consenting, pursuant to Code Section 36-44-9, to inclusion of its ad valorem property taxes in the computation of tax allocation increments for that tax allocation district, that portion, ifany, which represents positive tax allocation increments payable to such political subdivision. (2) In addition, each county shall, upon receipt, pay over to the appropriate fiscal officer of each municipality having created a tax allocation district that portion, if any, of its general funds derived from the tax allocation district which have been pledged for payment or security for payment of tax allocation bonds and for payment of other redevelopment costs of the tax allocation district pursuant to Code Section 36-44-9. (c) All positive tax allocation increments received for a tax allocation district shall be deposited into a special fund for the district upon receipt by the fiscal officer ofthe political subdivision. All general funds derived from the tax allocation district which have been pledged for payment or security for payment of tax allocation bonds and other redevelopment costs of the tax allocation district shall be deposited upon receipt into the special fund. Any lease or other contract payments made under the district's redevelopment plan shall also be deposited upon receipt into the special fund. Moneys derived from positive tax allocation increments, general fund moneys, and moneys derived from lease or other contract payments shall be accounted for separately within the special fund. Moneys shall be paid out of the fund only to pay redevelopment costs of the district or to satisfy claims ofholders of tax allocation bonds issued for the district. The local legislative body shall irrevocably pledge all or a part of such special fund to the payment of the tax allocation bonds. The special fund or designated part thereof may thereafter be used only for the payment of the tax allocation bonds and interest until they have been fully paid, and a holder of said bonds shall have a lien against the special fund or said designated part thereof pledged for payment of said bonds and may either at law or in equity protect and enforce the lien. General funds derived from the tax allocation district may be used for payment of tax allocation bonds only to the extent that positive tax allocation increments

GEORGIA LAWS 2009 SESSION

175

and lease or other contract payments in the special fund are insufficient at any time to pay principal and interest due on such bonds. Subject to any agreement with bondholders, moneys in the fund may be temporarily invested in the same manner as other funds of the political subdivision. Except as provided in Code Section 36-44-20, general funds derived from the tax allocation district may be used for payment of tax allocation bonds only to the extent that positive tax allocation increments and lease or other contract payments in the special fund are insufficient at any time to pay the principal and interest due on such bonds. After all redevelopment costs and all tax allocation bonds of the district have been paid or provided for, subject to any agreement with bondholders, ifthere remains in the fund any moneys derived from positive tax allocation increments, they shall be paid over to each county, municipality, consolidated government, or county or independent board of education whose ad valorem property taxes were affected by the tax allocation district in proportion to the aggregate contribution of such taxes by such political subdivision less aggregate payments to such political subdivision pursuant to subparagraph (G) of paragraph (8) of Code Section 36-44-3 and in the same manner as the most recent distribution by the county tax collector or tax commissioner, municipal official responsible for collecting municipal ad valorem property taxes, or consolidated government official responsible for collecting consolidated government ad valorem property taxes. If there remains in the fund any other moneys, they shall be paid over to each political subdivision which contributed to the fund in proportion to the respective total contribution each made to the fund.

36-44-12. The existence of a tax allocation district shall terminate when the local legislative body, by resolution, dissolves the district, but no such resolution may be adopted until all redevelopment costs have been paid.

36-44-13. Payment of redevelopment costs may be made by any of the following methods or any combination thereof:
(l) Payment by the political subdivision from the special fund of the tax allocation district; (2) Payment from the general funds of a political subdivision subject to the limitations of Code Sections 36-44-9 and 36-44-20; (3) Payment out of the proceeds of the sale of revenue bonds issued by the political subdivision pursuant to Chapter 61 of this title, the 'Urban Redevelopment Law,' and revenue bonds may be issued under such law for redevelopment purposes within the meaning of this chapter; (4) Payment out ofthe proceeds of the sale of tax allocation bonds issued by the political subdivision under this chapter;

176

GENERAL ACTS AND RESOLUTIONS, VOL. I

(5) Payment from the proceeds from any loans made to a political subdivision pursuant to the authority of Code Section 36-44-16; and (6) Lease payments and other payments pursuant to contracts under a redevelopment plan.

36-44-14. (a) Only for the purpose of paying redevelopment costs for a tax allocation district created under this chapter, the local legislative body may issue tax allocation bonds. Tax allocation bonds are declared to be negotiable instruments. Tax allocation bonds issued under the provisions ofthis chapter are declared to be issued for an essential public and governmental purpose and, together with interest thereon and income therefrom, shall be exempted from all taxes. (b) All tax allocation bonds, notes, and other obligations shall be authorized by resolution of the local legislative body, adopted by a majority vote of the members thereof at a regular or special meeting and without the necessity of a referendum or any electoral approval. The resolution shall state the name ofthe tax allocation district and the aggregate principal amount of the tax allocation bonds authorized. (c) Tax allocation bonds, notes, or other obligations issued by a local legislative body under this chapter shall be payable solely from the property pledged, mortgaged, conveyed, assigned, hypothecated, or otherwise encumbered to secure or to pay such bonds, notes, or other obligations, which property shall be limited to real or personal property acquired pursuant to this chapter and the proceeds from any source from which redevelopment costs may be paid under Code Section 36-44-13, but subject to the limitations of Code Sections 36-44-9 and 36-44-20. Each such bond, note, or other obligation shall contain recitals as are necessary to show that it is only so payable and that it does not otherwise constitute an indebtedness or a charge against the general taxing power of the political subdivision or county or independent board of education consenting to the use of property taxes as a basis for computing tax allocation increments or consenting to the use of general funds derived from the tax allocation district. (d) To increase the security and marketability of tax allocation bonds, notes, or other obligations, a local legislative body may:
(l) Create a lien for the benefit of the bondholders upon any public improvements or public works financed thereby or the revenues therefrom; and (2) Make covenants and do any and all acts not inconsistent with the Constitution or this chapter as may be necessary or convenient or desirable in order additionally to secure tax allocation bonds, notes, or other obligations or tend to make them more marketable according to the best judgment of the local legislative body. (e) Tax allocation bonds, notes, or other obligations shall bear such date or dates, shall mature at such time or times not more than 30 years from their respective dates, shall bear interest at such rate or rates which may be fixed or may fluctuate or otherwise change from time to time, shall be subject to redemption on such terms, and shall contain such other

GEORGIA LAWS 2009 SESSION

177

terms, provisions, covenants, assignments, and conditions as the resolution authorizing the issuance of such bonds, notes, or other obligations may permit or provide. The terms, provisions, covenants, assignments, and conditions contained in or provided or permitted by any resolution of the local legislative body authorizing the issuance of such tax allocation bonds, notes, or other obligations shall bind the members of the local legislative body then in office and their successors. (f) The local legislative body shall have power from time to time and whenever it deems it expedient to refund any tax allocation bonds by the issuance of new tax allocation bonds, whether or not the bonds to be refunded have matured, and may issue such bonds partly to refund bonds then outstanding and partly for any other purpose permitted under this chapter. The refunding bonds may be exchanged for the bonds to be refunded, with such cash adjustments as may be agreed upon, or may be sold at such price as the local legislative body may determine and the proceeds applied to the purchase or redemption of the bonds to be refunded. (g) Tax allocation bonds may not be issued in an amount exceeding the estimated aggregated redevelopment costs for the tax allocation district. Any limitations with respect to interest rates or any maximum interest rate or rates found in Article 3 of Chapter 82 of this title, the 'Revenue Bond Law,' the usury laws of this state, or any other laws of this state shall not apply to tax allocation bonds, notes, or other obligations of a local legislative body. (h) All tax allocation bonds issued by a local legislative body under this chapter shall be issued and validated under and in accordance with Article 3 of Chapter 82 of this title, the 'Revenue Bond Law,' except as provided in this chapter. (i) Tax allocation bonds issued by a local legislative body may be in such form and may be subject to such exchangeability and transferability provisions as the bond resolution authorizing the issuance of such bonds or any indenture or trust agreement may provide. (j) Tax allocation bonds shall bear a certificate of validation. The signature of the clerk ofthe superior court ofthe county in which the issuing local legislative body is located may be made on the certificate of validation of such bonds by facsimile or by manual execution, stating the date on which such bonds were validated; and such entry shall be original evidence of the fact ofjudgment and shall be received as original evidence in any court in this state. (k) In lieu of specifying the rate or rates of interest which tax allocation bonds to be issued by a local legislative body are to bear, the notice to the district attorney or the Attorney General, the notice to the public of the time, place, and date of the validation hearing, and the petition and complaint for validation may state that the bonds when issued will bear interest at a rate not exceeding a maximum per annum rate of interest, which rate may be fixed or may fluctuate or otherwise change from time to time, specified in such notices and petition and complaint or may state that, in the event the bonds are to bear different rates of interest for different maturity dates, none of such rates will exceed the maximum rate so specified, which rate may be fixed or may fluctuate or otherwise change from time to

178

GENERAL ACTS AND RESOLUTIONS, VOL. I

time; provided, however, that nothing in this Code section shall be construed as prohibiting or restricting the right of a local legislative body to sell such tax allocation bonds at a discount, even if in doing so the effective interest cost resulting therefrom would exceed the maximum per annum interest rate specified in such notices and in the petition and complaint. (I) The term 'redevelopment costs' shall have the meaning prescribed in this chapter whenever that term is referred to in tax allocation bond resolutions of a local legislative body, in tax allocation bonds, notes, or other obligations of a local legislative body, or in notices or proceedings to validate such bonds, notes, or other obligations of a local legislative body. (m) Subject to the limitations and procedures provided by this chapter, the agreements or instruments executed by a local legislative body may contain such provisions not inconsistent with law as shall be determined by the local legislative body. (n) The proceeds derived from the sale of all tax allocation bonds, notes, and other obligations issued by a local legislative body shall be held and used for the ultimate purpose of paying, directly or indirectly as permitted in this chapter, redevelopment costs or for the purpose of refunding any tax allocation bonds, notes, or other obligations issued in accordance with this chapter. (o) Issuance by a local legislative body of one or more series of tax allocation bonds, notes, or other obligations for one or more purposes shall not preclude it from issuing other tax allocation bonds, notes, or other obligations in connection with the same redevelopment plan or with any other redevelopment plan; but the proceeding wherein any subsequent bonds, notes, or other obligations are issued shall recognize and protect any prior loan agreement, mortgage, deed to secure debt, trust deed, security agreement, or other agreement or instrument made for any prior issue of bonds, notes, or other obligations, unless in the resolution authorizing such prior issue the right is expressly reserved to the local legislative body to issue subsequent bonds, notes, or other obligations on a parity with such prior issue. Once the political subdivision certifies by resolution that all tax allocation bonds contemplated by the redevelopment plan and all amendments thereto have been issued and all other redevelopment costs within a tax allocation district have been paid, all positive tax allocation increments collected within a tax allocation district shall be used to retire outstanding tax allocation bonds prior to their stated maturities, subject to any agreements made by the political subdivision with bondholders. (p) A local legislative body shall have the power and is authorized, whenever tax allocation bonds of the local legislative body shall have been validated as provided in this chapter, to issue from time to time its notes in anticipation of such bonds as validated and to renew from time to time any such notes by the issuance of new notes, whether or not the notes to be renewed have matured. The local legislative body may issue such bond anticipation notes only to provide funds which would otherwise be provided by the issuance of the bonds as validated. Such notes may be authorized, sold, executed, and delivered in the same manner as bonds. As with its bonds, the local legislative body may

GEORGIA LAWS 2009 SESSION

179

sell such notes at public sale or at private sale. Any resolution or resolutions authorizing such notes of the local legislative body or any issue thereof may contain any provisions which the local legislative body is authorized to include in any resolution or resolutions authorizing bonds ofthe local legislative body to any issue thereof; and the local legislative body may include in any such notes any terms, covenants, or conditions which the local legislative body is authorized to include in any bonds. Validation of such bonds shall be a condition precedent to the issuance of such notes, but it shall not be required that such notes be judicially validated. Bond anticipation notes shall not be issued in an amount exceeding the par value of the bonds in anticipation of which they are to be issued.

36-44-15. For the purpose of fixing the tax millage rate to fund the annual budget of each political subdivision or county or independent board of education having the power to levy taxes or set ad valorem tax millage rates on property located within a tax allocation district, which has consented to the inclusion of its ad valorem property taxes for the computation of tax allocation increments as provided in Code Section 36-44-9, the taxable value of property subject to ad valorem property taxes within a tax allocation district shall not exceed the tax allocation increment base of the district until the district is terminated. Nothing in this chapter shall be construed to freeze the ad valorem tax millage rate of any political subdivision or county or independent board of education consenting to the inclusion of its ad valorem property taxes as a basis for computing tax allocation increments, and any such rate may be increased or decreased at any time after the creation of a tax allocation district in the same manner and under the same authority that such rate has been previously fixed by such political subdivision or county or independent board of education.

36-44-16. As an additional source for financing redevelopment costs, a political subdivision or its redevelopment agency may borrow funds from financial institutions and, in connection therewith, may pledge or assign lease contracts or revenue received from lease contracts on property owned by the political subdivision or its redevelopment agency within a redevelopment area. A political subdivision or its redevelopment agency is authorized to enter into contracts with financial institutions for the purpose of exercising the authority provided by this Code section, and such contracts may obligate the political subdivision or its redevelopment agency for any number of years not exceeding 25. Contractual obligations incurred by a political subdivision pursuant to this Code section shall not constitute debt within the meaning of Article IX, Section V of the Constitution.

36-44-17. No political subdivision may create a tax allocation district when the total current taxable value of property subject to ad valorem property taxes within the proposed district plus the total current taxable value of property subject to ad valorem property taxes within all its

180

GENERAL ACTS AND RESOLUTIONS, VOL. I

existing tax allocation districts exceeds I0 percent of the total current taxable value of all taxable property located within the area of operation of the political subdivision.

36-44-18. It is specifically provided that Code Section 36-61-16 of the 'Urban Redevelopment Law,' which Code section provides for cooperation among public bodies for redevelopment purposes under said law, shall be applicable to the exercise of redevelopment powers provided by this chapter.

36-44-19. A political subdivision may enter into any contract relating to the exercise of its redevelopment powers under this chapter with any private persons, firms, corporations, or business entities for any period not exceeding 30 years. Such contracts may include, without being limited to, contracts to convey or otherwise obligate real property for redevelopment under this chapter although that property has not yet been acquired at the time of contracting by the county or municipality.

36-44-20. (a) Notwithstanding any other provisions of this chapter, a local legislative body may use, pledge, or otherwise obligate its general funds for payment or security for payment of tax allocation bonds issued or incurred under this chapter but only if those general funds are derived from a designated tax allocation district and used for payment or security for payment of tax allocation bonds issued or incurred under this chapter for redevelopment of that district and only to the extent that positive tax increments or lease or other contract payments in that district's special fund are insufficient at any time to pay principal and interest due on such bonds. (b) The requirement of insufficiency provided for in subsection (a) of this Code section may be satisfied by adoption of a resolution of the local legislative body finding that positive tax increments or lease or other contract payments in the district's special fund will be insufficient to pay principal and interest on bonds to be issued to finance redevelopment costs for the redevelopment described in the redevelopment plan.

36-44-21. (a) No elected or appointed official or employee of a political subdivision or a board, commission, or redevelopment agency thereof shall voluntarily acquire any interest, direct or indirect, in any property included or planned to be included in a redevelopment area, or in any contract or transaction or proposed contract or transaction in connection with the redevelopment of that redevelopment area. Where such acquisition is not voluntary, the interest acquired shall be immediately disclosed in writing to the local legislative body and such disclosure shall be entered upon the minutes of the local legislative body. Any such elected or appointed official or employee who, within two years immediately prior to the

GEORGIA LAWS 2009 SESSION

181

date the plan is submitted to a local legislative body under subsection (b) of Code Section 36-44-7, acquires ownership or control of any interest, direct or indirect, in any property which is included in the redevelopment area designated in that plan and who retains that ownership or control at the time that such plan is so submitted shall, at least 30 days prior to the date scheduled for the local legislative body to adopt the plan, disclose the interest in writing to the local legislative body and such disclosure shall be entered upon the minutes of the local legislative body, and that person shall not participate in any action by the political subdivision, board, commission, or redevelopment agency thereof which affects that property. Any disclosure required to be made by this subsection shall concurrently be made to the redevelopment agency. (b) Any contract or transaction in violation of subsection (a) of this Code section or disclosure of which is not made as provided in that subsection (a) shall be voidable by the local legislative body. This subsection shall not apply to any indenture, agreement, contract, or transaction which constitutes security, direct or indirect, for payment of bonds or other obligations incurred pursuant to a redevelopment plan, and the judgment and order confirming and validating any such bonds or other obligations shall constitute a final and conclusive adjudication as to any such security. (c) Failure by an official or employee to comply with subsection (a) of this Code section shall constitute misconduct in office.

36-44-22. Redevelopment powers under this chapter may not be exercised by any political subdivision unless so authorized by a local law relating thereto, which local law may limit but may not expand those redevelopment powers established by this chapter as to the local political subdivision to which the local law is applicable. Such local law, and all amendments thereto, shall become effective only if approved in a special election by a majority ofthe qualified voters voting ofeach political subdivision directly affected, which special election shall be held as provided in that local law, but in conformity with the requirements for special elections pursuant to Title 21.

36-44-23. The powers provided by this chapter are intended by the General Assembly to be cumulative and supplemental to any powers heretofore provided by law for counties, municipalities, and consolidated governments of this state and not in lieu of any such heretofore existing powers."

SECTION 3. Said title is further amended in Chapter 80, relating to general provisions regarding counties, municipalities, and other governmental entities, by adding a new Code section to read as follows:

182

GENERAL ACTS AND RESOLUTIONS, VOL. I

'36-80-16.1. (a) This Code section shall be known and may be cited as the 'PILOT Restriction Act.' (b) As used in this Code section, 'payments in lieu of taxes' means payments made directly or indirectly:
(l) Primarily in consideration of the issuance of revenue bonds or other revenue obligations and the application by the issuer of such bonds or other obligations of the proceeds of such bonds or other obligations to finance all or a portion of the costs of acquiring, constructing, equipping, or installing a capital project; and (2) In further consideration of the laws of the State of Georgia granting an exemption from ad valorem taxation for such capital project, to or for the account of the issuer of revenue bonds or other revenue obligations or the public bodies whose consent would otherwise be required, in the case of the separate payments provided for under subsection (d) of this Code section. Payments in lieu of taxes shall be deemed to be payments in lieu of taxes for educational purposes in the same proportion that property taxes for educational purposes would bear to total property taxes on such capital project if the project were subject to ad valorem property taxation. The term 'payments in lieu oftaxes' shall not include payments made primarily in consideration for the use or occupancy of property, including but not limited to lease payments or rent paid under a lease, regardless of whether or not the lessee or tenant holds an interest that is taxable for property tax purposes. (c)(l) No local government authority, as defined in Code Section 36-80-16, shall be authorized to issue revenue bonds or other revenue obligations to finance, in whole or in part, any capital project if the terms governing such revenue bonds or other revenue obligations provide for such capital project to be used primarily by a nongovernmental user or users that have no taxable property interest in any portion of such capital project and provide for such revenue bonds or other revenue obligations to be repaid, in whole or in part, through payments in lieu of taxes made by a nongovernmental user or users, unless:
(A) Each of the local governments that have property tax levying authority in the area in which such capital project is located consents by ordinance or resolution to the use of payments in lieu of taxes for such purposes; and (B) In the case of payments in lieu of taxes for educational purposes, a consent is obtained that covers the use for such purposes of such payments in accordance with subsection (d) ofthis Code section, except that the terms governing such revenue bonds or other revenue obligations may provide for one or more of the public bodies, whose consent would otherwise be required, instead to receive, in such capacity, separate payments in lieu of taxes at least equal to the property taxes that such public body or bodies would have received if the capital project were subject to ad valorem taxation or in such other amount or amounts as may be agreed to by such public body or bodies. (2) No such revenue bonds or other revenue obligations may be so issued without compliance with the requirements of paragraph (1) of this subsection.

GEORGIA LAWS 2009 SESSION

183

(d)(1) When a capital project is located within the boundaries of a municipality with an independent school system, a consent by the municipality under subparagraph (c)( 1}(B) of this Code section shall cover the use of payments in lieu of taxes for educational purposes, provided that, if the board of education of the independent school system is empowered to set the ad valorem tax millage rate for educational purposes and the legislative body of the municipality does not have the authority to modify such rate set by the board of education, the requisite consent shall be that of the board of education of the independent school system rather than that ofthe legislative body of the municipality. (2) For those municipalities which do not have an independent school system, a consent by the municipality under subparagraph (c)( 1)(B) of this Code section shall cover the use of payments in lieu of taxes for educational purposes if the county board of education or the local legislative body of the county, whichever is authorized to establish the ad valorem tax millage rate for educational purposes, consents to such coverage by resolution duly adopted by said board of education or local legislative body, as appropriate. (3) The use of payments in lieu of taxes levied for county school district purposes shall be covered by a consent under subparagraph (c)(1 )(B) of this Code section if the board of education of the county school district or the local legislative body of the county, whichever is authorized to establish the ad valorem tax millage rate for educational purposes, consents to such coverage by resolution duly adopted by said board of education or local legislative body, as appropriate. (4) The use of payments in lieu of taxes levied for school district purposes within the boundaries of a consolidated government shall be covered by a consent under subparagraph (c)(l)(B) of this Code section if the board of education of such school district or the local legislative body of the consolidated government, whichever is authorized to establish the ad valorem tax millage rate for educational purposes within the school district, consents to such coverage by resolution duly adopted by said board of education or local legislative body, as appropriate. (e) This Code section shall not affect revenue bonds or other revenue obligations which any local government authority has issued or which have been judicially validated on or before the effective date of this Code section. Each county board of tax assessors shall continue, notwithstanding this Code section, to exercise its powers and discharge its duties and is specifically authorized, without limitation, to use a method or methods of valuation for leases related to revenue bonds or other revenue obligations issued by a local government authority for a capital project or projects to be leased primarily to a nongovernmental user or users, based on assessments of the increasing interest of the nongovernmental user or users in the real or personal property, or both, over the term of the lease, or to use a simplified method or methods employing a specified percentage or specified percentages of such leasehold interests. Each local government authority that is authorized to issue revenue bonds or other revenue obligations secured by a taxable property interest, such as a taxable lease of a capital project, shall continue,

184

GENERAL ACTS AND RESOLUTIONS, VOL. I

notwithstanding this Code section, to exercise its powers and discharge its duties, including, in the case of development authorities, the development of trade, commerce, industry, and employment opportunities. Any local government or local government authority which directly or indirectly receives payments in lieu of taxes shall be authorized to use the same for any governmental or public purpose of such local government or local government authority."

SECTION 4. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 5. All laws and parts of laws in conflict with this Act are repealed.

Approved April 22, 2009.

HEALTH- MILITARY- PROFESSIONS- INFLUENZA VACCINE; HEALTH CARE WORKERS; PANDEMIC EMERGENCY.
No. 53 (House Bill No. 217).
AN ACT
To amend Article 2 of Chapter 34 of Title 43 of the Official Code of Georgia Annotated, relating to physicians, so as to authorize the use of influenza vaccine orders for a group of patients; to provide for influenza vaccine protocol agreements between physicians and pharmacists or nurses; to provide for definitions; to provide requirements for the content of influenza vaccine protocol agreements; to provide that a party to an influenza vaccine protocol agreement shall not delegate his or her authority; to provide for statutory construction; to provide for policies for handling used equipment; to limit the number of influenza vaccine protocol agreements in which a physician may enter at any one time; to prohibit certain entities from entering into influenza vaccine protocol agreements; to provide for rules and regulations; to provide for limited liability; to provide for applicability; to amend Article I of Chapter 7 of Title 31 of the Official Code of Georgia Annotated, relating to regulation of hospitals and related institutions, so as to provide for vaccinations or other measures for health care workers in hospitals; to provide for statutory construction; to amend Chapter 3 of Title 38 of the Official Code of Georgia Annotated, relating to emergency management, so as to provide for emergency powers of the Governor in the event of a

GEORGIA LAWS 2009 SESSION

185

pandemic influenza emergency; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Article 2 of Chapter 34 of Title 43 of the Official Code of Georgia Annotated, relating to physicians, is amended by adding a new Code section to read as follows:
, 43-34-26.4. (a) As used in this Code section, the term:
(1) 'Administer' means the provision of a unit dose of influenza vaccine by a pharmacist or nurse pursuant to an influenza vaccine order contained in an influenza vaccine protocol agreement with a physician. (2) 'Adverse event' means an event that is a negative consequence of the administration of influenza vaccine by a pharmacist or nurse that results in an unintended reaction, injury, or illness, which may or may not have been preventable. (3) 'Board' means the Composite State Board of Medical Examiners. (4) 'Influenza vaccine' means a vaccine administered by injection that contains inactivated influenza viruses that is prepared for the applicable season and that is administered to produce or increase immunity to the influenza virus. (5) 'Influenza vaccine order' means a prescription drug order, contained in an influenza vaccine protocol agreement, for influenza vaccine issued by a physician for a group of patients that meet a certain criteria and to be administered by a pharmacist or a nurse. An influenza vaccine order shall also mean a prescription drug order, contained in an influenza vaccine protocol agreement, for epinephrine issued by a physician for a group of patients that meet a certain criteria and to be administered by a pharmacist or a nurse only upon the occurrence of an actual or perceived anaphylactic adverse reaction to the administered influenza vaccine provided that the influenza vaccine protocol agreement sets forth the signs and symptoms that warrant the administration of epinephrine. (6) 'Influenza vaccine protocol agreement' means a written document mutually agreed upon and signed by a physician and a pharmacist or by a physician and a nurse, by which document the physician prescribes influenza vaccine and epinephrine, if determined appropriate by the physician, by means of an influenza vaccine order for administration by a pharmacist or a nurse. (7) 'Nurse' means a registered professional nurse as defined in paragraph (9) of Code Section 43-26-3. The term shall also mean a licensed practical nurse as defined in paragraph (5) of Code Section 43-26-32 who is regularly employed by a physician who actively engaged in the private practice of medicine. (8) 'Pharmacist' means an individual licensed under Chapter 4 of Title 26 to engage in the practice of pharmacy in the State of Georgia.

186

GENERAL ACTS AND RESOLUTIONS, VOL. I

(9) 'Pharmacy intern' means a pharmacy intern as defined in paragraph (19) of Code Section 26-4-5. (l 0) 'Physician' means an individual licensed to practice medicine and surgery pursuant to this article and whose principal place of practice is located in this state. (b) A physician engaged in the active practice ofmedicine may prescribe influenza vaccine for a group of patients via an influenza vaccine order contained in an influenza vaccine protocol agreement to be administered by a pharmacist, provided the physician is registered with the vaccination registry established by the Department of Human Resources pursuant to Code Section 31-12-3 .I, commonly known as the Georgia Registry of Immunization Transactions and Services, the pharmacist is located within the county of the physician's place of registration with the vaccination registry or a county contiguous thereto, and the pharmacist holds current certification in Basic Cardiac Life Support and has completed a course of training accredited by the Accreditation Council for Pharmacy Education or similar health authority or professional body approved by the Georgia State Board of Pharmacy. A physician who is a party to an influenza vaccine protocol agreement may also prescribe epinephrine via an influenza vaccine order contained in an influenza vaccine protocol agreement for administration by a pharmacist upon the occurrence of an actual or perceived anaphylactic adverse reaction to the administered influenza vaccine provided that the influenza vaccine protocol agreement sets forth the signs and symptoms that warrant the administration of epinephrine. (c) A physician engaged in the active practice ofmedicine may prescribe influenza vaccine for a group of patients via an influenza vaccine order contained in an influenza vaccine protocol agreement to be administered by a nurse, provided the physician is registered the vaccination registry established by the Department of Human Resources pursuant to Code Section 31-12-3.1, commonly known as the Georgia Registry of Immunization Transactions and Services, the nurse is located within the county of the physician's place of registration with the vaccination registry or a county contiguous thereto, and the nurse holds current certification in Basic Cardiac Life Support. A physician who is a party to an influenza vaccine protocol agreement may also prescribe epinephrine via an influenza vaccine order contained in an influenza vaccine protocol agreement for administration by a nurse upon the occurrence of an actual or perceived anaphylactic adverse reaction to the administered influenza vaccine provided that the influenza vaccine protocol agreement sets forth the signs and symptoms that warrant the administration of epinephrine. (d) An influenza vaccine protocol agreement between a physician and a pharmacist or a physician and a nurse pursuant to this Code section shall, without limitation: (1) Contain the current names, addresses, telephone numbers, and professional license numbers of the physician and the pharmacist or nurse; (2) Contain a provision for immediate consultation between the pharmacist or nurse and the physician. If the physician is not available, the physician for purposes of consultation may designate another physician who concurs with the terms of the influenza vaccine protocol agreement;

GEORGIA LAWS 2009 SESSION

187

(3) Require the pharmacist or nurse to provide the influenza vaccine recipient with the appropriate and current Vaccine Information Statement (VIS) as provided by the federal Centers for Disease Control and Prevention; (4) Require the pharmacist or nurse or his or her employer to retain documentation of each dose of influenza vaccine administered. Such documentation shall include, but not be limited to:
(A) The administering pharmacist's or nurse's name, address, telephone number, and professional license number; (B) The name, dose, manufacturer, and lot number of the influenza vaccine; (C) The vaccine recipient's name, address, date of birth, and telephone number; (D) The date of administration and injection site; (E) A signed and dated consent form by which the vaccine recipient acknowledges receipt of the VIS and consents to the administration of the influenza vaccine; and (F) Any adverse events or complications that occur; (5) Require the pharmacist or nurse to enter the patient's influenza vaccine information in the Georgia Registry oflmmunization Transactions and Services within the registry's designated time frame, or as designated by the Department of Human Resources; (6) Require, as a condition of administration of the influenza vaccine, the influenza vaccine recipient to remain under the observation of the administering pharmacist or nurse for a period of not less than 15 minutes immediately subsequent to the administration of the influenza vaccine; (7) Contain procedures to follow up on the occurrence of an adverse event or complication including, if prescribed via an influenza vaccine order contained in an influenza vaccine protocol agreement, the administration of epinephrine; (8) Provide for prioritization of influenza vaccine recipients in the event the supply of influenza vaccine is limited; and (9) Be renewed and, if necessary, revised or updated biennially by the physician and the pharmacist or nurse. An influenza vaccine protocol agreement that is not renewed biennially shall expire. (e) A pharmacist that is a party to an influenza vaccine protocol agreement pursuant to this Code section shall not delegate the administration of influenza vaccine to any individual other than a pharmacy intern under the direct supervision of the pharmacist whether or not any such other individual is under the supervision, direct or otherwise, of the pharmacist. (f) A nurse that is a party to an influenza vaccine protocol agreement pursuant to this Code section shall not delegate the administration ofinfluenza vaccine to any individual, whether or not any such individual is under the supervision, direct or otherwise, of the nurse; provided, however, notwithstanding the requirement of employment by a physician in paragraph (7) of subsection (a) of this Code section at a registered professional nurse that is a party to an influenza protocol agreement pursuant to this Code section may delegate the administration of influenza vaccine to a licensed practical nurse under the direct on-site supervision of the registered professional nurse.

188

GENERAL ACTS AND RESOLUTIONS, VOL. I

(g) Notwithstanding any law to the contrary, a nurse acting pursuant to an influenza vaccine protocol agreement as provided in this Code section may possess and transport influenza vaccine and epinephrine. (h) A pharmacist or nurse administering influenza vaccines pursuant to an influenza vaccine protocol agreement authorized by this Code section shall maintain policies and procedures for the handling and disposal of used or contaminated equipment and supplies. (i) Nothing in this Code section shall be construed to authorize a physician to prescribe any vaccines or other drugs pursuant to an influenza vaccine protocol agreement or influenza vaccine order contained in an influenza vaccine protocol agreement other than influenza vaccines and epinephrine. U) A delegating physician may not enter into an influenza vaccine protocol agreement with more than ten pharmacists or nurses, or any combination thereof, at any one time; provided, however, and notwithstanding the geographic limitations provided in subsections (b) and (c) of this Code section, a delegating physician may enter into an influenza vaccine protocol agreement with more than ten pharmacists or nurses, or any combination thereof, at any one time so long as the pharmacists or nurses are in the same public health district as established pursuant to Code Section 31-3-15, and are employees or agents of the same corporate entity. (k) It shall be unlawful for a physician who is employed by a pharmacist or nurse to enter into an influenza vaccine protocol agreement or otherwise delegate medical acts to such pharmacist or nurse. It shall be unlawful for a physician who is employed by a pharmacy to enter into an influenza vaccine protocol agreement or otherwise delegate medical acts to a pharmacist or nurse who is also employed by such pharmacy. (I) The board shall have the authority to promulgate rules and regulations governing a physician who is a party to an influenza vaccine protocol agreement in order to carry out the intent and purposes of this Code section. Further, the board shall:
(1) Require that the influenza vaccine protocol agreement be filed by the physician with the board and be made available by the board for public inspection; and (2) Promulgate by rule an approved standard protocol template that may be utilized as an influenza vaccine protocol agreement and make such template available on the board's website. (m) Nothing in this Code section shall be construed to require a physician to enter into an influenza vaccine protocol agreement. A public or private managed care system, health plan, hospital, insurance company, or similar entity shall not require a physician, pharmacist, or nurse to enter into an influenza vaccine protocol agreement as a condition for participation in or reimbursement from such entity. (n) No physician who complies with the provisions of this Code section shall be subject to criminal or civil liability or discipline for unprofessional conduct for: (1) Entering into an influenza vaccine protocol agreement with a pharmacist or nurse; (2) Issuing an influenza vaccine order contained in an influenza vaccine protocol agreement with a pharmacist or nurse; or

GEORGIA LAWS 2009 SESSION

189

(3) The acts or omissions of a pharmacist or nurse pursuant to an influenza vaccine protocol agreement including the administration of influenza vaccine or epinephrine. Nothing in this subsection shall be interpreted as altering liability of an employer for acts of his or her employees. (o) This Code section shall not apply to any activities conducted within a hospital or within any other facility or entity owned, operated, or leased by a hospital. (p) This Code section shall not be interpreted as limiting the authority of any authorized person to dispense or administer influenza vaccine or other medications. (q) No influenza vaccine protocol agreement entered into pursuant to this Code section shall permit a pharmacist or nurse to administer an influenza vaccine to any child under the age of 13 without an individual prescription from a physician, and consent of the child's parent or legal guardian shall be a condition precedent to the administration ofan influenza vaccine to a child under the age of 18:

SECTION 2. Article I of Chapter 7 of Title 31 of the Official Code of Georgia Annotated, relating to regulation ofhospitals and related institutions, is amended by revising Code Section 31-7-18, relating to influenza vaccinations for discharged patients aged 65 and older, as follows:
'31-7-18. (a) Prior to discharging any inpatient who is 65 years of age or older, a hospital shall offer the inpatient vaccinations for the influenza virus and pneumococcal disease in accordance with the recommendations of the Centers for Disease Control and Prevention and any applicable rules and regulations of the department, unless contraindicated and contingent on availability of such vaccine. A hospital may offer other patients such vaccinations in accordance with the recommendations of the Centers for Disease Control and Prevention and any applicable rules and regulations of the department. The vaccinations may be administered pursuant to a standing order that has been approved by the hospital's medical staff. (b) A hospital may offer to its health care workers any vaccination, test, or prophylactic measure required or recommended by, and in accordance with, the recommendations ofthe Centers for Disease Control and Prevention pursuant to standing orders approved by the hospital's medical staffto ensure the safety ofemployees, patients, visitors, and contractors. (c) A hospital or health care provider acting in good faith and in accordance with generally accepted health care standards applicable to such hospital or health care provider shall not be subject to administrative, civil, or criminal liability or to discipline for unprofessional conduct for complying with the requirements of this Code section. (d) Nothing in this Code section shall restrict or limit the use of standing orders in hospitals for any other lawful purpose.'

190

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 3. Chapter 3 of Title 38 of the Official Code of Georgia Annotated, relating to emergency management, is amended in Code Section 38-3-3, relating to definitions, by adding a new paragraph to read as follows:
'(4.1) 'Pandemic influenza emergency' means the declaration by the World Health Organization of at least a Phase 5 Pandemic Alert for influenza occurring in the United States or the State of Georgia or the declaration by the Centers for Disease Control and Prevention of at least a Category 2 Pandemic Severity Index for influenza occurring in the United States or the State of Georgia."

SECTION 4. Said chapter is further amended in Code Section 38-3-51, relating to emergency powers of the Governor, by revising subsection (a) as follows:
'(a) In the event of actual or impending emergency or disaster of natural or human origin, or pandemic influenza emergency, or impending or actual enemy attack, or a public health emergency, within or affecting this state or against the United States, the Governor may declare that a state of emergency or disaster exists. As a condition precedent to declaring that a state of emergency or disaster exists as a result of a public health emergency, the Governor shall issue a call for a special session of the General Assembly pursuant to Article V, Section II, Paragraph VII of the Constitution of Georgia, which session shall convene at 8:00 A.M. on the second day following the date of such declaration for the purpose of concurring with or terminating the public health emergency. The state of emergency or disaster shall continue until the Governor finds that the threat or danger has passed or the emergency or disaster has been dealt with, to the extent that emergency or disaster conditions no longer exist, and terminates the state of emergency or disaster. No state of emergency or disaster may continue for longer than 30 days unless renewed by the Governor. The General Assembly by concurrent resolution may terminate a state of emergency or disaster at any time. Thereupon, the Governor shall by appropriate action end the state of emergency or disaster."

SECTION 5. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 6. All laws and parts of laws in conflict with this Act are repealed.

Approved April28, 2009.

GEORGIA LAWS 2009 SESSION

191

EDUCATION- ANNUAL STUDENT PHYSICAL FITNESS ASSESSMENT.

No. 54 (House Bill No. 229).

AN ACT

To amend Part 3 of Article 16 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to the health of students in elementary and secondary education, so as to require local school systems to conduct an annual fitness assessment and to comply with state physical education instruction requirements; to provide for reporting of results; to provide for an annual report to the Governor; to provide for a recognition program; to provide for automatic repeal; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Part 3 of Article 16 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to the health of students in elementary and secondary education, is amended by adding a new Code section to read as follows:
'20-2-776. (a)(l) Beginning in the 2011-2012 school year, each local school system shall conduct an annual fitness assessment program, as approved and funded by the State Board of Education, one time each school year for students in grades one through 12, to be conducted only during a physical education course that is taught by a certificated physical education teacher in which a student is enrolled. Such assessments shall include methods deemed by the State Board of Education as appropriate to ascertain levels of student physical fitness. Each local school system shall report the individual results ofthe fitness assessment to the parent or guardian of each student assessed and the aggregate results of the fitness assessments by school to the State Board of Education annually in a format approved and funded by the State Board of Education. The minimum required contents of the report shall be determined by the State Board of Education. (2) Each local school system shall be required to provide at least the minimum instruction in physical education prescribed by the State Board of Education in rules and regulations established pursuant to subsection (c) of Code Section 20-2-142.
(b) The State Board of Education shall be responsible for the coordination of health and physical education and fitness activities and requirements, including, but not limited to, modification or promulgation of rules and regulations related thereto. The State Board of Education shall adopt and disseminate to local school systems standards which adequately express the most current and widely accepted best practices and benchmarks in the areas

192

GENERAL ACTS AND RESOLUTIONS, VOL. I

of student health and physical education. The State Board of Education's efforts may be supported with state, federal, or private funding or a combination thereof. (c) The State Board of Education shall submit an annual report to the Governor, beginning October 1, 2012, and annually thereafter. Such report shall include the compliance status of each local school system and each school with applicable State Board ofEducation rules and regulations. The Governor may, in coordination with the State Board of Education, establish one or more recognition programs to acknowledge local school systems and schools which have most improved in their physical fitness assessments. The Governor may collaborate with private corporations in the development and implementation of recognition programs pursuant to this subsection, including providing monetary or other incentives to local school systems or schools for attaining certain levels ofhealth status. All local school systems or schools receiving acknowledgment through a recognition program established by the Governor pursuant to this subsection shall also be recognized on the State Board of Education's website. (d) This Code section, except for subsection (b), shall be repealed on June 30,2019:

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved April 28, 2009.

CRIMINAL PROCEDURE- PENAL INSTITUTIONSVICTIM, FAMILY, AND WITNESS INPUT; HEARINGS NOTIFICATION.
No. 55 (Senate Bill No. 151).
AN ACT
To amend Code Section 17-10-1.2 and Article 2 of Chapter 9 of Title 42 of the Official Code of Georgia Annotated, relating to an oral victim impact statement and grants of pardons, paroles, and other relief, respectively, so as to provide courts and the State Board of Pardons and Paroles greater input from crime victims, their families, and other interested witnesses; to provide for a definition; to provide for victim notification of parole board hearings; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

GEORGIA LAWS 2009 SESSION

193

SECTION 1. Code Section 17-10-1.2 ofthe Official Code ofGeorgia Annotated, relating to an oral victim impact statement, is amended by revising subsection (a) as follows:
'(a)(!) In all cases in which the death penalty may be imposed, subsequent to an adjudication of guilt and in conjunction with the procedures in Code Section 17-10-30, the court shall allow evidence from the family ofthe victim, or such other witness having personal knowledge of the victim's personal characteristics and the emotional impact of the crime on the victim, the victim's family, or the community. Except as provided in paragraph (4) of this subsection, such evidence shall be given in the presence of the defendant and of the jury and shall be subject to cross-examination. (2) The admissibility of the evidence described in paragraph (1) of this subsection and the number of witnesses other than immediate family who may testify shall be in the sole discretion of the judge and in any event shall be permitted only in such a manner and to such a degree as not to inflame or unduly prejudice the jury. As used in this paragraph, the term 'immediate family' means the victim's spouse, child, parent, stepparent, grandparent, grandchild, sibling, stepbrother, stepsister, mother-in-law, father-in-law, sister-in-law, or brother-in-law and the spouses of any such individuals. (3) In all cases other than those in which the death penalty may be imposed, prior to fixing of the sentence as provided for in Code Section 17-10-1 or the imposing of life imprisonment as mandated by law, and before rendering the appropriate sentence, including any order of restitution, the court shall allow evidence from the victim, the family of the victim, or such other witness having personal knowledge of the impact of the crime on the victim, the family of the victim, or the community. Except as provided in paragraph (4) of this subsection, such evidence shall be given in the presence of the defendant and shall be subject to cross-examination. The admissibility of the evidence described in this paragraph shall be in the sole discretion of the judge and in any event shall be permitted only in such a manner as to allow for cross-examination by the defendant and to such a degree as not to unduly prejudice the defendant. (4) Upon a finding by the court specific to the case and the witness that the witness would not be able to testify in person without showing undue emotion or that testifying in person will cause the witness severe physical or emotional distress or trauma, evidence presented pursuant to this subsection may be in the form of, but not limited to, a written statement or a prerecorded audio or video statement, provided that such witness is subject to cross-examination and the evidence itself will not be available to the jury during deliberations. Photographs of the victim may be included with any evidence presented pursuant to this subsection:

SECTION 2. Article 2 of Chapter 9 of Title 42 of the Official Code of Georgia Annotated, relating to grants of pardons, paroles, and other relief, is amended by revising Code Section 42-9-43,

194

GENERAL ACTS AND RESOLUTIONS, VOL. I

relating to information to be considered by the board, conduct of investigation and examination, and determination as to grant of relief, as follows:
"42-9-43. (a) The board, in considering any case within its power, shall cause to be brought before it all pertinent information on the person in question. Included therein shall be:
(1) A report by the superintendent, warden, or jailer of the jail or state or county correctional institution in which the person has been confined upon the conduct ofrecord of the person while in such jail or state or county correctional institution; (2) The results of such physical and mental examinations as may have been made of the person; (3) The extent to which the person appears to have responded to the efforts made to improve his or her social attitude; (4) The industrial record of the person while confined, the nature of his or her occupations while so confined, and a recommendation as to the kind of work he or she is best fitted to perform and at which he or she is most likely to succeed when and if he or she is released; (5) The educational programs in which the person has participated and the level of education which the person has attained based on standardized reading tests; and (6) The written, oral, audiotaped, or videotaped testimony of the victim, the victim's family, or a witness having personal knowledge of the victim's personal characteristics. (b) The board may also make such other investigation as it may deem necessary in order to be fully informed about the person. (c) Before releasing any person on parole, the board may have the person appear before it and may personally examine him or her. Thereafter, upon consideration, the board shall make its findings and determine whether or not such person shall be granted a pardon, parole, or other relief within the power of the board; and the board shall determine the terms and conditions thereof. Notice ofthe determination shall be given to such person and to the correctional official having him or her in custody. (d) If a person is granted a pardon or a parole, the correctional officials having the person in custody, upon notification thereof, shall inform him or her of the terms and conditions thereof and shall, in strict accordance therewith, release the person. (e) The board shall send written notification of the parole decision to the victim or, if the victim is no longer living, to the family of the victim."

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April 29, 2009.

GEORGIA LAWS 2009 SESSION

195

CRIMINAL PROCEDURE- SERIOUS MENTAL AND EMOTIONAL TRAUMA.

No. 56 (Senate Bill No. 172).

AN ACT

To amend Chapter 15 of Title 17 of the Official Code of Georgia Annotated, relating to victim compensation, so as to provide for recovery for serious mental and emotional trauma; to update legislative intent; to change definitions and provide for a new definition; to change provisions related to filing ofclaims; to change provisions relating to investigations; to revise the characteristics ofpersons eligible for awards; to change provisions relating to the board's required findings and effective dates for certain awards; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Chapter 15 of Title 17 of the Official Code of Georgia Annotated, relating to victim compensation, is amended by revising Code Section 17-15-1, relating to legislative intent, as follows:
'17-15-1. The General Assembly recognizes that many innocent persons suffer personal physical injury, serious mental or emotional trauma, severe financial hardship, or death as a result of criminal acts or attempted criminal acts. The General Assembly finds and determines that there is a need for assistance for such victims of crime. Accordingly, it is the General Assembly's intent that under certain circumstances aid, care, and assistance be provided by the state for such victims of crime."

SECTION 2. Said chapter is further amended by revising Code Section 17-15-2, relating to definitions, as follows:
'17-15-2. As used in this chapter, the term:
(l) 'Board' means the Criminal Justice Coordinating Council. (2) 'Claimant' means any person filing a claim pursuant to this chapter. (3) 'Crime' means:
(A) An act which constitutes hit and run as defined in Code Section 40-6-270, homicide by vehicle as defined in Code Section 40-6-393, serious injury by vehicle as defined in Code Section 40-6-394, or any act which constitutes a violation of Chapter

196

GENERAL ACTS AND RESOLUTIONS, VOL. I

6 or Part 2 of Article 3 of Chapter 12 of Title 16, a violation of Code Section 16-5-70, or a violent crime as defined by state or federal law which results in physical injury, serious mental or emotional trauma, or death to the victim and which is committed:
(i) In this state; (ii) In a state which does not have a victims' compensation program, if the victim is a resident of this state; or (iii) In a state which has compensated the victim in an amount less than the victim would be entitled to pursuant to this chapter, if the victim is a resident of this state; (B) An act which constitutes international terrorism as defined in 18 U.S.C. Section 2331 which results in physical injury, serious mental or emotional trauma, or death to the victim, if the victim is a resident ofthis state and is outside the territorial boundaries of the United States when such act is committed; or (C) An act of mass violence which results in physical injury, serious mental or emotional trauma, or death to the victim, if the victim is a resident of this state and is outside the territorial boundaries of the United States when such act is committed. (4) 'Direct service provider' means a public or nonprofit entity which provides aid, care, and assistance to a victim. (5) 'Director' means the director of the Criminal Justice Coordinating Council. (6) 'Fund' means the Georgia Crime Victims Emergency Fund. (7) 'Investigator' means an investigator of the board. (8) 'Serious mental or emotional trauma' means a nonphysical injury which has been documented by a licensed mental health professional and which meets the specifications promulgated by the board's rules and regulations relating to this type of trauma. (9) 'Victim' means a person who: (A) Is injured physically, who dies, or who suffers financial hardship as a result of being injured physically as a direct result of a crime; (B) Suffers a serious mental or emotional trauma as a result of being threatened with a crime which could result in physical injury or death; or (C) Suffers a serious mental or emotional trauma as a result of being present during the commission of a crime."

SECTION 3. Said chapter is further amended by revising paragraph (3) of subsection (c) of Code Section 17-15-5, relating to filing of claims, as follows:
'(3) When appropriate, a statement indicating the extent of any disability resulting from the injury or serious mental or emotional trauma incurred;"

SECTION 4. Said chapter is further amended by revising subsection (a) of Code Section 17-15-6, relating to investigations, as follows:

GEORGIA LAWS 2009 SESSION

197

'(a) A claim, once accepted for filing and completed, shall be assigned to an investigator. The investigator shall examine the papers filed in support of the claim and cause an investigation to be conducted into the validity ofthe claim. The investigation shall include, but not be limited to, an examination of law enforcement, court, and official records and reports concerning the crime and an examination of medical, psychiatric, counseling, financial, and hospital reports relating to the injury, serious mental or emotional trauma, or loss upon which the claim is based. All claims arising from the death of an individual as a direct result of a crime must be considered together by a single investigator.'

SECTION 5. Said chapter is further amended by revising subsections (a) and (h) of Code Section 17-15-7, relating to persons eligible for awards, as follows:
'(a) Except as otherwise provided in this Code section, the following persons are eligible for awards pursuant to this chapter:
(1) A victim; (2) A dependent spouse or child of a victim; (2.1) For purposes of an award under subsection (k) of Code Section 17-15-8, any member of the immediate family of a victim ofhomicide by vehicle caused by a violation of Code Section 40-6-391; (3) Any person who goes to the aid of another and suffers physical injury, serious mental or emotional trauma, or death as a direct result of acting, not recklessly, to prevent the commission of a crime, to apprehend lawfully a person reasonably suspected of having committed a crime, or to aid the victim of a crime or any person who is injured, traumatized, or killed while aiding or attempting to aid a law enforcement officer in the prevention of crime or apprehension of a criminal at the officer's request; (4) Any person who is a victim offamily violence as defined by Code Section 19-13-1 and anyone who is a victim as a result of a violation of Code Section 40-6-391; or (5) Any person who is not a direct service provider and who assumes the cost of an eligible expense of a victim regardless of such person's relationship to the victim or whether such person is a dependent of the victim." '(h) A victim or claimant who has been convicted of a felony involving criminally injurious conduct and who is currently serving a sentence therefor shall not be considered eligible to receive an award under this chapter. For purposes of this subsection, 'criminally injurious conduct' means an act which occurs or is attempted in this state that results in physical injury, serious mental or emotional trauma, or death to a victim, which act is punishable by fine, imprisonment, or death. Such term shall not include acts arising out of the operation of motor vehicles, boats, or aircraft unless the acts were committed with the intent to inflict injury, trauma, or death or unless the acts committed were in violation of Code Section 40-6-391. For the purposes of this subsection, a person shall be deemed to have committed criminally injurious conduct notwithstanding that by reason of age,

198

GENERAL ACTS AND RESOLUTIONS, VOL. I

insanity, drunkenness, or other reason, he or she was legally incapable of committing a crime.'

SECTION 6. Said chapter is further amended by revising Code Section 17-15-8, relating to required findings and amounts of award, as follows:
'17-15-8. (a) No award may be made unless the board or director finds that:
(1) A crime was committed; (2) The crime directly resulted in the victim's physical injury, serious mental or emotional trauma, or financial hardship as a result of the victim's physical injury, serious mental or emotional trauma, or the victim's death; (3) Police records, records of an investigating agency, or records created pursuant to a mandatory reporting requirement show that the crime was promptly reported to the proper authorities. In no case may an award be made where the police records, records of an investigating agency, or records created pursuant to a mandatory reporting requirement show that such report was made more than 72 hours after the occurrence of such crime unless the board, for good cause shown, finds the delay to have been justified; and (4) The applicant has pursued restitution rights against any person who committed the crime unless the board or director determines that such action would not be feasible. The board, upon finding that any claimant or award recipient has not fully cooperated with all law enforcement agencies, may deny, reduce, or withdraw any award. (b) Any award made pursuant to this chapter may be in an amount not exceeding actual expenses, including indebtedness reasonably incurred for medical expenses, loss ofwages, funeral expenses, mental health counseling, or support for dependents of a deceased victim necessary as a direct result of the injury or hardship upon which the claim is based. (c)( 1) Notwithstanding any other provisions of this chapter, no award made under the provisions of this chapter shall exceed $1,000.00 in the aggregate; provided, however, with respect to any claim filed with the board as a result of a crime occurring on or after July 1, 1994, no award made under the provisions of this chapter payable to a victim and to all other claimants sustaining economic loss because of injury to or death of such victim shall exceed $5,000.00 in the aggregate; provided, further, with respect to any claim filed with the board as a result of a crime occurring on or after July 1, 1995, no award made under the provisions of this chapter payable to a victim and to all other claimants sustaining economic loss because of injury to or death of such victim shall exceed $10,000.00 in the aggregate; provided, further, with respect to any claim filed with the board as a result of a crime occurring on or after July 1, 2002, no award made under the provisions of this chapter payable to a victim and to all other claimants sustaining economic loss because of injury to or death of such victim shall exceed $25,000.00 in the aggregate; provided, further, with respect to any claim filed with the

GEORGIA LAWS 2009 SESSION

199

board for serious mental or emotional trauma, no award shall be made for a crime occurring before July 1, 2009. (2) No award under this chapter for the following losses shall exceed the maximum amount authorized:

Category

Maximum Award

Lost wages

$ 10,000.00

Funeral expenses

3,000.00

Financial hardship or loss of support

10,000.00

Medical

15,000.00

Counseling

3,000.00

Crime scene sanitization

1,500.00

(d) In determining the amount of an award, the director and board shall determine whether because of his or her conduct the victim of such crime contributed to the infliction of his or her injury, serious mental or emotional trauma, or financial hardship, and the director and board may reduce the amount of the award or reject the claim altogether in accordance with such determination. (e) The director and board may reject an application for an award when the claimant has failed to cooperate in the verification of the information contained in the application. (f) Any award made pursuant to this chapter may be reduced by or set off by the amount of any payments received or to be received as a result of the injury, serious mental or emotional trauma:
( 1) From or on behalf of the person who committed the crime; and (2) From any other private or public source, including an award of workers' compensation pursuant to the laws of this state, provided that private sources shall not include contributions received from family members or persons or private organizations making charitable donations to a victim. (g) No award made pursuant to this chapter is subject to garnishment, execution, or attachment other than for expenses resulting from the injury or serious mental or emotional trauma which is the basis for the claim. (h) An award made pursuant to this chapter shall not constitute a payment which is treated as ordinary income under either the provisions of Chapter 7 of Title 48 or, to the extent

lawful, under the United States Internal Revenue Code. (i) Notwithstanding any other provisions of this chapter to the contrary, no awards from state funds shall be paid prior to July 1, 1989. (j) In any case where a crime results in death, the spouse, children, parents, or siblings of such deceased victim may be considered eligible for an award for the cost ofpsychological

counseling which is deemed necessary as a direct result of said criminal incident. The

200

GENERAL ACTS AND RESOLUTIONS, VOL. I

maximum award for said counseling expenses shall not exceed $3,000.00 for each claimant identified in this subsection.
(k)(l) In addition to any other award authorized by this Code section, in any case where a deceased was a victim of homicide by vehicle caused by a violation of Code Section 40-6-391 on any road which is part of the state highway system, upon request of the next of kin of the deceased, an award of compensation in the form of a memorial sign erected by the Department of Transportation as provided by this subsection shall be paid to an eligible claimant. (2) The provisions of paragraph (4) of subsection (a) of this Code section shall not apply for purposes of eligibility for awards made under this subsection, and the value of any award paid to a claimant under this subsection shall not apply toward or be subject to any limitation on award amounts paid to any claimant under other provisions of this Code section. (3) The Department of Transportation, upon receiving payment for the cost of materials and labor from the board, shall upon request of the next of kin of the deceased erect a sign memorializing the deceased on the right of way of such public highway at the location of the accident or as near thereto as safely and reasonably possible and shall maintain such sign for a period of five years from the date the sign is erected unless its earlier removal is requested in writing by the next of kin. Such sign shall be 24 inches wide by 36 inches high and depict a map of the State of Georgia, with a dark blue background and a black outline of the state boundaries. A border of white stars shall be placed on the inside of the state boundaries, and the sign shall contain the words 'In Memory of (name), DUI Victim (date of accident).' (4) In the event of multiple such claims arising out of a single motor vehicle accident, the names of all deceased victims for whom such claims are made and for whom a request has been made by the next of kin of the deceased may be placed on one such sign or, if necessary, on one such sign and a plaque beneath of the same color as the sign. In the event of multiple claims relating to the same deceased victim, no more than one such sign shall be paid for and erected for such victim."

SECTION 7. All laws and parts of laws in conflict with this Act are repealed.

Approved April 29, 2009.

GEORGIA LAWS 2009 SESSION

201

COMMERCE- BLENDED FUEL; SUPPLIERS; DISTRIBUTORS; BLENDERS; MARKETING
AGREEMENTS.

No. 57 (Senate Bill No. 30).

AN ACT

To amend Article 9 of Chapter 1 of Title 10 of the Official Code of Georgia Annotated, relating to gasoline marketing practices, so as to provide that suppliers of automotive gasoline shall offer to supply gasoline distributors with gasoline that has not been blended with, but is suitable for blending with, fuel alcohol; to preclude inhibiting gasoline distributors from being blenders; to define certain terms; to change certain provisions relating to marketing agreements subject to said article; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Article 9 of Chapter I of Title 10 of the Official Code of Georgia Annotated, relating to gasoline marketing practices, is amended by revising Code Section 10-1-232, relating to definitions, as follows:
'1 0-1-232. As used in this article, the term:
(1) 'Automotive gasoline' or 'gasoline' means octane rated fuels made from petroleum products for use in the propulsion of motor vehicles. (2) 'Automotive gasoline dealer' or 'gasoline dealer' means any person or firm engaged primarily in the retail sale ofautomotive gasoline and related products and services under a marketing agreement entered into with an automotive gasoline distributor. (3) 'Automotive gasoline distributor' or 'gasoline distributor' means any person or firm engaged, whether as a jobber or supplier, in the sale, consignment, or distribution of gasoline to automotive gasoline dealers pursuant to marketing agreements. (3.1) 'Blended fuel' means a mixture composed of automotive gasoline and another liquid, other than a de minimus amount of a product such as carburetor detergent or oxidation inhibitor, that can be used as a fuel in a motor vehicle. (3.2) 'Blender' means a person or firm which produces blended fuel outside a terminal transfer system. (3.3) 'Fuel alcohol' means alcohol or fuel grade ethanol. (3.4) 'Gasohol' means a blended fuel composed of gasoline and fuel grade ethanol. (3.5) 'Jobber' means an automotive gasoline distributor which is not a supplier.

202

GENERAL ACTS AND RESOLUTIONS, VOL. I

(4) 'Marketing agreement' or 'agreement' means a written agreement, including a franchise, and all related written agreements between an automotive gasoline distributor and an automotive gasoline dealer under which such dealer is supplied automotive gasoline for retail sale or an agreement between an automotive gasoline distributor and an automotive gasoline dealer under which the automotive gasoline dealer is granted the right to occupy premises owned, leased, or controlled by the automotive gasoline distributor for the purpose of engaging in the retail sale of gasoline of the automotive gasoline distributor. (4.1) 'Position holder' means a person or firm which holds the inventory position in automotive gasoline in a terminal, as reflected on the records of the terminal operator. A person or firm holds the inventory position in automotive gasoline when that person or firm has a contract with the terminal operator for the use of storage facilities and terminaling services for gasoline at the terminal. The term includes a terminal operator which owns gasoline in the terminal. (4.2) 'Rack' means a mechanism for delivering automotive gasoline from a refinery, a terminal, or a bulk plant into a transport truck, a railroad tank car, or another means of transfer that is outside the terminal transfer system. (4.3) 'Refiner' means a person or firm which owns, operates, or controls a refinery, wherever located. (4.4) 'Refinery' means a facility used to process crude oil, unfinished oils, natural gas liquids, or other hydrocarbons into automotive gasoline and from which automotive gasoline may be removed by pipeline or vessel or at a rack. The term does not include a facility that produces only blended fuel or gasohol. (4.5) 'Removal' means a physical transfer other than by evaporation, loss, or destruction. A physical transfer to a transport truck or another means of conveyance outside a terminal transfer system is complete upon delivery into the means of conveyance. (5) 'Retail sale of automotive gasoline' means the sale thereof for consumption, and not for resale, at a retail outlet serving the motoring public. (6) 'Supplier' means:
(A) A position holder or a person or firm which receives automotive gasoline pursuant to a two-party exchange; or (B) A refiner. (7) 'Terminal' means an automotive gasoline storage and distribution facility that has been assigned a terminal control number by the United States Internal Revenue Service, is supplied by pipeline or marine vessel, and from which automotive gasoline may be removed at a rack. (8) 'Terminal operator' means a person or firm which owns, operates, or otherwise controls a terminal. (9) 'Terminal transfer system' means an automotive gasoline distribution system consisting of refineries, pipelines, marine vessels, and terminals. The term has the same meaning as 'bulk transfer/terminal system' under 26 C.F.R. Section 48.4081-l.

GEORGIA LAWS 2009 SESSION

203

(10) 'Two-party exchange' means a transaction in which automotive gasoline is transferred from one licensed supplier to another licensed supplier pursuant to an exchange agreement under which the supplier that is the position holder agrees to deliver automotive gasoline to the other supplier or the other supplier's customer at the rack of the terminal at which the delivering supplier is the position holder.'

SECTION 2. Said article is further amended by adding a new Code section to read as follows:
'10-1-234.1. Regardless of other products offered, any supplier which, pursuant to a marketing agreement, supplies gasoline from a terminal in this state to a gasoline distributor shall offer to supply such party with gasoline that has not been blended with, but is suitable for blending with, fuel alcohol. No supplier shall prevent or inhibit a gasoline distributor in this state from being a blender or from qualifying for any federal or state tax credit due to blenders. If a supplier supplies gasoline to a gasoline distributor pursuant to this Code section which is then blended, the gasoline distributor shall indemnify and hold harmless such supplier against any losses or damages arising out of claims, costs, judgments, and expenses, including reasonable attorney's fees, or suits relating to or arising out of such blending.'

SECTION 3. Said article is further amended by revising Code Section 10-1-240, relating to marketing agreements subject to said article, as follows:
'10-1-240. This article shall apply to all marketing agreements as defined in paragraph (4) of Code Section 10-1-232 that are granted, renewed, or amended to extend the lease period on or after July 1, 2009.'

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved April29, 2009.

204

GENERAL ACTS AND RESOLUTIONS, VOL. I

EDUCATION- LOCAL GOVERNMENTSTATE GOVERNMENT- SUPPLIES, EQUIPMENT, PRODUCTS; STATE PRODUCED; PREFERENCES.

No. 58 (Senate Bill No. 44).

AN ACT

To amend Article 10 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to contracts and purchases by public schools, so as to provide contractual and purchasing preferences for certain supplies, materials, equipment, and agricultural products manufactured or produced in this state; to amend Title 36 of the Official Code of Georgia Annotated, relating to local government, so as to provide contractual and purchasing preferences for certain supplies, materials, equipment, and agricultural products manufactured or produced in this state; to amend Part 1 of Article 3 of Chapter 5 of Title 50 of the Official Code of Georgia Annotated, relating to general authority, duties, and procedure relative to government purchasing, so as to provide contractual and purchasing preferences for certain supplies, materials, equipment, and agricultural products manufactured or produced in this state; to provide for applicability; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Article 10 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to contracts and purchases by public schools, is amended by revising Code Section 20-2-500, relating to promulgation of rules and regulations by the State Board of Education for contracts or purchases over $100.00, as follows:
'20-2-500. (a) The State Board of Education is authorized to promulgate rules and regulations to regulate contracts or purchases which involve the aggregate sum of $100.00 or more for or on behalf of students of any public elementary or secondary school supported in whole or in part from public funds.
(b)( 1) Such rules shall provide that such contracts for or purchases of supplies, materials, equipment, or agricultural products, including but not limited to school buses but not including instructional materials or beverages for immediate consumption, for public elementary and secondary schools supported in whole or in part from public funds shall give preference as far as may be reasonable and practicable to such supplies, materials,

GEORGIA LAWS 2009 SESSION

205

equipment, and agricultural products as may be manufactured or produced in this state. Such preference shall not sacrifice quality. (2) Such rules shall provide that, in determining whether such a preference is reasonable in any case where the value of a contract for or purchase of such supplies, materials, equipment, or agricultural products exceeds $100,000.00, the local school district shall consider, among other factors, information submitted by the bidder which may include the bidder's estimate ofthe multiplier effect on gross state domestic product and the effect on public revenues of the state and the effect on public revenues of political subdivisions resulting from acceptance of a bid or offer to sell Georgia manufactured or produced goods as opposed to out-of-state manufactured or produced goods. Any such estimates shall be in writing. No local school district shall divide a contract or purchase which exceeds $100,000.00 for the purpose of avoiding the requirements of this paragraph. (c) Nothing in this Code section shall negate the requirements of Code Section 50-5-73:

SECTION 2. Title 36 ofthe Official Code ofGeorgia Annotated, relating to local government, is amended by revising Chapter 84 in its entirety as follows:

'CHAPTER 84

36-84-1. (a) As used in this Code section, the term 'local government' means a county, municipality, or consolidated government. (b) Local governments, when contracting for or purchasing supplies, materials, equipment, or agricultural products, excluding beverages for immediate consumption, shall give preference as far as may be reasonable and practicable to such supplies, materials, equipment, and agricultural products as may be manufactured or produced in this state. Such preference shall not sacrifice quality. (c) In determining whether such a preference is reasonable in any case where the value of a contract for or purchase of such supplies, materials, equipment, or agricultural products exceeds $100,000.00, the local government shall consider, among other factors, information submitted by the bidder which may include the bidder's estimate of the multiplier effect on gross state domestic product and the effect on public revenues of the state and the effect on public revenues of political subdivisions resulting from acceptance of a bid or offer to sell Georgia manufactured or produced goods as opposed to out-of-state manufactured or produced goods. Any such estimates shall be in writing. No local government shall divide a contract or purchase which exceeds $100,000.00 for the purpose of avoiding the requirements of this subsection. (d) Nothing in this Code section shall negate the requirements of Code Section 50-5-73."

206

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 3. Part I of Article 3 of Chapter 5 of Title 50 the Official Code of Georgia Annotated, relating to general authority, duties, and procedure relative to government purchasing, is amended by revising Code Section 50-5-60, relating to preference to supplies, equipment, materials, and printing produced in Georgia generally, as follows:
'50-5-60. (a) The state and any department, agency, or commission thereof, when contracting for or purchasing supplies, materials, equipment, or agricultural products, excluding beverages for immediate consumption, shall give preference as far as may be reasonable and practicable to such supplies, materials, equipment, and agricultural products as may be manufactured or produced in this state. Such preference shall not sacrifice quality. (b) Vendors resident in the State of Georgia are to be granted the same preference over vendors resident in another state in the same manner, on the same basis, and to the same extent that preference is granted in awarding bids for the same goods or services by such other state to vendors resident therein over vendors resident in the State of Georgia. (c) In determining whether such a preference is reasonable in any case where the value of a contract for or purchase of such supplies, materials, equipment, or agricultural products exceeds $100,000.00, the state or its department, agency, or commission shall consider, among other factors, information submitted by the bidder which may include the bidder's estimate of the multiplier effect on gross state domestic product and the effect on public revenues of the state and the effect on public revenues of political subdivisions resulting from acceptance of a bid or offer to sell Georgia manufactured or produced goods as opposed to out-of-state manufactured or produced goods. Any such estimates shall be in writing. The state or its department, agency, or commission shall not divide a contract or purchase which exceeds $100,000.00 for the purpose of avoiding the requirements of this subsection. (d) Nothing in this Code section shall negate the requirements of Code Section 50-5-73.'

SECTION 4. Said part is further amended by revising Code Section 50-5-61, relating to state and local authority preferences for supplies, materials, equipment, and agricultural products produced in Georgia, as follows:
'50-5-61. (a) State and local authorities created by law, in the purchase of and contracting for any supplies, materials, equipment, and agricultural products, excluding beverages for immediate consumption, shall give preference as far as may be reasonable and practicable to such supplies, materials, equipment, and agricultural products as may be manufactured or produced in this state. Such preference shall not sacrifice quality. (b) In determining whether such a preference is reasonable in any case where the value of a contract for or purchase of such supplies, materials, equipment, or agricultural products exceeds $100,000.00, the state or local authority shall consider, among other factors,

GEORGIA LAWS 2009 SESSION

207

information submitted by the bidder which may include the bidder's estimate of the multiplier effect on gross state domestic product and the effect on public revenues of the state and the effect on public revenues of political subdivisions resulting from acceptance of a bid or offer to sell Georgia manufactured or produced goods as opposed to out-of-state manufactured or produced goods. Any such estimates shall be in writing. No state or local authority shall divide a contract or purchase which exceeds $100,000.00 for the purpose of avoiding the requirements of this subsection. (c) Nothing in this Code section shall negate the requirements of Code Section 50-5-73.'

SECTION 5. Said part is further amended by revising Code Section 50-5-62, relating to state preferences for local sellers of Georgia products, as follows:
'50-5-62. Reserved.'

SECTION 6. This Act shall not be applied to impair an obligation of any contract entered into prior to the date this Act becomes effective.

SECTION 7. All laws and parts of laws in conflict with this Act are repealed.

Approved April 29, 2009.

GENERAL PROVISIONS-STATE GOVERNMENTCONFEDERATE HERITAGE AND HISTORY MONTH; RALPH MARK GILBERT CIVIL RIGHTS MUSEUM.
No. 59 (Senate Bill No. 27).
AN ACT
To amend Chapter 4 of Title I of the Official Code of Georgia Annotated, relating to holidays and observances, so as to create Confederate Heritage and History Month; to provide for legislative findings; to encourage observances and celebrations of Confederate Heritage and History Month; to provide for statutory construction; to amend Article 3 of Chapter 3 of Title 50, relating to other state symbols, so as to provide that the Ralph Mark

208

GENERAL ACTS AND RESOLUTIONS, VOL. I

Gilbert Civil Rights Museum shall be an official state historical civil rights museum; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. WHEREAS, Savannah has a long and storied role in the civil rights movement, beginning with a meeting between General Sherman and Secretary of War Stanton and twelve Black leaders on January 12, 1865, to discuss the matter of emancipation; and

WHEREAS, the Ralph Mark Gilbert Civil Rights Museum, recently named "Georgia's Best New History Museum" by the Georgia Journal, is named in honor ofthe late Dr. Ralph Mark Gilbert. The father of Savannah's modern day Civil Rights Movement and fearless National Association for the Advancement of Colored People (NAACP) leader was known for much more than his outspoken campaigns for civil rights. He was a nationally known orator, pulpiteer, and playwright, producing religious dramas, known as passion plays, throughout the country; and

WHEREAS, Dr. Gilbert served as pastor ofhistoric First African Baptist Church on Franklin Square in Savannah for 16 years. In 1942, he reorganized the Savannah Branch NAACP, served as president for eight years and convened the first state conference. Branches from Savannah, Brunswick, Dublin, Atlanta, Columbus, Macon, Albany and three other branches whose identities are uncertain, attended and elected Rev. Ralph Mark Gilbert president. Under his courageous leadership, more than forty NAACP branches were organized in Georgia by 1950; and

WHEREAS, Georgia's best new history museum chronicles the civil rights struggle of Georgia's oldest African American community from slavery to the present. Three floors of handsome photographic and interactive exhibits, includes an NAACP Organization exhibit, a fiber optic map of 87 significant civil rights sites/events, a lunch counter where "sit ins" occurred, segregation exhibits, and video presentation are all part ofthe continuous education of the public on the history of the civil rights struggle in Savannah and Georgia. The museum is located in historic Savannah in a five level building that was erected in 1914 as the Wage Earners Savings and Loan Bank for Black Savannahians, the largest Black bank in the country at that time.

SECTION 2. Chapter 4 of Title 1 of the Official Code of Georgia Annotated, relating to holidays and observances, is amended by adding a new Code section to read as follows:

GEORGIA LAWS 2009 SESSION

209

'1-4-20. (a) The General Assembly hereby finds and determines that tourism is a great economic resource in Georgia; and historical, heritage, and cultural inheritance are among the tourism industry's most popular attractions. Georgia's Confederate heritage, physical artifacts and battle sites, and historic events and persons not only attract visitors, they are potentially of even greater importance and benefit to our state's economy. Increased development of our state's Confederate history and heritage as part of the tourism industry will be enhanced through recognizing, celebrating, and advertising that heritage and history. (b) The month of April of each year is hereby designated as Confederate History and Heritage Month and shall be set aside to honor, observe, and celebrate the Confederate States of America, its history, those who served in its armed forces and government, and all those millions of its citizens of various races and ethnic groups and religions who contributed in sundry and myriad ways to the cause which they held so dear from its founding on February 4, 1861, in Montgomery, Alabama, until the Confederate ship CSS Shenandoah sailed into Liverpool Harbor and surrendered to British authorities on November 6, 1865. (c) Officials and departments of state, county, and municipal governments, boards of education, elementary and secondary schools, colleges and universities, businesses, and all citizens are encouraged to participate in programs, displays, and activities that commemorate and honor our shared history and cultural inheritance throughout each April during Confederate History and Heritage Month.0

SECTION 3. Article 3 of Chapter 3 of Title 50, relating to other state symbols, is amended by adding a new Code section to read as follows:
'50-3-85. The Ralph Mark Gilbert Civil Rights Museum is designated an official Georgia historical civil rights museum.'

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved April29, 2009.

210

GENERAL ACTS AND RESOLUTIONS, VOL. I

PROFESSIONS- NURSING EDUCATION PROGRAMS; PRECEPTORSHIPS.

No. 60 (House Bill No. 475).

AN ACT

To amend Chapter 26 of Title 43 of the Official Code of Georgia Annotated, relating to nurses, so as to revise the requirements for nursing education programs required for licensure as an advanced practice registered nurse, registered professional nurse, or licensed practical nurse; to revise certain provisions relating to requirements for registered professional nurses in nontraditional nursing education programs; to provide for temporary permits for approved preceptorships; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Chapter 26 of Title 43 of the Official Code of Georgia Annotated, relating to nurses, is amended by revising paragraph (1.1) of Code Section 43-26-3, relating to definitions, and adding a new paragraph as follows:
(1.1) 'Advanced practice registered nurse' means a registered professional nurse licensed under this chapter who is recognized by the board as having met the requirements established by the board to engage in advanced nursing practice and who holds a master's degree or other graduate degree from an approved nursing education program and national board certification in his or her area of specialty, or a person who was recognized as an advanced practice registered nurse by the board on or before June 30, 2006. This paragraph shall not be construed to require a certified registered nurse anesthetist who graduated from an approved nurse anesthetist educational program prior to January 1, 1999, to hold a master's degree or other graduate degree. (1.2) 'Approved nursing education program' located in this state means a nursing education program approved by the board as meeting criteria established by the board. An 'approved nursing education program' located outside this state means a nursing education program that the board has determined to meet criteria similar to and not less stringent than criteria established by the board. In order to be approved by the board, a nursing education program must be one that is offered by:
(A) A unit of the University System of Georgia accredited by the Commission on Colleges of the Southern Association of Colleges and Schools; (B) An institution of the Technical College System of Georgia accredited by the Commission on Colleges of the Southern Association of Colleges and Schools;

GEORGIA LAWS 2009 SESSION

211

(C) A nonprofit postsecondary institution of higher education that is accredited by a regional accrediting agency recognized by the United States Department of Education; or (D) A proprietary institution of higher education that is accredited by a regional accrediting agency recognized by the United States Department of Education."

SECTION 2. Said chapter is further amended by revising Code Section 43-26-7, relating to requirements for licensure as a registered professional nurse, as follows:
'43-26-7. (a) Any applicant who meets the requirements of this Code section shall be eligible for licensure as a registered professional nurse. (b) An applicant for licensure by examination shall:
(1) Submit a completed written application and fee; (2)(A) Have graduated from an approved nursing education program, as defined in Code Section 43-26-3; or (B)(i) Notwithstanding subparagraph (A) of this paragraph, have graduated from a nontraditional nursing education program approved by the board which meets the requirements in subsection (e) of this Code section; and (ii)(I) If entered the nontraditional nursing education program as a licensed practical nurse with at least three years ofclinical experience in a health care facility as a licensed practical nurse whose academic education as a licensed practical nurse included clinical training in pediatrics, obstetrics and gynecology, medical-surgical, and mental illness, have completed a 350 hour postgraduate preceptorship arranged by the applicant under the oversight of a registered professional nurse where such applicant is transitioned from the role of a licensed practical nurse to a registered professional nurse. The preceptorship shall have prior approval of the board and successful completion of the preceptorship shall be verified in writing by the preceptor; or (II) If entered the nontraditional nursing education program as (1) a military medical corpsman or paramedic or (2) a licensed practical nurse with less than three years of clinical experience in a health care facility as a licensed practical nurse whose academic training as a licensed practical nurse did not include clinical training in pediatrics, obstetrics and gynecology, medical-surgical, and mental illness, have completed a 700 hour postgraduate preceptorship arranged by the applicant under the oversight of a registered professional nurse and approved by the board. Such preceptorship shall include clinical practice in a health care facility in pediatrics, obstetrics and gynecology, medical-surgical, mental illness, and transition into the role of a registered professional nurse. The preceptorship shall have prior approval of the board and successful completion of the preceptorship shall be verified in writing by the preceptor.

212

GENERAL ACTS AND RESOLUTIONS, VOL. 1

Applicants who, before July 1, 2008, entered a nontraditional nursing education program which meets the requirements of subsection (e) of this Code section and complete such program no later than June 30, 20 II, shall be deemed to meet the criteria of this paragraph; provided, however, that the board shall have the discretion to require additional clinical hours of experience of applicants who (i) did not enter the nontraditional nursing education program as a licensed practical nurse, or (ii) entered the nontraditional nursing education program as a licensed practical nurse but does not have at least one year of clinical experience in a health care facility as a licensed practical nurse, if such applicant's clinical experience is deemed lacking by the board; (3) Pass a board recognized licensing examination; provided, however, that such examination may not be taken prior to graduation from the approved nursing education program. In no way shall the passage of such examination by a graduate of a nontraditional nursing education program who does not meet the other requirements of this subsection be construed to authorize such individual to practice nursing, to require the board to license such individual as a registered professional nurse other than to issue in its sole discretion a temporary permit pursuant to Code Section 43-26-8, or to be endorsed from another state as a registered professional nurse; (4) Have satisfactory results from a fingerprint record check report conducted by the Georgia Crime Information Center and the Federal Bureau of Investigation, as determined by the board. Application for a license under this Code section shall constitute express consent and authorization for the board or its representative to perform a criminal background check. Each applicant who submits an application to the board for licensure by examination agrees to provide the board with any and all information necessary to run a criminal background check, including, but not limited to, classifiable sets of fingerprints. The applicant shall be responsible for all fees associated with the performance of such background check; and (5) Meet such other criteria as established by the board. (c) An applicant for licensure by endorsement shall: (1) Submit a completed written application and fee; (2)(A) Have passed a board recognized licensing examination following graduation from an approved nursing education program, as defined in Code Section 43-26-3; or (B) Notwithstanding subparagraph (A) of this paragraph, have graduated from a nontraditional nursing education program approved by the board which meets the requirements in subsection (e) of this Code section; (3) Submit verification of initial and current licensure in any other licensing jurisdiction administering a board recognized licensing examination; (4)(A) Have practiced nursing as a registered professional nurse for a period of time as determined by the board or have graduated from a nursing education program within the four years immediately preceding the date of the application; (B) If graduated from a nontraditional nursing education program, have practiced nursing as a registered professional nurse in a health care facility for at least one year

GEORGIA LAWS 2009 SESSION

213

in the three years preceding the date of the application and such practice is documented by the applicant and approved by the board; (C) If entered a nontraditional nursing education program as a licensed practical nurse and graduated from such program and practiced nursing as a registered professional nurse in a health care facility for less than one year in the three years preceding the date of the application, have completed a 350 hour postgraduate preceptorship arranged by the applicant under the oversight of a registered professional nurse and where such applicant is transitioned from the role of a licensed practical nurse to a registered professional nurse. The preceptorship shall have prior approval of the board and successful completion ofthe preceptorship shall be verified in writing by the preceptor; or (D) If entered a nontraditional nursing education program as a military medical corpsman or paramedic and graduated from such program and practiced nursing as a registered professional nurse in a health care facility for less than one year in the three years preceding the date of the application, have completed a 700 hour postgraduate preceptorship arranged by the applicant under the oversight of a registered professional nurse. Such preceptorship shall include clinical practice in a health care facility in pediatrics, obstetrics and gynecology, medical-surgical, mental illness, and transition into the role of a registered professional nurse. The preceptorship shall have prior approval of the board and successful completion of the preceptorship shall be verified in writing by the preceptor; (5) Have satisfactory results from a fingerprint record check report conducted by the Georgia Crime Information Center and the Federal Bureau of Investigation, as determined by the board. Application for a license under this Code section shall constitute express consent and authorization for the board or its representative to perform a criminal background check. Each applicant who submits an application to the board for licensure by examination agrees to provide the board with any and all information necessary to run a criminal background check, including, but not limited to, classifiable sets of fingerprints. The applicant shall be responsible for all fees associated with the performance of such background check; and (6) Meet such other criteria as established by the board. (d) An applicant for reinstatement who has previously held a valid license in Georgia shall: (1) Submit a completed written application and fee; (2) Have practiced nursing as a registered professional nurse for a period of time as determined by the board or have graduated from an approved nursing education program, as defined in Code Section 43-26-3, within the four years immediately preceding the date of the application; (3) Have satisfactory results from a fingerprint record check report conducted by the Georgia Crime Information Center and the Federal Bureau of Investigation, as determined by the board. Application for a license under this Code section shall constitute express consent and authorization for the board or its representative to perform

214

GENERAL ACTS AND RESOLUTIONS, VOL. I

a criminal background check. Each applicant who submits an application to the board for licensure by examination agrees to provide the board with any and all information necessary to run a criminal background check, including, but not limited to, classifiable sets of fingerprints. The applicant shall be responsible for all fees associated with the performance of such background check; and (4) Meet such other criteria as established by the board. (e) A nontraditional nursing education program shall meet the following requirements: (1) Is part of an institution of higher education that is approved by the appropriate regulatory authorities of its home state; (2) Holds regional and specialty accreditation by an accrediting body or bodies recognized by the United States Secretary of Education or the Council for Higher Education Accreditation; (3) Requires its program applicants to be a licensed practical/vocational nurse, military medical corpsman, or paramedic; (4) Requires its students to pass faculty determined program outcomes including competency based assessments of nursing knowledge and a summative performance assessment of clinical competency of a minimum of 2 1/2 days developed by faculty subject matter experts that follows nationally recognized standards for educational testing; and (5) Its graduates pass a board recognized licensing examination at a rate equivalent to the minimum rate required for board approved traditional nursing education programs.'

SECTION 3. Said chapter is further amended by revising Code Section 43-26-8, relating to temporary permits, as follows:
'43-26-8. (a) A temporary permit may be issued to an applicant for licensure by examination, endorsement, or reinstatement in accordance with criteria established by the board. (b) A six-month temporary permit may be issued to a graduate of a nontraditional nursing education program that meets the requirements of subsection (e) of Code Section 43-26-7 to practice nursing only as a part of their board approved preceptorship. A temporary permit issued pursuant to this subsection may be renewed only one time for an additional six-month period.'
SECTION 4. Said chapter is further amended by revising Code Section 43-26-32, relating to definitions, by adding a new paragraph to read as follows:
'(1.1) 'Approved nursing education program' located in this state means a nursing education program approved by the board as meeting criteria established by the board. An 'approved nursing education program' located outside this state means a nursing education

GEORGIA LAWS 2009 SESSION

215

program that the board has determined to meet criteria similar to and not less stringent than criteria established by the board. In order to be approved by the board, a nursing education program must be one that is offered by:
(A) A unit of the University System of Georgia accredited by the Commission on Colleges of the Southern Association of Colleges and Schools; (B) An institution of the Technical College System of Georgia; (C) A nonprofit postsecondary institution of higher education that is accredited by a regional accrediting agency recognized by the United States Department of Education; or (D) A proprietary institution of higher education that is accredited by a regional accrediting agency recognized by the United States Department of Education.0

SECTION 5. Said chapter is further amended by revising subparagraph (a)(l)(C) of Code Section 43-26-36, relating to application for licensure, as follows:
'(C) Has graduated from an approved nursing education program, as defined in Code Section 43-26-32;0

SECTION 6. Said chapter is further amended by revising subsections (a) and (b) of Code Section 43-26-38, relating to license by endorsement, as follows:
'(a) The board, at its discretion, may issue a license to practice as a licensed practical nurse, without examination, to any person who has a high school diploma or general educational development (GED) diploma and has been duly licensed or registered as a practical or vocational nurse or who is entitled to perform similar service under a different designation under the laws of another state or territory of the United States if the license or registration in that other state or territory is current and in good standing and was issued based upon completion of an approved nursing education program, as defined in Code Section 43-26-32, and passage of an examination, which examination has been determined by the board to be substantially equal to or greater than the requirements for licensure as a licensed practical nurse in this state and if such person has engaged in the active practice of practical nursing as a licensed practical nurse within five years immediately preceding the application; provided, however, that the requirement for active practice shall not apply to an applicant who has graduated from an approved nursing education program within one year of the date of application or who was initially licensed within one year of the date of application. (b) The board, at its discretion, may issue a license to practice as a licensed practical nurse, with examination, to any person who has a high school diploma or general educational development (GED) diploma and has been duly licensed or registered as a practical or vocational nurse or who is entitled to perform similar service under a different designation under the laws of another state or territory of the United States if the license or registration

216

GENERAL ACTS AND RESOLUTIONS, VOL. I

in that other state or territory is current and in good standing and was issued based upon completion of an approved nursing education program, as defined in Code Section 43-26-32, except however, such applicant has not been duly examined according to the prescribed examination approved by this board and if such person has engaged in active practice of practical nursing as a licensed practical nurse within five years immediately preceding the application.'

SECTION 7. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 8. All laws and parts of laws in conflict with this Act are repealed.

Approved Apri129, 2009.

REVENUE -AD VALOREM TAX; VARIOUS REVISIONS; ASSESSMENT APPEALS; FOREST LAND ASSESSMENT; TAX EXECUTION COSTS; TAXPAYER RETURNS; PUBLIC UTILITY RETURNS.
No. 61 (Senate Bill No. 240).
AN ACT
To amend Chapter 5 of Title 48 of the Official Code of Georgia Annotated, relating to ad valorem taxation of property, so as to provide for the modernization and revision of certain provisions regarding ad valorem taxes; to revise and change certain procedures relative to the appeal of assessments for ad valorem tax purposes; to change the deadline for filing for forest land conservation use assessment; to change certain provisions regarding collection of costs, commissions, interest, and penalties; to provide for execution costs; to change certain provisions regarding notification of changes made to a taxpayer's return; to provide for additional tax return filing requirements for public utilities; to provide for related matters; to provide effective dates and applicability; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

GEORGIA LAWS 2009 SESSION

217

SECTION 1. Chapter 5 of Title 48 of the Official Code of Georgia Annotated, relating to ad valorem taxation of property, is amended in subsection (f) of Code Section 48-5-311, relating to county boards of tax assessors, county boards of equalization, and appeals of ad valorem tax assessments, by adding new paragraphs to read as follows:
'(4) For any dispute involving the value of real property, at the option of the taxpayer, an appeal may be submitted to binding arbitration in accordance with this paragraph:
(A) Following an election by the taxpayer to use the binding arbitration provisions of this subsection, a binding arbitration appeal shall be effected by the taxpayer filing a written notice of arbitration with the county board of tax assessors. The notice of arbitration shall specifically state the grounds for arbitration. The notice shall be filed within 45 days from the date of mailing the notice pursuant to Code Section 48-5-306 except that for counties or municipal corporations providing for the collection and payment of ad valorem taxes in installments, the time for filing the notice of appeal shall be 30 days. Prior to appointment of the arbitrator and within 30 days of filing the notice of appeal, the taxpayer shall provide a copy of the value certified by a professional real estate appraiser as classified by the Georgia Real Estate Appraisers Board as specified in this paragraph to the board of assessors for consideration. If, within 30 days of receiving the taxpayer's certified appraisal, the board of assessors accepts the taxpayer's appraisal, that value shall become final. If the county board of tax assessors rejects the taxpayer's appraisal, the county board of tax assessors shall certify within 30 days the appeal to the clerk of the superior court along with any other papers specified by the person seeking arbitration, including, but not limited to, the staff information from the file used by the county board of tax assessors. All papers and information certified to the clerk shall become a part of the record on arbitration. Within 15 days of filing the certification to the clerk of the superior court, the judge shall issue an order authorizing the arbitration; and (B) The arbitration shall be conducted pursuant to the following procedure:
(i) If the parties agree, the matter shall be submitted to a single arbitrator chosen by the parties. Ifthe parties cannot agree on the single arbitrator, the arbitrator shall be chosen by the chief judge of the superior court of the circuit in which the property is located; (ii) In order to be qualified to serve as an arbitrator, a person shall be classified as a State Certified General Property Appraiser pursuant to the rules and regulations of the Georgia Real Estate Appraisers Board and shall have experience or expertise in appraising the type of property that is the subject of the arbitration; (iii) The arbitrator, within 30 days after his or her appointment, shall set a time and place to hear evidence and testimony from both parties. He or she shall provide written notice to the parties personally or by registered or certified mail or statutory overnight delivery not less than ten days before the hearing. The arbitrator may adjourn or postpone the hearing. The chief judge of the superior court of the circuit

218

GENERAL ACTS AND RESOLUTIONS, VOL. I

in which the property is located may direct the arbitrator to proceed promptly with the hearing and the determination of the appeal upon application of any party; (iv) At the hearing, the parties shall be entitled to be heard, to present documents, testimony, and other matters, and to cross-examine witnesses. The arbitrator may hear and determine the controversy upon the documents, testimony, and other matters produced notwithstanding the failure of a party duly notified to appear; (v) The arbitrator shall maintain a record of all pleadings, documents, testimony, and other matters introduced at the hearing. The arbitrator or any party to the proceeding may have the proceedings transcribed by a court reporter; (vi) The provisions of this paragraph may be waived at any time by written consent of the taxpayer and the board of tax assessors; (vii) Within 30 days of the date of the hearing, the arbitrator shall render a decision regarding the value of the property subject to arbitration; (viii) In order to determine the value, the arbitrator shall consider a single value for the property submitted by the board of assessors and a single value submitted by the taxpayer. The taxpayer shall be responsible for the cost of any appraisal by the taxpayer's appraiser; (ix) Upon consideration of the single value submitted by the board of assessors and the single value submitted by the taxpayer, and evidence supporting the values submitted by the board of assessors and the taxpayer, the arbitrator shall determine which value is the value for the property under appeal; (x) If the taxpayer's value is determined by the arbitrator to be the value, the county shall be responsible for the fees and costs of such arbitrator. If the board of tax assessors' value is determined by the arbitrator to be the value, the taxpayer shall be responsible for the fees and costs of such arbitrator; and (xi) The board of tax assessors shall have the burden of proving its opinion of value and the validity of its proposed assessment by a preponderance of evidence. (5) The provisions in subsection (c) of Code Section 48-5-299 shall apply to the valuation established or rendered by any arbitrator or board of arbitration. (6) If the county's tax bills are issued before an arbitrator or board of arbitration has rendered its decision on property which is on appeal, the county board of tax assessors shall specify to the county tax commissioner the higher of the taxpayer's return valuation or 85 percent of the current year's valuation as set by the county board of tax assessors. This amount shall be the basis for a temporary tax bill to be issued. Such tax bill shall be accompanied by a notice to the taxpayer that the bill is a temporary tax bill pending the outcome of the appeal process. Such notice shall also indicate that upon resolution of the appeal, there may be additional taxes due or a refund issued:

SECTION 2. Said chapter is further amended in said Code section by revising subsection (g) as follows:
'(g) Appeals to the superior court.

GEORGIA LAWS 2009 SESSION

219

(1) The taxpayer or, except as otherwise provided in this paragraph and except for a determination of value by an arbitrator pursuant to paragraph (4) of subsection (f) of this Code section, the county board of tax assessors may appeal decisions ofthe county board of equalization, the arbitrator, or the arbitrators, as applicable, to the superior court of the county in which the property lies. A county board of tax assessors shall not appeal a decision of the county board of equalization or arbitrator or board of arbitration, as applicable, other than an arbitration pursuant to paragraph (4) of subsection (f) of this Code section changing an assessment by 20 percent or less unless the board of tax assessors gives the county governing authority a written notice of its intention to appeal, and, within ten days of receipt of the notice, the county governing authority by majority vote does not prohibit the appeal. In the case of a joint city-county board oftax assessors, such notice shall be given to the city and county governing authorities, either of which may prohibit the appeal by majority vote within the allowed period of time. (2) An appeal by the taxpayer as provided in paragraph (I) of this subsection shall be effected by mailing to or filing with the county board of tax assessors a written notice of appeal. Any such notice of appeal which is mailed pursuant to this paragraph shall be deemed to be filed as of the date of the United States Postal Service postmark on such notice of appeal. An appeal by the county board of tax assessors shall be effected by giving notice to the taxpayer. The notice to the taxpayer shall be dated and shall contain the name and the last known address of the taxpayer. The notice of appeal shall specifically state the grounds for appeal. The notice shall be mailed or filed within 30 days from the date on which the decision of the county board of equalization is mailed pursuant to subparagraph (e)(6)(D) of this Code section or within 30 days from the date on which the arbitration decision is rendered pursuant to subparagraph (f)(3)(D) of this Code section, whichever is applicable. The county board of tax assessors shall certify to the clerk of the superior court the notice of appeal and any other papers specified by the person appealing including, but not limited to, the staff information from the file used by either the county board of tax assessors or the county board of equalization. All papers and information certified to the clerk shall become a part of the record on appeal to the superior court. At the time of certification of the appeal, the county board of tax assessors shall serve the taxpayer and his or her attorney of record, if any, with a copy of the notice of appeal and with the civil action file number assigned to the appeal. Such service shall be effected in accordance with subsection (b) of Code Section 9-11-5. No discovery, motions, or other pleadings may be filed by the county board of tax assessors in the appeal until such service has been made. (3) The appeal shall constitute a de novo action. The board of tax assessors shall have the burden of proving their opinions of value and the validity of their proposed assessment by a preponderance of evidence. Upon a failure of the board of tax assessors to meet such burden of proof, the court may, upon motion or sua sponte, authorize the finding that the value asserted by the taxpayer is unreasonable and authorize the determination of the final value of the property.

220

GENERAL ACTS AND RESOLUTIONS, VOL. I

(4)(A) The appeal shall be heard before a jury at the first term following the filing of the appeal unless continued by the court upon a showing of good cause. If only questions of law are presented in the appeal, the appeal shall be heard as soon as practicable before the court sitting without a jury. Each hearing before the court sitting without a jury shall be held within 30 days following the date on which the appeal is filed with the clerk of the superior court. The time of any hearing shall be set in consultation with the taxpayer and at a time acceptable to the taxpayer between the hours of8:00 A.M. and 7:00P.M. on a business day.
(B)(i) The county board of tax assessors shall use the valuation of the county board of equalization or the arbitrator or arbitrators, as applicable, in compiling the tax digest for the county. If the final determination of value on appeal is less than the valuation set by the county board of equalization, the arbitrator, or the arbitrators, as applicable, the taxpayer shall receive a deduction in such taxpayer's taxes for the year in question. Such deduction shall be refunded to the taxpayer and shall include interest on the amount of such deduction at the same rate as specified in Code Section 48-2-35 which shall accrue from November 15 of the taxable year in question or the date the final installment of the tax was due or was paid, whichever is later. In no event shall the amount of such interest exceed $150.00. (ii) If the final determination of value on appeal is 80 percent or less of the valuation set by the county board of equalization as to commercial property, or 85 percent or less of the valuation set by the county board of tax assessors as to other property, the taxpayer, in addition to the interest provided for by this paragraph, shall recover costs oflitigation and reasonable attorney's fees incurred in the action. This division shall not apply when the property owner has failed to return for taxation the property that is under appeal. (iii) If the final determination of value on appeal is greater than the valuation set by the county board of equalization, the arbitrator, or the arbitrators, as applicable, the taxpayer shall be liable for the increase in taxes for the year in question due to the increased valuation fixed on appeal with interest at the same rate as specified in Code Section 48-2-35. Such interest shall accrue from November 15 of the taxable year in question or the date the final installment of tax was due to the date the additional taxes are remitted, but in no event shall the amount of such interest exceed $150.00. Any taxpayer shall be exempt each taxable year from any such interest owed under this subparagraph with respect to such taxpayer's homestead property.'

SECTION 2A. Said chapter is further amended by revising paragraph (1) of subsection (j) of Code Section 48-5-7.7, relating to forest land conservation use assessment, as follows:
'U)( 1) For the taxable year beginning January 1, 2009, all applications for conservation use assessment under this Code section, including the covenant agreement required under this Code section, shall be filed on or before June 1 of the tax year for which such

GEORGIA LAWS 2009 SESSION

221

conservation use assessment is sought, except that in the case of property which is the subject ofa reassessment by the board of tax assessors an application for conservation use assessment may be filed in conjunction with or in lieu of an appeal of the reassessment. For each taxable year beginning on or after January 1, 2010, all applications for conservation use assessment under this Code section, including the covenant agreement required under this Code section, shall be filed on or before the last day for filing ad valorem tax returns in the county for the tax year for which such conservation use assessment is sought, except that in the case of property which is the subject of a reassessment by the board oftax assessors an application for conservation use assessment may be filed in conjunction with or in lieu of an appeal of the reassessment. An application for continuation of such conservation use assessment upon a change in ownership of all or a part of the qualified property shall be filed on or before the last date for filing tax returns in the year following the year in which the change in ownership occurred. Applications for conservation use assessment under this Code section shall be filed with the county board of tax assessors who shall approve or deny the application. The county board of tax assessors shall file a copy of the approved application in the office of the clerk of the superior court in the county in which the eligible property is located. The clerk of the superior court shall file and index such application in the real property records maintained in the clerk's office. If the application is not so recorded in the real property records, a transferee of the property affected shall not be bound by the covenant or subject to any penalty for its breach. The fee of the clerk of the superior court for recording such applications shall be paid by the qualified owner of the eligible property with the application for conservation use assessment under this Code section and shall be paid to the clerk by the board of tax assessors when the application is filed with the clerk. If the application is denied, the board of tax assessors shall notify the applicant in the same manner that notices of assessment are given pursuant to Code Section 48-5-306 and shall return any filing fees advanced by the owner. Appeals from the denial of an application by the board of tax assessors shall be made in the same manner that other property tax appeals are made pursuant to Code Section 48-5-311.'

SECTION 2B. Said chapter is further !1mended by revising subsection (c) ofCode Section 48-5-161, relating to issuance of tax executions, as follows:
'(c)(l) The officer in whose hands the execution is placed shall proceed at once to collect the execution and, when the execution is paid by the defendant voluntarily or by levy and sale, the officer shall enter the amount collected including all costs, commissions, interest, and penalties as provided by law on the execution. The officer shall return the execution to the tax collector or tax commissioner with the amount of tax collected. The tax collector or tax commissioner shall at once copy the entry of the officer on his or her execution docket and file the execution in his or her office.

222

GENERAL ACTS AND RESOLUTIONS, VOL. I

(2)(A) As used in this paragraph, the term 'costs' includes, but is not limited to, title examination expenses, certified mail expenses, reasonable attorney's fees, or other such necessary research expenses. (B) Once an execution is issued against a delinquent or defaulting taxpayer, the sheriff or ex officio sheriff shall collect, in addition to any other costs, commissions, interest, and penalties, the actual expenses incurred by the county in issuing the execution and administering the levy by imposing a levy administration fee which shall be 5 percent of the delinquent tax or $250.00, whichever is the lesser. Regardless of any other provision of this paragraph, however, no such levy administration fee shall be less than $50.00. (3) The levy administration fee provided by paragraph (2) of this subsection shall likewise be charged and collected when the execution is enforced through garnishment as provided for in Code Section 48-3-12."

SECTION 2C. Said chapter is further amended by revising subsection (a) of Code Section 48-5-306, relating to notice of changes made in taxpayer's return, posting notice, and new assessment description, as follows:
"(a) Method ofgiving notice to taxpayer ofchanges made in such taxpayer's return. Each county board of tax assessors may meet at any time to receive and inspect the tax returns to be laid before it by the tax receiver or tax commissioner. The board shall examine all the returns of both real and personal property of each taxpayer, and if in the opinion of the board any taxpayer has omitted from such taxpayer's returns any property that should be returned or has failed to return any of such taxpayer's property at its fair market value, the board shall correct the returns, assess and fix the fair market value to be placed on the property, make a note of such assessment and valuation, and attach the note to the returns. The board shall see that all taxable property within the county is assessed and returned at its fair market value and that fair market values as between the individual taxpayers are fairly and justly equalized so that each taxpayer shall pay as nearly as possible only such taxpayer's proportionate share of taxes. When any such corrections, changes, or equalizations have been made by the board, the board shall give written notice to the taxpayer of any changes made in such taxpayer's returns. The notice may be given personally by leaving the notice at the taxpayer's dwelling house, usual place of abode, or place of business with some person of suitable age and discretion residing or employed in the house, abode, or business, or by sending the notice through the United States mail as first-class mail to the taxpayer's last known address. When notice is given by mail, the county board oftax assessors' return address shall appear in the upper left comer ofthe face of the mailing envelope and with the United States Postal Service endorsement 'Return Service Requested' and the words 'Official Tax Matter' clearly printed in boldface type in a location which meets United States Postal Service regulations.'

GEORGIA LAWS 2009 SESSION

223

SECTION 2D. Said chapter is further amended by revising subsection (b) ofCode Section 48-5-511, relating to returns of public utilities to commissioner, as follows:
'(b) The returns of each public utility shall be in writing and sworn to under oath by the chief executive officer to be a just, true, and full return of the fair market value of the property of the public utility without any deduction for indebtedness. Each class or species of property shall be separately named and valued as far as practicable and shall be taxed like all other property under the laws of this state. The returns shall also include the capital stock, net annual profits, gross receipts, business, or income (gross, annual, net, or any other kind) for which the public utility is subject to taxation by the laws of this state. Each parcel of real estate included in the return shall be identified by its street address. If the commissioner is unable to locate the property by its street address after exercising due diligence in attempting to locate the property, then the commissioner may request more information from the taxpayer to help identify the exact location of the property. Such additional information may include a map or parcel identification information.'

SECTION 3. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and Sections I and 2 of this Act shall be applicable to all property tax appeals submitted to arbitration or appealed to superior court on or after that date.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved April29, 2009.

CRIMES - CRIMINAL PROCEDURE LIFE WITHOUT PAROLE.
No. 62 (Senate Bill No. 13).
AN ACT
To amend Code Section 16-5-1 and Chapter 10 of Title 17 of the Official Code of Georgia Annotated, relating to murder and felony murder and sentencing and punishment, respectively, so as to provide for the imposition of life without parole of persons convicted of murder independently of a death penalty prosecution; to provide that the sentence of life without parole may be imposed without the necessity of the trier of fact making a recommendation of such sentence or finding statutory aggravating circumstances; to change

224

GENERAL ACTS AND RESOLUTIONS, VOL. I

certain provisions relating to punishment for serious violent offenders; to repeal certain provisions relating to imprisonment for life without parole and finding statutory aggravating circumstance; to provide for certain information to be reported to the court under certain circumstances; to repeal provisions relating to duties of the judge and certain jury instructions; to repeal provisions relating to sentencing of person subject to death penalty or life without parole upon a plea of guilty and the duties of the judge; to provide for related matters; to provide an effective date; to provide for applicability; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Title 16 of the Official Code of Georgia Annotated, relating to crimes and offenses, is amended by revising subsection (d) of Code Section 16-5-1, relating to murder, as follows:
'(d) A person convicted of the offense of murder shall be punished by death, by imprisonment for life without parole, or by imprisonment for life.'

SECTION 2. Chapter 10 of Title 17 of the Official Code of Georgia Annotated, relating to sentencing and punishment in criminal cases, is amended by revising Code Section 17-10-2, relating to conducting presentence hearings in felony cases and the effect of reversal for error in presentence hearings, as follows:
'17-10-2. (a)(!) Except in cases in which the death penalty may be imposed, upon the return of a verdict of 'guilty' by the jury in any felony case, the judge shall dismiss the jury and shall conduct a presentence hearing at which the only issue shall be the determination of punishment to be imposed. In the hearing the judge shall hear additional evidence in extenuation, mitigation, and aggravation ofpunishment, including the record of any prior criminal convictions and pleas ofguilty or nolo contendere of the accused, or the absence of any prior conviction and pleas. (2) The judge shall also hear argument by the accused or the accused's counsel and the prosecuting attorney, as provided by law, regarding the punishment to be imposed. Except in cases where the death penalty may be imposed, the prosecuting attorney shall open and conclude the argument. In cases where the death penalty may be imposed, the prosecuting attorney shall open and the accused or the accused's counsel shall conclude the argument. (3) Upon the conclusion of the evidence and arguments, the judge shall impose the sentence or shall recess the trial for the purpose of taking the sentence to be imposed under advisement. The judge shall fix a sentence within the limits prescribed by law.

GEORGIA LAWS 2009 SESSION

225

(b) In cases in which the death penalty may be imposed, the judge, when sitting without a jury, in addition to the procedure set forth in subsection (a) of this Code section, shall follow the procedures provided for in Code Section 17-10-30. (c) In all cases tried by a jury in which the death penalty may be imposed, upon a return of a verdict of'guilty' by the jury, the court shall resume the trial and conduct a presentence hearing before the jury. The hearing shall be conducted in the same manner as presentence hearings conducted before the judge as provided for in subsection (a) of this Code section. Upon the conclusion of the evidence and arguments, the judge shall give the jury appropriate instructions, and the jury shall retire to determine whether any mitigating or aggravating circumstances, as defined in Code Section 17-10-30, exist and whether to recommend mercy for the accused. Upon the findings of the jury, the judge shall fix a sentence within the limits prescribed by law. (d) If the trial court is reversed on appeal because of error only in the presentence hearing, the new trial which may be ordered shall apply only to the issue of punishment.'

SECTION 3. Said chapter is further amended by revising subsection (c) of Code Section 17-10-6.1, relating to punishment for serious violent offenders, as follows:
'(c)(1) Except as otherwise provided in subsection (c) of Code Section 42-9-39, for a first conviction of a serious violent felony in which the accused has been sentenced to life imprisonment, that person shall not be eligible for any form of parole or early release administered by the State Board of Pardons and Paroles until that person has served a minimum of 30 years in prison. The minimum term of imprisonment shall not be reduced by any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections. (2) For a first conviction of a serious violent felony in which the accused has been sentenced to death but the sentence of death has been commuted to life imprisonment, that person shall not be eligible for any form of parole or early release administered by the State Board of Pardons and Paroles until that person has served a minimum of 30 years in prison. The minimum term of imprisonment shall not be reduced by any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections. (3) For a first conviction of a serious violent felony in which the accused has been sentenced to imprisonment for life without parole, that person shall not be eligible for any form of parole or early release administered by the State Board of Pardons and Paroles or for any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections. (4) Except as otherwise provided in this subsection, any sentence imposed for the first conviction of any serious violent felony shall be served in its entirety as imposed by the sentencing court and shall not be reduced by any form of parole or early release administered by the State Board of Pardons and Paroles or by any earned time, early

226

GENERAL ACTS AND RESOLUTIONS, VOL. I

release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections, the effect of which would be to reduce the period of incarceration ordered by the sentencing court."

SECTION 4. Said chapter is further amended by repealing Code Section 17-10-30.1, relating to imprisonment for life without parole and finding of statutory aggravating circumstance required.

SECTION 5. Said chapter is further amended by revising Code Section 17-10-31, relating to the requirements of a jury finding aggravating circumstance and recommendation of death penalty prior to imposition, as follows:
'17-10-31. (a) Where, upon a trial by jury, a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the jury verdict includes a finding ofat least one statutory aggravating circumstance and a recommendation that such sentence be imposed. Where a statutory aggravating circumstance is found and a recommendation of death is made, the court shall sentence the accused to death. Where a statutory aggravating circumstance is not found or where a statutory circumstance is found but a recommendation of death is not made, the jury shall decide whether to recommend a sentence of life imprisonment without parole or life imprisonment with the possibility of parole. Unless the jury trying the case makes a finding of at least one statutory aggravating circumstance and recommends the death sentence in its verdict, the court shall not sentence the accused to death, provided that no such finding of statutory aggravating circumstance shall be necessary in offenses of treason or aircraft hijacking. This Code section shall not affect a sentence when the case is tried without a jury or when the judge accepts a plea of guilty. (b) During the sentencing phase before a jury, counsel for the state and the accused may present argument and the trial judge may instruct the jury:
(1) That 'life without parole' means that the accused shall be incarcerated for the remainder of his or her natural life and shall not be eligible for parole unless such person is subsequently adjudicated to be not guilty of the offense for which he or she was sentenced; and (2) That 'life imprisonment' means that the accused will be incarcerated for the remainder of his or her natural life but will be eligible for parole during the term of such sentence. (c) If the jury is unable to reach a unanimous verdict as to sentence, the judge shall dismiss the jury and shall impose a sentence of either life imprisonment or imprisonment for life without parole."

GEORGIA LAWS 2009 SESSION

227

SECTION 6. Said chapter is further amended by repealing Code Section 17-10-31.1, relating to the requirement of a jury finding of aggravating circumstance and recommendation of sentence of death or life without parole, duties of the judge, and jury instruction on meaning of "life without parole" and "life imprisonment."

SECTION 7. Said chapter is further amended by repealing Code Section 17-10-32.1, relating to sentencing of person subject to death penalty or life without parole upon a plea of guilty and the duties of the judge.

SECTION 8. Except as provided in this section, the provisions of this Act shall apply only to those offenses committed after the effective date of this Act. With express written consent of the state, an accused whose offense was committed prior to the effective date of this Act may elect in writing to be sentenced under the provisions of this Act, provided that: (I) jeopardy for the offense charged has not attached or (2) the accused has been sentenced to death but the conviction or sentence has been reversed on appeal and the state is not barred from seeking prosecution after the remand.

SECTION 9. Except as provided in Section 8 of this Act, the amendment or repeal of a Code section by this Act shall not affect any sentence imposed by any court of this state prior to the effective date of this Act.

SECTION 10. A person may be sentenced to life without parole without the prosecutor seeking the death penalty under the laws of this state.

SECTION 11. (a) This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply to all crimes committed on and after such date, and except as provided in Section 8 of this Act, the law as set forth in Section 2 and in Sections 3 through 7 of this Act as it existed prior to the effective date of this Act shall apply to all offenses committed on and before such date. (b) The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment.

228

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 12. All laws and parts of laws in conflict with this Act are repealed.

Approved April 29, 2009.

EDUCATION- MOVE ON WHEN READY ACT.
No. 63 (House Bill No. 149).
AN ACT.
To amend Part 4 of Article 6 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to financing under the "Quality Basic Education Act," so as to enact the "Move on When Ready Act"; to provide for definitions; to provide a program for eleventh and twelfth grade students to attend postsecondary colleges and schools for high school credit; to provide for notice to parents and students of the program; to provide requirements for course credit; to provide for state funding; to provide for testing; 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 referred to as the "Move on When Ready Act."
SECTION 2. Part 4 of Article 6 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to financing under the "Quality Basic Education Act," is amended by adding a new Code section to read as follows:
'20-2-161.3. (a) For purposes of this Code section, the term:
(I) 'Department' means the Department of Education. (2) 'Eligible institution' or 'institution' means any eligible postsecondary institution as defined in paragraph (7) of Code Section 20-3-519. (3) 'Eligible student' means a student entering eleventh or twelfth grade who spent the prior school year in attendance at a public high school in this state. (4) 'Prior school year in attendance' means that the student was reported as enrolled in a public school for funding purposes during the preceding October and March full-time equivalent (FTE) program counts in accordance with Code Section 20-2-160.

GEORGIA LAWS 2009 SESSION

229

(5) 'Program' means the arrangement authorized by this Code section whereby an eligible student takes all of his or her courses at or through an eligible institution or a virtual course approved by the State Board of Education and receives secondary credit from his or her high school with the goal of completing graduation and high school diploma requirements. (6) 'Secondary credit' means high school credit for courses taken at an eligible institution under the program. (b) Any eligible student may apply to an eligible institution to take courses at or through that institution which are approved for secondary credit pursuant to subsection (d) of this Code section. If accepted at an eligible institution, such eligible student may take any such approved course at that institution, whether or not the course is taught during the regular public school day, and receive secondary credit therefor under the conditions provided in this Code section. An eligible institution which accepts an eligible student authorized to apply for enrollment under the program shall not receive any state funds for that student unless such institution complies with the requirements of this Code section regarding eligible institutions. (c) The department shall develop appropriate forms and counseling guidelines for the program and shall make such forms and guidelines available to local school systems and eligible institutions. No later than the first day of April each year, each local school system shall provide general information about the program, including such forms, to all its tenth and eleventh grade students. A local school system shall also provide counseling services in accordance with the counseling guidelines provided by the department to such students and their parents or guardians before the students enroll in the program. Prior to participating in the program, the student and the student's parent or guardian shall sign the form provided by the school system or by an eligible institution stating that they have received the counseling specified in this subsection and that they understand the responsibilities that shall be assumed in participating in the program. (d)( I) A local school system shall grant academic credit to an eligible student enrolled in a course in an eligible institution if that course has been approved by the State Board of Education and if such student successfully completes that course. The State Board of Education shall approve any such course which is substantially comparable to a state approved course. The secondary credit granted shall be for the comparable course and course hours approved by the State Board of Education. Upon completion of an eligible institution's approved course, the eligible student shall be responsible for requesting that the institution notify the student's local school system regarding his or her grade in that course. (2) Secondary school credits granted for eligible institution courses under paragraph (1) of this subsection shall be counted toward State Board of Education graduation requirements and subject area requirements of the local school system. Evidence of successful completion of each course and secondary credits granted shall be included in the eligible student's secondary school records.

230

GENERAL ACTS AND RESOLUTIONS, VOL. I

(3) The State Board of Education shall establish rules to require local school systems to award a high school diploma to any eligible student who is enrolled at an eligible institution under the program as long as the credit earned at such institution satisfies course requirements needed for the eligible student to complete high school graduation. The department shall consult the Board of Regents of the University System of Georgia and the State Board of Technical and Adult Education in developing rules and regulations to be recommended to the State Board of Education for approval regarding the eligibility criteria for program participation. (e)( I) The department shall pay to eligible institutions through appropriation of state funds the lesser of the following amounts for each participating eligible student enrolled therein, less a records fee of $200.00 for administration costs of the local school system:
(A) The actual cost of tuition, materials, and fees directly related to the courses taken by the eligible student at such institution; or (B) The amount that the participating eligible student would have earned under this article if he or she had been in equivalent instructional programs in the local school system. (2) The total allotment of state funds to the local school system in which a participating student is enrolled at an eligible institution pursuant to this Code section shall be calculated as otherwise provided in this article with an ensuing reduction equivalent to the amount of state funds appropriated to such eligible institution pursuant to this subsection. (3) The records fee contained in paragraph (1) of this subsection may be increased by the State Board of Education by up to 4 percent annually, at the board's sole discretion. (4) An eligible institution shall not charge an eligible student for coursework taken pursuant to this program and shall accept the payment made pursuant to paragraph (1) of this subsection as full payment for such eligible student. (f) The State Board ofEducation shall establish rules and regulations relating to applicable state and federal testing requirements for eligible students participating in the program. (g) An eligible student enrolled in an eligible institution for secondary credit shall not be eligible for any other state student financial aid at an eligible institution for courses taken under the program. (h) Hours for courses taken at an eligible institution pursuant to this Code section by a participating eligible student shall not count against any maximum hourly caps which may be applicable for purposes of HOPE scholarships or grants. (i) Any person who knowingly makes or furnishes any false statement or misrepresentation, or who accepts such statement or misrepresentation knowing it to be false, for the purpose of enabling an eligible institution to obtain wrongfully any payment under this Code section shall be guilty of a misdemeanor:

GEORGIA LAWS 2009 SESSION

231

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved Apri129, 2009.

CONTRACTS- PARTIAL RESTRAINT OF TRADE; REPEAL PROVISIONS; COMMERCIAL AGREEMENTS; RESTRICTIVE COVENANTS.
No. 64 (House Bill No. 173).
AN ACT
To amend Chapter 8 of Title 13 ofthe Official Code of Georgia Annotated, relating to illegal or void contracts generally, so as to repeal Code Section 13-8-2.1, relating to contracts in partial restraint of trade; to provide a statement of legislative findings; to define certain terms; to provide for applicability; to provide for the enforcement of contracts that restrict or prohibit competition in certain commercial agreements; to provide for the judicial enforcement of such provisions; to provide for the modification of such provisions; to provide for rebuttable presumptions; to provide for related matters; to provide for a contingent effective date, applicability, and automatic repeal; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 8 of Title 13 of the Official Code of Georgia Annotated, relating to illegal and void contracts generally, is amended by revising subsection (a) of Code Section 13-8-2, relating to contracts contravening public policy, as follows:
'(a) A contract that is against the policy of the law cannot be enforced. Contracts deemed contrary to public policy include but are not limited to:
( 1) Contracts tending to corrupt legislation or the judiciary; (2) Contracts in general restraint of trade, as distinguished from contracts which restrict certain competitive activities, as provided in Article 4 of this chapter; (3) Contracts to evade or oppose the revenue laws of another country; (4) Wagering contracts; or (5) Contracts of maintenance or champerty."

232

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 2. Said chapter is further amended by repealing Code Section 13-8-2.1, relating to contracts in partial restraint of trade, which reads as follows:
II 13-8-2.1. (a) Contracts that restrain in a reasonable manner any party thereto from exercising any trade, business, or employment are contracts in partial restraint of trade and shall not be considered against the policy of the law, and such partial restraints, so long as otherwise lawful, shall be enforceable for all purposes. Without limiting the generality of the foregoing, contracts of the type described in subsections (b) through (d) of this Code section are considered to be reasonable.
(b)(!) As used in this subsection, the term: (A) 'Affiliate' means: (i) a person or entity that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a specified person or entity; (ii) any entity of which a specified person is an officer, director, or partner or holds an equity interest or ownership position that accounts for 25 percent or more of the voting or profits interest of such entity; (iii) any trust or other estate in which the specified person or entity has a beneficial interest of 25 percent or more or as to which such person or entity serves as trustee or in a similar fiduciary capacity; and (iv) the spouse, lineal ancestors, lineal descendants, and siblings of the specified person, as well as their spouses. (B) 'Business' means any line of trade or business involved in a sale. (C) 'Buyer' means any person or entity, including any successor-in-interest to such an entity, that acquires a business or a controlling interest in a business. (D) 'Controlling interest' means any equity interest or ownership participation held by a person or entity with respect to a business: (i) which accounts for 25 percent or more of the voting or profits interest of the business prior to the sale, alone or in combination with the interest or participation held by affiliates of such person or entity; or (ii) the sale of which results in the owner thereof receiving consideration worth at least $500,000.00, inclusive of any consideration received for the sale of business covenant. (E) 'Sale' means any sale or transfer of the good will or substantially all of the assets of a business or any sale or transfer of a controlling interest in a business, whether by sale, exchange, redemption, merger, or otherwise. (F) 'Sale of business covenant' means any agreement described in paragraph (2) of this subsection or any substantially equivalent agreement. (G) 'Seller' means any person or entity, including any successor-in-interest to such an entity, that is: (i) an owner of a controlling interest; (ii) an executive employee, officer, or manager of the business who receives, as a minimum, consideration in connection with either the sale or the sale of business covenant that is worth the equivalent of such person's most recent annual base salary or is in the form of a commitment of continued employment for a period of at least one year; or (iii) an affiliate of a person or entity described in division (i) of this subparagraph; provided, however, that each sale of

GEORGIA LAWS 2009 SESSION

233

business covenant shall be binding only on the person or entity entering into such covenant, its successors-in-interest, and, if so specified in the covenant, any entity that directly or indirectly through one or more intermediaries is controlled by or is under common control of such person or entity. (2) A seller may agree in writing for the benefit of a buyer to refrain from: (A) Carrying on or engaging in any activity competitive with the business; or (B) Soliciting or accepting business from the business's customers which were customers at or prior to the time of the sale, including actively sought prospective customers, for purposes of providing products or services competitive with those provided by the business within the geographic area or areas where the business conducts its operations at the time of the sale, including any area where the business's customers and actively sought prospective customers are present and including any area into which the business is reasonably expected to expand, provided that such activity, business, and area must be described in such writing. A sale of business covenant may, if reasonable to protect the interests of the buyer or the good will of the business, be worldwide. A sale of business covenant may extend for any period of time that is reasonable to protect the interests of the buyer or the good will ofthe business. Each sale ofbusiness covenant shall, however, be considered to terminate at the time the business is discontinued or either the seller, including all successors-in-interest, or the buyer, including all successors-in-interest, ceases to exist. (c)(l) As used in this subsection, the term: (A) 'Business' means any line of trade or business conducted by an employer. (B) 'Employee' means: (i) an executive employee, officer, manager, or key employee; (ii) research and development personnel or other persons or entities, including independent contractors, in possession of confidential information that is important to the business; (iii) any other person or entity, including an independent contractor, in possession of selective or specialized skills, learning, or abilities or customer contacts or customer information; or (iv) any party to a partnership agreement, franchise, distributorship, or license agreement or sales agent, broker, representative, or supervisor. The term 'employee' shall not include, however, any employee who lacks selective or specialized skills, learning, customer contacts, or abilities. (C) 'Employer' means any corporation, partnership, proprietorship, or other organization, including any successor-in-interest to such an entity, that conducts a business or any person or entity that directly or indirectly owns an equity interest or ownership participation in such an entity that accounts for 50 percent or more of the voting or profits interest of such entity. (D) 'Material contact' exists between an employee and each customer or potential customer: (i) with whom the employee dealt; (ii) whose dealings with the employer were coordinated or supervised by the employee; (iii) about whom the employee obtained confidential information in the ordinary course of business as a result of such

234

GENERAL ACTS AND RESOLUTIONS, VOL. I

employee's association with the employer; or (iv) who receives products or services authorized by the employer, the sale or provision of which results or resulted in compensation, commissions, or earnings for the employee within two years prior to the date of the employee's termination. (E) 'Post-employment covenant' includes any agreement described in paragraphs (2) through (4) of this subsection or any substantially equivalent agreement. (F) 'Products or services' means anything of commercial value, including without limitation goods; personal, real, or intangible property; services; financial products or services; business opportunities or assistance; or any other object or aspect of business or the conduct thereof. (G) 'Termination' means the termination of an employee's engagement with an employer, whether with or without cause and upon the initiative of either party, provided that any possible inequity that results from the discharge of an employee without cause or in violation of a contractual or other legal obligation of the employer may be considered as a factor affecting the choice of an appropriate remedy or, if the restraint as a whole is rendered unreasonable, the unenforceability thereof. For purposes of this definition, 'the discharge of an employee without cause' does not include (i) a termination ofa partnership agreement, franchise, distributorship, or license agreement or a sales agent, broker, representative, or supervisor agreement in accordance with the terms of the agreement or upon the completion or expiration of the agreement, (ii) any termination under retirement programs of the employer, (iii) any termination that follows the employee's refusal to accept an offer ofcontinued employment on terms and conditions at least as favorable to the employee as those previously in effect, or (iv) any termination under circumstances where the employee remains or becomes entitled to receive earnings, commissions, or benefits that serve as compensation, at least in part, for the employee's compliance with the post-termination covenants. (2) An employee may agree in writing for the benefit of an employer to refrain, for a stated period of time following termination, from conducting activity that is competitive with the activities the employee conducted for the employer within the geographic area or areas where the employee conducted such activities at or within a reasonable period of time prior to termination, provided that such activity and area must be described in such writing. The geographic area in which an employee works may include any area where any operations performed, supervised, or assisted in by the employee were conducted and any area where customers or actively sought prospective customers of the business with whom the employee had material contact are present. (3) An employee may agree in writing for the benefit of an employer to refrain, for a stated period of time following termination, from soliciting or accepting, or attempting to solicit or accept, directly or by assisting others, any business from any of such business's customers, including actively sought prospective customers, with whom the employee had material contact during his employment for purposes ofproviding products or services that are competitive with those provided by the employer's business. No

p

GEORGIA LAWS 2009 SESSION

235

express reference to geographic area or the types of products or services considered to be competitive shall be required in order for the restraint to be enforceable. Any reference to a prohibition against 'soliciting or accepting business from customers,' or similar language, shall be adequate for such purpose and narrowly construed to apply only to: (A) such of the business's customers, including actively sought prospective customers, with whom the employee had material contact; and (B) products and services that are competitive with those provided by the employer's business. (4) An employee may agree in writing for the benefit of an employer to refrain, for a stated period of time following termination, from recruiting or hiring, or attempting to recruit or hire, directly or by assisting others, any other employee of the employer or its affiliates. No express reference to geographic area shall be required. Any reference to a prohibition against recruiting or hiring, or attempting to recruit or hire, other employees shall be narrowly construed to apply only to other employees who are still actively employed by or doing business with the employer or its affiliates at the time of the attempted recruiting or hiring. (5) To the extent so stated in the post-employment covenant, a post-employment covenant may provide that any violation of the restraint shall automatically toll and suspend the period of the restraint for the amount of time that the violation continues, provided that the employer seeks enforcement promptly after discovery of the violation. (6) A duration of two years or less in the case of a restraint of the type described in paragraph (2) of this subsection, and three years or less in the case of a restraint of the type described in paragraphs (3) and (4) of this subsection shall be presumed to be reasonable as the period of time stated for any post-employment covenant. (d) Any restriction that operates during the term of an employment agreement, agency agreement, independent contractor agreement, partnership agreement, franchise, distributorship agreement, license, shareholders' agreement, or other ongoing business agreement shall not be considered unreasonable because it lacks any specific limitation upon scope of activity, duration, or territory, so long as it promotes or protects the purpose or subject matter of the agreement or deters any potential conflict of interest. (e)(l) Activities, products, or services that are competitive with the activities, products, or services of an employer may include activities, products, or services that are the same as or similar to the activities, products, or services of the employer. Whenever a description of activities, products and services, or areas is required by this Code section, any description that provides fair notice ofthe maximum reasonable scope ofthe restraint shall satisfy such requirement, even if the description is generalized or could possibly be stated more narrowly to exclude extraneous matters. (2) In the case of a post-employment covenant entered into prior to termination, any good faith estimate of the activities, products and services, or areas that may be applicable at the time of termination shall also satisfy such requirement, even if such estimate is capable of including or ultimately proves to include extraneous activities, products and services, or areas. The post-employment covenant shall be construed

t
I

236

GENERAL ACTS AND RESOLUTIONS, VOL. I

ultimately to cover only so much of such estimate as relates to the activities actually conducted, the products and services actually offered, or the areas actually involved within a stated period of time prior to termination. Activities, products, or services shall be considered sufficiently described if a reference to the activities, products, or services is provided and qualified by the phrase 'of the type conducted, authorized, offered, or provided within one year prior to termination,' or similar language. Further, the phrase 'the areas where the (employee) is working at the time of (termination)' shall be considered sufficient as a description of areas if the person or entity bound by the restraint can reasonably determine the maximum reasonable scope of the restraint at the time of termination. (f)(l) Whenever a person or entity desires to verify the terms of any partial restraint in effect at any time, or to obtain a clarification of a restraint believed to be unclear, such person or entity may, at its option, demand such verification or clarification by delivering to the persons or entities that benefit from such restraint a written statement that contains: (A) ifverification is sought, a request for a copy of each partial restraint in effect between the parties; or (B) if clarification is sought, a description of the clarification requested; and (C) in all cases, the following statement: 'THIS DEMAND IS MADE PURSUANT TO CODE SECTION 13-8-2.1([)(2) OF THE OFFICIAL CODE OF GEORGIA ANNOTATED AND REQUIRES A RESPONSE WITHIN 30 DAYS.' (2) Within 30 days after such other persons or entities or their authorized representatives have received such demand in person, they shall respond by sending the person or entity bound by the restraint the requested information or, if clarification is considered to be unnecessary because the restraint is believed to be clear, a statement to that effect. In no event shall such a response be required to include confidential information or business strategies as part of any clarification. (3) In the interest of reducing or eliminating any unclear or overbroad aspect of the restraint, the persons or entities that benefit from any existing restraint may provide the persons or entities bound by such restraint with a clarification or reformulation of the restraint, whether or not the clarification or reformulation was requested, so long as it is no broader than the terms of the original restraint. Any clarification or reformulation on lesser terms so provided by the persons or entities that benefit from the restraint shall supersede any conflicting terms of the restraint and be binding regardless of whether additional consideration is provided. The person or entity bound by the restraint may rely absolutely on such clarification or reformulation in complying with the terms of such restraint. (4) Any failure or delay of the persons or entities that benefit from such restraint to respond to such a demand shall be considered as one factor by a court in determining how much of an unclear or overbroad restraint may be enforced as lawfully serving the business purposes and interests contemplated by the parties in their agreement. In addition, if the procedure provided for in this subsection is followed for the benefit of anyone who wishes to employ or do business with a person or entity, any subsequent

GEORGIA LAWS 2009 SESSION

237

enforcement of any restraint that was unknown, unclear, or overbroad but that is not properly identified, clarified, or reformulated by the persons or entities that benefit from the restraint following their receipt of such a demand shall be limited so as to avoid prejudice to the employment or business to which the unknown, unclear, or overbroad aspects of the restraint relate. (g)(l) Every court of competent jurisdiction shall enforce through any appropriate remedy every contract in partial restraint of trade that is not against the policy of the law or otherwise unlawful. In the absence of extreme hardship on the part of the person or entity bound by such restraint, injunctive relief shall be presumed to be an appropriate remedy for the enforcement of the contracts described in subsections (b) through (d) of this Code section. If any portion of such restraint is against the policy of the law in any respect but such restraint, considered as a whole, is not so clearly unreasonable and overreaching in its terms as to be unconscionable, the court shall enforce so much of such restraint as it determines by a preponderance of the evidence to be necessary to protect the interests ofthe parties that benefit from such restraint. Such a restraint shall be subject to partial enforcement, whether or not it contains a severability or similar clause and regardless of whether the unlawful aspects of such restraint are facially severable from those found lawful. (2) The enforceability of any partial restraint of trade shall be determined and shall be enforced independently of the enforceability of any other covenant or part thereof contained in the same contract or arrangement. (3) Contractual terms that provide for a loss or forfeiture of rights or benefits conditioned upon any specified act or event shall not be considered a restraint of trade. The fact that any such loss or forfeiture provision is contained in the same agreement or contract with an otherwise valid partial restraint of trade shall not impair the validity or enforceability of either such loss or forfeiture provision or such restraint, and the enforcement of either term shall not serve as grounds for delaying or withholding enforcement of the other term, including enforcement by injunctive relief. If a loss or forfeiture provision is contained in an agreement or contract that also contains other terms that are determined to be, in some respects, an unreasonable and unenforceable restraint of trade, such loss or forfeiture provision shall nonetheless be enforceable to the extent it may lawfully serve the purposes and interests of the parties that benefit from such provision. Such a loss or forfeiture provision shall be subject to enforcement, whether or not it contains a severability or similar clause, and regardless of whether the unlawful aspects of such restraint are facially severable from those found to be unlawful."

SECTION 3. Said chapter is further amended by adding a new article to read as follows:

238

GENERAL ACTS AND RESOLUTIONS, VOL. I

"ARTICLE 4

13-8-50. The General Assembly finds that reasonable restrictive covenants contained in employment and commercial contracts serve the legitimate purpose of protecting legitimate business interests and creating an environment that is favorable to attracting commercial enterprises to Georgia and keeping existing businesses within the state. Further, the General Assembly desires to provide statutory guidance so that all parties to such agreements may be certain of the validity and enforceability of such provisions and may know their rights and duties according to such provisions.

13-8-51. As used in this article, the term:
(1) 'Affiliate' means: (A) A person or entity that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with another person or entity; (B) Any entity of which a person is an officer, director, or partner or holds an equity interest or ownership position that accounts for 25 percent or more of the voting rights or profit interest of such entity; (C) Any trust or other estate in which the person or entity has a beneficial interest of 25 percent or more or as to which such person or entity serves as trustee or in a similar fiduciary capacity; or (D) The spouse, lineal ancestors, lineal descendants, and siblings of the person, as well as each of their spouses.
(2) 'Business' means any line of trade or business conducted by the seller or employer, as such terms are defined in this Code section. (3) 'Confidential information' means data and information:
(A) Relating to the business of the employer, regardless of whether the data or information constitutes a trade secret as that term is defined in Article 1 of Chapter 10 ofTitle 10; (B) Disclosed to the employee or of which the employee became aware of as a consequence of the employee's relationship with the employer; (C) Having value to the employer; (D) Not generally known to competitors of the employer; and (E) Which includes trade secrets, methods ofoperation, names ofcustomers, price lists, financial information and projections, route books, personnel data, and similar information; provided, however, that such term shall not mean data or information (A) which has been voluntarily disclosed to the public by the employer, except where such public disclosure has been made by the employee without authorization from the employer; (B) which has

GEORGIA LAWS 2009 SESSION

239

been independently developed and disclosed by others; or (C) which has otherwise entered the public domain through lawful means. (4) 'Controlling interest' means any equity interest or ownership participation held by a person or entity with respect to a business that accounts for 25 percent or more of the voting rights or profit interest of the business prior to the sale, alone or in combination with the interest or participation held by affiliates of such person or entity. (5) 'Employee' means:
(A) An executive employee; (B) Research and development personnel or other persons or entities of an employer, including, without limitation, independent contractors, in possession of confidential information that is important to the business of the employer; (C) Any other person or entity, including an independent contractor, in possession of selective or specialized skills, learning, or abilities or customer contacts, customer information, or confidential information who or that has obtained such skills, learning, abilities, contacts, or information by reason of having worked for an employer; or (D) A franchisee, distributor, lessee, licensee, or party to a partnership agreement or a sales agent, broker, or representative in connection with franchise, distributorship, lease, license, or partnership agreements. Such term shall not include any employee who lacks selective or specialized skills, learning, or abilities or customer contacts, customer information, or confidential information. (6) 'Employer' means any corporation, partnership, proprietorship, or other business organization, whether for profit or not for profit, including, without limitation, any successor in interest to such an entity, who or that conducts business or any person or entity who or that directly or indirectly owns an equity interest or ownership participation in such an entity accounting for 25 percent or more of the voting rights or profit interest of such entity. Such term also means the buyer or seller of a business organization. (7) 'Executive employee' means a member of the board of directors, an officer, a key employee, a manager, or a supervisor of an employer. (8) 'Key employee' means an employee who, by reason of the employer's investment of time, training, money, trust, exposure to the public, or exposure to customers, vendors, or other business relationships during the course of the employee's employment with the employer, has gained a high level of notoriety, fame, reputation, or public persona as the employer's representative or spokesperson or has gained a high level of influence or credibility with the employer's customers, vendors, or other business relationships or is intimately involved in the planning for or direction of the business of the employer or a defined unit of the business of the employer. Such term also means an employee in possession of selective or specialized skills, learning, or abilities or customer contacts or customer information who has obtained such skills, learning, abilities, contacts, or information by reason of having worked for the employer. (9) 'Legitimate business interest' includes, but is not limited to:

240

GENERAL ACTS AND RESOLUTIONS, VOL. I

(A) Trade secrets, as defined by Code Section 10-1-761, et seq.; (B) Valuable confidential information that otherwise does not qualify as a trade secret; (C) Substantial relationships with specific prospective or existing customers, patients, vendors, or clients; (D) Customer, patient, or client good will associated with:
(i) An ongoing business, commercial, or professional practice, including, but not limited to, by way of trade name, trademark, service mark, or trade dress; (ii) A specific geographic location; or (iii) A specific marketing or trade area; and (E) Extraordinary or specialized training. (10) 'Material contact' means the contact between an employee and each customer or potential customer: (A) With whom or which the employee dealt on behalf of the employer; (B) Whose dealings with the employer were coordinated or supervised by the employee; (C) About whom the employee obtained confidential information in the ordinary course of business as a result of such employee's association with the employer; or (D) Who receives products or services authorized by the employer, the sale or provision of which results or resulted in compensation, commissions, or earnings for the employee within two years prior to the date of the employee's termination. (11) 'Modification' means the limitation of a restrictive covenant to render it reasonable in light of the circumstances in which it was made. Such term shall include: (A) Severing or removing that part of a restrictive covenant that would otherwise make the entire restrictive covenant unenforceable; and (B) Enforcing the provisions of a restrictive covenant to the extent that the provisions are reasonable. (12) 'Modify' means to make, to cause, or otherwise to bring about a modification. (13) 'Products or services' means anything of commercial value, including, without limitation, goods; personal, real, or intangible property; services; financial products; business opportunities or assistance; or any other object or aspect of business or the conduct thereof. (14) 'Professional' means an employee who has as a primary duty the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction or requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor. Such term shall not include employees performing technician work using knowledge acquired through on-the-job and classroom training, rather than by acquiring the knowledge through prolonged academic study, such as might be performed, without limitation, by a mechanic, a manual laborer, or a ministerial employee. (15) 'Restrictive covenant' means an agreement between two or more parties that exists to protect the first party's or parties' interest in property, confidential information,

GEORGIA LAWS 2009 SESSION

241

customer good will, business relationships, employees, or any other economic advantages that the second party has obtained for the benefit of the first party or parties, to which the second party has gained access in the course of his or her relationship with the first party or parties, or which the first party or parties has acquired from the second party or parties as the result of a sale. Such restrictive covenants may exist within or ancillary to contracts between or among employers and employees, distributors and manufacturers, lessors and lessees, partnerships and partners, employers and independent contractors, franchisors and franchisees, and sellers and purchasers of a business or commercial enterprise and any two or more employers. A restrictive covenant shall not include covenants appurtenant to real property. (16) 'Sale' means any sale or transfer of the good will or substantially all of the assets of a business or any sale or transfer of a controlling interest in a business, whether by sale, exchange, redemption, merger, or otherwise. (17) 'Seller' means any person or entity, including any successor-in-interest to such an entity, that is:
(A) An owner of a controlling interest; (B) An executive employee ofthe business who receives, at a minimum, consideration in connection with a sale; or (C) An affiliate of a person or entity described in subparagraph (A) of this paragraph; provided, however, that each sale involving a restrictive covenant shall be binding only on the person or entity entering into such covenant, its successors-in-interest, and, if so specified in the covenant, any entity that directly or indirectly through one or more affiliates is controlled by or is under common control of such person or entity. (18) 'Termination' means the termination of an employee's engagement with an employer, whether with or without cause, upon the initiative of either party. (19) 'Trade dress' means the distinctive packaging or design of a product that promotes the product and distinguishes it from other products in the marketplace.

13-8-52. (a) The provisions of this article shall be applicable only to contracts and agreements between or among:
(1) Employers and employees, as such terms are defined in Code Section 13-8-51; (2) Distributors and manufacturers; (3) Lessors and lessees; (4) Partnerships and partners; (5) Franchisors and franchisees; (6) Sellers and purchasers of a business or commercial enterprise; and (7) Two or more employers. (b) The provisions of this article shall not apply to any contract or agreement not described in subsection (a) of this Code section.

242

GENERAL ACTS AND RESOLUTIONS, VOL. I

13-8-53. (a) Notwithstanding any other provision of this chapter, enforcement of contracts that restrict competition during the term of a restrictive covenant, so long as such restrictions are reasonable in time, geographic area, and scope of prohibited activities, shall be permitted. However, enforcement of contracts that restrict competition after the term of employment, as distinguished from a customer nonsolicitation provision, as described in subsection (b) of Code Section 13-8-53, or a nondisclosure of confidential information provision, as described in subsection (e) of Code Section 13-8-53, shall not be permitted against any employee who does not, in the course of his or her employment:
(l) Customarily and regularly solicit for the employer customers or prospective customers; (2) Customarily and regularly engage in making sales or obtaining orders or contracts for products or services to be performed by others; (3) Perform the following duties:
(A) Have a primary duty of managing the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof; (B) Customarily and regularly direct the work of two or more other employees; and (C) Have the authority to hire or fire other employees or have particular weight given to suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees; or (4) Perform the duties of a key employee or of a professional. (b) Notwithstanding any other provision of this chapter, an employee may agree in writing for the benefit of an employer to refrain, for a stated period of time following termination, from soliciting, or attempting to solicit, directly or by assisting others, any business from any of such employer's customers, including actively seeking prospective customers, with whom the employee had material contact during his or her employment for purposes of providing products or services that are competitive with those provided by the employer's business. No express reference to geographic area or the types of products or services considered to be competitive shall be required in order for the restraint to be enforceable. Any reference to a prohibition against 'soliciting or attempting to solicit business from customers' or similar language shall be adequate for such purpose and narrowly construed to apply only to: (1) such of the employer's customers, including actively sought prospective customers, with whom the employee had material contact; and (2) products and services that are competitive with those provided by the employer's business. (c)( 1) Activities, products, or services that are competitive with the activities, products, or services of an employer shall include activities, products, or services that are the same as or similar to the activities, products, or services of the employer. Whenever a description of activities, products, and services, or geographic areas, is required by this Code section, any description that provides fair notice of the maximum reasonable scope of the restraint shall satisfy such requirement, even if the description is generalized or could possibly be stated more narrowly to exclude extraneous matters. In case of a

GEORGIA LAWS 2009 SESSION

243

postemployment covenant entered into prior to termination, any good faith estimate of the activities, products, and services, or geographic areas, that may be applicable at the time of termination shall also satisfy such requirement, even if such estimate is capable of including or ultimately proves to include extraneous activities, products, and services, or geographic areas. The postemployment covenant shall be construed ultimately to cover only so much of such estimate as relates to the activities actually conducted, the products and services actually offered, or the geographic areas actually involved within a reasonable period of time prior to termination. (2) Activities, products, or services shall be considered sufficiently described if a reference to the activities, products, or services is provided and qualified by the phrase 'of the type conducted, authorized, offered, or provided within two years prior to termination' or similar language containing the same or a lesser time period. The phrase 'the territory where the employee is working at the time of termination' or similar language shall be considered sufficient as a description of geographic areas if the person or entity bound by the restraint can reasonably determine the maximum reasonable scope of the restraint at the time of termination. (d) Any restrictive covenant not in compliance with the provisions of this article is unlawful and is void and unenforceable; provided, however, that a court may modify a covenant that is otherwise void and unenforceable as long as the modification does not render the covenant more restrictive with regard to the employee than as originally drafted by the parties. (e) Nothing in this article shall be construed to limit the period of time for which a party may agree to maintain information as confidential or as a trade secret, or to limit the geographic area within which such information must be kept confidential or as a trade secret, for so long as the information or material remains confidential or a trade secret, as applicable.

13-8-54. (a) A court shall construe a restrictive covenant to comport with the reasonable intent and expectations of the parties to the covenant and in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement. (b) In any action concerning enforcement of a restrictive covenant, a court shall not enforce a restrictive covenant unless it is in compliance with the provisions of Code Section 13-8-53; provided, however, that if a court finds that a contractually specified restraint does not comply with the provisions of Code Section 13-8-53, then the court may modify the restraint provision and grant only the relief reasonably necessary to protect such interest or interests and to achieve the original intent of the contracting parties to the extent possible.

244

GENERAL ACTS AND RESOLUTIONS, VOL. I

13-8-55. The person seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant. If a person seeking enforcement of the restrictive covenant establishes by prima-facie evidence that the restraint is in compliance with the provisions of Code Section 13-8-53, then any person opposing enforcement has the burden of establishing that the contractually specified restraint does not comply with such requirements or that such covenant is unreasonable.

13-8-56. In determining the reasonableness of a restrictive covenant that limits or restricts competition during the course of an employment or business relationship, the court shall make the following presumptions:
( 1) A time period equal to or measured by duration ofthe parties' business or commercial relationship is reasonable; (2) A geographic territory which includes the areas in which the employer does business at any time during the parties' commercial relationship, even if not known at the time of entry into the restrictive covenant, is reasonable provided that:
(A) The total distance encompassed by the provisions of the covenant also is reasonable; (B) The agreement contains a list ofparticular competitors as prohibited employers for a limited period of time after the term of employment or a commercial or business relationship; or (C) Both subparagraphs (A) and (B) of this paragraph; (3) The scope of competition restricted is measured by the business of the employer or other person or entity in whose favor the restrictive covenant is given; provided, however, that a court shall not refuse to enforce the provisions of a restrictive covenant because the person seeking enforcement establishes evidence that a restrictive covenant has been violated but has not proven that the covenant has been violated as to the entire scope of the prohibited activities of the person seeking enforcement or as to the entire geographic area of the covenant; and (4) Any restriction that operates during the term of an employment relationship, agency relationship, independent contractor relationship, partnership, franchise, distributorship, license, ownership of a stake in a business entity, or other ongoing business relationship shall not be considered unreasonable because it lacks any specific limitation upon scope of activity, duration, or geographic area as long as it promotes or protects the purpose or subject matter of the agreement or relationship or deters any potential conflict of interest.

GEORGIA LAWS 2009 SESSION

245

13-8-57. (a) In determining the reasonableness in time of a restrictive covenant sought to be enforced after a term of employment, a court shall apply the rebuttable presumptions provided in this Code section. (b) In the case of a restrictive covenant sought to be enforced against a former employee and not associated with the sale or ownership of all or a material part of:
(1) The assets of a business, professional practice, or other commercial enterprise; (2) The shares of a corporation; (3) A partnership interest; (4) A limited liability company membership; or (5) An equity interest or profit participation, ofany other type, in a business, professional practice, or other commercial enterprise, a court shall presume to be reasonable in time any restraint two years or less in duration and shall presume to be unreasonable in time any restraint more than two years in duration, measured from the date of the termination of the business relationship. (c) In the case of a restrictive covenant sought to be enforced against a current or former distributor, dealer, franchisee, lessee of real or personal property, or licensee of a trademark, trade dress, or service mark and not associated with the sale of all or a part of: (1) The assets of a business, professional practice, or other commercial enterprise; (2) The shares of a corporation; (3) A partnership interest; (4) A limited liability company membership; or (5) An equity interest or profit participation, ofany other type, in a business, professional practice, or other commercial enterprise, a court shall presume to be reasonable in time any restraint three years or less in duration and shall presume to be unreasonable in time any restraint more than three years in duration, measured from the date of termination of the business relationship. (d) In the case of a restrictive covenant sought to be enforced against the owner or seller of all or a material part of: (1) The assets of a business, professional practice, or other commercial enterprise; (2) The shares of a corporation; (3) A partnership interest; (4) A limited liability company membership; or (5) An equity interest or profit participation, ofany other type, in a business, professional practice, or other commercial enterprise, a court shall presume to be reasonable in time any restraint the longer of five years or less in duration or equal to the period of time during which payments are being made to the owner or seller as a result of any sale referred to in this subsection and shall presume to be unreasonable in time any restraint more than the longer of five years in duration or the period of time during which payments are being made to the owner or seller as a result of

246

GENERAL ACTS AND RESOLUTIONS, VOL. I

any sale referred to in this subsection, measured from the date oftermination or disposition of such interest.

13-8-58. (a) A court shall not refuse to enforce a restrictive covenant on the ground that the person seeking enforcement is a third-party beneficiary of such contract or is an assignee or successor to a party to such contract. (b) In determining the enforceability of a restrictive covenant, it is not a defense that the person seeking enforcement no longer continues in business in the scope of the prohibited activities that is the subject of the action to enforce the restrictive covenant if such discontinuance of business is the result of a violation of the restriction. (c) A court shall enforce a restrictive covenant by any appropriate and effective remedy available at law or equity, including, but not limited to, temporary and permanent injunctions. (d) In determining the reasonableness of a restrictive covenant between an employer and an employee, as such terms are defined in subparagraphs (A) through (C) of paragraph (5) of Code Section 13-8-51, a court may consider the economic hardship imposed upon an employee by enforcement ofthe covenant; provided, however, that this subsection shall not apply to contracts or agreements between or among those persons or entities listed in paragraphs (2) through (7) of subsection (a) of Code Section 13-8-52.

13-8-59. Nothing in this article shall be construed or interpreted to allow or to make enforceable any restraint of trade or commerce that is otherwise illegal or unenforceable under the laws of the United States or under the Constitution of this state or of the United States."

SECTION 4. This Act shall become effective on the day following the ratification at the time of the 2010 general election of an amendment to the Constitution of Georgia providing for the enforcement of covenants in commercial contracts that limit competition and shall apply to contracts entered into on and after such date and shall not apply in actions determining the enforceability of restrictive covenants entered into before such date. If such amendment is not so ratified, then this Act shall stand automatically repealed.

SECTION 5. All laws and parts of laws in conflict with this Act are repealed.

Approved April29, 2009.

GEORGIA LAWS 2009 SESSION

247

STATE GOVERNMENT- SUDAN BUSINESS OPERATIONS; STATE CONTRACTS PROHIBITED; PENALTIES.

No. 65 (Senate Bill No. 170).

AN ACT

To amend Part 1 of Article 3 of Chapter 5 of Title 50 of the Official Code of Georgia Annotated, relating to general authority, duties, and procedure for state purchasing, so as to provide legislative findings; to provide definitions; to prohibit certain companies that have certain business operations in Sudan to bid on or submit a proposal for a state contract; to provide for exceptions; to provide for certain certifications; to provide penalties for false certifications; to provide for periodic reviews; to provide for related matters; to provide for severability; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. The General Assembly finds that:
(l) Since 1993, the United States Secretary of State has determined Sudan is a country whose government has repeatedly provided support for acts of international terrorism, thereby restricting United States assistance, defense exports and sales, and financial and other transactions with the Government of Sudan. (2) On September 21, 2004, in addressing the United Nations General Assembly, President George W. Bush affirmed the Secretary of State's finding and stated, "At this hour, the world is witnessing terrible suffering and horrible crimes in the Darfur region of Sudan, crimes my government has concluded are genocide." (3) The federal government has imposed sanctions against the Government of Sudan since 1997. These sanctions are monitored through the United States Treasury Department's Office of Foreign Assets Control (OFAC). (4) On December 31, 2007, President George W. Bush signed the Sudan Accountability and DivestmentAct(Public Law 110-174). The legislation was passed by the Senate and the House of Representatives unanimously. That act authorizes state and local governments to adopt policies to divest from and prohibit contracts with problematic companies operating in Sudan's oil, power, mineral, and military sectors. That act also prohibits the federal government from contracting with these companies.

248

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 2. Part 1 of Article 3 of Chapter 5 of Title 50 of the Official Code of Georgia Annotated, relating to general authority, duties, and procedure for state purchasing, is amended by adding a new Code section to read as follows:
'50-5-84. (a) As used in this Code section, the term:
(1) 'Business operations' means engaging in commerce in any form in Sudan, including, but not limited to, acquiring, developing, maintaining, owning, selling, possessing, leasing, or operating equipment, facilities, personnel, products, services, personal property, real property, or any other apparatus of business or commerce. (2) 'Company' means any sole proprietorship, organization, association, corporation, partnership, joint venture, limited partnership, limited liability partnership, limited liability company, or other entity or business association, including all wholly owned subsidiaries, majority owned subsidiaries, parent companies, or affiliates of such entities or business associations, that exists for the purpose of making profit. (3) 'Government of Sudan' means the government in Khartoum, Sudan, that is led by the National Congress Party, formerly known as theNational Islamic Front, or any successor government formed on or after October 13, 2006, including the coalition National Unity Government agreed upon in the Comprehensive Peace Agreement for Sudan, and does not include the regional government of southern Sudan. (4) 'Marginalized populations of Sudan' include, but are not limited to, the portion of the population in the Darfur region that has been genocidally victimized; the portion of the population of southern Sudan victimized by Sudan's north-south civil war; the Beja, Rashidiya, and other similarly underserved groups ofeastern Sudan; the Nubian and other similarly underserved groups in Sudan's Abyei, southern Blue Nile, and Nuba Mountain regions; and the Amri, Hamadab, Manasir, and other similarly underserved groups of northern Sudan. (5) 'Military equipment' means weapons, arms, military supplies, and equipment that may readily be used for military purposes, including, but not limited to, radar systems, military-grade transport vehicles, or supplies or services sold or provided directly or indirectly to any force actively participating in armed conflict in Sudan. (6) 'Mineral-extraction activities' include the exploring, extracting, processing, transporting, or wholesale selling or trading of elemental minerals or associated metal alloys or oxides (ore), including gold, copper, chromium, chromite, diamonds, iron, iron ore, silver, tungsten, uranium, and zinc.
(7)(A) 'Oil related activities' include: (i) Exporting, extracting, producing, refining, processing, exploring for, transporting, selling, or trading oil; and (ii) Constructing, maintaining, or operating a pipeline, refinery, or other oil field infrastructure.
(B) A company shall not be considered to be involved in oil related activities if:

GEORGIA LAWS 2009 SESSION

249

(i) The company is involved in the retail sale of gasoline or related consumer products in Sudan but is not involved in any other activity described in subparagraph (A) of this paragraph; or (ii) The company is involved in leasing or owns rights to an oil block in Sudan but is not involved in any other activity described in subparagraph (A) of this paragraph. (8) 'Power-production activities' means any business operations that involve a project commissioned by theNational Electricity Corporation of Sudan or other similar entity of the government of Sudan whose purpose is to facilitate power generation and delivery, including establishing power-generating plants or hydroelectric dams, selling or installing components for the project, or providing service contracts related to the installation or maintenance of the project. (9) 'Scrutinized company' means a company that is conducting business operations in Sudan that is involved in power production activities, mineral extraction activities, oil-related activities, or the production of military equipment, but excludes a company that can demonstrate any of the following: (A) Its business operations are conducted under contract directly and exclusively with the regional government of southern Sudan; (B) Its business operations are conducted under a license from the Office of Foreign Assets Control or are expressly exempted under federal law from the requirement to be conducted under such a license; (C) Its business operations consist of providing goods or services to marginalized populations of Sudan; (D) Its business operations exclusively consist of providing goods or services to an internationally recognized peacekeeping force or humanitarian organization; (E) Its business operations consist of providing goods or services that are used only to promote health or education; (F) Its business operations with the Government of Sudan will be voluntarily suspended for the entire duration of the contract for goods or services for which they have bid on, or submitted a proposal for, a contract with a state agency; or (G) It has adopted, publicized, and is implementing a formal plan to cease business operations within one year and to refrain from conducting any new business operations. (b)(l) A scrutinized company shall be ineligible to, and shall not, bid on or submit a proposal for a contract with a state agency for goods or services. (2) Notwithstanding paragraph (1) of this subsection, the Department of Administrative Services may permit a scrutinized company, on a case-by-case basis, to bid on or submit a proposal for a contract with a state agency for goods or services if it is in the best interests of the state to permit the scrutinized company to bid on or submit a proposal for one or more contracts with a state agency for goods or services. (3) In making this determination, the Department of Administrative Services may utilize the following resources:

250

GENERAL ACTS AND RESOLUTIONS, VOL. I

(A) Verification by an independent third party or nonprofit organization that a company is either:
(i) Undertaking significant humanitarian efforts in conjunction with an international organization, the Government of Sudan, the regional government of southern Sudan, or a nonprofit organization to benefit one or more marginalized populations of Sudan. The party or organization providing the verification or an independent third party shall evaluate and certify that the significant humanitarian efforts are substantial in relation to the company's Sudan business operations; or (ii) Through engagement with the Government of Sudan, materially improving conditions for the genocidally victimized population in Darfur; and (B) A National Interest Waiver issued by the President of the United States excluding a company from the federal contract prohibitions provisions of the Sudan Accountability and Divestment Act (Public Law 110-174). (c)( 1) A state agency shall require a company that submits a bid or proposal with respect to a contract for goods or services, that currently or within the previous three years has had business activities or other operations outside of the United States, to certify that the company is not a scrutinized company. (2) A state agency shall not require a company that submits a bid or proposal with respect to a contract for goods or services, and that currently or within the previous three years has had business activities or other operations outside of the United States, to certify that the company is not a scrutinized company, if the company has obtained permission to bid on or submit a proposal for a contract with a state agency for goods or services pursuant to paragraph (2) of subsection (b) of this Code section. (d)(l) Not later than August 1, 2009, the Department of Administrative Services shall file a written notice to the United States Attorney General detailing the requirements contained in this Code section, as required by the federal Sudan Accountability and Divestment Act of 2007 (P. L. No. 110-174). (2) Annually thereafter, the Department of Administrative Services shall file a publicly available report to the General Assembly and the United States Attorney General outlining the actions taken under this Code section. (3) The Department of Administrative Services shall report to the Attorney General of Georgia the names of companies determined to have submitted false certifications under subsection (c) of this Code section, together with information as to the false certification, and the Attorney General shall determine whether to bring a civil action against the companies. The companies shall pay all costs or fees incurred in a civil action, including those for investigations that led to the discovery of a false certification. (e) If the Department of Administrative Services determines that a company has submitted a false certification under subsection (c) of this Code section, the company shall be subject to:

GEORGIA LAWS 2009 SESSION

251

(l) The company shall be liable for a civil penalty in an amount that is equal to the greater of $250,000.00 or twice the amount of the contract for which a bid or proposal was submitted; (2) The state agency or the Department of Administrative Services may terminate the contract with the company; and (3) The company shall be ineligible to, and shall not, bid on a state contract for a period of not less than three years from the date the state agency determines that the company submitted the false certification. The Department of Administrative Services shall report to the Attorney General the name of the company that the Department of Administrative Services determined had submitted a false certification under subsection (c) of this Code section, together with its information as to the false certification, and the Attorney General shall determine whether to bring a civil action against such company. If such company is found to have submitted a false certification, such company shall be ordered to pay all costs and fees incurred by the state in the civil action, including all costs incurred by the state agency and the Department of Administrative Services for investigations that led to the finding of the false certification and all costs and fees incurred by the Attorney General. (f) The General Assembly shall periodically review this Code section and determine if any ofthe following events have occurred which should be construed and deemed to be a basis for repealing this Code section: (1) The Congress or President of the United States declares the Darfur genocide has been halted for at least 12 months; (2) The United States revokes all sanctions imposed against the Government of Sudan; (3) The President of the United States has certified to Congress that the Government of Sudan has honored its commitments to do all of the following:
(A) Abide by United Nations Security Council Resolution 1769 (2007); (B) Cease attacks on civilians; (C) Demobilize and demilitarize the Janjaweed and associated militias; (D) Grant free and unfettered access for delivery of humanitarian assistance; and (E) Allow for the safe and voluntary return of refugees and internally displaced persons; (4) The Congress or President of the United States, through legislation or executive order, declares the contract prohibition of the type provided for in this Code section interferes with the conduct of United States foreign policy; or (5) Such other circumstances as the General Assembly determines to warrant the discontinuance of the provisions of this Code section.'

SECTION 3. (a) If any one or more provisions, sections, subsections, sentences, clauses, phrases, or words of this Act or the application thereof to any person or circumstance is found to be invalid, illegal, unenforceable, or unconstitutional, the same is hereby declared to be

252

GENERAL ACTS AND RESOLUTIONS, VOL. I

severable, and the balance of this Act shall remain effective and functional notwithstanding such invalidity, illegality, unenforceability, or unconstitutionality. (b) The General Assembly hereby declares that it would have passed this Act and each provision, section, subsection, sentence, clause, phrase, or word thereof irrespective of the fact that any one or more provisions, sections, subsections, sentences, clauses, phrases, or words were declared invalid, illegal, unenforceable, or unconstitutional, including, but not limited to, each of the engagement, divestment, and prohibition provisions of this Act.

SECTION 4. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 5. All laws and parts of laws in conflict with this Act are repealed.

Approved April 29, 2009.

BANKING- INCORPORATE PROVISIONS OF FEDERAL S.A.F.E. MORTGAGE LICENSING ACT OF 2008 INTO GEORGIA LAW.
No. 66 (House Bill No. 312).
AN ACT
To amend Chapter 1 of Title 7 of the Official Code of Georgia Annotated, relating to financial institutions, so as to incorporate provisions of the federal S.A.F.E. Mortgage Licensing Act of2008, a part of the Housing and Economic Recovery Act of2008, Public Law 110-289; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 1 of Title 7 of the Official Code of Georgia Annotated, relating to financial institutions, is amended by revising Article 13, relating to the licensing of mortgage lenders and mortgage brokers, as follows:

GEORGIA LAWS 2009 SESSION

253

'ARTICLE 13

7-1-1000. As used in this article, the term:
(1) 'Affiliate' or 'person affiliated with' means, when used with reference to a specified person, a person who directly, indirectly, or through one or more intermediaries controls, is controlled by, or is under common control with the person specified. Any beneficial owner of 10 percent or more of the securities of a person or any executive officer, director, trustee,joint venturer, or general partner of a person is an affiliate of such person unless the shareholder, executive officer, director, trustee, joint venturer, or general partner shall prove that he or she in fact does not control, is not controlled by, or is not under common control with such person. (2) 'Audited financial statement' means the product of the examination of financial statements in accordance with generally accepted auditing standards by an independent certified public accountant, which product consists of an opinion on the financial statements indicating their conformity with generally accepted accounting principles. (3) 'Commissioner' means the commissioner of banking and finance. (4) 'Commitment' or 'commitment agreement' means a statement by a lender required to be licensed or registered under this article that sets forth the terms and conditions upon which the lender is willing to make a particular mortgage loan to a particular borrower. (5) 'Control,' including 'controlling,' 'controlled by,' and 'under common control with,' means the direct or indirect possession of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting or nonvoting securities, by contract, or otherwise. (6) 'Department' means the Department of Banking and Finance. (7) 'Depository institution' has the same meaning as in Section 3 of the Federal Deposit Insurance Act, 12 U.S.C. Section 1813(c), and includes any credit union. (8) 'Dwelling' means a residential structure that contains one to four units, whether or not that structure is attached to real property pursuant to Regulation Z Section 226.2(a)(l9). The term includes an individual condominium unit, cooperative unit, mobile home, and trailer if it is used as a residence. (9) 'Executive officer' means the chief executive officer, the president, the principal financial officer, the principal operating officer, each vice president with responsibility involving policy-making functions for a significant aspect of a person's business, the secretary, the treasurer, or any other person performing similar managerial or supervisory functions with respect to any organization whether incorporated or unincorporated. (I 0) 'Extortionate means' means the use or the threat ofviolence or other criminal means to cause harm to the person, reputation of the person, or property of the person. (II) 'Federal banking agencies' means the Comptroller of the Currency, the Director of the Office of Thrift Supervision, the National Credit Union Administration, and the

254

GENERAL ACTS AND RESOLUTIONS, VOL. I

Federal Deposit Insurance Corporation. Such term shall also include the Board of Governors of the Federal Reserve System. (12) 'Georgia Residential Mortgage Act' means this article, which also includes certain provisions in order to implement the federal Secure and Fair Enforcement for Mortgage Licensing Act of 2008. (13) 'Individual' means a natural person. (14) 'License' means a license issued by the department under this article to act as a mortgage loan originator, mortgage lender, or mortgage broker. (15) 'Loan processor or underwriter' means an individual who performs clerical or support duties as an employee at the direction of and subject to the supervision and instruction ofa person licensed or exempt from licensing. For purposes ofthis paragraph, 'clerical or support duties' may include, subsequent to the receipt of an application, the receipt, collection, distribution, and analysis of information common for the processing or underwriting of a residential mortgage loan; and communicating with a consumer to obtain the information necessary for the processing or underwriting of a loan, to the extent that such communication does not include offering or negotiating loan rates or terms or counseling consumers about residential mortgage loan rates or terms. An individual engaging solely in loan processor or underwriter activities shall not represent to the public, through advertising or other means of communicating or providing information, including the use of business cards, stationery, brochures, signs, rate lists, or other promotional items, that such individual can or will perform any of the activities of a mortgage loan originator. (16) 'Lock-in agreement' means a written agreement whereby a lender or a broker required to be licensed or registered under this article guarantees for a specified number of days or until a specified date the availability of a specified rate of interest for a mortgage loan, a specified formula by which the rate of interest will be determined, or a specific number of discount points if the mortgage loan is approved and closed within the stated period of time. ( 17) 'Makes a mortgage loan' means to advance funds, offer to advance funds, or make a commitment to advance funds to an applicant for a mortgage loan. (18) 'Misrepresent' means to make a false statement of a substantive fact. Misrepresent may also mean to intentionally engage in any conduct which leads to a false belief which is material to the transaction. (19) 'Mortgage broker' means any person who directly or indirectly solicits, processes, places, or negotiates mortgage loans for others, or offers to solicit, process, place, or negotiate mortgage loans for others or who closes mortgage loans which may be in the mortgage broker's own name with funds provided by others and which loans are assigned within 24 hours of the funding of the loans to the mortgage lenders providing the funding of such loans. (20) 'Mortgage lender' means any person who directly or indirectly makes, originates, underwrites, or purchases mortgage loans or who services mortgage loans.

GEORGIA LAWS 2009 SESSION

255

(21) 'Mortgage loan' means a loan or agreement to extend credit made to a natural person, which loan is secured by a deed to secure debt, security deed, mortgage, security instrument, deed of trust, or other document representing a security interest or lien upon any interest in one-to-four family residential property located in Georgia, regardless of where made, including the renewal or refinancing of any such loan. (22) 'Mortgage loan originator' means an individual who for compensation or gain or in the expectation of compensation or gain takes a residential mortgage loan application or offers or negotiates terms of a residential mortgage loan. Generally, this does not include an individual engaged solely as a loan processor or underwriter except as otherwise provided in paragraph (5) of subsection (a) of Code Section 7-1-1002; a person or entity that only performs real estate brokerage activities and is licensed or registered in accordance with Georgia law unless the person or entity is compensated by a mortgage lender, mortgage broker, or other m-ortgage loan originator or by any agent of such mortgage lender, mortgage broker, or other mortgage loan originator; and does not include a person or entity solely involved in extensions of credit relating to time-share plans, as that term is defined in 11 U.S.C. Section 101(53D). (23) 'Nationwide Mortgage Licensing System and Registry' means a mortgage licensing system developed and maintained by the Conference of State Bank Supervisors and the American Association of Residential Mortgage Regulators for the licensing and registration oflicensed mortgage loan originators, mortgage loan brokers, and mortgage loan lenders. (24) 'Nontraditional mortgage product' means any mortgage product other than a 30 year fixed rate mortgage. (25) 'Person' means any individual, sole proprietorship, corporation, limited liability company, partnership, trust, or any other group of individuals, however organized. (26) 'Real estate brokerage activity' means any activity that involves offering or providing real estate brokerage services to the public, including acting as a real estate agent or real estate broker for a buyer, seller, lessor, or lessee of real property; bringing together parties interested in the sale, purchase, lease, rental, or exchange of real property; negotiating, on behalf of any party, any portion of a contract relating to the sale, purchase, lease, rental, or exchange of real property, other than in connection with providing financing with respect to any such transaction; engaging in any activity for which a person engaged in the activity is required to be registered or licensed as a real estate agent or real estate broker under any applicable law; and offering to engage in any activity or act in any capacity described herein. (27) 'Registered mortgage loan originator' means any individual who meets the definition of mortgage loan originator, is registered with and maintains a unique identifier through the Nationwide Mortgage Licensing System and Registry, and is an employee of:
(A) A depository institution; (B) A subsidiary that is:
(i) Owned and controlled by a depository institution; and

256

GENERAL ACTS AND RESOLUTIONS, VOL. I

(ii) Regulated by a federal banking agency; or (C) An institution regulated by the Farm Credit Administration. (28) 'Registrant' means any person required to register pursuant to Code Sections 7-1-1001 and 7-1-1003.2. (29) 'Residential property' means improved real property used or occupied, or intended to be used or occupied, as the primary residence of a natural person. Such term does not include rental property or second homes. A natural person can have only one primary residence. (30) 'Residential mortgage loan' means any loan primarily for personal, family, or household use that is secured by a mortgage, deed oftrust, or other equivalent consensual security interest on a dwelling, as defined in Section 103(v) of the Truth in Lending Act, or residential real estate upon which is constructed or intended to be constructed a dwelling. (31) 'Residential real estate' means any real property located in Georgia upon which is constructed or intended to be constructed a dwelling. (32) 'Service a mortgage loan' means the collection or remittance for another or the right to collect or remit for another of payments of principal, interest, trust items such as insurance and taxes, and any other payments pursuant to a mortgage loan. (33) 'Ultimate equitable owner' means a natural person who, directly or indirectly, owns or controls an ownership interest in a corporation or any other form of business organization, regardless ofwhether such natural person owns or controls such ownership interest through one or more natural persons or one or more proxies, powers of attorney, nominees, corporations, associations, limited liability companies, partnerships, trusts, joint-stock companies, other entities or devices, or any combination thereof. (34) 'Unique identifier' means a number or other identifier assigned by protocols established by the Nationwide Mortgage Licensing System and Registry.

7-1-100 I. (a) The following persons shall not be required to obtain a mortgage loan originator, mortgage broker, or mortgage lender license and shall not be subject to the provisions of this article but may be subject to registration requirements, unless otherwise provided by this article:
( 1) Any lender authorized to engage in business as a bank, credit card bank, savings institution, building and loan association, or credit union under the laws of the United States, any state or territory of the United States, or the District of Columbia, the deposits of which are federally insured; (2) Any wholly owned subsidiary of any lender described in paragraph (1) of this Code section. Any subsidiary that violates any applicable law of this article may be subject to a cease and desist order as provided for in Code Section 7-1-1018; (2.1) Any wholly owned subsidiary of any bank holding company; provided, however, that such subsidiary shall be subject to registration requirements in order to facilitate the

GEORGIA LAWS 2009 SESSION

257

department's handling of consumer inquiries. Such requirements are contained in Code Section 7-1-1003 .3; (3) Registered mortgage loan originators, when acting for an entity described in paragraphs (1) or (2) of this Code section. To qualify for this exemption, an individual shall be registered with and maintain a unique identifier through registration with the Nationwide Mortgage Licensing System and Registry; (4) Any individual who offers or negotiates terms of a residential mortgage loan with or on behalf of an immediate family member of such individual. For purposes of this exemption, the term 'immediate family member' means a spouse, child, sibling, parent, grandparent, or grandchild. Immediate family members shall include stepparents, stepchildren, stepsiblings, and adoptive relationships; (5) A licensed attorney who negotiates the terms of a residential mortgage loan on behalf of a client as an ancillary matter to the attorney's representation of the client, unless the attorney is compensated by a lender, a mortgage broker, or other mortgage loan originator or by any agent of such lender, mortgage broker, or other mortgage loan originator; (6) A real estate broker or real estate salesperson not actively engaged in the business of negotiating mortgage l?ans; however, a real estate broker or real estate salesperson who directly or indirectly negotiates, places, or finds a mortgage for others shall not be exempt from the provisions of this article; (7) Any person performing any act relating to mortgage loans under order of any court; (8) Any natural person or the estate of or trust created by a natural person making a mortgage loan with his or her own funds for his or her own investment, including those natural persons or the estates of or trusts created by such natural persons who make a purchase money mortgage for financing sales of their own property; (9) The United States of America, the State of Georgia or any other state, and any agency, division, or corporate instrumentality of any governmental entity, including without limitation: the Georgia Housing and Finance Authority, the Georgia Development Authority, the Federal National Mortgage Association (FNMA), the Federal Home Loan Mortgage Corporation (FHLMC), the Government National Mortgage Association (GNMA), the United States Department of Housing and Urban Development (HUD), the Federal Housing Administration (FHA), the Department of Veterans Affairs (VA), the Farmers Home Administration (FmHA), and the Farm Credit Administration and its chartered agricultural credit associations; (10) Any individual who offers or negotiates terms of a residential mortgage loan secured by a dwelling that serves as the individual's residence; (11) Any person who makes a mortgage loan to an employee of such person as an employment benefit; (12) Any licensee under Chapter 3 of this title, the 'Georgia Industrial Loan Act,' provided that any mortgage loan made by such licensee is for $3,000.00 or less; (13) Nonprofit corporations making mortgage loans to promote home ownership or improvements for the disadvantaged;

258

GENERAL ACTS AND RESOLUTIONS, VOL. I

(14) A natural person employed by a licensed or registered mortgage broker, a licensed or registered mortgage lender, or any person exempted from the mortgage broker or mortgage lender licensing requirements of this article when acting within the scope of employment and under the supervision of the mortgage broker or mortgage lender or exempted person as an employee and not as an independent contractor, except those natural persons exempt from licensure as a mortgage broker or mortgage lender under paragraph (17) of this Code section. To be exempt from licensure as a mortgage broker or mortgage lender, a natural person shall be employed by only one such employer and shall be at all times eligible for employment in compliance with the provisions and prohibitions of Code Section 7-1-1004. Such natural person, who meets the definition of mortgage loan originator provided in paragraph (22) of Code Section 7-1-1000, shall be subject to mortgage loan originator licensing requirements. A natural person against whom a cease and desist order has become final shall not qualify for this exemption while under the employment time restrictions of subsection (o) of Code Section 7-1-1004 if such order was based on a violation of Code Sections 7-1-1002 or 7-1-1013 or whose license was revoked within five years of the date such person was hired; (15) Any person who purchases mortgage loans from a mortgage broker or mortgage lender solely as an investment and who is not in the business of brokering, making, purchasing, or servicing mortgage loans; (16) Any natural person who makes five or fewer mortgage loans in any one calendar year. A person other than a natural person who makes five or fewer mortgage loans in any one calendar year shall not be exempt from the licensing requirements of this article; or
(17)(A) A natural person otherwise required to be licensed as a mortgage lender or mortgage broker, who is under an exclusive written independent contractor agreement with any person that is a wholly owned subsidiary of a financial holding company or bank holding company, savings bank holding company, or thrift holding company, which subsidiary also meets the following requirements, subject to the review and approval of the department:
(i) The subsidiary has provided an undertaking of accountability supported by a surety bond equal to the lesser of $1 million or $50,000.00 per exempt person, to cover all of its persons exempted by this paragraph, that includes full and direct financial responsibility for the mortgage broker activities of each such exempted person, and also provides for the education of the exempt persons, the handling of consumer complaints related to the exempt persons, and the supervision of the mortgage broker activities of the exempt persons; (ii) The subsidiary has applied for and been granted a mortgage broker or mortgage lender license, consistent with the provisions of this article and renewable annually; and

GEORGIA LAWS 2009 SESSION

259

(iii) The subsidiary has paid applicable fees for this license, which license fees shall be the lesser of one-half of the sum of the cost of the individual licenses or $100,000.00. (B) To maintain the exemption, a natural person shall: (i) Solicit, process, place, or negotiate a mortgage loan to be made only by the licensed subsidiary or its affiliate; and (ii) Be at all times in compliance with the provisions and prohibitions of Code Section 7-1-1013 and the provisions and prohibitions applicable to employees under Code Section 7-1-1004. (C) For purposes of this paragraph, the term 'financial holding company' means a financial holding company as defined in the Bank Holding Company Act of 1956, as amended. (D) The commissioner shall provide by rule or regulation for the implementation of this paragraph. (b) Exemptions enumerated in paragraphs (1), (2), (2.1), (7), (8), (9), (II), (12), (13), (14), (15), (16), and (17) of subsection (a) of this Code section shall be exemptions from licensure as a mortgage broker or mortgage lender only. Nothing in paragraphs (1), (2), (2.1), (7), (8), (9), (11), (12), (13), (14), (15), (16), and (17) of subsection (a) of this Code section shall be intended to exempt natural persons from compliance with mortgage loan originator licensing requirements as set forth in this article and the Secure and Fair Enforcement for Mortgage Licensing Act of 2008. Individuals that transact business as a mortgage loan originator, unless specifically exempted by paragraphs (3), (4), (5), (6), or (10) of subsection (a) of this Code section shall obtain a mortgage loan originator license as required by Code Section 7-1-1002 whether they are employed by a mortgage broker, mortgage lender, or person exempted as a mortgage broker or lender as set forth in this subsection.

7-1-100 l.l. (a) In order to comply with the federal requirements contained in the federal Secure and Fair Enforcement for Mortgage Licensing Act of 2008, also known as the S.A.F .E. Mortgage Licensing Act of2008, on and after January 1, 2010, or such later date approved by the Secretary of the United States Department of Housing and Urban Development, pursuant to the authority granted under Public Law 110-289, Section 1508(a), it shall be prohibited for any person to engage in the activities of a mortgage loan originator without first obtaining and maintaining a mortgage loan originator license as set forth in this article. All provisions within this article that relate to the licensing requirements and associated duties and responsibilities of mortgage loan originators shall be effective on and after January 1, 2010, or such later date approved by the Secretary of the United States Department of Housing and Urban Development, pursuant to the authority granted under Public Law 110-289, Section 1508(a).

260

GENERAL ACTS AND RESOLUTIONS, VOL. I

(b) The department shall have the broad administrative authority to administer, interpret, and enforce this article and the Secure and Fair Enforcement for Mortgage Licensing Act of 2008, and promulgate rules or regulations implementing it, in order to carry out the intentions of the federal legislature. (c) The provisions ofthe federal Secure and Fair Enforcement for Mortgage Licensing Act of 2008 shall apply to the activities of retail sellers of manufactured homes to the extent determined by the United States Department of Housing and Urban Development through written guidelines, rules, regulations, or interpretive letters.

7-1-1002. (a) It shall be prohibited for any person to transact business in this state directly or indirectly as a mortgage broker, a mortgage lender, or a mortgage loan originator unless such person:
(1) Is licensed or registered as such by the department utilizing the Nationwide Mortgage Licensing System and Registry; (2) Is a person exempted from the licensing or registration requirements pursuant to Code Section 7-1-1001; (3) In the case of an employee of a mortgage broker or mortgage lender, such person has qualified to be relieved of the necessity for a license under the employee exemption in paragraph(8) of Code Section 7-1-1001; (4) In the case of a mortgage loan originator, such person is supervised by a mortgage broker, mortgage lender, or exemptee on a daily basis while performing mortgage functions; is employed by and works exclusively for only one mortgage broker, mortgage lender, or exemptee; and is paid on a W-2 basis by the employing mortgage broker, mortgage lender, or exemptee, except those natural persons exempt from licensure as a mortgage broker or mortgage lender under paragraph (17) of Code Section 7-1-1001. Each licensed mortgage loan originator shall register with and maintain a valid unique identifier issued by the Nationwide Mortgage Licensing System and Registry. For the purposes of implementing an orderly and efficient mortgage loan originator process, the department may establish licensing rules or regulations and interim procedures for licensing and acceptance of applications; or (5) A loan processor or underwriter who is an independent contractor shall not engage in the activities of a loan processor or underwriter unless such independent contractor loan processor or underwriter obtains and maintains a mortgage broker or mortgage lender license. Each independent contractor loan processor or underwriter licensed as a mortgage broker or mortgage lender shall have and maintain a valid unique identifier issued by the Nationwide Mortgage Licensing System and Registry. (b) It shall be prohibited for any person, as defined in Code Section 7-1-1000, to purchase, sell, or transfer one or more mortgage loans or loan applications from or to a mortgage loan originator, mortgage broker, or mortgage lender who is neither licensed nor exempt from the licensing or registration provisions of this article. Such a purchase shall not affect the

GEORGIA LAWS 2009 SESSION

261

obligation of the borrower under the terms of the mortgage loan. The department shall provide for distribution or availability of information regarding approved or revoked licenses. (c) Every person who directly or indirectly controls a person who violates subsection (a) or (b) of this Code section, every general partner, executive officer, joint venturer, or director of such person, and every person occupying a similar status or performing similar functions as such person violates with and to the same extent as such person, unless the person whose violation arises under this subsection sustains the burden of proof that he or she did not know and, in the exercise of reasonable care, could not have known of the existence of the facts by reason of which the original violation is alleged to exist.

7-1-1003. (a) An application for a license under this article shall be made in writing, under oath, and in such form as the department may prescribe. Each such form shall contain content as set forth by rule, regulation, instruction, or procedure of the department and may be changed or updated as necessary by the department in order to carry out the purposes of this article. The department, by regulation, may prescribe different classes of licenses for mortgage Joan originators, mortgage brokers, and mortgage lenders. (b) The application shall include the following:
(1) The legal name and address of the applicant and, if the applicant is a partnership, association, corporation, or other business entity, of every member, officer, and director thereof; (2) All names, including, but not limited to, website domain names (URLs), under which the applicant will conduct business in Georgia; (3) For mortgage brokers and mortgage lenders, the address of the main office or principal place of business where books and records are located and any other locations at which the applicant will engage in any business activity covered by the provisions of this article, together with the mailing address where the department shall send all correspondence, orders, or notices. Any changes in this mailing address shall be delivered in writing to the department before the change is effective; (4) For mortgage brokers and mortgage lenders, the complete name and address of the applicant's initial registered agent and registered office for service ofprocess in Georgia. If the applicant is a Georgia corporation, this registered agent shall be the same as the agent recorded with the Secretary of State. Any changes in the registered agent or registered office shall be delivered in writing to the department and the Secretary of State, ifapplicable, before the change is effective. The registered agent may, but is not required to, be an officer of the applicant, and the registered office shall be a Georgia location where the registered agent may be served; (5) For mortgage brokers and mortgage lenders, the general plan and character of the business; (6) For mortgage brokers and mortgage lenders, a financial statement of the applicant;

262

GENERAL ACTS AND RESOLUTIONS, VOL. I

(7) For mortgage brokers and mortgage lenders, such other data, financial statements, and pertinent information as the department may require with respect to the applicant, its directors, trustees, officers, members, agents, or ultimate equitable owners of 10 percent or more of the applicant; and (8) For mortgage brokers and mortgage loan originators, evidence of satisfaction of experience or education requirements, as required by regulations of the department. (c) All applications filed under this Code section shall be filed together with: (l) Investigation and supervision fees established by regulation. The investigation fee shall not be refundable; provided, however, that any supervision fee paid at the time of the application shall be refunded if the license is not granted; (2) The items required by Code Section 7-1-1003.2; and (3) Other information as may be required by the department.

7-1-1003.1. If the applicant for a mortgage broker license or a renewal of such license does not have a physical place of business in Georgia, a license or renewal shall only be issued if the applicant's home state does not require that in order to be licensed a mortgage broker shall have a physical place ofbusiness in such home state. In either case, an applicant shall have a registered agent and a registered office in this state.

7-1-1003.2. (a) Each licensed or registered mortgage broker shall provide the department with a bond. The bond for a mortgage broker shall be in the principal sum of$50,000.00 or such greater sum as the department may require as set forth by regulation based on an amount that reflects the dollar amount of loans originated, and the bond shall meet the other requirements of subsection(d) of this Code section. (b) Except as otherwise provided in subsection(d) of this Code section, the department shall not license or register any mortgage lender unless the applicant or registrant provides the department with a bond. The bond for a mortgage lender shall be in the principal sum of$150,000.00 or such greater sum as the department may require as set forth by regulation based on an amount that reflects the dollar amount of loans originated, and which bond shall meet the other requirements of subsection(d) of this Code section. (c) Each mortgage loan originator shall be covered by a surety bond in accordance with this Code section. In the event that the mortgage loan originator is an employee of a licensed or registered mortgage broker or lender or under an exclusive written independent contractor agreement as described in paragraph (17) of Code Section 7-1-1001, the surety bond of such licensed or registered mortgage broker or lender may be used in lieu of the mortgage loan originator's surety bond requirement. If the surety bond of the licensed or registered mortgage broker or lender is used in lieu of an individual mortgage loan originator's surety bond then that surety bond shall provide coverage for each covered

GEORGIA LAWS 2009 SESSION

263

mortgage loan originator in such amount as the department may require that reflects the dollar amount of loans originated as determined by the department. (d) General bond requirements:
(1) The bond requirements for mortgage loan originators, mortgage brokers, and mortgage lenders are continuous in nature and shall be maintained at all times as a condition of licensure; (2) The corporate surety bond shall be for a term and in a form satisfactory to the department, shall be issued by a bonding company or insurance company authorized to do business in this state and approved by the department, and shall run to the State of Georgia for the benefit of any person damaged by noncompliance of a licensee with this article, the 'Georgia Residential Mortgage Act,' or with any condition of such bond. Damages under the bond shall include moneys owed to the department for fees, fines, or penalties. Such bond shall be continuously maintained thereafter in full force. Such bond shall be conditioned upon the applicant or the licensee conducting his or her licensed business in conformity with this article and all applicable laws; (3) When an action is commenced on a licensee's bond, the department may require the filing of a new bond; and (4) Immediately upon recovery upon any action on the bond, the licensee shall file a new bond. (e) Any person including the department who may be damaged by noncompliance of a licensee with any condition of a bond or this article, the 'Georgia Residential Mortgage Act,' may proceed on such bond against the principal or surety thereon, or both, to recover damages.

7-1-1003.3. An application to register as a mortgage lender or broker under this article shall be made annually in writing, under oath, on a form provided by the department, subject to requirements specified by rules and regulations of the department.

7-1-1003.4. Reserved.

7-1-1003.5. (a) The General Assembly has determined that a uniform multistate administration of an automated licensing system for mortgage loan originators, mortgage brokers, and mortgage lenders is consistent with both the public interest and the purpose of this chapter; therefore, for the sole purpose ofparticipating in the establishment and implementation ofa multistate automated licensing system for mortgage loan originators, mortgage brokers, and mortgage lenders, the department is authorized to:
(1) Participate in a nation-wide residential mortgage licensing system established to facilitate the sharing of information and standardization of the licensing and application

264

GENERAL ACTS AND RESOLUTIONS, VOL. I

processes for mortgage loan originators, mortgage brokers, and mortgage lenders by electronic or other means; (2) Enter into operating agreements, information sharing agreements, interstate cooperative agreements, and other contracts necessary for the department's participation in the nation-wide residential mortgage licensing system; (3) Ensure that the nation-wide residential mortgage licensing system adopts an appropriate privacy, data security, and security breach notification policy that is in full compliance with existing state and federal law; (4) Disclose or cause to be disclosed without liability applicant and licensee information, including, but not limited to, violations of this article and enforcement actions, via the nation-wide residential mortgage licensing system to facilitate regulatory oversight of mortgage loan originators, mortgage brokers, and mortgage lenders across state jurisdictional lines; (5) Establish and adopt, by rule or regulation, requirements for participation by applicants and licensees in the nation-wide residential mortgage licensing system upon the department's finding that each new or amended requirement is consistent with both the public interest and the purposes of this article; (6) Pay all fees received from licensees and applicants related to applications, licenses, and renewals to the Office of Treasury and Fiscal Services; provided, however, that the department may net such fees to recover the cost of participation in the nation-wide residential mortgage licensing system; and (7) Modify by rule the license renewal dates set forth in Code Section 7-1-1005 for mortgage brokers and mortgage lenders from a fiscal year to a calendar year, including providing for a one-time, six-month licensing period accompanied by a one-time reduced fee during the conversion year from a fiscal licensing year to a calendar licensing year. (b) Irrespective of its participation in a nation-wide residential mortgage licensing system, the department retains full and exclusive authority over determinations whether to grant, renew, suspend, or revoke licenses issued to mortgage loan originators, mortgage brokers, and mortgage lenders under this article. Nothing in this Code section shall be construed to reduce this authority.

7-1-1003.6. (a) Except as otherwise provided in the Secure and Fair Enforcement for Mortgage Licensing Act of 2008, the requirements under any federal law or Georgia state law regarding the privacy or confidentially of any information or material provided to the Nationwide Mortgage Licensing System and Registry and any privilege arising under federal or state law, including the rules of any federal or state court, with respect to such information or material, shall continue to apply to such information or material after the information or material has been disclosed to theNationwide Mortgage Licensing System and Registry. Such information and material may be shared with all state and federal

GEORGIA LAWS 2009 SESSION

265

regulatory officials with mortgage industry oversight authority without the loss ofprivilege or the loss of confidentiality protection provided by federal or state law. (b) Information or material that is subject to a privilege or confidentially under subsection (a) of this Code section shall not be subject to:
(I) Disclosure under any federal or state law governing the disclosure to the public of information held by an officer or an agency of the federal government or the respective state; or (2) Subpoena or discovery, or admission into evidence, in any private civil action or administrative process, unless with respect to any privilege held by the Nationwide Mortgage Licensing System and Registry with respect to such information or material, the person to whom such information or material pertains waives, in whole or in part, in the discretion of such person that privilege. (c) This Code section shall not apply with respect to the information or material relating to the employment history of, and publicly adjudicated disciplinary and enforcement actions against, licensees that are included in the Nationwide Mortgage Licensing System and Registry for access by the public.

7-1-1003.7. (a) Any education provider which offers mortgage industry related courses designed to satisfy education requirements as provided in subsection (c) of Code Section 7-1-1004 and associated department rules shall be approved by the department. (b) An application under this section shall be made in writing, under oath, and in such form as the department may prescribe. The application shall include the following:
(1) The name and address of the applicant and, if the entity is not a sole proprietorship, the name of every member, officer, principal, or director thereof; (2) The name under which the applicant will conduct business in Georgia; (3) A proposed certificate program or course of study which lists each subject to be taught and credit or classroom hours for each course designed to satisfy education requirements; (4) Qualifications and credentials of any and all instructors teaching courses named in paragraph (3) of this subsection; and (5) Other information as may be required by the department. (c) The initial application shall be filed with the department along with fees established by rule, no portion of which shall be refunded or prorated. Upon receipt of an application, the department shall conduct such investigation as it deems necessary to determine that the applicant and the individuals who direct the affairs or establish policy for the applicant, including the officers, directors, or the equivalent, are of good character and ethical reputation; that the applicant and such persons meet the requirements of subsection (d) of Code Section 7-1-1004; that the applicant and such persons demonstrate reasonable financial responsibility; that the applicant has and maintains a registered agent for service

266

GENERAL ACTS AND RESOLUTIONS, VOL. I

in this state; and the applicant and such persons are qualified by education and experience to present courses directly related to the mortgage brokering process. (d) All education providers approved under this Code section shall be required to file a renewal application on an annual basis in writing, under oath, and in such a form as the department may prescribe. A fee established by the department shall be paid with each renewal application, which fee shall not be refunded or prorated. Failure to file a renewal application shall result in the education provider being removed from the department list of approved mortgage education providers. (e) The department may audit or investigate course offerings of the applicant or approved mortgage education provider as it deems necessary and without cost to the department.

7-1-1004. (a) Upon receipt of an application for license or registration, the department shall conduct such investigation as it deems necessary to determine that the mortgage broker and mortgage lender applicant and the individuals who direct the affairs or establish policy for the mortgage broker and mortgage lender applicant, including the officers, directors, or the equivalent, are of good character and ethical reputation; that the mortgage broker and mortgage lender applicant is not disqualified for licensure as a result of adverse administrative civil or criminal findings in any jurisdiction; that the mortgage broker and mortgage lender applicant and such persons meet the requirements of subsection(h) of this Code section; that the mortgage broker and mortgage lender applicant and such persons demonstrate reasonable financial responsibility; that the mortgage broker and mortgage lender applicant has reasonable policies and procedures to receive and process customer grievances and inquiries promptly and fairly; and that the mortgage broker and mortgage lender applicant has and maintains a registered agent for service in this state. (b) The department shall not license or register any mortgage broker and mortgage lender applicant unless it is satisfied that the mortgage broker and mortgage lender applicant may be expected to operate its mortgage lending or brokerage activities in compliance with the laws of this state and in a manner which protects the contractual and property rights of the citizens of this state. (c) The department may establish by rule or regulation minimum education or experience requirements for an applicant for a mortgage broker license or renewal of such a license. (d) Upon receipt of an application for a mortgage loan originator license, the department shall conduct such investigation as it deems necessary to determine that the mortgage loan originator applicant:
( 1) Has never had a mortgage loan originator license revoked in any governmental jurisdiction, except that a subsequent formal vacation of such revocation shall not be deemed a revocation; (2) Has not been convicted of, or pled guilty or nolo contendere to, a felony in a domestic, foreign, or military court; provided, however, that any pardon of a conviction shall not be a conviction for purposes of this subsection;

GEORGIA LAWS 2009 SESSION

267

(3) Has demonstrated financial responsibility, character, and general fitness such as to command the confidence of the community and to warrant a determination that the mortgage loan originator will operate honestly, fairly, and efficiently within the purposes of this article; (4) Has completed the prelicensing education requirement described in subsection (e) of this Code section; (5) Has passed a written test that meets the test requirement described in subsection (f) of this Code section; and (6) Has met the surety bond requirement pursuant to subsection (c) of Code Section 7-1-1003.2. (e)(l) An individual shall complete at least 20 hours ofprelicensing education courses reviewed and approved by the Nationwide Mortgage Licensing System and Registry based upon reasonable standards. Review and approval of a prelicensing education course shall include review and approval of the course provider. The 20 hours of prelicensing education shall include at least:
(A) Three hours of federal law and regulations; (B) Three hours of ethics, which shall include instruction on fraud, consumer protection, and fair lending issues; and (C) Two hours of training related to lending standards for the nontraditional mortgage product marketplace. (2) Nothing in this subsection shall preclude any prelicensing education course, as approved by the Nationwide Mortgage Licensing System and Registry, that is provided by the employer of the mortgage loan originator applicant or an entity which is affiliated with the applicant by an agency contract, or any subsidiary or affiliate of such employer or entity. (3) Prelicensing education may be offered either in a classroom, online, or by any other means approved by the Nationwide Mortgage Licensing System and Registry. (4) The prelicensing education requirements approved by the Nationwide Mortgage Licensing System and Registry in paragraph (1) of this Code section for any state shall be accepted as credit towards completion of prelicensing education requirements in Georgia. (5) A person previously licensed under this article subsequent to January 1, 2010, applying to be licensed again shall prove that they have completed all of the continuing education requirements for the year in which the license was last held. (f)(l) In order to meet the written test requirement referred to in subsection (d) of this Code section for mortgage loan originators, an individual shall pass, in accordance with the standards established under this subsection, a qualified written test developed by the Nationwide Mortgage Licensing System and Registry and administered by a test provider approved by the Nationwide Mortgage Licensing System and Registry based upon reasonable standards.

268

GENERAL ACTS AND RESOLUTIONS, VOL. I

(2) A written test shall not be treated as a qualified written test for purposes of this subsection unless the test adequately measures the applicant's knowledge and comprehension in appropriate subject areas, including:
(A) Ethics; (B) Federal law and regulation pertaining to mortgage origination; (C) State law and regulation pertaining to mortgage origination; and (D) Federal and state law and regulation, including instruction on fraud, consumer protection, the nontraditional mortgage marketplace, and fair lending issues. (3) Nothing in this subsection shall prohibit a test provider approved by the Nationwide Mortgage Licensing System and Registry from providing a test at the location of the employer of the applicant or the location of any subsidiary or affiliate of the employer of the applicant or the location of any entity with which the applicant holds an exclusive arrangement to conduct the business of a mortgage loan originator. (4)(A) An individual shall not be considered to have passed a qualified written test unless the individual achieves a test score of not less than 75 percent correct answers to questions. (B) An individual may retake a test three consecutive times with each consecutive taking occurring at least 30 days after the preceding test. (C) After failing three consecutive tests, an individual shall wait at least six months before taking the test again. (D) A licensed mortgage loan originator who fails to maintain a valid license for a period of five years or longer shall retake the test, not taking into account any time during which such individual is a registered mortgage loan originator. (g)(!) In order to meet the annual continuing education requirements referred to in paragraph (2) of subsection (e) of Code Section 7-1-1005, a licensed mortgage loan originator shall complete at least eight hours of education approved in accordance with paragraph (2) of this subsection which shall include at least: (A) Three hours of federal law and regulations; (B) Two hours ofethics, which shall include instruction on fraud, consumer protection, and fair lending issues; and (C) Two hours of training related to lending standards for the nontraditional mortgage product marketplace. (2) For purposes of paragraph (I) of this subsection, continuing education courses shall be reviewed and approved by the Nationwide Mortgage Licensing System and Registry based upon reasonable standards. Review and approval ofa continuing education course shall include review and approval of the course provider. (3) Nothing in this subsection shall preclude any education course from approval by the Nationwide Mortgage Licensing System and Registry that is provided by the employer of the mortgage loan originator or any entity which is affiliated with the mortgage loan originator by an agency contact, or any subsidiary or affiliate of such employer or entity.

GEORGIA LAWS 2009 SESSION

269

(4) Continuing education may be offered either in a classroom, online, or by any other means approved by the Nationwide Mortgage Licensing System and Registry. (5) A licensed mortgage loan originator, except for as provided for in paragraph (9) of this subsection and subsection (f) of Code Section 7-1-1005, shall only receive credit for a continuing education course in the year in which the course is taken and shall not take the same approved course in the same or successive years to meet the annual requirements for continuing education. (6) A licensed mortgage loan originator who is an approved instructor of an approved continuing education course may receive credit for the licensed mortgage loan originator's own annual continuing education requirement at the rate of two hours of credit for every one hour taught. (7) An individual having successfully completed the education requirements approved by the Nationwide Mortgage Licensing System and Registry in paragraph (1) of this subsection for any state shall be accepted as credit towards completion of continuing education requirements in Georgia. (8) A licensed mortgage loan originator who subsequently becomes unlicensed shall complete the continuing education requirements for the last year in which the license was held prior to issuance of a new or renewed license. (9) An individual meeting the requirements of paragraphs (1) and (3) of subsection (e) of Code Section 7-1-1005 may make up any deficiency in continuing education as established by rule or regulation of the department. (h) The department shall not issue or may revoke a license or registration if it finds that the mortgage loan originator, mortgage broker, or mortgage lender applicant or licensee, or any person who is a director, officer, partner, agent, employee, or ultimate equitable owner of 10 percent or more of the mortgage broker or mortgage lender applicant, registrant, or licensee or any individual who directs the affairs or establishes policy for the mortgage broker or mortgage lender applicant, registrant, or licensee, has been convicted of a felony in any jurisdiction or of a crime which, if committed within this state, would constitute a felony under the laws of this state. For the purposes of this article, a person shall be deemed to have been convicted of a crime if such person shall have pleaded guilty to a charge thereof before a court or federal magistrate or shall have been found guilty thereof by the decision or judgment of a court or federal magistrate or by the verdict of a jury, irrespective of the pronouncement of sentence or the suspension thereof, and regardless of whether first offender treatment without adjudication of guilt pursuant to the charge was entered, unless and until such plea of guilty, or such decision, judgment, or verdict, shall have been set aside, reversed, or otherwise abrogated by lawful judicial process or unless the person convicted of the crime shall have received a pardon therefor from the President of the United States or the governor or other pardoning authority in the jurisdiction where the conviction occurred or shall have received an official certification or pardon granted by the state's pardoning body in the jurisdiction where the conviction

270

GENERAL ACTS AND RESOLUTIONS, VOL. I

occurred. Any pardon of a conviction shall not be a conviction for purposes of this subsection. (i) The department shall be authorized to obtain conviction data with respect to any mortgage loan originator, mortgage broker, or mortgage lender applicant or any person who is a director, officer, partner, agent, employee, or ultimate equitable owner of 10 percent or more of the mortgage broker or mortgage lender applicant and any individual who directs the affairs of the company or establishes policy. The department may directly submit to the Georgia Crime Information Center two complete sets of fingerprints of such applicant or such person, together with the required records search fees and such other information as may be required. Fees for background checks that the department administers shall be sent to the department by applicants and licensees together with the fingerprints. Mortgage broker and mortgage lender applicants, licensees, and registrants shall have the primary responsibility for obtaining background checks of covered employees which are defined as employees who work in this state and also have the authority to enter, delete, or verify any information on any mortgage loan application form or document. The department shall, however, retain the right to obtain conviction data on covered employees. (j) In connection with an application for licensing with respect to any mortgage loan originator applicant, mortgage broker, or lender applicant, at the direction of the department, the applicant shall at a minimum, furnish to the Nationwide Mortgage Licensing System and Registry information concerning the applicant's identity, including:
(I) Fingerprints for submission to the Federal Bureau of Investigation, and any governmental agency or entity authorized to receive such information for a state, national, and international criminal history background check; and (2) Personal history and experience in a form prescribed by the Nationwide Mortgage Licensing System and Registry, including the submission of authorization for the Nationwide Mortgage Licensing System and Registry and the department to obtain;
(A) An independent credit report obtained from a consumer reporting agency described in section 603(p) of the Fair Credit Reporting Act, 15 U.S.C. Section 168la(f); and (B) Information related to any administrative, civil, or criminal findings by any governmental jurisdiction. (3) For the purposes set forth in this subsection and in order to reduce the points of contact which the Federal Bureau oflnvestigation may have to maintain for purposes of such section, the department may use the Nationwide Mortgage Licensing System and Registry as a channeling agent for requesting information from and distributing information to the Department of Justice or any governmental agency. (4) For the purposes of this subsection and in order to reduce the points of contact which the department may have to maintain for purposes of such subsection, the department may use theNationwide Mortgage Licensing System and Registry as a channeling agent for requesting and distributing information to and from ariy source so directed by the department.

GEORGIA LAWS 2009 SESSION

271

(k) Every mortgage broker and mortgage lender licensee, registrant, and applicant shall be authorized and required to obtain background checks on covered employees. Such background checks shall be handled by the Georgia Crime Information Center pursuant to Code Section 35-3-34 and the rules and regulations of the Georgia Crime Information Center. Licensees, registrants, and applicants shall be responsible for any applicable fees charged by the center. A background check shall be initiated for a person in the employ of a licensee, registrant, or applicant within ten days of the date of initial hire and be completed with satisfactory results within the first 90 days of employment. This provision shall not apply to directors, officers, partners, agents, or ultimate equitable owners of 10 percent or more or to persons who direct the company's affairs or establish policy, whose background shall have been investigated through the department before taking office, beginning employment, or securing ownership. Upon receipt of information from the Georgia Crime Information Center that is incomplete or that indicates an employee has a criminal record in any state other than Georgia, the employer shall submit to the department two complete sets of fingerprints of such person, together with the applicable fees and any other required information. The department shall submit such fingerprints as provided in subsection(i) of this Code section. (1) Upon receipt of fingerprints, fees, and other required information, the Georgia Crime Information Center shall promptly transmit one set of fingerprints to the Federal Bureau oflnvestigation for a search ofbureau records and an appropriate report and shall retain the other set and promptly conduct a search of its own records and records to which it has access. The Georgia Crime Information Center shall notify the department in writing of any derogatory finding, including, but not limited to, any conviction data regarding the fingerprint records check, or if there is no such finding. All conviction data received by the department or by the applicant, registrant, or licensee shall be used by the party requesting such data for the exclusive purpose of canying out the responsibilities of this article, shall not be a public record, shall be privileged, and shall not be disclosed to any other person or agency except to any person or agency which otherwise has a legal right to inspect the file. The department shall be entitled to review any applicant's, registrant's, or licensee's files to determine whether the required background checks have been run and whether all covered employees are qualified. The department shall be authorized to discuss the status of employee background checks with licensees. All such records shall be maintained by the department and the applicant or licensee or registrant pursuant to laws regarding such records and the rules and regulations of the Federal Bureau oflnvestigation and the Georgia Crime Information Center, as applicable. As used in this subsection, 'conviction data' means a record of a finding, verdict, or plea of guilty or plea of nolo contendere with regard to any crime, regardless of whether an appeal of the conviction has been sought, subject to the conditions set forth in subsection(h) of this Code section. Violation of this Code section may subject a licensee or registrant to the revocation of its license or registration.

272

GENERAL ACTS AND RESOLUTIONS, VOL. I

(m) In connection with an application for licensing or registration under this Code section, the department may use the Nationwide Mortgage Licensing System and Registry, when such service is available, as a channeling agent for the submission of fingerprints to the Federal Bureau of Investigation and any governmental agency or entity authorized to receive such information for a state, national, and international criminal history background check. The department is authorized to set forth rules and regulations in order to implement the provisions of this subsection. (n) The department may deny or revoke a license or registration or otherwise restrict a license or registration if it finds that the mortgage broker or mortgage lender applicant or any person who is a director, officer, partner, or ultimate equitable owner of I0 percent or more or person who directs the company's affairs or who establishes policy of the applicant has been in one or more of these roles as a mortgage lender, broker, or registrant whose license or registration has been denied, revoked, or suspended within five years of the date of the application. (o) The department shall not issue a license or registration to and may revoke a license or registration from a mortgage broker or mortgage lender applicant, licensee, or registrant if such person employs any other person against whom a final cease and desist order has been issued within the preceding five years if such order was based on a violation of Code Section 7-1-1013 or based on the conducting of a mortgage business; for a violation of Code Section 7-1-1002, subsection (h) of Code Section 7-1-1004, or Code Section 7-1-1013; or whose license was revoked within five years of the date such person was hired. Each mortgage broker and mortgage lender applicant, licensee, and registrant shall, before hiring an employee, examine the department's public records to determine that such employee is not subject to the type of cease and desist order described in this subsection. (p) Within 90 days after receipt of a completed application and payment of licensing fees prescribed by this article, the department shall either grant or deny the request for license or registration. (q) A person shall not be indemnified for any act covered by this article or for any fine or penalty incurred pursuant to this article as a result of any violation of the law or regulations contained in this article, due to the legal form, corporate structure, or choice oforganization of such person, including, but not limited to, a limited liability company.

7-1-1004.1. Each mortgage broker and mortgage lender shall submit to the Nationwide Mortgage Licensing System and Registry reports of condition, which shall be in such form and shall contain such information as the department and the Nationwide Mortgage Licensing System and Registry may require.

7-1-1004.2. The department shall establish a process whereby licensees may challenge information entered into the Nationwide Mortgage Licensing System and Registry by the department.

GEORGIA LAWS 2009 SESSION

273

7-1-1004.3. The unique identifier of any person originating a residential mortgage loan shall be clearly shown on all residential mortgage loan application forms, solicitations, or advertisements, including business cards, websites, and any other documents as established by rule, regulation, or order of the department.

7-1-1005. (a) Except as otherwise specifically provided in this article, all licenses and registrations issued pursuant to this article shall expire on December 31 of each year, and application for renewal shall be made annually on or before December 1 of each year. (b) Any licensee or registrant making proper application, including all supporting documents, demonstration that all necessary continuing education has been successfully completed, moneys owed to the department, and all applicable fees required by this article and any regulations promulgated by the department, for a license or registration renewal to operate during the following license year and filing the application prior to December 1 shall be permitted to continue to operate pending final approval or disapproval of the application for the license or registration renewal for the following year if final approval or disapproval is not granted prior to January 1. (c) No investigation fee shall be payable in connection with the renewal application, but an annual license or registration fee established by regulation of the department to defray the cost of supervision shall be paid with each renewal application, which fee shall not be refunded or prorated if the renewal application is approved. (d) Any person holding a license or registration pursuant to this article who fails to file a proper application for a license or registration renewal for the following license year, including the proper fee accompanying the application, on or before December 1 and who files an application after December 1 may be required to pay, in addition to the license or registration fees, a fine in an amount to be established by regulations promulgated by the department. (e) The minimum standards for license renewal for mortgage loan originators shall include:
(1) The mortgage loan originator continues to meet the minimum standards for license issuance; (2) The mortgage loan originator has satisfied the annual continuing education requirements; and (3) The mortgage loan originator has paid all required fees for renewal of the license. (f) The license of a mortgage loan originator failing to satisfy the minimum standards for license renewal shall expire. The department may adopt procedures for the reinstatement of expired licenses consistent with the standards established by the Nationwide Mortgage Licensing System and Registry.

274

GENERAL ACTS AND RESOLUTIONS, VOL. I

7-1-1006. (a) Each license issued under this article shall state the name of the licensee. (b) A licensee shall post a copy of such license in a conspicuous place in each place of business of the licensee. (c) A license shall not be transferred or assigned. (d) No licensee shall transact business under any name or names other than those designated in the records of the department. (e) For mortgage brokers and mortgage lenders, each licensee shall notify the department in writing of any change in the address of the principal place of business or of any additional location of business in Georgia, any change in registered agent or registered office, any change of executive officer, contact person for consumer complaints, or ultimate equitable owner of 10 percent or more of any corporation or other entity licensed under this article, or of any material change in the licensee's financial statement. Notice of changes shall be received by the department no later than 30 business days after the change is effective. (f) No mortgage broker or mortgage lender shall open a new additional office in Georgia without prior approval of the department. Applications for such additional office shall be made in writing on a form prescribed by the department and shall be accompanied by payment of a $350.00 nonrefundable application fee. The application shall be approved unless the department finds that the applicant has not conducted business under this article efficiently, fairly, in the public interest, and in accordance with law. The application shall be deemed approved if notice to the contrary has not been mailed by the department to the applicant within 45 days of the date the application is received by the department. (g) All branch managers in Georgia shall be approved by the department. A mortgage broker or mortgage lender may place a new branch manager subject to the department's approval but shall file for approval within 15 days of the placement and shall remove the person immediately should the department deny approval.

7-1-1007 0 (a) A licensee shall give notice to the department by registered or certified mail or statutory overnight delivery of any action which may be brought against it by any creditor or borrower where such action is brought under this article, involves a claim against the bond filed with the department for the purposes of compliance with Code Section 7-1-1003.2 or 7-1-1004, or involves a claim for damages in excess of$25,000.00 for a mortgage broker or mortgage loan originator and $250,000.00 for a lender and of any judgment which may be entered against it by any creditor or any borrower or prospective borrower, with details sufficient to identify the action or judgment, within 30 days after the commencement of any such action or the entry of any such judgment. (b) A corporate surety shall, within ten days after it pays any claim to any claimant, give notice to the department by registered or certified mail or statutory overnight delivery of such payment with details sufficient to identify the claimant and the claim or judgment so

GEORGIA LAWS 2009 SESSION

275

paid. Whenever the principal sum of such bond is reduced by one or more recoveries or payments thereon, the mortgage loan originator, mortgage broker, or mortgage lender shall furnish a new or additional bond so that the total or aggregate principal sum of such bond or bonds shall equal the sum required under Code Section 7-1-1003.2 or 7-1-1004 or shall furnish an endorsement duly executed by the corporate surety reinstating the bond to the required principal sum thereof. (c) A bond filed with the department for the purpose of compliance with Code Section 7-1-1003.2 or 7-1-1004 shall not be canceled by either the mortgage loan originator, mortgage broker, or mortgage lender or the corporate surety except upon notice to the department by registered or certified mail or statutory overnight delivery with return receipt requested, the cancellation to be effective not less than 30 days after receipt by the department of such notice and only with respect to any breach of condition occurring after the effective date of such cancellation. (d) A licensee or registrant shall, within ten days after knowledge of the event, report in writing to the department:
(1) Any know ledge or discovery of an act prohibited by Code Section 7-1-1013; (2) The discharge of any employee for dishonest or fraudulent acts; and (3) Any administrative, civil, or criminal action initiated against the licensee, registrant, or any of its control persons by any government entity. Any person reporting such an event shall be protected from civil liability as provided in Code Section 7-1-1009.

7-1-1008. (a) Except as provided in this Code section, no person shall acquire directly or indirectly 10 percent or more of the voting shares of a corporation or 10 percent or more of the ownership of any other entity licensed to conduct business as a mortgage broker or mortgage lender under this article unless it first:
(1) Files an application with the department in such form as the department may prescribe from time to time; (2) Delivers such other information to the department as the department may require concerning the financial responsibility, background, experience, and activities of the applicant, its directors and officers, if a corporation, and its members, if applicable, and of any proposed new directors, officers, or members of the licensee; and (3) Pays such application fee as the department may prescribe. (b) Upon the filing and investigation of an application, the department shall permit the applicant to acquire the interest in the mortgage broker or mortgage lender licensee if it finds that the applicant and its members, if applicable, its directors and officers, if a corporation, and any proposed new directors and officers have the financial responsibility, character, reputation, experience, and general fitness to warrant beliefthat the business will be operated efficiently and fairly, in the public interest, and in accordance with law. The department shall grant or deny the application within 60 days from the date a completed

276

GENERAL ACTS AND RESOLUTIONS, VOL. I

application accompanied by the required fee is filed unless the period is extended by order of the department reciting the reasons for the extension. If the application is denied, the department shall notify the applicant of the denial and the reasons for the denial. (c) The provisions of this Code section shall not apply to:
(I) The acquisition of an interest in a licensee directly or indirectly, including an acquisition by merger or consolidation by or with a person licensed by this article or a person exempt from this article under Code Section 7-1-100 I; (2) The acquisition of an interest in a mortgage broker or mortgage lender licensee directly or indirectly, including an acquisition by merger or consolidation by or with a person affiliated through common ownership with the licensee; or (3) The acquisition of an interest in a mortgage broker or mortgage lender licensee by a person by bequest, descent, or survivorship or by operation of law. The person acquiring an interest in a mortgage broker or mortgage lender licensee in a transaction which is exempt from filing an application by this subsection shall send written notice to the department of such acquisition within 30 days of the closing of such transaction.

7-l-l 009. (a) Mortgage brokers and mortgage lenders required to be licensed or registered under this article shall maintain at their offices or such other location as the department shall permit such books, accounts, and records as the department may reasonably require in order to determine whether such mortgage brokers and mortgage lenders are complying with the provisions of this article and rules and regulations adopted in furtherance thereof. Such books, accounts, and records shall be maintained separately and distinctly from any other personal or unrelated business matters in which the mortgage brokers and mortgage lenders are involved. (b) The department may, by its designated officers and employees, as often as it deems necessary, but at least once every 24 months, investigate and examine the affairs, business, premises, and records of any mortgage broker or mortgage lender required to be licensed or registered under this article insofar as such affairs, business, premises, and records pertain to any business for which a license or registration is required by this article. Notwithstanding the provisions of this subsection, the department has the discretion to examine a mortgage broker or mortgage lender less frequently, provided that its record of complaints, comments, or other information demonstrates that mortgage broker's or mortgage lender's ability to meet the standards ofCode Sections 7-1-1003,7-1-1003.2, and 7-l-1004. In the case of registrants, the department shall not be required to conduct such examinations if it determines that the registrant has been adequately examined by another bank regulatory agency. In order to avoid unnecessary duplication of examinations, the department may accept examination reports performed and produced by other state or federal agencies, unless the department determines that the examinations are not available

GEORGIA LAWS 2009 SESSION

277

or do not provide information necessary to fulfill the responsibilities of the department under this article. (c) In addition to any authority allowed under this article, the department shall be authorized to conduct investigations and examinations of mortgage loan originators as
follows: (l) For purposes of initial licensing, license renewal, license suspension, license conditioning, license revocation or termination, or general or specific inquiry or investigation to determine compliance with this article, the department shall have the authority to access, receive, and use any books, accounts, records, files, documents, information, or evidence, including, but not limited to: (A) Criminal, civil, and administrative history information, including nonconviction data; (B) Personal history and experience information, including independent credit reports obtained from a consumer reporting agency described in section 603(p) of the Fair Credit Reporting Act, 15 U.S.C. Section 168la(f); and (C) Any other documents, information, or evidence the department deems relevant to the inquiry or investigation regardless of the location, possession, control, or custody of such documents, information, or evidence; (2) For the purposes of investigating violations or complaints, or for the purposes of examination, the department may review, investigate, or examine any mortgage loan originator licensee, individual, or person subject to this article as often as necessary in order to carry out the purposes of this article. The department may direct, subpoena, or order the attendance of and examine under oath all persons whose testimony may be required about the loans or the business or subject matter of any such examination or investigation and may direct, subpoena, or order such person to produce books, accounts, records, files, and any other documents the department deems relevant to the inquiry; (3) Each mortgage loan originator licensee, individual, or person subject to this article shall make available to the department upon request the books and records relating to the activities of a mortgage loan originator; (4) Each mortgage loan originator subject to this article shall make or compile reports or prepare other information as directed by the commissioner in order to carry out the purposes of this subsection, including, but not limited to: (A) Accounting compilations; (B) Information lists and data concerning loan transactions in a format prescribed by the department; or (C) Use, hire, contract, or employ public or privately available analytical systems, methods, or software to examine or investigate a mortgage loan originator; (5) In making any examination or investigation authorized by this article, the department may control access to any documents and records of the licensee or person under investigation. In order to carry out the purposes of this Code section, the department may:

278

GENERAL ACTS AND RESOLUTIONS, VOL. I

(A) Enter into agreements or relationships with other government officials or regulatory associations in order to improve efficiencies and reduce regulatory burden by sharing resources, standardized or uniform methods or procedures, and documents, records, information, or evidence obtained under this Code section; (B) Accept and rely on examination or investigation reports made by other government officials, within or without this state; and (C) Accept audit reports made by an independent certified public accountant for the licensee, individual, or person subject to this article in the course of that part of the examination covering the same general subject matter as the audit and may incorporate the audit report in the report of examination, report of investigation, or other writing of the department; (6) The authority to investigate provided for in this subsection shall remain in effect whether such licensee, individual, or person subject to this article acts or claims to act under any licensing or registration law of this state or claims to act without such authority; and (7) No mortgage loan originator licensee, individual, or person subject to investigation or examination under this article shall knowingly withhold, abstract, remove, mutilate, destroy, or secrete any books, records, computer records, or other information. (d) The department, at its discretion, may: (l) Make such public or private investigations within or outside of this state as it deems necessary to determine whether any person has violated or is about to violate this article or any rule, regulation, or order under this article, to aid in the enforcement of this article, or to assist in the prescribing of rules and regulations pursuant to this article; (2) Require or permit any person to file a statement in writing, under oath or otherwise as the department determines, as to all the facts and circumstances concerning the matter to be investigated; (3) Disclose information concerning any violation of this article or any rule, regulation, or order under this article, provided the information is derived from a final order of the department; and (4) Disclose the imposition of an administrative fine or penalty under this article. (e)(!) For the purpose of conducting any investigation as provided in this Code section, the department shall have the power to administer oaths, to call any party to testify under oath in the course ofsuch investigations, to require the attendance of witnesses, to require the production of books, records, and papers, and to take the depositions of witnesses; and for such purposes, the department is authorized to issue a subpoena for any witness or for the production of documentary evidence. Such subpoenas may be served by certified mail or statutory overnight delivery, return receipt requested, to the addressee's business mailing address, by examiners appointed by the department, or shall be directed for service to the sheriff of the county where such witness resides or is found or where the person in custody of any books, records, or paper resides or is found. The required fees and mileage ofthe sheriff, witness, or person shall be paid from the funds in the state

GEORGIA LAWS 2009 SESSION

279

treasury for the use of the department in the same manner that other expenses of the department are paid. (2) The department may issue and apply to enforce subpoenas in this state at the request of a government agency regulating mortgage lenders or brokers of another state if the activities constituting the alleged violation for which the information is sought would be a violation of this article if the activities had occurred in this state. (f) In case of refusal to obey a subpoena issued under this article to any person, a superior court of appropriate jurisdiction, upon application by the department, may issue to the person an order requiring him or her to appear before the court to show cause why he or she should not be held in contempt for refusal to obey the subpoena. Failure to obey a subpoena may be punished as contempt by the court. (g) Examinations and investigations conducted under this article and information obtained by the department in the course of its duties under this article are confidential, except as provided in this subsection, pursuant to the provisions of Code Section 7-1-70. In addition to the exceptions set forth in subsection (b) of Code Section 7-1-70 and in paragraphs (3) and (4) of subsection(d) of this Code section, the department is authorized to share information obtained under this article with other state and federal regulatory agencies or Jaw enforcement authorities. In the case of such sharing, the safeguards to confidentiality already in place within such agencies or authorities shall be deemed adequate. The commissioner or an examiner specifically designated may disclose such limited information as is necessary to conduct a civil or administrative investigation or proceeding. Information contained in the records of the department which is not confidential and may be made available to the public either on the department's website or upon receipt by the department of a written request shall include: (!) For mortgage brokers and mortgage lenders, the name, business address, and telephone, fax, and license numbers of a licensee or registrant; (2) For mortgage brokers and mortgage lenders, the names and titles of the principal officers; (3) For mortgage brokers and mortgage lenders, the name of the owner or owners thereof; (4) For mortgage brokers and mortgage lenders, the business address of a licensee's or registrant's agent for service; and (5) The terms of or a copy of any bond filed by a licensee or registrant. (h) In the absence of malice, fraud, or bad faith, a person shall not be subject to civil liability arising from the filing of a complaint with the department or furnishing other information required by this Code section or required by the department under the authority granted in this article. No civil cause of action of any nature shall arise against such person: (I) For any information relating to suspected prohibited acts furnished to or received from law enforcement officials, their agents, or employees or to or from other regulatory or licensing authorities;

280

GENERAL ACTS AND RESOLUTIONS, VOL. I

(2) For any such information furnished to or received from other persons subject to the provisions of this title; or (3) For any such information furnished in complaints filed with the department. (i) The commissioner or any employee or agent shall not be subject to civil liability, and no civil cause of action of any nature exists against such persons arising out of the performance of activities or duties under this article or by publication of any report of activities under this Code section.

7-1-10 I 0. (a) If a mortgage broker is a United States Department of Housing and Urban Development loan correspondent, such broker shall also submit to the department the audit that is required for the United States Department ofHousing and Urban Development. The department may require the mortgage broker to have made an audit of the books and affairs of the licensed or registered business and submit to the department an audited financial statement if the department finds that such an audit is necessary to determine whether the mortgage broker is complying with the provisions of this article and the rules and regulations adopted in furtherance of this article. (b) Each mortgage lender licensed or registered under this article shall at least once each year have made an audit of the books and affairs of the licensed or registered business and submit to the department at renewal an audited financial statement, except that a mortgage lender licensed or registered under this article which is a subsidiary shall comply with this provision by annually providing a consolidated audited financial statement of its parent company and a financial statement, which may be unaudited, of the licensee or registrant which is prepared in accordance with generally accepted accounting principles. A lender who utilizes a bond in lieu of an audit need not supply such audit, unless specially required by the department. An audit shall be less than 15 months old to be acceptable. The department may by regulation establish additional minimum standards for audits and reports under this Code section.

7-1-1011. (a) The department may, by regulation, prescribe annual fees to be paid by licensees and registrants, which fees shall be set at levels necessary to defray costs and expenses incurred by the state in providing the examinations and supervision required by this article and its federally mandated participation in the Nationwide Mortgage Licensing System and Registry, and which fees may vary according to whether a person is a licensee or registrant or is a mortgage loan originator, mortgage broker, or a mortgage lender.
(b)( I) As used in this subsection, the term 'collecting agent' means the person listed as the secured party on a security deed or other loan document that establishes a lien on the residential real property taken as collateral at the time ofthe closing of the mortgage loan transaction.

GEORGIA LAWS 2009 SESSION

281

(2) There shall be imposed on the closing of every mortgage loan subject to regulation under this article which, as defined in Code Section 7-1-1000, includes all mortgage loans, whether or not closed by a mortgage broker or mortgage lender licensee or registrant, a fee of $6.50. The fee shall be paid by the borrower to the collecting agent at the time of closing of the mortgage loan transaction. The collecting agent shall remit the fee to the department at the time and in the manner specified by regulation of the department. Revenue collected by the department pursuant to this subsection shall be deposited in the general fund of the state. (3) The fee imposed by this subsection shall be a debt from the borrower to the collecting agent until such assessment is paid and shall be recoverable at law in the same manner as authorized for the recovery of other debts. Any collecting agent who neglects, fails, or refuses to collect the fee imposed by this subsection shall be liable for the payment of the fee.

7-1-1012. Without limitation on the power conferred by Article 1 ofthis chapter, the department may make reasonable rules and regulations, not inconsistent with law, for the enforcement of this article, to effectuate the purposes of this article, and to clarify the meaning of terms.

7-1-1013. It shall be prohibited for any person transacting a mortgage business in or from this state, including any person required to be licensed or registered under this article and any person exempted from the licensing or registration requirements of this article under Code Section 7-1-1001, to:
(1) Misrepresent the material facts, make false statements or promises, or submit false statements or documents likely to influence, persuade, or induce an applicant for a mortgage loan, a mortgagee, or a mortgagor to take a mortgage loan, or, through agents or otherwise, pursue a course of misrepresentation by use of fraudulent or unauthorized documents or other means to the department or anyone; (2) Misrepresent or conceal or cause another to misrepresent or conceal material factors, terms, or conditions of a transaction to which a mortgage lender or broker is a party, pertinent to an applicant or application for a mortgage loan or a mortgagor; (3) Fail to disburse funds in accordance with a written commitment or agreement to make a mortgage loan; (4) Improperly refuse to issue a satisfaction of a mortgage loan; (5) Fail to account for or deliver to any person any personal property obtained in connection with a mortgage loan such as money, funds, deposit, check, draft, mortgage, or other document or thing of value which has come into the possession of a licensee or registrant and which is not the property of the licensee or registrant, or which the mortgage lender or broker is not in law or at equity entitled to retain;

282

GENERAL ACTS AND RESOLUTIONS, VOL. I

(6) Engage in any transaction, practice, or course of business which is not in good faith or fair dealing, or which operates a fraud upon any person, in connection with the attempted or actual making of, purchase of, transfer of, or sale of any mortgage loan; (7) Engage in any fraudulent home mortgage underwriting practices; (8) Induce, require, or otherwise permit the applicant for a mortgage loan or mortgagor to sign a security deed, note, loan application, or other pertinent financial disclosure documents with any blank spaces to be filled in after it has been signed, except blank spaces relating to recording or other incidental information not available at the time of signing; (9) Make, directly or indirectly, any residential mortgage loan with the intent to foreclose on the borrower's property. For purposes of this paragraph, there shall be a presumption that a person has made a residential mortgage loan with the intent to foreclose on the borrower's property if the following circumstances can be demonstrated:
(A) Lack of substantial benefit to the borrower; (B) Lack of probability of full payment of the loan by the borrower; and (C) A significant proportion of similarly foreclosed loans by such person; (10) Provide an extension of credit or collect a mortgage debt by extortionate means; or (11) Purposely withhold, delete, destroy, or alter information requested by an examiner of the department or make false statements or material misrepresentations to the department or the Nationwide Mortgage Licensing System and Registry or in connection with any investigation conducted by the department or another governmental agency.

7-1-1014. In addition to such other rules, regulations, and policies as the department may promulgate to effectuate the purposes of this article, the department shall promulgate regulations governing the disclosure required to be made to applicants for mortgage loans, including, without limitation, the following requirements:
(1) Any person required to be licensed or registered under this article shall provide to each applicant for a mortgage loan prior to accepting an application fee or any third-party fee such as a property appraisal fee, credit report fee, or any other similar fee a disclosure of the fees payable and the conditions under which such fees may be refundable; (2) Any mortgage lender required to be licensed or registered under this article shall make available to each applicant for a mortgage loan at or before the time a commitment to make a mortgage loan is given a written disclosure of the fees to be paid in connection with the commitment and the loan, or the manner in which such fees shall be determined and the conditions under which such fees may be refundable; and (3) Any mortgage lender required to be licensed or registered under this article shall disclose to each borrower of a mortgage loan that failure to meet every condition of the mortgage loan may result in the loss of the borrower's property through foreclosure. The borrower shall be required to sign the disclosure at or before the time of the closing of the mortgage loan.

GEORGIA LAWS 2009 SESSION

283

The department may prescribe standards regarding the accuracy ofrequired disclosures and may provide for applicable administrative or civil penalties or fines for failure to provide the disclosures or to meet the prescribed standards.

7-1-1015. The department may promulgate rules with respect to the placement in escrow accounts by any person required to be licensed or registered by this article of any money, fund, deposit, check, or draft entrusted to it by any persons dealing with it as a residential mortgage loan originator, mortgage broker, mortgage lender, or servicer.

7-1-1016. In addition to such other rules, regulations, and policies as the department may promulgate to effectuate the purpose of this article, the department shall prescribe regulations governing the advertising of mortgage loans, including, without limitation, the following requirements:
(1)(A) Advertisements for loans regulated under this article shall not be false, misleading, or deceptive. No person whose activities are regulated under this article shall advertise in any manner so as to indicate or imply that its interest rates or charges for loans are in any way 'recommended,' 'approved,' 'set,' or 'established' by the state or this article. (B) An advertisement shall not include an individual's loan number, loan amount, or other publicly available information unless it is clearly and conspicuously stated in boldface type at the beginning of the advertisement that the person disseminating it is not authorized by, in sponsorship with, or otherwise affiliated with the individual's lender, which shall be identified by name. Such an advertisement shall also state that the loan information contained therein was not provided by the recipient's lender; (2) All advertisements, including websites, disseminated by a licensee or a registrant in this state by any means shall contain the name, license number, Nationwide Mortgage Licensing System and Registry unique identifier, and an office address of such licensee or registrant, which shall conform to a name and address on record with the department; and (3) No mortgage broker or mortgage lender licensee shall advertise its services in Georgia in any media disseminated in this state, whether print or electronic, without the words 'Georgia Residential Mortgage Licensee' or, for those advertisers licensed in more than one state, a listing of Georgia as a state in which the advertiser is licensed.

7-1-1017. (a)(l) The department may suspend orrevoke an original or renewal license, registration, or mortgage broker education approval on any ground on which it might refuse to issue an original license, registration, or approval or for a violation of any provision of this article or of Chapter 6A of this title or any rule or regulation issued under this article or

284

GENERAL ACTS AND RESOLUTIONS, VOL. I

under Chapter 6A of this title, including failure to provide fees on a timely basis, or for failure of the licensee or registrant to pay, within 30 days after it becomes final, a judgment recovered in any court within this state by a claimant or creditor in an action arising out of the licensee's or registrant's business in this state as a mortgage loan originator, mortgage lender, or mortgage broker or for violation of a final order previously issued by the department. (2) Where an applicant or licensee has been found not in compliance with an order for child support as provided in Code Section 19-6-28.1 or 19-11-9.3, such action shall be sufficient grounds for refusal of a license or suspension of a license. In such actions, the hearing and appeal procedures provided for in those Code sections shall be the only such procedures required under this article. The department shall be permitted to share, without liability, information on its applications or other forms with appropriate state agencies to assist them in recovering child support when required by Jaw. (3) Where an applicant or licensee has been found to be a borrower in default as provided in Code Section 20-3-295, such action shall be sufficient grounds for refusal of a license or suspension of a license. In such actions, the hearing and appeal procedures provided for in Code Section 20-3-295 shall be the only such procedures required under this article. (b) Notice of the department's intention to enter an order denying an application for a license or registration under this article or of an order suspending or revoking a license or registration under this article shall be given to the applicant, licensee, or registrant in writing, sent by registered or certified mail or statutory overnight delivery addressed to the principal place of business of such applicant, licensee, or registrant. Within 20 days of the date of the notice of intention to enter an order of denial, suspension, or revocation under this article, the applicant, licensee, or registrant may request in writing a hearing to contest the order. If a hearing is not requested in writing within 20 days of the date of such notice of intention, the department shall enter a final order regarding the denial, suspension, or revocation. Any final order of the department denying, suspending, or revoking a license or registration shall state the grounds upon which it is based and shall be effective on the date of issuance. A copy thereof shall be forwarded promptly by registered or certified mail or statutory overnight delivery addressed to the principal place of business of such applicant, licensee, or registrant. If a person refuses to accept service of the notice or order by registered or certified mail or statutory overnight delivery, the notice or order shall be served by the commissioner or the commissioner's authorized representative under any other method of lawful service; and the person shall be personally liable to the commissioner for a sum equal to the actual costs incurred to serve the notice or order. This liability shall be paid upon notice and demand by the commissioner or the commissioner's representative and shall be assessed and collected in the same manner as other fees or fines administered by the commissioner. (c) A licensee or registrant may, at the discretion of and with the consent of the department, agree to a voluntary suspension of its license or registration for a period of

GEORGIA LAWS 2009 SESSION

285

time to be agreed upon by the parties. Such order of suspension shall be considered a final order and shall be forwarded to the licensee or registrant in the same manner as any other final order. Grounds for such a voluntary suspension shall be the same as provided in subsection (a) of this Code section, and the licensee or registrant may waive its right to an administrative hearing before issuance of the suspension. With the consent of the department, a licensee or registrant may voluntarily surrender its license or registration. A voluntary surrender of a license or registration shall have the same effect as a revocation of said license or registration. A voluntary surrender of a license shall be regarded as a final order of the department. (d) A decision of the department denying a license or registration application, original or renewal, shall be conclusive, except that it may be subject to judicial review under Code Section 7-1-90. A decision of the department suspending or revoking a license or registration shall be subject to judicial review in the same manner as a decision of the department to take possession of the assets and business of a bank under Code Section 7-1-155. (e) Except as otherwise provided by law, a revocation, suspension, or surrender of a license or registration shall not impair or affect the obligation of a preexisting contract between the licensee and another person. (f) Nothing in this article shall preclude a mortgage broker or mortgage lender whose license or registration has been suspended or revoked from continuing to service mortgage loans pursuant to servicing contracts in existence at the time of the suspension or revocation for a period not to exceed six months after the date of the final order of the department suspending or revoking the license or registration. (g) Whenever a person subject to an order ofthe department fails to comply with the terms of such order which has been properly issued, the department upon notice of three days to such person may, through the Attorney General, petition the principal court for an order directing such person to obey the order of the department within the period of time fixed by the court. Upon the filing of such petition, the court shall allow a motion to show cause why such motion should not be granted. Whenever, after a hearing upon the merits or after failure of such person to appear when ordered, it shall appear that the order of the department was properly issued, the court shall grant the petition of the department. (h) Whenever the department initiates an administrative action against a current licensee, the department may pursue that action to its conclusion despite the fact that a licensee may withdraw its license or fail to renew it.

7-1-1018. (a) Whenever it shall appear to the department that any person required to be licensed or registered under this article or employed by a licensee or who would be covered by the prohibitions in Code Section 7-1-1013 has violated any law of this state or any order or regulation of the department, the department may issue an initial written order requiring such person to cease and desist immediately from such unauthorized practices. Such cease

286

GENERAL ACTS AND RESOLUTIONS, VOL. I

and desist order shall be final 20 days after it is issued unless the person to whom it is issued makes a written request within such 20 day period for a hearing. The hearing shall be conducted in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' A cease and desist order to an unlicensed person that orders them to cease doing a mortgage business without the appropriate license shall be final 30 days from the date of issuance, and there shall be no opportunity for an administrative hearing. If the proper license or evidence of exemption or valid employment status during the time of the alleged offense is delivered to the department within the 30 day period, the order shall be rescinded by the department. If a cease and desist order is issued to a person who has been sent a notice of bond cancellation and if the bond is reinstated or replaced and such documentation is delivered to the department within the 30 day period following the date of issuance of the order, the order shall be rescinded. If the notice of reinstatement of the bond is not received within the 30 days, the license shall expire at the end of the 30 day period, and the person shall be required to make a new application for license and pay the applicable fees. In the case of an unlawful purchase of mortgage loans, such initial cease and desist order to a purchaser shall constitute the know ledge required under subsection (b) of Code Section 7-1-1002 for any subsequent violations. Any cease and desist order sent to the person at both his or her personal and business addresses pursuant to this Code section that is returned to the department as 'refused' or 'unclaimed' shall be deemed as received and sufficiently served. (b) Whenever a person shall fail to comply with the terms of an order of the department which has been properly issued under the circumstances, the department, upon notice of three days to such person, may, through the Attorney General, petition the principal court for an order directing such person to obey the order of the department within the period of time as shall be fixed by the court. Upon the filing of such petition, the court shall allow a motion to show cause why it should not be granted. Whenever, after a hearing upon the merits or after failure of such person to appear when ordered, it shall appear that the order of the department was properly issued, the court shall grant the petition of the department. (c) Any person who violates the terms of any order issued pursuant to this Code section shall be liable for a civil penalty not to exceed $1 ,000.00. Each day during which the violation continues shall constitute a separate offense. In determining the amount of penalty, the department shall take into account the appropriateness of the penalty relative to the size of the financial resources of such person, the good faith efforts of such person to comply with the order, the gravity of the violation, the history of previous violations by such person, and such other factors or circumstances as shall have contributed to the violation. The department may at its discretion compromise, modify, or refund any penalty which is subject to imposition or has been imposed pursuant to this Code section. Any person assessed as provided in this subsection shall have the right to request a hearing into the matter within ten days after notification of the assessment has been served upon the person involved; otherwise, such penalty shall be final except as to judicial review as provided in Code Section 7-1-90.

GEORGIA LAWS 2009 SESSION

287

(d) Initial judicial review of the decision of the department entered pursuant to this Code section or Code Section 7-1-1017 shall be available solely in the superior court of the county of domicile of the department. (e) All penalties and fines recovered by the department as authorized by subsection (g) of this Code section shall be paid into the state treasury to the credit of the general fund; provided, however, that the department at its discretion may remit such amounts recovered, net of the cost of recovery, if it makes an accounting of all such costs and expenses of recovery in the same manner as prescribed for judgments received through derivative actions pursuant to the provisions of Code Section 7-1-441. (f) For purposes of this Code section, the term 'person' also includes any officer, director, employee, agent, or other person participating in the conduct of the affairs of the person subject to the orders issued pursuant to this Code section. (g) In addition to any other administrative penalties authorized by this article, the department may, by regulation, prescribe administrative fines for violations of this article and of any rules promulgated by the department pursuant to this article.

7-1-1019. Any person and the several members, officers, directors, agents, and employees thereof who:
(I) Shall violate the provisions of subsection (a) ofCode Section 7-1-1002, by the willful transaction of a mortgage business without a license or exemption, shall be guilty of a felony punishable as provided in Code Section 7-1-845; or (2) Shall violate any of the other provisions of this article shall be guilty of a misdemeanor and shall be punished by imprisonment for not more than one year or by a fine of not more than $1 ,000.00, or by both fine and imprisonment.

7-1-1020. Nothing in this article shall limit any statutory or common law right of any person to bring any action in any court for any act involved in the mortgage business or the right of the state to punish any person for any violation of any law. Without limiting the generality of the foregoing, nothing in this article shall be construed as limiting in any manner the application of Part 2 of Article 15 of Chapter I of Title I 0, the 'Fair Business Practices Act of 1975.'

7-1-1021. The department may promulgate regulations governing the use and contents of lock-in agreements and commitment agreements."

SECTION 2. This Act shall become effective on July I, 2009.

288

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April29, 2009.

COURTS- JUVENILE COURT PROCEEDINGS; VARIOUS REVISIONS.
No. 67 (Senate Bill No. 207).
AN ACT
To amend Chapter 11 of Title 15 of the Official Code of Georgia Annotated, relating to juvenile proceedings, so as to admit the general public to certain proceedings in juvenile court with certain exceptions; to define certain terms; to authorize a juvenile court to close a hearing under certain circumstances; to require a written order to close certain hearings; to provide that the judge may order the media not to publicize the identifying information of any child involved in open juvenile court proceedings; to provide that certain records may be sealed; to provide for sharing of confidential information; to provide for related matters; to provide for an effective date and applicability; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 11 of Title 15 of the Official Code of Georgia Annotated, relating to juvenile proceedings, is amended by revising Code Section 15-11-78, relating to exclusion of the public from hearing and exceptions, as follows:
'15-11-78. (a) As used in this Code section, the term 'deprivation proceeding' means a court proceeding stemming from a petition alleging that a child is a deprived child. (b) The general public shall be admitted to:
( 1) An adjudicatory hearing involving an allegation of a designated felony pursuant to Code Section 15-11-63; (2) An adjudicatory hearing involving an allegation of delinquency brought in the interest of any child who has previously been adjudicated delinquent; provided, however, the court shall close any delinquency hearing on an allegation of sexual assault or any

GEORGIA LAWS 2009 SESSION

289

delinquency hearing at which any party expects to introduce substantial evidence related to matters of deprivation; (3) Any child support hearing; (4) Any hearing in a legitimation action filed pursuant to Code Section 19-7-22; (5) At the court's discretion, any dispositional hearing involving any proceeding under this article; or (6) Any hearing in a deprivation proceeding, except as otherwise provided in subsection (c) of this Code section. (c) The court may close the hearing in a deprivation proceeding only upon making a finding upon the record and issuing a signed order as to the reason or reasons for closing all or part of a hearing in such proceeding and stating that:
(A) The proceeding involves an allegation of an act which, if done by an adult, would constitute a sexual offense under Chapter 6 of Title 16; or (B) It is in the best interest of the child. In making such a determination, the court shall consider such factors as:
(i) The age of the child; (ii) The nature of the allegations; (iii) The effect that an open court proceeding will have on the court's ability to reunite and rehabilitate the family unit; and (iv) Whether the closure is necessary to protect the privacy of a child, of a foster parent or other caretaker of a child, or of a victim of domestic violence. (d) The court may close a hearing or exclude a person from a hearing in any proceeding on its own motion, by motion of a party to the proceeding, or by motion of a child who is the subject of the proceeding or the child's attorney or guardian ad litem. (e) Only the parties, their counsel, witnesses, persons accompanying a party for his or her assistance, and any other persons as the court finds have a proper interest in the proceeding or in the work of the court may be admitted by the court to hearings from which the public is excluded; provided, however, that when the conduct alleged in the deprivation proceeding could give rise to a criminal or delinquent prosecution, attorneys for the prosecution and the defense shall be admitted. (t) The court may refuse to admit a person to a hearing in any proceeding upon making a finding upon the record and issuing a signed order that the person's presence at the hearing would: (I) Be detrimental to the best interest of a child who is a party to the proceeding; (2) Impair the fact-finding process; or (3) Be otherwise contrary to the interest of justice. (g) The court may temporarily exclude any child from a termination of parental rights hearing except while allegations of his or her delinquency or unruly conduct are being heard. (h) Any request for installation and use of electronic recording, transmission, videotaping, or motion picture or still photography of any judicial proceeding shall be made to the court

290

GENERAL ACTS AND RESOLUTIONS, VOL. I

at least two days in advance of the hearing. The request shall be evaluated by the court pursuant to the standards set forth in Code Section 15-1-10.1. (i) The judge may order the media not to release identifying information concerning any child or family members or foster parent or other caretaker of a child involved in hearings open to the public. (j) The general public shall be excluded from proceedings in juvenile court unless such hearing has been specified as one in which the general public shall be admitted to pursuant to this Code section."

SECTION 2. Said chapter is further amended by revising subsection (b) ofCode Section 15-11-79, relating to inspection of court files and records, as follows:
'(b) Subject to the requirements of subsection (a) of Code Section 15-11-56, subsection (b) of Code Section 15-11-65, and Code Section 15-11-79.2, the general public shall be allowed to inspect court files and records for cases arising under Code Section 15-11-73 or any complaint, petition, or order from any case that was open to the public pursuant to paragraphs (1) through (5) of subsection (b) of Code Section 15-11-78. The general public shall be allowed to inspect court files and records for proceedings involving a legitimation petition under the jurisdiction of the juvenile court pursuant to paragraph (I) or (2) of subsection (e) of Code Section 15-11-28.'

SECTION 3. Said chapter is further amended by revising subsection (e) of Code Section 15-11-79.2, relating to sealing of records, as follows:
(e) The court may seal any record containing information identifying a victim of an act which, if done by an adult, would constitute a sexual offense under Chapter 6 of Title 16.'

SECTION 4. Said chapter is further amended by revising subsection (b) ofCode Section 15-11-82, relating to inspection of court files and records, as follows:
'(b) Unless a charge of delinquency is transferred for criminal prosecution under Code Section 15-11-30.2, or the interest of national security requires, or the case is one in which the general public may not be excluded from the hearings under Code Section 15-11-78, or the court otherwise orders in the interest of the child, the records and files shall not be open to public inspection nor shall their contents be disclosed to the public.'

SECTION 5. Said chapter is further amended by adding a new Code section to read as follows:
'15-11-84. (a) As used in this Code section, the term 'governmental entity' shall mean the court, superior court, the Department of Juvenile Justice, the Division of Mental Health,

GEORGIA LAWS 2009 SESSION

291

Developmental Disabilities, and Addictive Diseases within the Department of Human Resources, the Division of Family and Children Services within the Department of Human Resources, county departments of family and children services, or public school, as such term is defined in Code Section 16-11-35. (b) Governmental entities, state, county, consolidate governments, or municipal government departments, boards, or agencies shall exchange with each other all information not held as confidential pursuant to federal law and relating to a child which may aid a governmental entity in the assessment, treatment, intervention, or rehabilitation of a child, notwithstanding Code Section 15-1-15, 15-11-9.1, subsection (d) of Code Section 15-11-10, Code Section 15-11-66.1, 15-11-75, 15-11-81, 15-11-82, 15-11-174, 20-2-751.2, 20-14-40, 24-9-40.1, 24-9-41, 24-9-42, 26-4-5, 26-4-80, 26-5-17, 31-5-5, 31-33-6, 37-1-53, 37-2-9.1, 42-5-36, 42-8-40, 42-8-106, 49-5-40, 49-5-41, 49-5-41.1, 49-5-44, 49-5-45, 49-5-183, 49-5-184, 49-5-185, or 49-5-186, in order to serve the best interest of the child. Information which is shared pursuant to this subsection shall not be utilized to assist in the prosecution ofthe child in juvenile court or superior court or utilized to the detriment of the child. (c) Information released pursuant to this Code section shall not change or rescind the confidential nature of such information and such information shall not be subject to public disclosure or inspection unless otherwise provided by law:

SECTION 6. This Act shall become effective on January 1, 20 I0, and shall not apply to any juvenile court proceeding filed before that date. Any such proceeding filed before January I, 20 I0, shall be governed by the statute in effect at the time the juvenile court proceeding was filed.

SECTION 7. All laws and parts of laws in conflict with this Act are repealed.

Approved April30, 2009.

292

GENERAL ACTS AND RESOLUTIONS, VOL. I

HEALTH PROFESSIONS- DECEASED INDIVIDUALS; PRENEED CONTRACTS; BODY DISPOSITION; CLAIM RESOLUTION; IMMUNITY; CREMATORIES.

No. 68 (House Bill No. 68).

AN ACT

To amend Titles 31 and 43 of the Official Code of Georgia Annotated, relating to health and professions and business, respectively, so as to provide for regulation of certain areas related to deceased individuals; to provide for the ability for individuals to provide through a preneed contract for the disposition oftheir bodies after death; to provide for the persons who may direct the disposition of a person's body after the person's death; to provide for the forfeiture of the right of disposition under certain circumstances; to provide for resolving conflicting claims; to provide for immunity for funeral homes that act in good faith on such directions for disposition; to restrict the location of certain crematories; to provide for a procedure for the disposition of cremains after a certain time period; to provide for certain costs and fees to be paid by the authorizing agent; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Title 31 of the Official Code of Georgia Annotated, relating to health, is amended by adding a new Code section to read as follows:
"31-21-7. (a) A person who is 18 years of age or older and of sound mind, by entering into a preneed contract, as defined in paragraph (30) of Code Section 10-14-3, may direct the location, manner, and conditions of the disposition of the person's remains and the arrangements for funeral goods and services to be provided upon the person's death. The disposition directions and funeral prearrangements that are contained in a preneed contract shall not be subject to cancellation or substantial revision unless the cancellation or substantial revision has been ordered by a person the decedent has appointed in the preneed contract as the person authorized to cancel or revise the terms of the preneed contract or unless any resources set aside to fund the preneed contract are insufficient under the terms of the preneed contract to carry out the disposition directions and funeral prearrangements contained therein. (b) Except as provided in subsection (c) of this Code section, the right to control the disposition of the remains of a deceased person; the location, manner, and conditions of disposition; and arrangements for funeral goods and services to be provided vests in the

GEORGIA LAWS 2009 SESSION

293

following, in the order named, provided that such person is 18 years or older and is of

sound mind:

(1) The health care agent, as defined in Code Section 31-32-2;

(2)(A) A person designated by the decedent as the person with the right to control the

disposition in an affidavit executed in accordance with subparagraph (B) of this

paragraph.

(B) A person who is 18 years of age or older and of sound mind wishing to authorize

another person to control the disposition of his or her remains may execute an affidavit

before a notary public in substantially the following form:

'State of Georgia

County of _ __

I,

, do hereby designate

with the right to

control the disposition of my remains upon my death. have have not attached

specific directions concerning the disposition of my remains with which the designee

shall substantially comply, provided that such directions are lawful and there are

sufficient resources in my estate to carry out the directions.

Subscribed and sworn to before me this _ day of the month of _ _ of the year

._ _ _ _(signature of affiant) _________(signature of notary public)'; (3) The surviving spouse of the decedent; (4) The sole surviving child of the decedent or, if there is more than one child of the decedent, the majority of the surviving children; provided, however, that less than one-half of the surviving children shall be vested with the rights under this Code section if they have used reasonable efforts to notify all other surviving children of their instructions and are not aware of any opposition to those instructions on the part of more than one-half of all surviving children; (5) The surviving parent or parents of the decedent. If one of the surviving parents is absent, the remaining parent shall be vested with the rights and duties under this Code section after reasonable efforts have been unsuccessful in locating the absent surviving parent; (6) The surviving brother or sister of the decedent or, if there is more than one sibling of the decedent, the majority of the surviving siblings; provided, however, that less than the majority of surviving siblings shall be vested with the rights and duties under this Code section if they have used reasonable efforts to notify all other surviving siblings of their instructions and are not aware of any opposition to those instructions on the part of more than one-half of all surviving siblings; (7) The surviving grandparent of the decedent or, if there is more than one surviving grandparent, the majority of the grandparents; provided, however, that less than the majority of the surviving grandparents shall be vested with the rights and duties under this Code section if they have used reasonable efforts to notify all other surviving

294

GENERAL ACTS AND RESOLUTIONS, VOL. I

grandparents of their instructions and are not aware of any opposition to those instructions on the part of more than one-half of all surviving grandparents; (8) The guardian of the person of the decedent at the time of the decedent's death if one had been appointed; (9) The personal representative of the estate of the decedent; (10) The person in the classes of the next degree of kinship, in descending order, under the laws of descent and distribution to inherit the estate of the decedent. If there is more than one person of the same degree, any person of that degree may exercise the right of disposition; (II) If the disposition of the remains of the decedent is the responsibility of the state or a political subdivision of the state, the public officer, administrator, or employee responsible for arranging the final disposition of decedent's remains; or (12) In the absence of any person under paragraphs (I) through (I 0) of this subsection, any other person willing to assume the responsibilities to act and arrange the final disposition of the decedent's remains, including the funeral director with custody of the body, after attesting in writing that a good faith effort has been made to no avail to contact the individuals under paragraphs (I) through (I 0) of this subsection. (c) A person entitled under law to the right of disposition shall forfeit that right, and the right is passed on to the next qualifying person as listed in subsection (b) of this Code section, in the following circumstances: (I) Any person charged with murder or voluntary manslaughter in connection with the decedent's death and whose charges are known to the funeral director; provided, however, that, if the charges against such person are dismissed or if such person is acquitted of the charges, the right of disposition is returned to the person; (2) Any person who does not exercise his or her right of disposition within two days of notification of the death of decedent or within three days of decedent's death, whichever is earlier; (3) If the person and the decedent are spouses and a petition to dissolve the marriage was pending at the time of decedent's death; or (4) Where the probate court pursuant to subsection (d) of this Code section determines that the person entitled to the right of disposition and the decedent were estranged at the time of death. For purposes of this Code section, the term 'estranged' means a physical and emotional separation from the decedent at the time of death which has existed for a period of time that clearly demonstrates an absence of due affection, trust, and regard for the decedent. (d) Notwithstanding subsections (b) and (c) of this Code section, the probate court for the county where the decedent resided may award the right of disposition to the person determined by the court to be the most fit and appropriate to carry out the right of disposition and may make decisions regarding the decedent's remains if those sharing the right of disposition cannot agree. The following provisions shall apply to the court's determination under this subsection:

GEORGIA LAWS 2009 SESSION

295

(1) If the persons holding the right of disposition are two or more persons with the same relationship to the decedent and they cannot, by majority vote, make a decision regarding the disposition of the decedent's remains, any of such persons or a funeral home with custody of the remains may file a petition asking the probate court to make a determination in the matter; (2) In making a determination under this subsection, the probate court shall consider the following:
(A) The reasonableness and practicality of the proposed funeral arrangements and disposition; (B) The degree of the personal relationship between the decedent and each of the persons claiming the right of disposition; (C) The desires of the person or persons who are ready, able, and willing to pay the cost of the funeral arrangements and disposition; (D) The convenience and needs of other families and friends wishing to pay respects; (E) The desires of the decedent; and (F) The degree to which the funeral arrangements would allow maximum participation by all wishing to pay respect; (3) In the event of a dispute regarding the right of disposition, a funeral home shall not be liable for refusing to accept the remains or to inter or otherwise dispose of the remains ofthe decedent or complete the arrangements for the final disposition ofthe remains until the funeral home receives a court order or other written agreement signed by the parties in the disagreement that decides the final disposition of the remains. Ifthe funeral home retains the remains for final disposition while the parties are in disagreement, the funeral home may embalm or refrigerate and shelter the body, or both, in order to preserve it while awaiting the final decision of the probate court and may add the cost of embalming or refrigeration and sheltering to the final disposition costs. If a funeral home brings an action under this subsection, the funeral home may add the legal fees and court costs associated with a petition under this subsection to the cost of final disposition. This subsection may not be construed to require or to impose a duty upon a funeral home to bring an action under this subsection. A funeral home and its employees shall not be held criminally or civilly liable for choosing not to bring an action under this subsection; and (4) Except to the degree it may be considered by the probate court under subparagraph (C) of paragraph (2) of this subsection, the fact that a person has paid or agreed to pay for all or part of the funeral arrangements and final disposition shall not give that person a greater claim to the right of disposition than the person would otherwise have. The personal representative of the estate of the decedent shall not, by virtue of being the personal representative, have a greater claim to the right of disposition than the person would otherwise have. (e) Any person signing a funeral service agreement, cremation authorization form, or any other authorization for disposition shall be deemed to warrant the truthfulness of any facts set forth therein, including the identity of the decedent whose remains are to be buried,

296

GENERAL ACTS AND RESOLUTIONS, VOL. I

cremated, or otherwise disposed of, and the party's authority to order such disposition. A funeral home shall have the right to rely on such funeral service agreement or authorization and shall have the authority to carry out the instructions ofthe person or persons the funeral home reasonably believes holds the right of disposition. The funeral home shall have no responsibility to contact or to independently investigate the existence of any next of kin or relative of the decedent. If there is more than one person in a class who are equal in priority and the funeral home has no knowledge of any objection by other members of such class, the funeral home shall be entitled to rely on and act according to the instructions of the first such person in the class to make funeral and disposition arrangements, provided that no other person in such class provides written notice of his or her objections to the funeral home. (t) If a funeral establishment or funeral director relies in good faith upon the instructions of an individual claiming the right of disposition pursuant to subsection (b) or (d) of this Code section and such individual is later determined to have falsely or fraudulently represented himself or herself as having such a right, the funeral establishment or funeral director shall not be subject to criminal or civil liability or subject to disciplinary action for carrying out the disposition of the remains in accordance with such instructions.'

SECTION 2. Title 43 of the Official Code of Georgia Annotated, relating to professions and businesses, is amended by revising subsection (a) of Code Section 43-18-72, relating to crematories to be licensed, equipment, facilities, and personnel, application, reports, and limitation ofsingle body in retort, as follows:
'43-18-72. (a)( I) It shall be unlawful for any person, firm, corporation, or association to operate a crematory without first obtaining a separate license for such purpose from the board in accordance with this article. The crematory must be at a specific address or location and must meet the following requirements and have the following minimum equipment, facilities, and personnel: (A) A room with seating for a minimum of 30 people in which funeral services may be conducted; (B) A display room containing an adequate supply of urns; (C) Rolling stock consisting of at least one operable motor hearse either owned or leased by said firm with current Georgia registration; (D) At least one operable retort for cremation; (E) At least one operable processing station for grinding of cremated remains; (F) At least one church truck; and (G) Not be located within 1,000 feet of a residential subdivision platted and recorded in the office of the clerk of the superior court of a county in which such residential subdivision is located.

GEORGIA LAWS 2009 SESSION

297

(2){A) The provisions of subparagraphs {A), (B), and (F) of paragraph (1) of this subsection shall not apply to crematories which provide cremation services only to other funeral establishments. (B) The provision of paragraph (G) of paragraph (1) of this subsection shall only apply to the issuance or renewal of any license on or after the effective date of this subparagraph for any stand-alone crematory that was not in operation as of such effective date. For purposes ofthis subparagraph, the term 'stand-alone crematory' shall mean a crematory that is not located on or adjacent to a tract or parcel of land which contains a funeral establishment."

SECTION 3. Said title is further amended by adding a new Code section to read as follows:
43-18-80. (a) For the purposes of this Code section, 'authorizing agent' means a person legally entitled to authorize the cremation of human remains. (b) The authorizing agent shall provide to the funeral establishment in which the cremation arrangements are made a signed statement specifying the ultimate disposition of the cremated remains, if known. A copy of this statement shall be retained by the funeral establishment offering or conducting the cremation. (c) Cremated remains shall be shipped only by a method that has an internal tracking system available and that provides a receipt signed by the person accepting delivery. (d) The authorizing agent shall be responsible for the disposition of the cremated remains. If, after 60 days from the date of cremation, the authorizing agent or his or her representative has not specified the ultimate disposition or claimed the cremated remains, the funeral establishment or entity in possession of the cremated remains shall send a notification to the authorizing agent notifying him or her that, pursuant to this subsection, failure to respond to such notification and specify the final disposition of the cremains within 30 days of the transmission of such notice shall authorize the funeral establishment to make arrangements for the disposition of the cremains. If, after 30 days, the funeral establishment or entity in possession of the cremated remains has not received instructions from the authorizing agent describing a specific method of disposing of the cremains, the funeral establishment or entity in possession of the cremains shall be authorized to dispose of the cremated remains in a dignified and humane manner by entombing such cremains in a crypt or underground in accordance with local and state law or by storage in the funeral establishment. The final resting place ofthe cremains shall be clearly marked and recorded by the funeral establishment entombing the cremains. Any costs or fees incurred to entomb, inter, or disinter the cremains shall be the responsibility of the authorizing agent; provided, however, that such cost shall not exceed $1 00.00."

298

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved April30, 2009.

HEALTH- ATTENDING PHYSICIAN; NONRESUSCITATION WITHOUT CONCURRENCE.
No. 69 (House Bill No. 69).
AN ACT
To amend Code Section 31-39-4 of the Official Code of Georgia Annotated, relating to persons authorized to issue an order not to resuscitate, so as to provide for an attending physician to issue an order not to resuscitate a candidate for nonresuscitation without concurrence by another physician under certain conditions; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Code Section 31-39-4 of the Official Code of Georgia Annotated, relating to persons authorized to issue an order not to resuscitate, is amended by revising subsection (c) as follows:
'(c) The appropriate authorized person may, after being informed of the provisions of this Code section, consent orally or in writing to an order not to resuscitate for an adult candidate for nonresuscitation; provided, however, that such consent is based in good faith upon what such authorized person determines such candidate for nonresuscitation would have wanted had such candidate for nonresuscitation understood the circumstances under which such order is being considered. Where such authorized person is an agent under a durable power of attorney for health care or health care agent under an advance directive for health care appointed pursuant to Chapter 32 of this title, the attending physician may issue an order not to resuscitate a candidate for nonresuscitation pursuant to the requirements ofthis chapter without the concurrence ofanother physician, notwithstanding the provisions of paragraph (4) of Code Section 31-39-2.'

GEORGIA LAWS 2009 SESSION

299

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved Apri130, 2009.

CRIMES -FALSE IDENTIFICATION DOCUMENTS.
No. 70 (House Bill No. 71).
AN ACT
To amend Code Section 16-9-4 of the Official Code of Georgia Annotated, relating to manufacturing, selling, or distributing false identification documents, so as to remove a defense to a charge of manufacturing, selling, or distributing false identification documents; to provide for related matters; to provide for an effective date and applicability; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Code Section 16-9-4 of the Official Code of Georgia Annotated, relating to manufacturing, selling, or distributing false identification documents, is amended by revising subsection (g) as follows:
"(g) It shall not be a defense to a violation of this Code section that a false, fictitious, fraudulent, or altered identification document contained words indicating that it is not an identification document."
SECTION 2. This Act shall become effective on October 1, 2009, and shall apply to offenses committed on or after such date.
SECTION 3. All laws and parts of laws in conflict with this Act are repealed.
Approved April30, 2009.

300

GENERAL ACTS AND RESOLUTIONS, VOL. I

ELECTIONS -ABSENTEE BALLOTS; PRECINCT RETURNS.

No. 71 (House Bill No. 86).

AN ACT

To amend Chapter 2 of Title 21 of the Official Code of Georgia Annotated, relating to primaries and elections generally, so as to provide that returns of absentee ballots shall be made by precinct; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Chapter 2 of Title 21 of the Official Code of Georgia Annotated, relating to primaries and elections generally, is amended by revising subsection (d) ofCode Section 21-2-386, relating to safekeeping, certification, and validation of absentee ballots, as follows:
'(d) All absentee ballots shall be counted and tabulated in such a manner that returns may be reported by precinct; and separate returns shall be made for each precinct in which absentee ballots were cast showing the results by each precinct in which the electors reside.'

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved April 30, 2009.

EDUCATION -GEORGIA MEDICAL CENTER AUTHORITY; POWERS.
No. 72 (House Bill No. 93).
AN ACT
To amend Chapter 15 of Title 20 of the Official Code of Georgia Annotated, relating to the Georgia Medical Center Authority, so as to provide authorization for the authority to take

GEORGIA LAWS 2009 SESSION

301

partial and joint ownership interests in real property, to create nonprofit subsidiaries, to create investment or revolving loan funds using bond money as seed funds, and to invest in equity investments managed by third-party managers; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Chapter 15 of Title 20 of the Official Code of Georgia Annotated, relating to the Georgia Medical Center Authority, is amended by revising paragraph (2) of Code Section 20-15-5, relating to powers of the authority, as follows:
'(2) To acquire, by purchase, lease, or otherwise and to hold, lease, and dispose of real and personal property of every kind and character for its corporate purposes, including the acquisition of partial and joint ownership interests in real property with other entities;'.

SECTION 2. Said chapter is further amended by striking the word "and" at the end of paragraph (21) of Code Section 20-15-5, relating to powers of the authority; by striking the period at the end of paragraph (22) and inserting a semi-colon in lieu thereof; and by adding new paragraphs as follows:
'(23) To create, acquire, alter, dissolve, operate, manage, and maintain subsidiaries for the sole purpose of facilitating the purposes and exercising the powers of the authority provided in this chapter, provided such subsidiaries are operated on a not-for-profit basis; (24) To create an investment or revolving loan fund utilizing money derived from the sale of bonds as seed funds for such loan fund to facilitate the purposes of the authority; and (25) To invest and reinvest in any equity investments which are legal investments for executors or trustees; provided, however, that investments in such equity investments will at all times be held for and, when sold, used for the purposes for which the money was originally received and provided further that all such investments shall be managed by properly accredited third-party managers."

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April 30, 2009.

302

GENERAL ACTS AND RESOLUTIONS, VOL. I

HIGHWAYS- UTILITY FACILITIES; ASBESTOS PIPE; TRANSIT VEHICLES; COMMERCIAL ADVERTISEMENT.

No. 73 (House Bill No. 101).

AN ACT

To amend Title 32 ofthe Official Code of Georgia Annotated, relating to highways, bridges, and ferries, so as to provide for regulation of certain facilities above and below the roadways; to authorize procedures relative to asbestos pipe; to limit certain prohibitions upon advertising in or on transit agencies' vehicles and facilities; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Title 32 ofthe Official Code ofGeorgia Annotated, relating to highways, bridges, and ferries, is amended by adding a new Code section to read as follows:
'32-4-4. (a) As used in this Code section, the term 'entity' means a county, a municipality, a consolidated government, or a local authority. (b) Whenever existing utility facilities owned and operated by an entity contain asbestos pipe and such pipe exists in the rights of way of any road, bridge, or other transportation project authorized pursuant to this title, and the entity determines that such pipe should no longer be utilized, the entity that owns and operates the utility facility shall have the discretion to:
(1) Remove and dispose of the asbestos pipe in accordance with federal laws and regulations; (2) Leave the asbestos pipe in place and fill it with grout or other similar substance designed to harden within the pipe; or (3) Allow the pipe to remain undisturbed in the ground and take no further action. (c) At the request of the department or entity, any asbestos pipe left in the right of way as authorized by subsection (b) of this Code section shall be marked so as to be locatable. (d) Any costs, claims, or other liability associated with the entity's decision pursuant to subsection (b) of this Code section shall be borne by the entity and may be subject to offset by the department.'

GEORGIA LAWS 2009 SESSION

303

SECTION 2. Said title is further amended by revising Code Section 32-6-51, relating to the erection, placement, or maintenance of unlawful or unauthorized structures, by adding a new subsection to read as follows:
'(g)( 1) As used in this subsection, the term: (A) 'Commercial advertisements' means any printed or painted signs or multiple message signs on or in transit vehicles or facilities for which space has been rented or leased from the owner of such transit vehicles or facilities. (B) 'Transit agency' means any public agency, public corporation, or public authority existing under the laws of this state that is authorized by any general, special, or local law to provide any type of transit services within any area of this state including, but not limited to, the Department of Transportation, the Georgia Regional Transportation Authority, and the Georgia Rail Passenger Authority. (C) 'Transit vehicles or facilities' means everything necessary and appropriate for the conveyance and convenience of passengers who utilize transit services.
(2) A transit agency may authorize the placement, erection, and maintenance of commercial advertisements on or in transit vehicles or facilities owned or operated by that transit agency and said placement of commercial advertisements shall not be considered conducting commercial enterprises or activities in violation of Code Section 32-6-115.'

SECTION 3. This Act shall become effective on July 1, 2009.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved April 30, 2009.

OFFICIAL CODE OF GEORGIA ANNOTATEDCOMMITTEE NAMES; HOUSE; SENATE; REVISE.
No. 74 (House Bill No. 117).
AN ACT
To amend the Official Code of Georgia Annotated so as to change references to certain committees of the Georgia Senate and House of Representatives in the Official Code of

304

GENERAL ACTS AND RESOLUTIONS, VOL. I

Georgia Annotated to conform such references to committee names as adopted by resolution by the Georgia Senate and the Georgia House of Representatives, respectively; to provide for editorial revision; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. The Official Code of Georgia Annotated is amended by striking from the following Code sections the phrases "Agriculture Committee of the Senate", "Senate Agriculture Committee", and "Committee on Agriculture of the Senate" wherever the same shall occur and inserting in lieu thereof the phrase "Senate Agriculture and Consumer Affairs Committee":
(1) Code Section 2-8-14, relating to the composition, appointments, memberships, and compensation of the agriculture commodity commissions; (2) Code Section 4-15-1, relating to the establishment of a dog and cat reproductive sterilization support program; and (3) Code Section 27-4-253, relating to the creation, membership, and operation of the Aquaculture Development Commission.

SECTION 2. Code Section 2-7-113.1 of the Official Code of Georgia Annotated, relating to local regulation of pesticides and variances from regulations of the Commissioner of Agriculture, is amended by revising subsection (b) as follows:
(b) The governing authority of any county or municipality may, by resolution, petition the Commissioner of Agriculture for a variance from a rule or regulation of the Commissioner because of special circumstances relating to the use or application of a pesticide. If such a petition is received by the Commissioner, it shall be the duty of the Commissioner to notify the President of the Senate, the Speaker of the House of Representatives, and the chairpersons of the Agriculture and Consumer Affairs Committee and Natural Resources and the Environment Committee ofthe Senate and the Agriculture and Consumer Affairs Committee and the Natural Resources and Environment Committee of the House of Representatives that such petition has been received. The Commissioner shall conduct a public hearing on such petition and issue a decision on the requested variance within 60 days of the receipt of the petition. If a decision is not given within 60 days of the receipt of the petition, the variance shall automatically be granted. The Commissioner may grant a variance requested under this subsection with or without changes.'

GEORGIA LAWS 2009 SESSION

305

SECTION 3. The Official Code of Georgia Annotated is amended by striking from the following Code section the phrase "Corrections, Correctional Institutions and Property Committee of the Senate" wherever the same shall occur and inserting in lieu thereof the phrase "Senate State Institutions and Property Committee":
(1) Code Section 42-5-53, relating to the establishment ofcounty correctional institutions and the supervision and operation of such institutions.

SECTION 4. The Official Code of Georgia Annotated is amended by striking from the following Code section the phrase "Senate Defense, Science and Technology Committee" wherever the same shall occur and inserting in lieu thereof the phrase "Senate Science and Technology Committee":
(1) Code Section 50-13-4, relating to the procedural requirements for adoption, amendment, or repeal of rules.

SECTION 5. The Official Code of Georgia Annotated is amended by striking from the following Code sections the phrases "Senate Economic Development and Tourism Committee", "Senate Economic Development, Tourism, and Cultural Affairs Committee", "Economic Development, Tourism, and Cultural Affairs Committee of the Senate", and "Senate Committee on Economic Development and Tourism" wherever the same shall occur and inserting in lieu thereof the phrase "Senate Economic Development Committee":
(1) Code Section 10-9-20, relating to the creation and operation of the Geo. L. Smith II Georgia World Congress Center Authority Overview Committee; (2) Code Section 10-10-7, relating to the publication of an annual report by the Advanced Technology Development Center; (3) Code Section 12-3-318, relating to purposes for which income, gifts, grants, appropriations, bonds, or loans may be used by the Lake Lanier Islands Development Authority; (4) Code Section 50-12-75, relating to the designation of overview committees to review and evaluate the Aviation Hall of Fame Board; and (5) Code Section 50-27-34, relating to the legislative oversight committee for the Georgia Lottery Corporation.

SECTION 6. The Official Code of Georgia Annotated is amended by striking from the following Code sections the phrase "Senate Education Committee" wherever the same shall occur and inserting in lieu thereof the phrase "Senate Education and Youth Committee":
(1) Code Section 20-2-285.1, relating to provisions applicable to third grade criterion-referenced reading assessment students; and

306

GENERAL ACTS AND RESOLUTIONS, VOL. I

(2) Code Section 20-3-519.13, relating to the creation and reporting requirements ofthe HOPE/Pre-K Legislative Oversight Committee.

SECTION 7. The Official Code of Georgia Annotated is amended by striking from the following Code sections the phrases "Education Committees ofthe House ofRepresentatives and the Senate" and "House and Senate Education Committees" wherever the same shall occur and inserting in lieu thereof the phrase "House Education Committee and the Senate Education and Youth Committee":
(1) Code Section 20-2-212.3, relating to increasing teachers' salaries in areas of shortage and criteria for determining the shortages; and (2) Code Section 20-3-250.5, relating to the administration and general powers and duties of the Nonpublic Postsecondary Education Commission.

SECTION 8. The Official Code of Georgia Annotated is amended by striking from the following Code sections the phrases "Appropriations and Education committees of the House of Representatives and the Senate", "Education and Appropriations committees of the House of Representatives and the Senate of the General Assembly", and "Appropriations and Education committees ofthe House ofRepresentatives and Senate ofthe General Assembly" wherever the same shall occur and inserting in lieu thereof the phrase "Appropriations Committees of the House of Representatives and the Senate, the House Education Committee, and the Senate Education and Youth Committee":
(1) Code Section 20-2-250, relating to projects to improve effectiveness; (2) Code Section 20-2-260, relating to capital outlay funds generally; and (3) Code Section 20-2-321, relating to expense record requirements.

SECTION 9. The Official Code of Georgia Annotated is amended by striking from the following Code sections the phrase "House and Senate Education Committees" wherever the same shall occur and inserting in lieu thereof the phrase "House Education Committee, the Senate Education and Youth Committee":
(1) Code Section 49-5-224, relating to the submission of an annual report by the commissioner of human resources; and (2) Code Section 49-5-227, relating to the Children and Youth Coordinating Council to comment and provide recommendations on the plan for the Coordinated System of Care.

SECTION 10. Title 20 of the Official Code of Georgia Annotated is amended in Code Section 20-14-27, relating to required reports by the Office of Student Achievement, by revising subsection (b) as follows:

GEORGIA LAWS 2009 SESSION

307

'(b) Each report provided for in this Code section shall be published in a format that can be easily understood by parents and other members of the community who are not professional educators. Such reports shall be distributed to the Governor, Lieutenant Governor, the Speaker of the House of Representatives, the chairpersons of the Higher Education committees of the Senate and House of Representatives, the House Education Committee, and the Senate Education and Youth Committee, members of the state education governing boards or commissions, and members of the council. The office shall not be required to distribute copies ofsuch reports to the members ofthe General Assembly but shall notify such members of the availability of the reports in the manner which it deems to be most effective and efficient. In addition, such reports shall be posted on the website of the office.'

SECTION 11. The Official Code of Georgia Annotated is amended by striking from the following Code sections the phrases "Senate Finance and Public Utilities Committee", "Finance and Public Utilities Committee of the Senate", and "Finance and Public Utilities Committee of the Georgia Senate" wherever the same shall occur and inserting in lieu thereof the phrase "Senate Finance Committee":
(I) Code Section 36-81-8, relating to annual local government finances reports and local independent authority indebtedness reports; (2) Code Section 48-5-349.5, relating to an annual report on examination of county tax digests; and (3) Code Section 50-16-34, relating to the powers and duties of the State Properties Commission.

SECTION 12. The Official Code of Georgia Annotated is amended by striking from the following Code sections the phrases "Finance and Public Utilities Committee of the Senate" and "Finance and Public Utilities Committee of the Georgia Senate" wherever the same shall occur and inserting in lieu thereof the phrase "Senate Regulated Industries and Utilities Committee":
(1) Code Section 46-2-23, relating to rate-making power of the Public Service Commission generally; and (2) Code Section 46-10-3, relating to the creation of consumers' utility counsel and the appointment, qualifications, and compensation thereof.

SECTION 13. The Official Code of Georgia Annotated is amended by striking from the following Code sections the phrases "Natural Resources Committee of the Senate", "Senate Natural Resources Committee", "Georgia Senate Natural Resources Committee", and "Senate Committee on Natural Resources" wherever the same shall occur and inserting in lieu thereof the phrase "Senate Natural Resources and the Environment Committee":

308

GENERAL ACTS AND RESOLUTIONS, VOL. I

(1) Code Section 12-5-327, relating to the duty of the Department ofNatural Resources to prepare a document reflecting the Georgia coastal management program for submission to the Governor; (2) Code Section 12-5-443, relating to a comprehensive land and water use plan; (3) Code Section 12-5-580, relating to the creation of coordinating committees by the Metropolitan North Georgia Water Planning District Governing Board; (4) Code Section 12-5-581, relating to the creation of advisory councils by the Metropolitan North Georgia Water Planning District Governing Board; (5) Code Section 12-5-586, relating to an annual report detailing activities of the Metropolitan North Georgia Water Planning District; and (6) Code Section 12-11-11, relating to the Conservation Corps Advisory Council.

SECTION 14. The Official Code of Georgia Annotated is amended by striking from the following Code sections the phrase "Senate Committee on Health and Human Services" wherever the same shall occur and inserting in lieu thereof the phrase "Senate Health and Human Services Committee":
(1) Code Section 49-5-224, relating to reporting with respect to severely troubled children and adolescents; and (2) Code Section 49-5-227, relating to the Children and Youth Coordinating Council to comment and provide recommendations on the plan for the Coordinated System of Care.

SECTION 15. The Official Code of Georgia Annotated is amended by striking from the following Code sections the phrases "Industry Committee of the House of Representatives", "Industry Committee of the Georgia House of Representatives", and "House Committee on Industry" wherever the same shall occur and inserting in lieu thereof the phrase "House Energy, Utilities and Telecommunications Committee":
(1) Code Section 46-2-23, relating to the rate-making power of the Public Service Commission generally; (2) Code Section 46-10-3, relating to the creation of consumers' utility counsel and the appointment, qualifications, and compensation thereof; and (3) Code Section 50-13-4, relating to the procedural requirements for adoption, amendment, or repeal of rules.

SECTION 16. The Official Code of Georgia Annotated is amended by striking from the following Code sections the phrases "Industry Committee of the House of Representatives" and "House Committee on Industry" wherever the same shall occur and inserting in lieu thereof the phrase "House Economic Development and Tourism Committee":

GEORGIA LAWS 2009 SESSION

309

(1) Code Section 50-5-124, relating to reports required of an advisory council to the Department of Administrative Services; and (2) Code Section 50-12-75, relating to the designation of overview committees to review and evaluate the Aviation Hall of Fame Board.

SECTION 17. The Official Code of Georgia Annotated is amended by striking from the following Code section the phrase "Journals Committee ofthe House ofRepresentatives" wherever the same shall occur and inserting in lieu thereof the phrase "House Information and Audits Committee":
(1) Code Section 28-1-8, relating to salary and allowances of members and officers of the General Assembly.

SECTION 18. Code Section 9-10-150 of the Official Code of Georgia Annotated, relating to grounds for continuance for a party or attorney in the General Assembly, is amended as follows:
'9-10-150. A member of the General Assembly who is a party to or the attorney for a party to a case, or any member of the staff of the Lieutenant Governor, the Speaker of the House of Representatives, the President Pro Tempore of the Senate, the Speaker Pro Tempore of the House of Representatives, or the chairperson of the Judiciary Committee or Special Judiciary Committee of the Senate or of the Judiciary Committee or Judiciary, Non-civil Committee of the House of Representatives who is the lead counsel for a party to a case pending in any trial or appellate court or before any administrative agency of this state, shall be granted a continuance and stay of the case. The continuance and stay shall apply to all aspects of the case, including, but not limited to, the filing and serving of an answer to a complaint, the making of any discovery or motion, or of any response to any subpoena, discovery, or motion, and appearance at any hearing, trial, or argument. Unless a shorter length of time is requested by the member, the continuance and stay shall last the length of any regular or extraordinary session of the General Assembly and during the first three weeks following any recess or adjournment including an adjournment sine die of any regular or extraordinary session. A continuance and stay shall also be granted for such other times as the member of the General Assembly or staff member certifies to the court that his or her presence elsewhere is required by his or her duties with the General Assembly. Notwithstanding any other provision oflaw, rule ofcourt, or administrative rule or regulation, the time for doing any act in the case which is delayed by the continuance provided by this Code section shall be automatically extended by the same length of time as the continuance or stay covered.'

310

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 19. Code Section 15-5-21 of the Official Code of Georgia Annotated, relating to promulgation ofrules relating to transcripts and court reporters' fees, is amended by revising subsection (d) as follows:
(d) A rule or regulation promulgated by the Judicial Council pursuant to this Code section shall not become effective unless that council provides to the chairperson of the Judiciary Committee of the House of Representatives, the chairperson of the Judiciary, Non-civil Committee of the House of Representatives, the chairperson of the Judiciary Committee ofthe Senate, and the chairperson ofthe Special Judiciary Committee ofthe Senate, at least 30 days prior to the date that council intends to adopt such rule or regulation, written notice which includes an exact copy of the proposed rule or regulation and the intended date of its adoption. After July 1, 1986, no rule or regulation adopted by the Judicial Council pursuant to this Code section shall be valid unless adopted in conformity with this subsection. A proceeding to contest any rule or regulation on the grounds of noncompliance with this subsection must be commenced within two years from the effective date of the rule or regulation.'
SECTION 20. This Act is intended to reflect the current internal organization of the Georgia Senate and House of Representatives and is not otherwise intended to change substantive law. In the event of a conflict with any other Act of the 2009 General Assembly, such other Act shall control over this Act.
SECTION 21. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.
SECTION 22. All laws and parts of laws in conflict with this Act are repealed.
Approved April 30, 2009.

GEORGIA LAWS 2009 SESSION

311

COURTS- ELECTIONS- MAGISTRATES; MILITARY DUTY; REELECTION ELIGIBILITY; PUBLIC OFFICIALS; MILITARY DUTY; QUALIFICATION METHODS.

No. 75 (House Bill No. 156).

AN ACT

To amend Article 2 of Chapter 10 of Title 15 of the Official Code of Georgia Annotated, relating to magistrates, so as to provide that elected magistrate judges who are performing ordered military duty may continue in office and be eligible for reelection during such duty; to provide for qualifying for election by mail, messenger, or agent during such duty; to amend Chapter 2 of Title 21 of the Official Code of Georgia Annotated, relating to primaries and elections generally, so as to provide that elected public officials who are performing ordered military duty may continue in office and be eligible for reelection during such duty; to provide for qualifying for election by mail, messenger, or agent during such duty; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Article 2 of Chapter 10 of Title 15 of the Official Code of Georgia Annotated, relating to magistrates, is amended by adding a new Code section as follows:
'15-10-20.1. (a) Any elected chief magistrate or elected magistrate who is performing ordered military duty, as defined in Code Section 38-2-279, shall be eligible for reelection in any primary or general election which may be held to elect a successor for the next term of office, and may qualify in absentia as a candidate for reelection to such office. The performance of ordered military duty shall not create a vacancy in such office during the term for which such judge was elected. (b) Where the giving of written notice of candidacy is required, any elected chief magistrate or elected magistrate who is performing ordered military duty may deliver such notice by mail, agent, or messenger to the proper elections official. Any other act required by law of a candidate for the office of chief magistrate or magistrate judge may, during the time such official is on ordered military duty, be performed by an agent designated in writing by the absent chief magistrate or magistrate judge.'

312

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 2. Chapter 2 of Title 21 of the Official Code of Georgia Annotated, relating to primaries and elections generally, is amended by revising Code Section 21-2-132, relating to filing notice of candidacy, nomination petition, and affidavit, by adding a new subsection to read as follows:
'(j)(1) Notwithstanding any provision of law to the contrary, any elected public officer who is performing ordered military duty, as defined in Code Section 38-2-279, shall be eligible for reelection in any primary or general election which may be held to elect a successor for the next term of office, and may qualify in absentia as a candidate for reelection to such office. The performance of ordered military duty shall not create a vacancy in such office during the term for which such public officer was elected. (2) Where the giving of written notice ofcandidacy is required, any elected public officer who is performing ordered military duty may deliver such notice by mail, agent, or messenger to the proper elections official. Any other act required by law of a candidate may, during the time such officer is on ordered military duty, be performed by an agent designated in writing by the absent public officer.'

SECTION 3. Said chapter is further amended by revising Code Section 21-2-153, relating to qualification of candidates for party nomination in a state or county primary, by adding a new subsection to read as follows:
"(g)(l) Notwithstanding any provision of law to the contrary, any elected public officer who is performing ordered military duty, as defined in Code Section 38-2-279, shall be eligible for reelection in any primary or general election which may be held to elect a successor for the next term of office, and may qualify in absentia as a candidate for reelection to such office. The performance of ordered military duty shall not create a vacancy in such office during the term for which such public officer was elected. (2) Where the giving ofwritten notice ofcandidacy is required, any elected public officer who is performing ordered military duty may deliver such notice by mail, agent, or messenger to the proper elections official. Any other act required by law of a candidate may, during the time such officer is on ordered military duty, be performed by an agent designated in writing by the absent public officer.'

SECTION 4. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 5. All laws and parts of laws in conflict with this Act are repealed.

Approved April 30, 2009.

GEORGIA LAWS 2009 SESSION

313

STATE GOVERNMENT- LOTTERY SHORTFALL RESERVE SUBACCOUNTS; HOPE BENEFITS REDUCTIONS.

No. 76 (House Bill No. 157).

AN ACT

To amend Code Section 50-27-13 of the Official Code of Georgia Annotated, relating to the lottery shortfall reserve subaccounts, so as to revise the amounts in the lottery accounts that trigger reductions in HOPE scholarship program benefits; to provide a definition; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Code Section 50-27-13 of the Official Code of Georgia Annotated, relating to the lottery shortfall reserve subaccounts, is amended by revising paragraph (5) of subsection (b) as
follows: '(5)(A) For purposes of this subsection, the term: (i) 'Highest year-end balance' means the highest total amount of unexpended and uncommitted funds in the Lottery for Education Account, as determined by the state auditor, at the end of any fiscal year beginning with Fiscal Year 2004 and continuing through the most recent fiscal year for which the state auditor has verified the amount of such funds, which shall not include amounts contained in the subaccounts provided for in paragraphs (3) and (4) of this subsection. (ii) 'Year-end balance' means the amount, as determined by the state auditor, of unexpended and uncommitted funds in the Lottery for Education Account at the end of a fiscal year, which shall not include amounts contained in the subaccounts provided for in paragraphs (3) and (4) of this subsection. (B)(i) In the event that the year-end balance of a fiscal year is less than 92 percent of the highest year-end balance, as defined in this paragraph, then all scholarships and grants for book allowances under Part 7 of Article 7 of Chapter 3 of Title 20 shall not exceed $150.00 per year beginning in the next fiscal year and thereafter. This provision shall not apply to students who are eligible to participate in the federal Pell Grant program. (ii) In the event that the year-end balance of any subsequent fiscal year is less than 84 percent of the highest year-end balance, as defined in this paragraph, then all scholarships and grants for book allowances under Part 7 of Article 7 of Chapter 3 of Title 20 shall be eliminated beginning in the subsequent fiscal year and thereafter.

314

GENERAL ACTS AND RESOLUTIONS, VOL. I

This provision shall not apply to students who are eligible to participate in the federal Pell Grant program. (iii) In the event that the year-end balance of any further subsequent fiscal year is less than 75 percent of the highest year-end balance, as defined in this paragraph, then all scholarships and grants for mandatory fees under Part 7 of Article 7 of Chapter 3 of Title 20 shall be eliminated beginning in the next fiscal year and thereafter:

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved April30, 2009.

DOMESTIC RELATIONS- MARRIAGE; SICKLE CELL DISEASE INFORMATION.
No. 77 (House Bill No. 184).
AN ACT
To amend Article 2 of Chapter 3 of Title 19 of the Official Code of Georgia Annotated, relating to marriage license and ceremony, so as to provide for the public dissemination of information relating to sickle cell disease; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Article 2 of Chapter 3 of Title 19 of the Official Code of Georgia Annotated, relating to marriage license and ceremony, is amended in Code Section 19-3-40, which is reserved, as follows:
'19-3-40. (a) As used in this Code section, the term 'blood test for sickle cell disease' means a blood test for sickle cell anemia, sickle cell trait, and other detectable abnormal hemoglobin. (b) The Department of Human Resources shall prepare information for public dissemination on the department's website describing the importance of obtaining a blood test for sickle cell disease and explaining the causes and effects of such disease. Such information shall recommend that each applicant applying for a marriage license obtain a blood test for sickle cell disease prior to obtaining a marriage license. Such information

GEORGIA LAWS 2009 SESSION

315

may also be provided as a brochure or other document. The department shall make such information available in electronic format to the probate courts of this state which shall disseminate such information to all persons applying for marriage licenses.

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved April30, 2009.

RETIREMENT -JUDICIAL RETIREMENT SYSTEM; MEMBERSHIP; CONTRIBUTIONS.
No. 78 (House Bill No. 210).
AN ACT
To amend Article 3 of Chapter 23 of Title 47 of the Official Code of Georgia Annotated, relating to membership in the Georgia Judicial Retirement System, so as to clarify who shall pay the employer contributions for certain members; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Article 3 of Chapter 23 of Title 47 of the Official Code of Georgia Annotated, relating to membership in the Georgia Judicial Retirement System, is amended by revising Code Section 47-23-43, relating to preservation of prior rights under this Code section by certain attorneys employed by the office of Legislative Counsel or the Department of Law, as follows:
.47-23-43. Any person employed pursuant to Code Section 28-4-3 or 45-15-31 subject to the provisions of this Code section on June 30, 2005, shall retain all rights and obligations as exist on that day. Such persons shall be subject to all provisions of this chapter applicable to solicitors-general of the state courts. Employer contributions shall be paid by the respective employers under such Code sections.'

316

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved April 30, 2009.

ELECTIONS -REGISTERED VOTERS; ADDRESSES; CONFIDENTIALITY.
No. 79 (House Bill No. 227).
AN ACT
To amend Chapter 2 of Title 21 of the Official Code of Georgia Annotated, relating to primaries and elections generally, so as to provide for the confidentiality of the addresses of certain registered voters; to provide for the manner of invoking such confidentiality; to provide for the terms and conditions of such confidentiality; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 2 of Title 21 of the Official Code of Georgia Annotated, relating to primaries and elections generally, is amended by revising subsection (b) ofCode Section 21-2-225, relating to confidentiality of original registration applications, as follows:
"(b) Except as provided in Code Section 21-2-225.1, all data collected and maintained on electors whose names appear on the list of electors maintained by the Secretary of State pursuant to this article shall be available for public inspection with the exception of bank statements submitted pursuant to subsection (c) of Code Section 21-2-220 and subsection (c) of Code Section 21-2-417, the date of birth, the social security numbers, and driver's license numbers of the electors, and the locations at which the electors applied to register to vote, which shall remain confidential and shall be used only for voter registration purposes; provided, however, that any and all information relating to the dates of birth, social security numbers, and driver's license numbers of electors may be made available to other agencies ofthis state, agencies of other states and territories of the United States, and to agencies of the federal government if the agency is authorized to maintain such information and the information is used only to identify the elector on the receiving agency's data base and is not disseminated further and remains confidential.

GEORGIA LAWS 2009 SESSION

317

SECTION 2. Said chapter is further amended by adding a new Code section to read as follows:
'21-2-225.1. (a) Any registered elector in this state who has obtained a protective order under Code Section 19-13-4 or under a similar provision of law in another state or who has obtained a restraining order or protective order under Code Section 16-5-94 or under a similar provision oflaw in another state may request the board of registrars of such elector's county of residence to make such elector's residence address confidential. An elector who is a bona fide resident of a family violence shelter, as defined in Code Section 19-13-20, may request to have his or her address made confidential without having to obtain a restraining order or protective order. (b) Upon the filing of a request with an affidavit under oath with the board of registrars by a registered elector stating that the elector has obtained a protective order under Code Section 19-13-4 or similar provision of law from another state or a restraining order or protective order under Code Section 16-5-94 or a similar provision of law of another state or, if the elector is a resident of a family violence shelter, a certification by the operators of such family violence shelter that such elector is a bona fide resident of such shelter, the registrars shall immediately review such request and supporting documents and, if such request and documentation is sufficient, shall approve the request and immediately take such steps as necessary to make the residence address of the elector confidential. (c) A request under this Code section, once approved, shall be effective for a period of four years following its approval by the registrars and may be renewed for additional four-year periods by the filing of a new request with the supporting documentation required by subsection (b) of this Code section prior to the end of each four-year period. If the elector registers to vote in another county in this state or another state, a new request for confidentiality of the elector's residence address with the supporting documentation required in subsection (b) of this Code section shall be filed with the new county in order to continue the confidentiality ofthe elector's residence address or the confidentiality shall terminate. (d) The Secretary of State shall provide by procedure, rule, or regulation for the mechanism by which such information shall be made confidential on the voter registration data base and may provide for forms for use in making such requests and for the use of alternate addresses for electors who file requests for the confidentiality of their residence addresses. (e) Information made confidential pursuant to this Code section shall not be subject to disclosure under Article 4 of Chapter 18 of Title 50.'

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April30, 2009.

318

GENERAL ACTS AND RESOLUTIONS, VOL. I

PUBLIC UTILITIES -NONAFFILIATED THIRD-PARTY SERVICES AND CHARGES; BLOCK.

No. 80 (House Bill No. 302).

AN ACT

To amend Article 4 of Chapter 5 of Title 46 of the Official Code of Georgia Annotated, relating to telecommunications and competition development, so as to require telecommunications companies to provide customers with the ability to block nonaffiliated third-party services and associated charges; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Article 4 of Chapter 5 of Title 46 of the Official Code of Georgia Annotated, relating to telecommunications and competition development, is amended by revising Code Section 46-5-1 71.1, relating to written authorization required by customer prior to being charged for service initiated by a third party, to read as follows:
"46-5-171.1. (a) Except as provided in subsection (b) of this Code section, no telecommunications company shall charge a customer for any service which is provided to the customer by a nonaffiliated third party until such third party has certified to the telecommunications company that the third party has received the customer's written authorization for such charges. When a customer initiates a new type of such third-party service or changes the type or types of such third-party service received, the invoice for such new or changed services must state the charges for such services in a clear, conspicuous, separate, and distinct manner so as to ensure that the customer is aware of the new or changed charges. Any telecommunications company that charges a customer for a service which is provided to the customer by a nonaffiliated third party must provide to such customer the ability to block the nonaffiliated third-party service and any charges associated with such service. (b) This Code section shall not apply to any transaction between a customer and that customer's selected provider of basic local exchange, inter-LATA, or intra-LATA telecommunications services or initial requests to subscribe to such services; wireless services; requests for a change in a customer's provider of local exchange service or a change in a customer's primary interexchange inter-LATA or intra-LATA carrier; or customer initiated use of abbreviated dialing codes or other pay-per-use services.'

GEORGIA LAWS 2009 SESSION

319

SECTION 2. This Act shall become effective on January 1, 2010.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April 30, 2009.

PROFESSIONS - REAL ESTATE BROKERS AND SALESPERSONS; WRITTEN DISCLOSURES.
No. 81 (House Bill No. 315).
AN ACT
To amend Chapter 40 of Title 43 of the Official Code of Georgia Annotated, relating to real estate brokers and salespersons, so as to require that certain disclosures be made in writing; to clarify that all valuable consideration obtained in a real estate transaction shall be disclosed; to clarify that the amounts of referral fees shall be disclosed; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 40 of Title 43 of the Official Code of Georgia Annotated, relating to real estate brokers and salespersons, is amended by revising paragraphs (6), (29), and (35) of subsection (b) of Code Section 43-40-25, relating to violations by licensees, schools, and instructors, sanctions, and unfair trade practices, as follows:
'(6) Accepting, giving, or charging any undisclosed commission, fee, rebate, direct profit, or other valuable consideration on expenditures made for a principal or any undisclosed commission, fee, rebate, direct profit for procuring a loan or insurance or for conducting a property inspection, or for any other service related to a real estate transaction; '(29) Failing to cause or preventing the disclosure of, on a real estate transaction settlement statement, settlement document, lease agreement, or management agreement, any fee, charge, rebate, profit, commission, referral fee, or other valuable consideration for any service related to such transaction and the recipient of the consideration; ;'

320

GENERAL ACTS AND RESOLUTIONS, VOL. I

'(35) Failing to obtain a person's written agreement to refer that person to another licensee for brokerage or relocation services and to inform such person being referred whether or not the licensee will receive a valuable consideration for such referral and an estimate of such consideration.'
SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April 30, 2009.

RETIREMENT -POSTRETIREMENT BENEFIT ADJUSTMENTS; LIMIT.
No. 82 (House Bill No. 452).
AN ACT
To amend Title 47 of the Official Code of Georgia Annotated, relating to retirement and pensions, so as to provide a statement of legislative intent; to provide that certain members of the Employees' Retirement System of Georgia, Georgia Legislative Retirement System, and Georgia Judicial Retirement System shall not be eligible to receive any postretirement benefit adjustment; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. The General Assembly is desirous of providing an established annual cost-of-living adjustment to all current active and retired members of the Employees' Retirement System of Georgia, the Georgia Legislative Retirement System, and the Georgia Judicial Retirement System. In order to do so, limiting future liability of the systems by adjusting the retirement expectations of persons who are newly employed is a regrettable but necessary step toward fiscal soundness.

GEORGIA LAWS 2009 SESSION

321

SECTION 2. Title 47 of the Official Code of Georgia Annotated, relating to retirement and pensions, is amended by revising Code Section 47-2-29, relating to postretirement benefit adjustments under the Employees' Retirement System of Georgia, by adding a new subsection to read as
follows: '(c) Notwithstanding any other provision of this Code section, no member who becomes a member of this retirement system on or after July 1, 2009, shall be entitled to receive any postretirement benefit adjustment."

SECTION 3. Said title is further amended by revising Code Section 47-6-80, relating to eligibility and application for a retirement allowance under the Georgia Legislative Retirement System, early retirement, amount of retirement allowance, and increases in retirement allowance, by adding a new subsection to read as follows:
'(g) Notwithstanding any other provision of this Code section, no member who becomes a member of this retirement system on or after July l, 2009, shall be entitled to receive any postretirement benefit adjustment."

SECTION 4. Said title is further amended by revising Code Section 47-23-21, relating to the authority of the Board ofTrustees ofthe Georgia Judicial Retirement System, by adding a new subsection to read as follows:
'(e) Notwithstanding the provisions ofsubsection (d) ofthis Code section, no member who becomes a member of this retirement system on or after July 1, 2009, shall be entitled to receive any postretirement benefit adjustment."

SECTION 5. All laws and parts of laws in conflict with this Act are repealed.

Approved April 30, 2009.

322

GENERAL ACTS AND RESOLUTIONS, VOL. I

RETIREMENT- ACTUARIAL COSTS; SALARY INCREASES; DEATH BENEFIT; CONTRIBUTION RATES; CONTINUED EMPLOYMENT; REEMPLOYMENT.

No. 83 (House Bill No. 476).

AN ACT

To provide for the reform of certain features of certain public retirement systems; to amend Chapter 2 of Title 47 of the Official Code of Georgia Annotated, relating to the Employees' Retirement System of Georgia, so as to provide that an employing unit shall pay to the retirement system the actuarial cost of granting an employee a salary increase in excess of 5 percent during the 12 months prior to such employee's retirement; to provide that the computation of a retirement benefit for persons who become members on or after July 1, 2009, shall not include a compensation increase in the last 12 months of employment which exceeds 5 percent; to clarify provisions relative to a death benefit for certain members of such retirement system; to provide for the authority to increase liability contribution rates for certain members; to amend Code Section 47-17-80 of the Official Code of Georgia Annotated, relating to retirement benefits options under the Peace Officers' Annuity and Benefit Fund, payment to surviving spouse, requirements, effect of reemployment, effect of changes in retirement benefits, and payment on the death of a member, so as to provide that certain provisions relating to continued employment or reemployment shall not apply to certain members; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Chapter 2 of Title 47 of the Official Code of Georgia Annotated, relating to the Employees' Retirement System of Georgia, is amended in Code Section 47-2-120, relating to retirement allowances, by adding a new subsection to read as follows:
'(f) The board of trustees shall cause the actuary for the retirement system to calculate the actuarial cost to the retirement system of any salary increase granted to a member in excess of 5 percent over the 12 months immediately prior to such member's retirement date and shall notify the employing unit of such amount. Such notice shall be sent not later than 60 days following such member's retirement date. The employing unit shall pay such amount, together with the cost of such actuarial calculation, as a supplemental employer contribution to the board of trustees not later than the last day of the month following receipt of such notice.'

GEORGIA LAWS 2009 SESSION

323

SECTION 2. Said chapter is further amended in subsection (c) of Code Section 47-2-123, relating to allowance payable upon death, disability, or involuntary separation from employment, restrictions on separation for disability, and restrictions on entitlement to involuntary separation benefits, by adding a new paragraph to read as follows:
'(3) In lieu of a death benefit as provided in paragraph ( 1) of this subsection, a member who first or again becomes a member of the retirement system on or after July 1, 2007, and who has at least 10 years of creditable service and is at least 60 years of age or who is less than 60 years of age and has at least 15 years of creditable service shall upon death receive the equivalent of a service retirement allowance calculated upon the number of years of creditable service attained on the date of death and based upon his or her highest average monthly compensation during a period of24 consecutive calendar months while a member of the retirement system.'

SECTION 3. Said chapter is further amended by revising Code Section 47-2-222, relating to power to increase liability contribution rates for Department of Public Safety, Department of Natural Resources, and Department of Revenue and transfer of employees, as follows:
'47-2-222. Any other provisions of law to the contrary notwithstanding, the board of trustees may increase the normal and accrued liability employer contribution rates of the Department of Public Safety, the Department of Natural Resources, the Department of Revenue, the Georgia Bureau of Investigation, the Department of Corrections, the State Board of Pardons and Paroles, and any other agency or authority to an amount set by the board of trustees as actuarially sufficient to fund the employer's cost of the benefits provided in this chapter for groups of employees of such departments. In the event any group of employees of any of such departments is transferred to the administration of any other department or agency, that department or agency shall continue to pay the normal and accrued liability contributions on behalf of such employees at the rate set by the board of trustees.'

SECTION 4. Said chapter is further amended in Code Section 47-2-334, relating to service retirement allowance, calculation, employee membership contributions, employer contributions, optional membership, conditions, and construction ofprovision, by adding a new subsection to read as follows:
'(j) The board of trustees shall cause the actuary for the retirement system to calculate the actuarial cost to the retirement system of any salary increase granted to a member in excess of 5 percent over the 12 months immediately prior to such member's retirement date and shall notify the employing unit of such amount. Such notice shall be sent not later than 60 days following such member's retirement date. The employing unit shall pay such amount, together with the cost of such actuarial calculation, as a supplemental employer

324

GENERAL ACTS AND RESOLUTIONS, VOL. I

contribution to the board of trustees not later than the last day of the month following receipt of such notice.'

SECTION 5. Said chapter is further amended by revising paragraph (2) of Code Section 47-2-353, relating to the calculation of a service retirement allowance for members subject to the provisions of the "Georgia State Employees' Pension and Savings Plan," as follows:
'(2) A monthly pension which, together with the annuity, shall provide a total retirement allowance equal to I percent, or such future amount up to 2 percent to be set by the board of trustees in direct relation to any increased appropriations provided by the General Assembly expressly for such increase, ofthe member's highest average monthly earnable compensation during a period of24 consecutive calendar months while a member of the retirement system, multiplied by the number of the member's years of creditable service; provided, however, that for members employed on or after July 1, 2009, no salary increase by adjustment in compensation in any manner during the last 12 months, which increase is in excess of 5 percent, shall be included in such computation.'

SECTION 6. Said chapter is further amended by revising subsection (a) of Code Section 47-2-3 56, relating to death allowances and benefits, as follows:
'(a) For purposes of calculating a survivor's benefit, any member who has at least 15 years of creditable service and who dies in service before becoming eligible for a service retirement shall be deemed to be eligible to retire forthwith without regard to age and to receive the equivalent of a service retirement allowance calculated upon the number of years of creditable service attained to the date of retirement and based upon his or her highest average monthly compensation during a period of 24 consecutive calendar months while a member of the retirement system. Any member who dies in service after becoming eligible for a service retirement shall be deemed to be eligible to retire forthwith to receive a service retirement allowance.'

SECTION 7. Code Section 47-17-80 of the Official Code of Georgia Annotated, relating to retirement benefits options under the Peace Officers' Annuity and Benefit Fund, payment to surviving spouse, requirements, effect of reemployment, effect of changes in retirement benefits, and payment on the death of a member, is amended by revising subsection (g) as follows:
'(g)(l) Except as provided in paragraphs (2) and (3) ofthis subsection, any member who again becomes employed as a peace officer after having been placed on retirement under this Code section shall immediately notify the secretary-treasurer of such reemployment. Retirement benefits being paid to such member shall be terminated as of the date of such reemployment and shall remain terminated for the duration of such reemployment. During such period of reemployment, said member shall pay regular monthly dues into

GEORGIA LAWS 2009 SESSION

325

this fund. Upon meeting the requirements provided by law, such member shall be entitled to all benefits provided for in Code Sections 47-17-81 and 47-17-82; but such member shall not be entitled to any increase in retirement benefits by virtue of service during the period ofreemp1oyment unless such reemployment is for a term of three years or more, in which instance such member may again apply for retirement as if he or she had not previously been retired; and he or she shall be entitled to such benefits as may be provided by law at that time, if he or she so chooses. (2) The provisions ofparagraph (1) of this subsection shall not apply to a retired member employed in any capacity for 1,040 hours or less in any calendar year. (3) The provisions of paragraph (1) of this subsection shall not apply to a member otherwise qualified for a normal service retirement under this chapter with at least 30 years of creditable service and who has attained the age of 55. Any such member may continue or reenter employment as a peace officer and shall for all purposes be considered a retired member of this fund; provided, however, that the provisions of this paragraph shall not apply to any person who first or again becomes a member on or after July 1, 2009.'

SECTION 8. All laws and parts of laws in conflict with this Act are repealed.

Approved April 30, 2009.

RETIREMENT- CREDITABLE SERVICE; APPLICATION PERIOD.
No. 84 (House Bill No. 477).
AN ACT
To amend Code Section 47-1-62 of the Official Code of Georgia Annotated, relating to procedure for establishment ofcreditable service, computations, employer contributions, and system or fund unable to provide creditable service, so as to remove a requirement that an application for certain creditable service be made within a certain period; to provide for an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

326

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 1. Code Section 47-1-62 of the Official Code of Georgia Annotated, relating to procedure for establishment of creditable service, computations, employer contributions, and system or fund unable to provide creditable service, is amended by revising subsection (a) as follows:
'(a) Any qualified returning veteran desiring to establish creditable service for a period of qualified service shall so notify the board of trustees of the public retirement system or fund. The board oftrustees shall calculate the amount ofemployee or member contribution which the returning veteran would have paid if he or she had been a member of the system or fund during the period of qualified service. If such contribution is based on the member's salary, the returning veteran's salary shall be deemed to be the rate the member would have received but for the period of qualified service or, if determination of such rate is not reasonably certain, the member's average rate of compensation during the 12 month period immediately preceding the period of qualified service or such lesser time as the member was employed. The returning veteran shall repay the amount so calculated as his or her employee or member contribution, which payment must be completed not later than three times the length of qualified service or five years, whichever period is shorter, computed from the date the returning veteran resumes employment. The board of trustees of any public retirement system may provide by rule for computing the amount of creditable service on payment of less than the total amount of employee contributions.'

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April 30, 2009.

PROPERTY- HOMEOWNER OR CONDOMINIUM ASSOCIATION; ANNUAL EXPENSES AUDIT.
No. 85 (House Bill No. 528).
AN ACT
To amend Chapter 3 of Title 44 of the Official Code of Georgia Annotated, relating to regulation of specialized land transactions, so as to require developers to provide audits to

GEORGIA LAWS 2009 SESSION

327

homeowners and condominium owners in certain circumstances; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Chapter 3 of Title 44 of the Official Code of Georgia Annotated, relating to regulation of specialized land transactions, is amended by adding a new article to read as follows:

'ARTICLE 7

44-3-250. Any developer that directly manages a homeowners' or condominium owners' association whose annual assessment fee is $500.00 or more in a development or subdivision with 20 or more homes shall provide a report itemizing the expenses for such homeowners' or condominium owners' association to each homeowner or condominium owner not later than 60 days after the end ofthe year for which fees were assessed. This Code section shall not apply to any development that has been made a property owners' development in accordance with Article 6 of this chapter, the 'Georgia Property Owners' Association Act.''

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved April30, 2009.

ELECTIONS- MOTOR VEHICLES- JURORS; NONCITIZEN DECLARATIONS; JUROR LISTS.
No. 86 (House Bill No. 549).
AN ACT
To amend Article 6 of Chapter 2 of Title 21 of the Official Code of Georgia Annotated, relating to registration of voters, so as to provide transmittal of information to the Secretary of State regarding jurors who declare themselves as not being a citizen of the United States; to amend Article 1 of Chapter 5 of Title 40 of the Official Code of Georgia Annotated, relating to drivers'licenses, so as to specify the information which the Department of Driver

328

GENERAL ACTS AND RESOLUTIONS, VOL. I

Services may provide for purposes of creating juror lists; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Article 6 of Chapter 2 of Title 21 of the Official Code of Georgia Annotated, relating to registration of voters, is amended by revising Code Section 21-2-231, relating to monthly transmittal of information to the Secretary of State and removal of persons from the list of electors, as follows:
'21-2-231. (a) Unless otherwise notified by the Secretary of State, the clerk of the superior court of each county shall, on or before the tenth day of each month, prepare and transmit to the Secretary of State, in a format as prescribed by the Secretary of State, a complete list of all persons, including addresses, ages, and other identifying information as prescribed by the Secretary of State, who were convicted of a felony involving moral turpitude during the preceding calendar month in that county. The Secretary of State may, by agreement with the commissioner of the Department of Corrections, obtain criminal information relating to the conviction, sentencing, and completion of sentencing requirements of felonies involving moral turpitude. Additionally, the Secretary of State shall be authorized to obtain such criminal information relating to Georgia electors convicted of felonies involving moral turpitude, if possible, from other states. (a. I) The clerk of the superior court of each county shall, on or before the tenth day of each month, prepare and transmit to the Secretary of State, in a format as prescribed by the Secretary of State, a complete list of all persons, including addresses, ages, and other identifying information as prescribed by the Secretary of State, who identify themselves as not being citizens ofthe United States during their qualification to serve as a juror during the preceding calendar month in that county. (b) The judge of the probate court of each county shall, on or before the tenth day of each month, prepare and transmit to the Secretary of State, in a format as prescribed by the Secretary of State, a complete list of all persons, including addresses, ages, and other identifying information as prescribed by the Secretary of State, who were declared mentally incompetent during the preceding calendar month in the county and whose voting rights were removed. (c) Upon receipt of the lists described in subsections (a), (a.l), and (b) of this Code section and the lists of persons convicted of felonies in federal courts received pursuant to 42 U.S .C. Section 1973gg-6(g), the Secretary of State shall transmit the names of such persons whose names appear on the list ofelectors to the appropriate county board of registrars who shall remove all such names from the list of electors and shall mail a notice of such action and the reason therefor to the last known address of such persons by first-class mail.

GEORGIA LAWS 2009 SESSION

329

(d) Unless otherwise notified by the Secretary of State, the local registrar of vital statistics of each county shall, on or before the tenth day of each month, prepare and transmit to the Secretary of State, in a format as prescribed by the Secretary of State, a complete list of all persons, including addresses, ages, and other identifying information as prescribed by the Secretary of State, who died during the preceding calendar month in the county. The Secretary of State may, by agreement with the commissioner of human resources, obtain such information from the state registrar of vital statistics. Additionally, the Secretary of State is authorized to obtain such lists of deceased Georgia electors, if possible, from other
states. (e) Upon receipt of the lists described in subsection (d) of this Code section, the Secretary of State or his or her designated agent shall remove all such names of deceased persons from the list of electors and shall notify the registrar in the county where the deceased person was domiciled at the time of his or her death. (f) County registrars shall initiate appropriate action regarding the right of an elector to remain on the list of qualified registered voters within 60 days after receipt of the information described in this Code section. Failure to take such action may subject the registrars or the county governing authority for whom the registrars are acting to a fine by the State Election Board.'

SECTION 2. Article I of Chapter 5 of Title 40 of the Official Code of Georgia Annotated, relating to drivers' licenses, is amended in Code Section 40-5-2, relating to keeping and furnishing of information on licensees, by revising paragraph (7) of subsection (f) as follows:
'(7) The lists required to be made available to boards of jury commissioners and the Administrative Office ofthe Courts pursuant to Code Section 15-12-40 regarding county residents who are the holders of drivers' licenses or personal identification cards issued pursuant to this chapter. Such lists shall identify each such person by name, address, date of birth, and gender, and, whenever racial and ethnic information is collected by the department for purposes of voter registration pursuant to Code Section 21-2-221, the department shall also provide such information. The department shall also provide the address, effective date, document issue date, and document expiration date and shall indicate whether the document is a driver's license or a personal identification card.'

SECTION 3. Section I of this Act shall become effective on January I, 2010. The remaining sections of this Act shall become effective upon approval by the Governor or upon becoming law without such approval.

330

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved April 30, 2009.

CONSERVATION- WELLS; BOREHOLES; STANDARDS; CONTRACTORS; DRILLERS; BONDS.
No. 87 (House Bill No. 552).
AN ACT
To amend Part 3 of Article 3 of Chapter 5 of Title 12 of the Official Code of Georgia Annotated, relating to water well standards, so as to change certain provisions relating to standards for wells and boreholes; to change certain provisions relating to bonds and letters of credit for water well contractors or drillers; to provide for an effective date and applicability; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Part 3 of Article 3 of Chapter 5 of Title 12 of the Official Code of Georgia Annotated, relating to water well standards, is amended in Code Section 12-5-134, relating to standards for wells and boreholes, by deleting "and" at the end of paragraph (5), replacing the period at the end of paragraph (6) with"; and", and adding a new paragraph (7) to read as follows:
(7) No well or borehole shall be drilled or used for the purpose of injecting any surface water into the Floridan aquifer in any county governed by the Georgia coastal zone management program provided by Code Section 12-5-327 before July 1, 2014:
SECTION 2. Said part is further amended by revising subsection (i) of Code Section 12-5-135, relating to bonds and letters of credit for water well contractors or drillers, as follows:
(i) No bond or irrevocable letter of credit provided for in this Code section shall be accepted by the director from any water well contractor or driller who shall drill any well or borehole for the purpose of injecting any surface water into the floridan aquifer in any county governed by the Georgia coastal zone management program provided by Code Section 12-5-327 after July 1, 2003, and before July I, 2014:

GEORGIA LAWS 2009 SESSION

331

SECTION 3. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply to wells or boreholes and drilling wells or boreholes on or after such date.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved April 30, 2009.

CRIMES- KIDNAPPING.
No. 88 (House Bill No. 575).
AN ACT
To amend Article 3 of Chapter 5 of Title 16 of the Official Code of Georgia Annotated, relating to kidnapping, false imprisonment, and related offenses, so as to change certain provisions relating to kidnapping; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Article 3 of Chapter 5 of Title 16 of the Official Code of Georgia Annotated, relating to kidnapping, false imprisonment, and related offenses, is amended by revising Code Section 16-5-40, relating to kidnapping, as follows:
'16-5-40. (a) A person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.
(b)(l) For the offense of kidnapping to occur, slight movement shall be sufficient; provided, however, that any such slight movement of another person which occurs while in the commission of any other offense shall not constitute the offense of kidnapping if such movement is merely incidental to such other offense. (2) Movement shall not be considered merely incidental to another offense if it:
(A) Conceals or isolates the victim; (B) Makes the commission of the other offense substantially easier; (C) Lessens the risk of detection; or

332

GENERAL ACTS AND RESOLUTIONS, VOL. I

(D) Is for the purpose of avoiding apprehension. (c) The offense of kidnapping shall be considered a separate offense and shall not merge with any other offense. (d) A person convicted of the offense of kidnapping shall be punished by:
(1) Imprisonment for not less than ten nor more than 20 years ifthe kidnapping involved a victim who was 14 years of age or older; (2) Imprisonment for life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life, if the kidnapping involved a victim who is less than 14 years of age; (3) Life imprisonment or death if the kidnapping was for ransom; or (4) Life imprisonment or death if the person kidnapped received bodily injury. (e) Any person convicted under this Code section shall, in addition, be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7. (f) The offense of kidnapping is declared to be a continuous offense, and venue may be in any county where the accused exercises dominion or control over the person of another.'

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved April 30, 2009.

PROPERTY -TIME-SHARE ESTATE; INTERESTS; OWNERS' ASSOCIATION FIDUCIARY REQUIREMENTS.
No. 89 (House Bill No. 608).
AN ACT
To amend Part I of Article 5 of Chapter 3 of Title 44 of the Official Code of Georgia Annotated, relating to general provisions relative to time-share projects and programs, so as to provide for definitions; to provide that a time-share estate shall include certain interests; to provide for certain actions when such interests are held in trust; to provide for certain fiduciary requirements to an owners' association; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

GEORGIA LAWS 2009 SESSION

333

SECTION 1. Part 1 of Article 5 of Chapter 3 of Title 44 of the Official Code of Georgia Annotated, relating to general provisions relative to time-share projects and programs, is amended by adding a new paragraph to and revising paragraph (21) of Code Section 44-3-162, relating to definitions regarding time-share estates, as follows:
'(12.1) 'Owners' association' means an association made up of all owners of time-share intervals in a time-share program.' '(21) 'Time-share estate' means an ownership or leasehold interest in real property divided into measurable chronological periods, including real property interests held in irrevocable trust wherein all owners of the time-share program or the owners' association of the time-share program are express beneficiaries of such trust and the trustee is independent of the developer; provided, however, that if such real property interests are held in trust, conveyance of the property to the trust shall be free of all financial liens and encumbrances or shall include a recorded nondisturbance agreement.'

SECTION 2. Said part is further amended by deleting "and" at the end of paragraph (13), by replacing the period at the end of paragraph (14) with"; and", and by adding a new paragraph to Code Section 44-3-170, relating to time-share use program management and operation, as follows:
'(15) An owners' association shall act as a fiduciary to the purchasers of a time-share program.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April30, 2009.

EASEMENTS; NUMEROUS PARCELS OF STATE PROPERTY.
No. 90 (House Resolution No. 279).
A RESOLUTION
Authorizing the granting of nonexclusive easements for operation and maintenance of facilities, utilities, and ingress and egress in, on, over, under, upon, across, or through property owned by the State of Georgia in Candler, Cobb, Dawson, Douglas, Fulton, Grady, and Muscogee counties, Georgia; to repeal conflicting laws; and for other purposes.

334

GENERAL ACTS AND RESOLUTIONS, VOL. I

WHEREAS, the State of Georgia is the owner of certain real property located in Candler, Cobb, Dawson, Douglas, Fulton, Grady, and Muscogee counties, Georgia; and

WHEREAS, the City of Metter, Cobb County, City of Smyrna, Georgia Transmission Corporation, Connexion Technologies, Inc., Georgia Power Company, CNN Center Ventures, City of Atlanta, City of Cairo, and City of Columbus desire to operate and maintain facilities, utilities, and ingress and egress in, on, over, under, upon, across, or through a portion of said property; and

WHEREAS, these facilities, utilities, and ingress and egress in, on, over, under, upon, across, or through the above-described state property have been requested, approved, or both, by the Georgia Department of Defense, State Properties Commission, Georgia Forestry Commission, Department of Natural Resources, and the Department of Economic Development on behalf of the Georgia World Congress Center Authority.

NOW, THEREFORE, BE IT RESOLVED AND ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

ARTICLE I SECTION 1.

That the State of Georgia is the owner of the hereinafter described real property in Candler County, and the property is in the custody of the Georgia Department of Defense, hereinafter referred to as the "easement area" and that, in all matters relating to the easement area, the State of Georgia is acting by and through its State Properties Commission.

SECTION 2. That the State of Georgia, acting by and through its State Properties Commission, may grant to the City of Metter, or its successors and assigns, a nonexclusive easement for the construction, operation, and maintenance of a sanitary sewer line in, on, over, under, upon, across, or through the easement area for the purpose of constructing, erecting, installing, maintaining, repairing, replacing, inspecting, and operating a sanitary sewer line together with the right of ingress and egress over adjacent land of the State of Georgia as may be reasonably necessary to accomplish the aforesaid purposes. Said easement area is located in the City of Metter, Candler County, Georgia, and is more particularly described as follows:
"That 0.275 acre portion and that portion only as shown highlighted in yellow on a plat of survey dated April 16, 2008, prepared by Donald Marsh and Associates surveyor, and all being on file in the offices of the State Properties Commission," and may be more particularly described by a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval.

GEORGIA LAWS 2009 SESSION

335

SECTION 3. That the above-described premises shall be used solely for the purpose of planning, constructing, erecting, installing, maintaining, repairing, replacing, inspecting, and operating said sanitary sewer line.

SECTION 4. That the City of Metter shall have the right to remove or cause to be removed from said easement area only such trees and bushes as may be reasonably necessary for the proper construction, operation, and maintenance of said sanitary sewer line.

SECTION 5. That, after the City of Metter has put into use the sanitary sewer line for which this easement is granted, a subsequent abandonment of the use thereof shall cause a reversion to the State of Georgia, or its successors and assigns, of all the rights, title, privileges, powers, and easement granted herein. Upon abandonment, the City of Metter, or its successors and assigns, shall have the option of removing its facilities from the easement area or leaving the same in place, in which event the facility shall become the property of the State of Georgia, or its successors and assigns.

SECTION 6. That no title shall be conveyed to the City of Metter, and, except as herein specifically granted to the City of Metter, all rights, title, and interest in and to said easement area is reserved in the State of Georgia, which may make any use of said easement area not inconsistent with or detrimental to the rights, privileges, and interest granted to the City of Metter.

SECTION 7. That this resolution does not affect and is not intended to affect any rights, powers, interest, or liability of the Department of Transportation with respect to the state highway system or of a county with respect to the county road system or of a municipality with respect to the city street system. The grantee shall obtain any and all other required permits from the appropriate governmental agencies as are necessary for its lawful use of the easement area or public highway right of way and comply with all applicable state and federal environmental statutes in its use of the easement area.

SECTION 8. That if the State of Georgia, acting by and through its State Properties Commission, determines that any or all of the facilities placed on the easement area should be removed or relocated to an alternate site on state owned land in order to avoid interference with the state's use or intended use ofthe easement area, it may grant a substantially equivalent nonexclusive easement to allow placement of the removed or relocated facilities across the alternate site,

336

GENERAL ACTS AND RESOLUTIONS, VOL. I

under such terms and conditions as the State Properties Commission shall in its discretion determine to be in the best interests of the State of Georgia, and the City of Metter shall remove or relocate its facilities to the alternate easement area at its sole cost and expense, unless the State Properties Commission determines that the requested removal or relocation is to be for the sole benefit of the State of Georgia and approves payment by the State of Georgia of all or a portion of such actual cost and expense, not to exceed by 20 percent the amount of a written estimate provided by the City of Metter. Upon written request, the State Properties Commission, in its sole discretion, may permit the relocation of the facilities to an alternate site on state owned land so long as the removal and relocation is paid by the party or parties requesting such removal and at no cost and expense to the State of Georgia. If an easement is relocated for any reason, the State Properties Commission is authorized to convey by quitclaim deed the state's interest in the former easement area.

SECTION 9. That the easement granted to the City of Metter shall contain such other reasonable terms, conditions, and covenants as the State Properties Commission shall deem in the best interest of the State of Georgia and that the State Properties Commission is authorized to use a more accurate description of the easement area so long as the description utilized by the State Properties Commission describes the same easement area herein granted.

SECTION 10. That the consideration for such easement shall be $10.00 and such further consideration and provisions as the State Properties Commission may determine to be in the best interest ofthe State of Georgia.

SECTION 11. That this grant ofeasement shall be recorded by the Grantee in the Superior Court of Candler County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 12. That the authorization in this resolution to grant the above-described easement to the City of Metter shall expire three years after the date that this resolution is enacted into law and approved by the State Properties Commission.

SECTION 13. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect the grant of the easement area.

GEORGIA LAWS 2009 SESSION

337

ARTICLE II SECTION 14.

That the State of Georgia is the owner of the hereinafter described real property in Cobb County, Georgia, and that the property is in the custody of the State Properties Commission, hereinafter referred to as the "easement area" and that, in all matters relating to the easement area, the State of Georgia is acting by and through its State Properties Commission.

SECTION 15. That the State of Georgia, acting by and through its State Properties Commission, may grant to Cobb County or its successors and assigns, a nonexclusive easement area above and across the property which is leased to CSX Corporation as successor to the Seaboard System Railroad, Inc., for the operation and maintenance of a new pedestrian path or trail and bridge. Said easement area is located south of Marietta, Georgia, in Cobb County, and is more particularly described as follows:
"That approximately 0.03 7 ofan acre permanent easement and approximately 0.0546 of an acre oftemporary construction easement air-rights portion and that portion only as shown on that drawing titled Georgia Cobb County Right of Way of Proposed Spring Road Enhanced Sidewalk Project CSCMQ-0006-00 (876) dated August 14, 2006, Sheets 1, 2, 18 and 21 of 21 as last revised on November I 7, 2008, prepared by Arcadis, on file in the offices of the State Properties Commission," and may be more particularly described by a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval.

SECTION 16. That the above-described premises shall be used solely for the purpose of installing, maintaining, and operating said pedestrian path or trail and bridge, and that the design and construction plans for the easement area must be approved by the CSX Corporation as lessee prior to initiation of construction.

SECTION 17. That Cobb County shall have the right to remove or cause to be removed from said easement area only such trees and bushes as may be reasonably necessary for the proper operation and maintenance of said path or trail and bridge.

SECTION 18. That, after Cobb County has put into use the pedestrian path or trail and bridge this easement is granted for, a subsequent abandonment of the use thereof shall cause a reversion to the State of Georgia, or its successors and assigns, of all the rights, title, privileges, powers, and easement granted herein. Upon abandonment, Cobb County, or its successors and assigns, shall have the option of removing its facilities from the easement area or leaving the same

338

GENERAL ACTS AND RESOLUTIONS, VOL. I

in place, in which event the path or trail and bridge shall become the property of the State of Georgia, or its successors and assigns.

SECTION 19. That no title shall be conveyed to Cobb County and, except as herein specifically granted to Cobb County, all rights, title, and interest in and to said easement area is reserved in the State of Georgia, which may make any use of said easement area not inconsistent with or detrimental to the rights, privileges, and interest granted to Cobb County.

SECTION 20. That if the State of Georgia, acting by and through its State Properties Commission, determines that any or all of the facilities placed on the easement area should be removed or relocated to an alternate site on state owned land in order to avoid interference with the state's use or intended use ofthe easement area, it may grant a substantially equivalent nonexclusive easement to allow placement of the removed or relocated facilities across the alternate site under such terms and conditions as the State Properties Commission shall in its discretion determine to be in the best interests of the State of Georgia, and Cobb County shall remove or relocate its facilities to the alternate easement area at its sole cost and expense, unless the State Properties Commission determines that the requested removal or relocation is to be for the sole benefit of the State of Georgia and approves payment by the State of Georgia of all or a portion of such actual cost and expense, not to exceed by 20 percent the amount of a written estimate provided by Cobb County. Upon written request, the State Properties Commission, in its sole discretion, may permit the relocation of the facilities to an alternate site on state owned land so long as the removal and relocation is paid by the party or parties requesting such removal and at no cost and expense to the State of Georgia. If an easement is relocated for any reason, the State Properties Commission is authorized to convey by quitclaim deed the state's interest in the former easement area.

SECTION 21. That the easement granted to Cobb County shall contain such other reasonable terms, conditions, and covenants as the State Properties Commission shall deem in the best interest of the State of Georgia and that the State Properties Commission is authorized to use a more accurate description of the easement area, so long as the description utilized by the State Properties Commission describes the same easement area herein granted.

SECTION 22. That this resolution does not affect and is not intended to affect any rights, powers, interest, or liability of the Department of Transportation with respect to the state highway system or of a county with respect to the county road system or of a municipality with respect to the city street system. The grantee shall obtain any and all other required permits from the appropriate governmental agencies as are necessary for its lawful use of the easement area

GEORGIA LAWS 2009 SESSION

339

or public highway right of way and comply with all applicable state and federal environmental statutes in its use of the easement area.

SECTION 23. That the consideration for such easement shall be $10.00 and such further consideration and provisions as the State Properties Commission may determine to be in the best interest of the State of Georgia.

SECTION 24. That this grant of easement shall be recorded by the Grantee in the Superior Court of Cobb County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 25. That the authorization in this resolution to grant the above-described easement to Cobb County shall expire three years after the date that this resolution is enacted into law and approved by the State Properties Commission.

SECTION 26. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect the grant of the easement area.

ARTICLE III SECTION 27.

That the State of Georgia is the owner of the hereinafter described real property in Cobb County, Georgia, and that the property is in the custody of the State Properties Commission, hereinafter referred to as the "easement area" and that, in all matters relating to the easement area, the State of Georgia is acting by and through its State Properties Commission.

SECTION 28. That the State of Georgia, acting by and through its State Properties Commission, may grant to Cobb County, or its successors and assigns, a nonexclusive easement area above and across the property which is leased to CSX Corporation as successor to the Seaboard System Railroad, Inc., for the operation and maintenance ofa new pedestrian path or trail and bridge. Said easement area is located south of Marietta, Georgia, in Cobb County, and is more particularly described as follows:
"That approximately 0.45 of an acre temporary easement and 0.09 of an acre permanent easement air-rights portion and that portion only as shown on that drawing titled Cobb County Department of Transportation, Mainline Plan 0 ld 41 Highway Drawing 13-02 not dated, on file in the offices of the State Properties Commission,"

340

GENERAL ACTS AND RESOLUTIONS, VOL. I

and may be more particularly described by a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval.

SECTION 29. That the above-described premises shaH be used solely for the purpose of installing, maintaining, and operating said pedestrian path or trail and bridge, and that the design and construction plans for the easement area must be approved by the CSX Corporation as lessee prior to initiation of construction.

SECTION 30. That Cobb County shall have the right to remove or cause to be removed from said easement area only such trees and bushes as may be reasonably necessary for the proper operation and maintenance of said path or trail and bridge.

SECTION 31. That, after Cobb County has put into use the pedestrian path or trail and bridge this easement is granted for, a subsequent abandonment of the use thereof shaH cause a reversion to the State of Georgia, or its successors and assigns, of aU the rights, title, privileges, powers, and easement granted herein. Upon abandonment, the Cobb County, or its successors and assigns, shaH have the option of removing its facilities from the easement area or leaving the same in place, in which event the path or trail and bridge shaH become the property of the State of Georgia, or its successors and assigns.

SECTION 32. That no title shaH be conveyed to Cobb County and, except as herein specifically granted to Cobb County, aU rights, title, and interest in and to said easement area is reserved in the State of Georgia, which may make any use of said easement area not inconsistent with or detrimental to the rights, privileges, and interest granted to Cobb County.

SECTION 33. That if the State of Georgia, acting by and through its State Properties Commission, determines that any or aU of the facilities placed on the easement area should be removed or relocated to an alternate site on state owned land in order to avoid interference with the state's use or intended use ofthe easement area, it may grant a substantia11y equivalent nonexclusive easement to a11ow placement of the removed or relocated facilities across the alternate site under such terms and conditions as the State Properties Commission shaH in its discretion determine to be in the best interests of the State of Georgia, and Cobb County shaH remove or relocate its facilities to the alternate easement area at its sole cost and expense, unless the State Properties Commission determines that the requested removal or relocation is to be for the sole benefit of the State of Georgia and approves payment by the State of Georgia of all or a portion of such actual cost and expense, not to exceed by 20 percent the amount of a

GEORGIA LAWS 2009 SESSION

341

written estimate provided by Cobb County. Upon written request, the State Properties Commission, in its sole discretion, may permit the relocation of the facilities to an alternate site on state owned land so long as the removal and relocation is paid by the party or parties requesting such removal and at no cost and expense to the State of Georgia. If an easement is relocated for any reason, the State Properties Commission is authorized to convey by quitclaim deed the state's interest in the former easement area.

SECTION 34. That the easement granted to Cobb County shall contain such other reasonable terms, conditions, and covenants as the State Properties Commission shall deem in the best interest ofthe State of Georgia and that the State Properties Commission is authorized to use a more accurate description of the easement area, so long as the description utilized by the State Properties Commission describes the same easement area herein granted.

SECTION 35. That this resolution does not affect and is not intended to affect any rights, powers, interest, or liability of the Department of Transportation with respect to the state highway system or of a county with respect to the county road system or of a municipality with respect to the city street system. The grantee shall obtain any and all other required permits from the appropriate governmental agencies as are necessary for its lawful use of the easement area or public highway right of way and comply with all applicable state and federal environmental statutes in its use of the easement area.

SECTION 36. That the consideration for such easement shall be $10.00 and such further consideration and provisions as the State Properties Commission may determine to be in the best interest of the State of Georgia.

SECTION 37. That this grant of easement shall be recorded by the Grantee in the Superior Court of Cobb County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 38. That the authorization in this resolution to grant the above-described easement to Cobb County shall expire three years after the date that this resolution is enacted into law and approved by the State Properties Commission.

SECTION 39. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect the grant of the easement area.

342

GENERAL ACTS AND RESOLUTIONS, VOL. I

ARTICLE IV SECTION 40.

That the State of Georgia is the owner of the hereinafter described real property in Cobb County, Georgia, and that the property is in the custody of the State Properties Commission, hereinafter referred to as the "easement area" and that, in all matters relating to the easement area, the State of Georgia is acting by and through its State Properties Commission.

SECTION 41. That the State of Georgia, acting by and through its State Properties Commission, may grant to City of Smyrna or its successors and assigns, a nonexclusive easement area above and across the property which is leased to CSX Corporation as successor to the Seaboard System Railroad, Inc., for the operation and maintenance of a new highway bridge with improved pedestrian safety at Campbell Road. Said easement area is located south of Smyrna, Georgia, in Cobb County, and is more particularly described as follows:
"That 0.1 of an acre portion of air-rights temporary easement and 0.1 of an acre of air-rights permanent easement and that portion only as shown on that drawing titled City of Smyrna Department ofPublic Works Right of Way Map, Campbell Road over CSX Railroad, Project No. 31-6056 on file in the offices of the State Properties Commission," and may be more particularly described by a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval.

SECTION 42. That the above-described premises shall be used solely for the purpose of installing, maintaining, and operating said highway and pedestrian bridge, and that the design and construction plans for the easement area must be approved by the CSX Corporation as lessee prior to initiation of construction.

SECTION 43. That City of Smyrna shall have the right to remove or cause to be removed from said easement area only such trees and bushes as may be reasonably necessary for the proper operation and maintenance of said bridge.

SECTION 44. That, after City of Smyrna has put into use the highway and pedestrian bridge this easement is granted for, a subsequent abandonment of the use thereof shall cause a reversion to the State of Georgia, or its successors and assigns, of all the rights, title, privileges, powers, and easement granted herein. Upon abandonment, the City of Smyrna, or its successors and assigns, shall have the option of removing its facilities from the easement area or leaving the

GEORGIA LAWS 2009 SESSION

343

same in place, in which event the highway and pedestrian bridge shall become the property of the State of Georgia, or its successors and assigns.

SECTION 45. That no title shall be conveyed to City of Smyrna and, except as herein specifically granted to City of Smyrna all rights, title, and interest in and to said easement area is reserved in the State of Georgia, which may make any use of said easement area not inconsistent with or detrimental to the rights, privileges, and interest granted to City of Smyrna.

SECTION 46. That if the State of Georgia, acting by and through its State Properties Commission, determines that any or all of the facilities placed on the easement area should be removed or relocated to an alternate site on state owned land in order to avoid interference with the state's use or intended use ofthe easement area, it may grant a substantially equivalent nonexclusive easement to allow placement of the removed or relocated facilities across the alternate site under such terms and conditions as the State Properties Commission shall in its discretion determine to be in the best interests of the State of Georgia, and City of Smyrna shall remove or relocate its facilities to the alternate easement area at its sole cost and expense, unless the State Properties Commission determines that the requested removal or relocation is to be for the sole benefit of the State of Georgia and approves payment by the State of Georgia of all or a portion of such actual cost and expense, not to exceed by 20 percent the amount of a written estimate provided by City of Smyrna. Upon written request, the State Properties Commission, in its sole discretion, may permit the relocation of the facilities to an alternate site on state owned land so long as the removal and relocation is paid by the party or parties requesting such removal and at no cost and expense to the State of Georgia. If an easement is relocated for any reason, the State Properties Commission is authorized to convey by quitclaim deed the state's interest in the former easement area.

SECTION 47. That the easement granted to City of Smyrna shall contain such other reasonable terms, conditions, and covenants as the State Properties Commission shall deem in the best interest ofthe State of Georgia and that the State Properties Commission is authorized to use a more accurate description of the easement area, so long as the description utilized by the State Properties Commission describes the same easement area herein granted.

SECTION 48. That this resolution does not affect and is not intended to affect any rights, powers, interest, or liability of the Department of Transportation with respect to the state highway system or of a county with respect to the county road system or of a municipality with respect to the city street system. The grantee shall obtain any and all other required permits from the appropriate governmental agencies as are necessary for its lawful use of the easement area

344

GENERAL ACTS AND RESOLUTIONS, VOL. I

or public highway right of way and comply with all applicable state and federal environmental statutes in its use of the easement area.

SECTION 49. That the consideration for such easement shall be $10.00 and such further consideration and provisions as the State Properties Commission may determine to be in the best interest of the State of Georgia.

SECTION 50. That this grant of easement shall be recorded by the Grantee in the Superior Court of Cobb County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 51. That the authorization in this resolution to grant the above-described easement to Cobb County shall expire three years after the date that this resolution is enacted into law and approved by the State Properties Commission.

SECTION 52. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect the grant of the easement area.

ARTICLE V SECTION 53.

That the State of Georgia is the owner of the hereinafter described real property in Cobb County, Georgia, and that the property is in the custody of the State Properties Commission, hereinafter referred to as the "easement area" and that, in all matters relating to the easement area, the State of Georgia is acting by and through its State Properties Commission.

SECTION 54. That the State of Georgia, acting by and through its State Properties Commission, may grant to Cobb County or its successors and assigns, a nonexclusive easement area above and across the property which is leased to CSX Corporation as successor to the Seaboard System Railroad, Inc., for the operation and maintenance ofa new pedestrian path or trail and bridge. Said easement area is located south of Smyrna, Georgia, in Cobb County, and is more particularly described as follows:
"That approximately 0.07 of an acre air-rights portion and that portion only as shown on that drawing titled Spring Road, Smyrna, GA., Easement Plat for Spring Road CSX Pedestrian Bridge of 0.07 of an acre, by CROY Engineering, dated November 24, 2008, on file in the offices of the State Properties Commission,"

GEORGIA LAWS 2009 SESSION

345

and may be more particularly described by a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval.

SECTION 55. That the above-described premises shall be used solely for the purpose of installing, maintaining, and operating said pedestrian path or trail and bridge, and that the design and construction plans for the easement area must be approved by the CSX Corporation as lessee prior to initiation of construction.

SECTION 56. That Cobb County shall have the right to remove or cause to be removed from said easement area only such trees and bushes as may be reasonably necessary for the proper operation and maintenance of said path or trail and bridge.

SECTION 57. That, after Cobb County has put into use the pedestrian path or trail and bridge this easement is granted for, a subsequent abandonment of the use thereof shall cause a reversion to the State of Georgia, or its successors and assigns, of all the rights, title, privileges, powers, and easement granted herein. Upon abandonment, the Cobb County, or its successors and assigns, shall have the option of removing its facilities from the easement area or leaving the same in place, in which event the path or trail and bridge shall become the property of the State of Georgia, or its successors and assigns.

SECTION 58. That no title shall be conveyed to Cobb County and, except as herein specifically granted to Cobb County, all rights, title, and interest in and to said easement area is reserved in the State of Georgia, which may make any use of said easement area not inconsistent with or detrimental to the rights, privileges, and interest granted to Cobb County.

SECTION 59. That if the State of Georgia, acting by and through its State Properties Commission, determines that any or all of the facilities placed on the easement area should be removed or relocated to an alternate site on state owned land in order to avoid interference with the state's use or intended use ofthe easement area, it may grant a substantially equivalent nonexclusive easement to allow placement of the removed or relocated facilities across the alternate site under such terms and conditions as the State Properties Commission shall in its discretion determine to be in the best interests of the State of Georgia, and Cobb County shall remove or relocate its facilities to the alternate easement area at its sole cost and expense, unless the State Properties Commission determines that the requested removal or relocation is to be for the sole benefit of the State of Georgia and approves payment by the State of Georgia of all or a portion of such actual cost and expense, not to exceed by 20 percent the amount of a

346

GENERAL ACTS AND RESOLUTIONS, VOL. I

written estimate provided by Cobb County. Upon written request, the State Properties Commission, in its sole discretion, may permit the relocation of the facilities to an alternate site on state owned land so long as the removal and relocation is paid by the party or parties requesting such removal and at no cost and expense to the State of Georgia. If an easement is relocated for any reason, the State Properties Commission is authorized to convey by quitclaim deed the state's interest in the former easement area.

SECTION 60. That the easement granted to Cobb County shall contain such other reasonable terms, conditions, and covenants as the State Properties Commission shall deem in the best interest ofthe State of Georgia and that the State Properties Commission is authorized to use a more accurate description of the easement area, so long as the description utilized by the State Properties Commission describes the same easement area herein granted.

SECTION 61. That this resolution does not affect and is not intended to affect any rights, powers, interest, or liability of the Department of Transportation with respect to the state highway system or of a county with respect to the county road system or of a municipality with respect to the city street system. The grantee shall obtain any and all other required permits from the appropriate governmental agencies as are necessary for its lawful use of the easement area or public highway right of way and comply with all applicable state and federal environmental statutes in its use of the easement area.
SECTION 62. That the consideration for such easement shall be $10.00 and such further consideration and provisions as the State Properties Commission may determine to be in the best interest ofthe State of Georgia.
SECTION 63. That this grant of easement shall be recorded by the Grantee in the Superior Court of Cobb County and a recorded copy shall be forwarded to the State Properties Commission.
SECTION 64. That the authorization in this resolution to grant the above-described easement to Cobb County shall expire three years after the date that this resolution is enacted into law and approved by the State Properties Commission.
SECTION 65. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect the grant of the easement area.

GEORGIA LAWS 2009 SESSION

347

ARTICLE VI SECTION 66.

That the State of Georgia is the owner of the hereinafter described real property in Dawson County, and the property is in the custody of the Georgia Forestry Commission, hereinafter referred to as the "easement area" and that, in all matters relating to the easement area, the State of Georgia is acting by and through its State Properties Commission.

SECTION 67. That the State of Georgia, acting by and through its State Properties Commission, may grant to Georgia Transmission Corporation, or its successors and assigns, a nonexclusive easement for the construction, operation, and maintenance ofa transmission line on, over, under, upon, across, or through the easement area for the purpose of constructing, erecting, installing, maintaining, repairing, replacing, inspecting, and operating a transmission line together with the right of ingress and egress over adjacent land of the State of Georgia as may be reasonably necessary to accomplish the aforesaid purposes. Said easement area is located in Dawson County, Georgia, and is more particularly described as follows:
"That approximately 0.38 of an acre portion and that portion only as shown on a Jordan Jones and Goulding survey titled Dawson Crossing - Juno 115kV Transmission Line, dated February 14, 2007, for the Georgia Transmission Corporation and on file in the offices of the State Properties Commission," and may be more particularly described by a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval.

SECTION 68. That the above-described premises shall be used solely for the purpose of planning, constructing, erecting, installing, maintaining, repairing, replacing, inspecting, and operating said transmission line.

SECTION 69. That Georgia Transmission Corporation shall have the right to remove or cause to be removed from said easement area only such trees and bushes as may be reasonably necessary for the proper construction, operation, and maintenance of said transmission line.

SECTION 70. That, after the Georgia Transmission Corporation puts into use the transmission line for which this easement is granted, a subsequent abandonment of the use thereof shall cause a reversion to the State of Georgia, or its successors and assigns, of all the rights, title, privileges, powers, and easement granted herein. Upon abandonment, Georgia Transmission Corporation, or its successors and assigns, shall have the option of removing its facilities

348

GENERAL ACTS AND RESOLUTIONS, VOL. I

from the easement area or leaving the same in place, in which event the facility shall become the property of the State of Georgia, or its successors and assigns.

SECTION 71. That no title shall be conveyed to Georgia Transmission Corporation and, except as herein specifically granted to Georgia Transmission Corporation, all rights, title, and interest in and to said easement area is reserved in the State of Georgia, which may make any use of said easement area not inconsistent with or detrimental to the rights, privileges, and interest granted to Georgia Transmission Corporation.

SECTION 72. That this resolution does not affect and is not intended to affect any rights, powers, interest, or liability of the Department of Transportation with respect to the state highway system or of a county with respect to the county road system or of a municipality with respect to the city street system. The grantee shall obtain any and all other required permits from the appropriate governmental agencies as are necessary for its lawful use of the easement area or public highway right of way and comply with all applicable state and federal environmental statutes in its use of the easement area.

SECTION 73. That if the State of Georgia, acting by and through its State Properties Commission, determines that any or all of the facilities placed on the easement area should be removed or relocated to an alternate site on state owned land in order to avoid interference with the state's use or intended use ofthe easement area, it may grant a substantially equivalent nonexclusive easement to allow placement of the removed or relocated facilities across the alternate site, under such terms and conditions as the State Properties Commission shall in its discretion determine to be in the best interests of the State of Georgia, and Georgia Transmission Corporation shall remove or relocate its facilities to the alternate easement area at its sole cost and expense, unless the State Properties Commission determines that the requested removal or relocation is to be for the sole benefit of the State of Georgia and approves payment by the State of Georgia of all or a portion of such actual cost and expense, not to exceed by 20 percent the amount of a written estimate provided by Georgia Transmission Corporation. Upon written request, the State Properties Commission, in its sole discretion, may permit the relocation of the facilities to an alternate site on state owned land so long as the removal and relocation is paid by the party or parties requesting such removal and at no cost and expense to the State of Georgia. If an easement is relocated for any reason, the State Properties Commission is authorized to convey by quitclaim deed the state's interest in the former easement area.

GEORGIA LAWS 2009 SESSION

349

SECTION 74. That the easement granted to Georgia Transmission Corporation shall contain such other reasonable terms, conditions, and covenants as the State Properties Commission shall deem in the best interest of the State of Georgia and that the State Properties Commission is authorized to use a more accurate description ofthe easement area, so long as the description utilized by the State Properties Commission describes the same easement area herein granted.

SECTION 75. That the consideration for such easement shall be fair market value but not less than $650.00 and such further consideration and provisions as the State Properties Commission may determine to be in the best interest of the State of Georgia.

SECTION 76. That this grant of easement shall be recorded by the Grantee in the Superior Court ofDawson County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 77. That the authorization in this resolution to grant the above-described easement to Georgia Transmission Corporation shall expire three years after the date that this resolution is enacted into law and approved by the State Properties Commission.

SECTION 78. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect the grant of the easement area.

ARTICLE VII SECTION 79.

That the State of Georgia is the owner of the hereinafter described real property in Douglas County, and the property is in the custody of the Department of Natural Resources, hereinafter referred to as the "easement area" and that, in all matters relating to the easement area, the State of Georgia is acting by and through its State Properties Commission.

SECTION 80. That the State of Georgia, acting by and through its State Properties Commission, may grant to Connexion Technologies, Inc., or its successors and assigns, a nonexclusive easement for the construction, operation, and maintenance of fiber optic, telephone, cable television, and high speed data line in, on, over, under, upon, across, or through the easement area for the purpose of constructing, erecting, installing, maintaining, repairing, replacing, inspecting, and operating such line and services together with the right of ingress and egress over adjacent land of the State of Georgia as may be reasonably necessary to accomplish the

350

GENERAL ACTS AND RESOLUTIONS, VOL. I

aforesaid purposes. Said easement area is located in Douglas County, Georgia, and is more particularly described as follows:
"Those 0.115 of an acre portions and those portions only as shown on a GeoSurvey, Ltd. survey for Connexion Technologies last revised on May 5, 2007, prepared by Joseph T. Baker and on file in the offices of the State Properties Commission," and may be more particularly described by a plats of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval.

SECTION 81. That the above-described premises shall be used solely for the purpose of planning, constructing, erecting, installing, maintaining, repairing, replacing, inspecting, and operating said fiber optic, telephone, cable television, and high speed data line.

SECTION 82. That Connexion Technologies, Inc., shall have the right to remove or cause to be removed from said easement area only such trees and bushes as may be reasonably necessary for the proper construction, operation, and maintenance of said line.

SECTION 83. That, after Connexion Technologies, Inc., has put into use the line for which this easement is granted, a subsequent abandonment of the use thereof shall cause a reversion to the State of Georgia, or its successors and assigns, of all the rights, title, privileges, powers, and easement granted herein. Upon abandonment, Connexion Technologies, Inc., or its successors and assigns, shall have the option ofremoving its facilities from the easement area or leaving the same in place, in which event the facility shall become the property of the State of Georgia, or its successors and assigns.

SECTION 84. That no title shall be conveyed to Connexion Technologies, Inc., and, except as herein specifically granted to Connexion Technologies, Inc., all rights, title, and interest in and to said easement area is reserved in the State of Georgia, which may make any use of said easement area not inconsistent with or detrimental to the rights, privileges, and interest granted to Connexion Technologies, Inc.

SECTION 85. That this resolution does not affect and is not intended to affect any rights, powers, interest, or liability of the Department of Transportation with respect to the state highway system or of a county with respect to the county road system or of a municipality with respect to the city street system. The grantee shall obtain any and all other required permits from the appropriate governmental agencies as are necessary for its lawful use of the easement area

GEORGIA LAWS 2009 SESSION

351

or public highway right of way and comply with all applicable state and federal environmental statutes in its use of the easement area.

SECTION 86. That if the State of Georgia, acting by and through its State Properties Commission, determines that any or all of the facilities placed on the easement area should be removed or relocated to an alternate site on state owned land in order to avoid interference with the state's use or intended use ofthe easement area, it may grant a substantially equivalent nonexclusive easement to allow placement of the removed or relocated facilities across the alternate site, under such terms and conditions as the State Properties Commission shall in its discretion determine to be in the best interests of the State of Georgia, and Connexion Technologies, Inc., shall remove or relocate its facilities to the alternate easement area at its sole cost and expense, unless the State Properties Commission determines that the requested removal or relocation is to be for the sole benefit of the State of Georgia and approves payment by the State of Georgia of all or a portion of such actual cost and expense, not to exceed by 20 percent the amount of a written estimate provided by Connexion Technologies, Inc. Upon written request, the State Properties Commission, in its sole discretion, may permit the relocation of the facilities to an alternate site on state owned land so long as the removal and relocation is paid by the party or parties requesting such removal and at no cost and expense to the State of Georgia. If an easement is relocated for any reason, the State Properties Commission is authorized to convey by quitclaim deed the state's interest in the former easement area.

SECTION 87. That the easement granted to Connexion Technologies, Inc., shall contain such other reasonable terms, conditions, and covenants as the State Properties Commission shall deem in the best interest of the State of Georgia and that the State Properties Commission is authorized to use a more accurate description ofthe easement area, so long as the description utilized by the State Properties Commission describes the same easement area herein granted.

SECTION 88. That the consideration for such easement shall be for fair market value but not less than $650.00, and such further consideration and provisions as the State Properties Commission may determine to be in the best interest of the State of Georgia.

SECTION 89. That this grant ofeasement shall be recorded by the Grantee in the Superior Court ofDouglas County and a recorded copy shall be forwarded to the State Properties Commission.

352

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 90. That the authorization in this resolution to grant the above-described easement to Connexion Technologies, Inc., shall expire three years after the date that this resolution is enacted into law and approved by the State Properties Commission.

SECTION 91. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect the grant of the easement area.

ARTICLE VIII SECTION 92.

That the State of Georgia is the owner of the hereinafter described real property in Fulton County, and the property is in the custody of the Department of Economic Development at the Georgia World Congress Center, hereinafter referred to as the "easement area" and that, in all matters relating to the easement area, the State of Georgia is acting by and through its State Properties Commission.

SECTION 93. That the State of Georgia, acting by and through its State Properties Commission, may grant to Georgia Power Company or its successors and assigns, a nonexclusive easement for the construction, operation, and maintenance ofa transmission line on, over, under, upon, across, or through the easement area for the purpose of constructing, erecting, installing, maintaining, repairing, replacing, inspecting, and operating a transmission line together with the right of ingress and egress over adjacent land of the State of Georgia as may be reasonably necessary to accomplish the aforesaid purposes. Said easement area is located in Fulton County, G.eorgia, and is more particularly described as follows:
"Those approximately 0.591 of one acre portions and those portions only as shown on a Georgia Power Company drawing titled Fowler Street-Jefferson Street ll5KV Transmission Line (Reference Alexander Street DOT Project) in Atlanta, Fulton County, Georgia, dated October 15, 2008, and on file in the offices of the State Properties Commission," and may be more particularly described by a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval.

SECTION 94. That the above-described premises shall be used solely for the purpose of planning, constructing, erecting, installing, maintaining, repairing, replacing, inspecting, and operating said transmission lines, and that the Executive Director of the Georgia World Congress Center shall approve the design, construction, and operation plans for the easement area.

GEORGIA LAWS 2009 SESSION

353

SECTION 95. That Georgia Power Company shall have the right to remove or cause to be removed from said easement area only such trees and bushes as may be reasonably necessary for the proper construction, operation, and maintenance of said transmission line.

SECTION 96. That, after the Georgia Power Company puts into use the transmission line for which this easement is granted, a subsequent abandonment of the use thereof shall cause a reversion to the State of Georgia, or its successors and assigns, of all the rights, title, privileges, powers, and easement granted herein. Upon abandonment, Georgia Power Company, or its successors and assigns, shall have the option ofremoving its facilities from the easement area or leaving the same in place, in which event the facility shall become the property of the State of Georgia, or its successors and assigns.

SECTION 97. That no title shall be conveyed to Georgia Power Company and, except as herein specifically granted to Georgia Power Company, all rights, title, and interest in and to said easement area is reserved in the State of Georgia, which may make any use of said easement area not inconsistent with or detrimental to the rights, privileges, and interest granted to Georgia Power Company.

SECTION 98. That this resolution does not affect and is not intended to affect any rights, powers, interest, or liability of the Department of Transportation with respect to the state highway system or of a county with respect to the county road system or of a municipality with respect to the city street system. The grantee shall obtain any and all other required permits from the appropriate governmental agencies as are necessary for its lawful use of the easement area or public highway right of way and comply with all applicable state and federal environmental statutes in its use of the easement area.

SECTION 99. That if the State of Georgia, acting by and through its State Properties Commission, determines that any or all of the facilities placed on the easement area should be removed or relocated to an alternate site on state owned land in order to avoid interference with the state's use or intended use ofthe easement area, it may grant a substantially equivalent nonexclusive easement to allow placement of the removed or relocated facilities across the alternate site, under such terms and conditions as the State Properties Commission shall in its discretion determine to be in the best interests of the State of Georgia, and Georgia Power Company shall remove or relocate its facilities to the alternate easement area at its sole cost and expense, unless the State Properties Commission determines that the requested removal or relocation is to be for the sole benefit of the State of Georgia and approves payment by the

354

GENERAL ACTS AND RESOLUTIONS, VOL. I

State of Georgia of all or a portion of such actual cost and expense, not to exceed by 20 percent the amount of a written estimate provided by Georgia Power Company. Upon written request, the State Properties Commission, in its sole discretion, may permit the relocation of the facilities to an alternate site on state owned land so long as the removal and relocation is paid by the party or parties requesting such removal and at no cost and expense to the State of Georgia. If an easement is relocated for any reason, the State Properties Commission is authorized to convey by quitclaim deed the state's interest in the former easement area.

SECTION 100. That the easement granted to Georgia Power Company shall contain such other reasonable terms, conditions, and covenants as the State Properties Commission shall deem in the best interest of the State of Georgia and that the State Properties Commission is authorized to use a more accurate description of the easement area, so long as the description utilized by the State Properties Commission describes the same easement area herein granted.

SECTION 101. That the consideration for such easement shall be fair market value but not less than $650.00 and such further consideration and provisions as the State Properties Commission may determine to be in the best interest of the State of Georgia.

SECTION 102. That this grant of easement shall be recorded by the Grantee in the Superior Court of Fulton County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 103. That the authorization in this resolution to grant the above-described easement to Georgia Power Company shall expire three years after the date that this resolution is enacted into law and approved by the State Properties Commission.

SECTION 104. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect the grant of the easement area.

ARTICLE IX SECTION 105.

That the State of Georgia is the owner of the hereinafter described real property in Fulton County, Georgia, and that the property is in the custody ofthe State Properties Commission, hereinafter referred to as the "easement area" and that, in all matters relating to the easement area, the State of Georgia is acting by and through its State Properties Commission.

GEORGIA LAWS 2009 SESSION

355

SECTION 106. That the State of Georgia, acting by and through its State Properties Commission, may grant to Georgia Power Company, or its successors and assigns, a nonexclusive easement area above and across the property which is leased to CSX Corporation as successor to the Seaboard System Railroad, Inc., for the operation and maintenance of a new power transmission line. Said easement area is located in Atlanta, Fulton County, Georgia, and is more particularly described as follows:
"That approximately 0.178 of one acre air-rights portion and that portion only as shown on that drawing titled for Georgia Power Company, Easement survey for State of Georgia (Parcel 009A) Fowler Street-Jefferson Street 115KV Transmission Line (Reference Alexander Street DOT Project) by surveyor David J. Williams, dated January 14, 2009, on file in the offices of the State Properties Commission," and may be more particularly described by a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval.

SECTION 107. That the above-described premises shall be used solely for the purpose of installing, maintaining, and operating said transmission line, and that the design and construction plans for the easement area must be approved by the CSX Corporation as lessee prior to initiation of construction.

SECTION 108. That Georgia Power Company shall have the right to remove or cause to be removed from said easement area only such trees and bushes as may be reasonably necessary for the proper operation and maintenance of said transmission line.

SECTION 109. That, after Georgia Power Company has put into use the transmission line this easement is granted for, a subsequent abandonment of the use thereof shall cause a reversion to the State of Georgia, or its successors and assigns, of all the rights, title, privileges, powers, and easement granted herein. Upon abandonment, the Georgia Power Company, or its successors and assigns, shall have the option of removing its facilities from the easement area or leaving the same in place, in which event the transmission line shall become the property of the State of Georgia, or its successors and assigns.

SECTION 110. That no title shall be conveyed to Georgia Power Company and, except as herein specifically granted to Georgia Power Company, all rights, title, and interest in and to said easement area is reserved in the State of Georgia, which may make any use of said easement area not inconsistent with or detrimental to the rights, privileges, and interest granted to Fulton County.

356

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 111. That if the State of Georgia, acting by and through its State Properties Commission, determines that any or all of the facilities placed on the easement area should be removed or relocated to an alternate site on state owned land in order to avoid interference with the state's use or intended use ofthe easement area, it may grant a substantially equivalent nonexclusive easement to allow placement of the removed or relocated facilities across the alternate site under such terms and conditions as the State Properties Commission shall in its discretion determine to be in the best interests of the State of Georgia, and Georgia Power Company shall remove or relocate its facilities to the alternate easement area at its sole cost and expense, unless the State Properties Commission determines that the requested removal or relocation is to be for the sole benefit of the State of Georgia and approves payment by the State of Georgia of all or a portion of such actual cost and expense, not to exceed by 20 percent the amount of a written estimate provided by Georgia Power Company. Upon written request, the State Properties Commission, in its sole discretion, may permit the relocation of the facilities to an alternate site on state owned land so long as the removal and relocation is paid by the party or parties requesting such removal and at no cost and expense to the State of Georgia. If an easement is relocated for any reason, the State Properties Commission is authorized to convey by quitclaim deed the state's interest in the former easement area.

SECTION 112. That the easement granted to Georgia Power Company shall contain such other reasonable terms, conditions, and covenants as the State Properties Commission shall deem in the best interest of the State of Georgia and that the State Properties Commission is authorized to use a more accurate description of the easement area, so long as the description utilized by the State Properties Commission describes the same easement area herein granted.

SECTION 113. That this resolution does not affect and is not intended to affect any rights, powers, interest, or liability of the Department of Transportation with respect to the state highway system or of a county with respect to the county road system or of a municipality with respect to the city street system. The grantee shall obtain any and all other required permits from the appropriate governmental agencies as are necessary for its lawful use of the easement area or public highway right of way and comply with all applicable state and federal environmental statutes in its use of the easement area.

SECTION 114. That the consideration for such easement shall be the fair market value but not less than $650.00, and such further consideration and provisions as the State Properties Commission may determine to be in the best interest of the State of Georgia.

GEORGIA LAWS 2009 SESSION

357

SECTION 115. That this grant of easement shall be recorded by the Grantee in the Superior Court of Fulton County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 116. That the authorization in this resolution to grant the above-described easement to Georgia Power Company shall expire three years after the date that this resolution is enacted into law and approved by the State Properties Commission.

SECTION 117. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect the grant of the easement area.

ARTICLE X SECTION 118.

That the State of Georgia is the owner of the hereinafter described real property in Fulton County, and the property is in the custody of the Georgia World Congress Center Authority by virtue of that certain lease from the Department of Economic Development, hereinafter referred to as the "easement area" and that, in all matters relating to the easement area, the State of Georgia is acting by and through its State Properties Commission.

SECTION 119. That the State of Georgia, acting by and through its State Properties Commission, may grant to CNN Center Ventures, or its successors and assigns, a nonexclusive easement for the operation and maintenance of a sewer line in, on, over, under, upon, across, or through the easement area for the purpose ofmaintaining, repairing, replacing, inspecting, and operating a sewer line together with the right of ingress and egress over adjacent land of the State of Georgia as may be reasonably necessary to accomplish the aforesaid purposes. Said easement area is located in Fulton County, Georgia, and is more particularly described as follows:
"That approximately 0.01 of one acre portion and that portion only as shown in yellow on drawing titled CNN Center Ventures, equates to 50 SY (i.e., 446 sq. ft.)= 0.01 acres. and on file in the offices of the State Properties Commission," and may be more particularly described by a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval.

SECTION 120. That the above-described premises shall be used solely for the purpose of installing, maintaining, repairing, replacing, inspecting, and operating said sewer line, and that the

358

GENERAL ACTS AND RESOLUTIONS, VOL. I

Executive Director of the Georgia World Congress Center shall approve the design, construction, and operation plans for the easement area.

SECTION 121. That CNN Center Ventures shall have the right to remove or cause to be removed from said easement area only such trees and bushes as may be reasonably necessary for the proper operation and maintenance of said sewer line.

SECTION 122. That, after CNN Center Ventures has put into use the sewer line for which this easement is granted, a subsequent abandonment of the use thereof shall cause a reversion to the State of Georgia, or its successors and assigns, ofall the rights, title, privileges, powers, and easement granted herein. Upon abandonment, CNN Center Ventures, or its successors and assigns, shall have the option of removing its facilities from the easement area or leaving the same in place, in which event the sewer line shall become the property of the State of Georgia, or its successors and assigns.

SECTION 123. That no title shall be conveyed to CNN Center Ventures and, except as herein specifically granted to CNN Center Ventures, all rights, title, and interest in and to said easement area is reserved in the State of Georgia, which may make any use of said easement area not inconsistent with or detrimental to the rights, privileges, and interest granted to the CNN Center Ventures.

SECTION 124. That if the State of Georgia, acting by and through its State Properties Commission, determines that any or all of the facilities placed on the easement area should be removed or relocated to an alternate site on state owned land in order to avoid interference with the state's use or intended use ofthe easement area, it may grant a substantially equivalent nonexclusive easement to allow placement of the removed or relocated facilities across the alternate site, under such terms and conditions as the State Properties Commission shall in its discretion determine to be in the best interests of the State of Georgia, and CNN Center Ventures shall remove or relocate its facilities to the alternate easement area at its sole cost and expense, unless the State Properties Commission determines that the requested removal or relocation is to be for the sole benefit of the State of Georgia and approves payment by the State of Georgia of all or a portion of such actual cost and expense, not to exceed by 20 percent the amount of a written estimate provided by CNN Center Ventures. Upon written request, the State Properties Commission, in its sole discretion, may permit the relocation ofthe facilities to an alternate site on state owned land so long as the removal and relocation is paid by the party or parties requesting such removal and at no cost and expense to the State of Georgia

GEORGIA LAWS 2009 SESSION

359

If an easement is relocated for any reason, the State Properties Commission is authorized to convey by quitclaim deed the state's interest in the former easement area.

SECTION 125. That this resolution does not affect and is not intended to affect any rights, powers, interest, or liability of the Department of Transportation with respect to the state highway system or of a county with respect to the county road system or of a municipality with respect to the city street system. The grantee shall obtain any and all other required permits from the appropriate governmental agencies as are necessary for its lawful use of the easement area or public highway right of way and comply with all applicable state and federal environmental statutes in its use of the easement area.

SECTION 126. That the easement granted to CNN Center Ventures shall contain such other reasonable terms, conditions, and covenants as the State Properties Commission shall deem in the best interest of the State of Georgia and that the State Properties Commission is authorized to use a more accurate description of the easement area, so long as the description utilized by the State Properties Commission describes the same easement area herein granted.

SECTION 127. That the consideration for such easement shall be fair market value but not less than $650.00 and such further consideration and provisions as the State Properties Commission may determine to be in the best interest of the State of Georgia.

SECTION 128. That this grant of easement shall be recorded by the Grantee in the Superior Court of Fulton County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 129. That the authorization in this resolution to grant the above-described easement to CNN Center Ventures shall expire three years after the date that this resolution is enacted into law and approved by the State Properties Commission.

SECTION 130. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect the grant of the easement area.

360

GENERAL ACTS AND RESOLUTIONS, VOL. I

ARTICLE XI SECTION 131.

That the State of Georgia is the owner of the hereinafter described real property in Fulton County, Georgia, and that the property is in the custody of the State Properties Commission, hereinafter referred to as the "easement area" and that, in all matters relating to the easement area, the State of Georgia is acting by and through its State Properties Commission.

SECTION 132. That the State of Georgia, acting by and through its State Properties Commission, may grant to the City of Atlanta, or its successors and assigns, a nonexclusive easement area above and across the property which is leased to CSX Corporation as successor to the Seaboard System Railroad, Inc., for the operation and maintenance of a new pedestrian path and trail under a tunnel. Said easement area is located near Bolton Road in Atlanta, Fulton County, Georgia, and is more particularly described as follows:
"That 0.052 of an acres air-rights portion and that portion only as shown on that engineered drawing titled Permanent Easement CSX Railroad for the PATH Foundation, Chattahoochee 2 Trail, dated January 21,2009, prepared by Moreland Altobelli Associates Inc., on file in the offices of the State Properties Commission," and may be more particularly described by a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval.

SECTION 133. That the above-described premises shall be used solely for the purpose of installing, maintaining, and operating said pedestrian path and trail, and that the design, construction and operation plans for the easement area must be approved by the CSX Corporation as lessee prior to initiation of construction.

SECTION 134. That the City of Atlanta shall have the right to remove or cause to be removed from said easement area only such trees and bushes as may be reasonably necessary for the proper operation and maintenance of said pedestrian path and trail.

SECTION 135. That, after the City of Atlanta has put into use the pedestrian path and trail this easement is granted for, a subsequent abandonment ofthe use thereof shall cause a reversion to the State of Georgia, or its successors and assigns, of all the rights, title, privileges, powers, and easement granted herein. Upon abandonment, the City of Atlanta, or its successors and assigns, shall have the option of removing its facilities from the easement area or leaving the same in place, in which event the pedestrian path and trail shall become the property of the State of Georgia, or its successors and assigns.

GEORGIA LAWS 2009 SESSION

361

SECTION 136. That no title shall be conveyed to the City of Atlanta and, except as herein specifically granted to the City of Atlanta, a~l righ~s, title, and interest in and to ~aid easement area is reserved in the State of Georg1a, wh1ch may make any use of sa1d easement area not inconsistent with or detrimental to the rights, privileges, and interest granted to the City of
Atlanta.

SECTION 137. That if the State of Georgia, acting by and through its State Properties Commission, determines that any or all of the facilities placed on the easement area should be removed or relocated to an alternate site on state owned land in order to avoid interference with the state's use or intended use ofthe easement area, it may grant a substantially equivalent nonexclusive easement to allow placement of the removed or relocated facilities across the alternate site under such terms and conditions as the State Properties Commission shall in its discretion determine to be in the best interests of the State of Georgia, and the City of Atlanta shall remove or relocate its facilities to the alternate easement area at its sole cost and expense, unless the State Properties Commission determines that the requested removal or relocation is to be for the sole benefit of the State of Georgia and approves payment by the State of Georgia of all or a portion of such actual cost and expense, not to exceed by 20 percent the amount ofa written estimate provided by the City of Atlanta. Upon written request, the State Properties Commission, in its sole discretion, may permit the relocation of the facilities to an alternate site on state owned land so long as the removal and relocation is paid by the party or parties requesting such removal and at no cost and expense to the State of Georgia. If an easement is relocated for any reason, the State Properties Commission is authorized to convey by quitclaim deed the state's interest in the former easement area.

SECTION 138. That the easement granted to the City of Atlanta shall contain such other reasonable terms, conditions, and covenants as the State Properties Commission shall deem in the best interest ofthe State of Georgia and that the State Properties Commission is authorized to use a more accurate description of the easement area, so long as the description utilized by the State Properties Commission describes the same easement area herein granted.

SECTION 139. That this resolution does not affect and is not intended to affect any rights, powers, interest, or liability of the Department of Transportation with respect to the state highway system or of a county with respect to the county road system or of a municipality with respect to the city street system. The grantee shall obtain any and all other required permits from the appropriate governmental agencies as are necessary for its lawful use of the easement area or public highway right of way and comply with all applicable state and federal environmental statutes in its use of the easement area.

362

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 140. That the consideration for such easement shall be $10.00 and such further consideration and provisions as the State Properties Commission may determine to be in the best interest ofthe State of Georgia.

SECTION 141. That this grant of easement shall be recorded by the Grantee in the Superior Court of Fulton County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 142. That the authorization in this resolution to grant the above-described easement to the City of Atlanta shall expire three years after the date that this resolution is enacted into law and approved by the State Properties Commission.

SECTION 143. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect the grant of the easement area.

ARTICLE XII SECTION 144.

That the State of Georgia is the owner of the hereinafter described real property in Grady County, and the property is in the custody of the Technical College System of Georgia, hereinafter referred to as the "easement area" and that, in all matters relating to the easement area, the State of Georgia is acting by and through its State Properties Commission.

SECTION 145. That the State of Georgia, acting by and through its State Properties Commission, may grant to the City of Cairo, or its successors and assigns, a nonexclusive easement for the construction, operation, and maintenance of an electrical power line on, over, under, upon, across, or through the easement area for the purpose of constructing, erecting, installing, maintaining, repairing, replacing, inspecting, and operating an electrical power line together with the right of ingress and egress over adjacent land of the State of Georgia as may be reasonably necessary to accomplish the aforesaid purposes. Said easement area is located in Grady County, Georgia, and is more particularly described as follows:
"Those approximately 0.14 of one acre portions and those portions only as shown for a 20-foot utility easement on a survey prepared by Larry Grogan & Associates, Inc., dated October I, 2003, and last revised December 19, 2007, and on file in the offices of the State Properties Commission," and may be more particularly described by a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval.

GEORGIA LAWS 2009 SESSION

363

SECTION 146. That the above-described premises shall be used solely for the purpose of planning, constructing, erecting, installing, maintaining, repairing, replacing, inspecting, and operating said electrical power line.

SECTION 147. That the City of Cairo shall have the right to remove or cause to be removed from said easement area only such trees and bushes as may be reasonably necessary for the proper construction, operation, and maintenance of said electrical power line.

SECTION 148. That, after the City of Cairo puts into use the electrical power line for which this easement is granted, a subsequent abandonment of the use thereof shall cause a reversion to the State of Georgia, or its successors and assigns, of all the rights, title, privileges, powers, and easement granted herein. Upon abandonment, the City ofCairo, or its successors and assigns, shall have the option of removing its facilities from the easement area or leaving the same in place, in which event the facility shall become the property of the State of Georgia, or its successors and assigns.

SECTION 149. That no title shall be conveyed to the City of Cairo and, except as herein specifically granted to the City of Cairo, all rights, title, and interest in and to said easement area is reserved in the State of Georgia, which may make any use of said easement area not inconsistent with or detrimental to the rights, privileges, and interest granted to the City of Cairo.

SECTION 150. That this resolution does not affect and is not intended to affect any rights, powers, interest, or liability of the Department of Transportation with respect to the state highway system or of a county with respect to the county road system or of a municipality with respect to the city street system. The grantee shall obtain any and all other required permits from the appropriate governmental agencies as are necessary for its lawful use of the easement area or public highway right of way and comply with all applicable state and federal environmental statutes in its use of the easement area.

SECTION 151. That if the State of Georgia, acting by and through its State Properties Commission, determines that any or all of the facilities placed on the easement area should be removed or relocated to an alternate site on state owned land in order to avoid interference with the state's use or intended use ofthe easement area, it may grant a substantially equivalent nonexclusive easement to allow placement of the removed or relocated facilities across the alternate site, under such terms and conditions as the State Properties Commission shall in its discretion

364

GENERAL ACTS AND RESOLUTIONS, VOL. I

determine to be in the best interests of the State of Georgia, and the City of Cairo shall remove or relocate its facilities to the alternate easement area at its sole cost and expense, unless the State Properties Commission determines that the requested removal or relocation is to be for the sole benefit of the State of Georgia and approves payment by the State of Georgia of all or a portion of such actual cost and expense, not to exceed by 20 percent the amount of a written estimate provided by the City of Cairo. Upon written request, the State Properties Commission, in its sole discretion, may permit the relocation of the facilities to an alternate site on state owned land so long as the removal and relocation is paid by the party or parties requesting such removal and at no cost and expense to the State of Georgia. If an easement is relocated for any reason, the State Properties Commission is authorized to convey by quitclaim deed the state's interest in the former easement area.

SECTION 152. That the easement granted to the City of Cairo shall contain such other reasonable terms, conditions, and covenants as the State Properties Commission shall deem in the best interest of the State of Georgia and that the State Properties Commission is authorized to use a more accurate description of the easement area, so long as the description utilized by the State Properties Commission describes the same easement area herein granted.

SECTION 153. That the consideration for such easement shall be $10.00 and such further consideration and provisions as the State Properties Commission may determine to be in the best interest ofthe State of Georgia.

SECTION 154. That this grant of easement shall be recorded by the Grantee in the Superior Court of Grady County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 155. That the authorization in this resolution to grant the above-described easement to the City of Cairo shall expire three years after the date that this resolution is enacted into law and approved by the State Properties Commission.

SECTION 156. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect the grant of the easement area.

GEORGIA LAWS 2009 SESSION

365

ARTICLE XIII SECTION 157.

That the State ofGeorgia is the owner of the hereinafter described real property in Muscogee County, and the property is in the custody of the Department ofDefense, hereinafter referred to as the "easement area" and that, in all matters relating to the easement area, the State of Georgia is acting by and through its State Properties Commission.

SECTION 158. That the State of Georgia, acting by and through its State Properties Commission, may grant to the City of Columbus, or its successors and assigns, a nonexclusive easement for the operation and maintenance of a storm sewer line in, on, over, under, upon, across, or through the easement area for the purpose of maintaining, repairing, replacing, inspecting, and operating a storm sewer line to prevent flooding, together with the right of ingress and egress over adjacent land of the State of Georgia as may be reasonably necessary to accomplish the aforesaid purposes. Said easement area is located in the Musco gee County, Georgia, and is more particularly described as follows:
"That approximately 0.327 of an acre portion and that portion only as shown on a drawing titled Proposed Drainage and Utility Easement, 25th Avenue Storm Sewer Replacement, Columbus, Muscogee County, Georgia, and on file in the offices of the State Properties Commission," and may be more particularly described by a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval.

SECTION 159. That the above-described premises shall be used solely for the purpose of installing, maintaining, repairing, replacing, inspecting, and operating said storm sewer line.

SECTION 160. That the City of Columbus shall have the right to remove or cause to be removed from said easement area only such trees and bushes as may be reasonably necessary for the proper operation and maintenance of said storm sewer line.

SECTION 161. That, after the City of Columbus has put into use the storm sewer line for which this easement is granted, a subsequent abandonment of the use thereof shall cause a reversion to the State of Georgia, or its successors and assigns, of all the rights, title, privileges, powers, and easement granted herein. Upon abandonment, the City of Columbus, or its successors and assigns, shall have the option of removing its facilities from the easement area or leaving the same in place, in which event the storm sewer line shall become the property of the State of Georgia, or its successors and assigns.

366

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 162. That no title shall be conveyed to the City of Columbus and, except as herein specifically granted to the City of Columbus, all rights, title, and interest in and to said easement area is reserved in the State of Georgia, which may make any use of said easement area not inconsistent with or detrimental to the rights, privileges, and interest granted to the City of Columbus.

SECTION 163. That if the State of Georgia, acting by and through its State Properties Commission, determines that any or all of the facilities placed on the easement area should be removed or relocated to an alternate site on state owned land in order to avoid interference with the state's use or intended use ofthe easement area, it may grant a substantially equivalent nonexclusive easement to allow placement of the removed or relocated facilities across the alternate site, under such terms and conditions as the State Properties Commission shall in its discretion determine to be in the best interests of the State of Georgia, and the City of Columbus shall remove or relocate its facilities to the alternate easement area at its sole cost and expense, unless the State Properties Commission determines that the requested removal or relocation is to be for the sole benefit of the State of Georgia and approves payment by the State of Georgia of all or a portion of such actual cost and expense, not to exceed by 20 percent the amount of a written estimate provided by the City of Columbus. Upon written request, the State Properties Commission, in its sole discretion, may permit the relocation ofthe facilities to an alternate site on state owned land so long as the removal and relocation is paid by the party or parties requesting such removal and at no cost and expense to the State of Georgia. If an easement is relocated for any reason, the State Properties Commission is authorized to convey by quitclaim deed the state's interest in the former easement area.

SECTION 164. That this resolution does not affect and is not intended to affect any rights, powers, interest, or liability of the Department of Transportation with respect to the state highway system or of a county with respect to the county road system or of a municipality with respect to the city street system. The grantee shall obtain any and all other required permits from the appropriate governmental agencies as are necessary for its lawful use of the easement area or public highway right of way and comply with all applicable state and federal environmental statutes in its use of the easement area.

SECTION 165. That the easement granted to the City of Columbus shall contain such other reasonable terms, conditions, and covenants as the State Properties Commission shall deem in the best interest of the State of Georgia and that the State Properties Commission is authorized to use a more accurate description of the easement area, so long as the description utilized by the State Properties Commission describes the same easement area herein granted.

GEORGIA LAWS 2009 SESSION

367

SECTION 166. That the consideration for such easement shall be $10.00 and such further consideration and provisions as t~e State Properties Commission may determine to be in the best interest of the State of Georgia.

SECTION 167. That this grant of easement shall be recorded by the Grantee in the Superior Court of Muscogee County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 168. That the authorization in this resolution to grant the above-described easement to the City of Columbus shall expire three years after the date that this resolution is enacted into law and approved by the State Properties Commission.

SECTION 169. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect the grant of the easement area.

ARTICLE XIV SECTION 170.

That all laws or parts of laws in conflict with this resolution are repealed.

Approved April 30, 2009.

EDUCATION -LOCAL BOARD OF EDUCATION; INELIBILITY IF ON SEXUAL OFFENDER REGISTRY.
No. 91 (Senate Bill No. 14).
AN ACT
To amend Code Section 20-2-51 of the Official Code of Georgia Annotated, relating to election of county board of education members, persons ineligible to be members or superintendent, ineligibility for local boards of education, and ineligibility for other offices, 10 as to provide that no person who is on the national or state sex offender registry shall be

368

GENERAL ACTS AND RESOLUTIONS, VOL. I

eligible for election to or service on a local board of education; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Code Section 20-2-51 of the Official Code of Georgia Annotated, relating to election of county board of education members, persons ineligible to be members or superintendent, ineligibility for local boards of education, and ineligibility for other offices, is amended by adding a new subsection to read as follows:
'(e) No person who is on the National Sex Offender Registry or the state sexual offender registry shall be eligible for election to or service on a local board of education.'

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved Apri130, 2009.

RETIREMENT- CODE REVISION; CORRECTIONS.
No. 92 (Senate Bill No. 48).
AN ACT
To amend Title 47 of the Official Code of Georgia Annotated, relating to retirement and pensions, so as to correct typographical, stylistic, and other errors and omissions in Title 47 of the Official Code of Georgia Annotated and in Acts of the General Assembly amending Title 47 of the Official Code of Georgia Annotated; to correct capitalization and spelling in Title 47 of the Official Code of Georgia Annotated; to provide for other matters relative to Title 47 of the Official Code of Georgia Annotated; to provide effective dates; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Title 47 of the Official Code of Georgia Annotated, relating to retirement and pensions, is amended in:

GEORGIA LAWS 2009 SESSION

369

(l) Code Section 47-1-20, relating to definitions in regard to restrictions and prohibitions on membership in public retirement or pension systems, by replacing "public related" with "public employment related" and by replacing "an employment related" with "a public employment related" in paragraph (1.2). (2) Code Section 47-1-25, relating to the determination of the economic impact of public employment related crime, by replacing "an employment related" with "a public employment related" and by replacing "the employment related" with "the public employment related". (3) Code Section 47-2-355, relating to disability retirement and periodic medical examination and review, by replacing "who become disabled" with "who becomes disabled" in paragraph (1) of subsection (a). (4) Code Section 47-3-127.1, relating to the employment of a retired teacher as a full-time teacher or in other capacities, by replacing "or counselor and such person" with "or counselor, and such person" in paragraph (1) and by replacing "improvement specialist" with "improvement specialist," in paragraph (2) of subsection (b). (S) Code Section 47-5-2, relating to definitions in regard to the general provisions of the Georgia Municipal Employees Benefit System, by replacing "Regional development centers created" with "Regional commissions created" in subparagraph (D) of paragraph (9). (6) Code Section 47-17-1, relating to definitions in regard to the Peace Officers' Annuity and Benefit Fund, by replacing "Department of Motor Vehicle Safety" with "Department of Driver Services" and by replacing "commissioner of motor vehicle safety" with "commissioner of driver services" in division (5)(I)(v). (7) Code Section 47-20-83, relating to certificated or uncertificated forms of investment and real estate investments in regard to the "Public Retirement Systems Investment Authority Law," by replacing the period with a semicolon at the end of paragraph (1) of subsection (a).

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval; except that the amendment to Code Section 47-5-2 made by paragraph (5) of Section 1 of this Act shall become effective on July 1, 2009.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April30, 2009.

370

GENERAL ACTS AND RESOLUTIONS, VOL. I

INSURANCE- LIFE SETTLEMENTS ACT.

No. 93 (Senate Bill No. 61).

AN ACT

To amend Chapter 59 of Title 33 of the Official Code of Georgia Annotated, relating to life settlements, so as to provide a short title; to provide for definitions; to provide for license requirements for providers and registration requirements for life settlement brokers; to provide suspension, revocation, and refusal to renew of such licenses; to provide for requirements for life settlement contracts; to provide for certain reporting requirements; to provide for certain privacy requirements; to provide for the examination of licensees; to provide for the authority of the Commissioner ofinsurance to investigate persons involved in the life settlement business and in suspected fraudulent practices; to provide for restrictions on advertising; to provide for certain disclosures; to provide for requirements and procedures for life settlement contracts; to authorize the Commissioner of Insurance to promulgate rules and regulations; to provide for prohibited acts concerning life settlement contracts; to provide for fraud prevention and control; to provide for certain immunities from liability; to provide for confidentiality; to provide for injunctions and other civil remedies; to provide for criminal sanctions and penalties; to provide that violations of the chapter shall constitute unfair trade practices; to provide for related matters; to provide for effective dates and applicability; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Chapter 59 ofTitle 33 ofthe Official Code of Georgia Annotated, relating to life settlements, is amended by revising the chapter as follows:

'CHAPTER 59

33-59-l. This chapter shall be known and may be cited as the 'Life Settlements Act.'

33-59-2. As used in this chapter, the term:
(I) ' Advertisement' means any written, electronic, or printed communication or any communication by means of recorded telephone messages or transmitted on radio, television, the Internet, or similar communications media, including film strips, motion pictures, and videos, published, disseminated, circulated, or placed directly before the

GEORGIA LAWS 2009 SESSION

371

public in this state for the purpose of creating an interest in or inducing a person to purchase or sell, assign, devise, bequest, or transfer the death benefit or ownership of a life insurance policy or an interest in a life insurance policy pursuant to a life settlement
contract. (2) 'Business of life settlements' means an activity involved in, but not limited to, offering to enter into, soliciting, negotiating, procuring, effectuating, monitoring, or tracking of life settlement contracts. (3) 'Chronically ill' means:
(A) Being unable to perform at least two activities of daily living such as eating, toileting, transferring, bathing, dressing, or continence; (B) Requiring substantial supervision to protect the individual from threats to health and safety due to severe cognitive impairment; or (C) Having a level of disability similar to that described in subparagraph (A) of this paragraph as determined by the United States Secretary ofHealth and Human Services. (4) 'Financing entity' means an underwriter, placement agent, lender, purchaser of securities, purchaser of a policy or certificate from a provider, credit enhancer, or any entity that has a direct ownership in a policy or certificate that is the subject of a life settlement contract, but: (A) Whose principal activity related to the transaction is providing funds to effect the life settlement contract or purchase of one or more policies; and (B) Who has an agreement in writing with one or more providers to finance the acquisition of life settlement contracts. 'Financing entity' does not include a nonaccredited investor or purchaser. (5) 'Financing transaction' means a transaction in which a licensed provider obtains financing from a financing entity including, without limitation, any secured or unsecured financing, any securitization transaction, or any securities offering which either is registered or exempt from registration under federal and state securities law. (6) 'Fraudulent life settlement act' includes: (A) Acts or omissions committed by any person who, knowingly and with intent to defraud, for the purpose of depriving another ofproperty or for pecuniary gain, engages in acts, or permits its employees or its agents to engage in acts, including, but not limited to:
(i) Presenting, causing to be presented, or preparing with knowledge and belief that it will be presented to or by a provider, premium finance lender, life settlement broker, insurer, insurance producer, or any other person, false material information, or concealing material information, as part of, in support of, or concerning a fact material to one or more of the following:
(I) An application for the issuance of a life settlement contract or insurance policy; (II) The underwriting of a life settlement contract or insurance policy; (Ill) A claim for payment or benefit pursuant to a life settlement contract or insurance policy;

372

GENERAL ACTS AND RESOLUTIONS, VOL. I

(IV) Premiums paid on an insurance policy; (V) Payments and changes in ownership or beneficiary made in accordance with the terms of a life settlement contract or insurance policy; (VI) The reinstatement or conversion of an insurance policy; (VII) The solicitation, offer to enter into, or effectuation of a life settlement contract or insurance policy; (VIII) The issuance of written evidence of life settlement contracts or insurance; (IX) Any application for or the existence of or any payments related to a loan secured directly or indirectly by an interest in a life insurance policy; or (X) Stranger originated life insurance as defined in paragraph (24) of this Code section; (ii) Failing to disclose to the insurer where the request for such disclosure has been asked for by the insurer that the prospective insured has undergone a life expectancy evaluation by any person or entity other than the insurer or its authorized representatives in connection with the issuance of the policy; (iii) Employing any device, scheme, or artifice to defraud in the business of life settlements; or (iv) In the solicitation, application, or issuance of a life insurance policy, employing any device, scheme, or artifice in violation of state insurable interest laws; and (B) In the furtherance of a fraud or to prevent the detection of a fraud, acts or omissions of any person, its employees, or its agents acting with such person's permission, to: (i) Remove, conceal, alter, destroy, or sequester from the Commissioner the assets or records of a licensee or other person engaged in the business of life settlements; (ii) Misrepresent or conceal the financial condition of a licensee, financing entity, insurer, or other person; (iii) Transact the business of life settlements in violation of laws requiring a license, certificate of authority, or other legal authority for the transaction of the business of life settlements; (iv) File with the Commissioner or the chief insurance regulatory official of another jurisdiction a document containing false information or otherwise conceal information about a material fact from the Commissioner; (v) Engage in embezzlement, theft, misappropriation, or conversion of moneys, funds, premiums, credits, or other property of a provider, insurer, insured, insurance policy owner, or any other person engaged in the business of life settlements or insurance; (vi) Knowingly and with intent to defraud, enter into, broker, or otherwise deal in a life settlement contract, the subject of which is a life insurance policy that was obtained by presenting false information concerning any fact material to the policy or by concealing, for the purpose of misleading another, information concerning any

GEORGIA LAWS 2009 SESSION

373

fact material to the policy, where the owner or the owner's agent intended to defraud the policy's issuer; (vii) Attempt to commit, assist, aid, or abet in the commission of, or conspiracy to commit, the acts or omissions specified in this paragraph; or (viii) Misrepresent the state of residence of an owner to be a state or jurisdiction that does not have a law substantially similar to this chapter for the purpose of evading or avoiding the provisions of this chapter. (7) 'Insured' means the person covered under the policy being considered for sale in a life settlement contract. (8) 'Life expectancy' means the arithmetic mean of the number of months the insured under the life insurance policy to be settled can be expected to live as determined by professionally competent individuals considering medical records and appropriate experiential data. (9) 'Life insurance producer' means any person licensed in this state as a resident or nonresident insurance producer who has received qualification or authority for life insurance coverage or a life line of coverage pursuant to Chapter 23 of this title. (10) 'Life settlement broker' means a person who, on behalf of an owner and for a fee, commission, or other valuable consideration, offers or attempts to negotiate life settlement contracts between an owner and providers. A life settlement broker represents only the owner and owes a fiduciary duty to the owner to act according to the owner's instructions, and in the best interest of the owner, notwithstanding the manner in which the life settlement broker is compensated. A life settlement broker does not include an attorney, certified public accountant, or financial planner retained in the type of practice customarily performed in their professional capacity to represent the owner whose compensation is not paid directly or indirectly by the provider or any other person, except the owner. (ll)(A) 'Life settlement contract' means a written agreement entered into between a provider and an owner establishing the terms under which compensation or any thing of value will be paid, which compensation or thing of value is less than the expected death benefit ofthe insurance policy or certificate, in return for the owner's assignment, transfer, sale, devise, or bequest of the death benefit or any portion of an insurance policy or certificate of insurance for compensation; provided, however, that the minimum value for a life settlement contract shall be greater than a cash surrender value or accelerated death benefit available at the time of an application for a life settlement contract. 'Life settlement contract' also includes the transfer for compensation or value of ownership or beneficial interest in a trust or other entity that owns such policy if the trust or other entity was formed or availed of for the principal purpose of acquiring one or more life insurance contracts, which life insurance contract insures the life of a person residing in this state. (B) 'Life settlement contract' also includes:

374

GENERAL ACTS AND RESOLUTIONS, VOL. I

(i) A written agreement for a loan or other lending transaction, secured primarily by an individual or group life insurance policy; and (ii) A premium finance loan made for a policy on or before the date of issuance ofthe policy where:
(I) The loan proceeds are not used solely to pay premiums for the policy and any costs or expenses incurred by the lender or the borrower in connection with the financing; (II) The owner receives on the date of the premium finance loan a guarantee ofthe future life settlement value of the policy; or (III) The owner agrees on the date of the premium finance loan to sell the policy or any portion of its death benefit on any date following the issuance of the policy. (C) Life settlement contract does not include: (i) A policy loan by a life insurance company pursuant to the terms of the life insurance policy or accelerated death provisions contained in the life insurance policy, whether issued with the original policy or as a rider; (ii) A premium finance loan, as defined in paragraph (18) ofthis Code section, or any loan made by a bank or other licensed financial institution, provided that neither default on such loan nor the transfer of the policy in connection with such default is pursuant to an agreement or understanding with any other person for the purpose of evading regulation under this chapter; (iii) A collateral assignment of a life insurance policy by an owner; (iv) A loan made by a lender that does not violate Chapter 22 of this title, provided such loan is not described in this paragraph as being included in the definition ofa life settlement contract and is not otherwise within the definition of life settlement contract; (v) An agreement where all the parties are closely related to the insured by blood or law or have a lawful substantial economic interest in the continued life, health, and bodily safety of the person insured or are trusts established primarily for the benefit of such parties; (vi) Any designation, consent, or agreement by an insured who is an employee of an employer in connection with the purchase by the employer, or trust established by the employer, of life insurance on the life of the employee; (vii) A bona fide business succession planning arrangement between: (I) One or more shareholders in a corporation or between a corporation and one or more of its shareholders or one or more trust established by its shareholders; (II) One or more partners in a partnership or between a partnership and one or more of its partners or one or more trust established by its partners; or (III) One or more members in a limited liability company or between a limited liability company and one or more of its members or one or more trust established by its members;

GEORGIA LAWS 2009 SESSION

375

(viii) An agreement entered into by a service recipient, or a trust established by the service recipient, and a service provider or a trust established by the service provider, who performs significant services for the service recipient's trade or business; or (ix) Any other contract, transaction, or arrangement from the definition of life settlement contract that the Commissioner determines is not of the type intended to be regulated by this chapter. (12) 'Net death benefit' means the amount of the life insurance policy or certificate to be settled less any outstanding debts or liens. (13) 'Owner' means the owner of a life insurance policy or a certificate holder under a group policy, with or without a terminal illness, who enters or seeks to enter into a life settlement contract. For the purposes of this chapter, an owner shall not be limited to an owner of a life insurance policy or a certificate holder under a group policy that insures the life of an individual with a terminal or chronic illness or condition except where specifically addressed. 'Owner' does not include: (A) Any provider or other licensee under this chapter; (B) A qualified institutional buyer as defined in Rule 144A of the federal Securities Act of 1933, as amended; (C) A financing entity; (D) A special purpose entity; or (E) A related provider trust. (14) 'Patient identifying information' means an insured's address, telephone number, facsimile number, e-mail address, photograph or likeness, employer, employment status, social security number, or any other information that is likely to lead to the identification of the insured. (15) 'Person' means any natural person or a legal entity, including, but not limited to, a partnership, limited liability company, association, trust, or corporation. (16) 'Policy' means an individual or group policy, group certificate, contract, or arrangement of life insurance owned by a resident of this state, regardless of whether delivered or issued for delivery in this state. (17) 'Premium finance loan' is a loan made primarily for the purposes of making premium payments on a life insurance policy, which loan is secured by an interest in such life insurance policy. (18) 'Provider' means a person, other than an owner, who enters into or effectuates a life settlement contract with an owner. A provider does not include: (A) Any bank, savings bank, savings and loan association, or credit union; (B) A licensed lending institution or creditor or secured party pursuant to a premium finance loan agreement which takes an assignment of a life insurance policy or certificate issued pursuant to a group life insurance policy as collateral for a loan; (C) The insurer of a life insurance policy or rider to the extent ofproviding accelerated death benefits or riders under this title or cash surrender value;

376

GENERAL ACTS AND RESOLUTIONS, VOL. I

(D) Any natural person who enters into or effectuates no more than one agreement in a calendar year for the transfer of a life insurance policy or certificate issued pursuant to a group life insurance policy for compensation or any thing of value less than the expected death benefit payable under the policy; (E) A purchaser; (F) Any authorized or eligible insurer that provides stop-loss coverage to a provider, purchaser, financing entity, special purpose entity, or related provider trust; (G) A financing entity; (H) A special purpose entity; (I) A related provider trust; (J) A life settlement broker; or (K) An accredited investor or qualified institutional buyer as defined in, respectively, Regulation D, Rule 501, or Rule 144A of the federal Securities Act of 1933, as amended, who purchases a life settlement policy from a provider. (19) 'Purchased policy' means a policy or group certificate that has been acquired by a provider pursuant to a life settlement contract. (20) 'Purchaser' means a person who pays compensation or any thing of value as consideration for a beneficial interest in a trust which is vested with, or for the assignment, transfer, or sale of, an ownership or other interest in a life insurance policy or a certificate issued pursuant to a group life insurance policy which has been the subject of a life settlement contract. (21) 'Related provider trust' means a titling trust or other trust established by a licensed provider or a financing entity for the sole purpose of holding the ownership or beneficial interest in purchased policies in connection with a financing transaction. In order to qualify as a related provider trust, the trust must have a written agreement with the licensed provider under which the licensed provider is responsible for ensuring compliance with all statutory and regulatory requirements and under which the trust agrees to make all records and files relating to life settlement transactions available to the department as ifthose records and files were maintained directly by the licensed provider. (22) 'Settled policy' means a life insurance policy or certificate that has been acquired by a provider pursuant to a life settlement contract. (23) 'Special purpose entity' means a corporation, partnership, trust, limited liability company, or other legal entity formed solely to provide either directly or indirectly access to institutional capital markets for a financing entity or provider; or in connection with a transaction in which the securities in the special purpose entity are acquired by the owner or by a qualified institutional buyer as defined in Rule 144 promulgated under the federal Securities Act of 1933, as amended, or the securities pay a fixed rate of return commensurate with established asset-backed institutional capital markets. (24) 'Stranger originated life insurance' is a series of acts or a practice to initiate a life insurance policy for the benefit of a third-party investor who, at the time of policy origination, has no insurable interest in the insured. Stranger originated life insurance

GEORGIA LAWS 2009 SESSION

377

acts or practices include, but are not limited to, cases in which life insurance is purchased with resources or guarantees from or through a person or entity who, at the time ofpolicy inception, could not lawfully initiate the policy himself or herself or itself, and where, at the time of inception, there is an arrangement or agreement to directly or indirectly transfer the ownership of the policy or the policy benefits to a third party. Trusts that are created to give the appearance of insurable interest and are used to initiate policies for investors violate insurable interest laws and the prohibition against wagering on life. Stranger originated life insurance arrangements do not include those practices set forth in subparagraph (C) of paragraph (11) of this Code section. (25) 'Terminally ill' means having an illness or sickness that can reasonably be expected to result in death in 24 months or less.

33-59-3. (a) No person, wherever located, shall act as a provider or life settlement broker with an owner or multiple owners who are residents of this state without first having obtained a license or acknowledgment of registration from the Commissioner. If there is more than one owner on a single policy and the owners are residents of different states, the life settlement contract shall be governed by the law of the state in which the owner having the largest percentage ownership resides or, if the owners hold equal ownership, the state of residence of one owner agreed upon in writing by all owners. (b) Application for a provider license or life settlement broker registration shall be made to the Commissioner by the applicant on a form prescribed by the Commissioner and the application shall be accompanied by a fee in an amount established by the Commissioner; provided, however, that the license and renewal fees for a provider license shall be reasonable and that the registration and renewal fees for a life settlement broker registration shall not exceed those established for an insurance producer, as such fees are otherwise provided for in this title. (c) A life insurance producer who has been duly licensed as a resident insurance producer with a life line of authority in this state or his or her home state for at least one year and is licensed as a nonresident producer in this state shall be deemed to meet the licensing and registration requirements of this Code section and shall be permitted to operate as a life settlement broker. (d) Not later than 30 days from the first day of operating as a life settlement broker, the life insurance producer shall notify the Commissioner that he or she is acting as a life settlement broker on a form prescribed by the Commissioner and shall pay any applicable fee to be determined by the Commissioner. Notification shall include an acknowledgment by the life insurance producer that he or she will operate as a life settlement broker in accordance with this chapter. (e) The insurer that issued the policy that is the subject of a life settlement contract shall not be responsible for any act or omission of a life settlement broker, provider, or purchaser arising out of or in connection with the life settlement transaction unless the insurer

378

GENERAL ACTS AND RESOLUTIONS, VOL. I

receives compensation for the placement of a life settlement contract from the provider, purchaser, or life settlement broker in connection with the life settlement contract. (t) A person licensed as an attorney, certified public accountant, or financial planner accredited by a nationally recognized accreditation agency who is retained to represent the owner and whose compensation is not paid directly or indirectly by the provider or purchaser may negotiate life settlement contracts on behalf of the owner without having to obtain a license as a life settlement broker. (g) Licenses may be renewed every year on May l upon payment of the periodic renewal fee. Failure to pay the fee within the terms prescribed shall result in the automatic revocation of the license requiring periodic renewal. (h) The term of a provider license shall be equal to that of a domestic stock life insurance company and the term of a life settlement broker registration shall be equal to that of an insurance producer license. Licenses or registrations requiring periodic renewal may be renewed on their anniversary date upon payment of the periodic renewal fee as specified in subsection (b) of this Code section. Failure to pay the fees on or before the renewal date shall result in expiration of the license or registration. (i) The applicant shall provide such information as the Commissioner may require on forms prepared by the Commissioner. The Commissioner shall have the authority, at any time, to require such applicant to fully disclose the identity of its stockholders, except stockholders owning fewer than l 0 percent of the shares of an applicant whose shares are publicly traded, partners, officers, and employees, and the Commissioner may, in the exercise of the Commissioner's sole discretion, refuse to issue such a license in the name of any person if not satisfied that any officer, employee, stockholder, or partner thereof who may materially influence the applicant's conduct meets the standards of this chapter. U) A license issued to a partnership, corporation, or other entity authorizes all members, officers, and designated employees to act as a licensee under the license if those persons are named in the application and any supplements to the application. (k) Upon the filing of an application and the payment of the license fee, the Commissioner shall make an investigation of each applicant and may issue a license if the Commissioner finds that the applicant:
(l) If a provider, has provided a detailed plan of operation; (2) Is competent and trustworthy and intends to transact its business in good faith; (3) Has a good business reputation and has had experience, training, or education so as to be qualified in the business for which the license is applied; (4) If the applicant is a legal entity, is formed or organized pursuant to the laws of this state or is a foreign legal entity authorized to transact business in this state or provides a certificate of good standing from the state of its domicile; and (5) Has provided to the Commissioner an antifraud plan that meets the requirements of Code Section 33-59-14 and includes:

GEORGIA LAWS 2009 SESSION

379

(A) A description of the procedures for detecting and investigating possible fraudulent acts and procedures for resolving material inconsistencies between medical records and insurance applications; (B) A description of the procedures for reporting fraudulent insurance acts to the Commissioner; (C) A description of the plan for antifraud education and training of its underwriters and other personnel; and (D) A written description or chart outlining the arrangement of the antifraud personnel who are responsible for the investigation and reporting ofpossible fraudulent insurance acts and investigating unresolved material inconsistencies between medical records and insurance applications. (I) The Commissioner shall not issue any license to any nonresident applicant unless a written designation of an agent for service of process is filed and maintained with the Commissioner or unless the applicant has filed with the Commissioner the applicant's written irrevocable consent that any action against the applicant may be commenced against the applicant by service of process on the Commissioner. (m) The Commissioner shall not issue a license to any applicant unless the applicant has an adequate net worth as prescribed by order, rule, or regulation. (n) Each licensee shall file with the Commissioner on or before the first day of May of each year an annual statement containing such information as the Commissioner by rule may prescribe. (o) A provider shall not use any person to perform the functions of a life settlement broker as defined in paragraph (I 0) of Code Section 33-59-2 unless the person holds a current, valid registration as a life settlement broker and as provided in this Code section. (p) A life settlement broker shall not use any person to perform the functions of a provider as defined in paragraph (18) of Code Section 33-59-2 unless such person holds a current, valid license as a provider and as provided in this Code section. (q) A provider and a life settlement broker shall provide to the Commissioner new or revised information about officers, 10 percent or more stockholders, partners, directors, members, and designated employees within 30 days of any change. (r) An individual registered as a life settlement broker shall complete on a biennial basis 15 hours of training related to life settlements and life settlement transactions as required by the Commissioner; provided, however, that a life insurance producer who is operating as a life settlement broker pursuant to this Code section shall not be subject to the requirements of this subsection. Any person failing to meet the requirements of this subsection shall be subject to the penalties imposed by the Commissioner.

33-59-4. (a) The Commissioner may suspend, revoke, or refuse to renew the license of any licensee if the Commissioner finds that:
(1) There was any material misrepresentation in the application for the license;

380

GENERAL ACTS AND RESOLUTIONS, VOL. I

(2) The licensee or any officer, partner, member, or director has been guilty of fraudulent or dishonest practices, is subject to a final administrative action, or is otherwise shown to be untrustworthy or incompetent to act as a licensee; (3) The provider demonstrates a pattern ofunreasonably withholding payments to policy owners; (4) The licensee no longer meets the requirements for initial licensure; (5) The licensee or any officer, partner, member, or director has been convicted of a felony or any misdemeanor of which criminal fraud is an element; or the licensee has pleaded guilty or nolo contendere to any felony or any misdemeanor of which criminal fraud or moral turpitude is an element regardless ofwhether a judgment of conviction has been entered by the court; (6) The provider has entered into any life settlement contract using a form that has not been approved pursuant to this chapter; (7) The provider has failed to honor contractual obligations set out in a life settlement contract; (8) The provider has assigned, transferred, or pledged a settled policy to a person other than a provider licensed in this state, purchaser, accredited investor or qualified institutional buyer as defined, respectively, in Regulation D, Rule 501, or Rule 144A of the federal Securities Act of 1933, as amended, financing entity, special purpose entity, or related provider trust; (9) The licensee or any officer, partner, member, or key management personnel has violated any of the provisions of this chapter; or (10) The provider has failed to maintain an adequate net worth. (b) Before the Commissioner denies a license application or suspends, revokes, or refuses to renew the license of any licensee under this chapter, the Commissioner shall conduct a hearing in accordance with Chapter 2 of this title.

33-59-5. (a) No person may use any form of life settlement contract in this state unless it has been filed with and approved, if required, by the Commissioner in a manner that conforms with the filing procedures and any time restrictions or deeming provisions, if any, for life insurance forms, policies, and contracts. (b) No insurer may, as a condition of responding to a request for verification of coverage or in connection with the transfer of a policy pursuant to a life settlement contract, require that the owner, insured, provider, or life settlement broker sign any form, disclosure, consent, waiver, or acknowledgment that has not been expressly approved by the Commissioner for use in connection with life settlement contracts in this state. (c) A person shall not use a life settlement contract form or provide to an owner a disclosure statement form in this state unless first filed with and approved by the Commissioner. The Commissioner shall disapprove a life settlement contract form or disclosure statement form if, in the Commissioner's opinion, the contract or provisions

GEORGIA LAWS 2009 SESSION

381

contained therein fail to meet the requirements of Code Sections 33-59-8, 33-59-9, 33-59-11, and 33-59-15 or are unreasonable, contrary to the interests of the public, or otherwise misleading or unfair to the owner. At the Commissioner's discretion, the Commissioner may require the submission of advertising material.

33-59-6. (a)(l) Each provider shall file with the Commissioner on or before May 1 of each year an annual statement containing such information as the Commissioner may prescribe by rule or regulation in addition to any other requirements for any policy settled within five years ofpolicy issuance. In addition to any other requirements, the annual statement shall specify the total number, aggregate face amount, and life settlement proceeds of policies settled during the immediately preceding calendar year, together with a breakdown ofthe information by policy issue year. The annual statement shall also include the names of the insurance companies whose policies have been settled and the life settlement brokers that have settled said policies. (2) Such information shall be limited to only those transactions where the insured is a resident of this state and shall not include individual transaction data regarding the business oflife settlements or information that there is a reasonable basis to believe could be used to identify the owner or the insured. (3) Every provider that willfully fails to file an annual statement as required in this Code section or willfully fails to reply within 30 days to a written inquiry by the Commissioner in connection therewith, shall, in addition to other penalties provided by this chapter, be subject, upon due notice and opportunity to be heard, to a penalty of up to $250.00 per day of delay, not to exceed $25,000.00 in the aggregate, for each such failure.
(b) Except as otherwise allowed or required by law, a provider, life settlement broker, insurance company, insurance producer, information bureau, rating agency or company, or any other person with actual knowledge of an insured's identity shall not disclose the identity of an insured or information that there is a reasonable basis to believe could be used to identify the insured or the insured's financial or medical information to any other person unless the disclosure:
(1) Is necessary to effect a life settlement contract between the owner and a provider and the owner and insured have provided prior written consent to the disclosure; (2) Is necessary to effectuate the sale of life settlement contracts, or interests therein, as investments, provided that the sale is conducted in accordance with applicable state and federal securities law and provided further that the owner and the insured have both provided prior written consent to the disclosure; (3) Is provided in response to an investigation or examination by the Commissioner or any other governmental officer or agency or pursuant to the requirements of Code Section 33-59-7;

382

GENERAL ACTS AND RESOLUTIONS, VOL. I

(4) Is a term or condition to the transfer of a policy by one provider to another provider, in which case the receiving provider shall be required to comply with the confidentiality requirements of this subsection; (5) Is necessary to allow the provider or life settlement broker or its authorized representatives to make contacts for the purpose of determining health status. For the purposes of this paragraph, the term 'authorized representative' shall not include any person who has or may have any financial interest in the settlement contract other than a provider, registered life settlement broker, financing entity, related provider trust, or special purpose entity. A provider or life settlement broker shall require its authorized representative to agree in writing to adhere to the privacy provisions of this chapter; or (6) Is required to purchase stop-loss coverage. (c) Nonpublic personal information solicited or obtained in connection with a proposed or actual life settlement contract shall be subject to the provisions applicable to financial institutions under the federal Gramm-Leach-Bliley Act, P.L. 106-102 (1999), and all other state and federal laws relating to confidentiality of nonpublic personal information.

33-59-7. (a) The Commissioner may, when the Commissioner deems it reasonably necessary to protect the interests of the public, examine the business and affairs of any licensee or applicant for a license. The Commissioner may order any licensee or applicant to produce any records, books, files, or other information reasonably necessary to ascertain whether such licensee or applicant is acting or has acted in violation of the law or otherwise contrary to the interests of the public. The expenses incurred in conducting any examination shall be paid by the licensee or applicant. (b) In lieu of an examination under this chapter of any foreign or alien licensee licensed in this state, the Commissioner may, at the Commissioner's discretion, accept an examination report on the licensee as prepared by the Commissioner for the licensee's state of domicile or port-of-entry state. (c) Names of and individual identification data for all owners and insureds shall be considered private and confidential information and shall not be disclosed by the Commissioner unless required by law. (d) Records of all consummated transactions and life settlement contracts shall be maintained by the provider for three years after the death of the insured and shall be available to the Commissioner for inspection during reasonable business hours.
(e)(!) Upon determining that an examination should be conducted, the Commissioner shall issue an examination warrant appointing one or more examiners to perform the examination and instructing them as to the scope of the examination. In conducting the examination, the examiner shall use methods common to the examination of any life settlement licensee and should use those guidelines and procedures set forth in an examiners' handbook adopted by a national organization. The Commissioner may also employ such other guidelines as the Commissioner may deem appropriate.

GEORGIA LAWS 2009 SESSION

383

(2) Every licensee or person from whom information is sought, its officers, directors, and agents shall provide to the examiners timely, convenient, and free access at all reasonable hours at its offices to all books, records, accounts, papers, documents, assets, and computer or other recordings relating to the property, assets, business, and affairs of the licensee being examined. The officers, directors, employees, and agents of the licensee or person shall facilitate the examination and aid in the examination so far as it is in their power to do so. The refusal of a licensee, by its officers, directors, employees, or agents, to submit to examination or to comply with any reasonable written request of the Commissioner shall be grounds for suspension or refusal of or nonrenewal of any license or authority held by the licensee to engage in the life settlement business or other business subject to the Commissioner's jurisdiction. Any proceedings for suspension, revocation, or refusal of any license or authority shall be conducted pursuant to Chapter 2 of this title. (3) The Commissioner shall have the power to issue subpoenas, to administer oaths, and to examine under oath any person as to any matter pertinent to the examination. Upon the failure or refusal of a person to obey a subpoena, the Commissioner may petition a court of competent jurisdiction and, upon proper showing, the court may enter an order compelling the witness to appear and testify or produce documentary evidence. (4) When making an examination under this Code section, the Commissioner may retain attorneys, appraisers, independent actuaries, independent certified public accountants, or other professionals and specialists as examiners, the reasonable cost of which shall be borne by the licensee that is the subject of the examination. (5) Nothing contained in this Code section shall be construed to limit the Commissioner's authority to terminate or suspend an examination in order to pursue other legal or regulatory action pursuant to the insurance laws of this state. Findings of fact and conclusions made pursuant to any examination shall be prima-facie evidence in any legal or regulatory action. (6) Nothing contained in this Code section shall be construed to limit the Commissioner's authority to use and, if appropriate, to make public any final or preliminary examination report, any examiner or licensee work papers or other documents, or any other information discovered or developed during the course of any examination in the furtherance of any legal or regulatory action which the Commissioner may, in his or her sole discretion, deem appropriate. (f)(l) Examination reports shall be composed of (A) only facts appearing upon the books, records, or other documents of the licensee, its agents, or other persons examined or as ascertained from the testimony of the licensee's officers or agents or other persons examined concerning the licensee's affairs and (B) such conclusions and recommendations as the examiners find reasonably warranted from the facts. (2) No later than 60 days following completion of the examination, the examiner in charge shall file with the Commissioner a verified written report of examination under oath. Upon receipt of the verified report, the Commissioner shall transmit the report to

384

GENERAL ACTS AND RESOLUTIONS, VOL. I

the licensee examined, together with a notice that shall afford the licensee examined a reasonable opportunity ofnot more than 30 days to make a written submission or rebuttal with respect to any matters contained in the examination report and which shall become part of the report or to request a hearing on any matter in dispute if the Commissioner deems such written submission or rebuttal comments appropriate and consistent with the findings of the examination. (3) In the event the Commissioner determines that regulatory action is appropriate as a result of an examination, the Commissioner may initiate any proceedings or actions provided by law. (g)( I) Names and individual identification data for all owners, purchasers, and insureds shall be considered private and confidential information and shall not be disclosed by the Commissioner unless the disclosure is to another regulator or is required by law. (2) Except as otherwise provided in this chapter, all examination reports, working papers, recorded information, documents, and copies thereof produced by, obtained by, or disclosed to the Commissioner or any other person in the course of an examination made under this chapter or in the course of analysis or investigation by the Commissioner of the financial condition or market conduct of a licensee shall be confidential by law and privileged, shall not be subject to the provisions of Article 4 of Chapter 18 of Title 50, shall not be subject to subpoena, and shall not be subject to discovery or admissible in evidence in any private civil action.
The Commissioner is authorized to use the documents, materials, or other information in the furtherance of any regulatory or legal action brought as part of the Commissioner's official duties. The licensee being examined may have access to all documents used to make the report except documents and work papers that the Commissioner has deemed privileged. (h)( I) An examiner shall not be appointed by the Commissioner if the examiner, either directly or indirectly, has a conflict of interest or is affiliated with the management of or owns a pecuniary interest in any person subject to examination under this chapter. This subsection shall not be construed to preclude automatically an examiner from being: (A) An owner; (B) An insured in a life settlement contract or insurance policy; or (C) A beneficiary in an insurance policy that is proposed for a life settlement contract. (2) Notwithstanding the requirements of this subsection, the Commissioner may retain from time to time, on an individual basis, qualified actuaries, certified public accountants, or other similar individuals who are independently practicing their professions even though these persons may from time to time be similarly employed or retained by persons subject to examination under this chapter. (i)(l) No cause of action shall arise nor shall any liability be imposed against the Commissioner, the Commissioner's authorized representatives, or any examiner appointed by the Commissioner for any statements made or conduct performed in good faith while carrying out the provisions of this chapter.

GEORGIA LAWS 2009 SESSION

385

(2) No cause of action shall arise nor shall any liability be imposed against any person for the act of communicating or delivering information or data to the Commissioner or the Commissioner's authorized representative or examiner pursuant to an examination made under this chapter if the act of communication or delivery was performed in good faith and without fraudulent intent or the intent to deceive. This paragraph shall not abrogate or modify in any way any common law or statutory privilege or immunity heretofore enjoyed by any person identified in paragraph (1) of this subsection. (3) A person identified in paragraph (1) or (2) of this subsection shall be entitled to an award of attorney's fees and costs if he or she is the prevailing party in a civil cause of action for libel, slander, or any other relevant tort arising out of activities in carrying out the provisions of this chapter and the party bringing the action was not substantially justified in doing so. For purposes of this subsection, a proceeding is substantially justified if it had a reasonable basis in law or fact at the time that it was initiated. (j) The Commissioner may investigate suspected fraudulent life settlement acts and persons engaged in the business of life settlements.

33-59-8. (a) A registered life settlement broker or licensed provider who is registered or licensed pursuant to this chapter may conduct or participate in advertisements within this state. Such advertisements shall comply with all advertising and marketing laws of this state and rules and regulations promulgated by the Commissioner that are applicable to life insurers or to life settlement brokers and providers licensed pursuant to this chapter. (b) Advertisements shall be accurate, truthful, and not misleading in fact or by implication. (c) No person or trust shall:
(1) Directly or indirectly, market, advertise, solicit, or otherwise promote the purchase of a policy for the sole purpose of or with a primary emphasis on settling the policy; or (2) Use the words 'free,' 'no cost,' or words of similar import in the marketing, advertising, soliciting, or otherwise promoting of the purchase of a policy.

33-59-9. (a) The provider or broker shall provide in writing, in a separate document that is signed by the owner, the following information no later than the date of the application for a life settlement contract:
(1) The fact that possible alternatives to life settlement contracts exist, including, but not limited to, accelerated benefits offered by the issuer of the life insurance policy; (2) The fact that some or all of the proceeds of a life settlement contract may be taxable and that assistance should be sought from a professional tax adviser; (3) The fact that the proceeds from a life settlement contract could be subject to the claims of creditors;

386

GENERAL ACTS AND RESOLUTIONS, VOL. I

(4) The fact that receipt of proceeds from a life settlement contract may adversely affect the recipient's eligibility for public assistance or other government benefits or entitlements and that advice should be obtained from the appropriate agencies; (5) The fact that the owner has a right to terminate a life settlement contract within 15 days of the date it is executed by all parties and the owner has received the disclosures contained in this Code section. Rescission, if exercised by the owner, is effective only if both notice of the rescission is given and the owner repays all proceeds and any premiums, loans, and loan interest paid on account of the provider within the rescission period. If the insured dies during the rescission period, the contract shall be deemed to have been rescinded subject to repayment by the owner or the owner's estate of all proceeds and any premiums, loans, and loan interest to the provider; (6) The fact that proceeds will be sent to the owner within three business days after the provider has received the insurer or group administrator's acknowledgment that ownership of the policy or interest in the certificate has been transferred and the beneficiary has been designated in accordance with the terms of the life settlement contract; (7) The fact that entering into a life settlement contract may cause other rights or benefits, including conversion rights and waiver ofpremium benefits that may exist under the policy or certificate of a group policy, to be forfeited by the owner and that assistance should be sought from a professional financial adviser; (8) The method of calculating the compensation paid or to be paid to the life settlement broker or any other person acting for the owner in connection with the transaction, where the term 'compensation' includes any thing of value paid or given; (9) The date by which the funds will be available to the owner and the transmitter of the funds; (1 0) The fact that the Commissioner shall require delivery of a buyer's guide or a similar consumer advisory package in the form prescribed by the Commissioner to owners during the solicitation process; (II) The disclosure document shall contain the following language:
'All medical, financial, or personal information solicited or obtained by a provider or life settlement broker about an insured, including the insured's identity or the identity of family members, a spouse, or a significant other, may be disclosed as necessary to effect the life settlement contract between the owner and provider. If you are asked to provide this information, you will be asked to consent to the disclosure. The information may be provided to someone who buys the policy or provides funds for the purchase. You may be asked to renew your permission to share information every two years.'; (12) The fact that the Commissioner shall require providers and life settlement brokers to print separate signed fraud warnings on their applications and on their life settlement contracts as follows:

GEORGIA LAWS 2009 SESSION

387

'Any person who knowingly presents false information in an application for insurance or life settlement contract is guilty of a crime and may be subject to fines and confinement in prison.'; (13) The fact that the insured may be contacted by either the provider or life settlement broker or its authorized representative for the purpose of determining the insured's health status or to verify the insured's address. This contact is limited to once every three months if the insured has a life expectancy of more than one year and no more than once per month if the insured has a life expectancy of one year or less; (14) The affiliation, if any, between the provider and the issuer of the insurance policy to be settled; (15) That a life settlement broker represents exclusively the owner, and not the insurer or the provider or any other person, and owes a fiduciary duty to the owner, including a duty to act according to the owner's instructions and in the best interest of the owner; (16) The document shall include the name, address, and telephone number of the provider; (17) The name, business address, and telephone number of the independent third-party escrow agent, and the fact that the owner may inspect or receive copies of the relevant escrow or trust agreements or documents; and (18) The fact that a change of ownership could in the future limit the insured's ability to purchase future insurance on the insured's life because there is a limit to how much coverage insurers will issue on one life. (b) The written disclosures shall be conspicuously displayed in any life settlement contract furnished to the owner by a provider including any affiliations or contractual arrangements between the provider and the life settlement broker. (c) A life settlement broker shall provide the owner and the provider with at least the following disclosures no later than the date the life settlement contract is signed by all parties. The disclosures shall be conspicuously displayed in the life settlement contract or in a separate document signed by the owner and provide the following information: (1) The name, business address, and telephone number of the life settlement broker; (2) A full, complete, and accurate description of all the offers, counter-offers, acceptances, and rejections relating to the proposed life settlement contract; (3) A written disclosure at the inception ofthe brokerage arrangement of any affiliations or contractual arrangements between the life settlement broker and any person making an offer in connection with the proposed life settlement contracts; (4) The name of each life settlement broker who receives compensation and the amount of compensation received by that life settlement broker, which compensation includes any thing of value paid or given to the life settlement broker in connection with the life settlement contract; and (5) A complete reconciliation of the gross offer or bid by the provider to the net amount of proceeds or value to be received by the owner. For the purpose of this paragraph,

388

GENERAL ACTS AND RESOLUTIONS, VOL. I

'gross offer or bid' means the total amount or value offered by the provider for the purchase of one or more life insurance policies, inclusive of commissions and fees. (d) The failure to provide the disclosures or rights described in this Code section shall be deemed an unfair trade practice pursuant to Code Section 33-59-17.

33-59-10. (a) In addition to other questions an insurance carrier may lawfully pose to a life insurance applicant, insurance carriers may inquire in the application for insurance whether the proposed owner intends to pay premiums with the assistance offinancing from a lender that will use the policy as collateral to support the financing. (b) If, as described in paragraph (11) of Code Section 33-59-2, the loan provides funds which can be used for a purpose other than paying for the premiums, costs, and expenses associated with obtaining and maintaining the life insurance policy and loan, the application shall be rejected as a violation of the prohibited practices in Code Section 33-59-13. (c) If the financing does not violate Code Section 33-59-13 in this manner, the insurance carrier:
(1) May make disclosures, including, but not limited to, disclosures such as the following, to the applicant and the insured, either on the application or an amendment to the application to be completed no later than the delivery of the policy:
'If you have entered into a loan arrangement where the policy is used as collateral and the policy changes ownership at some point in the future in satisfaction of the loan, the following may be true: (A) A change of ownership could lead to a stranger owning an interest in the insured's life; (B) A change of ownership could in the future limit your ability to purchase future insurance on the insured's life because there is a limit to how much coverage insurers will issue on one life; (C) Should there be a change of ownership and you wish to obtain more insurance coverage on the insured's life in the future, the insured's higher issue age, a change in health status, or other factors may reduce the ability to obtain coverage or may result in significantly higher premiums; and (D) You should consult a professional adviser since a change in ownership in satisfaction of the loan may result in tax consequences to the owner, depending on the structure of the loan.'; and (2) May require certifications, such as the following, from the applicant and the insured: '(A) I have not entered into any agreement or arrangement providing for the future sale of this life insurance policy; (B) My loan arrangement for this policy provides funds sufficient to pay for some or all of the premiums, costs, and expenses associated with obtaining and maintaining my

GEORGIA LAWS 2009 SESSION

389

life insurance policy, but I have not entered into any agreement by which I am to receive consideration in exchange for procuring this policy; and (C) The borrower has an insurable interest in the insured.'

33-59-11. (a) A provider entering into a life settlement contract, wherein the insured is terminally or chronically ill, shall first obtain:
(I) If the owner is the insured, a written statement from a licensed attending physician that the owner is of sound mind and under no constraint or undue influence to enter into a settlement contract; and (2) A document in which the insured consents to the release of his or her medical records to a provider, life settlement broker, or insurance producer and, if the policy was issued less than two years from the date of application for a settlement contract, to the insurance company that issued the policy. (b) The insurer shall respond to a request for verification of coverage submitted by a provider, life settlement broker, or life insurance producer not later than 30 calendar days after the date the request is received. The request for verification of coverage must be made on a form approved by the Commissioner. The insurer shall complete and issue the verification of coverage or indicate in which respects it is unable to respond. In its response, the insurer shall indicate whether, based on the medical evidence and documents provided, the insurer intends to pursue an investigation at this time regarding the validity of the insurance contract. (c) Before or at the time of execution of the settlement contract, the provider shall obtain a witnessed document in which the owner consents to the settlement contract, represents that the owner has a full and complete understanding of the settlement contract, represents that the owner has a full and complete understanding of the benefits of the policy, acknowledges that the owner is entering into the settlement contract freely and voluntarily, and, for persons with a terminal or chronic illness or condition, acknowledges that the insured has a terminal or chronic illness and that the terminal or chronic illness or condition was diagnosed after the policy was issued. (d) The insurer shall not unreasonably delay effecting change of ownership or beneficiary with any life settlement contract lawfully entered into in this state or with a resident of this state. (e) If a life settlement broker or life insurance producer performs any of these activities required of the provider, the provider is deemed to have fulfilled the requirements of this Code section. (t) Ifa life settlement broker performs those verification of coverage activities required of the provider, the provider is deemed to have fulfilled the requirements of subsection (a) of Code Section 33-5-9. (g) Within 20 days after an owner executes the life settlement contract, the provider shall give written notice to the insurer that issued that insurance policy that the policy has

390

GENERAL ACTS AND RESOLUTIONS, VOL. I

become subject to a life settlement contract. The notice shall be accompanied by the documents required by Code Section 33-59-10. (h) All medical information solicited or obtained by any licensee shall be subject to the applicable provision of state law relating to confidentiality of medical information if not otherwise provided in this chapter. (i) All life settlement contracts entered into in this state shall provide that the owner may rescind the contract on or before 15 days after the date it is executed by all parties thereto. Rescission, if exercised by the owner, is effective only if both notice of the rescission is given and the owner repays all proceeds and any premiums, loans, and loan interest paid on account of the provider within the rescission period. If the insured dies during the rescission period, the contract shall be deemed to have been rescinded subject to repayment by the owner or the owner's estate of all proceeds and any premiums, loans, and loan interest to the provider. U) Within three business days after receipt from the owner of documents to effect the transfer of the insurance policy, the provider shall pay the proceeds of the settlement to an escrow or trust account managed by a trustee or escrow agent in a state or federally chartered financial institution pending acknowledgment of the transfer by issuer of the policy. The trustee or escrow agent shall be required to transfer the proceeds due to the owner within three business days of acknowledgment of the transfer from the insurer. (k) Failure to tender the life settlement contract proceeds to the owner by the date disclosed to the owner renders the contract voidable by the owner for lack of consideration until the time the proceeds are tendered to and accepted by the owner. A failure to give written notice of the right of rescission hereunder shall toll the right of rescission until 30 days after the written notice of the right of rescission has been given. (I) Any fee paid by a provider, party, individual, or an owner to a life settlement broker in exchange for services provided to the owner pertaining to a life settlement contract shall be computed as a percentage of the offer obtained, not the face value of the policy. Nothing in this Code section shall be construed to prohibit a life settlement broker from reducing such life settlement broker's fee below this percentage ifthe life settlement broker so chooses. (m) The life settlement broker shall disclose to the owner any thing of value paid or given to a life settlement broker which relates to a life settlement contract. (n) No person at any time prior to, or at the time of, the application for, or issuance of, a policy, or during a two-year period commencing with the date of issuance of the policy, shall enter into a life settlement contract regardless of the date the compensation is to be provided and regardless of the date the assignment, transfer, sale, devise, bequest, or surrender of the policy is to occur. This prohibition shall not apply if the owner certifies to the provider that:
(I) The policy was issued upon the owner's exercise of conversion rights arising out of a group or individual policy, provided that the total of the time covered under the conversion policy plus the time covered under the prior policy is at least 24 months. The

GEORGIA LAWS 2009 SESSION

391

time covered under a group policy shall be calculated without regard to a change in insurance carriers, provided that the coverage has been continuous and under the same group sponsorship; or (2) The owner submits independent evidence to the provider that one or more of the following conditions have been met within the two-year period:
(A) The owner or insured is terminally or chronically ill; (B) The owner or insured disposes of his or her ownership interests in a closely held corporation, pursuant to the terms of a buyout or other similar agreement in effect at the time the insurance policy was initially issued; (C) The owner's spouse dies; (D) The owner divorces his or her spouse; (E) The owner retires from full-time employment; (F) The owner becomes physically or mentally disabled and a physician determines that the disability prevents the owner from maintaining full-time employment; or (G) A final order, judgment, or decree is entered by a court of competent jurisdiction, on the application of a creditor of the owner, adjudicating the owner bankrupt or insolvent, or approving a petition seeking reorganization of the owner or appointing a receiver, trustee, or liquidator to all or a substantial part of the owner's assets. Copies of the independent evidence required by paragraph (2) of this subsection shall be submitted to the insurer when the provider submits a request to the insurer for verification of coverage. The copies shall be accompanied by a letter of attestation from the provider that the copies are true and correct copies of the documents received by the provider. Nothing in this Code section shall prohibit an insurer from exercising its right to contest the validity of any policy. If the provider submits to the insurer a copy of independent evidence provided for in paragraph (2) of this subsection when the provider submits a request to the insurer to effect the transfer of the policy to the provider, the copy is deemed to establish that the settlement contract satisfies the requirements of this subsection.

33-59-12. (a) The Commissioner may promulgate regulations implementing this chapter and regulating the activities and relationships ofproviders, life settlement brokers, insurers, and their agents subject to statutory limitations on administrative rule making.
(b)(1) If there is more than one owner on a single policy, and the owners are residents of different states, the life settlement contract shall be governed by the law of the state in which the owner having the largest percentage ownership resides or, ifthe owners hold equal ownership, the state of residence of one owner agreed upon in writing by all of the owners. The law of the state of the insured shall govern in the event that equal owners fail to agree in writing upon a state of residence for jurisdictional purposes. (2) A provider from this state who enters into a life settlement contract with an owner who is a resident of another state that has enacted statutes or adopted regulations governing life settlement contracts shall be governed in the effectuation of that life

392

GENERAL ACTS AND RESOLUTIONS, VOL. I

settlement contract by the statutes and regulations of the owner's state of residence. Ifthe state in which the owner is a resident has not enacted statutes or regulations governing life settlement contracts, the provider shall give the owner notice that neither state regulates the transaction upon which he or she is entering. For transactions in those states, however, the provider is to maintain all records required if the transactions were executed in the state of residence. The forms used in those states need not be approved by the Commissioner. (3) If there is a conflict in the laws that apply to an owner and a purchaser in any individual transaction, the laws of the state that apply to the owner shall take precedence and the provider shall comply with those laws.

33-59-13. (a) It shall be unlawful for any person to:
(1) Enter into a life settlement contract if such person knows or reasonably should have known that the life insurance policy was obtained by means of a false, deceptive, or misleading application for such policy; (2) Engage in any transaction, practice, or course of business if such person knows or reasonably should have known that the intent was to avoid the notice requirements ofthis Code section; (3) Engage in any fraudulent act or practice in connection with any transaction relating to any settlement involving an owner who is a resident of this state; (4) Issue, solicit, market, or otherwise promote the purchase of an insurance policy for the purpose of or with an emphasis on settling the policy; (5) Enter into a premium finance agreement with any person or agency, or any person affiliated with such person or agency, pursuant to which such person shall receive any proceeds, fees, or other consideration, directly or indirectly, from the policy or owner of the policy or any other person with respect to the premium finance agreement or any settlement contract or other transaction related to such policy that are in addition to the amounts required to pay the principal, interest, service charges, and any cost or expense incurred by the lender or borrower in connection with the premium finance agreement or subsequent sale of such agreement; provided, further, that any payments, charges, fees, or other amounts in addition to the amounts required to pay the principal, interest, service charges, and any cost or expense incurred by the lender or borrower in connection with the premium finance agreement shall be remitted to the original owner of the policy or to his or her estate if he or she is not living at the time of the determination of the overpayment; (6) With respect to any settlement contract or insurance policy and a life settlement broker, knowingly solicit an offer from, effectuate a life settlement contract with, or make a sale to any provider, financing entity, or related provider trust that is controlling, controlled by, or under common control with such life settlement broker unless such

GEORGIA LAWS 2009 SESSION

393

relationship is disclosed to the owner in accordance with paragraph (3) of subsection (c) of Code Section 33-59-9; (7) With respect to any life settlement contract or insurance policy and a provider, knowingly enter into a life settlement contract with an owner, if, in connection with such life settlement contract, any thing of value will be paid to a life settlement broker that is controlling, controlled by, or under common control with such provider or the financing entity or related provider trust that is involved in such settlement contract unless such relationship is disclosed to the owner in accordance with paragraph (3) of subsection (c) of Code Section 33-59-9; (8) With respect to a provider, enter into a life settlement contract unless the life settlement promotional, advertisement, and marketing materials, as may be prescribed by rule or regulation, have been filed with the Commissioner. In no event shall any marketing materials expressly reference that the insurance is 'free' for any period of time. The inclusion of any reference in the marketing materials that would cause an owner to reasonably believe that the insurance is free for any period of time shall be considered a violation of this chapter; or (9) With respect to any life insurance producer, insurance company, life settlement broker, or provider, make any statement or representation to the applicant or policyholder in connection with the sale or financing of a life insurance policy to the effect that the insurance is free or without cost to the policyholder for any period of time unless provided in the policy. (b) A violation of this Code section shall be deemed a fraudulent life settlement act.

33-59-14. (a)( I) It shall be illegal for a person to commit a fraudulent life settlement act. (2) A person shall not knowingly and intentionally interfere with the enforcement of the provisions of this chapter or investigations of suspected or actual violations of this chapter. (3) A person in the business of life settlements shall not knowingly or intentionally permit any person convicted of a felony involving dishonesty or breach of trust to participate in the business of life settlements. (b)( I) Life settlement contracts and applications for life settlement contracts, regardless of the form of transmission, shall contain the following statement or a substantially similar statement: 'Any person who knowingly presents false information in an application for insurance or life settlement contract is guilty of a crime and may be subject to fines or confinement in prison.' (2) The lack of a statement as required in paragraph (I) of this subsection does not constitute a defense in any prosecution for a fraudulent life settlement act. (c)( I) Any person engaged in the business of life settlements having know ledge or a reasonable belief that a fraudulent life settlement act is being, will be, or has been

394

GENERAL ACTS AND RESOLUTIONS, VOL. I

committed shall provide to the Commissioner the information required by, and in a manner prescribed by, the Commissioner. (2) Any other person having knowledge or a reasonable belief that a fraudulent life settlement act is being, will be, or has been committed may provide to the Commissioner the information required by, and in a manner prescribed by, the Commissioner. (d)(l) No civil liability shall be imposed on and no cause of action shall arise from a person's furnishing information concerning suspected, anticipated, or completed fraudulent life settlement acts or suspected or completed fraudulent insurance acts if the information is provided to or received from:
(A) The Commissioner or the Commissioner's employees, agents, or representatives; (B) Federal, state, or local law enforcement or regulatory officials or their employees, agents, or representatives; (C) A person involved in the prevention and detection of fraudulent life settlement acts or that person's agents, employees, or representatives; (D) Any regulatory body or their employees, agents, or representatives overseeing life insurance or life settlements, securities, or investment fraud; (E) The life insurer that issued the life insurance policy covering the life of the insured; or (F) The licensee and any agents, employees, or representatives. (2) Paragraph (1) of this subsection shall not apply to statements made with actual malice. In an action brought against a person for filing a report or furnishing other information concerning a fraudulent life settlement act or a fraudulent insurance act, the party bringing the action shall plead specifically any allegation that paragraph (1) of this subsection does not apply because the person filing the report or furnishing the information did so with actual malice. (3) A person identified in paragraph (1) of this subsection shall be entitled to an award of attorney's fees and costs if he or she is the prevailing party in a civil cause of action for libel, slander, or any other relevant tort arising out of activities in carrying out the provisions ofthis chapter and the party bringing the action was not substantially justified in doing so. For purposes of this paragraph, a proceeding is substantially justified if it had a reasonable basis in law or fact at the time that it was initiated. (4) This subsection does not abrogate or modify common law or statutory privileges or immunities enjoyed by a person described in paragraph (1) of this subsection. (e)( 1) The documents and evidence provided pursuant to subsection (d) of this Code section or obtained by the Commissioner in an investigation of suspected or actual fraudulent life settlement acts shall be privileged and confidential and shall not be a public record and shall not be subject to discovery or subpoena in a civil or criminal action. (2) Paragraph (1) of this subsection shall not prohibit release by the Commissioner of documents and evidence obtained in an investigation ofsuspected or actual fraudulent life settlement acts:

GEORGIA LAWS 2009 SESSION

395

(A) In administrative or judicial proceedings to enforce laws administered by the Commissioner; (B) To federal, state, or local law enforcement or regulatory agencies, to an organization established for the purpose of detecting and preventing fraudulent life settlement acts, or to the National Association oflnsurance Commissioners; or (C) At the discretion of the Commissioner, to a person in the business of life settlements that is aggrieved by a fraudulent life settlement act. (3) Release of documents and evidence under paragraph (2) of this subsection does not abrogate or modify the privilege granted in paragraph (1) of this subsection. (f) This chapter shall not: (1) Preempt the authority or relieve the duty of other law enforcement or regulatory agencies to investigate, examine, and prosecute suspected violations of law; (2) Preempt, supersede, or limit any provision of any state securities law or any rule, order, or notice issued thereunder; (3) Prevent or prohibit a person from disclosing voluntarily information concerning life settlement fraud to a law enforcement or regulatory agency other than the department; or (4) Limit the powers granted elsewhere by the laws of this state to the Commissioner or an insurance fraud unit to investigate and examine possible violations of law and to take appropriate action against wrongdoers. (g)(l) Providers and life settlement brokers shall have in place antifraud initiatives reasonably calculated to detect, prosecute, and prevent fraudulent life settlement acts. At the discretion of the Commissioner, the Commissioner may order, or a licensee may request and the Commissioner may grant, such modifications of the following required initiatives as necessary to ensure an effective antifraud program. The modifications may be more or less restrictive than the required initiatives so long as the modifications may reasonably be expected to accomplish the purpose of this subsection. Antifraud initiatives shall include: (A) Fraud investigators, who may be provider or life settlement broker employees or independent contractors; and (B) An antifraud plan, which shall be submitted to the Commissioner. The antifraud plan shall include, but not be limited to:
(i) A description ofthe procedures for detecting and investigating possible fraudulent life settlement acts and procedures for resolving material inconsistencies between medical records and insurance applications; (ii) A description of the procedures for reporting possible fraudulent life settlement acts to the Commissioner; (iii) A description of the plan for antifraud education and training ofunderwriters and other personnel; and (iv) A description or chart outlining the organizational arrangement of the antifraud personnel who are responsible for the investigation and reporting of possible

396

GENERAL ACTS AND RESOLUTIONS, VOL. I

fraudulent life settlement acts and investigating unresolved material inconsistencies between medical records and insurance applications. (2) Antifraud plans submitted to the Commissioner shall be privileged and confidential and shall not be a public record and shall not be subject to discovery or subpoena in a civil or criminal action.

33-59-15. (a) In addition to the penalties and other enforcement provisions of this chapter, if any person violates this chapter or any rule or regulation implementing this chapter, the Commissioner may seek an injunction in a court of competent jurisdiction in the county where the person resides or has a principal place of business and may apply for temporary and permanent orders as the Commissioner determines necessary to restrain the person from further committing the violation. (b) Any person damaged by the acts of any other person in violation of this chapter or any rule or regulation implementing this chapter may bring a civil action for damages against the person committing the violation in a court of competent jurisdiction. (c) The Commissioner may issue a cease and desist order upon a person who violates any provision of this chapter, any rule, regulation, or order adopted by the Commissioner, or any written agreement entered into with the Commissioner, in accordance with Chapter 2 of this title. (d) When the Commissioner finds that such an action presents an immediate danger to the public and requires an immediate final order, he or she may issue an emergency cease and desist order reciting with particularity the facts underlying such findings. The emergency cease and desist order shall become effective immediately upon service of a copy of the order on the respondent and shall remain effective for 90 days. If the department begins nonemergency cease and desist proceedings under subsection (a) of this Code section, the emergency cease and desist order shall remain effective, absent an order by an appellate court of competent jurisdiction pursuant to Chapter 13 of Title 50. In the event of a willful violation of this chapter, the trial court may award statutory damages in addition to actual damages in an additional amount up to three times the actual damage award. The provisions of this chapter may not be waived by agreement. No choice of law provision may be utilized to prevent the application of this chapter to any settlement in which a party to the settlement is a resident of this state.

33-59-16. (a) It is a violation of this chapter for any person, provider, life settlement broker, or any other party related to the business of life settlements to commit a fraudulent life settlement act. (b) For criminal liability purposes, a person that commits a fraudulent life settlement act shall be guilty of committing insurance fraud and shall be guilty of a felony and, upon

GEORGIA LAWS 2009 SESSION

397

conviction, shall be punished by imprisonment for not less than two nor more than ten years, or by a fine of not more than $10,000.00, or both. (c) The Commissioner shall be empowered to levy a civil penalty:
(1) Not exceeding $1,000.00 for each and every act in violation of this chapter or, if the person knew or reasonably should have known the acts that he or she committed were in violation of this chapter, the monetary penalty provided for in this subsection may be increased to an amount up to $5,000.00 for each and every act in violation; and (2) The amount of the claim for each violation upon any person, including those persons and their employees licensed pursuant to this chapter, who is found to have committed a fraudulent life settlement act or violated any other provision of this chapter. (d) The license of a person licensed under this chapter that commits a fraudulent life settlement act shall be revoked for a period of at least one year.

33-59-17. A violation ofthis chapter shall be considered an unfair trade practice pursuant to state law and subject to the penalties provided by state law.

33-59-18. (a) A provider lawfully transacting business in this state prior to July 1, 2009, may continue to do so pending approval or disapproval of that person's application for a license so long as the application is filed with the Commissioner not later than 30 days after publication by the Commissioner of an application form and instructions for licensure of providers. If the publication of the application form and instructions is prior to July 1, 2009, then the filing of the application shall not be later than August 1, 2009. During the time that such an application is pending with the Commissioner, the applicant may use any form of life settlement contract that has been filed with the Commissioner pending approval thereof, provided that such form is otherwise in compliance with the provisions of this chapter. Any person transacting business in this state under this provision shall be obligated to comply with all other requirements of this chapter. (b) A person who has lawfully negotiated life settlement contracts between any owner residing in this state and one or more providers for at least one year immediately prior to July 1, 2009, may continue to do so pending approval or disapproval of that person's application for a license so long as the application is filed with the Commissioner not later than 30 days after publication by the Commissioner of an application form and instructions for registration of life settlement brokers. If the publication of the application form and instructions is prior July 1, 2009, then the filing of the application shall not be later than August 1, 2009. Any person transacting business in this state under this provision shall be obligated to comply with all other requirements of this chapter.'

398

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 2. For purposes ofthe promulgation ofrules and regulations by the Commissioner oflnsurance, this Act shall become effective upon its approval by the Governor or upon its becoming law without such approval. For all other purposes, this Act shall become effective on July 1, 2009.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved April 30, 2009.

RETIREMENT- EMPLOYEES', LEGISLATIVE, AND JUDICIAL RETIREMENT SYSTEMS; GROUP TERM LIFE INSURANCE; NONENTITLEMENT.
No. 94 (Senate Bill No. 177).
AN ACT
To amend Title 47 of the Official Code of Georgia Annotated, relating to retirement and pensions, so as to provide that appellate court judges who become members of the Employees' Retirement System of Georgia, persons who become members of the Georgia Legislative Retirement System, and persons who become members of the Georgia Judicial Retirement System on or after July 1, 2009, shall not be entitled to certain group term life insurance benefits; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Title 47 of the Official Code of Georgia Annotated, relating to retirement and pensions, is amended by revising subsection (a) of Code Section 47-2-162, relating to eligibility of persons who are members of the General Assembly during or after January 1, 1962, for survivors benefits, contributions for such coverage, and right to decline coverage, as follows:
'(a) Beginning in January, 1962, current and future members of the General Assembly shall make contributions to the retirement system for the limited purpose of providing survivors benefits under Code Sections 47-2-128 and 47-2-129, provided that any member of the General Assembly may reject such coverage, in which case no contributions shall be made by him or her; provided, further, that the provisions of this Code section shall not

GEORGIA LAWS 2009 SESSION

399

apply to any person who becomes or again becomes a member of the General Assembly on or after July 1, 2009 .'

SECTION 2. Said title is further amended by revising Code Section 47-2-163, relating to group term life insurance for members and former members of the General Assembly and contributions, as
follows: '47-2-163. Any other provisions of this chapter to the contrary notwithstanding, the board of trustees is authorized by rules or regulations to provide for group term life insurance protection for members and former members of the General Assembly; provided, however, that the provisions of this Code section shall not be applicable to persons who become or again become members of the General Assembly on or after July 1, 2009. The board of trustees may contract for such coverage with the State Employees' Assurance Department pursuant to the provisions of Chapter 19 of this title. The board of trustees shall determine the amount of such coverage and the employee contribution that shall be made for such coverage by the members of the General Assembly. The board of trustees shall also determine the employer contribution necessary for such group term life insurance protection for members of the General Assembly. Such employer contribution shall be paid from funds appropriated or available to the legislative branch of the state government. The employee and employer contributions shall be paid into the survivors benefit fund provided for in subsection (c) of Code Section 47-2-128.'

SECTION 3. Said title is further amended by revising subsection (i) of Code Section 47-2-244, relating to optional benefits available to appellate court judges, notice of election of benefits, eligibility for benefits, disability benefits, and survivors benefits, as follows:
'(i) Survivors benefits shall be available to appellate courtjudges at prevailing contribution rates and subject to provisions of law and regulations of the board of trustees; provided, however, that no person who becomes or again becomes subject to the provisions of this Code section on or after July 1, 2009, shall be entitled to such survivors benefits.'

SECTION 4. Said title is further amended by revising subsection (b) of Code Section 47-23-29, relating to group term life insurance benefits for members ofthe Georgia Judicial Retirement System, as follows:
'(b) Pursuant to the provisions of this Code section and rules and regulations adopted for such purpose, the board oftrustees may provide for survivors benefits for members, former members, and retired members of the retirement system; provided, however, that the provisions of this Code section shall apply only to persons who are active members of this retirement system on or after July 1, 2002; provided, further, that no person who becomes

400

GENERAL ACTS AND RESOLUTIONS, VOL. I

or again becomes a member of this retirement system on or after July I, 2009, shall be entitled to survivors benefits under this Code section.'

SECTION 5. All laws and parts of laws in conflict with this Act are repealed.

Approved April30, 2009.

ALZHEIMER'S DISEASE AND OTHER DEMENTIAS TASK FORCE.
No. 95 (Senate Resolution No. 257).
A RESOLUTION
Creating the Alzheimer's Disease and Other Dementias Task Force; and for other purposes.
WHEREAS, Alzheimer's disease is a slow, progressive disorder of the brain that results in loss of memory and other cognitive function and, eventually, results in death; and
WHEREAS, because Alzheimer's is accompanied by memory loss, poor judgment, changes in personality and behavior, and a tendency to wander, individuals with this disease are at increased risk for accidental injury, getting lost, and being abused, neglected and exploited; and
WHEREAS, research shows that one in ten people over the age of 65 and almost one in every two people over the age of 85 have Alzheimer's disease or a related dementia; given Georgia's population, that means that approximately 200,000 Georgians suffer from Alzheimer's disease or a related dementia; and
WHEREAS, the number of persons with Alzheimer's disease is expected to increase exponentially due to the aging of the baby boomers; and
WHEREAS, Alzheimer's disease takes an enormous toll on loving family members, with an estimated one in four Georgians acting as caregivers for each individual with the disease; and
WHEREAS, caregivers for individuals with Alzheimer's watch closely the deleterious effects of the disease and often suffer more stress, depression, and health problems than caregivers of people with other illnesses; and

GEORGIA LAWS 2009 SESSION

401

WHEREAS, there is an increasing number of individuals developing younger-onset Alzheimer's disease, a form of the disease occurring prior to age 65, when individuals are in their 30's, 40's, 50's, or early 60's; and

WHEREAS, younger-onset Alzheimer's disease can be particularly difficult on family dynamics and economics due to the early age of disease onset; and

WHEREAS, no surveillance currently exists in Georgia to track the number of persons who have been diagnosed with Alzheimer's disease; and

WHEREAS, there is an economic impact ofAlzheimer's disease upon the business, medical, and caregiver communities of Georgia; and

WHEREAS, the State of Georgia needs to assess the current and future impact of Alzheimer's disease on Georgians and state systems, programs, and services to assure an integrated, comprehensive, coordinated, and up-to-date strategy to address the needs of this growing segment of Georgia's population.

NOW, THEREFORE, BE IT RESOLVED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Effective July I, 2009, the Alzheimer's Disease and Other Dementias Task Force is established for the purpose of studying the issues and making recommendations in accordance with this resolution.

SECTION 2. (a) The task force shall be composed of 16 members to be appointed as follows:
(I) A representative from the research community, appointed by the Governor; (2) A representative from an association advocating for research on Alzheimer's disease, appointed by the Governor; (3) A licensed physician, appointed by the Governor; (4) An individual with Alzheimer's disease, appointed by the Governor; (5) A representative from the Department of Human Resources, appointed by the Governor; (6) A caregiver of a patient with Alzheimer's disease, appointed by the Governor; (7) Two members of the Georgia House of Representatives, appointed by the Speaker of the House of Representatives; (8) Two members of the Georgia Senate, appointed by the President of the Senate; (9) Three members who are stakeholders, including one member who has early memory loss, appointed by the Speaker of the House of Representatives; and

402

GENERAL ACTS AND RESOLUTIONS, VOL. I

(1 0) Three members who are stakeholders, including one member who has early memory loss, appointed by the President of the Senate. (b) The Governor shall designate a member to serve as chairperson of the task force. The task force shall meet at the call of the chairperson. (c) Members of the task force shall serve without compensation.

SECTION 3. The task force shall study and make recommendations on:
(1) Surveillance of persons with Alzheimer's disease for purposes of having proper estimates of the number of Georgians with Alzheimer's disease; (2) Safety and well-being of persons with Alzheimer's disease (e.g., driving assessment and emergency placement for persons who are found or abandoned); (3) Dementia care practice recommendations to ensure quality care in long-term settings; (4) Future need for dementia related services as well as funding for programs for individuals with dementias, including those with younger-onset; and (5) Implementation of the following action steps to improve public health surveillance:
(A) Add the Communicable Disease Center's optional module on caregiving, including questions about memory and other cognitive problems of the care recipient to Georgia's 2009 Behavioral Risk Factors Surveillance System; (B) Add the additional questions on memory and thinking to Georgia's 2009 Behavioral Risk Factors Surveillance System; (C) Plan for simple and cross-tabular analysis of the data generated in this state and for its wide public dissemination; and (D) Add the module on memory and other cognitive problems that is being developed by the Communicable Disease Center's expert panel to Georgia's 20 I 0 Behavioral Risk Factors Surveillance System.

SECTION 4. The task force shall present an interim report to the Governor, the President of the Senate, the Speaker of the House of Representatives, the Commissioner of the Georgia Department of Human Resources, and the Commissioner of the Georgia Department of Community Health, by January I, 2010, with a final report due on June 30, 2010. The task force shall stand abolished on June 30,2010.

BE IT FURTHER RESOLVED that the Secretary of the Senate is authorized and directed to transmit appropriate copies of this resolution to the public and the press.

Approved Apri130, 2009.

GEORGIA LAWS 2009 SESSION

403

STATE PROPERTY; CONVEYANCES EASEMENTS; LEASES.

No. 96 (Senate Resolution No. 294).

A RESOLUTION

Authorizing the conveyance of certain state owned real property located in Baldwin and Wilkinson Counties, Georgia; authorizing the conveyance of any state interest in certain real property in Baldwin County, Georgia; authorizing the conveyance of certain state owned real property in Bibb County, Georgia; authorizing the conveyance of certain state owned real property located in Camden County, Georgia; authorizing the conveyance of an easement of certain state owned real property located in Cherokee County, Georgia; authorizing the conveyance of certain state owned real property located in Clarke County, Georgia; authorizing the conveyance of an easement in certain state owned real property located in Clarke County, Georgia; authorizing the conveyance of certain state owned real property located in Emanuel County, Georgia; authorizing the conveyance of certain state owned real property located in Gordon County, Georgia; authorizing the conveyance of an easement in certain state owned real property located in Gordon County, Georgia; authorizing the conveyance of certain state owned real property located in Gwinnett County, Georgia; authorizing the conveyance of certain state owned real property located in Hancock County, Georgia; authorizing the conveyance of certain state owned property located in McDuffie County, Georgia; authorizing the conveyance of certain state owned real property located in Telfair County, Georgia; authorizing the conveyance of certain state owned real property in Early County, Georgia; authorizing the leasing of two parcels of certain state owned real property located in Rabun County, Georgia; authorizing the conveyance by conservation easement of certain state owned real property located in Ware County, Georgia; authorizing the leasing of certain state owned real property in Baldwin County, Georgia; to provide an effective date; to repeal conflicting laws; and for other purposes.

WHEREAS: (1) The State of Georgia is the owner of certain parcels of real property located in Baldwin and Wilkinson Counties, Georgia; (2) Said real property is all those tracts or parcels of land lying and being in GMD 328, 1714 and 115 of Baldwin and Wilkinson Counties, Georgia, containing approximately 477 acres, as shown on two plats of survey entitled Survey Property for the Fall Line Regional Development Authority dated October 31, 2006, and October 18, 2006, and being tracts A, C, E, and F prepared by Byron L. Farmer, Georgia Registered Land Surveyor #1679, and on file in the offices of the State Properties Commission, and may be more particularly described on a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval;

404

GENERAL ACTS AND RESOLUTIONS, VOL. I

(3) Said tracts or parcels are a portion of Bartram Forest now under the custody of the Georgia Forestry Commission; (4) The Georgia Department of Transportation intends to construct the "Fall Line Freeway" which will bisect Bartram Fqrest and the Fall Line Regional Development Authority is desirous ofconstructing an industrial park at the intersection of US Highway 441 and said Fall Line Freeway; (5) It has been determined that the development of said industrial park on the above-described property would be of great economic benefit to the citizens of Baldwin and Wilkinson Counties as well as the state; (6) The Georgia Forestry Commission, by letter from the director dated September 21, 2005, agrees to the conveyance to the Fall Line Regional Development Authority with the provision that Georgia Forestry Commission retains timber rights on the 477 +/-acre tracts or parcels for management and harvesting until such time as the actual conversion of the land use; (7) No conveyance shall be made until the Georgia Forestry Commission formally agrees on the exact acreage to be conveyed to the Fall Line Regional Development Authority; (8) It would be in the best interest of the State of Georgia to convey the above-described property to the Fall Line Regional Development Authority for the fair market value; and

WHEREAS: (1) The State of Georgia is the owner of a certain reversionary interest in a tract of real property located in Baldwin County, Georgia, owned by Baldwin County Hospital Authority as authorized in Resolution Act number 94 (H.R. No. 233-640) of the 1965 General Assembly and recorded at the State Properties Commission as Real Property Record number 3090; (2) Said real property interest is in a parcel ofland lying and being in Land Lots 282 and 295, 318th Georgia Militia District in Baldwin County and containing approximately 32 acres as described in a deed dated July 30th, 1965, between the State of Georgia and the Baldwin County Hospital Authority and being on file in the offices ofthe State Properties Commission; (3) The Baldwin County Hospital Authority d/b/a Oconee Regional Medical Center has requested that the state relinquish any current or reversionary interest to the Baldwin County Hospital Authority d/b/a Oconee Regional Medical Center; (4) The above-described conveyance of a property interest is approved by the Department of Human Resources; (5) The State Properties Commission has determined this conveyance to be in the best interest of the State of Georgia; and

WHEREAS: (1) The State of Georgia is the owner of a certain parcel of real property located in Bibb County, Georgia;

GEORGIA LAWS 2009 SESSION

405

(2) Said real property is all those tracts or parcels of land lying and being in land lot 3 block 11 of Bibb County, and containing a total of approximately 0.617 acres as shown 00 a plat of survey prepared by Thomas W. Hurley dated December 4, 1997, and recorded in plat book 89 page 141, of Bibb County and as shown on a plat of survey prepared by Robert W. Hurley dated October 5, 1981, and recorded in plat book 63 page 99 of Bibb County and being on file in the offices of the State Properties Commission, and may be more particularly described on a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for
approval; (3) Said property is under the custody of the Georgia Bureau oflnvestigation located at Oglethorpe and Second Streets and housing the Macon Regional Drug Enforcement
Office; (4) By resolution dated December 11, 2008, the Board of Public Safety declared the property surplus; (5) Bibb County has conveyed a new location for the Georgia Bureau oflnvestigation; (6) Bibb County is desirous of acquiring the above-described property for public a
purpose; and

WHEREAS: (1) The State of Georgia is the owner of a certain parcel of real property located in Bibb County, Georgia; (2) Said real property is estimated as an approximately 1.8 acre tract of land lying and being in Land Lot 73 of the Hazzard District of Bibb County, Georgia, and as shown on a plat of survey for the conveyance from Bibb County of April 1, 1954, and of the plat for the May, 1964, deed from Bibb County titled Plat Showing Parcel D located in Land Lot 73, Hazzard District, Deeded to Bibb County by Dell D. Gledhill dated August 20, 1963, and being on file in the offices of the State Properties Commission and may be more particularly described on a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval; (3) Said property is under the custody of the Georgia Forestry Commission and known as the District Office on 5235 Columbus Road, Macon, Georgia, which was acquired from Bibb County, Georgia, by warranty deeds dated April 1, 1954, and May 1964, and recorded in the Clerk of Superior Court of Bibb County's records as Deed Books 677, Page 515 and Book 928, Page 289 respectively, and in the offices of the State Properties Commission as RPR #'s 00096 and 04 71 0; (4) Said deeds recite that the property was conveyed for the sole purpose of use by the Grantee for forest fire protection activities and purposes, and upon abandonment of the Grantee to use the property for the purposes specified, the property, together with any improvements placed thereon by the Grantee and not removed by the Grantee shall revert to the Grantor, its successors or assigns;

406

GENERAL ACTS AND RESOLUTIONS, VOL. I

(5) Since October 17, 2005, the real property has not been used or occupied by the State of Georgia for any other purpose, as acknowledged in a Georgia Forestry Commission resolution dated January 3, 2007; (6) Bibb County Board of Commissioners has requested a conveyance deed from the state and seeks authorization from the General Assembly to convey any interest the state may have in the above-described property to Bibb County; and

WHEREAS: (1) The State of Georgia is the owner of a certain real property located in Camden County, Georgia; (2) Said real property is all that easement lying and being in a Portion of Marginal Lot No. 2 and a Portion of Seagrove Street in the City of St. Mary's, 29th GM district of Camden County, and containing a total ofapproximately 0.178 acres as more particularly described on that certain plat of Easement to the State of Georgia dated June 16, 2000, by Privett and Associates, Inc., Surveyors and Land Planners, being recorded by the clerk of Superior Court of Camden County in Plat Cabinet 2, File 196-G-H and as real property record number 009779 and being on file in the offices of the State Properties Commission; and may be more particularly described on a plat of survey prepared by a Georgia registered land surveyor and presented to the State Properties Commission for approval; (3) Said property is under the custody of the Department of Natural Resources and was used for construction, operation, and access to the St. Mary's Dock and Pier, which property was conveyed on January 21, 2001, for $10.00 by the City of St. Mary's to the State; (4) The January 21, 2001, easement from the City of St. Mary's stipulated that the city could remove and relocate the easement area if the city executed and delivered to the state a new easement and easement area equivalent to the 2001 easement, and the state as Grantee quitclaimed to the city all of its rights and interest in the 200 I easement and easement area; (5) On September 1, 2005, the City of St. Mary's passed a resolution to remove and relocate the 2001 easement area with a larger easement area that the city would improve; (6) The Department of Natural Resources has relocated the activities performed on the above-described 2001 easement and has requested that the state's rights and interest in that easement be quitclaimed to the City of St. Mary's in consideration of a new equivalent or greater easement area from the city; (7) The City of St. Mary's is desirous of having the state convey its interest in the 2001 easement area back to the city and of granting the state a new easement and easement area equivalent or greater; and

GEORGIA LAWS 2009 SESSION

407

WHEREAS: (1) The State of Georgia is the owner of a certain real property located in Cherokee County, Georgia; (2) Said real property is all that tract or parcel of land lying and being in land lot !59 of the 14th district, 2nd Section of Cherokee County, and containing a total of approximately 2.35 acres as more particularly described as outlined in orange on that certain engineer's drawing dated January 26, 2009, and prepared by Engineering Strategies, Inc., and being on file in the offices of the State Properties Commission and may be more particularly described on a plat of survey prepared by a Georgia registered surveyor and presented to the State Properties Commission for approval; (3) Said property is under the custody of the Department of Defense and is adjacent to the State of Georgia National Guard Armory in the City of Canton; (4) The Department ofDefense has declared the above-described 2.35 acre portion of the property surplus to the needs of the Georgia National Guard; (5) The above-described property was conveyed to the state in 1950 by Cherokee County for the consideration of $1.00 for the sole purposes of theNationa! Guard and Military; (6) The City of Canton is desirous of having the state convey its interest in the property to the city for the expansion of and access to the city's sewer treatment plant; (7) The City of Canton agrees to convey to the state any interest the city may have in an approximately 20 foot wide driveway totaling approximately 0.23 acres along the northern boundary of the retained property; (8) The City of Canton has agreed to repair and repave a portion of the retained armory property totaling approximately 1.73 acres to conform with the Georgia Department of Transportation specification H20 loading and typical repaving as required by the Department of Defense; and

WHEREAS: (1) The State of Georgia is the owner of a certain real property located in Clarke County, Georgia; (2) Said real property is all that tract located on West Broad Street in the 216th Georgia Militia District, Athens-Clarke County, Georgia, and is more particularly described as follows: That survey titled Survey for Georgia State Properties Commission in Clarke County, City of Athens, GMD 216, dated February 6, 2009, prepared by Landmark Engineering Corporation by surveyor J. R. Holland and on file in the offices of the State Properties Commission showing the following parcels: For conveyance at no less than fair market value by competitive bid of approximately 1.964 acres (Parcels I, 2, SA, and SB) ("the sale property"); and For conveyance for $10.00 to the Unified Government of Athens-Clarke County (ACC) of 0.029 of an acre (Parcel 3); and

408

GENERAL ACTS AND RESOLUTIONS, VOL. I

For an easement for $10.00 to the Unified Government of Athens-Clarke County on approximately 0.149 of an acre (Parcel2); and For a 25 foot wide easement at fair market value of approximately 0.33 of an acre on the west side of Parcels 5A and 5B to Smith & Martin Investments, Inc., and guests. and being on file in the offices of the State Properties Commission, and may be more particularly described on a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval; (3) For all parcels other than Parcel5B, said property has been declared surplus by and is under the custody of the Department of Agriculture until a sale by competitive bid, as authorized, has been conducted by the State Properties Commission; a portion of which property was previously authorized for sale by competitive bid in 2005 Resolution Act 344, Article XIV (H. R. 166); and a portion of which property was authorized in 2006 Resolution Act 911, Article II (H. R. 1259) for the issuance of an easement for ingress and egress at 2188 East Broad Street to the Unified Government of Athens-Clarke County; (4) Parcel5B has been declared surplus by and is under the custody of the Department of Corrections until a sale by competitive bid is authorized and has been conducted by the State Properties Commission, in consideration of the state retaining for itself or its successors or assigns ingress-egress rights on Parcels 5B and 5A prior to conveying the sale property; (5) It has been determined that it would be in the best interest of the State of Georgia to convey an ingress-egress easement to Athens-Clarke County over 0.149 of an acre (being Parcel 2) for a consideration of $10.00, and to convey an ingress-egress easement of approximately 0.33 of an acre to Smith & Martin Investments, Inc., and guests for a consideration of fair market value as determined to be in the best interest of the State of Georgia and to sell the above-described sale property (being Parcels 1, 2, 5A, and 5B) of approximately 1.964 acres by competitive bid for no less than fair market value as determined by the State Properties Commission to be in the best interest of the State of Georgia and to convey to Athens-Clarke County approximately 0.029 of an acre (being Parcel 3) for a consideration of $1 0.00; and

WHEREAS: (1) The State of Georgia is the owner of certain parcels of real property totaling approximately 6.95 acres located in the Emanuel County, Georgia; (2) Said real property is all that tract or parcel of land lying and being in the 53rd G.M. District of Emanuel County and in or near the City of Swainsboro as shown and depicted on a plat of survey of 5.07 acres prepared by Walter K. Maupin, dated October 9, 1964, and recorded in Plat Book 3, Page 78; and a plat of survey of 0.5 of an acre prepared by Aubrey E. Scott, Jr. dated June 23, 1978, and revised Apri19, 1979, and recorded in Plat Book 10, Page 119; and a plat of survey of 1.38 acres prepared by Walter K. Maupin

GEORGIA LAWS 2009 SESSION

409

dated September 10, 1982, recorded in Plat Book 11, Page 140, of the Records of the Clerk of the Superior Court of Emanuel County, Georgia, the first two deeds being recorded as real property record numbers 3065 and 6615 respectively and being on file in the offices of the State Properties Commission and may be more particularly described on a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval; (3) Said property is under the custody of the Department of Administrative Services and bas been used as a surplus property warehouse; (4) The Department of Administrative Services by letter from the commissioner dated October 16, 2008, has declared the property surplus; (5) Each of the above-described real properties was conveyed to the state from the City of Swainsboro for the consideration of $1 0.00; (6) The City of Swainsboro, by resolution dated December 1, 2008, requests that the state convey to the city for a public purpose all interest in the above-described properties;
and

WHEREAS: (1) The State of Georgia is the owner of a certain parcel of real property located in Gordon County, Georgia, totaling approximately 20.1 acres; (2) Said parcel of such real property is all that parcel described as lying and being in the 14th District, 3rd Section and being parts of Land Lots 124 and 125 of Gordon County and adjoining the property of the Calhoun Elks Home, Inc., golf course, initially containing a total of approximately 20.1 acres and ultimately containing a smaller approximately 14.6 acre portion within that area as drawn and overlaid on an aerial entitled Preliminary SR 225 Bridge Replacements Gordon County PI 631570, and being on file in the Offices of the State Properties Commission and may be more particularly described on a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval; (3) The Calhoun Elks Home, Inc., is desirous ofleasing the above-described property in order to operate a golf course; (4) The Calhoun Elks Home, Inc., previously leased the approximately 20.1 acre area beginning on May 6, 1969, for a 20 year period, and leased the same area for another 20 year period from May 6, 1989; (5) State Route 225 on the southern boundary of the lease area is a dangerous road leading to an unsafe bridge that the Georgia Department of Transportation ranks as one of the 30 most dangerous in the state. To straighten Route 225 and improve the bridge, the state also seeks authorization from the General Assembly to grant to the Georgia Department of Transportation an easement of approximately 9 acres total (5.5 acres and an additional approximately 3.5 acres) as shown on the above-referenced drawing, to make the road safe. When the easement is granted, the ultimate area leased to the Elks will be approximately 14.6 acres. Until the state issues the approximately 5.5 acre

410

GENERAL ACTS AND RESOLUTIONS, VOL. I

easement to GDOT to improve the safety of the highway and bridge, the Elks may use the initial lease area of approximately 20.1 acres, at the fair market value of the ultimate lease area, which has been determined to be $3,800.00 annually. After the easement has been granted to GDOT, the lease area will be approximately 14.6 acres, and the consideration will be $3,800.00 annually; and

WHEREAS: ( 1) The State of Georgia is the owner of a certain parcel of real property located in Gwinnett County, Georgia; (2) Said real property is all that tract or parcel of land lying and being in land lot 12, Land District 7 of Gwinnett County totaling approximately 6.42 acres known as tax parcel 7-0 12-030A which was formerly used as a Georgia State Patrol Headquarters Post 54 and is recorded in the office of the Clerk of the Superior Court of Gwinnett County in Deed Book 225, Page 1, and on file in the offices of the State Properties Commission as real property record number 4625; (3) The above-described property was conveyed to the State on December 29, 1964, by Gwinnett County for the consideration of $1.00; (4) The Department of Public Safety discontinued its use of the property on October 1, 1998, and the Department of Driver Services discontinued its use of the property on February 28, 2003; (5) The deed of conveyance states that should the property cease to be used as a Georgia State Patrol Headquarters for a period of two years, property is to revert to Gwinnett County; (6) Gwinnett County, by letter dated October 20, 2008, is desirous of having the state convey its interest in the property back to the county for the consideration of $1 0.00; and

WHEREAS: (1) The State of Georgia is the owner of a certain parcel of real property located in Hancock County, Georgia; (2) Said real property is an approximately 3.14 acre portion of that approximately 160 acre tract or parcel of land lying and being in the 113th G.M.D. of Hancock County as more particularly described by a plat dated November 5, 1987, prepared by Precision Planning, Inc., recorded in the office of the clerk of the Superior Court of Hancock County, and on file in the offices of the State Properties Commission as real property record number 7518, and may be more particularly described on a plat of survey prepared by a Georgia registered land surveyor and presented to the State Properties Commission for approval; (3) Said property is currently under the custody of the Department Corrections; (4) The Department of Corrections no longer has a use for the site and has declared the property surplus;

GEORGIA LAWS 2009 SESSION

411

(5) It has been determined that it is in the best interest of the state to sell the above-described property for a consideration of not less than fair market value as determined by the State Properties Commission to be in the best interest of the State of Georgia; and

WHEREAS: (1) The State of Georgia is the owner of a certain parcel of real property located in McDuffie County, Georgia; (2) Said real property totaling approximately 2.00 acres is a portion of that tract or parcel of land lying and being in the !34th G.M.D. McDuffie County as more particularly described by a plat dated March 10, 2008, prepared by Wright Angle Land Surveyors recorded in the office of the clerk of the Superior Court of McDuffie County in Deed Book 197, Pages 246- 249 and on file in the offices of the State Properties Commission as real property record number 8709; (3) Said property is under the custody of the Technical College System of Georgia and is located on the McDuffie County campus of Augusta Technical College; (4) The Technical College System of Georgia desires to exchange the above-described property for approximately 2.00 acres of land owned by the McDuffie County Board of Commissioners at the Thomson-McDuffie County Airport as described on a plat of survey titled Plat for Thomson-McDuffie County Airport, 2.00 Acres, !34th GMD, McDuffie County, Georgia, by Wright Angle Land Surveyors dated March 10,2008, for use as the site of Project No. DTAE 147, aircraft technology building for Augusta Technical College; (5) The above-described property was conveyed to the state in July of 1995 by Augusta Technical Institute Foundation, Inc., for the consideration of $1 0.00; and

WHEREAS: (1) The State of Georgia is the owner of a certain parcel of real property located in Telfair County, Georgia; (2) Said real property is all that tract located in Land Lot 46, 9th District, City of Milan, Telfair County, Georgia, and is more particularly described as follows: On that drawing titled Georgia Department of Corrections Engineering Services and Technical Support, Telfair County - Milan State Prison Properties dated December 30, 2008, depicting the RPR 7873, on file in the offices of the State Properties Commission; and being on file in the offices of the State Properties Commission, and may be more particularly described on a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval; (3) The City of Milan conveyed three Parcels (A, B, and C) totaling approximately 5.078 acres to the State on October 3, 1989, for mutual public consideration; (4) Milan State Prison has now outlived its intended use;

412

GENERAL ACTS AND RESOLUTIONS, VOL. I

(5) RPR Parcels 7873 A, B, and C have been declared surplus by and are under the custody of the Department of Corrections, which has requested that the three parcels be conveyed back to the City of Milan; (6) The City of Milan has requested the conveyance for $10.00 of RPR Parcels 7873 A, B, and C; and

WHEREAS: (1) The State of Georgia is the owner of a certain real property located in Early County, Georgia; (2) Said real property includes all that tract of land conveyed in fee simple for $10.00 to the State of Georgia on July 12, 1996, by the Development Authority of Early County, lying and being in Land Lot 125, District 28, located at 40 Harold Ragan Drive on the U.S. Highway 27 Bypass in Blakely, Early County, containing a total of approximately 26.00 acres housing the Early County Satellite Center of the Albany Technical Institute, as shown on a plat of survey prepared by Grady Hodge Holman, Land Surveyor 2033, dated June 28, 1995, and last revised on July 24, 1995, and recorded in Deed Book 207 pages 516-517, and Plat Book 200 page 178 of Early County, and being on file in the offices of the State Properties Commission as RPR # 08984 and SPC 840.03, and may be more particularly described on a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval; (3) Said real property interests of the state also includes any reversionary interest in a Quit Claim Deed of May 10,2002, from the state to Early County for 1.84 acres a portion of the 26 acre property conveyed in 1996 from Early County and referenced in paragraph (2) above; such 1.84 acres shall revert to the state at 12:01 A.M. prevailing time on July 1, 2022, said property having been declared surplus by the Department of Technical and Adult Education on May 4, 2000, and the county was desirous of constructing a training site for the child care program at the Early County Satellite Center of Albany Technical Institute as authorized by 2001 Resolution Act No. 29 (HR 88); (4) Said property is under the custody of the Technical College System of Georgia formerly known as the Department of Technical and Adult Education; (5) By resolution dated June 1, 2006, to further the education of citizens in the area in technical and transfer degrees, the Technical and Adult Education Board declared the property surplus and authorized Albany Technical College to enter into a Memorandum of Understanding between Bainbridge College of the University System of Georgia effective July 1, 2006, for Bainbridge College to assume the full responsibility and authority for the governance and administration of the Early County Campus facility, its faculty, staff, and instructional programs, and if funds were available annually, the Department of Technical and Adult Education will allocate $1,012,348 to the Early County Campus for personnel, operation, and maintenance from the Albany Technical

GEORGIA LAWS 2009 SESSION

413

College budget; and funds held by the Albany Technical College Foundation for the Early County site were transferred to the Bainbridge College Foundation; and student government funds held by Albany Technical College for the Early County Campus were transferred to Bainbridge College; and effective July I, 2007, the Georgia Department of Technical and Adult Education recommended transfer of title of the Early County Campus property as described in paragraph (2) above to the Board of Regents of the University System of Georgia; (6) On June 6-7, 2006, the Georgia Board of Regents agreed to accept title to the property described in paragraph (2) above, and the governance and administration of the Early County Campus through its Bainbridge College, the conversion of which occurred on November I, 2006; (7) The Georgia Board ofRegents is desirous of acquiring the above-described property;
and

WHEREAS: (1) The State of Georgia is the owner of a certain parcel of real property totaling approximately 0.057 of an acre located in Rabun County, Georgia; (2) Said parcel of such real property is all that parcel described as "the lease area" of 50 x 50 feet of land lying and being in Land Lot No. 65 of the 2nd Land District of Rabun County and is a part of Black Rock Mountain State Park in the custody of the Georgia Department of Natural Resources, containing a total of approximately 0.057 of an acre of that certain lease being on file in the Offices of the State Properties Commission as RPR # 08536 A tract of land being 50 x 50 feet, in Rabun County, Georgia, in Land Lot No. 65, District No.2. Beginning at an iron pin 125 feet south 65 degrees 00 minutes east of an iron pin on the northeast comer of a 25 foot square plot ofland presently leased to Currahee Paging, Inc.; thence south 65 degrees 00 minutes east 50 feet to an iron pin; thence north 25 degrees 00 minutes east 50 feet to an iron pin; thence north 65 degrees 00 minutes west 50 feet to an iron pin; thence south 25 degrees 00 minutes west to an iron pin to the beginning point. Said plot containing 0.057 of one acre, and being part of the State of Georgia Department of Natural Resources Black Rock Mountain State Park. and may be more particularly described on a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval; (3) The lease area is the site of a cable television tower that has been leased to Northland Cable Properties, Inc., or its predecessors Northland Premier Cable Limited Partnership or Mountain View Enterprises, Inc., since May 23, 1969, pursuant to Resolution Act 96, SR No. 102, approved April28, 1969 (Ga. L. 1969, p. 1116), and recently authorized in 1994 Res. Act No. 96 (HR 859) for ten years, and leased effective September 9, 1994,

414

GENERAL ACTS AND RESOLUTIONS, VOL. I

with a five-year renewal commencing September 9, 2004, and expiring September 8, 2009, at an annual rate of $650.00 per year; (4) Northland Cable Properties, Inc. "Sublessee" is desirous of subleasing the above-described property to receive over the air/satellite broadcast signals and transmit a microwave signal to customers in the local area from the site for a period of up to ten years, with a renewable term if needed, at fair market value and with the ability for either Lessor or Sublessee to cancel with 90 days notice to the other party; (5) Southern Communications Services, Inc., doing business as SouthernLINC Wireless "Lessee" is desirous of leasing the above-described property for a period of ten years at fair market value and will construct a new tower for wireless communications services for Georgia Power Company and other government services, and will dismantle the current tower of sublessee Northland and move sublessee's equipment to the new tower; and

WHEREAS: (I) The State of Georgia is the owner of a certain parcel of real property totaling approximately 0.015 (36.25' x 18') of an acre located in Rabun County, Georgia; (2) Said real property is all that tract or parcel of land containing 0.015 of one acre lying and being in land lot 66 of the 2nd district of Rabun County, Georgia, and is more particularly described highlighted in orange as a portion of the property on a revised plat of survey dated April 29, 1995, prepared by William F. Rolader, Georgia Registered Land Surveyor #2042 and being on file in the offices of the State Properties Commission, and may be more particularly described on a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval; (3) Said property is in the custody of the Department ofNatural Resources and is a part of Black Rock Mountain State Park; (4) The above-described property is a portion of a 0.019 of one acre area that has been leased by the State of Georgia to Currahee Paging, Inc., since November 15, 1995, for a consideration of $650.00 annually; (5) Currahee Paging, Inc. is desirous ofleasing the above-described property for a term of ten years; (6) The Department of Natural Resources has no objection to the leasing of the above-described property; (7) 2005 Legislation Resolution Act 344 (HR 166) ARTICLE XVI Section 90 authorized the State Properties Commission to enter into a lease ofO.O 189 ofan acre with Currahee Paging, Inc. for a consideration of $650 per year; (8) Currahee Paging, Inc. is desirous of leasing a 0.015 of an acre property for a period of ten years at fair market value for telecommunications purposes, which would rescind the 2005 authorization; and

GEORGIA LAWS 2009 SESSION

415

WHEREAS: (1) The State of Georgia is the owner of certain real property located at Dixon Memorial State Forest in Ware County, Georgia; (2) Oglethorpe Power Corporation requested in a letter dated February 11, 2009, to plant and maintain hardwood trees in various parcels of such state property totaling approximately 500 noncontiguous acres that were devastated by fires and would not otherwise be replanted by the Georgia Forestry Commission. Oglethorpe Power Corporation desires ingress and egress in, on, over, under, upon, across, or through a portion of said property for that purpose, and Oglethorpe Power Corporation will evenly split the value of any carbon sequestration credits with the Georgia Forestry Commission 25 years after the commencement of a carbon sequestration credits regulation program; (3) The Georgia Forestry Commission on February 8, 2009, approved entering into an agreement with Oglethorpe Power Corporation for the institution of a carbon sequestration project for an initial term of ten years, renewable for additional ten-year terms and, as part of such project, also approved the granting of both a revocable license and a 75 year conservation easement to Oglethorpe Power Corporation, such instruments to allow Oglethorpe Power Corporation ingress and egress in, on, over, under, upon, across, or through adjacent land of the State of Georgia for the purposes of planting and maintenance of hardwood trees; (4) The State Properties Commission approved Georgia Forestry Commission's request for such a revocable license on February 27, 2009; and

WHEREAS: (1) The State of Georgia is the owner of certain parcels of real property located in Baldwin County, Georgia; (2) Within said real property is a parcel of land lying and being in land lots No. 244 of the fifth land district GMD 1714 of Baldwin County, Georgia containing a total of approximately 71.31 of acres as shown on a plat of survey dated December 3, 2008, and prepared by Steven A. Coleman Georgia Registered Land Surveyor and being on file in the offices of the state properties; (3) A portion of the above-described property was transferred from the Department of Human Resources by executive order on February 5, 2009, and as a result entire parcel is in the custody of the Department of Corrections; (4) The Georgia Department of Corrections has issued a Request for Proposals ("RFP") for the construction and operation of a private prison, and the RFP allows the selected vendor to request a long-term ground lease of a one-year lease with allowance for 24 one-year renewals from the State of Georgia for the referenced property; (5) Upon award of the above-mentioned procurement, and upon request from the winning vendor, the Department of Corrections proposes to honor that request by asking the State of Georgia to enter into a long-term ground lease as described above with said winning vendor.

416

GENERAL ACTS AND RESOLUTIONS, VOL. I

NOW, THEREFORE, BE IT RESOLVED AND ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

ARTICLE I SECTION l.

That the State of Georgia is the owner of the above-described real property in Baldwin and Wilkinson Counties and that in all matters relating to the conveyance of the real property the State of Georgia is acting by and through its State Properties Commission.

SECTION 2. That the above-described property, excluding any timber rights which are to be retained by the Georgia Forestry Commission, and including any improvements may be conveyed by appropriate instrument by the State of Georgia, acting by and through its State Properties Commission, to Fall Line Regional Development Authority for the fair market value as determined by the State Properties Commission to be in the best interest of the State of Georgia, and such further consideration and provisions as the State Properties Commission shall in its discretion determine to be in the best interest of the State of Georgia.

SECTION 3. That the authorization in this resolution to convey the above-described property shall expire five years after the date that this resolution becomes effective.

SECTION 4. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect such conveyance.

SECTION 5. That the deed of conveyance shall be recorded by the Grantee in the Superior Courts of Baldwin and Wilkinson Counties and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 6. That custody of the above-described property shall remain in the Georgia Forestry Commission until the property is conveyed.

GEORGIA LAWS 2009 SESSION

417

ARTICLE II SECTION 7.

That the State of Georgia is the owner of the above-described reversionary interest in Baldwin County and that in all matters relating to the conveyance ofthe real property interest the State of Georgia is acting by and through its State Properties Commission.

SECTION 8. That the above-described property interest may be conveyed by appropriate instrument by the State of Georgia, acting by and through its State Properties Commission, to Baldwin County Hospital Authority d/b/a Oconee Regional Medical Center for a consideration of $10.00; and such further consideration and provisions as the State Properties Commission shall in its discretion determine to be in the best interest of the State of Georgia.

SECTION 9. That the authorization in this resolution to convey the above-described property interest shall expire three years after the date that this resolution becomes effective.

SECTION 10. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect such conveyance.

SECTION 11. That the deed of conveyance shall be recorded by the Grantee in the Superior Court of Baldwin County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 12. That custody of the above-described property interest shall remain in the Department of Human Resources until the property is conveyed.

ARTICLE III SECTION 13.

That the State of Georgia is the owner of the above-described real property in Bibb County and that in all matters relating to the conveyance of the real property the State of Georgia is acting by and through its State Properties Commission.

SECTION 14. That the above-described property including any improvements may be conveyed by appropriate instrument by the State of Georgia, acting by and through its State Properties Commission, to Bibb County for a consideration of $10.00 so long as the property is used

418

GENERAL ACTS AND RESOLUTIONS, VOL. I

for public purpose, and such further consideration and provisions as the State Properties Commission shall in its discretion determine to be in the best interest of the State of Georgia.

SECTION 15. That the authorization in this resolution to convey the above-described property shall expire three years after the date that this resolution becomes effective.

SECTION 16. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to affect such conveyance.

SECTION 17. That the deed of conveyance shall be recorded by the Grantee in the Superior Court of Bibb County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 18. That custody of the above-described property shall remain in the Georgia Bureau of Investigation until the property is conveyed.

ARTICLE IV SECTION 19.

That the State of Georgia is the owner of the above-described real property in Bibb County and that in all matters relating to the conveyance of the real property the State of Georgia is acting by and through its State Properties Commission.

SECTION 20. That all of the above state's interest in the above-described approximately 1.8 acre parcel of property together with any remaining improvements thereon may be conveyed to the Bibb County Board of Commissioners for a consideration of $10.00.

SECTION 21. That the authorization in this resolution to convey the above-described real property shall expire three years after the date that this resolution becomes effective.

SECTION 22. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect such conveyance.

GEORGIA LAWS 2009 SESSION

419

SECTION 23. That the deed of conveyance shall be recorded by the Grantee in the Superior Court of Bibb County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 24. That custody of the above-described property shall remam in the Georgia Forestry Commission until the property is conveyed.

ARTICLE V SECTION 25.

That the State of Georgia is the owner of the above-described easement in Camden County and that in all matters relating to the conveyance of the 200 l easement area the State of Georgia is acting by and through its State Properties Commission.

SECTION 26. That the above-described easement area may be conveyed by appropriate instrument by the State of Georgia, acting by and through its State Properties Commission to Camden County for a consideration of $10.00, and such further consideration and provisions as the State Properties Commission shall in its discretion determine to be in the best interest of the State of Georgia.

SECTION 27. That the authorization in this resolution to convey the above-described property interest shall expire three years after the date that this resolution becomes effective.

SECTION 28. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect such conveyance and to effect an equivalent replacement easement area. If an easement is relocated for any reason, the State Properties Commission is authorized to convey by quitclaim deed the state's interest in the former easement area.

SECTION 29. That the deed of conveyance of the state's interest in the original easement area shall be recorded by the Grantee in the Superior Court of Camden County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 30. That custody of the above-described property shall remain in the Department of Natural Resources until the property is conveyed.

420

GENERAL ACTS AND RESOLUTIONS, VOL. I

ARTICLE VI SECTION 31.

That the State of Georgia is the owner of the above-described real property in Cherokee County and that in all matters relating to the conveyance of the 2.35 acres of real property the State of Georgia is acting by and through its State Properties Commission.

SECTION 32. That the State of Georgia, acting by and through the State Properties Commission, is authorized to convey the above-described real property to the City of Canton for a consideration of $10.00, and the City of Canton agrees to convey by quitclaim deed to the state any interest the city may have in an approximately 20 foot wide driveway totaling approximately 0.23 acres property, and the city shall repair and repave a portion of said property totaling approximately 1.73 acres to conform with the Georgia Department of Transportation specification H20 loading and typical repaving as required by the Department of Defense, and such further consideration and provisions as the State Properties Commission shall in its discretion determine to be in the best interest of the State of Georgia.

SECTION 33. That the authorization in this resolution to convey the above-described property shall expire three years after the date that this resolution becomes effective.

SECTION 34. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect such conveyance.

SECTION 35. That the deed of conveyance shall be recorded by the Grantee in the Superior Court of Cherokee County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 36. That custody of the above-described property shall remain in the Department of Defense until the property is conveyed.

ARTICLE VII SECTION 37.

That the State of Georgia is the owner of the above-described Clarke County real property and that in all matters relating to the conveyance of the real property the State of Georgia is acting by and through its State Properties Commission.

GEORGIA LAWS 2009 SESSION

421

SECTION 38. That the above-described approximately 1.964 acres of real property (Parcels 1, 2, SA, and SB; "the sale property") may be sold by competitive bid for a consideration of not less than the fair market value, as determined to be in the best interest of the State of Georgia by the State Properties Commission, and such further consideration and provisions as the State Properties Commission shall in its discretion determine to be in the best interest of the State ofGeorgia including that the winning bidder or its successors and assigns shall maintain the current driveway on Parcels SA and SB in good condition with smooth pavement, free of boles and hazards.

SECTION 39. That the above-described approximately 0.029 of an acre of real property (Parcel3) may be sold for a consideration of$10.00 to the Unified Government of Athens-Clarke County, and such further consideration and provisions as the State Properties Commission shall in its discretion determine to be in the best interest of the State of Georgia.

SECTION 40. That the authorization in this resolution to sell the above-described property shall expire three years after the date that this resolution becomes effective.

SECTION 41. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to affect such conveyance.

SECTION 42. That the deeds of conveyance shall be recorded by the Grantee in the Superior Court of Clarke County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 43. That custody of the above-described property shall remain in the Department of Agriculture and in the Department of Corrections, respectively, until the property is conveyed.

SECTION 44. That the State of Georgia is the owner ofthe above-described real property in Clarke County, and the property is in the custody of the Department of Agriculture, hereinafter referred to as the "easement area of approximately 0.149 of an acre (Parcel 2)" and that, in all matters relating to this easement area, the State of Georgia is acting by and through its State Properties Commission.

422

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 45. That prior to the conveyance of the sale property by competitive bid, the State of Georgia acting by and through its State Properties Commission may grant to The Unified Government of Athens-Clarke County, Georgia, or its successors and assigns, a nonexclusive easement for the operation and maintenance of ingress and egress in, on, over, under, upon, across, or through the easement area (Parcel2) for the purpose of ingress and egress together with the right of ingress and egress over adjacent land of the State of Georgia as may be reasonably necessary to accomplish the aforesaid purposes.

SECTION 46. That the above-described premises (Parcel2) shall be used solely for the purpose of ingress and egress.

SECTION 47. That The Unified Government of Athens-Clarke County, Georgia, shall have the right to remove or cause to be removed from said easement area only such trees and bushes as may be reasonably necessary for the proper operation and maintenance of said ingress and egress.

SECTION 48. That, after The Unified Government of Athens-Clarke County, Georgia, has put into use the ingress and egress for which this easement is granted, a subsequent abandonment of the use thereof shall cause a reversion to the State of Georgia, or its successors and assigns, of all the rights, title, privileges, powers, and easement granted herein. Upon abandonment, The Unified Government of Athens-Clarke County, Georgia, or its successors and assigns, shall have the option ofremoving its facilities from the easement area or leaving the same in place, in which event the ingress and egress shall become the property of the State of Georgia, or its successors and assigns.

SECTION 49. That no title shall be conveyed to The Unified Government of Athens-Clarke County, Georgia, and, except as herein specifically granted to The Unified Government of Athens-Clarke County, Georgia, all rights, title, and interest in and to said easement area is reserved in the State of Georgia, which may make any use of said easement area not inconsistent with or detrimental to the rights, privileges, and interest granted to The Unified Government of Athens-Clarke County, Georgia.

SECTION SO. That if the State of Georgia, acting by and through its State Properties Commission, determines that any or all of the facilities placed on the easement area should be removed or relocated to an alternate site on state owned land in order to avoid interference with the state's use or intended use ofthe easement area, it may grant a substantially equivalent nonexclusive

GEORGIA LAWS 2009 SESSION

423

easement to allow placement of the removed or relocated facilities across the alternate site, under such terms and conditions as the State Properties Commission shall in its discretion determine to be in the best interests of the State of Georgia, and The Unified Government of Athens-Clarke County, Georgia, shall remove or relocate its facilities to the alternate easement area at its sole cost and expense, unless the State Properties Commission determines that the requested removal or relocation is to be for the sole benefit of the State of Georgia and approves payment by the State of Georgia of all or a portion of such actual cost and expense, not to exceed by 20 percent the amount of a written estimate provided by The Unified Government ofAthens-Clarke County, Georgia. Upon written request, the State Properties Commission, in its sole discretion, may permit the relocation of the facilities to an alternate site on state owned land so long as the removal and relocation is paid by the party or parties requesting such removal and at no cost and expense to the State of Georgia. If an easement is relocated for any reason, the State Properties Commission is authorized to convey by quitclaim deed the state's interest in the former easement area.

SECTION 51. That this resolution does not affect and is not intended to affect any rights, powers, interest, or liability of the Department of Transportation with respect to the state highway system or of a county with respect to the county road system or of a municipality with respect to the city street system. The grantee shall obtain any and all other required permits from the appropriate governmental agencies as are necessary for its lawful use of the easement area or public highway right of way and comply with all applicable state and federal environmental statutes in its use of the easement area.

SECTION 52. That the easement granted to The Unified Government of Athens-Clarke County, Georgia, shall contain such other reasonable terms, conditions, and covenants as the State Properties Commission shall deem in the best interest of the State of Georgia and that the State Properties Commission is authorized to use a more accurate description ofthe easement area, so long as the description utilized by the State Properties Commission describes the same easement area herein granted.

SECTION 53. That the consideration for such easement shall be for $10.00 and such further consideration and provisions as the State Properties Commission may determine to be in the best interest of the State of Georgia.

SECTION 54. That this grant of easement shall be recorded by the Grantee in the Superior Court of Clarke County and a recorded copy shall be forwarded to the State Properties Commission.

424

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 55. That the authorization in this resolution to grant the above-described easement to The Unified Government of Athens-Clarke County, Georgia, shall expire three years after the date that this resolution becomes effective.

SECTION 56. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect the grant of the easement area.

SECTION 57. That the State of Georgia is the owner of the described real property in Clarke County, and the property is in the custody of the Departments of Agriculture and of Corrections, hereinafter referred to as the "easement area ofapproximately 0.33 of an acre (25' wide along the western boundary of Parcels 5A and 5B)" and that, in all matters relating to this easement area, the State of Georgia is acting by and through its State Properties Commission.

SECTION 58. That prior to the conveyance of the sale property by competitive bid the State of Georgia, acting by and through its State Properties Commission, may grant to Smith & Martin Investments, Inc., or its successors and assigns, and its guests a nonexclusive easement for the operation and maintenance of ingress and egress in, on, over, under, upon, across, or through the easement area for the purpose of Smith & Martin Investments, Inc., and its guests ingress and egress together with the right ofingress and egress over adjacent land ofthe State of Georgia as may be reasonably necessary to accomplish the aforesaid purposes.

SECTION 59. That the above-described premises shall be used solely for the purpose of ingress and egress for Smith & Martin Investments, Inc., its successors and assigns, and guests.

SECTION 60. That Smith & Martin Investments, Inc., shall have the right to remove or cause to be removed from said easement area only such trees and bushes as may be reasonably necessary for the proper operation and maintenance of said ingress and egress.

SECTION 61. That, after Smith & Martin Investments, Inc., has put into use the ingress and egress for which this easement is granted, a subsequent abandonment of the use thereof shall cause a reversion to the State of Georgia, or its successors and assigns, of all the rights, title, privileges, powers, and easement granted herein. Upon abandonment, Smith & Martin Investments, Inc., or its successors and assigns, shall have the option of removing its

GEORGIA LAWS 2009 SESSION

425

facilities from the easement area or leaving the same in place, in which event the ingress and egress shall become the property of the State of Georgia, or its successors and assigns.

SECTION 62. That no title shall be conveyed to Smith & Martin Investments, Inc., and, except as herein specifically granted to Smith Martin, Inc., all rights, title, and interest in and to said easement area is reserved in the State of Georgia, which may make any use of said easement area not inconsistent with or detrimental to the rights, privileges, and interest granted to Smith & Martin Investments, Inc.

SECTION 63. That if the State of Georgia, acting by and through its State Properties Commission, determines that any or all of the facilities placed on the easement area should be removed or relocated to an alternate site on state owned land in order to avoid interference with the state's use or intended use ofthe easement area, it may grant a substantially equivalent nonexclusive easement to allow placement of the removed or relocated facilities across the alternate site, under such terms and conditions as the State Properties Commission shall in its discretion determine to be in the best interests ofthe State ofGeorgia, and Smith & Martin Investments, Inc., shall remove or relocate its facilities to the alternate easement area at its sole cost and expense, unless the State Properties Commission determines that the requested removal or relocation is to be for the sole benefit of the State of Georgia and approves payment by the State of Georgia of all or a portion of such actual cost and expense, not to exceed by 20 percent the amount of a written estimate provided by Smith & Martin Investments, Inc. Upon written request, the State Properties Commission, in its sole discretion, may permit the relocation of the facilities to an alternate site on state owned land so long as the removal and relocation is paid by the party or parties requesting such removal and at no cost and expense to the State of Georgia. If an easement is relocated for any reason, the State Properties Commission is authorized to convey by quitclaim deed the state's interest in the former easement area.

SECTION 64. That this resolution does not affect and is not intended to affect any rights, powers, interest, or liability of the Department of Transportation with respect to the state highway system or of a county with respect to the county road system or of a municipality with respect to the city street system. The grantee shall obtain any and all other required permits from the appropriate governmental agencies as are necessary for its lawful use of the easement area or public highway right of way and comply with all applicable state and federal environmental statutes in its use of the easement area.

426

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 65. That the easement granted to Smith & Martin Investments, Inc., shall contain such other reasonable terms, conditions, and covenants as the State Properties Commission shall deem in the best interest of the State of Georgia and that the State Properties Commission is authorized to use a more accurate description of the easement area, so long as the description utilized by the State Properties Commission describes the same easement area herein granted.

SECTION 66. That the consideration for such easement shall be no less than the fair market value as determined by the State Properties Commission to be in the best interest of the state, and such further consideration and provisions as the State Properties Commission may determine to be in the best interest of the State of Georgia.

SECTION 67. That this grant of easement shall be recorded by Smith & Martin Investments, Inc., in the Superior Court of Clarke County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 68. That the authorization in this resolution to grant the above-described easement to Smith & Martin Investments, Inc., shall expire three years after the date that this resolution becomes effective.

SECTION 69. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect the grant of the easement area.

ARTICLE VIII SECTION 70.

That the State of Georgia is the owner of the above-described real property in Emanuel County and that in all matters relating to the conveyance of the real property the State of Georgia is acting by and through its State Properties Commission.

SECTION 71. That the above-described parcels ofreal property may be conveyed by appropriate instrument to the City of Swainsboro for a consideration of $10.00, so long as the property is used for a public purpose and such further consideration and provisions as the State Properties Commission shall in its discretion determine to be in the best interest of the State of Georgia.

GEORGIA LAWS 2009 SESSION

427

SECTION 72. That the authorization in this resolution to convey the above-described real property shall expire three years after the date that this resolution becomes effective.

SECTION 73. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect such conveyance.

SECTION 74. That the deed of conveyance shall be recorded by the Grantee in the Superior Court of Emanuel County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 75. That custody of the above-described property shall remain in the Department of Administrative Services until the property is conveyed.

ARTICLE IX SECTION 76.

That the State of Georgia is the owner of the above-described real property in Gordon County, and that in all matters relating to the leasing of initially approximately 20.1 acres of real property and, after the state issues an approximately 5.5 acre easement to GDOT to improve the safety of State Route 225, in all matters relating to the leasing of ultimately approximately 14.6 acres of real property the State of Georgia is acting by and through its State Properties Commission.

SECTION 77. That the State of Georgia, acting by and through the State Properties Commission, is authorized to lease the above-described real property to the Calhoun Elks Home, Inc., for a period of ten years for a consideration of fair market value as determined by the State Properties Commission to be $3,800.00 per year; and such further terms and conditions as determined by the State Properties Commission to be in the best interest of the State of Georgia.

SECTION 78. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect such lease.

SECTION 79. That the lease shall be recorded by the lessee in the Superior Court of Gordon County and a recorded copy shall be forwarded to the State Properties Commission.

428

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 80. That the authorization to lease the above-described property to the Calhoun Elks Home, Inc., shall expire three years after the date that this resolution is enacted into law and approved by the State Properties Commission.

SECTION 81. That the State of Georgia, acting by and through its State Properties Commission, may grant to the Georgia Department of Transportation, or its successors and assigns, a nonexclusive easement area on State of Georgia property totaling approximately 9 acres for improved safety and operation and maintenance of a highway. Said easement area is located in Calhoun, Gordon County, Georgia, and may be more particularly described by a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval.

SECTION 82. That the above-described premises shall be used solely for the purpose of installing, maintaining, and operating said highway.

SECTION 83. That the Georgia Department of Transportation shall have the right to remove or cause to be removed from said easement area only such trees and bushes as may be reasonably necessary for the proper installation, maintenance, and operation of said highway.

SECTION 84. That, after the Georgia Department of Transportation has put into use the highway this easement is granted for, a subsequent abandonment of the use thereof shall cause a reversion to the State of Georgia, or its successors and assigns, of all the rights, title, privileges, powers, and easement granted herein. Upon abandonment, the Georgia Department of Transportation, or its successors and assigns, shall have the option of removing its facilities from the easement area or leaving the same in place, in which event the facilities shall become the property of the State of Georgia, or its successors and assigns.

SECTION 85. That no title shall be conveyed to the Georgia Department of Transportation and, except as herein specifically granted to the Georgia Department of Transportation, all rights, title, and interest in and to said easement area is reserved in the State of Georgia, which may make any use of said easement area not inconsistent with or detrimental to the rights, privileges, and interest granted to the Georgia Department of Transportation.

GEORGIA LAWS 2009 SESSION

429

SECTION 86. That if the State of Georgia, acting by and through its State Properties Commission, determines that any or all of the facilities placed on the easement area should be removed or relocated to an alternate site on state owned land in order to avoid interference with the state's use or intended use ofthe easement area, it may grant a substantially equivalent nonexclusive easement to allow placement of the removed or relocated facilities across the alternate site, under such terms and conditions as the State Properties Commission shall in its discretion determine to be in the best interests of the State of Georgia, and the Georgia Department of Transportation shall remove or relocate its facilities to the alternate easement area at its sole cost and expense, unless the State Properties Commission determines that the requested removal or relocation is to be for the sole benefit of the State of Georgia and approves payment by the State of Georgia of all or a portion of such actual cost and expense, not to exceed by 20 percent the amount of a written estimate provided by the Georgia Department of Transportation. Upon written request, the State Properties Commission, in its sole discretion, may permit the relocation of the facilities to an alternate site on state owned land so long as the removal and relocation is paid by the party or parties requesting such removal and at no cost and expense to the State of Georgia. If an easement is relocated for any reason, the State Properties Commission is authorized to convey by quitclaim deed the state's interest in the former easement area.

SECTION 87. That the easement granted to the Georgia Department of Transportation shall contain such other reasonable terms, conditions, and covenants as the State Properties Commission shall deem in the best interest of the State of Georgia and that the State Properties Commission is authorized to use a more accurate description of the easement area, so long as the description utilized by the State Properties Commission describes the same easement area herein granted.

SECTION 88. That the consideration for such easement shall be $10.00 and such further consideration and provisions as the State Properties Commission may determine to be in the best interest of the State of Georgia.

SECTION 89. That this grant of easement shall be recorded by the Grantee in the Superior Court of Gordon County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 90. That the authorization in this resolution to grant the above-described easement to the Georgia Department of Transportation shall expire five years after the date that this resolution becomes effective.

430

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 91. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect the grant of the easement area.

ARTICLE X SECTION 92.

That the State of Georgia is the owner of the above-described real property in Gwinnett County and that in all matters relating to the conveyance of the real property the State of Georgia is acting by and through its State Properties Commission.

SECTION 93. That all or a portion of the above-described approximately 6.42 acre parcel of property may be conveyed by appropriate instrument to Gwinnett County for a consideration of $10.00, so long as the property is used and such further consideration and provisions as the State Properties Commission shall in its discretion determine to be in the best interest of the State of Georgia.
SECTION 94. That the authorization in this resolution to sell the above-described real property shall expire three years after the date that this resolution becomes effective.
SECTION 95. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect such sale.
SECTION 96. That the deed of conveyance shall be recorded by the Grantee in the Superior Court of Gwinnett County and a recorded copy shall be forwarded to the State Properties Commission.
SECTION 97. That custody of the above-described property shall remain in the Department of Driver Services until the property is conveyed.

GEORGIA LAWS 2009 SESSION

431

ARTICLE XI SECTION 98.

That the State of Georgia is the owner of the above-described real property in Hancock County and that in all matters relating to the conveyance of the real property the State of Georgia is acting by and through its State Properties Commission.

SECTION 99. That all or a portion of the above-described property may be conveyed by competitive bid for the fair market value as determined by the State Properties Commission to be in the best interest of the State of Georgia and such further consideration and provisions as the State Properties Commission shall in its discretion determine to be in the best interest of the State of Georgia.

SECTION 100. That the authorization in this resolution to sell the above-described real property shall expire three years after the date that this resolution becomes effective.

SECTION 101. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect such sale.

SECTION 102. That the deed of conveyance shall be recorded by the Grantee in the Superior Court of Hancock County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 103. That custody of the above-described property shall remain in the Department of Corrections until the property is conveyed.

ARTICLE XII SECTION 104.

That the State of Georgia is the owner of the above-described real property in McDuffie County and that in all matters relating to the conveyance of the real property the State of Georgia is acting by and through its State Properties Commission.

SECTION 105. That all or a portion of the above-described approximately 2.00 acre parcel of property may be conveyed by appropriate instrument to the McDuffie County Board of Commissioners in exchange for approximately 2.00 acres of land owned by the McDuffie County Board of

432

GENERAL ACTS AND RESOLUTIONS, VOL. I

Commissioners located on the Thomson-McDuffie County Airport for use as a site ofProject No. DTAE 147, aircraft technology building for Augusta Technical College and such further consideration and provisions as the State Properties Commission shall in its discretion determine to be in the best interest of the State of Georgia.

SECTION 106. That the authorization in this resolution to exchange the above-described real property shall expire three years after the date that this resolution becomes effective.

SECTION 107. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect such exchange.
SECTION 108. That the deed of conveyance shall be recorded by the Grantee in the Superior Court of McDuffie County and a recorded copy shall be forwarded to the State Properties Commission.
SECTION 109. That custody of the above-described property shall remain in the Technical College System of Georgia until the property is conveyed.
ARTICLE XIII SECTION 110.
That the State of Georgia is the owner of the above-described Telfair County real property and that in all matters relating to the conveyance of the real property the State of Georgia is acting by and through its State Properties Commission.
SECTION 111. That the above-described approximately 5.078 acres ofreal property may be conveyed to the City of Milan for a consideration of $10.00, and such further consideration and provisions as the State Properties Commission shall in its discretion determine to be in the best interest of the State of Georgia.
SECTION 112. That the authorization in this resolution to sell the above-described property shall expire three years after the date that this resolution becomes effective.

GEORGIA LAWS 2009 SESSION

433

SECTION 113. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to affect such conveyance.

SECTION 114. That the deed ofconveyance shall be recorded by the Grantee in the Superior Court of Telfair County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 115. That custody of the above-described property shall remain in the Department of Corrections until the property is conveyed.

ARTICLE XIV SECTION 116.

That the State of Georgia is the owner of the above-described real property in Early County and that in all matters relating to the conveyance of the real property the State of Georgia is acting by and through its State Properties Commission.

SECTION 117. That the above-described property, including any improvements except the TelTex system of the Early County Campus, may be conveyed by appropriate instrument by the State of Georgia, acting by and through its State Properties Commission, to the Board of Regents of the University System of Georgia for the consideration of $10.00 and such further consideration and provisions as the State Properties Commission shall in its discretion determine to be in the best interest of the State of Georgia.

SECTION 118. That the authorization in this resolution to convey the above-described property shall expire five years after the date that this resolution becomes effective.

SECTION 119. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect such conveyance.

SECTION 120. That the deed of conveyance shall be recorded by the Grantee in the Superior Court of Early County and a recorded copy shall be forwarded to the State Properties Commission.

434

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 121. That custody of the above-described property shall remain in the Technical College System of Georgia, formerly known as the Georgia Department of Technical and Adult Education, until the property is conveyed.

ARTICLE XV SECTION 122.

That the State of Georgia is the owner of the above-described real property in Rabun County and that in all matters relating to the leasing of the approximately 0.057 of an acre of real property the State of Georgia is acting by and through its State Properties Commission.

SECTION 123. That the State of Georgia, acting by and through the State Properties Commission, is authorized to lease the above-described real property to the SouthernLINC for a period of ten years for a consideration of fair market value per year as determined by the State Properties Commission to be in the best interest of the State of Georgia to construct and maintain wireless communications services for Georgia Power Company and other state government services and a tower for same, and such further terms and conditions as determined by the State Properties Commission to be in the best interest of the State of Georgia.

SECTION 124. That the State of Georgia, acting by and through the State Properties Commission, is authorized to sublease the above-described real property toNorthland Cable Properties, Inc., for a period of ten years, at any time cancelable during the term of the lease by either the Sublessee or the Lessor with 90 days notice from either party to the other, for a consideration of fair market value per year as determined by the State Properties Commission to be in the best interest of the State of Georgia to receive over the air/satellite broadcast signals and transmit a microwave signal from the site, and such further terms and conditions as determined by the State Properties Commission to be in the best interest of the State of Georgia.

SECTION 125. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect such lease and sublease.

SECTION 126. That the lease and the sublease shall each be recorded by the lessee and sublessee, respectively, in the Superior Court of Rabun County and a recorded copy shall be forwarded to the State Properties Commission.

GEORGIA LAWS 2009 SESSION

435

SECTION 127. That the authorization to lease and sublease the above-described property to SouthernLINC and to Northland Cable Properties, Inc., respectively, shall expire three years after the date that this resolution becomes effective.

ARTICLE XVI SECTION 128.

That the State of Georgia is the owner of the above-described real property in Rabun County and that in all matters relating to the leasing of the approximately 0.015 of an acre of real property the State of Georgia is acting by and through its State Properties Commission.

SECTION 129. That the State of Georgia, acting by and through the State Properties Commission, is authorized to lease the above-described real property to Currahee Paging, Inc., for a period of ten years for a consideration of fair market value as determined by the State Properties Commission to be in the best interest ofthe State of Georgia, payable in advance for the term of the lease, and such further terms and conditions as determined by the State Properties Commission to be in the best interest of the State of Georgia.

SECTION 130. That any sublease of the property must be approved by the State Properties Commission, and such further terms and conditions as determined by the State Properties Commission to be in the best interest of the State of Georgia.

SECTION 131. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect such lease and any sublease.

SECTION 132. That the lease and any subleases shall be recorded by the lessee in the Superior Court of Rabun County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 133. That the authorization to lease and sublease the above-described property to Currahee Paging, Inc., shall expire three years after the date that this resolution becomes effective.

436

GENERAL ACTS AND RESOLUTIONS, VOL. I

ARTICLE XVII SECTION 134.

That the State of Georgia is the owner of the hereinafter described real property in Ware County, and the property is in the custody of the Georgia Forestry Commission hereinafter referred to as the "easement area" and that, in all matters relating to the easement area, the State of Georgia is acting by and through its State Properties Commission.

SECTION 135. That the State of Georgia, acting by and through its State Properties Commission, may grant to Oglethorpe Power Corporation, or its successors and assigns, a 75 year term conservation easement for the planting and maintenance of hardwood trees in various parcels totaling approximately 500 noncontiguous acres of Dixon Memorial State Forest that would not otherwise be replanted by the Georgia Forestry Commission together with the right ofingress and egress in, on, over, under, upon, across, or through adjacent land of the State of Georgia as may be reasonably necessary to accomplish the aforesaid purposes for the 75 year term of the conservation easement, provided that Oglethorpe Power Corporation will evenly split the value of any carbon sequestration credits with the Georgia Forestry Commission for 25 years after the commencement of a carbon sequestration credits regulation program.

SECTION 136. Said easement area is located in Dixon Memorial State Forest in Ware County, Georgia, and is more particularly described as follows:
That portion and that portion only shown as parcels marked in red to indicate the approximately 219 acre first phase of such tree plantings and in blue to indicate the approximately 276 acre second phase of such tree plantings on a 3 sheet drawing prepared by Environmental Services, Inc., of Savannah, Georgia dated November, 2008, and accompanying GPS coordinates for each parcel and being on file in the offices of the State Properties Commission and may be more particularly described by a plat of survey prepared by a Georgia Registered Land Surveyor and presented to the State Properties Commission for approval.

SECTION 137. That the above-described premises may be open to the general public at the discretion of the Georgia Forestry Commission and shall be used solely for the purpose of protecting and maintaining the hardwood trees for potential carbon sequestration credit values of the conservation easement area.

SECTION 138. That no title shall be conveyed to Oglethorpe Power Corporation, and, except as herein specifically granted to Oglethorpe Power Corporation, all rights, title, and interest in and to

GEORGIA LAWS 2009 SESSION

437

said easement area is reserved in the State of Georgia, which may make any use of said easement area not inconsistent with or detrimental to the rights, privileges, and interest granted to Oglethorpe Power Corporation.

SECTION 139. That this resolution does not affect and is not intended to affect any rights, powers, interest, or liability of the Department of Transportation with respect to the state highway system or of a county with respect to the county road system or of a municipality with respect to the city street system. Grantee shall obtain any and all other required permits from the appropriate governmental agencies as are necessary for its lawful use of the easement area or public highway right of way and comply with all applicable state and federal environmental statutes in its use of the easement area.

SECTION 140. That the easement granted to Oglethorpe Power Corporation shall contain such other reasonable terms, conditions, and covenants as the State Properties Commission shall deem in the best interest of the State of Georgia and that the State Properties Commission is authorized to use a more accurate description of the easement area, so long as the description utilized by the State Properties Commission describes the same easement area herein granted.

SECTION 141. That the consideration for such easement shall be $10.00 and such further consideration and provisions as the State Properties Commission may determine to be in the best interest of the State of Georgia.

SECTION 142. That this grant of easement shall be recorded by the Grantee in the Superior Court of Ware County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 143. That the authorization in this resolution to grant the above-described easement to Oglethorpe Power Corporation shall expire five years after the date that this resolution becomes effective.

SECTION 144. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect the grant of the easement area.

438

GENERAL ACTS AND RESOLUTIONS, VOL. I

ARTICLE XVIII SECTION 145.

That the State of Georgia is the owner of the above-described real property located in Baldwin County and that in all matters relating to the leasing of the real property the State of Georgia is acting by and through its State Properties Commission.

SECTION 146. That the State of Georgia, acting by and through the State Properties Commission, is authorized to lease the above-described real property to the selected vendor for a period of 25 years, with a one-year lease with 24 one-year renewals for a consideration of $10.00 to construct and maintain a prison, as long as the property is leased for public purpose, and such further terms and conditions as determined by the State Properties Commission to be in the best interest of the State of Georgia.

SECTION 147. That the State Properties Commission is authorized and empowered to do all acts and things necessary and proper to effect such lease including the execution ofall necessary documents.

SECTION 148. That the lease shall be recorded by the lessee in the Superior Court of Baldwin County and a recorded copy shall be forwarded to the State Properties Commission.

SECTION 149. That the authorization to lease the above-described property shall expire four years after the date that this resolution becomes effective.

ARTICLE XIX SECTION 150.

That this resolution shall become effective as law upon its approval by the Governor or upon its becoming law without such approval.

SECTION 151. That all laws and parts of laws in conflict with this resolution are repealed.

Approved April30, 2009.

GEORGIA LAWS 2009 SESSION

439

AGRICULTURE- BOLL WEEVIL; SUPP~ESSION AND ERADICATION ASSESSMENT AND CONDITIONS; PENALTIES.

No. 97 (Senate Bill No. 43).

AN ACT

To amend Article 5 of Chapter 7 of Title 2 of the Official Code of Georgia Annotated, relating to boll weevil eradication, so as to change certain provisions relating to definitions; to change certain provisions relating to the assessment for suppression and eradication programs and conditions of assessments; to change certain provisions relating to penalties; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Article 5 of Chapter 7 of Title 2 of the Official Code of Georgia Annotated, relating to boll weevil eradication, is amended by revising paragraph (4.1) of Code Section 2-7-152, relating to definitions, as follows:
'(4.1) 'First handler' means that person who owns or operates the gin where cotton is first delivered from the cotton grower."

SECTION 2. Said article is further amended by revising paragraphs (3) and (7) of Code Section 2-7-156, relating to the assessment for suppression and eradication programs and conditions of assessments, as follows:
'(3) When the assessment is imposed on a per bale basis, it shall be the duty of each first handler of cotton from cotton growers in this state to collect the assessments imposed pursuant to this article on such cotton, to file reports on forms prescribed by the Commissioner listing such sales and the name of the grower, and to remit the amounts so imposed and collected to the Commissioner within 30 days of the date of purchase of the cotton;' '(7) In addition to the lien provided in paragraph (6) of this Code section, the Commissioner shall have a special lien on cotton for payment of assessments which shall be superior to any other lien provided by law, shall arise as of the time the assessments become due and payable, and shall cover all cotton grown by or ginned from the cotton grower from the date the lien arises until such assessments are paid; provided, however, that any buyers of cotton shall take free of such lien if such buyer has not received written notice of the lien from the Commissioner. Such lien extends to the proceeds of sale received by the person who originally bought the cotton from the grower. Notice may

440

GENERAL ACTS AND RESOLUTIONS, VOL. I

be provided by tagging the cotton as being subject to a delinquency or by documentation in the sales agreement indicating that the cotton is subject to a delinquency. The Commissioner or the Commissioner's authorized representative is authorized and empowered to so tag the cotton wherever found. In order to enforce such liens, the Commissioner is authorized to issue an execution for the collection of delinquent assessments due the Commissioner. The execution shall be directed to all and singular sheriffs of this state and shall command them to levy upon the cotton ofthe cotton grower or notified initial buyer; provided, however, that the Commissioner shall be authorized to levy and collect his or her own executions. Each sheriff or the Commissioner or the Commissioner's authorized representative shall execute the execution as in cases ofwrits of execution from the superior courts. The Commissioner or the Commissioner's authorized representative may levy and conduct judicial sales in the manner provided by law for sales by sheriffs and constables. The special lien on cotton may also be enforced by a foreclosure action or action at law, as appropriate, brought by the Commissioner in the superior court of the county of residence of the person who originally bought the cotton from the grower. A buyer of cotton other than a person buying cotton from the grower takes free of the lien created by this paragraph.'

SECTION 3. Said article is further amended by revising subsection (b) of Code Section 2-7-158, relating to penalties, as follows:
(b) Any cotton grower or the first handler of cotton from a cotton grower who fails to pay any assessment levied under this article when due and upon reasonable notice shall be subject to a penalty of not more than $25.00 per acre or $12.50 per bale, such amount to be established by the Commissioner upon recommendation of the board of directors of the cotton growers' organization.'

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved May 1, 2009.

GEORGIA LAWS 2009 SESSION

441

FOOD -TESTING FOR CONTAMINANTS; FOOD SAFETY PLANS; REPORTS; RECORDS; RIGHT OF ENTRY; INSPECTIONS.

No. 98 (Senate Bill No. 80).

AN ACT

To amend Article 2 of Chapter 2 of Title 26 of the Official Code of Georgia Annotated, relating to adulteration and misbranding of food, so as to change certain provisions relating to prohibited acts; to provide requirements for testing of samples or specimens of foods and ingredients of food processing plants for the presence ofpoisonous or deleterious substances or other contaminants; to provide for food safety plans; to provide for reports and records; to provide for rules and regulations; to change certain provisions relating to right of entry in food establishments and transport vehicles and examination of samples obtained; to provide for inspections; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Article 2 of Chapter 2 of Title 26 of the Official Code of Georgia Annotated, relating to adulteration and misbranding of food, is amended in Code Section 26-2-22, relating to prohibited acts, by adding a new paragraph to read as follows:
'(5.1) The failure to comply with testing, reporting, or record-keeping requirements provided by or pursuant to Code Section 26-2-27.I;'

SECTION 2. Said article is further amended by adding a new Code section to read as follows:
'26-2-27.1. (a) As used in this Code section, the term 'food processing plant' means a commercial operation that manufactures food for human consumption and does not provide food directly to a consumer from that location. Such term shall not include a commercial operation that produces raw agricultural commodities and whose end product remains a raw agricultural product.
(b)(l)(A) In order to protect the public health, safety, and welfare and ensure compliance with this article, the Commissioner shall by rule or regulation establish requirements for regular testing of samples or specimens of foods and ingredients by food processing plants for the presence of poisonous or deleterious substances or other contaminants rendering such foods or ingredients injurious to health. Such rules or

442

GENERAL ACTS AND RESOLUTIONS, VOL. I

regulations shall identify the specific classes or types of food processing plants, foods, ingredients, and poisonous or deleterious substances or other contaminants that shall be subject to such testing requirements and the frequency with which such tests shall be performed by food processing plants. (B) The Commissioner shall also promulgate rules and regulations establishing minimum standards and requirements for a written food safety plan, such as a hazard analysis critical control point plan, that may be submitted by an operator of a food processing plant to document and describe the procedures used at such plant to prevent the presence of hazards such as poisonous or deleterious substances or other contaminants that would render finished foods or finished ingredients as manufactured at such plant injurious to health, including preventive controls, monitoring to ensure the effectiveness ofsuch controls, and records ofcorrective actions, including actions taken in response to the presence ofknown hazards. If an operator of a food processing plant, in its discretion, submits to the department a written food safety plan for such plant and such plan conforms to rules and regulations promulgated for purposes of this subparagraph, then such food processing plant shall comply with the requirements of such written food safety plan, including but not limited to any test regimen provided by such plan, in lieu of complying with a test regimen established by rules or regulations promulgated by the Commissioner pursuant to subparagraph (A) of this paragraph. (2) In addition to any regular tests required pursuant to paragraph (1) of this subsection, the Commissioner may order any food processing plant to have samples or specimens of its foods and ingredients tested for the presence of any poisonous or deleterious substances or other contaminants whenever in his or her determination there are reasonable grounds to suspect that such foods or ingredients may be injurious to health. (c) Any food processing plant subject to any testing requirements pursuant to this Code section shall cause such required tests to be performed in accordance with testing standards and procedures established by rules and regulations of the Commissioner. Testing standards and procedures established by the Commissioner under this paragraph shall be consistent with standards presented in the federal Food and Drug Administration's Bacterial Analytical Manual and standards developed by the Association ofAnalytical Communities International, International Organization for Standardization, or another internationally recognized certification body. (d) A food processing plant shall be responsible for the cost of any testing required pursuant to this Code section and may conduct such testing either internally or via a third party, provided that subsection (c) of this Code section applies in either case. (e) Whenever any person or firm that operates a food processing plant in this state obtains information from testing of samples or specimens of finished foods or finished food ingredients as manufactured at such food processing plant which, based on a confirmed positive test result, indicates the presence of a substance that would cause a manufactured food bearing or containing the same to be adulterated within the meaning of paragraph (1)

GEORGIA LAWS 2009 SESSION

443

of Code Section 26-2-26, such person or firm shall report such test result to the department within 24 hours after obtaining such information. (f) Records of the results of any tests required pursuant to this Code section shall be kept by a food processing plant and made available to the department for inspection for a period of not less than two years from the date the results were reported by the laboratory. (g) This Code section shall not apply to any food processing plant operating under a federal grant of inspection from the United States Department of Agriculture Food Safety and Inspection Service.'

SECTION 3. Said article is further amended by revising Code Section 26-2-36, relating to right of entry in food establishments and transport vehicles and examination of samples obtained, as
follows: '26-2-36. (a) The Commissioner or his duly authorized agent shall have free access during all hours of operation and at all other reasonable hours to any factory, warehouse, or establishment in which food is manufactured, processed, packed, or held for introduction into commerce and any vehicle being used to transport or hold such foods to commerce for the purposes: (l) Of inspecting such factory, warehouse, establishment, or vehicle, any records of pathogen destruction, and any records of testing of samples or specimens of foods or ingredients for the presence ofpoisonous or deleterious substances or other contaminants and the results thereof as may be required pursuant to Code Section 26-2-27 .l, to determine if any of the provisions of this article are being violated; and (2) Of securing samples or specimens of any food, after paying or offering to pay for such sample. (b) It shall be the duty of the Commissioner to make or cause to be made examinations of samples secured under subsection (a) of this Code section to determine whether or not this article is being violated.'

SECTION 4. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 5. All laws and parts of laws in conflict with this Act are repealed.

Approved May l, 2009.

444

GENERAL ACTS AND RESOLUTIONS, VOL. I

AGRICULTURE- TORTS- LOCAL ORDINANCE PREEMPTION; AGRITOURISM LIABILITY LIMITS.

No. 99 (House Bill No. 529).

AN ACT

To amend Chapter 1 of Title 2 ofthe Official Code ofGeorgia Annotated, relating to general provisions relative to agriculture, so as to preempt certain local ordinances relating to production of agricultural or farm products; to provide certain exceptions; to amend Chapter 1 of Title 51 of the Official Code of Georgia Annotated, relating to general provisions regarding torts, so as to limit liability of certain landowners who permit persons to hunt or fish on their property or allow persons on such property for agritourism; to require the posting ofcertain signs; to provide for specifications for such signs; to provide for related matters; to provide for an effective date and applicability; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Chapter 1 ofTitle 2 ofthe Official Code of Georgia Annotated, relating to general provisions relative to agriculture, is amended by adding a new Code section to read as follows:
"2-1-6. (a) No county, municipality, consolidated government, or other political subdivision ofthis state shall adopt or enforce any ordinance, rule, regulation, or resolution regulating crop management or animal husbandry practices involved in the production of agricultural or farm products on any private property. (b) Subsection (a) of this Code section shall not prohibit or impair the power of any local government to adopt or enforce any zoning ordinance or make any other zoning decision. As used in this subsection, the terms 'local government', 'zoning decision', and 'zoning ordinance' have the same meanings provided by Code Section 36-66-3. (c) Subsection (a) of this Code section shall not prohibit or impair any existing power of a county, municipality, consolidated government, or other political subdivision ofthis state to adopt or enforce any ordinance, rule, regulation, or resolution regulating land application of human waste."

SECTION 2. Chapter 1 of Title 51 of the Official Code of Georgia Annotated, relating to general provisions regarding torts, is amended by adding a new Code section to read as follows:

GEORGIA LAWS 2009 SESSION

445

'51-l-53. (a) For the purposes of this Code section, the term 'agritourism' shall carry the same meaning as set out in subparagraph (p)(7)(B) of Code Section 48-5-7.4. (b) A landowner who charges admission for a person who is 18 years of age or older to hunt or fish on the owner's property or to enter the owner's property for the purposes of agritourism shall be immune from civil liability for any injuries caused by the inherent risk associated with agritourism, hunting, or fishing activity, provided that:
(I) The landowner's conduct does not constitute gross negligence or willful and wanton misconduct; (2) The landowner has posted at the main point of entry, if present, to the property a sign with a warning notice stating the following:
(A) In the case of agritourism: 'Warning
Under Georgia law, there is no liability for an injury or death of a participant at least 18 years of age in a registered agritourism activity conducted at this registered agritourism location if such injury or death results from the inherent risks of such agritourism activity. Inherent risks of agritourism activities include, but shall not be limited to, the potential of you to act in a negligent manner that may contribute to your injury or death and the potential of another participant to act in a negligent manner that may contribute to your injury or death. You are assuming the risk of participating in this registered agritourism activity.' (B) In the case of a landowner who charges admission for a person who is 18 years of age or older to hunt or fish on the owner's property:
'Warning Under Georgia law, there is no liability for an injury or death of a hunting or fishing participant at least 18 years of age conducted at this location if such injury or death results from the inherent risks of such hunting or fishing activity. Inherent risks of hunting or fishing activities include, but shall not be limited to, the potential of you to act in a negligent manner that may contribute to your injury or death and the potential of another participant to act in a negligent manner that may contribute to your injury or death. You are assuming the risk of participating in this hunting or fishing activity.' The warning notice specified in this paragraph shall appear on the sign in black letters, with each letter to be a minimum of one inch in height; and (3) The person who has paid admission to the landowner to enter such landowner's property to hunt, fish, or for the purposes of agritourism has signed a waiver of liability form stating that the person entering the landowner's property has waived all civil liability against the landowner for any injuries caused by the inherent risk associated with agritourism, hunting, or fishing activity. Such waiver of liability form shall mirror the language provided for in paragraph (2) of this subsection regarding the warning notice.

446

GENERAL ACTS AND RESOLUTIONS, VOL. I

(c) This Code section shall be supplemental to all other provisions of law that provide defenses to property owners. This Code section shall not create any new cause of action against a property owner or additional liability to property owners.'

SECTION 3. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval; and Section 2 of this Act shall apply to all causes of action arising on or after the effective date of this Act.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved May 1, 2009.

AGRICULTURE- COMMISSIONER; ADMINISTRATIVE AUTHORITY; PENALTIES; TRADEMARKS; ORNAMENTAL PLANTS; COMMODITY COMMISSION.
No. 100 (Senate Bill No. 152).
AN ACT
To amend Title 2 of the Official Code of Georgia Annotated, relating to agriculture, so as to change certain provisions relating to administrative authority of the Commissioner of Agriculture, hearings, penalties, final decisions, and judicial review; to change certain provisions relating to imposition of penalty in lieu of other action; to authorize the Commissioner of Agriculture to create, register, license, promote, and protect a trademark for use in connection with the general promotion of all agricultural commodities grown in this state; to define certain terms; to provide for an Agricultural Commodity Commission for Ornamental Plants; to provide for balloting; to provide an effective date; to provide for applicability; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Title 2 ofthe Official Code ofGeorgia Annotated, relating to agriculture, is amended in Code Section 2-2-9.1, relating to administrative authority of the Commissioner of Agriculture,

GEORGIA LAWS 2009 SESSION

447

bearings, penalties, final decisions, and judicial review, by revising subsections (c) and (g) and paragraph (I) of subsection (h) as follows:
'(c) Any administrative order issued by the Commissioner shall specify the alleged violation, monetary penalty, or other sanction; prescribe a reasonable time for some type of action to be accomplished; and provide notice ofthe right to a hearing. Any order issued pursuant to this Code section shall become final unless the aggrieved or adversely affected registrant, licensee, permittee, applicant, equine owner, livestock owner, dog or cat owner, exotic and pet bird owner, or farmer of crops or livestock, chickens, or other animals timely requests a hearing in writing as provided by this Code section." '(g) Prior to notice, hearing, or determination, the Commissioner is authorized to impose civil penalties in settlement of contested cases through administrative consent orders. The Commissioner is authorized to impose through administrative consent orders civil penalties of up to and including the applicable maximum amounts provided by paragraph (I) of subsection (h) of this Code section. Any civil penalties recovered shall be paid over into the general fund of the state treasury in accordance with Code Section 45-12-92.
(h)( I) The Commissioner may seek civil penalties for the violation of those laws to be enforced by the Department of Agriculture; and where the imposition of such civil penalties is provided for therein, the Commissioner upon written request may cause a hearing to be conducted before a hearing officer appointed or designated by the Commissioner for the purpose of determining whether such civil penalties should be imposed in accordance with the applicable law; and where the imposition of such civil penalties is not provided for therein but violation of such law is punishable as a criminal offense, the Commissioner upon written request may cause a hearing to be conducted before a hearing officer appointed or designated by the Commissioner for the purpose of determining whether civil penalties in an amount not to exceed $1,000.00 per violation should be imposed. Any civil penalties recovered shall be paid over into the general fund of the state treasury in accordance with Code Section 45-12-92."

SECTION 2. Said title is further amended in Code Section 2-2-10, relating to imposition ofpenalty in lieu of other action, by adding a new subsection to read as follows:
'(c) Any civil penalties recovered shall be paid over into the general fund of the state treasury in accordance with Code Section 45-12-92."

SECTION 3. Said title is further amended by adding a new article to read as follows:

'ARTICLE lA

2-8-5. (a) As used in this Code section, the term:

448

GENERAL ACTS AND RESOLUTIONS, VOL. I

(I) 'Agricultural commodities' means any and all agricultural, horticultural, floricultural, and vegetable products produced in this state or any class, variety, or utilization thereof, either in their natural state or as processed by a producer for the purpose of marketing such product or by a processor, and shall include any one, any combination thereof, or all of the agricultural products, livestock and livestock products, poultry and poultry products, timber and timber products, fish and seafood, and the products of the farms and forests of this state. (2) 'Processor' has the meaning provided by Code Section 2-8-11. (3) 'Producer' has the meaning provided by Code Section 2-8-11. (b) The Commissioner shall be authorized to take all actions necessary and appropriate to create, register, license, promote, and protect a trademark for use in connection with the general promotion of agricultural commodities as being Georgia grown.'

SECTION 4. Said title is further amended in subsection (a) of Code Section 2-8-13, relating to established agricultural commodity commissions and ratifications, contributions, and balloting relating thereto, by adding a new paragraph to read as follows:
'(4) There shall be an Agricultural Commodity Commission for Ornamental Plants established on the effective date of this paragraph. For purposes of this paragraph, the term 'ornamental plants' means any plants grown in commercial nurseries for sale as live plants for use primarily in ornamental or landscape plantings; such term shall not include turf production or plants grown in nurseries for other agricultural, horticultural, or silvicultural use.'

SECTION 5. Said title is further amended in subsection (c) of Code Section 2-8-13, relating to established agricultural commodity commissions and ratifications, contributions, and balloting relating thereto, by adding a new paragraph to read as follows:
'(4) Prior to April30, 2011, and each three years thereafter, balloting shall be conducted in accordance with Code Section 2-8-23 to determine whether any existing commission listed in paragraph (4) of subsection (a) of this Code section shall continue to exist and operate under this article.'

SECTION 6. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 7. Section 1 of this Act shall apply to violations occurring on or after the effective date of this Act.

GEORGIA LAWS 2009 SESSION

449

SECTION 8. All laws and parts of laws in conflict with this Act are repealed.

Approved May I, 2009.

MOTOR VEHICLES -TRAILER REGULATION; PERMANENT LICENSE PLATES; BOAT, UTILITY, AND LIVESTOCK TRAILERS.
No. 101 (Senate Bill No. 128).
AN ACT
To amend Title 40 of the Official Code of Georgia Annotated, relating to motor vehicles and traffic, so as to provide for the regulation of trailers, to provide for the issuances, at the registration and licensing of motor vehicles, and so as to provide for the issuances, at the option of the owner, of permanent license plates for boat trailers, utility trailers, and noncommercial cattle and livestock trailers; to provide for fees; to provide that such license plates shall not be transferable; to provide for administration; to update certain provisions relating to surge brakes; to provide for effective dates; and for applicability; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 2 of Title 40 of the Official Code of Georgia Annotated, relating to registration and licensing of motor vehicles, is amended by revising subparagraph (A) of paragraph (1) of subsection (a) of Code Section 40-2-20, relating to registration and license requirements, extension of registration period, and penalties, as follows:
'(a)(l )(A) Except as provided in subsection (b) of this Code section and subsection (a) of Code Section 40-2-47, every owner of a motor vehicle, including a tractor or motorcycle, and every owner of a trailer shall, during the owner's registration period in each year, register such vehicle as provided in this chapter and obtain a license to operate it for the 12 month period until such person's next registration period.'

450

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 2. Said chapter is further amended by revising Code Section 40-2-47, relating to permanent registration and license plates for certain trailers and the definition of "leased or rented trailer," as follows:
'40-2-47. (a) Notwithstanding any other provision of this chapter to the contrary, the owner of any trailer, including:
(I) Any leased or rented trailer and including single pole and twin-beam trailers and other trailers used in commercial logging or commercial trailers used for the hauling of unprocessed farm products used as or in connection with a motor vehicle, truck, or tractor used as a common or contract carrier for hire, a private carrier, or a motor carrier of property; or (2) Any boat trailer, utility trailer, or noncommercial cattle and livestock trailer, shall have the option ofobtaining a permanent registration and license plate for such trailer, in lieu of an annual registration and license plate, upon the payment of the one-time fee specified in Code Section 40-2-151 and compliance with the provisions of this Code section. (b) The certificate of registration and license plate issued for a specific trailer under this Code section shall continue to be valid for the duration of the owner's interest in such trailer. No registration or license plate issued for any trailer under this Code section shall be transferred for any reason and a new registration and license plate shall be required when ownership of the trailer is transferred to a new owner. The payment of the fee for a permanent registration and license plate shall be in addition to and not in lieu of the payment of annual ad valorem taxes on such trailer during the period of December I to February 15. (c) As used in this Code section, the term 'leased or rented trailer' means any utility trailer that is owned by and leased or rented out by a person, firm, or corporation in the business of leasing or renting out such trailers.'

SECTION 3. Said chapter is further amended by revising subsection (b) ofCode Section 40-2-151, relating to annual license fees for operation of vehicles and fee for permanent licensing of certain trailers, as follows:
(b) In lieu of the annual fee provided in paragraphs (6), (7) or (8) of subsection (a) of this Code section, the optional one-time fee for a permanent registration and license plate for:
(I) Any trailer used as or in connection with a motor vehicle, truck, or tractor used as a common or contract carrier for hire, a private carrier, or a motor carrier of property; or (2) Any boat trailer, utility trailer, or noncommercial cattle and livestock trailer authorized to obtain a permanent registration and license plate under the provisions of Code Section 40-2-47 shall be $48.00.'

GEORGIA LAWS 2009 SESSION

451

SECTION 3A. Said title is further amended by revising Code Section 40-8-50, relating to brakes required on motor vehicles, as follows:
'40-8-50. (a) As used in this Code section, the term:
(1) 'Gross combination weight rating (GCWR)' means the combined gross vehicle weight ratings of all vehicles in a combination of vehicles. (2) 'Gross vehicle weight rating (GVWR)' means the value specified by the manufacturer or manufacturers as the maximum loaded weight of a single or a combination (articulated) vehicle, the actual gross weight, or registered gross weight, whichever is greater. (3) 'Hazardous material' has the meaning provided by Chapter 51 of Title 49 of the United States Code Annotated. (4) 'Surge brakes' means a self-contained, permanently closed hydraulic brake system for trailers that relies on inertial forces, developed in response to the braking action of the towing vehicle, applied to a hydraulic device mounted on or connected to the tongue of the trailer to slow down or stop the towed vehicle. (b) Every motor vehicle, other than a motorcycle or motor driven cycle, when operated upon a highway shall be equipped with brakes adequate to control the movement of and to stop and hold such vehicle, including two separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two wheels. If these two separate means of applying the brakes are connected in any way, they shall be so constructed that failure on any one part of the operating mechanism shall not leave the motor vehicle without brakes on at least two wheels. (c) Every motorcycle and motor driven cycle manufactured after January I, 1974, when operated upon a highway, shall be equipped with at least two brakes which may be operated by hand or foot. (d) Except as otherwise provided in subsection (e) of this Code section, every trailer or semitrailer of 3,000 pounds gross weight or more shall be equipped with brakes on all wheels. Any farm trailer with two or more wheels, pulled from a tongue, used in or operated for farm purposes, including transporting fertilizer and agricultural materials to the farm, shall not be required to have an independent braking system thereon, provided such farm trailer shall not weigh over 4,000 pounds when empty. (e) Any trailer or semitrailer may utilize surge brakes, subject to the following conditions and limitations: (l) The gross vehicle weight rating or the actual gross weight of any surge brake equipped trailer or semitrailer does not exceed 20,000 pounds; (2) For trailers and semitrailers with a gross vehicle weight rating of 12,000 pounds or less, the gross vehicle weight rating of any such trailer shall not exceed l.75 times the gross vehicle weight rating of the towing vehicle;

452

GENERAL ACTS AND RESOLUTIONS, VOL. I

(3) For trailers and semitrailers with a gross vehicle weight rating greater than 12,000 pounds, but less than 20,001 pounds, the gross vehicle weight rating of any such trailer shall not exceed 1.25 times the gross vehicle weight rating of the towing vehicle; (4) The actual gross weight of the trailer or semitrailer and load does not exceed the manufacturer's gross vehicle weight rating; (5) The trailer or semitrailer brakes must be designed and connected in such a manner that in case of accidental breakaway of the towed vehicle the brakes shall apply automatically; and (6) For vehicles used for commercial purposes, the vehicle or combination of vehicles complies in all other respects with licensing, insurance, registration, identification, driver and vehicle safety, and hazardous materials regulations of the Department of Public Safety and United States Department of Transportation applicable to such vehicles or combination of vehicles. (f) Where there is no manufacturer's gross vehicle weight rating or the manufacturer's gross vehicle weight rating is exceeded in violation of paragraph (4) of subsection (e) of this Code section, then the actual gross weight of the trailer or semitrailer shall be used to determine compliance with paragraphs (2) and (3) of subsection (e) of this Code section.'

SECTION 4. Section 3A of this Act shall become effective upon its approval by the Governor or upon its becoming law without such approval. The remaining sections of this Act shall become effective on January l, 2010, and shall apply to registration and licensing of trailers on and after such date.

SECTION 5. All laws and parts of laws in conflict with this Act are repealed.

Approved May 1, 2009.

GEORGIA LAWS 2009 SESSION

453

OFFICIAL CODE OF GEORGIA ANNOTATED- ESTABLISH DEPARTMENT OF HUMAN SERVICES, DEPARTMENT OF BEHAVIORAL HEALTH AND DEVELOPMENTAL DISABILITIES, STATE HEALTH OFFICER, BEHAVIORAL HEALTH COORDINATING COUNCIL, ADVISORY COUNCIL FOR PUBLIC HEALTH, AND PUBLIC HEALTH COMMISSION.

No. 102 (House Bill No. 228).

AN ACT

To amend various titles of the Official Code of Georgia Annotated so as to reorganize and reestablish various state health and human services agencies; to reestablish the Department of Community Health; to establish the Department of Human Services and the Department of Behavioral Health and Developmental Disabilities; to reassign various functions to the new agencies; to provide for transition to the new agencies; to provide for a board for each agency; to reconstitute the Board of Community Health; to abolish the Board of Human Resources; to establish the position of State Health Officer; to establish the Behavioral Health Coordinating Council; to establish the Advisory Council for Public Health; to establish the Public Health Commission; to provide for inspection warrants for residential child care licensing; to revise a provision in state health planning; to provide for criminal background checks for employees of the Department of Behavioral Health and Developmental Disabilities; to repeal the automatic sunset provision for the State Commission on Family Violence; to amend various titles for purposes of conformity; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

PART I Department of Community Health.

SECTION 1-1. Title 31 ofthe Official Code of Georgia Annotated, relating to health, is amended by revising and redesignating Chapter SA, relating to the Department ofCommunity Health, and revising Chapter 2, relating to the Department of Human Resources, as follows:

454

GENERAL ACTS AND RESOLUTIONS, VOL. I

'CHAPTER 2

31-2-1. Given the growing concern and complexities of health issues in this state, it is the intent of the General Assembly to create a Department of Community Health dedicated to health issues. The Department of Community Health shall safeguard and promote the health of the people of this state and is empowered to employ all legal means appropriate to that end. Illustrating, without limiting, the foregoing grant of authority, the department is empowered to:
(I) Serve as the lead planning agency for all health issues in the state to remedy the current situation wherein the responsibility for health care policy, purchasing, planning, and regulation is spread among many different agencies; (2) Permit the state to maximize its purchasing power and to administer its operations in a manner so as to receive the maximum amount of federal financial participation available in expenditures of the department; (3) Minimize duplication and maximize administrative efficiency in the state's health care systems by removing overlapping functions and streamlining uncoordinated programs; (4) Allow the state to develop a better health care infrastructure that is more responsive to the consumers it serves while improving access to and coverage for health care; (5) Focus more attention and departmental procedures on the issue ofwellness, including diet, exercise, and personal responsibility; (6) Provide epidemiological investigations and laboratory facilities and services in the detection and control of disease, disorders, and disabilities and to provide research, conduct investigations, and disseminate information concerning reduction in the incidence and proper control of disease, disorders, and disabilities; (7) Forestall and correct physical, chemical, and biological conditions that, if left to run their course, could be injurious to health; (8) Regulate and require the use of sanitary facilities at construction sites and places of public assembly and to regulate persons, firms, and corporations engaged in the rental and service of portable chemical toilets; (9) Isolate and treat persons afflicted with a communicable disease who are either unable or unwilling to observe the department's rules and regulations for the suppression of such disease and to establish, to that end, complete or modified quarantine, surveillance, or isolation of persons and animals exposed to a disease communicable to man; (10) Procure and distribute drugs and biologicals and purchase services from clinics, laboratories, hospitals, and other health facilities and, when authorized by law, to acquire and operate such facilities; (II) Cooperate with agencies and departments ofthe federal government and of the state by supplying consultant services in medical and hospital programs and in the health aspects of civil defense, emergency preparedness, and emergency response;

GEORGIA LAWS 2009 SESSION

455

(12) Prevent, detect, and relieve physical defects and deformities; (13) Promote the prevention, early detection, and control ofproblems affecting the dental and oral health of the citizens of Georgia; (14) Contract with county boards of health to assist in the performance of services incumbent upon them under Chapter 3 of this title and, in the event of grave emergencies of more than local peril, to employ whatever means may be at its disposal to overcome such emergencies; (15) Contract and execute releases for assistance in the performance of its functions and the exercise of its powers and to supply services which are within its purview to perform; (16) Enter into or upon public or private property at reasonable times for the purpose of inspecting same to determine the presence of disease and conditions deleterious to health or to determine compliance with health laws and rules, regulations, and standards thereunder; (17) Promulgate and enforce rules and regulations for the licensing of medical facilities wherein abortion procedures under subsections (b) and (c) ofCode Section 16-12-141 are to be performed; and, further, to disseminate and distribute educational information and medical supplies and treatment in order to prevent unwanted pregnancy; and (18) Establish, by rule adopted pursuant to Chapter l3 of Title 50, the 'Georgia Administrative Procedure Act,' a schedule of fees for laboratory services provided, schedules to be determined in a manner so as to help defray the costs incurred by the department, but in no event to exceed such costs, both direct and indirect, in providing such laboratory services, provided no person shall be denied services on the basis of his or her inability to pay. All fees paid thereunder shall be paid into the general funds of the State of Georgia. The individual who requests the services authorized in this paragraph, or the individual for whom the laboratory services authorized in this paragraph are performed, shall be responsible for payment of the service fees. As used in this paragraph, the term 'individual' means a natural person or his or her responsible health benefit policy or Title XVIII, XIX, or XXI of the federal Social Security Act of 1935.

31-2-2. As used in this chapter, the term:
(l) 'Board' means the Board of Community Health established under Code Section 31-2-3. (2) 'Commissioner' means the commissioner of community health established under Code Section 31-2-6. (3) 'Department' means the Department of Community Health established under Code Section 31-2-4. (4) 'Predecessor agency or unit' means the Department of Community Health, the Division of Public Health of the Department of Human Resources, and the Office of Regulatory Services of the Department of Human Resources.

456

GENERAL ACTS AND RESOLUTIONS, VOL. I

(5) 'State health benefit plan' means the health insurance plan authorized under Article 1 of Chapter 18 of Title 45 and Part 6 of Article 17 of Chapter 2 of Title 20. (6) 'State Personnel Board' means the board established under Article IV, Section III of the Constitution.

31-2-3. (a) There is reconstituted the Board of Community Health, as of July 1, 2009, which shall establish the general policy to be followed by the Department of Community Health. The powers, functions, and duties of the Board of Community Health as they existed on June 30,2009, are transferred to the reconstituted Board of Community Health effective July I, 2009. The board shall consist of nine members appointed by the Governor and confirmed by the Senate. (b) Board members in office on June 30, 2009, shall serve out the remainder of their respective terms and successors to these board seats shall be appointed in accordance with this Code section. Thereafter, all succeeding appointments shall be for three-year terms from the expiration of the previous term. (c) Vacancies in office shall be filled by appointment by the Governor in the same manner as the appointment to the position on the board which becomes vacant, and the appointment shall be submitted to the Senate for confirmation at the next session of the General Assembly. An appointment to fill a vacancy other than by expiration of a term of office shall be for the balance of the unexpired term. (d) Members of the board may be removed from office under the same conditions for removal from office ofmembers ofprofessional licensing boards provided in Code Section 43-1-17. (e) There shall be a chairperson of the board elected by and from the membership of the board who shall be the presiding officer of the board. (f) The members of the board shall receive a per diem allowance and expenses as shall be set and approved by the Office of Planning and Budget in conformance with rates and allowances set for members of other state boards.

31-2-4. (a)(1) The Department of Community Health is re-created and established to perform the functions and assume the duties and powers exercised on June 30, 2009, by the Department of Community Health, the Division of Public Health of the Department of Human Resources, and the Office ofRegulatory Services of the Department of Human Resources, unless specifically transferred to the Department ofHuman Services, and such department, division, and office shall be reconstituted as the Department of Community Health effective July 1, 2009. The department shall retain powers and responsibility with respect to the expenditure ofany funds appropriated to the department including, without being limited to, funds received by the state pursuant to the settlement of the lawsuit tiled

GEORGIA LAWS 2009 SESSION

457

by the state against certain tobacco companies, State of Georgia, eta[. v. Philip Morris, Inc., et al., Civil Action #E-61692, V19/246 (Fulton County Superior Court, December 9, 1998). (2) The director of the Division of Public Health in office on June 30, 2009, and the director of the Office of Regulatory Services in office on June 30, 2009, shall become directors ofthe respective division or office which those predecessor agencies or units have become on and after July 1, 2009, and until such time as the commissioner appoints other directors of such divisions or units. (b)(l) There is created in the department the Office of Women's Health. Attached to the office shall be an 11 member advisory council. The members of the advisory council shall be appointed by the Governor and shall be representative of major public and private agencies and organizations in the state and shall be experienced in or have demonstrated particular interest in women's health issues. Each member shall be appointed for two years and until his or her successor is appointed. The members shall be eligible to succeed themselves. The council shall elect its chairperson from among the councilmembers for a term of two years. The Governor may name an honorary chairperson of the council. (2) The Office of Women's Health shall serve in an advisory capacity to the Governor, the General Assembly, the board, the department, and all other state agencies in matters relating to women's health. In particular, the office shall:
(A) Raise awareness of women's nonreproductive health issues; (B) Inform and engage in prevention and education activities relating to women's nonreproductive health issues; (C) Serve as a clearing-house for women's health information for purposes ofplanning and coordination; (D) Issue reports of the office's activities and findings; and (E) Develop and distribute a state comprehensive plan to address women's health issues. (3) The council shall meet upon the call of its chairperson, the board, or the commissioner. (c) The Board of Regents of the University System of Georgia is authorized to contract with the department for health benefits for members, employees, and retirees of the board of regents and the dependents of such members, employees, and retirees and for the administration of such health benefits. The department is also authorized to contract with the board of regents for such purposes. (d) In addition to its other powers, duties, and functions, the department: (1) Shall be the lead agency in coordinating and purchasing health care benefit plans for state and public employees, dependents, and retirees and may also coordinate with the board of regents for the purchase and administration of such health care benefit plans for its members, employees, dependents, and retirees;

458

GENERAL ACTS AND RESOLUTIONS, VOL. I

(2) Is authorized to plan and coordinate medical education and physician workforce issues; (3) Shall investigate the lack of availability of health insurance coverage and the issues associated with the uninsured population of this state. In particular, the department is authorized to investigate the feasibility ofcreating and administering insurance programs for small businesses and political subdivisions of the state and to propose cost-effective solutions to reducing the numbers of uninsured in this state; (4) Is authorized to appoint a health care work force policy advisory committee to oversee and coordinate work force planning activities; (5) Is authorized to solicit and accept donations, contributions, and gifts and receive, hold, and use grants, devises, and bequests of real, personal, and mixed property on behalf of the state to enable the department to carry out its functions and purposes; (6) Is authorized to award grants, as funds are available, to hospital authorities and hospitals for public health purposes, pursuant to Code Sections 31-7-94 and 31-7-94.1; (7) Shall make provision for meeting the cost of hospital care of persons eligible for public assistance to the extent that federal matching funds are available for such expenditures for hospital care. To accomplish this purpose, the department is authorized to pay from funds appropriated for such purposes of the amount required under this paragraph into a trust fund account which shall be available for disbursement for the cost of hospital care of public assistance recipients. The commissioner, subject to the approval of the Office of Planning and Budget, on the basis of the funds appropriated in any year, shall estimate the scope of hospital care available to public assistance recipients and the approximate per capita cost of such care. Monthly payments into the trust fund for hospital care shall be made on behalf of each public assistance recipient and such payments shall be deemed encumbered for assistance payable. Ledger accounts reflecting payments into and out of the hospital care fund shall be maintained for each of the categories of public assistance established under Code Section 49-4-3. The balance of state funds in such trust fund for the payment of hospital costs in an amount not to exceed the amount of federal funds held in the trust fund by the department available for expenditure under this paragraph shall be deemed encumbered and held in trust for the payment of the costs of hospital care and shall be rebudgeted for this purpose on each quarterly budget required under the laws governing the expenditure of state funds. The state auditor shall audit the funds in the trust fund established under this paragraph in the same manner that any other funds disbursed by the department are audited; and (8) Shall classify and license community living arrangements in accordance with the rules and regulations promulgated by the department for the licensing and enforcement oflicensing requirements for persons whose services are financially supported, in whole or in part, by funds authorized through the Department of Behavioral Health and Developmental Disabilities. To be eligible for licensing as a community living arrangement, the residence and services provided must be integrated within the local community. All community living arrangements licensed by the department shall be

GEORGIA LAWS 2009 SESSION

459

subject to the provisions of Code Sections 31-2-11 and 31-7-2.2. No person, business entity, corporation, or association, whether operated for profit or not for profit, may operate a community living arrangement without first obtaining a license or provisional license from the department. A license issued pursuant to this paragraph is not assignable or transferable. As used in this paragraph, the term 'community living arrangement' means any residence, whether operated for profit or not, which undertakes through its ownership or management to provide or arrange for the provision of housing, food, one or more personal services, supports, care, or treatment exclusively for two or more persons who are not related to the owner or administrator of the residence by blood or marriage.

31-2-5. (a) All persons employed in a predecessor agency or unit on June 30, 2009, shall, on July 1, 2009, become employees of the department. Such employees shall be subject to the employment practices and policies of the department on and after July 1, 2009, but the compensation and benefits of such transferred employees shall not be reduced as a result of such transfer. Employees who are subject to the rules of the State Personnel Board and thereby under the State Merit System of Personnel Administration and who are transferred to the department shall retain all existing rights under the State Merit System of Personnel Administration. Retirement rights of such transferred employees existing under the Employees' Retirement System of Georgia or other public retirement systems on June 30, 2009, shall not be impaired or interrupted by the transfer of such employees and membership in any such retirement system shall continue in the same status possessed by the transferred employees on June 30, 2009. Accrued annual and sick leave possessed by said employees on June 30, 2009, shall be retained by said employees as employees of the department.
(b)( 1) The department shall conform to federal standards for a merit system of personnel administration in any respects necessary for receiving federal grants, and the board is authorized and empowered to effect such changes as may, from time to time, be necessary in order to comply with such standards. (2) The department is authorized to employ, on a full-time or part-time basis, such medical, supervisory, institutional, and other professional personnel and such clerical and other employees as may be necessary to discharge the duties of the department under this chapter. The department is also authorized to contract for such professional services as may be necessary. (3) Classified employees of the department under this chapter shall in all instances be employed and dismissed in accordance with rules of the State Personnel Board. (4) All personnel of the department are authorized to be members of the Employees' Retirement System of Georgia as provided in Chapter 2 of Title 47. All rights, credits, and funds in that retirement system which are possessed by state personnel transferred by provisions of this chapter to the department, or otherwise had by persons at the time

460

GENERAL ACTS AND RESOLUTIONS, VOL. I

of employment with the department, are continued and preserved, it being the intention of the General Assembly that such persons shall not lose any rights, credits, or funds to which they may be entitled prior to becoming employees of the department. (c) The department shall succeed to all rules, regulations, policies, procedures, and administrative orders of the predecessor agency or unit which were in effect on June 30, 2009, or scheduled to go into effect on or after July I, 2009, and which relate to the functions transferred to the department by this chapter. Such rules, regulations, policies, procedures, and administrative orders shall remain in effect until amended, repealed, superseded, or nullified by proper authority or as otherwise provided by law. Rules of the department shall be adopted, promulgated, and implemented as provided in Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' except that only rules promulgated pursuant to Chapter 6 of this title shall be subject to the provisions of Code Section 31-6-21.1. (d) The rights, privileges, entitlements, and duties of parties to contracts, leases, agreements, and other transactions entered into before July 1, 2009, by any predecessor agency or unit and which pertain to the functions transferred to the department by this chapter shall continue to exist; and none ofthese rights, privileges, entitlements, and duties are impaired or diminished by reason of the transfer of the functions to the department. In all such instances, the Department of Community Health shall be substituted for the predecessor agency or unit, and the Department of Community Health shall succeed to the rights and duties under such contracts, leases, agreements, and other transactions. (e) On July 1, 2009, the department shall receive custody of the state owned real property in the custody of the predecessor agency or unit on June 30, 2009, and which pertains to the functions transferred to the department by this chapter.

31-2-6. (a) There is created the position ofcommissioner of community health. The commissioner shall be the chief administrative officer of the department and shall be subject to appointment and removal by the Governor. Subject to the general policy established by the board, the commissioner shall supervise, direct, account for, organize, plan, administer, and execute the functions vested in the department. (b) There shall be created in the department such divisions as may be found necessary for its effective operation. Except for the Division of Public Heath, the commissioner shall have the power to allocate and reallocate functions among the divisions within the department.

31-2-7. The department is designated and empowered as the agency of this state to apply for, receive, and administer grants and donations for health purposes from the federal government and from any of its departments, agencies, and instrumentalities; from appropriations of the state; and from any other sources in conformity with law, including

GEORGIA LAWS 2009 SESSION

461

but not limited to Code Section 49-4-152. The department shall have the authority to prescribe the purposes for which such funds may be used in order to:
(1) Provide, extend, and improve maternal and child health services; (2) Locate children already disabled or suffering from conditions leading to a disability and provide for such children medical, surgical, corrective, and other services and to provide for facilities for diagnosis, hospitalization, and aftercare; (3) Advance the prevention and control of cancer and of venereal, tubercular, and other diseases; (4) Forestall and correct conditions that, if left to run their course, could be injurious to health; (5) Conduct programs which lie within the scope and the power of the department relating to industrial hygiene, control of ionizing radiation, occupational health, water quality, water pollution control, and planning and development of water resources; (6) Administer grants-in-aid to assist in the construction of publicly owned and operated general and special medical facilities; (7) Conduct programs:
(A) Relating to chronic illness; (B) Relating to the dental and oral health of the people of this state which are appropriate to the purpose of the department; and (C) Relating to the physical health of the people of this state which are appropriate to the purpose of the department; and (8) Develop the health aspects of emergency preparedness and emergency response. When a plan is required to be approved by any department, agency, or instrumentality of the federal government as condition precedent to the making of grants for health purposes, the department, as agent of this state, is directed to formulate, submit, and secure approval of that plan and thereafter, upon its approval and the receipt of funds payable thereunder, to carry the plan into effect in accordance with its terms, applying thereto the funds so received as well as other applicable amounts from whatever source.

31-2-8. The department, from time to time, shall make or cause to be made studies and surveys to determine the quality, scope, and reach of its programs.

31-2-9. (a) The department is authorized to adopt and promulgate rules and regulations to effect prevention, abatement, and correction of situations and conditions which, if not promptly checked, would militate against the health of the people of this state. Such rules and regulations shall be adapted to the purposes intended, within the purview ofthe powers and duties imposed upon the department by this chapter, and supersede conflicting rules, regulations, and orders adopted pursuant to the authority of Chapter 3 of this title.

462

GENERAL ACTS AND RESOLUTIONS, VOL. I

(b) The department upon application or petition may grant variances and waivers to specific rules and regulations which establish standards for facilities or entities regulated by the department as follows:
(1) The department may authorize departure from the literal requirements of a rule or regulation by granting a variance upon a showing by the applicant or petitioner that the particular rule or regulation that is the subject of the variance request should not be applied as written because strict application would cause undue hardship. The applicant or petitioner additionally must show that adequate standards affording protection of health, safety, and care exist and will be met in lieu of the exact requirements of the rule or regulation in question; (2) The department may dispense entirely with the enforcement of a rule or regulation by granting a waiver upon a showing by the applicant or petitioner that the purpose of the rule or regulation is met through equivalent standards affording equivalent protection of health, safety, and care; (3) The department may grant waivers and variances to allow experimentation and demonstration of new and innovative approaches to delivery of services upon a showing by the applicant or petitioner that the intended protections afforded by the rule or regulation which is the subject ofthe request are met and that the innovative approach has the potential to improve service delivery; (4) Waivers or variances which affect an entire class of facilities may only be approved by the Board of Community Health and shall be for a time certain, as determined by the board. A notice of the proposed variance or waiver affecting an entire class of facilities shall be made in accordance with the requirements for notice of rule making in Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act'; or (5) Variances or waivers which affect only one facility in a class may be approved or denied by the department and shall be for a time certain, as determined by the department. The department shall maintain a record of such action and shall make this information available to the board and all other persons who request it. This subsection shall not apply to rules adopted by the department pursuant to Code Section 31-6-21.1. (c) The department may exempt classes of facilities from regulation when, in the department's judgment, regulation would not permit the purpose intended or the class of facilities is subject to similar requirements under other rules and regulations. Such exemptions shall be provided in rules and regulations promulgated by the board.

31-2-10. Actions at law and in equity against the department, the board, or any of its members predicated upon omissions or acts done in their official capacity or under color thereof shall be brought in the appropriate county; provided, however, that nothing in this Code section shall be construed as waiving the immunity of the state to be sued without its consent.

GEORGIA LAWS 2009 SESSION

463

31-2-11. (a) This Code section shall be applicable to any agency, center, facility, institution, community living arrangement, drug abuse treatment and education program, or entity subject to regulation by the department under Chapters 7, 13, 22, 23, and 44 of this title; Chapter 5 of Title 26; paragraph (8) of subsection(d) of Code Section 31-2-4; and Article 7 of Chapter 6 of Title 49. For purposes of this Code section, the term 'license' shall be used to refer to any license, permit, registration, or commission issued by the department pursuant to the provisions of the law cited in this subsection. (b) The department shall have the authority to take any of the actions enumerated in subsection (c) of this Code section upon a finding that the applicant or licensee has:
(1) Knowingly made any false statement of material information in connection with the application for a license, or in statements made or on documents submitted to the department as part of an inspection, survey, or investigation, or in the alteration or falsification of records maintained by the agency, facility, institution, or entity; (2) Failed or refused to provide the department with access to the premises subject to regulation or information pertinent to the initial or continued licensing of the agency, facility, institution, or entity; (3) Failed to comply with the licensing requirements of this state; or (4) Failed to comply with any provision of this Code section. (c) When the department finds that any applicant or licensee has violated any provision of subsection (b) of this Code section or laws, rules, regulations, or formal orders related to the initial or continued licensing of the agency, facility, institution, or entity, the department, subject to notice and opportunity for hearing, may take any of the following actions: (1) Refuse to grant a license; provided, however, that the department may refuse to grant a license without holding a hearing prior to taking such action; (2) Administer a public reprimand; (3) Suspend any license for a definite period or for an indefinite period in connection with any condition which may be attached to the restoration of said license; (4) Prohibit any applicant or licensee from allowing a person who previously was involved in the management or control, as defined by rule, of any agency, facility, institution, or entity which has had its license or application revoked or denied within the past 12 months to be involved in the management or control of such agency, facility, institution, or entity; (5) Revoke any license; (6) Impose a fine, not to exceed a total of $25,000.00, of up to $1,000.00 per day for each violation of a law, rule, regulation, or formal order related to the initial or ongoing licensing of any agency, facility, institution, or entity, except that no fine may be imposed against any nursing facility, nursing home, or intermediate care facility which is subject to intermediate sanctions under the provisions of 42 U.S.C. Section 1396r(h)(2)(A), as amended, whether or not those sanctions are actually imposed; or

464

GENERAL ACTS AND RESOLUTIONS, VOL. I

(7) Limit or restrict any license as the department deems necessary for the protection of the public, including, but not limited to, restricting some or all services of or admissions into an agency, facility, institution, or entity for a time certain. In taking any of the actions enumerated in this subsection, the department shall consider the seriousness of the violation, including the circumstances, extent, and gravity of the prohibited acts, and the hazard or potential hazard created to the health or safety of the public. (d)(!) With respect to any facility classified as a nursing facility, nursing home, or intermediate care home, the department may not take an action to fine or restrict the license of any such facility based on the same act, occurrence, or omission for which:
(A) The facility has received an intermediate sanction under the provisions of 42 U.S.C. Section 1396r(h)(2)(A), as amended, or 42 U.S.C. Section 1395i-3(h)(2)(B); or (B) Such facility has been served formal notice of intent to take such a sanction which the department based on administrative review or any other appropriate body based on administrative or judicial review determines not to impose; provided, however, that nothing in this subsection shall prohibit the department from utilizing the provisions authorized under subsection (f) of this Code section. (2) When any civil monetary penalty is recommended and imposed against such facility, and the department does not resurvey the facility within 48 hours after the date by which all items on a plan of correction submitted by the facility are to be completed, the accrual of any resulting civil monetary penalties shall be suspended until the facility is resurveyed by the department. (3) If the department resurveys such facility beyond 48 hours after the final date for completion of all items on the plan of correction submitted by the facility, and the facility is not in substantial compliance with the applicable standards, any civil monetary penalties imposed shall relate back to the date on which such penalties were suspended. (4) Notwithstanding the provisions of paragraphs (2) and (3) of this subsection, nothing contained in said paragraphs shall be construed as requiring the state survey agency to act in violation of applicable federal law, regulations, and guidelines. (e) The department may deny a license or otherwise restrict a license for any applicant who has had a license denied, revoked, or suspended within one year of the date of an application or who has transferred ownership or governing authority of an agency, facility, institution, or entity subject to regulation by the department within one year of the date of a new application when such transfer was made in order to avert denial, revocation, or suspension of a license. (f) With regard to any contested case instituted by the department pursuant to this Code section or other provisions of law which may now or hereafter authorize remedial or disciplinary grounds and action, the department may, in its discretion, dispose of the action so instituted by settlement. In such cases, all parties, successors, and assigns to any settlement agreement shall be bound by the terms specified therein, and violation thereof

GEORGIA LAWS 2009 SESSION

465

by any applicant or licensee shall constitute grounds for any action enumerated in subsection (c) of this Code section. (g) The department shall have the authority to make public or private investigations or examinations inside or outside of this state to determine whether the provisions of this Code section or any other law, rule, regulation, or formal order relating to the licensing of any agency, facility, institution, or entity has been violated. Such investigations may be initiated at any time, in the discretion of the department, and may continue during the pendency of any action initiated by the department pursuant to subsection (c) of this Code
section. (h) For the purpose of conducting any investigation, inspection, or survey, the department shall have the authority to require the production of any books, records, papers, or other information related to the initial or continued licensing of any agency, facility, institution, or entity. (i) Pursuant to the investigation, inspection, and enforcement powers given to the department by this Code section and other applicable laws, the department may assess against an agency, facility, institution, or entity reasonable and necessary expenses incurred by the department pursuant to any administrative or legal action required by the failure of the agency, facility, institution, or entity to fully comply with the provisions of any law, rule, regulation, or formal order related to the initial or continued licensing. Assessments shall not include attorney's fees and expenses of litigation, shall not exceed other actual expenses, and shall only be assessed if such investigations, inspection, or enforcement actions result in adverse findings, as finally determined by the department, pursuant to administrative or legal action. (j) For any action taken or any proceeding held under this Code section or under color of law, except for gross negligence or willful or wanton misconduct, the department, when acting in its official capacity, shall be immune from liability and suit to the same extent that any judge of any court of general jurisdiction in this state would be immune. (k) In an administrative or legal proceeding under this Code section, a person or entity claiming an exemption or an exception granted by law, rule, regulation, or formal order has the burden of proving this exemption or exception. (1) This Code section and all actions resulting from its provisions shall be administered in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' (m) The provisions of this Code section shall be supplemental to and shall not operate to prohibit the department from acting pursuant to those provisions of law which may now or hereafter authorize remedial or disciplinary grounds and action for the department. In cases where those other provisions of law so authorize other disciplinary grounds and actions, but this Code section limits such grounds or actions, those other provisions shall apply. (n) The department is authorized to promulgate rules and regulations to implement the provisions of this Code section.

466

GENERAL ACTS AND RESOLUTIONS, VOL. I

31-2-12. (a) As used in this Code section, the term:
(l) 'Chamber system' means a system of chambers with each chamber being a molded polyolefin plastic, arch shaped, hollow structure with an exposed bottom area and solid top and louvered sidewall for infiltration of effluent into adjoining bottom and sidewall soil areas. Chambers may be of different sizes and configurations to obtain desired surface areas. (2) 'Conventional system' means a system traditionally used composed ofperforated pipe surrounded by gravel or stone masking for the infiltration of effluent into adjoining bottom and side soil areas. (3) 'On-site sewage management system' means a sewage management system other than a public or community sewage treatment system serving one or more buildings, mobile homes, recreational vehicles, residences, or other facilities designed or used for human occupancy or congregation. Such term shall include, without limitation, conventional and chamber septic tank systems, privies, and experimental and alternative on-site sewage management systems which are designed to be physically incapable of a surface discharge of effluent that may be approved by the department. (4) 'Prior approved system' means only a chamber system or conventional system or component of such system which is designed to be physically incapable of a surface discharge of effluent and which was properly approved pursuant to subparagraph (a)(2)(B) of this Code section, as such Code section became law on Aprill9, 1994, for use according to manufacturers' recommendations, prior to April 14, 1997. (5) 'Unsatisfactory service' means documented substandard performance as compared to other approved systems or components. (b) The department shall have the authority as it deems necessary and proper to adopt state-wide regulations for on-site sewage management systems, including but not limited to experimental and alternative systems. The department is authorized to require that any such on-site sewage management system be examined and approved prior to allowing the use of such system in the state; provided, however, that any prior approved system shall continue to be approved for installation in every county of the state pursuant to the manufacturer's recommendations, including sizing of no less than 50 percent of trench length of a conventional system designed for equal flows in similar soil conditions. Upon written request of one-half or more of the health districts in the state, the department is authorized to require the reexamination of any such system or component thereof, provided that documentation is submitted indicating unsatisfactory service of such system or component thereof. Before any such examination or reexamination, the department may require the person, persons, or organization manufacturing or marketing the system to reimburse the department or its agent for the reasonable expenses of such examination. (c)( I) This subsection shall not be construed to prohibit the governing authority of any county or municipality in the state from adopting and enforcing codes at the local level; provided, however, that no county, municipality, or state agency may require any

GEORGIA LAWS 2009 SESSION

467

certified septic tank installer or certified septic tank pumper who has executed and deposited a bond as authorized in paragraph (2) of this subsection to give or furnish or execute any code compliance bond or similar bond for the purpose of ensuring that all construction, installation, or modifications are made or completed in compliance with the county or municipal ordinances or building and construction codes. (2) In order to protect the public from damages arising from any work by a certified septic tank installer or certified septic tank pumper, which work fails to comply with any state construction codes or with the ordinances or building and construction codes adopted by any county or municipal corporation, any such certified septic tank installer or certified septic tank pumper may execute and deposit with the judge of the probate court in the county of his or her principal place of business a bond in the sum of $10,000.00. Such bond shall be a cash bond of $10,000.00 or executed by a surety authorized and qualified to write surety bonds in the State of Georgia and shall be approved by the local county or municipal health department. Such bond shall be conditioned upon all work done or supervised by such certificate holder complying with the provisions of any state construction codes or any ordinances or building and construction codes of any county or municipal corporation wherein the work is performed. Action on such bond may be brought against the principal and surety thereon in the name of and for the benefit of any person who suffers damages as a consequence of said certificate holder's work not conforming to the requirements of any ordinances or building and construction codes; provided, however, that the aggregate liability of the surety to all persons so damaged shall in no event exceed the sum of such bond. (3) In any case where a bond is required under this subsection, the certified septic tank installer or certified septic tank pumper shall file a copy of the bond with the county or municipal health department in the political subdivision wherein the work is being performed. (4) The provisions of this subsection shall not apply to or affect any bonding requirements involving contracts for public works as provided in Chapter I 0 of Title 13. (d) This Code section does not restrict the work of a plumber licensed by the State Construction Industry Licensing Board to access any on-site sewage management system for the purpose of servicing or repairing any plumbing system or connection to the on-site sewage management system.

31-2-13. Until July 1, 2012, the department shall provide by rule or regulation for the regulation of any land disposal site that receives septic tank waste from only one septic tank pumping and hauling business and which as ofJune 30, 2007, operated under a valid permit for such activity as issued by the department (previously known as the Department of Human Resources for these purposes) under this Code section. No new permit shall be issued by the department under this Code section for such type of site on or after July 1, 2007, but instead any new permit issued for such type of site on or after such date shall be issued by

468

GENERAL ACTS AND RESOLUTIONS, VOL. I

the Department ofNatural Resources under Code Section 12-8-41. This Code section shall stand repealed on July I, 2012.

31-2-14. (a) As used in this Code section, the term:
(I) 'Conviction' means a finding or verdict of guilty or a plea of guilty regardless of whether an appeal of the conviction has been sought. (2) 'Crime' means commission of the following offenses:
(A) A violation of Code Section 16-5-1, relating to murder and felony murder; (B) A violation of Code Section 16-5-21, relating to aggravated assault; (C) A violation of Code Section 16-5-24, relating to aggravated battery; (D) A violation of Code Section 16-5-70, relating to cruelty to children; (E) A violation of Code Section 16-5-100, relating to cruelty to a person 65 years of age or older; (F) A violation of Code Section 16-6-1, relating to rape; (G) A violation of Code Section 16-6-2, relating to aggravated sodomy; (H) A violation of Code Section 16-6-4, relating to child molestation; (I) A violation of Code Section 16-6-5, relating to enticing a child for indecent purposes; (J) A violation of Code Section 16-6-5.1, relating to sexual assault against persons in custody, detained persons, or patients in hospitals or other institutions; (K) A violation of Code Section 16-6-22.2, relating to aggravated sexual battery; (L) A violation of Code Section 16-8-41, relating to armed robbery; (M) A violation of Code Section 30-5-8, relating to abuse, neglect, or exploitation of a disabled adult or elder person; or (N) Any other offense committed in another jurisdiction that, if committed in this state, would be deemed to be a crime listed in this paragraph without regard to its designation elsewhere. (3) 'Criminal record' means any of the following: (A) Conviction of a crime; (B) Arrest, charge, and sentencing for a crime where:
(i) A plea of nolo contendere was entered to the charge; (ii) First offender treatment without adjudication of guilt pursuant to the charge was granted; or (iii) Adjudication or sentence was otherwise withheld or not entered on the charge; or (C) Arrest and being charged for a crime if the charge is pending, unless the time for prosecuting such crime has expired pursuant to Chapter 3 of Title 17. (4) 'Facility' means a: (A) Personal care home required to be licensed or permitted under Code Section 31-7-12;

GEORGIA LAWS 2009 SESSION

469

(B) Private home care provider required to be licensed under Article 13 of Chapter 7 of Title 31; or (C) Community living arrangement subject to licensure under paragraph (8) of subsection (d) of Code Section 31-2-4. (5) 'GCIC' means the Georgia Crime Information Center established under Article 2 of Chapter 3 of Title 35. (6) 'GCIC information' means criminal history record information as defined in Code Section 35-3-30. (7) 'License' means the document issued by the department to authorize the facility to operate. (8) 'Owner' means any individual or any person affiliated with a corporation, partnership, or association with 10 percent or greater ownership interest in a facility providing care to persons under the license of the facility in this state and who: (A) Purports to or exercises authority of the owner in a facility; (B) Applies to operate or operates a facility; (C) Maintains an office on the premises of a facility; (D) Resides at a facility; (E) Has direct access to persons receiving care at a facility; (F) Provides direct personal supervision of facility personnel by being immediately available to provide assistance and direction during the time such facility services are being provided; or (G) Enters into a contract to acquire ownership of a facility. (9) 'Records check application' means fingerprints 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 and a records search fee to be established by the department by rule and regulation, payable in such form as the department may direct to cover the cost of obtaining criminal background information pursuant to this Code section. (b) An owner with a criminal record shall not operate or hold a license to operate a facility, and the department shall revoke the license of any owner operating a facility or refuse to issue a license to any owner operating a facility if it determines that such owner has a criminal record; provided, however, that an owner who holds a license to operate a facility on or before June 30, 2007, shall not have his or her license revoked prior to a hearing being held before a hearing officer pursuant to Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' (c)(l) Prior to approving any license for a new facility and periodically as established by the department by rule and regulation, the department shall require an owner to submit a records check application. The department shall establish a uniform method of obtaining an owner's records check application. (2)(A) Unless the department contracts pursuant to subparagraph (B) ofthis paragraph, the department shall transmit to the GCIC the fingerprints and records search fee from

470

GENERAL ACTS AND RESOLUTIONS, VOL. I

each fingerprint records check application in accordance with Code Section 35-3-35. Upon receipt thereof, the GCIC shall promptly transmit the fingerprints to the Federal Bureau of Investigation for a search of bureau records and an appropriate report and shall promptly conduct a search of its records and records to which it has access. Within ten days after receiving fingerprints acceptable to the GCIC and the fee, the GCIC shall notify the department in writing ofany criminal record or if there is no such finding. After a search of Federal Bureau oflnvestigation records and fingerprints and upon receipt of the bureau's report, the department shall make a determination about an owner's criminal record and shall notify the owner in writing as to the department's determination as to whether the owner has or does not have a criminal record. (B) The department may either perform criminal background checks under agreement with the GCIC or contract with the GCIC and appropriate law enforcement agencies which have access to GCIC and Federal Bureau oflnvestigation information to have those agencies perform for the department criminal background checks for owners. The department or the appropriate law enforcement agencies may charge reasonable fees for performing criminal background checks. (3)(A) The department's determination regarding an owner's criminal record, or any action by the department revoking or refusing to grant a license based on such determination, shall constitute a contested case for purposes of Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' except that any hearing required to be held pursuant thereto may be held reasonably expeditiously after such determination or action by the department. (B) In a hearing held pursuant to subparagraph (A) of this paragraph or subsection (b) of this Code section, the hearing officer shall consider in mitigation the length of time since the crime was committed, the absence of additional criminal charges, the circumstances surrounding the commission ofthe crime, other indicia ofrehabilitation, the facility's history of compliance with the regulations, and the owner's involvement with the licensed facility in arriving at a decision as to whether the criminal record requires the denial or revocation of the license to operate the facility. Where a hearing is required, at least 30 days prior to such hearing, the hearing officer shall notify the office of the prosecuting attorney who initiated the prosecution of the crime in question in order to allow the prosecutor to object to a possible determination that the conviction would not be a bar for the grant or continuation of a license as contemplated within this Code section. If objections are made, the hearing officer shall take such objections into consideration in considering the case. (4) Neither the GCIC, the department, any law enforcement agency, nor the employees of any such entities shall be responsible for the accuracy of information nor have any liability for defamation, invasion ofprivacy, negligence, or any other claim in connection with any dissemination of information or determination based thereon pursuant to this Code section.

GEORGIA LAWS 2009 SESSION

471

(d) All information received from the Federal Bureau of Investigation or the GCIC shall be for the exclusive purpose of approving or denying the granting of a license to a new facility or the revision ofa license of an existing facility when a new owner is proposed and shall not be released or otherwise disclosed to any other person or agency. All such information collected by the department shall be maintained by the department pursuant to Jaws regarding and the rules or regulations of the Federal Bureau oflnvestigation and the GCIC, as is applicable. Penalties for the unauthorized release or disclosure of any such information shall be as prescribed pursuant to laws regarding and rules or regulations of the Federal Bureau oflnvestigation and the GCIC, as is applicable. (e) The requirements of this Code section are supplemental to any requirements for a license imposed by Article 3 of Chapter 5 of Title 49 or Article 11 of Chapter 7 of this title. (f) The department shall promulgate written rules and regulations to implement the provisions of this Code section.

31-2-15. Performance and outcome data and pricing data for selected medical conditions, surgeries, and procedures in hospitals, ambulatory surgery centers, nursing homes, and rehabilitation centers in Georgia shall be reported to the Department of Community Health on a regular basis. The department shall provide for the establishment of a website for the purpose of providing consumers information on the cost and quality of health care in Georgia to include but not be limited to cost comparison information on certain prescription drugs at different pharmacies in Georgia, hospitals, ambulatory surgery centers, nursing homes, and rehabilitation centers and facilities in Georgia.

31-2-16. (a) As used in this Code section, the term:
(1) 'Biopharmaceutical' means the application of biotechnology to the development of pharmaceutical products that improve human health. (2) 'Biotechnology' means any technological application that uses biological systems, living organisms, or derivatives thereof to make or modify products or processes for specific use. (3) 'Georgia biotechnology, biopharmaceutical, or pharmaceutical company' means a biotechnology, biopharmaceutical, or pharmaceutical company, or a corporate division of such a company:
(A) The principal activity of which is research or development, manufacturing, or sales of health care products in this state; and
(B)(i) That had a total economic impact in this state of not less than $60 million during the most recent taxable year; (ii) That has total capital investment in this state of not less than $100 million; and (iii) That employs at least 200 Georgia residents. Such term shall not mean a warehouse used to store health care products.

472

GENERAL ACTS AND RESOLUTIONS, VOL. I

(4) 'Pharmaceutical' means of or pertaining to the knowledge or art of pharmacy or to the art of preparing medicines according to the rules or formulas of pharmacy. (5) 'Research and development' means experimental or laboratory activity for the ultimate purpose of developing new products, improving existing products, developing new uses for existing products, or developing or improving methods for producing products. (6) 'Total economic impact' means the sum of total employee payroll, investment in external research and development, the value of prescription drug samples provided to physicians, and the value of prescription drugs donated to low-income individuals through patient assistance programs. (b) The Department of Community Health shall expedite the review of any prescription drug or other health care product having an approved indication from the federal Food and Drug Administration for use with humans and that is produced by a Georgia biotechnology, biopharmaceutical, or pharmaceutical company for any health care coverage provided under the state health benefit plan under Article 1 of Chapter 18 of Title 45, the medical assistance program under Article 7 of Chapter 4 of Title 49, the PeachCare for Kids program under Article 13 of Chapter 5 ofTitle 49, or any other health benefit plan or policy administered by or on behalf of the state. Such review shall take place as soon as practicable following the date that such drug or health care product becomes available for public consumption. This subsection shall apply to all contracts entered into or renewed by the Department of Community Health on or after July 1, 2008. (c) In complying with the provisions of this Code section, the department shall consider the nexus of a biotechnology, biopharmaceutical, or pharmaceutical company in relation to the state along with the financial impact on the state, the quality ofthe product, and other relevant factors.

31-2-17. The commissioner is authorized to appoint a diabetes coordinator within the Division of Public Health to coordinate with other state departments and agencies to ensure that all programs that impact the prevention and treatment of diabetes are coordinated, that duplication of efforts is minimized, and that the impact of such programs is maximized in an attempt to reduce the health consequences and complications ofdiabetes in Georgia. The Division of Public Health shall serve as the central repository for this state's departments and agencies for data related to the prevention and treatment of diabetes.

31-2-18. (a) The Division of Public Health shall have a director who shall be appointed by the Governor and serve at the pleasure of the Governor. The director shall report to the Office of the Governor and to the commissioner. In addition to other authority and duties granted in this title, the director shall:

GEORGIA LAWS 2009 SESSION

473

(1) Provide a written report of expenditures made for public health purposes in the prior fiscal year to the Governor, the Speaker of the House of Representatives, and the Lieutenant Governor no later than December I of each year beginning December 1, 201 0; and (2) Serve as the chiefliaison to county boards ofhealth through their directors on matters related to the operations and programmatic responsibilities of such county boards of health; provided, however, the director may designate a person from within the division to serve as such chief liaison. (b) The director shall be authorized to convene one or more panels of experts to address various public health issues and may consult with experts on epidemiological and emergency preparedness issues.

31-2-19. (a) There is created the Advisory Council for Public Health to be composed of nine members appointed by the Governor who shall serve at the pleasure of the Governor. Employees of the department shall not serve on the council. Members shall serve three-year terms, provided that of the first members appointed, three shall be appointed for a term of one year, three for a term of two years, and three for a term of three years. Members may succeed themselves. A position on the council shall be deemed vacant upon the expiration of a member's term, and vacancies shall be filled by similar appointment for unexpired terms. (b) The council shall meet at least quarterly. (c) The council shall advise the Division of Public Health on all matters related to the division. Resolutions passed by a majority of the council shall be considered by the Director of Public Health and the commissioner and may be considered by the board.

31-2-20. (a) Effective July 1, 2010, there is created the Public Health Commission to be composed of nine members as follows: two members shall be appointed by the Speaker of the House of Representatives, two members shall be appointed by the Lieutenant Governor, and five members shall be appointed by the Governor. The purpose of the commission shall be to examine whether the interests of this state are best served with the Division of Public Health being a part of the Department of Community Health, an attached agency pursuant to Code Section 50-4-3, an independent agency, or as part of another organizational structure to be determined by the commission. The commission shall have the authority to contract with third parties subject to appropriations by the General Assembly. The commission shall make its recommendations to the Governor, the Speaker of the House of Representatives, and the Lieutenant Governor by December 1, 2010. The commission shall stand abolished on December 31, 2010. (b) This Code section shall stand repealed on December 31, 201 0.'

474

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 1-2. Said title is further amended by revising Code Section 31-1-1, relating to definitions relative to health generally, as follows:
'31-1-1. Except as specifically provided otherwise, as used in this title, the term:
(1) 'Board' means the Board of Community Health. (2) 'Commissioner' means the commissioner of community health. (3) 'Department' means the Department of Community Health.'

SECTION 1-3. Said title is further amended by adding a new Code section to read as follows:
'31-1-1 0. (a) The position of State Health Officer is created. The commissioner of community health or the director of the Division of Public Health of the Department of Community Health shall be the State Health Officer, as designated by the Governor. (b) The State Health Officer shall perform such health emergency preparedness and response duties as assigned by the Governor."

SECTION 1-4. The following Code sections of the Official Code of Georgia Annotated are amended by replacing "Department of Human Resources" wherever it occurs with "Department of Community Health":
( 1) Code Section 4-4-69, relating to regulation of manufacture and use ofdisease vectors in livestock; (2) Code Section 4-10-10, relating to the joint regulation of the sale or transportation of exotic or pet birds; (3) Code Section 10-1-393, relating to unfair or deceptive practices in consumer transactions which are deemed unlawful; (4) Code Section 12-2-8, relating to promulgation ofminimum standards and procedures for protection of natural resources, environment, and vital areas of the state; (5) Code Section 12-3-9, relating to adoption and promulgation by the Board of Natural Resources of rules and regulations regarding parks, historic sites, and recreational areas; (6) Code Section 12-5-175, relating to fluoridation of public water systems; (7) Code Section 12-8-1, relating to notice of denial of individual sewage disposal permits; (8) Code Section 15-21-142, relating to the establishment of the Brain and Spinal Injury Trust Fund Commission; (9) Code Section 16-6-13.1, relating to testing for sexually transmitted diseases; (10) Code Section 16-12-141, relating to when abortion is legal; (11) Code Section 17-10-15, relating to AIDS transmitting crimes;

GEORGIA LAWS 2009 SESSION

475

(12) Code Section 19-3-41, relating to preparation by the Department of Human Resources of a marriage manual on family planning and other material; (13) Code Section 20-2-142, relating to prescribed courses in elementary and secondary schools on alcohol, tobacco, and drug use; (14) Code Section 20-2-143, relating to sex education and AIDS prevention instruction in elementary and secondary schools; (15) Code Section 20-2-144, relating to mandatory instruction in elementary and secondary schools concerning alcohol and drug use; (16) Code Section 20-2-770, relating to rules and regulations for nutritional screening and eye, ear, and dental examinations of students; (17) Code Section 20-2-771, relating to immunization of students in elementary and secondary education; (18) Code Section 20-2-772, relating to rules and regulations for screening of students for scoliosis; (19) Code Section 24-9-40, relating to when medical information may be released by a physician, hospital, health care facility, or pharmacist; (20) Code Section 24-9-47, relating to disclosure of AIDS confidential information; (21) Code Section 25-3-6, relating to the effect of certain laws relating to local fire departments on the powers and duties of other officials and departments; (22) Code Section 26-2-3 71, relating to permits required for food service establishments; (23) Code Section 26-2-372, relating to the issuance of permits for food service establishments; (24) Code Section 26-2-373, relating to promulgation ofrules, regulations, and standards by the Department of Human Resources and county boards of health for food service establishments; (25) Code Section 26-2-374, relating to contents and posting of notices relating to assistance to persons choking; (26) Code Section 26-2-375, relating to enforcement of laws regarding the regulation of food service establishments; (27) Code Section 26-2-376, relating to review of final order or determination by Department of Human Resources regarding regulation of a food service establishment; (28) Code Section 26-2-377, relating to penalties for violation of laws regarding the regulation of food service establishments; (29) Code Section 26-3-18, relating to assistance in enforcement from Department of Agriculture or Department of Human Resources with respect to standards, labeling, and adulteration of drugs and cosmetics; (30) Code Section 26-4-85, relating to patient counseling by a pharmacist; (31) Code Section 26-4-116, relating to emergency service providers with respect to dangerous drugs and controlled substances; (32) Code Section 26-4-172, relating to license requirements under the "Nuclear Pharmacy Law";

476

GENERAL ACTS AND RESOLUTIONS, VOL. I

(33) Code Section 26-5-3, relating to definitions relative to the "Drug Abuse Treatment and Education Act"; (34) Code Section 31-1-3.2, relating to hearing screenings for newborns; (35) Code Section 31-3-4, relating to powers of county boards of health; (36) Code Section 31-3-11, relating to appointments of director and staff of county board of health; (37) Code Section 31-5-1, relating to adoption of rules and regulations by the Department of Human Resources and county boards of health; (38) Code Section 31-5-9, relating to injunctions for enjoining violations of the provisions of Title 31; (39) Code Section 31-5-20, relating to the definition of the term "inspection warrant" with respect to enforcement of certain public health laws; (40) Code Section 31-5-21, relating to persons who may obtain inspection warrants; (41) Code Section 31-7-133, relating to confidentiality of review organization's records; (42) Code Section 31-7-172, relating to definitions relative to hospice care; (43) Code Section 31-7-175, relating to the administration of the article of the "Georgia Hospice Law"; (44) Code Section 31-8-1, relating to the establishment and purpose of the Hospital Care for the Indigent Program; (45) Code Section 31-8-36, relating to state appropriations to the Nonresident Indigent Health Care Fund; (46) Code Section 31-8-46, relating to investigation of violations by a hospital; (47) Code Section 31-8-193, relating to the establishment of a program to provide health care services to low-income recipients; (48) Code Section 31-9A-4, relating to information to be made available by the Department of Human Resources under the "Woman's Right to Know Act"; (49) Code Section 31-9A- 6, relating to reporting requirements under the "Woman's Right to Know Act"; (50) Code Section 31-10-1, relating to definitions relative to vital records; (51) Code Section 31-11-1, relating to findings ofthe General Assembly and declaration of policy with respect to emergency medical services; (52) Code Section 31-11-3, relating to recommendations by local coordinating entity as to administration of the Emergency Medical Systems Communication Program; (53) Code Section 31-11-81, relating to definitions relative to emergency services; (54) Code Section 31-11-100, relating to definitions relative to the Georgia Trauma Care Network Commission; (55) Code Section 31-11-101, relating to the creation of the Georgia Trauma Care Network Commission; (56) Code Section 31-11-102, relating to the duties and responsibilities of the Georgia Trauma Care Network Commission;

GEORGIA LAWS 2009 SESSION

477

(57) Code Section 31-11-110, relating to legislative findings relative to a system of certified stroke centers; (58) Code Section 31-12-1, relating to the power to conduct research and studies relative to the control of hazardous conditions, preventable diseases, and metabolic diseases; (59) Code Section 31-12A-9, relating to a continuing education program relative to the "Georgia Smokefree Air Act of2005"; (60) Code Section 31-12A-10, relating to enforcement by the Department of Human Resources and county boards of health of the "Georgia Smokefree Air Act of 2005"; (61) Code Section 31-13-3, relating to definitions relative to the "Georgia Radiation Control Act"; (62) Code Section 31-13-4, relating to administration of state-wide radiation control program for radiation generating equipment; (63) Code Section 31-13-5, relating to the powers and duties of the Department of Human Resources and the Department of Natural Resources under the "Georgia Radiation Control Act"; (64) Code Section 31-13-8.2, relating to licensing of diagnostic and therapeutic medical uses of radioactive materials; (65) Code Section 31-13-9, relating to records of use of radiation sources and exposure of employees to radiation; (66) Code Section 31-13-10, relating to suspension, revocation, and amendment of license or registration of radiation generating equipment; (67) Code Section 31-13-11, relating to impounding and condemnation of radiation generating equipment and radioactive materials; (68) Code Section 31-13-12, relating to the license requirements under the "Georgia Radiation Control Act"; (69) Code Section 31-13-13, relating to penalties under the "Georgia Radiation Control Act"; (70) Code Section 31-13-23, relating to transfer of powers and duties between the Department of Natural Resources and the Department of Human Resources under the "Georgia Radiation Control Act"; (71) Code Section 31-14-2, relating to petition for commitment of a person who has active tuberculosis; (72) Code Section 31-14-9, relating to procedure for securing discharge of a person committed for active tuberculosis; (73) Code Section 31-15-2, relating to the establishment of a program for the prevention, control, and treatment of cancer; (74) Code Section 31-16-2, relating to the establishment ofa program for the prevention, control, and treatment of kidney disease; (75) Code Section 31-17-2, relating to the report of diagnosis or treatment to health authorities of a case of venereal disease;

478

GENERAL ACTS AND RESOLUTIONS, VOL. I

(76) Code Section 31-17-3, relating to examination and treatment by health authorities for venereal disease; (77) Code Section 31-17-4.2, relating to HIV pregnancy screening; (78) Code Section 31-17A-2, relating to examination of persons infected or suspected of being infected with HIV; (79) Code Section 31-17A-3, relating to refusal to consent to an HIV test; (80) Code Section 31-18-4, relating to the duties of the Brain and Spinal Injury Trust Fund Commission; (81) Code Section 31-21-25, relating to bonds required prior to receiving unclaimed bodies; (82) Code Section 31-22-2, relating to licenses to operate clinical laboratories; (83) Code Section 31-22-9.1, relating to who may perform HIV tests; (84) Code Section 31-22-9.2, relating to report of positive HIV tests; (85) Code Section 31-23-3, relating to hospitals or medical schools which may operate eye banks; (86) Code Section 31-24-4, relating to labeling of containers ofblood under "The Blood Labeling Act"; (87) Code Section 31-26-2, relating to the requirement of a certificate to practice midwifery; (88) Code Section 31-27-2, relating to the requirement of a permit for a mass gathering; (89) Code Section 31-28-2, relating to issuance of permits to operate a tourist court; (90) Code Section 31-28-5, relating to standards for health, sanitation, and safety of tourist courts; (91) Code Section 31-28-6, relating to inspection of premises of tourist courts; (92) Code Section 31-30-9, relating to effectiveness of chapter on reports on veterans exposed to agent orange; (93) Code Section 31-34-5, relating to service cancelable loans under the "Physicians for Rural Areas Assistance Act"; (94) Code Section 31-35-10, relating to definitions relative to bioterrorism protection for emergency providers; (95) Code Section 31-40-2, relating to issuance ofpermits for tattoo studios; (96) Code Section 31-40-5, relating to rules and regulations relative to tattoo studios; (97) Code Section 31-40-6, relating to enforcement of chapter regulating tattoo studios; (98) Code Section 31-40-8, relating to a public education program relative to tattoo studios; (99) Code Section 31-45-8, relating to inspections by the county board of health of public swimming pools; (100) Code Section 31-45-9, relating to suspension or revocation of permit for a public swimming pool; (101) Code Section 31-45-10, relating to rules and regulations relative to public swimming pools;

GEORGIA LAWS 2009 SESSION

479

(102) Code Section 31-45-ll, relating to enforcement of rules and regulations relative to public swimming pools; (103) Code Section 31-46-4, relating to the Georgia Commission for Saving the Cure; (104) Code Section 33-24-59.7, relating to insurance coverage for the treatment of morbidly obese patients; (105) Code Section 33-29-3.2, relating to individual accident and sickness insurance coverage for mammograms, Pap smears, and prostate specific antigen tests; (106) Code Section 33-30-4.2, relating to group accident and sickness insurance coverage for mammograms, Pap smears, and prostate specific antigen tests; (107) Code Section 33-44-3, relating to the creation of the Georgia High Risk Health Insurance Plan; (108) Code Section 34-9-1, relating to definitions relative to workers' compensation; (109) Code Section 34-9-415, relating to testing under drug-free workplace programs; (llO) Code Section 35-l-8, relating to acquisition, collection, classification, and preservation ofinformation assisting in identifying deceased persons and locating missing persons; (Ill) Code Section 36-62-2, relating to definitions relative to the "Development Authorities Law"; (112) Code Section 38-3-22, relating to the Governor's emergency management powers and duties; (113) Code Section 38-3-51, relating to emergency powers of the Governor; (114) Code Section 40-5-25, relating to applications for instruction permits and drivers' licenses; (115) Code Section 40-6-392, relating to chemical tests for alcohol or drugs in blood relating to violations of driving under the influence of alcohol, drugs, or other intoxicating substances; (116) Code Section 42-1-7, relating to notification to transporting law enforcement agency of inmate's or patient's infectious or communicable disease; (117) Code Section 42-4-6, relating to confinement and care of tubercular inmates; (118) Code Section 42-4-32, relating to sanitation and health requirements for jails; (119) Code Section 43-l 0-6, relating to rules and regulations as to sanitary requirements of beauty shops, beauty salons, schools of cosmetology, schools of esthetics, schools of hair design, and schools of nail care; (120) Code Section 43-11-74, relating to direct supervision requirement of dental hygienists by a licensed dentist; (121) Code Section 43-14-2, relating to definitions relative to the regulation of electrical contractors, plumbers, conditioned air contractors, low-voltage contractors, and utility contractors; (122) Code Section 43-18-1, relating to definitions relative to the regulation of funeral directors and establishments, embalmers, and crematories;

480

GENERAL ACTS AND RESOLUTIONS, VOL. I

(123) Code Section 43-18-46, relating to grounds for denial or revocation of license or registration to operate a funeral establishment or to practice embalming or funeral directing; (124) Code Section 43-27-1, relating to definitions relative to nursing home administrators; (125) Code Section 43-34-26.1, relating to delegation of authority to nurse or physician's assistant; ( 126) Code Section 43-34-26.3, relating to delegation ofcertain medical acts to advanced practice registered nurse; (127) Code Section 43-34-103, relating to applications for utilization of physician's assistants; (128) Code Section 45-18-1, relating to definitions relative to the state employees' health insurance plan; (129) Code Section 45-18-32, relating to administration of deferred compensation plans for employees of the state; (130) Code Section 46-11-4, relating to regulation of transportation of hazardous materials on public roads of the state generally; (131) Code Section 49-4-152.3, relating to reuse of unit dosage drugs under Medicaid; (132) Code Section 49-6-81, relating to the legislative intent of the "Adult Day Center for Aging Adults Licensure Act"; (133) Code Section 49-6-82, relating to definitions relative to the "Adult Day Center for Aging Adults Licensure Act"; (134) Code Section 50-13-4, relating to procedural requirements for adoption, amendment, or repeal of rules by a state agency; (135) Code Section 50-18-72, relating to when public disclosure is not required under open records laws; (136) Code Section 50-18-76, relating to written matter exempt from disclosure under vital records laws; and (137) Code Section 50-26-4, relating to definitions relative to the "Georgia Housing and Finance Authority Act."

SECTION 1-5. The following Code sections of the Official Code of Georgia Annotated are amended by replacing "Board of Human Resources" wherever it occurs with "Board of Community Health":
(1) Code Section 31-1-3.2, relating to hearing screenings for newborns; (2) Code Section 31-7-304, relating to fees on private home care providers; (3) Code Section 31-11-2, relating to definitions relative to emergency medical services; (4) Code Section 31-11-3, relating to recommendations by local coordinating entity as to administration of the Emergency Medical Systems Communication Program; (5) Code Section 31-11-31.1, relating to license fees on ambulance services;

GEORGIA LAWS 2009 SESSION

481

(6) Code Section 31-12-14, relating to breast cancer, prostate cancer, and ovarian cancer research program fund; (7) Code Section 31-22-1, relating to definitions relative to clinical laboratories; (8) Code Section 42-9-12, relating to appointment of replacement for incapacitated member on the State Board of Pardons and Paroles; and (9) Code Section 43-7-9, relating to general powers and duties of the State Board of Barbers.

SECTION 1-6. The following Code sections of the Official Code of Georgia Annotated are amended by replacing "commissioner of human resources" wherever it occurs with "commissioner of community health":
(1) Code Section 8-2-24, relating to appointment of advisory committee relating to state building, plumbing, and electrical codes; (2) Code Section 12-5-524, relating to the creation of the Water Council; (3) Code Section 16-12-141, relating to when abortion is legal; (4) Code Section 16-12-141.1, relating to disposal of aborted fetuses; (5) Code Section 21-2-231, relating to lists of persons convicted of felonies, persons declared mentally incompetent, and deceased persons provided to Secretary of State with respect to registration of voters; (6) Code Section 26-2-393, relating to enforcement of article relating to nonprofit food sales and food service; (7) Code Section 31-7-176.1, relating to determination or pronouncement of death of a patient in hospice care; (8) Code Section 31-8-32, relating to determination of indigency for hospital care for nonresidents; (9) Code Section 31-8-43, relating to determination of indigency for hospital care for pregnant women; (10) Code Section 31-9A-2, relating to definitions relative to the "Woman's Right to Know Act"; (11) Code Section 31-10-1, relating to definitions relative to vital records; (12) Code Section 31-11-2, relating to definitions relative to emergency medical services; (13) Code Section 31-11-36, relating to suspension or revocation of licenses for ambulance services; (14) Code Section 31-16-3, relating to functions of the Kidney Disease Advisory Committee; (15) Code Section 31-27-7, relating to emergency powers of the Governor regarding mass gatherings; (16) Code Section 31-35-10, relating to definitions relative to bioterrorism protection for emergency responders;

482

GENERAL ACTS AND RESOLUTIONS, VOL. I

(17) Code Section 31-36A-7, relating to petition for health care placement transfer, admission, or discharge order by health care facility; (18) Code Section 33-20B-3.1, relating to health maintenance organizations' expansion into rural areas; (19) Code Section 33-21-3, relating to grounds and procedure for issuance or denial of certificate of authority for a health maintenance organization; (20) Code Section 33-21-5, relating to suspension orrevocation ofcertificate ofauthority for a health maintenance organization; (21) Code Section 33-21-15, relating to filing of annual reports by health maintenance organizations; (22) Code Section 33-21-17, relating to examinations of health maintenance organizations and providers; (23) Code Section 33-21-18, relating to adoption of rules and regulations generally relative to health maintenance organizations; (24) Code Section 33-21-20, relating to conduct of hearings generally relative to health maintenance organizations; (25) Code Section 33-21-21, relating to authority of commissioner of human resources to contract for making ofrecommendations required by health maintenance organizations laws; (26) Code Section 33-21-27, relating to enforcement ofhealth maintenance organizations laws; (27) Code Section 38-2-10, relating to use of National Guard in drug law enforcement, provision of medical care in medically underserved areas, and for youth opportunity training programs; (28) Code Section 42-4-32, relating to sanitation and health requirements in jails generally; (29) Code Section 42-9-12, relating to appointment of replacement for incapacitated member on the State Board of Pardons and Paroles; (30) Code Section 43-1A-4, relating to the Occupational Regulation Review Council; (31) Code Section 43-27-2, relating to creation of the State Board of Nursing Home Administrators; (32) Code Section 43-45-3, relating to creation of the State Structural Pest Control Commission; (33) Code Section 45-9-73, relating to the creation of the Georgia Public School Personnel Indemnification Commission; and (34) Code Section 45-9-83, relating to the creation of the Georgia State Indemnification Commission.

SECTION 1-7. The following Code sections of the Official Code of Georgia Annotated are amended by replacing "Chapter SA of Title 31" wherever it occurs with "Chapter 2 of Title 31 ":

GEORGIA LAWS 2009 SESSION

483

(1) Code Section 20-2-880, relating to definitions relative to health insurance plans for public school teachers; (2) Code Section 20-2-910, relating to definitions relative to health insurance plans for public school employees; (3) Code Section 33-20A-31, relating to definitions relative to the "Patient's Right to Independent Review Act"; (4) Code Section 45-18-1, relating to definitions relative to the state employees' health insurance plan; (5) Code Section 49-4-141, relating to definitions relative to Medicaid; (6) Code Section 49-4-142, relating to the authorization of the Department of Community Health to adopt and administer a state plan for medical assistance; (7) Code Section 49-4-143, relating to the power ofthe Board of Community Health with respect to Medicaid; and (8) Code Section 49-4-144, relating to the chief administrative officer of the Department of Community Health.

SECTION 1-8. The following Code sections of the Official Code of Georgia Annotated are amended by replacing "Chapter SA of this title" wherever it occurs with "Chapter 2 of this title":
(1) Code Section 31-6-2, relating to definitions relative to state health planning and development; (2) Code Section 31-6-21, relating to the Department of Community Health generally under state health planning and development; (3) Code Section 31-7-94.1, relating to the "Rural Hospital Assistance Act;" (4) Code Section 31-8-151, relating to definitions relative to the indigent care trust fund; (5) Code Section 31-8-162, relating to definitions relative to nursing home provider fees; and (6) Code Section 31-8-171, relating to definitions relative to quality assessment fees on care management organizations.

SECTION 1-9. The following Code sections of the Official Code of Georgia Annotated are amended by replacing "Code Section 31-2-6" wherever it occurs with "Code Section 31-2-11 ":
(1) Code Section 25-2-40, relating to smoke detectors required in new dwellings and dwelling units; (2) Code Section 31-7-2.1, relating to rules and regulations relative to regulation of hospitals and related institutions; (3) Code Section 31-7-302, relating to rules and regulations relative to private home care providers; (4) Code Section 31-8-60, relating to retaliation against a resident of a long-term care facility and prohibition against interference with the ombudsman;

484

GENERAL ACTS AND RESOLUTIONS, VOL. I

(5) Code Section 31-8-135, relating to hearings under the "Remedies for Residents of Personal Care Homes Act"; (6) Code Section 31-11-9, relating to enforcement of emergency medical services laws; and (7) Code Section 31-44-11, relating to the authority of the Department of Human Resources to deal with violations of renal disease facilities laws.

SECTION 1-10. The following Code sections of the Official Code of Georgia Annotated are amended by replacing "Code Section 31-2-7" wherever it occurs with "Code Section 31-2-12":
(1) Code Section 31-3-5, relating to functions of county boards of health; (2) Code Section 31-3-5.1, relating to conformity prerequisite to building permit; and (3) Code Section 50-13-4, relating to procedural requirements for adoption, amendment, or repeal of rules.

SECTION 1-11. Code Section 10-1-393 of the Official Code of Georgia Annotated, relating to unfair or deceptive practices in consumer transactions which are deemed unlawful, is amended by revising paragraph (26) of subsection (b) as follows:
'(26) With respect to any individual or facility providing personal care services: (A) Any person or entity not duly licensed or registered as a personal care home formally or informally offering, advertising to, or soliciting the public for residents or referrals; (B) Any personal care home, as defined in subsection (a) of Code Section 31-7-12, offering, advertising, or soliciting the public to provide services: (i) Which are outside the scope of personal care services; and (ii) For which it has not been specifically authorized. Nothing in this subparagraph prohibits advertising by a personal care home for services authorized by the Department of Community Health under a waiver or variance pursuant to subsection (b) of Code Section 31-2-9; (C) For purposes of this paragraph, 'personal care' means protective care and watchful oversight of a resident who needs a watchful environment but who does not have an illness, injury, or disability which requires chronic or convalescent care including medical and nursing services.
The provisions of this paragraph shall be enforced following consultation with the Department of Community Health which shall retain primary responsibility for issues relating to licensure of any individual or facility providing personal care services;'

SECTION 1-12. Code Section 12-8-41 of the Official Code of Georgia Annotated, relating to permits issued by the Department of Natural Resources for land disposal sites, is amended as follows:

GEORGIA LAWS 2009 SESSION

485

'12-8-41. The department shall provide by rule or regulation for the regulation and permitting of any land disposal site that receives septic tank waste from any one or more septic tank pumping and hauling businesses. Any new permit issued for such type of site on or after July l, 2007, shall be issued by the department under this Code section. Any such type of site that as of June 30, 2007, operated under a valid permit issued on or before such date by the Department of Human Resources (now known as the Department of Community Health for these purposes) under Code Section 31-2-13 may continue to operate under such Code section until July I, 2012, but a permit shall be obtained from the department under this Code section prior to such date in order to continue such operation thereafter."

SECTION 1-13. Code Section 15-11-66.1 of the Official Code of Georgia Annotated, relating to disposition of a child committing delinquent act constituting AIDS transmitting crime, is amended by revising subsection (e) as follows:
'(e) If a child is required by this Code section to submit to an HIV test and is thereby determined to be infected with HIV, that determination and the name of the child shall be deemed to be AIDS confidential information and shall be reported to:
(1) The Department of Juvenile Justice or the Department of Corrections, as the case may be, and the Department of Community Health, the latter of which may disclose the name of the child if necessary to provide and shall provide counseling to each victim of that child's AIDS transmitting crime or to any parent or guardian of any victim who is a minor or incompetent person, ifthe Department of Juvenile Justice or the Department of Corrections believes the crime posed a reasonable risk oftransmitting HIV to the victim; (2) The court which ordered the HIV test; and (3) Those persons in charge of any facility to which the child has been confined by order of the court. In addition to any other restrictions regarding the confinement of children, a child determined to be an HIV infected person may be confined in that facility separately from any other children in that facility other than those who have been determined to be infected with HIV if:
(A) That child is reasonably believed to be sexually active while confined; (B) That child is reasonably believed to be sexually predatory either during or prior to detention; or (C) The commissioner of juvenile justice or the commissioner of corrections, as the case may be, reasonably determines that other circumstances or conditions exist which indicate that separate confinement would be warranted."

SECTION 1-14. Code Section 15-21-143 of the Official Code of Georgia Annotated, relating to appointment of members and personnel of the Brain and Spinal Injury Trust Fund Commission, is amended as follows:

486

GENERAL ACTS AND RESOLUTIONS, VOL. I

'15-21-143. (a) The Brain and Spinal Injury Trust Fund Commission shall consist of 15 members who shall serve for terms of two years, except that with respect to the first members appointed, five members shall be appointed for a term of three years, five for a term of two years, and five for a term of one year. The following agencies may each appoint one member of the commission:
(1) The Division of Rehabilitation Services of the Department of Labor; (2) The State Board of Education; (3) The Department of Public Safety; (4) The Department of Community Health; and (5) The Department of Human Services. The remaining ten members of the commission shall be appointed by the Governor, seven of whom shall be citizens who have sustained brain or spinal cord injury or members of such persons' immediate families, no more than one of whom shall reside in the same geographic area of the state which constitutes a health district established by the Department of Community Health. The Governor is authorized but not required to appoint the remaining three members from recommendations submitted by the Private Rehabilitation Suppliers of Georgia, the Georgia Hospital Association, the Brain Injury Association ofGeorgia, the Medical Association ofGeorgia, and the Georgia State Medical Association. The Governor shall also establish initial terms of office for all 15 members of the board within the limitations of this subsection. (b) In the event of death, resignation, disqualification, or removal for any reason of any member of the commission, the vacancy shall be filled in the same manner as the original appointment and the successor shall serve for the unexpired term. (c) Membership on the commission does not constitute public office, and no member shall be disqualified from holding public office by reason of his or her membership. (d) The Governor shall designate a chairperson of the commission from among the members, which chairperson shall serve in that position at the pleasure of the Governor. The commission may elect such other officers and committees as it considers appropriate. (e) The commission, with the approval of the Governor, may employ such professional, technical, or clerical personnel as deemed necessary to carry out the purposes of this chapter.'

SECTION 1-15. Code Section 17-18-1 of the Official Code of Georgia Annotated, relating to duty of certain officials to offer written statement of information to victims of rape or forcible sodomy, is amended as follows:
'17-18-1. When any employee of the Department of Human Services, Department of Community Health, Department of Behavioral Health and Developmental Disabilities, a law enforcement agency, or a court has reason to believe that he or she in the course of official

GEORGIA LAWS 2009 SESSION

487

duties is speaking to an adult who is or has been a victim of a violation of Code Section 16-6-1, relating to rape, or Code Section 16-6-2, relating to aggravated sodomy, such employee shall offer or provide such adult a written statement of information for victims of rape or aggravated sodomy. Such written statement shall, at a minimum, include the information set out in Code Section 17-18-2 and may include additional information regarding resources available to victims of sexual assault. Information for victims of rape or aggravated sodomy may be provided in any language.'

SECTION 1-16. Code Section 19-3-35.1 of the Official Code of Georgia Annotated, relating to AIDS brochures for applicants for a marriage license, is amended by revising subsection (b) as
follows: '(b) The Department of Community Health shall prepare a brochure describing AIDS, HIV, and the dangers, populations at risk, risk behaviors, and prevention measures relating thereto. That department shall also prepare a listing of sites at which confidential and anonymous HIV tests are provided without charge. That department shall further prepare a form for acknowledging that the brochures and listings have been received, as required by subsection (c) of this Code section. The brochures, listings, and forms prepared by the Department of Community Health (formerly known as the Department of Human Resources for these purposes) under this subsection shall be prepared and furnished to the office of each judge of the probate court no later than October 1, 1988.

SECTION 1-17. Code Section 19-13-32 of the Official Code of Georgia Annotated, relating to the membership, terms, filling of vacancies, and officers of the State Commission on Family Violence, is amended by revising paragraph (1) of subsection (a) as follows:
'(1) Three ex officio members shall be the director of the Division of Family and Children Services of the Department of Human Services, the director of Women's Health Services in the Division of Public Health ofthe Department of Community Health, and the Attorney General;'

SECTION 1-18. Code Section 19-13-35 of the Official Code of Georgia Annotated, relating to automatic termination provisions of the State Commission on Family Violence, is repealed in its entirety.

SECTION 1-19. Code Section 19-15-4 of the Official Code of Georgia Annotated, relating to Georgia Child Fatality Review Panel, is amended by revising subsection (c) as follows:
'(c) The panel shall be composed as follows: (1) One district attorney appointed by the Governor;

488

GENERAL ACTS AND RESOLUTIONS, VOL. I

(2) One juvenile court judge appointed by the Governor; (3) Two citizen members who shall be appointed by the Governor, who are not employed by or officers ofthe state or any political subdivision thereof and one ofwhom shall come from each ofthe following: (A) a state-wide child abuse prevention organization; and (B) a state-wide childhood injury prevention organization; (4) One forensic pathologist appointed by the Governor; (5) The chairperson of the Board of Human Services; (6) The director of the Division of Family and Children Services of the Department of Human Services; (7) The director of the Georgia Bureau of Investigation; (8) The chairperson of the Criminal Justice Coordinating Council; (9) A member of the Georgia Senate appointed by the Lieutenant Governor; (1 0) A member ofthe Georgia House of Representatives appointed by the Speaker of the House of Representatives; ( 11) A local law enforcement official appointed by the Governor; ( 12) A superior court judge appointed by the Governor; (13) A coroner appointed by the Governor; (14) The Child Advocate for the Protection of Children; (15) The director of the Division of Public Health of the Department of Community Health; and (16) The commissioner of behavioral health and developmental disabilities.'

SECTION 1-20. Code Section 20-2-260 of the Official Code of Georgia Annotated, relating to capital outlay funds generally, is amended by revising paragraphs (5) and (8) of subsection (c) as follows:
'(5) To develop a state-wide needs assessment for purposes of planning and developing policies, anticipating state-wide needs for educational facilities, and providing assistance to local school systems in developing educational facilities plans. The state-wide needs assessment shall be developed from, among other sources, vital statistics published by the Department of Community Health, census data published by the Bureau of the Census, local school system educational facilities and real property inventories, educational facilities surveys, full-time equivalent student projection research, and educational facilities construction plans; shall reflect circumstances where rapid population growth is caused by factors not reflected in full-time equivalent student projection research; and shall give priority to elementary school construction. In addition, the state board shall develop a consistent, systematic research approach to full-time equivalent student projections which will be used in the development of needs within each local unit. Projections shall not be confined to full-time equivalent resident students but shall be based on full-time equivalent student counts which include full-time equivalent nonresident students, whether or not such full-time equivalent nonresident students attend school pursuant to a contract between local school systems. The full-time equivalent projection shall be calculated in accordance with

GEORGIA LAWS 2009 SESSION

489

subsection (m) of this Code section. The survey team will use such projections in determining the improvements needed for the five-year planning period. The state board shall also develop schedules for allowable square footage and cost per square foot and review these schedules annually. The cost estimate for each recommended improvement included in the plan shall be based on these schedules. Any increase in cost or square footage for a project beyond that allowed by state board schedules for such projects shall be the responsibility of the local school system and shall not count toward present or future required local participation. The schedules for allowable square footage and cost per square foot shall be specified in regulations by the State Board of Education;' '(8) To coordinate construction project reviews with the state fire marshal's office and the Department of Community Health;'

SECTION 1-21. Code Section 26-4-192 of the Official Code of Georgia Annotated, relating to the state-wide program for distribution of unused prescription drugs for the benefit of medically indigent persons, is amended as follows:
'26-4-192. (a) The Georgia State Board of Pharmacy and the Department of Community Health shall jointly develop and implement a state-wide program consistent with public health and safety standards through which unused prescription drugs, other than prescription drugs defined as controlled substances, may be transferred from health care facilities to pharmacies designated or approved by the Department of Community Health for the purpose of distributing such drugs to residents of this state who are medically indigent persons. (b) The Georgia State Board of Pharmacy and the Department of Community Health shall be authorized to develop and implement a pilot program to determine the safest and most beneficial manner of implementing the program prior to the state-wide implementation of the program required in subsection (a) of this Code section. (c) The Georgia State Board of Pharmacy, in consultation with the Department of Community Health, shall develop and promulgate rules and regulations to establish procedures necessary to implement the program and pilot program, if applicable, provided for in this Code section. The rules and regulations shall provide, at a minimum:
(1) For an inclusionary formulary for the prescription drugs to be distributed pursuant to the program; (2) For the protection of the privacy of the individual for whom a prescription drug was originally prescribed; (3) For the integrity and safe storage and safe transfer of the prescription drugs, which may include, but shall not be limited to, limiting the drugs made available through the program to those that were originally dispensed by unit dose or an individually sealed dose and that remain in intact packaging; provided, however, that the rules and regulations shall authorize the use of any remaining prescription drugs;

490

GENERAL ACTS AND RESOLUTIONS, VOL. I

(4) For the tracking of and accountability for the prescription drugs; and (5) For other matters necessary for the implementation of the program. (d) The state-wide program required by this Code section shall be implemented no later than January I, 2007, unless a pilot program is implemented pursuant to subsection (b) of this Code section, in which case state-wide implementation shall occur no later than July I, 2008.'

SECTION 1-22. Code Section 31-5-2 of the Official Code of Georgia Annotated, relating to hearings of the Department of Human Resources, is amended as follows:
'31-5-2. Hearings shall be required for any and all quasi-judicial actions and in any other proceeding required by this title or the Constitution of Georgia. All such hearings shall be conducted in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.'

SECTION 1-23. Code Section 31-6-21.1 of the Official Code of Georgia Annotated, relating to procedures for rule making by the Department of Community Health, is amended by adding a new subsection to the end of the Code section to read as follows:
'(j) This Code section shall apply only to rules adopted pursuant to this chapter.'

SECTION 1-24. Code Section 31-6-47 of the Official Code of Georgia Annotated, relating to exemptions from certificate of need requirements, is amended by revising division (a)(18)(A)(ii) as follows:
'(ii) Is the only single specialty ambulatory surgical center in the county owned by the group practice and has two or fewer operating rooms; provided, however, that a center exempt pursuant to this division shall be required to obtain a certificate of need in order to add any additional operating rooms;'

SECTION 1-25. Code Section 31-6-48 ofthe Official Code ofGeorgia Annotated, relating to the abolishment of prior entities and the transfer of contractual obligations, is amended as follows:
'31-6-48. The State Health Planning and Development Agency, the State-wide Health Coordinating Council, and the State Health Planning Review Board existing immediately prior to July 1, 1983, are abolished, and their respective successors on and after July 1, 1983, shall be the Health Planning Agency, the Health Policy Council, and the Health Planning Review Board, as established in this chapter, except that on and after July 1, 1991, the Health Strategies Council shall be the successor to the Health Policy Council, and except that on and after July 1, 1999, the Department of Community Health shall be the successor

GEORGIA LAWS 2009 SESSION

491

to the Health Planning Agency, and except that on and after July 1, 2008, the Board of Community Health shall be the successor to the duties of the Health Strategies Council with respect to adoption of the state health plan, and except that on June 30, 2008, the Health Planning Review Board is abolished and the terms of all members on such board on such date shall automatically terminate and the Certificate of Need Appeal Panel shall be the successor to the duties of the Health Planning Review Board on such date. For purposes of any existing contract with the federal government, or federal law referring to such abolished agency, council, or board, the successor department, council, or board established in this chapter or in Chapter 2 of this title shall be deemed to be the abolished agency, council, or board and shall succeed to the abolished agency's, council's, or board's functions. The State Health Planning and Development Commission is abolished.'

SECTION 1-26. Code Section 31-7-2.2 of the Official Code of Georgia Annotated, relating to determination that patients or residents in an institution, community living arrangement, or treatment program are in danger, is amended as follows:
'31-7-2.2. (a)( I) The commissioner may order the emergency relocation of patients or residents from an institution subject to licensure under this chapter, a community living arrangement subject to licensure under paragraph(8) of subsection(d) of Code Section 31-2-4, or a drug abuse treatment and education program subject to licensure under Chapter 5 of Title 26 when the commissioner has determined that the patients or residents are subject to an imminent and substantial danger. (2) When an order is issued under this subsection, the commissioner shall provide for: (A) Notice to the patient or resident, his or her next of kin or guardian, and his or her physician of the emergency relocation and the reasons therefor; (B) Relocation to the nearest appropriate institution, community living arrangement, or drug abuse treatment and education program; and (C) Other protection designed to ensure the welfare and, when possible, the desires of the patient or resident. (b)(l) The commissioner may order the emergency placement of a monitor in an institution subject to licensure under this chapter, a community living arrangement subject to licensure under paragraph(8) of subsection(d) of Code Section 31-2-4, or a drug abuse treatment and education program subject to licensure under Chapter 5 ofTitle 26 when one or more of the following conditions are present: (A) The institution, community living arrangement, or drug abuse treatment and education program is operating without a permit or a license; (B) The department has denied application for a permit or a license or has initiated action to revoke the existing permit or license of the institution, community living arrangement, or drug abuse treatment and education program;

492

GENERAL ACTS AND RESOLUTIONS, VOL. I

(C) The institution, community living arrangement, or drug abuse treatment and education program is closing or plans to close and adequate arrangements for relocation of the patients or residents have not been made at least 30 days before the date of closure; or (D) The health, safety, security, rights, or welfare of the patients or residents cannot be adequately assured by the institution, community living arrangement, or drug abuse treatment and education program. (2) A monitor may be placed, pursuant to this subsection, in an institution, community living arrangement, or drug abuse treatment and education program for no more than ten days, during which time the monitor shall observe conditions and compliance with any recommended remedial action of the department by the institution, community living arrangement, or drug abuse treatment and education program. The monitor shall report to the department. The monitor shall not assume any administrative responsibility within the institution, community living arrangement, or drug abuse treatment and education program nor shall the monitor be liable for any actions of the institution, community living arrangement, or drug abuse treatment and education program. The costs ofplacing a monitor in an institution, community living arrangement, or drug abuse treatment and education program shall be paid by the institution, community living arrangement, or drug abuse treatment and education program unless the order placing the monitor is determined to be invalid in a contested case proceeding under subsection (d) ofthis Code section, in which event the costs shall be paid by the state. (c)(1) The commissioner may order the emergency prohibition of admissions to an institution subject to licensure under this chapter, a community living arrangement subject to licensure under paragraph(8) of subsection(d) of Code Section 31-2-4, or program subject to licensure under Chapter 5 of Title 26 when such institution, community living arrangement, or drug abuse treatment and education program has failed to correct a violation of departmental permit rules or regulations within a reasonable period of time, as specified in the department's corrective order, and the violation: (A) Could jeopardize the health and safety ofthe residents or patients in the institution, community living arrangement, or drug abuse treatment and education program if allowed to remain uncorrected; or (B) Is a repeat violation over a 12 month period, which is intentional or due to gross negligence. (2) Admission to an institution, community living arrangement, or drug abuse treatment and education program may be suspended until the violation has been corrected or until the department has determined that the institution, community living arrangement, or drug abuse treatment and education program has undertaken the action necessary to effect correction of the violation. (d) The commissioner may issue emergency orders pursuant to this Code section only if authorized by rules and regulations of the department. Unless otherwise provided in the order, an emergency order shall become effective immediately. The department shall hold

GEORGIA LAWS 2009 SESSION

493

a preliminary hearing within ten days following a request therefor by any institution, community living arrangement, or drug abuse treatment and education program affected by an emergency order. If at the preliminary hearing the order is determined by the department to be invalid, that order shall thereupon become void and of no effect. If at the preliminary hearing the order is determined by the department to be valid, that determination shall constitute a contested case under Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' and that order shall remain in effect until determined invalid in a proceeding regarding the contested case or until rescinded by the commissioner, whichever is earlier. For purposes of this subsection, an emergency order is valid only if the order is authorized to be issued under this Code section and rules and regulations relating thereto. (e) The powers provided by this Code section are cumulative of all other powers of the department, board, and commissioner.'

SECTION 1-27. Code Section 31-7-12 of the Official Code of Georgia Annotated, relating to regulation of personal care homes, is amended by revising paragraph (I) of subsection (a) as follows:
'(1) 'Personal care home' means any dwelling, whether operated for profit or not, which undertakes through its ownership or management to provide or arrange for the provision of housing, food service, and one or more personal services for two or more adults who are not related to the owner or administrator by blood or marriage. This term shall not include host homes, as defined in paragraph( 18) of subsection (b) of Code Section 37-1-20.'

SECTION 1-28. Code Section 31-7-17 of the Official Code of Georgia Annotated, relating to licensure and regulation of hospitals and related institutions transferred to Department of Community Health, is amended as follows:
'31-7-17. (a) Effective July 1, 2009, all matters relating to the licensure and regulation of hospitals and related institutions pursuant to this article shall be transferred from the Department of Human Resources (now known as the Department of Human Services) to the Department of Community Health. (b) The Department of Community Health shall succeed to all rules, regulations, policies, procedures, and administrative orders of the Department of Human Resources that are in effect on June 30, 2009, or scheduled to go into effect on or after July 1, 2009, and which relate to the functions transferred to the Department of Community Health pursuant to this Code section and shall further succeed to any rights, privileges, entitlements, obligations, and duties of the Department of Human Resources that are in effect on June 30, 2009, which relate to the functions transferred to the Department of Community Health pursuant to this Code section. Such rules, regulations, policies, procedures, and administrative

494

GENERAL ACTS AND RESOLUTIONS, VOL. I

orders shall remain in effect until amended, repealed, superseded, or nullified by the Department of Community Health by proper authority or as otherwise provided by law. (c) The rights, privileges, entitlements, and duties of parties to contracts, leases, agreements, and other transactions entered into before July I, 2009, by the Department of Human Resources which relate to the functions transferred to the Department of Community Health pursuant to this Code section shall continue to exist; and none of these rights, privileges, entitlements, and duties are impaired or diminished by reason of the transfer ofthe functions to the Department of Community Health. In all such instances, the Department of Community Health shall be substituted for the Department of Human Resources, and the Department of Community Health shall succeed to the rights and duties under such contracts, leases, agreements, and other transactions. (d) All persons employed by the Department of Human Resources in capacities which relate to the functions transferred to the Department of Community Health pursuant to this Code section on June 30, 2009, shall, on July I, 2009, become employees of the Department ofCommunity Health in similar capacities, as determined by the commissioner of community health. Such employees shall be subject to the employment practices and policies of the Department of Community Health on and after July I, 2009, but the compensation and benefits of such transferred employees shall not be reduced as a result of such transfer. Employees who are subject to the rules of the State Personnel Board and thereby under the State Merit System of Personnel Administration and who are transferred to the department shall retain all existing rights under the State Merit System of Personnel Administration. Retirement rights of such transferred employees existing under the Employees' Retirement System of Georgia or other public retirement systems on June 30, 2009, shall not be impaired or interrupted by the transfer of such employees and membership in any such retirement system shall continue in the same status possessed by the transferred employees on June 30, 2009. Accrued annual and sick leave possessed by said employees on June 30, 2009, shall be retained by said employees as employees of the Department of Community Health.'

SECTION 1-29. Code Section 31-7-95 of the Official Code of Georgia Annotated, relating to funding of medical education provided by hospital authorities and designated teaching hospitals, is amended by revising subsection (a) as follows:
'(a) As used in this Code section, the term: (I) 'Designated teaching hospital' means a teaching hospital operated by other than a hospital authority, which hospital agrees to contract with the state to offer or continue to offer a residency program approved by the American Medical Association, which program has at least 50 residents and which hospital operates a 24 hour, seven-day-per-week emergency room open to the public and which hospital files a semiannual statistical report consistent with those filed by other state funded tertiary, neonatal, obstetrical centers with the Department of Community Health.

GEORGIA LAWS 2009 SESSION

495

(2) 'Hospital authority' means a hospital authority operating a teaching hospital which offers a residency program approved by the American Medical Association. (3) 'Resident' means a physician receiving medical education and training through a teaching hospital operated by a hospital authority or designated teaching hospital.

SECTION 1-30. Code Section 31-7-159 of the Official Code of Georgia Annotated, relating to licensure and regulation of home health agencies transferred to Department of Community Health, is amended as follows:
'31-7-159. (a) Effective July 1, 2009, all matters relating to the licensure and regulation of home health agencies pursuant to this article shall be transferred from the Department of Human Resources (now known as the Department of Human Services) to the Department of Community Health. (b) The Department of Community Health shall succeed to all rules, regulations, policies, procedures, and administrative orders of the Department of Human Resources that are in effect on June 30, 2009, or scheduled to go into effect on or after July 1, 2009, and which relate to the functions transferred to the Department of Community Health pursuant to this Code section and shall further succeed to any rights, privileges, entitlements, obligations, and duties of the Department of Human Resources that are in effect on June 30, 2009, which relate to the functions transferred to the Department of Community Health pursuant to this Code section. Such rules, regulations, policies, procedures, and administrative orders shall remain in effect until amended, repealed, superseded, or nullified by the Department of Community Health by proper authority or as otherwise provided by law. (c) The rights, privileges, entitlements, and duties of parties to contracts, leases, agreements, and other transactions entered into before July 1, 2009, by the Department of Human Resources which relate to the functions transferred to the Department of Community Health pursuant to this Code section shall continue to exist; and none of these rights, privileges, entitlements, and duties are impaired or diminished by reason of the transfer ofthe functions to the Department of Community Health. In all such instances, the Department of Community Health shall be substituted for the Department of Human Resources, and the Department of Community Health shall succeed to the rights and duties under such contracts, leases, agreements, and other transactions. (d) All persons employed by the Department of Human Resources in capacities which relate to the functions transferred to the Department of Community Health pursuant to this Code section on June 30, 2009, shall, on July 1, 2009, become employees of the Department ofCommunity Health in similar capacities, as determined by the commissioner of community health. Such employees shall be subject to the employment practices and policies of the Department of Community Health on and after July 1, 2009, but the compensation and benefits of such transferred employees shall not be reduced as a result of such transfer. Employees who are subject to the rules of the State Personnel Board and

496

GENERAL ACTS AND RESOLUTIONS, VOL. I

thereby under the State Merit System of Personnel Administration and who are transferred to the department shall retain all existing rights under the State Merit System of Personnel Administration. Retirement rights of such transferred employees existing under the Employees' Retirement System of Georgia or other public retirement systems on June 30, 2009, shall not be impaired or interrupted by the transfer of such employees and membership in any such retirement system shall continue in the same status possessed by the transferred employees on June 30, 2009. Accrued annual and sick leave possessed by said employees on June 30, 2009, shall be retained by said employees as employees of the Department of Community Health."

SECTION 1-31. Code Section 31-7-265 of the Official Code of Georgia Annotated, relating to facility licensing and employee records checks for personal care homes transferred to Department of Community Health, is amended as follows:
'31-7-265. (a) Effective July 1, 2009, all matters relating to facility licensing and employee records checks for personal care homes pursuant to this article shall be transferred from the Department of Human Resources (now known as the Department of Human Services) to the Department of Community Health. (b) The Department of Community Health shall succeed to all rules, regulations, policies, procedures, and administrative orders of the Department of Human Resources that are in effect on June 30,2009, or scheduled to go into effect on or after July 1, 2009, and which relate to the functions transferred to the Department of Community Health pursuant to this Code section and shall further succeed to any rights, privileges, entitlements, obligations, and duties of the Department of Human Resources that are in effect on June 30, 2009, which relate to the functions transferred to the Department of Community Health pursuant to this Code section. Such rules, regulations, policies, procedures, and administrative orders shall remain in effect until amended, repealed, superseded, or nullified by the Department of Community Health by proper authority or as otherwise provided by law. (c) The rights, privileges, entitlements, and duties of parties to contracts, leases, agreements, and other transactions entered into before July 1, 2009, by the Department of Human Resources which relate to the functions transferred to the Department of Community Health pursuant to this Code section shall continue to exist; and none of these rights, privileges, entitlements, and duties are impaired or diminished by reason of the transfer ofthe functions to the Department of Community Health. In all such instances, the Department of Community Health shall be substituted for the Department of Human Resources, and the Department of Community Health shall succeed to the rights and duties under such contracts, leases, agreements, and other transactions. (d) All persons employed by the Department of Human Resources in capacities which relate to the functions transferred to the Department of Community Health pursuant to this Code section on June 30, 2009, shall, on July 1, 2009, become employees of the

GEORGIA LAWS 2009 SESSION

497

Department of Community Health in similar capacities, as determined by the commissioner of community health. Such employees shall be subject to the employment practices and policies of the Department of Community Health on and after July I, 2009, but the compensation and benefits of such transferred employees shall not be reduced as a result of such transfer. Employees who are subject to the rules of the State Personnel Board and thereby under the State Merit System of Personnel Administration and who are transferred to the department shall retain all existing rights under the State Merit System of Personnel Administration. Retirement rights of such transferred employees existing under the Employees' Retirement System of Georgia or other public retirement systems on June 30, 2009, shall not be impaired or interrupted by the transfer of such employees and membership in any such retirement system shall continue in the same status possessed by the transferred employees on June 30,2009. Accrued annual and sick leave possessed by said employees on June 30, 2009, shall be retained by said employees as employees of the Department of Community Health.'

SECTION 1-32. Code Section 31-7-308 of the Official Code of Georgia Annotated, relating to licensure and regulation of private home care providers transferred to Department of Community Health, is amended as follows:
'31-7-308. (a) Effective July I, 2009, all matters relating to the licensure and regulation of private home care providers pursuant to this article shall be transferred from the Department of Human Resources (now known as the Department of Human Services) to the Department of Community Health. (b) The Department of Community Health shall succeed to all rules, regulations, policies, procedures, and administrative orders of the Department of Human Resources that are in effect on June 30, 2009, or scheduled to go into effect on or after July 1, 2009, and which relate to the functions transferred to the Department of Community Health pursuant to this Code section and shall further succeed to any rights, privileges, entitlements, obligations, and duties of the Department of Human Resources that are in effect on June 30, 2009, which relate to the functions transferred to the Department of Community Health pursuant to this Code section. Such rules, regulations, policies, procedures, and administrative orders shall remain in effect until amended, repealed, superseded, or nullified by the Department of Community Health by proper authority or as otherwise provided by law. (c) The rights, privileges, entitlements, and duties of parties to contracts, leases, agreements, and other transactions entered into before July 1, 2009, by the Department of Human Resources which relate to the functions transferred to the Department of Community Health pursuant to this Code section shall continue to exist; and none of these rights, privileges, entitlements, and duties are impaired or diminished by reason of the transfer of the functions to the Department ofCommunity Health. In all such instances, the Department of Community Health shall be substituted for the Department of Human

498

GENERAL ACTS AND RESOLUTIONS, VOL. I

Resources, and the Department of Community Health shall succeed to the rights and duties under such contracts, leases, agreements, and other transactions. (d) All persons employed by the Department of Human Resources in capacities which relate to the functions transferred to the Department of Community Health pursuant to this Code section on June 30, 2009, shall, on July I, 2009, become employees of the Department ofCommunity Health in similar capacities, as determined by the commissioner of community health. Such employees shall be subject to the employment practices and policies of the Department of Community Health on and after July I, 2009, but the compensation and benefits of such transferred employees shall not be reduced as a result of such transfer. Employees who are subject to the rules of the State Personnel Board and thereby under the State Merit System of Personnel Administration and who are transferred to the department shall retain all existing rights under the State Merit System of Personnel Administration. Retirement rights of such transferred employees existing under the Employees' Retirement System of Georgia or other public retirement systems on June 30, 2009, shall not be impaired or interrupted by the transfer of such employees and membership in any such retirement system shall continue in the same status possessed by the transferred employees on June 30, 2009. Accrued annual and sick leave possessed by said employees on June 30, 2009, shall be retained by said employees as employees of the Department of Community Health.'

SECTION 1-33. Code Section 31-8-82 of the Official Code of Georgia Annotated, relating to reporting abuse or exploitation of a resident in a long-term care facility, is amended by revising subsection (a) as follows:
"(a) Any: (I) Administrator, manager, physician, nurse, nurse's aide, orderly, or other employee in a hospital or facility; (2) Medical examiner, dentist, osteopath, optometrist, chiropractor, podiatrist, social worker, coroner, clergyman, police officer, pharmacist, physical therapist, or psychologist; or (3) Employee of a public or private agency engaged in professional services to residents or responsible for inspection of long-term care facilities
who has knowledge that any resident or former resident has been abused or exploited while residing in a long-term care facility shall immediately make a report as described in subsection (c) of this Code section by telephone or in person to the department. In the event that an immediate report to the department is not possible, the person shall make the report to the appropriate law enforcement agency. Such person shall also make a written report to the department within 24 hours after making the initial report.'

GEORGIA LAWS 2009 SESSION

499

SECTION 1-34. Code Section 31-8-192 of the Official Code of Georgia Annotated, relating to definitions relative to the "'Health Share' Volunteers in Medicine Act," is amended by revising subparagraph (D) of paragraph (6) as follows:
'(D) Any client or beneficiary of the department, the Department of Human Services, or the Department of Behavioral Health and Developmental Disabilities who voluntarily chooses to participate in a program offered or approved by the department, the Department of Human Services, or the Department of Behavioral Health and Developmental Disabilities and meets the program eligibility guidelines of the department, the Department of Human Services, or the Department of Behavioral Health and Developmental Disabilities whose family income does not exceed 200 percent of the federal poverty level as defined annually by the federal Office of Management and Budget."

SECTION 1-35. Code Section 31-11-2 of the Official Code of Georgia Annotated, relating to definitions relative to emergency medical services, is amended by revising paragraphs (3), (5), and (6.1) as follows:
'(3) 'Ambulance provider' means an agency or company providing ambulance service which is operating under a valid license from the Emergency Health Section of the Division of Public Health of the Department of Community Health." '(5) 'Cardiac technician' means a person who, having been trained and certified as an emergency medical technician and having completed additional training in advanced cardiac life support techniques in a training course approved by the department, is so certified by the Composite State Board of Medical Examiners prior to January 1, 2002, or the Department of Human Resources (now known as the Department of Community Health for these purposes) on and after January 1, 2002." '(6.1) 'Department' means the Department of Community Health."

SECTION 1-36. Code Section 31-11-50 of the Official Code of Georgia Annotated, relating to medical advisers relative to emergency medical services, is amended by revising subsection (a) as follows:
'(a) To enhance the provision of emergency medical care, each ambulance service shall be required to have a medical adviser. The adviser shall be a physician licensed to practice medicine in this state and subject to approval by the medical consultant of the Emergency Health Section of the Division of Public Health of the Department of Community Health. Ambulance services unable to obtain a medical adviser, due to unavailability or refusal of physicians to act as medical advisers, may request the district health director or his or her designee to act as medical adviser until the services of a physician are available.'

500

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 1-37. Code Section 31-11-53.1 of the Official Code of Georgia Annotated, relating to automated external defibrillator program, is amended by revising paragraph (1) of subsection (b) as follows:
'(l) It is recommended that all persons who have access to or use an automated external defibrillator obtain appropriate training as set forth in the rules and regulations of the Department of Community Health. It is further recommended that such training include at a minimum the successful completion of:
(A) A nationally recognized health care provider/professional rescuer level cardiopulmonary resuscitation course; and (B) A department established or approved course which includes demonstrated proficiency in the use of an automated external defibrillator;'

SECTION 1-38. Code Section 31-13-25 of the Official Code of Georgia Annotated, relating to rules, regulations, agreements, and contracts formerly under the Department of Human Resources with respect to radiation control, is amended as follows:
"31-13-25. All rules and regulations, agreements, contracts, or other instruments which involve radioactive materials heretofore under the jurisdiction of the Department of Human Resources (now known as the Department of Community Health for these purposes) will, by operation oflaw, be assumed by the Department ofNatural Resources on April4, 1990.'

SECTION 1-39. Code Section 31-15-4 ofthe Official Code of Georgia Annotated, relating to a cancer control officer, is amended as follows:
'31-15-4. The commissioner shall appoint a cancer control officer. The cancer control officer shall be a physician licensed to practice medicine under Chapter 34 of Title 43 and shall be knowledgeable in the field of medicine covered by this chapter. He or she shall administer the cancer program for the Division of Public Health of the Department of Community Health in compliance with this chapter. He or she shall be provided an office with clerical and administrative assistance to carry out this program."

SECTION 1-40. Code Section 33-21-20.1 of the Official Code of Georgia Annotated, relating to regulation of health maintenance organizations by the commissioner of human resources, is amended as follows:
"33-21-20.1. On May 13, 2004, all health maintenance organizations meeting the requirements of subsection (b.1) of Code Section 33-21-3 shall not be subject to regulation by the

GEORGIA LAWS 2009 SESSION

501

commissioner of human resources (now known as the commissioner of community health for these purposes). Upon the Commissioner of Insurance's determination that a health maintenance organization no longer meets the requirements of subsection (b.l) of Code Section 33-21-3, the Commissioner shall immediately notify the commissioner of community health; and such health maintenance organization shall be subject to regulation by the commissioner of community health until such time as it again meets the requirements of subsection (b.l) of Code Section 33-21-3 as determined by the Commissioner of Insurance.

SECTION 1-41. Code Section 33-24-56.3 of the Official Code of Georgia Annotated, relating to colorectal cancer screening and testing, is amended by revising paragraph (1) of subsection (a) as
follows: '(1) 'Health benefit policy' means any individual or group plan, policy, or contract for health care services issued, delivered, issued for delivery, executed, or renewed by an insurer in this state on or after July 1, 2002, including, but not limited to, those contracts executed by the Department of Community Health pursuant to paragraph ( 1) of subsection(d) of Code Section 31-2-4. The term 'health benefit policy' does not include the following limited benefit insurance policies: accident only, CHAMPUS supplement, dental, disability income, fixed indemnity, long-term care, medicare supplement, specified disease, vision, and nonrenewable individual policies written for a period ofless than six months."

SECTION 1-42. Code Section 33-24-59.2 of the Official Code of Georgia Annotated, relating to insurance coverage for equipment and self-management training for individuals with diabetes, is amended by revising subsection (b) as follows:
'(b)(l) Diabetes outpatient self-management training and education as provided for in subsection (a) ofthis Code section shall be provided by a certified, registered, or licensed health care professional with expertise in diabetes. (2) The office of the Commissioner ofinsurance shall promulgate rules and regulations after consultation with the Department of Community Health which conform to the current standards for diabetes outpatient self-management training and educational services established by the American Diabetes Association for purposes of this Code section. (3) The office of the Commissioner ofinsurance shall promulgate rules and regulations, relating to standards of diabetes care, to become effective July 1, 2002, after consultation with the Department of Human Resources (now known as the Department ofCommunity Health for these purposes), the American Diabetes Association, and the National Institutes of Health. Such rules and regulations shall be adopted in accordance with the provisions of Code Section 33-2-9.'

502

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 1-43. Code Section 33-45-3 of the Official Code of Georgia Annotated, relating to certificates of authority required for operation of continuing care facilities, is amended as follows:
'33-45-3. Nothing in this title or chapter shall be deemed to authorize any provider of a continuing care facility to transact any insurance business other than that of continuing care insurance or otherwise to engage in any other type of insurance unless it is authorized under a certificate of authority issued by the department under this title. Nothing in this chapter shall be construed so as to interfere with the jurisdiction of the Department of Community Health or any other regulatory body exercising authority over continuing care providers.'

SECTION 1-44. Code Section 43-lOA-7 of the Official Code of Georgia Annotated, relating to licensing requirements for professional counselors, social workers, and marriage and family therapists, is amended by revising paragraphs (3) and (12) of subsection (b) as follows:
'(3)(A) Persons who, prior to July 1, 2000, engaged in the practice of a specialty as an employee of any community service board or similar entity created by general law to provide services to persons with disabilities, as defined in Chapter 2 of Title 37, or any agency or department of the state or any of its political subdivisions, but only when engaged in that practice as an employee of such an agency or department. (B) Persons who engage in the practice of social work as employees of any community service board or similar entity created by general law to provide services to persons with disabilities, as defined in Chapter 2 of Title 37, or any agency or department of the state or any of its political subdivisions, but only when engaged in that practice as employees of such community service board or similar entity, agency, or department, and persons or entities which contract to provide social work services with any community service board or similar entity or any agency or department of the state or any of its political subdivisions, but such contracting persons and entities shall only be exempt under this subparagraph when engaged in providing social work services pursuant to those contracts and shall only be exempt until January 1, 1996. (C) Persons who engage in the practice of professional counseling as employees of privately owned correctional facilities, the Department of Corrections, Department of Community Health, Department of Behavioral Health and Developmental Disabilities, Department of Human Services, any county board of health, or any community service board or similar entity created by general law to provide services to persons with disabilities, as defined in Chapter 2 of Title 37, but only when engaged in that practice as employees of such privately owned correctional facility, department, board, or entity and persons or entities which contract to provide professional counseling services with such department or county board of health, but such contracting persons and entities shall only be exempt under this subparagraph when engaged in providing professional counseling services pursuant to those contracts and shall only be exempt until January 1, 1996;'

GEORGIA LAWS 2009 SESSION

503

'(12) Persons engaged in the practice of a specialty as an employee of the Division of Family and Children Services of the Department of Human Services but only when engaged in such practice as an employee of that division;'

SECTION 1-45. Code Section 43-26-51 of the Official Code of Georgia Annotated, relating to the purpose of the "Georgia Qualified Medication Aide Act," is amended as follows:
'43-26-51. The purpose ofthis article is to protect, promote, and preserve the public health, safety, and welfare through the delegation of certain activities performed by registered professional nurses and licensed practical nurses to persons who are certified as qualified medication aides and who are employed by and working in community living arrangements established by the Department of Community Health pursuant to paragraph (8) of subsection(d) of Code Section 31-2-4.'

SECTION 1-46. Code Section 43-26-52 of the Official Code of Georgia Annotated, relating to definitions relative to the "Georgia Qualified Medication Aide Act," is amended by revising paragraph (3) as follows:
'(3) 'Community living arrangement' means any residence, whether operated for profit or not for profit, which undertakes through its ownership or management to provide or arrange for the provision of daily personal services, support, care, or treatment exclusively for two or more adults who are not related to the owner or administrator by blood or marriage which is established by the Department of Community Health pursuant to paragraph(8) of subsection(d) of Code Section 31-2-4 and whose services are financially supported, in whole or part, by funds authorized through the Department of Behavioral Health and Developmental Disabilities. A community living arrangement is also referred to as a 'residence.''

SECTION 1-47. Code Section 43-27-2 of the Official Code of Georgia Annotated, relating to the creation of the State Board of Nursing Home Administrators, is amended as follows:
.43-27-2. (a) There is created the State Board of Nursing Home Administrators, which shall consist of 13 members, none of whom may be employees of the United States government or of this state, and the commissioner of human services or his or her designee, who shall serve as ex officio member ofthe board, and the commissioner of community health or his or her designee, who shall serve as ex officio member of the board. The members of the board shall be appointed by the Governor and confirmed by the Senate, as follows:
(1) One member who is a licensed medical doctor in this state and who is not a nursing home administrator or pecuniarily interested in any nursing home;

504

GENERAL ACTS AND RESOLUTIONS, VOL. I

(2) One member who is a registered nurse in this state and who is not a nursing home administrator or pecuniarily interested in any nursing home; (3) One member who is an educator with a graduate degree and specializing in the field of gerontology and who is not a nursing home administrator or pecuniarily interested in any nursing home; (4) Three members of the public at large who are not nursing home administrators or pecuniarily interested in any nursing home or have any connection with the nursing home industry whatsoever. Two of these three public, at-large positions shall be appointed from a list of three persons for each of these two positions submitted by the Board of Community Health. The Governor is vested with complete discretion in appointing the third member for one of these three public, at-large positions; (5) One member who is a hospital administrator in this state, who is the holder of a master's degree in hospital administration, and who is not a nursing home administrator or pecuniarily interested in any nursing home; and (6) Six members, at least one of whom shall represent nonproprietary nursing homes, who are licensed nursing home administrators in this state. (b) The term for all members shall be three years from the date of appointment. A member may be removed as provided in Code Section 43-1-17. All vacancies shall be filled by the Governor for the unexpired terms in accordance with the requirements for appointment to the vacant position.'

SECTION 1-48. Code Section 43-27-5 ofthe Official Code of Georgia Annotated, relating to general powers and duties of the State Board of Nursing Home Administrators, is amended by revising paragraph (4) of subsection (a) as follows:
'(4) To initiate investigations for the purpose of discovering violations by a nursing home administrator ofthe rules, regulations, or statutes of the Department of Community Health or the Department of Human Services, provided that the board shall investigate those violations only after revocation, limitation, or restriction of participation of the nursing home of which such individual is the administrator in the medical assistance program or the license issued by the Department of Community Health and make written findings as to the causes of the alleged violations;'

SECTION 1-49. Code Section 45-9-1 of the Official Code of Georgia Annotated, relating to general provisions relative to insuring and indemnification of state officers and employees, is amended by revising subsection (c) as follows:
'(c) For the purpose of this article, the term 'agency' shall specifically include, but shall not be limited to, public retirement systems of state-wide application established by the laws of this state, but shall not include counties or municipalities; provided, however, that the employees of community service boards, county departments of health, and county

GEORGIA LAWS 2009 SESSION

505

departments of family and children services as well as the members of the boards of said departments shall be considered to be state employees or officials for the purpose of this article. In order to facilitate the administration of liability coverage or other insurance coverages provided the community service boards, the Department of Behavioral Health and Developmental Disabilities shall designate a central office which shall be responsible for obtaining, submitting, and collecting all underwriting information and insurance premiums requested and assessed by the Department of Administrative Services. In order to facilitate the administration of liability coverage or other insurance coverages provided county departments of family and children services, the Department of Human Services shall designate a central office which shall be responsible for obtaining, submitting, and collecting all underwriting information and insurance premiums requested and assessed by the Department of Administrative Services. In order to facilitate the administration of liability coverage or other insurance coverages provided county departments of health, the Department of Community Health shall designate a central office which shall be responsible for obtaining, submitting, and collecting all underwriting information and insurance premiums requested and assessed by the Department ofAdministrative Services.'

SECTION 1-50. Code Section 45-9-110 of the Official Code of Georgia Annotated, relating to authorization for consolidation of unemployment compensation claim matters under the commissioner of administrative services, is amended by revising subsection (d) as follows:
'(d) The commissioner of administrative services shall have the authority to provide unemployment compensation benefits insurance to all ofthe county departments of health, county departments of family and children services,. and community service boards. The commissioner of community health shall establish a procedure to provide the Department of Administrative Services all of the underwriting information required, including but not limited to payroll data each quarter for the service centers, and shall collect the unemployment premium from county departments of health and remit the premium to the Department of Administrative Services. The commissioner of human services shall establish a procedure to provide the Department of Administrative Services all of the underwriting information required, including but not limited to payroll data each quarter for the service centers, and shall collect the unemployment premium from county departments of family and children services and remit the premium to the Department of Administrative Services. The commissioner of behavioral health and developmental disabilities shall establish a procedure to provide the Department of Administrative Services all of the underwriting information required, including but not limited to payroll data each quarter for the service centers, and shall collect the unemployment premium from community service boards and remit the premium to the Department of Administrative Services. All of the county departments of health, county departments of family and children services, and community service boards shall participate in such unemployment compensation benefit insurance program.'

506

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 1-51. Code Section 46-4-154 of the Official Code of Georgia Annotated, relating to notice of election, unbundling, rates, application requirements, and surcharge on interruptibles under the "Natural Gas Competition and Deregulation Act," is amended by revising subsection (e) as follows:
'(e) The commission shall establish a surcharge on all customers receiving interruptible service over the electing distribution company's distribution system sufficient to ensure that such customers will pay an equitable share of the cost of the distribution system over which such customers receive service. The commission is authorized to direct the electing distribution company or the marketers to collect such surcharge directly from the customers. Such surcharge shall be paid promptly upon receipt into the universal service fund. This surcharge shall not be applied to any hospital that has a medicare and Medicaid payor mix of at least 30 percent and has uncompensated writeoffs for the provision of charity, indigent, and free health care services of not less than 5 percent of such hospital's annual operating expenses based on the annual hospital surveys by the Department of Community Health. This surcharge shall not be applied to any institution or property enumerated in Code Section 50-16-3, or administered or regulated under authority granted by Code Section 42-2-5 or 49-4A-6 or by Chapter 9 of Title 50.'

SECTION 1-52. Code Section 49-4-142 of the Official Code of Georgia Annotated, relating to adoption and administration of a state plan for medical assistance by the Department of Community Health, is amended by revising subsection (b) as follows:
(b) The department shall, not later than June 1, 1986, implement a modification of the state plan for medical assistance or any affected rules or regulations of the department, which modification will allow supplementation by relatives or other persons for a private room or private sitter or both for a recipient of medical assistance in a nursing home. The modification to the plan or to any affected rules and regulations shall be effective unless and until federal authorities rule that such modification is out of compliance with federal regulations. Such modification of the state plan for medical assistance or rules and regulations:
(1) Shall provide that a provider of nursing home services in either a skilled care facility or an intermediate care facility shall be obligated to provide a recipient of medical assistance only semiprivate accommodations which meet the other requirements of appropriate regulations; (2) Shall provide that at no time can more than 10 percent of a skilled care or intermediate care facility's rooms be used for Medicaid recipients for whom a private room supplementation has been made; (3) Shall provide that payments made by relatives or other persons to a provider of medical assistance for the specific stated purpose of paying the additional costs for a private room or private sitter or both for a recipient of medical assistance in a skilled care

GEORGIA LAWS 2009 SESSION

507

facility or intermediate care facility shall not be considered as income when determining the amount of patient liability toward vendor payments; provided, however, that the department's entitlement to payments made by legally liable third parties shall not be diminished by this modification of the state plan; (4) Shall provide that no provider of medical assistance shall discriminate against a recipient of medical assistance who does not have a relative or other person who is willing and able to provide supplementation; but the provision of a private room or private sitter to a recipient when supplementation is provided shall not constitute discrimination against other recipients; (5) Shall provide that no recipient who is transferred to or admitted to a private room because of a shortage of beds in semiprivate rooms shall be discharged because the recipient does not have a relative or other person who is willing and able to provide supplementation; and (6) May provide that the rate charged by the provider of medical assistance to the relative or other person providing supplementation for a private room for a recipient shall not exceed the difference between the maximum rate charged by the provider for a private room to or for a private pay patient and the amount which the provider receives or will receive from the department as reimbursement for otherwise providing for the recipient's care in a semiprivate room.'

SECTION 1-53. Code Section 49-4-153 ofthe Official Code of Georgia Annotated, relating to administrative hearings and appeals under Medicaid, is amended by revising subsection (d) as follows:
'(d) All contested cases involving the imposition of a remedial or punitive measure against a nursing facility by the Department of Community Health shall be conducted in the manner provided for in subsection (I) of Code Section 31-2-11, but only if such remedial or punitive measure is based upon findings made by the Department of Community Health in its capacity as the state survey agency for the Georgia Medicaid program.'

SECTION 1-54. Code Section 49-4-154 of the Official Code of Georgia Annotated, relating to powers and duties retained by the Department of Human Resources with respect to Medicaid, is amended as follows:
'49-4-154. (a) The status, position, and rights of persons transferred from the Department of Human Resources (now known as the Department of Community Health for these purposes) to the Department of Medical Assistance pursuant to Ga. L. 1977, p. 384 shall not be affected by the transfer, in and of itself; and such persons shall retain, inter alia, all rights of rank or grade; rights to vacation, sick pay, and leave; rights under any retirement plan; and any other rights under any law or administrative policy.

508

GENERAL ACTS AND RESOLUTIONS, VOL. I

(b) The Department of Human Resources (now known as the Department of Community Health for these purposes) shall retain, in accordance with terms of the state plan, the functions, and all tangible things and employees relating thereto, of:
(I) Establishing and maintaining certain standards for certain institutions and agencies seeking to become or remain providers and shall finally determine and certify whether such institutions and agencies meet such standards; (2) Determining and certifying the eligibility of certain applicants for and recipients of medical assistance; and (3) Prescribing regulations to require that applicants for medical assistance be given clear and easily understandable notice that all books, papers, records, and memoranda of the provider relating to the provision of medical assistance to the applicant will be made available, upon request, to the commissioner of medical assistance or his representative and that, by accepting medical assistance, the applicant thereby consents to the providing of such books, papers, records, and memoranda to the commissioner of medical assistance or his representative.'

SECTION 1-55. Code Section 49-4-155 of the Official Code of Georgia Annotated, relating to the Department of Community Health succeeding to existing rules, regulations, policies, procedures, and administrative orders with respect to Medicaid, is amended as follows:
49-4-155. The Department of Community Health shall succeed to all the rules, regulations, policies, procedures, and administrative orders ofthe Department ofHuman Resources (now known as the Department ofHuman Services) transferred to the Department ofMedical Assistance pursuant to the previously existing provisions of this Code section and that are in effect on June 30, 1999, and shall further succeed to any rights, privileges, entitlements, obligations, and duties of the Department of Human Resources (now known as the Department of Human Services) that are in effect on June 30, 1999, to which the Department of Medical Assistance succeeded pursuant to the previously existing provisions of Code Section 49-4-156.'

SECTION 1-56. Code Section 49-6-84 of the Official Code of Georgia Annotated, relating to the authority of the Department ofHuman Resources to promulgate rules and regulations under the "Adult Day Center for Aging Adults Licensure Act," is amended as follows:
'49-6-84. The department is authorized to promulgate rules and regulations to implement this article utilizing the public rule-making process to elicit input from consumers, providers, and advocates. The department is further authorized to issue, deny, suspend, or revoke licenses or take other enforcement actions against licensees or applicants as provided in Code Section 31-2-11. All rules and regulations and any enforcement actions initiated by the

GEORGIA LAWS 2009 SESSION

509

department shall comply with the requirements of Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.'"

SECTION 1-57. Code Section 50-13-42 of the Official Code of Georgia Annotated, relating to applicability of the "Georgia Administrative Procedure Act," is amended by revising subsection (a) as follows:
'(a) In addition to those agencies expressly exempted from the operation of this chapter under paragraph (l) of Code Section 50-13-2, this article shall not apply to the Commissioner of Agriculture, the Public Service Commission, the Certificate of Need Appeal Panel, or the Department of Community Health, unless specifically provided otherwise for certain programs or in relation to specific laws, or to the Department of Labor with respect to unemployment insurance benefit hearings conducted under the authority of Chapter 8 of Title 34. Such exclusion does not prohibit such office or agencies from contracting with the Office of State Administrative Hearings on a case-by-case basis:

SECTION 1-58. Code Section 50-16-3 ofthe Official Code ofGeorgia Annotated, relating to property of state boards and departments, is amended by revising paragraph (2) as follows:
'(2) The several institutions operated by the Department of Human Services, the Department of Community Health, or the Department of Behavioral Health and Developmental Disabilities, including all real and personal property belonging to the several institutions or used in connection therewith, and all other property conveyed to any such department for the use of any of the institutions or conveyed to any of the boards of trustees of which such department is the successor or to any of the institutions under its control;"

PART II Department of Human Services.

SECTION 2-1. Title 49 of the Official Code of Georgia Annotated, relating to social services, is amended by revising Chapters 1 and 2, relating to general provisions on social services and the Department of Human Resources, respectively, as follows:

"CHAPTER 1

49-1-1. As used in this title, the term:
(1) 'Board' means the Board of Human Services. (2) 'Commissioner' means the commissioner of human services.

510

GENERAL ACTS AND RESOLUTIONS, VOL. I

(3) 'County board' means a county or district board of family and children services. (4) 'County department' means a county or district department of family and children services. (5) 'County director' means the director of a county or district department of family and children services. (6) 'Department' means the Department of Human Services.

49-1-2. All rules and regulations made by the Department of Human Services shall be binding on the counties and shall be complied with by the respective county departments.

49-1-3. Reserved.

49-1-4. No individual, supervisor, or member of the Board of Human Services or the county or district boards of family and children services having to do with the administration of this title shall be authorized or permitted, directly or indirectly, to sell supplies or other items of any kind or character to any of the institutions to be benefited by this title.

49-1-5. (a) In order that the public welfare laws of this state may be better enforced, the Governor is authorized and empowered to suspend any member of any county board, any county director, or any employee or official of the department whenever he or she shall find that good cause for such suspension exists. Such suspension shall be by executive order of the Governor, which shall state the reason therefor. A copy of such order of suspension shall be sent to the person so suspended within five days after it is issued, by registered or certified mail or statutory overnight delivery, return receipt requested, together with a notice from the Governor or his or her executive secretary that the suspended person may be heard before the Governor at such time as may be stated in the notice, which hearing shall be not less than ten nor more than 20 days from the date of the notice. Upon such hearing, if the Governor shall find that good cause for the removal of the person so suspended exists, he or she is authorized and empowered to remove such member of any county board, any county director, or any employee or official in the department; whereupon, such person's tenure of office or employment shall terminate, subject to the right of appeal granted to any employee under the State Merit System of Personnel Administration by Chapter 20 of Title 45, and the vacancy shall be filled as provided by law. If the Governor shall find that good cause for the removal of such person does not exist, he or she shall, by appropriate executive order, restore him or her to duty. (b) In addition to removal by the Governor as specified in subsection (a) of this Code section, the director of the Division of Family and Children Services may terminate the

GEORGIA LAWS 2009 SESSION

511

employment of any county director or district director subject to any right of appeal such director may have under the State Merit System of Personnel Administration by Chapter 20 of Title 45, and the vacancy shall be filled as provided by law.

49-1-6. (a) Any charitable or nonprofit corporation which has been granted a charter or articles of incorporation under the laws of this state may transfer all or a part of its assets to the department upon such terms as may be agreed upon between such corporation and the department, provided such corporation shall first have obtained authority to make such transfer in accordance with this Code section. (b) Any such corporation may apply for authority to make such transfer by filing its petition with the superior court of the county in which such corporation has its principal office. Such application shall set forth the assets which the corporation desires to transfer to the department and the terms upon which it desires to transfer these assets. (c) Such corporation, once a week for four weeks prior to the filing of such petition, shall publish notice in the newspaper of the county in which is located the principal office of the corporation, such newspaper being the newspaper in which notices of sheriffs sales are advertised. The notice shall set forth the date, time, and place when such application will be presented, the court to which it will be presented, and the assets which such corporation desires to transfer to the department. (d) After a hearing, the court shall be authorized to grant the application and permit a transfer of the assets of the applicant upon terms as set out in the application or modified as the court may deem advisable, if the court considers this in the public interest; or the court may deny the application if the court deems such denial to be in the public interest. Where such corporation makes a transfer of all of its right, title, and interest in any of its assets to the department and such transfer is made pursuant to the authority of the court obtained in the manner provided for in this Code section, such transfer shall be conclusively deemed to be a proper and legal transfer. (e) Should such corporation desire to transfer all of its assets to the department, the court to which such application is presented may include in its order a provision that upon the transfer by such corporation of all of its assets to the department and upon compliance with Chapter 3 of Title 14, the charter or articles ofincorporation of such corporation shall stand surrendered and the corporation dissolved. (f) Nothing contained in this Code section shall be considered as authorizing the department to accept a transfer of assets upon terms which would require the use of them by the department in a manner not authorized by law.

49-1-7. (a) The General Assembly finds that it is in the best interest of the state to provide for programs for home delivered meals, transportation services for the elderly, and preschool children with special needs, including but not limited to disabled children, troubled

512

GENERAL ACTS AND RESOLUTIONS, VOL. I

children, school readiness programs, and other similar needs for the benefit of the citizens of Georgia. In addition to and as a supplement to traditional financing mechanisms for such programs, it is the policy of this state to enable and encourage citizens voluntarily to support such programs. (b) To support programs for home delivered meals, transportation services for the elderly, and preschool children with special needs which programs have been established or approved by the department or the Department of Community Health, the department may, without limitation, promote and solicit voluntary contributions through the income tax return contribution mechanism established in subsection (f) of this Code section, through offers to match contributions by any person with moneys appropriated or contributed to the department or the Department of Community Health for such programs, or through any fund raising or other promotional techniques deemed appropriate by the department or the Department of Community Health. (c) There is established a special fund to be known as the 'Home Delivered Meals, Transportation Services for the Elderly, and Preschool Children with Special Needs Fund.' This fund shall consist of all moneys contributed under subsection (b) of this Code section, all moneys transferred to the department under subsection (f) of this Code section, and any other moneys contributed to this fund or to the home delivered meals, transportation services for the elderly, or preschool children with special needs programs of the department or the Department of Community Health and all interest thereon. All balances in the fund shall be deposited in an interest-bearing account identifying the fund and shall be carried forward each year so that no part thereof may be deposited in the general treasury. The fund shall be administered and the moneys held in the fund shall be expended by the department through the Division ofAging Services in furtherance ofhome delivered meals and transportation services to the elderly programs and by the Department of Community Health in furtherance of preschool children with special needs programs. (d) Following the transmittal of contributions to the department for deposit in the fund pursuant to subsection (f) of this Code section, the expenditure of moneys in the fund shall be allocated as follows:
(1) Fifty percent of the contributions to the fund shall be used for home delivered meals and transportation services to the elderly programs; and (2) Fifty percent of the contributions to the fund shall be transferred to the Department of Community Health to be used for preschool children with special needs programs. (e) Contributions to the fund shall be deemed supplemental to and shall in no way supplant funding that would otherwise be appropriated for these purposes. Contributions shall only be used for benefits and services and shall not be used for personnel or administrative positions. The department and the Department of Community Health shall each prepare, by February 1 of each year, an accounting of the funds received and expended from the fund and a review and evaluation of all expended moneys of the fund. The reports shall be made available to the Governor, the Lieutenant Governor, the Speaker of the House of

GEORGIA LAWS 2009 SESSION

513

Representatives, to the members of the Board of Human Services, and, upon request, to members of the public.
(f)(1) Unless an earlier date is deemed feasible and established by the Governor, each Georgia income tax return form for taxable years beginning on or after January 1, 1993, shall contain appropriate language, to be determined by the state revenue commissioner, offering the taxpayer the opportunity to contribute to the Home Delivered Meals, Transportation Services for the Elderly, and Preschool Children with Special Needs Fund established in subsection (c) of this Code section by either donating all or any part of any tax refund due, by authorizing a reduction in the refund check otherwise payable, or by contributing any amount over and above any amount of tax owed by adding that amount to the taxpayer's payment. The instructions accompanying the income tax return form shall contain a description of the purposes for which this fund was established and the intended use of moneys received from the contributions. Each taxpayer required to file a state income tax return who desires to contribute to such fund may designate such contribution as provided in this Code section on the appropriate income tax return form. (2) The Department ofRevenue shall determine annually the total amount so contributed, shall withhold therefrom a reasonable amount for administering this voluntary contribution program, and shall transmit the balance to the department for deposit in the fund established in subsection (c) of this Code section; provided, however, the amount retained for administrative costs, including implementation costs, shall not exceed $50,000.00 per year. If, in any tax year, the administrative costs of the Department of Revenue for collecting contributions pursuant to this Code section exceed the sum of such contributions, the administrative costs which the Department of Revenue is authorized to withhold from such contributions shall not exceed the sum of such contributions.

CHAPTER2 ARTICLE 1

49-2-l. (a) There is created a Department of Human Services. The powers, functions, and duties of the Department of Human Resources as they existed on June 30, 2009, except for those relating to the Division of Mental Health, Developmental Disabilities, and Addictive Diseases, the Division of Public Health, and the Office of Regulatory Services, unless specifically transferred or reassigned to the Department of Community Health or the Department of Behavioral Health and Developmental Disabilities, are transferred to the Department of Human Services effective July 1, 2009, and the Department of Human Resources shall be reconstituted as the Department of Human Services effective July I, 2009. (b) There is created the position of commissioner of human services. The commissioner shall be the chief administrative officer of the department and be both appointed and

514

GENERAL ACTS AND RESOLUTIONS, VOL. I

removed by the board, subject to the approval of the Governor. Subject to the general policy established by the board, the commissioner shall supervise, direct, account for, organize, plan, administer, and execute the functions vested in the department.

49-2-2. (a) There is created a Board of Human Services, as of July 1, 2009, which shall establish the general policy to be followed by the Department of Human Services created by Code Section 49-2-1. The powers, functions, and duties of the Board of Human Resources as they existed on June 30, 2009, except for those relating to the Division of Mental Health, Developmental Disabilities, and Addictive Diseases, the Division ofPublic Health, and the Office of Regulatory Services, unless specifically transferred or reassigned to the Board of Community Health or the Board of Behavioral Health and Developmental Disabilities, are transferred to the Board ofHuman Services effective July 1, 2009, and the Board ofHuman Resources as it existed on June 30, 2009, shall be abolished effective July 1, 2009. The board shall consist of nine members appointed by the Governor and confirmed by the Senate. (b) The Governor shall designate the initial terms of the members of the board as follows: three members shall be appointed for one year; three members shall be appointed for two years; and three members shall be appointed for three years. Thereafter, all succeeding appointments shall be for three-year terms from the expiration of the previous term. (c) Vacancies in office shall be filled by appointment by the Governor in the same manner as the appointment to the position on the board which becomes vacant, and the appointment shall be submitted to the Senate for confirmation at the next session of the General Assembly. An appointment to fill a vacancy, other than by expiration of a term of office, shall be for the balance of the unexpired term. (d) Members of the board may be removed from office under the same conditions for removal from office ofmembers ofprofessional licensing boards provided in Code Section 43-1-17. (e) There shall be a chairperson of the board, elected by and from the membership of the board, who shall be the presiding officer of the board. (f) The members of the board shall receive per diem and expenses as shall be set and approved by the Office of Planning and Budget and in conformance with rates and allowances set for members of other state boards.

49-2-2.1. (a) The Department of Human Services shall succeed to all rules, regulations, policies, procedures, and administrative orders of the Department of Human Resources that are in effect on June 30, 2009, or scheduled to go into effect on or after July 1, 2009, and which relate to the functions transferred to the Department of Human Services pursuant to Code Section 49-2-1 and shall further succeed to any rights, privileges, entitlements, obligations, and duties of the Department of Human Resources that are in effect on June 30, 2009,

GEORGIA LAWS 2009 SESSION

515

which relate to the functions transferred to the Department of Human Services pursuant to Code Section 49-2-1. Such rules, regulations, policies, procedures, and administrative orders shall remain in effect until amended, repealed, superseded, or nullified by the Department of Human Services by proper authority or as otherwise provided by law. (b) The rights, privileges, entitlements, and duties of parties to contracts, leases, agreements, and other transactions entered into before July I, 2009, by the Department of Human Resources which relate to the functions transferred to the Department of Human Services pursuant to Code Section 49-2-1 shall continue to exist; and none of these rights, privileges, entitlements, and duties are impaired or diminished by reason of the transfer of the functions to the Department of Human Services. In all such instances, the Department of Human Services shall be substituted for the Department of Human Resources, and the Department of Human Services shall succeed to the rights and duties under such contracts, leases, agreements, and other transactions. (c) All persons employed by the Department of Human Resources in capacities which relate to the functions transferred to the Department of Human Services pursuant to Code Section 49-2-1 on June 30, 2009, shall, on July 1, 2009, become employees of the Department of Human Services in similar capacities, as determined by the commissioner of human services. Such employees shall be subject to the employment practices and policies of the Department of Human Services on and after July 1, 2009, but the compensation and benefits of such transferred employees shall not be reduced as a result of such transfer. Employees who are subject to the rules of the State Personnel Board and thereby under the State Merit System of Personnel Administration and who are transferred to the department shall retain all existing rights under the State Merit System of Personnel Administration. Retirement rights of such transferred employees existing under the Employees' Retirement System of Georgia or other public retirement systems on June 30, 2009, shall not be impaired or interrupted by the transfer of such employees and membership in any such retirement system shall continue in the same status possessed by the transferred employees on June 30, 2009. Accrued annual and sick leave possessed by said employees on June 30, 2009, shall be retained by said employees as employees of the Department of Human Services. (d) On July I, 2009, the Department of Human Services shall receive custody of the state owned real property in the custody of the Department of Human Resources on June 30, 2009, and which pertains to the functions transferred to the Department ofHuman Services pursuant to Code Section 49-2-1.

49-2-3. (a) The policy-making functions of the State Board for Children and Youth, contained in Ga. L. 1963, p. 81, are vested in the Board of Human Services. (b) The policy-making functions of the Commission on Aging, created in Ga. L. 1962, p. 604, are vested in the Board of Human Services.

516

GENERAL ACTS AND RESOLUTIONS, VOL. I

49-2-4. There shall be created in the department such divisions as may be found necessary for its effective operation. The commissioner shall have the power to allocate and reallocate functions among the divisions within the department.

49-2-5. The department is declared to be an institution of the state for which the powers of taxation over the whole state may be exercised, and the department is empowered and authorized to administer, expend, and disburse funds appropriated to it and allocated to it by the General Assembly, the respective counties of the state, and the United States, through its appropriate agencies and instrumentalities for the purpose of distributing old-age benefits and all other benefits as provided in this title.

49-2-6. (a) The department shall administer or supervise all county departments of the state as provided in Chapter 3 of this title. (b) The department shall:
(I) Administer or supervise: (A) All categories of public assistance established under Code Section 49-4-3; (B) The operation of state charitable institutions; (C) Agencies and institutions caring for dependent or mentally or physically disabled or aged adults; and (D) Such other welfare activities or services as may be vested in it;
(2) Provide services to county governments, including the organization and supervision of county departments for the effective administration of welfare functions and the compilation of statistics and necessary information relative to public welfare problems throughout the state; (3) Prescribe qualifications and salary standards for welfare personnel in state and county departments, subject to Chapter 20 of Title 45; (4) Assist other state and federal departments, agencies, and institutions, when so requested, by performing services in conformity with the purposes of this title; (5) Act as the agent of the federal government in welfare matters of mutual concern in conformity with this title and the administration of any federal funds granted to the state to aid in the furtherance of any functions of the department; (6) Under rules and regulations prescribed by the board, designate county and district departments to serve as agents in the performance of all state welfare activities in the counties or districts; (7) Have the right to designate private institutions as state institutions; to contract with such private institutions for such activities, in carrying out this title, as the department may deem necessary from time to time; and to exercise such supervision and cooperation

GEORGIA LAWS 2009 SESSION

517

in the operation of such designated private institutions as the department may deem necessary; (8) Have the right to accept and execute gifts or donations for welfare purposes, as may be prescribed by the donors thereof; (9) Have authority to delegate in whole or in part the operation of any institution or other activity of the department to any other appropriate department or agency of the state, county, or municipal governments; and to contract with and cooperate with such departments or subdivisions in any manner proper for carrying out the purposes of this
title; and (10) Administer such programs and provide such services as may be appropriate and necessary to strengthen family life and help needy individuals attain the maximum economic and personal independence of which they are capable, including services to applicants and recipients of old-age assistance to help them attain self-care, provided that the costs incurred by the county departments in administering this Code section in conjunction with the public assistance programs administered by the department shall be deemed to be administrative expenses.

49-2-7. (a) The functions, duties, and authority of the Board of Public Welfare, established by Ga. L. 1919, p. 222, as amended, as transferred and vested in the Board of Control of Eleemosynary Institutions by Ga. L. 1931, p. 7, Section 44A, are vested in the Department of Human Services. (b) The functions, duties, and authority of the Department of Family and Children Services, created in Ga. L. 1937, p. 355, as amended, are vested in the Department of Human Services. (c) The functions of the State Board for Children and Youth, created in Ga. L. 1963, p. 81, except for the policy-making functions transferred to the Board of Human Resources, are vested in the Department of Human Services. (d) The functions, duties, and authority of the State Commission on Aging, created in Ga. L. 1962, p. 602, except the policy-making functions transferred to the Board of Human Services, are vested in the Department of Human Services.

49-2-8. Reserved.

49-2-9. In administering any funds appropriated or made available to the department for welfare purposes, the department shall have the power:
(1) To make use of all local processes to enforce the minimum standards prescribed under or pursuant to the laws providing for grants-in-aid; and

518

GENERAL ACTS AND RESOLUTIONS, VOL. I

(2) To administer and disburse any and all funds which may be allocated by any municipality of the state or private organization or society for such purposes as may be designated by such municipality or other agency. The department may use a reasonable percentage of such funds for administrative costs, not to exceed I0 percent of the total sum administered.

49-2-10. For the purpose of carrying out the duties and obligations of the department for performance of welfare services of the state, for administrative costs, for matching such federal funds as may be available for all of the aforesaid services, for the purpose of establishing an equalization fund to be used in assisting those counties which may be unable otherwise to bear their proportionate share of the expenses of administration and of dispensing the benefits provided for under this title, and for dispensing all of the benefits provided for under this title, the General Assembly shall make appropriations out of the general fund of the state or otherwise for the various and separate activities of the department. All funds appropriated or allocated to the department or to the county departments by the General Assembly, the fiscal authorities of the respective counties, and by the federal government through its appropriate agencies and instrumentalities are declared to be funds provided for a public purpose; and all appropriations provided for in this Code section and hereafter may be expended and distributed by the department for the purposes provided for under this title.

49-2-11. (a) Notwithstanding any provision in this title to the contrary, particularly Articles 2, 3, and 5 of Chapter 4 of this title, nothing therein contained shall be construed to prevent the acceptance of more than 50 percent federal matching funds. The department may accept and disburse the maximum percentage of federal grant-in-aid funds made available to this state by the federal government under any formula of variable grants or other formula for the granting of federal grants-in-aid. (b) The department is authorized to comply with the requirements prescribed by Congress as conditions to federal grants. (c) To the end of empowering the department to comply with federal requirements and to effectuate the purposes of grant-in-aid welfare programs, the board is authorized to promulgate all necessary rules and regulations and the department is authorized to do all things necessary and proper for the securing of the maximum amount of such federal grants. (d) In the event that Congress appropriates funds for grants-in-aid to the state governments for the purpose of assisting them in the operation of general assistance programs, medical assistance programs, or any other welfare programs, the department is authorized to cooperate with the federal government in such programs, to accept funds from the federal government in the maximum amounts made available, to disburse them, and to comply

GEORGIA LAWS 2009 SESSION

519

with all requirements of the federal government necessary for the securing of such grant-in-aid funds. (e) Any state funds which are made available by appropriation to the department for matching federal funds shall be available to supply the state portion of expenditures for general assistance programs, medical assistance programs, or any other type welfare programs provided for by the federal government which benefit the citizens or residents of
this state. (f) Notwithstanding subsections (a) through (e) of this Code section, the Department of Community Health shall be the single state agency for the administration of the state medical assistance plan.

49-2-12. (a) All divisions and sections within the department shall make an inventory of all the various vehicles to which the department holds title and shall investigate their utilization patterns in order to establish and develop a consolidated and coordinated transportation plan for the various human services programs of the department, including, but not limited to, those programs relating to the aged and to the mentally and physically disabled. (b) Other departments and agencies of the state shall cooperate with the Department of Human Services in mutually beneficial agreements regarding the establishment and development of a coordinated transportation plan involving various vehicles to which the state has title. (c) The plan required to be developed under this Code section shall identify the fully allocated costs ofthe transportation component oftheir services and take into consideration various limitations on the expenditure offederal funds which may arise in any consolidated or coordinated transportation system. No later than June 30, 1980, a preliminary transportation plan shall be submitted by the department to the Human Relations and Aging Committee ofthe House ofRepresentatives and the Education andYouth Committee ofthe Senate, which plan shall be revised and submitted to such committees every two years thereafter.

49-2-13. All divisions and sections within the department, in cooperation with the Department of Transportation, shall identify those areas ofthe state where the general transportation needs of the elderly and persons with disabilities are not and cannot be adequately served by bus service and community service centers furnishing transportation. In further cooperation with the Department of Transportation, the department shall identify alternatives for meeting the transportation needs of these persons and shall report to the committees specified in subsection (c) of Code Section 49-2-12 as required therein. Such alternative means to be considered for providing for the transportation needs of these persons should include, but shall not be limited to:

520

GENERAL ACTS AND RESOLUTIONS, VOL. I

( l) Contract service resulting from competitive bidding by private sector bus operators operating under Article 1 of Chapter 7 of Title 46; (2) Contract service resulting from competitive bidding by taxi operators; (3) Negotiated fee basis with municipal and area-wide transportation systems serving the general public; or (4) Any combination of paragraphs (1) through (3) of this Code section.

49-2-13 .I. (a) The department may, when funds are available from the United States government for such purposes, provide financial assistance with such funds, or such funds and state general funds appropriated for these purposes, to private nonprofit corporations and associations for the specific purpose of assisting them in providing transportation services meeting the special needs of the elderly or persons with disabilities, or both, for whom the department determines that the mass transportation services planned, designed, and carried out by local public bodies, agencies, and authorities are unavailable, insufficient, or inappropriate. Such financial assistance shall be subject to those terms, conditions, requirements, and restrictions as the department determines to be necessary or appropriate in order to carry out the purposes of this Code section. (b) In order to effectuate and enforce this Code section, the department is authorized to promulgate necessary rules and regulations and to prescribe conditions and procedures in order to assure compliance in carrying out the purposes of this Code section.

49-2-14. (a) As used in this Code section, the term 'conviction data' means a record of a finding or verdict of guilty or a plea of guilty or a plea of nolo contendere with regard to any crime, regardless of whether an appeal of the conviction has been sought. (b) The department may receive from any law enforcement agency conviction data that is relevant to a person whom the department, its contractors, or a district or county health agency is considering as a final selectee for employment in a position the duties of which involve direct care, treatment, custodial responsibilities, or any combination thereoffor its clients. The department may also receive conviction data which is relevant to a person whom the department, its contractors, or a district or county health agency is considering as a final selectee for employment in a position if, in the judgment of the employer, a final employment decision regarding the selectee can only be made by a review of conviction data in relation to the particular duties of the position and the security and safety of clients, the general public, or other employees. Further, the department or any licensed child-placing agency, designated by the department to assist it in preparing studies of homes in which children in its custody may be placed, may receive from any law enforcement agency conviction data that is relevant to any adult person who resides in a home where children in the custody of the department may be placed.

GEORGIA LAWS 2009 SESSION

521

(c) The department shall establish a uniform method of obtaining conviction data under subsection (a) of this Code section which shall be applicable to the department and its contractors. Such uniform method shall require the submission to the Georgia Crime Information Center of fingerprints and the records search fee in accordance with Code Section 35-3-35. Upon receipt thereof, the Georgia Crime Information Center shall promptly transmit fingerprints to the Federal Bureau oflnvestigation for a search ofbureau records and an appropriate report and shall promptly conduct a search of its own records and records to which it has access. After receiving the fingerprints and fee, the Georgia Crime Information Center shall notify the department in writing of any derogatory finding, including, but not limited to, any conviction data regarding the fingerprint records check or if there is no such finding. (d) All conviction data received shall be for the exclusive purpose of making employment decisions or decisions concerning children in the custody of the department or who are the subjects of a child protective services referral, complaint, or investigation and shall be privileged and shall not be released or otherwise disclosed to any other person or agency. Immediately following the employment decisions or upon receipt of the conviction data concerning any adult person who has contact with a child who is the subject of a child protective services referral, complaint, or investigation or who resides in a home where children in the custody of the department may be placed, all such conviction data collected by the department or the licensed child-placing agency shall be maintained by the department or child-placing agency pursuant to laws regarding and the rules or regulations of the Federal Bureau of Investigation and the Georgia Crime Information Center, as is applicable. Penalties for the unauthorized release or disclosure of any conviction data shall be as prescribed pursuant to laws regarding and rules or regulations of the Federal Bureau oflnvestigation and the Georgia Crime Information Center, as is applicable. (e) Notwithstanding the provisions of subsection (c) of this Code section, when a contractor to this department is a personal care home, the provisions of Code Sections 31-7-250 through 31-7-264 shall apply. (f) The department may promulgate written rules and regulations to implement the provisions of this Code section. (g) The department may receive from any law enforcement agency criminal history information, including arrest and conviction data, and any and all other information which it may be provided pursuant to state or federal law which is relevant to any adult person who resides in a home where children in the custody of the department have been or may be placed or which is relevant to any adult person who resides in the home of or provides care to a child who is the subject of a child protective services referral, complaint, or investigation to the fullest extent permissible by federal and state law, including but not limited to Public Law 92-544. The department shall establish a uniform method of obtaining criminal history information under this subsection. Such method shall require the submission to the Georgia Crime Information Center of fingerprints together with any required records search fee in accordance with Code Section 35-3-35. Upon receipt

522

GENERAL ACTS AND RESOLUTIONS, VOL. I

thereof, the Georgia Crime Information Center shall promptly transmit the fingerprints submitted by the department to the Federal Bureau ofinvestigation for a search of bureau records and an appropriate report and shall promptly conduct a search of its own records and records to which it has access. Such method shall also permit the submission of the names alone of such adult persons to the proper law enforcement agency when the department is considering placement of a child in exigent circumstances for a name based check of such adult person's criminal history information as maintained by the Georgia Crime Information Center and the Federal Bureau of Investigation. In such exigent circumstances, the department shall submit fingerprints of those adult persons in the placement home, together with any required records search fee, to the Federal Bureau of Investigation within 15 calendar days of the date of the name based check on that person. The fingerprints shall be forwarded to the Federal Bureau of Investigation through the Georgia Crime Information Center in accordance with Code Section 35-3-35. Following the submission of such fingerprints, the department may receive the criminal history information, including arrest and conviction data, relevant to such person. In the event that a child has been placed in exigent circumstances, a name based records search has been requested for any adult person ofthe placement household, and that adult refuses to provide fingerprints after being requested to do so by the department, the child shall be immediately removed from the placement household by the department, provided that the child is in the custody of the department. (h) The department shall be authorized to conduct a name or descriptor based check of any adult person's criminal history information, including arrest and conviction data, and other information from the Georgia Crime Information Center regarding any adult person who resides in a home where children in the custody of the department have been or may be placed or which is relevant to any adult person who resides in the home of or provides care to a child who is the subject of a child protective services referral, complaint, or investigation without the consent of such adult person and without fingerprint comparison to the fullest extent permissible by federal and state law.

49-2-14.1.

(a) As used in this Code section, the term:

(1) 'Conviction' means a finding or verdict of guilty or a plea of guilty regardless of

whether

>eal of the conviction has been sought.

(2) 'Crir :ans commission of the following offenses:

(A) A violation of Code Section 16-5-1, relating to murder and felony murder;

(B) A violation of Code Section 16-5-21, relating to aggravated assault;

(C) A violation of Code Section 16-5-24, relating to aggravated battery;

(D) A violation of Code Section 16-5-70, relating to cruelty to children;

(E) A violation of Code Section 16-5-100, relating to cruelty to a person 65 years of

age or older;

(F) A violation of Code Section 16-6-1, relating to rape;

GEORGIA LAWS 2009 SESSION

523

(G) A violation of Code Section 16-6-2, relating to aggravated sodomy; (H) A violation of Code Section 16-6-4, relating to child molestation; (I) A violation of Code Section 16-6-5, relating to enticing a child for indecent purposes; (J) A violation of Code Section 16-6-5.1, relating to sexual assault against persons in custody, detained persons, or patients in hospitals or other institutions; (K) A violation of Code Section 16-6-22.2, relating to aggravated sexual battery; (L) A violation of Code Section 16-8-41, relating to armed robbery; (M) A violation of Code Section 30-5-8, relating to abuse, neglect, or exploitation of a disabled adult or elder person; or (N) Any other offense committed in another jurisdiction that, ifcommitted in this state, would be deemed to be a crime listed in this paragraph without regard to its designation elsewhere. (3) 'Criminal record' means any of the following: (A) Conviction of a crime; (B) Arrest, charge, and sentencing for a crime where:
(i) A plea of nolo contendere was entered to the charge; (ii) First offender treatment without adjudication of guilt pursuant to the charge was granted; or (iii) Adjudication or sentence was otherwise withheld or not entered on the charge; or (C) Arrest and being charged for a crime if the charge is pending, unless the time for prosecuting such crime has expired pursuant to Chapter 3 of Title 17. (4) 'Facility' means a child welfare agency required to be licensed under Code Section 49-5-12. (5) 'GCIC' means the Georgia Crime Information Center established under Article 2 of Chapter 3 of Title 35. (6) 'GCIC information' means criminal history record information as defined in Code Section 35-3-30. (7) 'License' means the document issued by the department to authorize the facility to operate. (8) 'Owner' means any individual or any person affiliated with a corporation, partnership, or association with 10 percent or greater ownership interest in a facility providing care to persons under the license of the facility in this state and who: (A) Purports to or exercises authority of the owner in a facility; (B) Applies to operate or operates a facility; (C) Maintains an office on the premises of a facility; (D) Resides at a facility; (E) Has direct access to persons receiving care at a facility;

524

GENERAL ACTS AND RESOLUTIONS, VOL. I

(F) Provides direct personal supervision of facility personnel by being immediately available to provide assistance and direction during the time such facility services are being provided; or (G) Enters into a contract to acquire ownership of a facility. (9) 'Records check application' means fingerprints in such form and of such quality as prescribed by the Georgia Crime Information Center under standards adopted by the Federal Bureau of Investigation and a records search fee to be established by the department by rule and regulation, payable in such form as the department may direct to cover the cost of obtaining criminal background information pursuant to this Code section. (b) An owner with a criminal record shall not operate or hold a license to operate a facility, and the department shall revoke the license of any owner operating a facility or refuse to issue a license to any owner operating a facility if it determines that such owner has a criminal record; provided, however, that an owner who holds a license to operate a facility on or before June 30, 2007, shall not have his or her license revoked prior to a hearing being held before a hearing officer pursuant to Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' (c)( I) Prior to approving any license for a new facility and periodically as established by the department by rule and regulation, the department shall require an owner to submit a records check application. The department shall establish a uniform method of obtaining an owner's records check application. (2)(A) Unless the department contracts pursuant to subparagraph (B) of this paragraph, the department shall transmit to the GCIC the fingerprints and records search fee from each fingerprint records check application in accordance with Code Section 35-3-35. Upon receipt thereof, the GCIC shall promptly transmit the fingerprints to the Federal Bureau of Investigation for a search of bureau records and an appropriate report and shall promptly conduct a search of its records and records to which it has access. Within ten days after receiving fingerprints acceptable to the GCIC and the fee, the GCIC shall notify the department in writing of any criminal record or if there is no such finding. After a search of Federal Bureau oflnvestigation records and fingerprints and upon receipt of the bureau's report, the department shall make a determination about an owner's criminal record and shall notify the owner in writing as to the department's determination as to whether the owner has or does not have a criminal record. (B) The department may either perform criminal background checks under agreement with the GCIC or contract with the GCIC and appropriate law enforcement agencies which have access to GCIC and Federal Bureau of Investigation information to have those agencies perform for the department criminal background checks for owners. The department or the appropriate law enforcement agencies may charge reasonable fees for performing criminal background checks. (3)(A) The department's determination regarding an owner's criminal record, or any action by the department revoking or refusing to grant a license based on such

GEORGIA LAWS 2009 SESSION

525

determination, shall constitute a contested case for purposes of Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' except that any hearing required to be held pursuant thereto may be held reasonably expeditiously after such determination or action by the department. (B) In a hearing held pursuant to subparagraph (A) of this paragraph or subsection (b) of this Code section, the hearing officer shall consider in mitigation the length of time since the crime was committed, the absence of additional criminal charges, the circumstances surrounding the commission ofthe crime, other indicia of rehabilitation, the facility's history of compliance with the regulations, and the owner's involvement with the licensed facility in arriving at a decision as to whether the criminal record requires the denial or revocation of the license to operate the facility. Where a hearing is required, at least 30 days prior to such hearing, the hearing officer shall notify the office ofthe prosecuting attorney who initiated the prosecution of the crime in question in order to allow the prosecutor to object to a possible determination that the conviction would not be a bar for the grant or continuation of a license as contemplated within this Code section. If objections are made, the hearing officer shall take such objections into consideration in considering the case. (4) The GCIC, the department, any law enforcement agency, and the employees of any such entities shall not be responsible for the accuracy of information nor have any liability for defamation, invasion ofprivacy, negligence, or any other claim in connection with any dissemination of information or determination based thereon pursuant to this Code section. (d) All information received from the Federal Bureau of Investigation or the GCIC shall be for the exclusive purpose of approving or denying the granting of a license to a new facility or the revision of a license of an existing facility when a new owner is proposed and shall not be released or otherwise disclosed to any other person or agency. All such information collected by the department shall be maintained by the department pursuant to laws regarding and the rules or regulations of the Federal Bureau of Investigation and the GCIC, as is applicable. Penalties for the unauthorized release or disclosure of any such information shall be as prescribed pursuant to laws regarding and rules or regulations of the Federal Bureau of Investigation and the GCIC, as is applicable. (e) The requirements of this Code section are supplemental to any requirements for a license imposed by Article 3 of Chapter 5 of this title or Article 11 of Chapter 7 of Title 31. (t) The department shall promulgate written rules and regulations to implement the provisions of this Code section.

49-2-15. When any action is brought against the Department of Human Services, the Board of Human Services, the commissioner of human services, or any employee or agent thereof or when any action is brought in which the department could be held responsible for damages awarded in such action, it shall be the duty of the plaintiff to provide for service

526

GENERAL ACTS AND RESOLUTIONS, VOL. I

of notice of the pendency of such action by providing for service of a second original process, issued from the court in which the action is filed, upon the commissioner ofhuman services personally or upon a person designated by the commissioner in writing to serve as agent for the acceptance of such service of process. The service of process in such action shall not be perfected until such second original process has been served as provided in this Code section. The provisions of this Code section shall be cumulative of any other requirements imposed by law for the service of process or notice.

49-2-16. (a) There is created a Georgia Council for Welfare Administration. The objectives of the council shall be:
(I) To promote improvements in public welfare and social service programs of the Division of Family and Children Services within the Department of Human Services; (2) To provide a forum for the interchange of information relating to welfare and social service programs; and (3) To promote with any organization exempt under Section 501(c)(4) of the United States Internal Revenue Code of 1986 a more efficient public welfare delivery system for the citizens of this state. (b) Membership in the council shall be open to persons actively employed in the Division of Family and Children Services within the Department of Human Services. (c) No state funds shall be appropriated for the benefit or use of the council. (d) The council is authorized to adopt bylaws which prescribe its organizational structure, officers, terms and condition of office, meeting schedules, and such other organizational procedures as are necessary for its lawful and effective functioning. (e) The commissioner of human services shall call the initial meeting of the council at which time the council shall organize and select its officers.

49-2-17. (a) This Code section shall be applicable to any agency, facility, institution, or entity subject to regulation by the department under Chapter 5 of this title. For purposes of this Code section, the term 'license' shall be used to refer to any license, permit, registration, or commission issued by the department pursuant to the provisions of the law cited in this subsection. (b) The department shall have the authority to take any of the actions enumerated in subsection (c) of this Code section upon a finding that the applicant or licensee has:
(I) Knowingly made any false statement of material information in connection with the application for a license, or in statements made or on documents submitted to the department as part of an inspection, survey, or investigation, or in the alteration or falsification of records maintained by the agency, facility, institution, or entity;

GEORGIA LAWS 2009 SESSION

527

(2) Failed or refused to provide the department with access to the premises subject to regulation or information pertinent to the initial or continued licensing of the agency, facility, institution, or entity; (3) Failed to comply with the licensing requirements of this state; or (4) Failed to comply with any provision of this Code section. (c) When the department finds that any applicant or licensee has violated any provision of subsection (b) of this Code section or laws, rules, regulations, or formal orders related to the initial or continued licensing of the agency, facility, institution, or entity, the department, subject to notice and opportunity for hearing, may take any of the following actions: (I) Refuse to grant a license; provided, however, that the department may refuse to grant a license without holding a hearing prior to taking such action; (2) Administer a public reprimand; (3) Suspend any license for a definite period or for an indefinite period in connection with any condition which may be attached to the restoration of said license; (4) Prohibit any applicant or licensee from allowing a person who previously was involved in the management or control, as defined by rule, of any agency, facility, institution, or entity which has had its license or application revoked or denied within the past 12 months to be involved in the management or control of such agency, facility, institution, or entity; (5) Revoke any license; (6) Impose a fine, not to exceed a total of $25,000.00, of up to $1,000.00 per day for each violation of a law, rule, regulation, or formal order related to the initial or ongoing licensing of any agency, facility, institution, or entity; or (7) Limit or restrict any license as the department deems necessary for the protection of the public, including, but not limited to, restricting some or all services of or admissions into an agency, facility, institution, or entity for a time certain. In taking any of the actions enumerated in this subsection, the department shall consider the seriousness of the violation, including the circumstances, extent, and gravity of the prohibited acts, and the hazard or potential hazard created to the health or safety of the public. (d) The department may deny a license or otherwise restrict a license for any applicant who has had a license denied, revoked, or suspended within one year of the date of an application or who has transferred ownership or governing authority of an agency, facility, institution, or entity subject to regulation by the department within one year of the date of a new application when such transfer was made in order to avert denial, revocation, or suspension of a license. (e) With regard to any contested case instituted by the department pursuant to this Code section or other provisions of law which may now or hereafter authorize remedial or disciplinary grounds and action, the department may, in its discretion, dispose ofthe action so instituted by settlement. In such cases, all parties, successors, and assigns to any

528

GENERAL ACTS AND RESOLUTIONS, VOL. I

settlement agreement shall be bound by the terms specified therein and violation thereof by any applicant or licensee shall constitute grounds for any action enumerated in subsection (c) of this Code section. (f) The department shall have the authority to make public or private investigations or examinations inside or outside of this state to determine whether the provisions of this Code section or any other law, rule, regulation, or formal order relating to the licensing of any agency, facility, institution, or entity has been violated. Such investigations may be initiated at any time, in the discretion of the department, and may continue during the pendency of any action initiated by the department pursuant to subsection (c) of this Code section. (g) For the purpose of conducting any investigation, inspection, or survey, the department shall have the authority to require the production of any books, records, papers, or other information related to the initial or continued licensing of any agency, facility, institution, or entity. (h) Pursuant to the investigation, inspection, and enforcement powers given to the department by this Code section and other applicable laws, the department may assess against an agency, facility, institution, or entity reasonable and necessary expenses incurred by the department pursuant to any administrative or legal action required by the failure of the agency, facility, institution, or entity to fully comply with the provisions of any law, rule, regulation, or formal order related to the initial or continued licensing. Assessments shall not include attorney's fees and expenses of litigation, shall not exceed other actual expenses, and shall only be assessed if such investigations, inspection, or enforcement actions result in adverse findings, as finally determined by the department, pursuant to administrative or legal action. (i) For any action taken or any proceeding held under this Code section or under color of law, except for gross negligence or willful or wanton misconduct, the department, when acting in its official capacity, shall be immune from liability and suit to the same extent that any judge of any court of general jurisdiction in this state would be immune. U) In an administrative or legal proceeding under this Code section, a person or entity claiming an exemption or an exception granted by law, rule, regulation, or formal order has the burden of proving this exemption or exception. (k) This Code section and all actions resulting from its provisions shall be administered in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' (I) The provisions of this Code section shall be supplemental to and shall not operate to prohibit the department from acting pursuant to those provisions of law which may now or hereafter authorize remedial or disciplinary grounds and action for the department. In cases where those other provisions of law so authorize other disciplinary grounds and actions, but this Code section limits such grounds or actions, those other provisions shall apply. (m) The department is authorized to promulgate rules and regulations to implement the provisions of this Code section.

GEORGIA LAWS 2009 SESSION

529

ARTICLE 2

49-2-20. As used in this part, the term:
(l) 'Inspection warrant' means a warrant authorizing a search or inspection of private property where such a search or inspection is one that is necessary for the enforcement of a residential child care licensing law. (2) 'Residential child care licensing law' means this chapter and Chapter 5 of this title and any rule or regulation duly promulgated thereunder.

49-2-21. The commissioner or the commissioner's designee, in addition to other procedures now or hereafter provided, may obtain an inspection warrant under the conditions specified in this part. Such warrant shall authorize the commissioner or the commissioner's designee to conduct a search or inspection of property either with or without the consent of the person whose property is to be searched or inspected if such search or inspection is one that is elsewhere authorized under the rules and regulations duly promulgated pursuant to a residential child care licensing law.

49-2-22. (a) Inspection warrants shall be issued only by a judge of a court of record whose territorial jurisdiction encompasses the property to be inspected. (b) The issuing judge shall issue the warrant when the judge is satisfied that the following conditions are met:
(l) The one seeking the warrant must establish under oath or affirmation that the property to be inspected is to be inspected as a part of a legally authorized program of inspection which includes that property or that there is probable cause for believing that there is a condition, object, activity, or circumstance which legally justifies such an inspection of that property; and {2) The issuing judge determines that the issuance of the warrant is authorized by this part.

49-2-23. The inspection warrant shall be validly issued only if it meets the following requirements:
{l) The warrant is attached to the affidavit required to be made in order to obtain the warrant; {2) The warrant describes either directly or by reference to the affidavit the property upon which the inspection is to occur and is sufficiently accurate that the executor of the warrant and the owner or possessor of the property can reasonably determine from it the property of which the warrant authorizes an inspection;

530

GENERAL ACTS AND RESOLUTIONS, VOL. I

(3) The warrant indicates the conditions, objects, activities, or circumstances which the inspection is intended to check or reveal; and (4) The warrant refers in general terms to the statutory or regulatory provisions sought to be enforced.

49-2-24. No facts discovered or evidence obtained in an inspection conducted under authority of an inspection warrant issued pursuant to this part shall be competent as evidence in any criminal proceeding against any party.

49-2-25. The Department of Human Services is empowered to institute appropriate proceedings for injunction in the courts of competent jurisdiction in this state for the purpose of enjoining a violation of any provision of a residential child care licensing law as now existing or as may be hereafter amended or of any regulation or order duly issued by the board or department. The department is also empowered to maintain action for injunction to abate any public nuisance which is injurious to the public health, safety, or comfort. Such actions may be maintained notwithstanding the fact that such violation also constitutes a crime and notwithstanding that other adequate remedies at law exist. Such actions may be instituted in the name of the department in the county in which a violation of any provision of this title occurs.'

SECTION 2-2. The following Code sections of the Official Code of Georgia Annotated are amended by replacing "Department ofHuman Resources" wherever it occurs with "Department ofHuman Services":
( 1) Code Section 2-7-102, relating to grounds for denial, suspension, revocation, or modification of license, permit, or certification for use and application of pesticides; (2) Code Section 10-1-855, relating to referral procedures to provide intervention and assistance for elder or disabled persons; (3) Code Section 12-6-49.1, relating to denial or suspension of license for noncompliance with child support order; (4) Code Section 15-11-8, relating to expenses charged to county and payment by parents on court order; (5) Code Section 15-11-14, relating to emergency care and supervision of a child by the Department of Human Resources; (6) Code Section 15-11-15, relating to detainment of child in temporary protective custody of a physician; (7) Code Section 15-11-19, relating to the establishment ofthe Council of Juvenile Court Judges; (8) Code Section 15-11-55, relating to disposition of a deprived child;

GEORGIA LAWS 2009 SESSION

531

(9) Code Section 15-11-5 8, relating to reasonable efforts regarding reunification of
family; (10) Code Section 15-11-71, relating to supervision fees for juvenile courts; (11) Code Section 15-11-103, relating to placement of a child following a termination
order; (12) Code Section 15-11-171, relating to definitions relative to the "Georgia Child Advocate for the Protection of Children Act"; (13) Code Section 15-llA-4, relating to appointment of personnel to the Family Court Division of the Superior Court of Fulton County; (14) Code Section 15-18-14, relating to appointment of prosecuting attorneys; (15) Code Section 18-4-131, relating to definitions relative to continuing garnishment for family support; (16) Code Section 19-6-15, relating to child support in final verdict or decree; (17) Code Section 19-6-31, relating to definitions relative to income deduction orders; (18) Code Section 19-6-33.1, relating to the family support registry; (19) Code Section 19-6-51, relating to members of the Georgia Child Support Commission; (20) Code Section 19-7-5, relating to reporting of child abuse; (21) Code Section 19-7-6, relating to reporting ofjuvenile drug use; (22) Code Section 19-7-22, relating to petitions for legitimation of child; (23) Code Section 19-7-40, relating to jurisdiction and administrative determination of paternity; (24) Code Section 19-7-43, relating to petitions to establish paternity of a child; (25) Code Section 19-7-52, relating to whom support payments may be made; (26) Code Section 19-7-54, relating to motions to set aside determination of paternity; (27) Code Section 19-8-1, relating to definitions relative to adoption; (28) Code Section 19-8-5, relating to surrender or termination of parental or guardian's rights where child to be adopted by a third party; (29) Code Section 19-8-23, relating to where records of adoption are kept; (30) Code Section 19-8-26, relating to how surrender of parental rights is executed; (31) Code Section 19-9-122, relating to delegation of authority for the care of a minor child; (32) Code Section 19-9-129, relating to the power of attorney form for the care of a minor child; (33) Code Section 19-10A-5, relating to investigating and reporting utilization of provisions under the "Safe Place for Newborns Act of 2002"; (34) Code Section 19-1 OA-6, relating to reimbursement of medical costs under the "Safe Place for Newborns Act of 2002"; (35) Code Section 19-11-3, relating to definitions relative to the "Child Support Recovery Act";

532

GENERAL ACTS AND RESOLUTIONS, VOL. I

(36) Code Section 19-11-9.1, relating to duty to furnish information about obligor to the Department of Human Resources; (3 7) Code Section 19-11-9.2, relating to duty of employers to report hiring or rehiring of persons; (38) Code Section 19-11-9.3, relating to suspension or denial of license for noncompliance with child support order; (39) Code Section 19-11-18, relating to collection procedures for child support payments in arrears; (40) Code Section 19-11-30.1, relating to the computer based registry for financial institutions with regard to the "Child Support Recovery Act"; (41) Code Section 19-11-30.2, relating to definitions relative to the computer based registry for financial institutions with regard to the "Child Support Recovery Act"; (42) Code Section 19-11-30.3, relating to the responsibility ofthe Department of Human Resources Bank Match Registry; (43) Code Section 19-11-58, relating to the Department of Human Resources designated as the state information agency under the "Uniform Reciprocal Enforcement of Support Act"; (44) Code Section 19-11-102, relating to designated tribunals under the "Uniform Interstate Family Support Act"; (45) Code Section 19-11-110, relating to jurisdiction under the "Uniform Interstate Family Support Act"; (46) Code Section 19-11-127, relating to authority of district attorney to represent the Department of Human Resources in a proceeding under the "Uniform Interstate Family Support Act"; (47) Code Section 19-11-129, relating to the Department of Human Resources as the state information agency under the "Uniform Interstate Family Support Act"; (48) Code Section 19-13-20, relating to definitions relative to family violence shelters; (49) Code Section 19-15-2, relating to child abuse protocol committees; (50) Code Section 19-15-3, relating to county multiagency child fatality review committees; (51) Code Section 20-lA-60, relating to definitions relative to the Georgia Child Care Council; (52) Code Section 20-2-133, relating to free public instruction for children in elementary and secondary education; (53) Code Section 20-2-250, relating to projects to improve effectiveness in elementary and secondary education; (54) Code Section 20-2-696, relating to duties of visiting teachers and attendance officers; (55) Code Section 20-3-660, relating to creation of a program of postsecondary grants for foster children and adopted children; (56) Code Section 29-4-2, relating to qualifications of guardians selected for adults;

GEORGIA LAWS 2009 SESSION

533

(57) Code Section 29-4-3, relating to order of preference in selection of guardians; (58) Code Section 29-9-10, relating to oath by a duly appointed delegate of the Department of Human Resources; (59) Code Section 29-10-3, relating to qualifications and requirements of public guardians; (60) Code Section 29-10-4, relating to registration of public guardians with the probate court; (61) Code Section 29-10-10, relating to compensation of public guardians; (62) Code Section 29-10-11, relating to appropriation of funds for compensation of public guardians in certain circumstances; (63) Code Section 30-1-5, relating to the definition of a "hearing impaired person"; (64) Code Section 30-2-7, relating to compensation of workers in the Georgia Industries for the Blind; (65) Code Section 30-5-3, relating to definitions relative to the "Disabled Adults and Elder Persons Protection Act'" (66) Code Section 30-5-10, relating to cooperative effort in development of programs relating to the abuse and exploitation of persons 65 years of age or older; (67) Code Section 31-7-282, relating to collection and submission of health care data; (68) Code Section 31-8-52, relating to the establishment of a long-term care ombudsman program; (69) Code Section 31-8-116, relating to involuntary transfer ofresidents discharged from a long-term care facility; (70) Code Section 31-10-9.1, relating to social security account information of parents with respect to vital records; (71) Code Section 34-8-199, relating to uncollected overissuance of food stamp coupons; (72) Code Section 39-4-1, relating to the definition of"appropriate public authority" with respect to the Interstate Compact on the Placement of Children; (73) Code Section 39-4-2, relating to the definition of "appropriate authority in the receiving state" with respect to the Interstate Compact on the Placement of Children; (74) Code Section 40-5-2, relating to keeping of records of applications for licenses and information on licensees; (75) Code Section 40-5-54.1, relating to denial or suspension of license for noncompliance with child support order; (76) Code Section 42-1-12, relating to the state sexual offender registry; (77) Code Section 42-9-58, relating to effect of state pardons and paroles laws on other laws respecting parole and probation; (78) Code Section 43-1-19, relating to grounds for refusing to grant or revoking licenses by a professional licensing board; (79) Code Section 45-9-4, relating to the commissioner of administrative services to purchase insurance or indemnity contracts;

534

GENERAL ACTS AND RESOLUTIONS, VOL. I

(80) Code Section 45-13-22, relating to distribution of Georgia Laws and journals of the House of Representatives and Senate; (81) Code Section 46-4-152, relating to definitions relative to the "Natural Gas Competition and Deregulation Act"; (82) Code Section 46-4-158.3, relating to adequate and accurate consumer information disclosure statements; (83) Code Section 48-7-29.15, relating to a tax credit for the adoption of a foster child; (84) Code Section 49-3-1, relating to establishment of county and district departments, boards, and directors; (85) Code Section 49-3-3, relating to appointment of county director; bond of county director; (86) Code Section 49-3-4, relating to appointment of staff, salaries, and power of the commissioner of human resources to transfer employees; (87) Code Section 49-3-6, relating to functions of county departments of family and children services; (88) Code Section 49-4-2, relating to definitions relative to public assistance; (89) Code Section 49-4-3, relating to establishment of categories of public assistance; (90) Code Section 49-4-6, relating to reserves, income, and resources to be disregarded in determining eligibility for public assistance; (91) Code Section 49-4-8, relating to applications for public assistance; (92) Code Section 49-4-9, relating to investigation and record concerning application for public assistance; (93) Code Section 49-4-14, relating to regulations as to records relating to public assistance; (94) Code Section 49-4-36, relating to payment of assistance for needy individuals who are 65 years of age or older after recipient moves to another county; (95) Code Section 49-4-54, relating to duties of county departments under the "Aid to the Blind Act"; (96) Code Section 49-4-56, relating to reexamination of recipient's eyesight under the "Aid to the Blind Act"; (97) Code Section 49-4-60, relating to payment of assistance for needy blind individuals after recipient moves to another county; (98) Code Section 49-4-85, relating to payment of assistance for needy individuals who are totally and permanently disabled after recipient moves to another county; (99) Code Section 49-4-162, relating to the establishment of the Georgia Qualified Long-term Care Partnership Program; (I 00) Code Section 49-4-1 71, relating to a hearing on the petition for a personal representative to manage assistance payments; (101) Code Section 49-4-181, relating to definitions relative to temporary assistance for needy families;

GEORGIA LAWS 2009 SESSION

535

(I 02) Code Section 49-4-I83, relating to administration of the temporary assistance for needy families program by the Department of Human Resources; (I03) Code Section 49-4-190, relating to construction of the laws relating to the temporary assistance for needy families program; (I04) Code Section 49-5-4, relating to the coordination of other state departments, agencies, officers, and employees for children and youth services; (I 05) Code Section 49-5-7, relating to development and administration of public child welfare and youth services; (I 06) Code Section 49-5-8, relating to powers and duties of the Department of Human Resources with respect to programs and protection for children and youth; (I07) Code Section 49-5-12, relating to licensing and inspection of child welfare agencies; (I08) Code Section 49-5-4I, relating to persons and agencies permitted access to child abuse and deprivation records; (I 09) Code Section 49-5-4I.l, relating to inspection and retention of records ofjuvenile drug use; (II 0) Code Section 49-5-90, relating to definitions relative to emergency protection of children in certain institutions; (Ill) Code Section 49-5-130, relating to legislative findings and intent relative to the Governor's Office for Children and Families; (II2) Code Section 49-5-154, relating to study of youth needs for delinquency prevention and community based services; (I13) Code Section 49-5-180, relating to definitions relative to a central child abuse registry; (II4) Code Section 49-5-281, relating to the bill of rights for foster parents; (II5) Code Section 49-6-20, relating to the creation of the Council on Aging; (I16) Code Section 49-6-61, relating to definitions relative to community care and services for the elderly; (II7) Code Section 49-6-72, relating to definitions relative to the "Georgia Family Caregiver Support Act"; (II8) Code Section 50-5-136, relating to the powers and authority of the State Use Council; and (II9) Code Section 50-27-55, relating to setoff of debt collection against lottery prizes applicable to prizes of $5,000.00 or more.

SECTION 2-3. The following Code sections of the Official Code of Georgia Annotated are amended by replacing "Board ofHuman Resources" wherever it occurs with "Board ofHuman Services":
(1) Code Section 9-10-152, relating to grounds for continuance in any case pending in the courts of this state for attendance by a board member at meeting of Board of Human Resources;

536

GENERAL ACTS AND RESOLUTIONS, VOL. I

(2) Code Section 17-8-30, relating to grounds for granting of continuances in any case pending in the courts of this state for party or party's counsel in attendance as a board member at meeting of Board of Human Resources; (3) Code Section 19-ll-5, relating to debt to state created by payment of public assistance under the "Child Support Recovery Act"; (4) Code Section 30-5-6, relating to cooperation of other public agencies with the director ofthe Division of Aging Services ofthe Department of Human Resources under the "Disabled Adults and Elder Persons Protection Act"; (5) Code Section 45-l 0-40, relating to prohibitions on contracting with state institutions; (6) Code Section 45-10-41, relating to penalty for profiting from contracts with state institutions generally; (7) Code Section 49-3-6, relating to functions of county departments of family and children services; (8) Code Section 49-4-ll, relating to award and payment of public assistance to needy persons; (9) Code Section 49-4-12, relating to periodic redetermination of public assistance awards; (l 0) Code Section 49-4-54, relating to duties of county departments under the "Aid to the Blind Act"; (ll) Code Section 49-4-181, relating to definitions relative to temporary assistance for needy families; (12) Code Section 49-4-183, relating to administration of the temporary assistance for needy families program by the Department of Human Resources; ( 13) Code Section 49-5-12, relating to licensing and inspection ofchild welfare agencies; and (14) Code Section 49-6-62, relating to the establishment of community care unit in the Division of Aging Services of the Department of Human Resources.

SECTION 2-4. The following Code sections of the Official Code of Georgia Annotated are amended by replacing "commissioner of human resources" wherever it occurs with "commissioner of human services":
(l) Code Section 19-8-16, relating to investigation by child-placing agency or other agent with respect to adoption; (2) Code Section 19-8-23, relating to where records of adoption are kept; (3) Code Section 19-ll-9, relating to location of absent parents by the Department of Human Resources with respect to the "Child Support Recovery Act"; (4) Code Section 19-ll-ll, relating to issuance of subpoenas by the Department of Human Resources with respect to the "Child Support Recovery Act"; (5) Code Section 19-ll-18, relating to collection procedures with respect to the "Child Support Recovery Act";

GEORGIA LAWS 2009 SESSION

537

(6) Code Section 19-11-30.6, relating to reciprocal agreements with other states with respect to the "Child Support Recovery Act"; (7) Code Section 19-11-30.7, relating to construction of the "Child Support Recovery Act"; (8) Code Section 19-11-30.8, relating to annual reports with respect to the "Child Support Recovery Act"; (9) Code Section 19-11-30.9, relating to information subject to disclosure with respect to the "Child Support Recovery Act"; (1 0) Code Section 19-11-30.11, relating to fee on levied accounts with respect to the "Child Support Recovery Act"; (11) Code Section 20-lA-61, relating to the members of the Child Care Council; (12) Code Section 28-5-60, relating to creation of the Claims Advisory Board; (13) Code Section 30-1-5, relating to the definition of a "hearing impaired person"; (14) Code Section 30-2-7, relating to compensation of workers in the Georgia Industries for the Blind; (15) Code Section 31-8-53, relating to duties ofthe state long-term care ombudsman; (16) Code Section 45-7-7, relating to compensation and allowances of certain public officials not to be changed without giving public notice; (17) Code Section 45-9-4, relating to commissioner of administrative services to purchase insurance or indemnity contracts insuring or indemnifying state officers, officials, or employees against personal liability; (18) Code Section 49-3-3, relating to appointment of the director of each county board of family and children services; (19) Code Section 49-3-4, relating to appointment of the staff of each county board of family and children services; (20) Code Section 49-4-15.1, relating to examination of financial records in instances of alleged fraud by recipients of food stamps and public assistance; (21) Code Section 49-4A-3, relating to the creation of the Department of Juvenile Justice; (22) Code Section 49-5-90, relating to definitions relative to emergency protection of children in certain institutions; (23) Code Section 49-8-3, relating to definitions relative to "The Economic Rehabilitation Act of 1975"; (24) Code Section 50-5-69, relating to state purchases without competitive bidding; and (25) Code Section 50-5-135, relating to the creation of the State Use Council.

SECTION 2-5. The following Code sections of the Official Code of Georgia Annotated are amended by replacing "Office of Aging" or "Office of Aging Section" wherever it occurs with "Division of Aging Services":

538

GENERAL ACTS AND RESOLUTIONS, VOL. I

(1) Code Section 10-1-855, relating to referral procedures to provide intervention and assistance for elder or disabled persons; (2) Code Section 49-6-5, relating to the creation of the Office of Aging Section within the Department of Human Resources; and (3) Code Section 49-6-20, relating to the creation of the Council on Aging.

SECTION 2-6. Code Section 10-1-395 of the Official Code of Georgia Annotated, relating to the appointment and duties of the administrator and the creation of the Consumer Advisory Board, is amended by revising subsection (a) as follows:
'(a) The administrator shall be appointed by the Governor and shall serve at his pleasure. The office of the administrator shall be attached to the office of the Governor for administrative purposes only. The administrator shall perform all functions formerly performed by the Consumer Services Unit of the Division of Special Programs of the Department of Human Resources (now known as the Department of Human Services).*

SECTION 2-7. Code Section 15-11-63 of the Official Code of Georgia Annotated, relating to commitment of child 13 to 17 years of age to custody of Department of Corrections, is amended by revising paragraph (2) of subsection (e) as follows:
'(2) During the placement or any extension thereof: (A) After the expiration of the period provided in subparagraph (C) of paragraph (1) of this subsection, the child shall not be released from intensive supervision without the written approval of the commissioner of juvenile justice or such commissioner's designated deputy; (B) While in a youth development center, the child may be permitted to participate in all youth development center services and programs and shall be eligible to receive special medical and treatment services, regardless of the time of confinement in the youth development center. After the first six months of confinement in a youth development center, a child may be eligible to participate in youth development center sponsored programs including community work programs and sheltered workshops under the general supervision of a youth development center staffoutside ofthe youth development center; and, in cooperation and coordination with the Department of Human Services, the child may be allowed to participate in state sponsored programs for evaluation and services under the Division of Rehabilitation Services of the Department of Labor and the Department of Behavioral Health and Developmental Disabilities; (C) The child shall not be discharged from the custody of the Department of Juvenile Justice unless a motion therefor is granted by the court, which motion shall not be made prior to the expiration of one year of custody; and

GEORGIA LAWS 2009 SESSION

539

(D) Unless otherwise specified in the order, the Department of Juvenile Justice shall report in writing to the court not less than once every six months during the placement on the status, adjustment, and progress of the child; and'

SECTION 2-8. Code Section 19-15-1 of the Official Code of Georgia Annotated, relating to definitions relative to child abuse, is amended by revising paragraph (4) as follows:
'(4) 'Child protection professional' means any person who is employed by the state or a political subdivision of the state as a law enforcement officer, school teacher, school administrator, or school counselor or who is employed to render services to children by the Department of Community Health, the Department of Behavioral Health and
. Developmental Disabilities, or the Department of Human Services or any county board
of health, community service board, or county department of family and children servi.ces.

SECTION 2-9. Code Section 20-1A-3 of the Official Code of Georgia Annotated, relating to the commissioner and board of the Department of Early Care and Learning, is amended by revising subsection (d) as follows:
'(d) The board shall determine policies and promulgate rules and regulations for the operation of the department including:
(1) Functions formerly performed by the Office of School Readiness, including, but not limited to, Even Start; (2) Functions transferred to the department from the Department of Human Resources (now known as the Department of Human Services) relating to day-care centers, group day-care homes, family day-care homes, and other functions as agreed upon by the department and the Department of Human Resources (now known as the Department of Human Services) in accordance with Code Section 20-1A-8; (3) Functions transferred to the department from the Georgia Child Care Council pursuant to Code Section 20-1A-63; and (4) Functions relating to early childhood education programs transferred from the Department of Education by agreement in accordance with Code Section 20-1 A-17:

SECTION 2-10. Code Section 20-1 A-4 ofthe Official Code of Georgia Annotated, relating to the powers and duties of the Department of Early Care and Learning, is amended by revising paragraph (8) as follows:
'(8) To perform any other functions as agreed upon between the department and the Department of Human Resources (now known as the Department of Human Services), pursuant to Code Section 20-1A-8;'

540

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 2-11. Code Section 20-1 A-8 of the Official Code of Georgia Annotated, relating to the transfer of functions, powers, personnel, equipment, and assets from Department of Human Resources to the Department of Early Care and Learning, is amended by revising subsections (a) and (b) as follows:
'(a) Effective October 1, 2004, the department shall carry out all of the functions and exercise all of the powers formerly held by the Department of Human Resources (now known as the Department of Human Services) for the regulation and licensure of early care and education programs and any other functions as agreed upon by the department and the Department of Human Resources. Subject to subsection (c) of this Code section, all persons employed by and positions authorized for the Department of Human Resources to perform functions relating to the licensure and certification of early care and education programs and any other functions as agreed upon by the department and the Department of Human Resources on September 30, 2004, shall on October 1, 2004, be transferred to the department. All office equipment, furniture, and other assets in possession of the Department of Human Resources which are used or held exclusively or principally by personnel transferred under this subsection shall be transferred to the department on October 1, 2004. (b) Effective October 1, 2004, notwithstanding the advisory functions ofthe Georgia Child Care Council included in Code Section 20-lA-63, the department shall carry out the functions and exercise the powers formerly held by the Georgia Child Care Council under former Article 11 of Chapter 5 of Title 49. Subject to subsection (c) of this Code section, all persons employed by and positions authorized for the Georgia Child Care Council to perform functions relating to the recommendation of measures to improve the quality, availability, and affordability of child care in this state on September 30, 2004, shall on October 1, 2004, be transferred to the department. All office equipment, furniture, and other assets in possession of the Georgia Child Care Council or the Department of Human Resources, (now known as the Department of Human Services) which are used or held exclusively or principally by personnel transferred under this subsection shall be transferred to the department on October I, 2004.'

SECTION 2-12. Code Section 20-lA-9 of the Official Code of Georgia Annotated, relating to the authority to license and regulate day-care centers, group day-care homes, and family day-care homes transferred to the Department of Early Care and Learning, is amended as follows:
'20-IA-9. The department shall succeed to all rights and responsibilities relating to licensure and regulation of day-care centers, group day-care homes, and family day-care homes, including such rules, regulations, policies, procedures, and pending and finalized administrative orders of the Department of Human Resources (now known as the Department of Human Services), the Georgia Child Care Council, and the Office of State

GEORGIA LAWS 2009 SESSION

541

Administrative Hearings, where applicable, which are in effect on September 30,2004, and which relate to the functions transferred to the department pursuant to Code Section 20-lA-8. Such rights, responsibilities, licenses issued pursuant to previous law, procedures, and orders shall remain in effect until amended, repealed, superseded, or nullified by the commissioner. Such rules, regulations, and policies shall remain in effect until amended, repealed, superseded, or nullified by the board."

SECTION 2-13. Code Section 24-9-101, of the Official Code of Georgia Annotated, relating to definitions relative to use of sign language and intermediary interpreter in administrative and judicial proceedings, is amended by revising paragraph (2) as follows:
'(2) 'Department' means the Department of Labor."

SECTION 2-14. Code Section 30-5-7 of the Official Code of Georgia Annotated, relating to confidentiality of public records for the protection of disabled adults and elder persons, is amended as
follows: '30-5-7 0 All records pertaining to the abuse, neglect, or exploitation of disabled adults or elder persons in the custody of the department shall be confidential; and access thereto by persons other than the department, the director, or the district attorney shall only be by valid subpoena or order of any court of competent jurisdiction. Nothing in this Code section shall be construed to deny state agencies participating in joint investigations at the request of and with the department or to deny law enforcement personnel who are conducting an investigation into any criminal offense in which an elder person is a victim from having access to such records."

SECTION 2-15. Chapter 4 of Title 31 of the Official Code of Georgia Annotated, relating to the Council on Maternal and Infant Health, is repealed in its entirety and reserved.

SECTION 2-16. Code Section 31-8-51 of the Official Code of Georgia Annotated, relating to definitions relative to the long-term care ombudsman, is amended by adding a new paragraph to read as follows:
'(1.1) 'Department' means the Department of Human Services."

SECTION 2-17. Code Section 34-15-2 of the Official Code of Georgia Annotated, relating to the July 2001 transfer of the Division of Rehabilitation Services to the Department of Labor, is amended by revising subsection (a) as follows:

542

GENERAL ACTS AND RESOLUTIONS, VOL. I

'(a) The Division of Rehabilitation Services within the Department of Human Resources (now known as the Department of Human Services), including the disability adjudication section and the Roosevelt Warm Springs Institute for Rehabilitation, is transferred to the Department of Labor on July 1, 2001, and that division shall become the Division of Rehabilitation Services of the Department of Labor on July 1, 2001. The functions, duties, programs, institutions, and authority ofthe Division ofRehabilitation Services which were vested in the Department of Human Resources on June 30, 2001, are vested in the Department of Labor effective July 1, 2001. The division shall be administered by a director appointed by the Commissioner. The policy-making functions which were vested in the Board of Human Resources (now known as the Board of Human Services) or the Department of Human Resources pertaining to the Division of Rehabilitation Services are vested in the Commissioner of Labor effective July 1, 2001:

SECTION 2-18. Code Section 40-2-86.21 of the Official Code of Georgia Annotated, relating to special license plates promoting certain beneficial projects and supporting certain worthy agencies, funds, or nonprofit corporations, is amended by revising paragraphs (14) and (33) of subsection (o) as follows:
(14) A special license plate for the Thanks Mom and Dad Fund. The funds raised by the sale of this special license plate shall be disbursed to the Department of Human Services to address the key needs ofthe state's older population or a nonprofit corporation organized to serve the needs of the state's older population.' '(33) A special license plate supporting programs for the treatment of autism. The funds raised by the sale of this special license plate shall be disbursed to the Department of Behavioral Health and Developmental Disabilities for the support of programs for the treatment of autism in Georgia.'

SECTION 2-19. Code Section 45-20-90 of the Official Code of Georgia Annotated, relating to definitions relative to random drug testing ofpublic employees in high-riskjobs, is amended by revising paragraph (2) as follows:
'(2) 'Established drug test' means the collection and testing of bodily fluids administered in a manner equivalent to that required by the Mandatory Guidelines for Federal Workplace Drug Testing Programs (HHS Regulations 53 Fed. Reg. 11979, et seq., as amended) or other professionally valid procedures approved by the State Personnel Board.'

SECTION 2-20. Code Section 46-1-5 of the Official Code of Georgia Annotated, relating to duties of the Department ofHuman Resources with regard to assistance to low or fixed income consumers of gas and electric service, is amended as follows:

GEORGIA LAWS 2009 SESSION

543

'46-l-5. By March 2, 1982, the Department of Human Resources (now known as the Department of Human Services) shall develop a program to identify those low or fixed income consumers of gas and electric utility service who, in the department's opinion, should benefit from public assistance in paying their bills for gas and electric service. The department shall also establish an efficient and economical method for distributing to such consumers all public assistance funds which will be made available, whether by appropriations of state or federal funds, grants, or otherwise. All gas and electric utilities shall cooperate fully with the department in developing and implementing its program. Nothing in this Code section shall limit the commission's authority to order regulatory alternatives which assist low or fixed income ratepayers."

SECTION 2-21. Code Section 48-7-161 of the Official Code of Georgia Annotated, relating to definitions relative to setoff debt collection, is amended as follows:
'48-7-161. As used in this article, the term:
(l) 'Claimant agency' means and includes, in the order of priority set forth below: (A) The Department of Human Services and the Department of Behavioral Health and Developmental Disabilities with respect to collection of debts under Article l of Chapter ll of Title 19, Code Section 49-4-15, and Chapter 9 of Title 37; (B) The Georgia Student Finance Authority with respect to the collection of debts arising under Part 3 of Article 7 of Chapter 3 of Title 20; (C) The Georgia Higher Education Assistance Corporation with respect to the collection of debts arising under Part 2 of Article 7 of Chapter 3 of Title 20; (D) The State Medical Education Board with respect to the collection of debts arising under Part 6 of Article 7 of Chapter 3 of Title 20; (E) The Department of Labor with respect to the collection of debts arising under Code Sections 34-8-254 and 34-8-255 and Article 5 of Chapter 8 of Title 34, with the exception of Code Sections 34-8-158 through 34-8-161; provided, however, that the Department of Labor establishes that the debtor has been afforded required due process rights by such Department of Labor with respect to the debt and all reasonable collection efforts have been exhausted; (F) The Department of Corrections with respect to probation fees arising under Code Section 42-8-34 and restitution or reparation ordered by a court as a part of the sentence imposed on a person convicted of a crime who is in the legal custody ofthe department; (G) The State Board of Pardons and Paroles with respect to restitution imposed on a person convicted of a crime and subject to the jurisdiction of the board; and (H) The Department of Juvenile Justice with respect to restitution imposed on a juvenile for a delinquent act which would constitute a crime if committed by an adult.

544

GENERAL ACTS AND RESOLUTIONS, VOL. I

(2) 'Debt' means any liquidated sum due and owing any claimant agency, which sum has accrued through contract, subrogation, tort, or operation of law regardless of whether there is an outstanding judgment for the sum, any sum which is due and owing any person and is enforceable by the Department of Human Services pursuant to subsection (b) of Code Section 19-11-8, or any sum of restitution or reparation due pursuant to a sentence imposed on a person convicted of a crime and sentenced to restitution or reparation and probation. (3) 'Debtor' means any individual owing money to or having a delinquent account with any claimant agency, which obligation has not been adjudicated as satisfied by court order, set aside by court order, or discharged in bankruptcy. (4) 'Refund' means the Georgia income tax refund which the department determines to be du<: any individual taxpayer:

SECTION 2-22. Code Section 49-4A-5 of the Official Code of Georgia Annotated, relating to transfer of functions and employees of the Division of Youth Services, is amended by revising subsection (b) as follows:
'(b) Any employees of the Department of Juvenile Justice who became so employed by virtue of their transfer from the Division of Youth Services of the Department of Human Resources (now known as the Department of Human Services) on June 30, 1992, shall retain their compensation and benefits and such may not be reduced. Transferred employees who were subject to the State Merit System of Personnel Administration shall retain all existing rights under the State Merit System of Personnel Administration. Retirement rights of such transferred employees existing under the Employees' Retirement System of Georgia or other public retirement systems on July 1, 1992, shall not be impaired or interrupted by the transfer of such employees and membership in any such retirement system shall continue in the same status possessed by the transferred employees on June 30, 1992. Accrued annual and sick leave possessed by said employees on June 30, 1992, shall be retained by said employees as employees of the department.'

SECTION 2-23. Code Section 49-5-60 of the Official Code of Georgia Annotated, relating to definitions relative to employees' record checks for day-care centers, is amended by revising paragraph (1) as follows:
'(1) 'Center' means a child welfare agency, as defined in subsection (a) of Code Section 49-5-12, which is required to be licensed or registered under Article 1 of this chapter.'

SECTION 2-24. Code Section 49-5-69.1 of the Official Code of Georgia Annotated, relating to fingerprint and preliminary records check for foster homes, is amended as follows:

GEORGIA LAWS 2009 SESSION

545

, 49-5-69.1. (a) No licensed child welfare agency, as defined in subsection (a) ofCode Section 49-5-12, shall place a child in a foster care home unless the foster parent or parents of the home and other adult persons that reside in the home or provide care to children placed in the home have received a satisfactory preliminary records check determination. Additionally, no child shall continue to be placed in such foster care home unless the foster parent or parents also subsequently receive a satisfactory fingerprint records check determination. A child welfare agency or any applicant for a license for such an agency shaii be required to submit to the department a preliminary records check application and a records check application for the foster parent or parents of any foster care home used by the agency and a preliminary records check application for any other adult persons that reside in the home or provide care to children placed in the home. In lieu of such applications, the agency or license applicant may submit evidence, satisfactory to the department, that within the immediately preceding 12 months such foster parent or parents or other adult persons have received a satisfactory fingerprint records check determination or a satisfactory preliminary records check determination. (b) After receiving or obtaining the fingerprint records check determinations or the preliminary records check determinations, the department shaii notify in writing the agency or license applicant as to each person for whom an application was received regarding whether the department's determinations were satisfactory or unsatisfactory. If any such determinations are unsatisfactory, such homes shaii not be used by the child welfare agency as foster care homes. (c) The department shaii have the authority to take any of the actions enumerated in subsection (c) of Code Section 49-2-17 if a licensed child welfare agency or an applicant for such a license violates any provision of this Code section. (d) An executive director of a child welfare agency that uses a foster care home with a foster parent or parents or other adult persons referenced in this Code section whom the executive director knows or should reasonably know to have a criminal record shaii be guilty of a misdemeanor. (e) In addition to any other requirement established by law, the submission of fingerprints shaii be a prerequisite to the issuance of a license or authorization for the operation of a foster home or to serve as foster parents as provided in this article. Such fingerprints shaii be used for the purposes of fingerprint checks by the Georgia Crime Information Center and the Federal Bureau of Investigation.'

SECTION 2-25. Code Section 49-6-60 ofthe Official Code ofGeorgia Annotated, relating to legislative intent for community care and services for the elderly, is amended as foiiows:
'49-6-60. The purpose of this article is to assist functionaiiy impaired elderly persons in living dignified and reasonably independent lives in their own homes or in the homes of relatives

546

GENERAL ACTS AND RESOLUTIONS, VOL. I

or caregivers through the development, expansion, reorganization, and coordination of various community based services. In recognition ofthe desire of older Georgians to reside at home or with their families as long as possible, the General Assembly intends that a continuum of care be established so that functionally impaired elderly persons age 60 and older may be assured the least restrictive environment suitable to their needs. The General Assembly further intends to maximize the utilization of existing community social and health services in order to prevent unnecessary placement of individuals in long-term care facilities. The development of innovative approaches to program management, staff training, and service delivery that impact on cost avoidance, cost effectiveness, and program efficiency shall be encouraged. It is further the intent of the General Assembly that the Department of Human Resources (now known as the Department of Human Services) shall serve as the agency responsible for planning and implementing the provision of community based services to the elderly reimbursable under the 'Georgia Medical Assistance Act of 1977."

SECTION 2-26. Code Section 49-8-4 of the Official Code of Georgia Annotated, relating to administration of "The Economic Rehabilitation Act of 1975," is amended by revising subsection (a) as follows:
. '(a) For purposes of administration, responsibility for the coordination of community
sseerrvvii.cceess. and fiscal accountability shall be determined by the commissioner of human

SECTION 2-27. Code Section 50-5-136 ofthe Official Code ofGeorgia Annotated, relating to the powers and authority of the State Use Council, is amended by revising paragraph (4) of subsection (b) as follows:
'(4) To oversee and assist in the development of guidelines for the certification of community based rehabilitation programs and training centers in the State of Georgia. The intent of these guidelines shall be to evaluate the qualifications and capabilities of community based rehabilitation programs and training centers interested in certification; to determine criteria for quality, efficiency, timeliness, and cost effectiveness in the production of goods, wares, merchandise, and services to be procured under the state use plan and purchased by the State of Georgia; and to establish a certification process which shall enable community based rehabilitation programs and training centers qualified under this process to compete in procurement activities provided for by this part. All community based rehabilitation programs and training centers which are certified by the commissioner of human resources (now known as the commissioner of human services for these purposes) as ofFebruary 8, 1994, shall not have to undergo the certification evaluation and approval process until24 months from February 8, 1994;"

GEORGIA LAWS 2009 SESSION

547

PART III Department of Behavioral Health and Developmental Disabilities.

SECTION 3-1. Title 37 ofthe Official Code of Georgia Annotated, relating to mental health, is amended by revising Chapter 1 and Article 1 of Chapter 2, relating to general provisions and administration of mental health, developmental disabilities, addictive diseases, and other disability services, respectively, as follows:

'CHAPTER 1 ARTICLE I

37-1-1. As used in this title, the term:
(1) 'Addictive disease' means a chronic, often relapsing, brain disease that causes compulsive alcohol or drug seeking and use despite harmful consequences to the individual who is addicted and to those around him or her. (2) 'Board' means the Board of Behavioral Health and Developmental Disabilities;. (3) 'Commissioner' means the commissioner of behavioral health and developmental disabilities. (4) 'Community service board' means a public mental health, developmental disabilities, and addictive diseases board established pursuant to Code Section 37-2-6. (5) 'Consumer' means a natural person who has been or is a recipient of disability services. (6) 'County board of health' means a county board of health established in accordance with Chapter 3 of Title 31 and includes its duly authorized agents. (7) 'Department' means the Department of Behavioral Health and Developmental Disabilities and includes its duly authorized agents and designees. (8) 'Developmental disability' means a severe, chronic disability of an individual that:
(A) Is attributable to a significant intellectual disability, or any combination of a significant intellectual disability and physical impairments; (B) Is manifested before the individual attains age 22; (C) Is likely to continue indefinitely; (D) Results in substantial functional limitations in three or more ofthe following areas of major life activities:
(i) Self-care; (ii) Receptive and expressive language; (ii) Learning; (iv) Mobility; (v) Self-direction; and (vi) Capacity for independent living; and

548

GENERAL ACTS AND RESOLUTIONS, VOL. I

(E) Reflects the person's need for a combination and sequence of special, interdisciplinary, or generic services, individualized supports, or other forms of assistance which are of lifelong or extended duration and are individually planned and coordinated. (9) 'Disability' means: (A) Mental or emotional illness; (B) Developmental disability; or (C) Addictive disease. (10) 'Disability services' means services to the disabled or services which are designed to prevent or ameliorate the effect of a disability. (11) 'Disabled' means any person or persons having a disability. (12) 'Mentally ill' means having a mental illness. (13) 'Mental illness' means a disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life. (14) 'Peace officer' means any federal, city, or county police officer, any officer of the Georgia State Patrol, or any sheriff or deputy sheriff. (15) 'Penal offense' means a violation of a law of the United States, this state, or a political subdivision thereof for which the offender may be confined in a state prison or a city or county jail or any other penal institution. ( 16) 'Physician' means any person duly authorized to practice medicine in this state under Chapter 34 of Title 43. (17) 'Psychologist' means any person authorized under the laws of this state to practice as a licensed psychologist as set forth in paragraph (3) of Code Section 43-39-1. (18) 'Regional board' means a regional board established in accordance with Code Section 37-2-4.1 as that Code section existed on June 30, 2002. (19) 'Regional coordinator' means an employee of the department who acts as the department's agent and designee to manage community services for consumers of disability services within a mental health, developmental disabilities, and addictive diseases region established in accordance with Code Section 37-2-3. (20) 'Regional office' means an office created pursuant to Code Section 37-2-4.1. Such office shall be an office of the department and serve as the entity for the administration of disability services in a region. (21) 'Regional planning board' means a planning board established in accordance with Code Section 37-2-4.1. (22) 'Regional services administrator' means an employee of the department who, under the supervision of the regional coordinator, manages the purchase or authorization of services, or both, for consumers of disability services, the assessment and coordination of services, and ongoing monitoring and evaluation of services provided within a region established in accordance with Code Section 37-2-3.

GEORGIA LAWS 2009 SESSION

549

(23) 'Regional state hospital administrator' means the chief administrative officer of a state owned or state operated hospital and the state owned or operated community programs in a region. The regional state hospital administrator has overall management responsibility for the regional state hospital and manages services provided by employees of the regional state hospital and employees of state owned or operated community programs within a mental health, developmental disabilities, and addictive diseases region established in accordance with Code Section 37-2-3. (24) 'Resident' means a person who is a legal resident of the State of Georgia. (25) 'State mental health facility' means, for purposes of this title and Title 31, a hospital, inpatient unit, or other institution operated by or under contract with the department for its operation, including the replacement or reorganization of the facility.

37-1-2. (a) The General Assembly finds that the state has a need to continually improve its system for providing effective, efficient, and quality mental health, developmental disability, and addictive disease services. Further, the General Assembly finds that a comprehensive range of quality services and opportunities is vitally important to the existence and well-being ofindividuals with mental health, developmental'disability, or addictive disease needs and their families. The General Assembly further finds that the state has an obligation and a responsibility to develop and implement planning and service delivery systems which focus on a core set of consumer oriented, community based values and principles which include, but are not limited to, the following:
(1) Consumers and families should have choices about services and providers and should have substantive input into the planning and delivery of all services; (2) A single point of accountability should exist for fiscal, service, and administrative issues to ensure better coordination of services among all programs and providers and to promote cost-effective, efficient service delivery and administration; (3) The system should be appropriately comprehensive and adaptive to allow consumers and their families to access the services they desire and need; (4) Public programs are the foundation of the service planning and delivery system and they should be valued and nurtured; at the same time, while assuring comparable standards of quality, private sector involvement should be increased to allow for expanded consumer choice and improved cost effectiveness; (5) Planning should begin at the localleveland include local government, consumers, families, advocates, and other interested local parties; (6) The system should ensure that the needs of consumers who are most in need are met at the appropriate service levels; at the same time, prevention strategies should be emphasized for those disabilities which are known to be preventable; (7) The system should be designed to provide the highest quality of services utilizing flexibility in funding, incentives, and outcome evaluation techniques which reinforce quality, accountability, efficiency, and consumer satisfaction;

550

GENERAL ACTS AND RESOLUTIONS, VOL. I

(8) The functions ofservice planning, coordination, contracting, resource allocation, and consumer assessment should be separated from the actual treatment, habilitation, and prevention services provided by contractors; (9) Consumers and families should have a single, community based point of entry into the system; (I 0) Consumers, staff, providers, and regional planning board and community service board members should receive ongoing training and education and should have access to key management resources such as information systems and technical and professional support services; and (II) The department is responsible for ensuring the appropriate use of state, federal, and other funds to provide quality services for individuals with mental health, developmental disabilities, or addictive disease needs who are served by the public system and to protect consumers of these services from abuse and maltreatment. (b) Local governments, specifically county governing authorities, have provided outstanding leadership and support for mental health, developmental disability, and addictive disease programs, and the General Assembly finds that their investments, both personal and capital, should be valued and utilized in any improved system. As such, the state and any new governing structure should take special precautions to ensure that the county governing authorities have an expanded level of input into decision making and resource allocation and that any services or programs should continue to use and expand their use of county facilities and resources wherever appropriate and possible. (c) The purpose ofthis chapter and Chapter 2 of this title is to provide for a comprehensive and improved mental health, developmental disability, and addictive disease services planning and delivery system in this state which will develop and promote the essential public interests of the state and its citizens. The provisions of this chapter and Chapter 2 of this title shall be liberally construed to achieve their purposes.

37-1-3. (a) There is created the Board of Behavioral Health and Developmental Disabilities which shall establish the general policy to be followed by the Department of Behavioral Health and Developmental Disabilities. The powers, functions, and duties ofthe Board of Human Resources as they existed on June 30,2009, with regard to the Division of Mental Health, Developmental Disabilities, and Addictive Diseases are transferred to the Board of Behavioral Health and Developmental Disabilities effective July I, 2009. The board shall consist of nine members appointed by the Governor and confirmed by the Senate. (b) The Governor shall designate the initial terms of the members of the board as follows: three members shall be appointed for one year; three members shall be appointed for two years; and three members shall be appointed for three years. Thereafter, all succeeding appointments shall be for three-year terms from the expiration of the previous term. (c) Vacancies in office shall be filled by appointment by the Governor in the same manner as the appointment to the position on the board which becomes vacant. An appointment

GEORGIA LAWS 2009 SESSION

551

to fill a vacancy other than by expiration of a term of office shall be for the balance of the unexpired term. (d) Members of the board may be removed from office under the same conditions for removal from office ofmembers ofprofessional licensing boards provided in Code Section
43-l-17. (e) There shall be a chairperson of the board elected by and from the membership of the board who shall be the presiding officer of the board. (f) The members of the board shall receive a per diem allowance and expenses as shall be set and approved by the Office of Planning and Budget in conformance with rates and allowances set for members of other state boards.

37-l-4. (a) There is created a Department of Behavioral Health and Developmental Disabilities. The powers, functions, and duties of the Department of Human Resources as they existed on June 30, 2009, relating to the Division of Mental Health, Developmental Disabilities, and Addictive Diseases are transferred to the Department of Behavioral Health and Developmental Disabilities effective July 1, 2009. (b) There is created the position of commissioner of behavioral health and developmental disabilities. The commissioner shall be the chief administrative officer of the department and be both appointed and removed by the board, subject to the approval of the Governor. Subject to the general policy established by the board, the commissioner shall supervise, direct, account for, organize, plan, administer, and execute the functions vested in the department. (c) There shall be created in the department such divisions as may be found necessary for its effective operation. The commissioner shall have the power to allocate and reallocate functions among the divisions within the department.

37-l-5. (a) The Department of Behavioral Health and Developmental Disabilities shall succeed to all rules, regulations, policies, procedures, and administrative orders of the Department of Human Resources that are in effect on June 30, 2009, or scheduled to go into effect on or after July 1, 2009, and which relate to the functions transferred to the Department of Behavioral Health and Developmental Disabilities pursuant to Code Section 37-1-4 and shall further succeed to any rights, privileges, entitlements, obligations, and duties of the Department of Human Resources that are in effect on June 30, 2009, which relate to the functions transferred to the Department of Behavioral Health and Developmental Disabilities pursuant to Code Section 37-1-4. Such rules, regulations, policies, procedures, and administrative orders shall remain in effect until amended, repealed, superseded, or nullified by the Department ofBehavioral Health and Developmental Disabilities by proper authority or as otherwise provided by law.

552

GENERAL ACTS AND RESOLUTIONS, VOL. I

(b) The rights, privileges, entitlements, and duties of parties to contracts, leases, agreements, and other transactions entered into before July 1, 2009, by the Department of Human Resources which relate to the functions transferred to the DepartmentofBehavioral Health and Developmental Disabilities pursuant to Code Section 37-1-4 shall continue to exist; and none of these rights, privileges, entitlements, and duties are impaired or diminished by reason of the transfer of the functions to the Department of Behavioral Health and Developmental Disabilities. In all such instances, the Department ofBehavioral Health and Developmental Disabilities shall be substituted for the Department of Human Resources, and the Department of Behavioral Health and Developmental Disabilities shall succeed to the rights and duties under such contracts, leases, agreements, and other transactions. (c) All persons employed by the Department of Human Resources in capacities which relate to the functions transferred to the Department of Behavioral Health and Developmental Disabilities pursuant to Code Section 37-1-4 on June 30, 2009, shall, on July 1, 2009, become employees of the Department of Behavioral Health and Developmental Disabilities in similar capacities, as determined by the commissioner of behavioral health and developmental disabilities. Such employees shall be subject to the employment practices and policies of the Department of Behavioral Health and Developmental Disabilities on and after July 1, 2009, but the compensation and benefits of such transferred employees shall not be reduced as a result of such transfer. Employees who are subject to the rules of the State Personnel Board and thereby under the State Merit System of Personnel Administration and who are transferred to the department shall retain all existing rights under the State Merit System of Personnel Administration. Retirement rights of such transferred employees existing under the Employees' Retirement System of Georgia or other public retirement systems on June 30, 2009, shall not be impaired or interrupted by the transfer of such employees and membership in any such retirement system shall continue in the same status possessed by the transferred employees on June 30, 2009. Accrued annual and sick leave possessed by said employees on June 30, 2009, shall be retained by said employees as employees of the Department of Behavioral Health and Developmental Disabilities. (d) On July 1, 2009, the Department of Behavioral Health and Developmental Disabilities shall receive custody of the state owned real property in the custody of the Department of Human Resources on June 30, 2009, and which pertains to the functions transferred to the Department of Behavioral Health and Developmental Disabilities pursuant to Code Section 37-1-4.

GEORGIA LAWS 2009 SESSION

553

ARTICLE 2

37-1-20. The department shall: (1) Establish, administer, and supervise the state programs for mental health, developmental disabilities, and addictive diseases; (2) Direct, supervise, and control the medical and physical care and treatment; recovery; and social, employment, housing, and community supports and services based on single or co-occurring diagnoses provided by the institutions, contractors, and programs under its control, management, or supervision; (3) Plan for and implement the coordination of mental health, developmental disability, and addictive disease services with physical health services, and the prevention of any of these diseases or conditions, and develop and promulgate rules and regulations to require that all health services be coordinated and that the public and private providers of any of these services that receive state support notify other providers of services to the same patients of the conditions, treatment, and medication regimens each provider is prescribing and delivering; (4) Ensure that providers of mental health, developmental disability, or addictive disease services coordinate with providers of primary and specialty health care so that treatment of conditions ofthe brain and the body can be integrated to promote recovery, health, and well-being; (5) Have authority to contract for services with community service boards, private agencies, and other public entities for the provision of services within a service area so as to provide an adequate array of services and choice of providers for consumers and to comply with the applicable federal laws, rules, and regulations related to public or private hospitals; hospital authorities; medical schools and training and educational institutions; departments and agencies of this state; county or municipal governments; any person,
partnership, corporation, or association, whether public or private; and the United States government or the government of any other state; (6) Establish and support programs for the training of professional and technical personnel as well as regional planning boards and community service boards; (7) Have authority to conduct research into the causes and treatment of disability and into the means of effectively promoting mental health and addictive disease recovery; (8) Assign specific responsibility to one or more units of the department for the development of a disability prevention program. The objectives of such program shall include, but are not limited to, monitoring of completed and ongoing research related to the prevention of disability, implementation of programs known to be preventive, and testing, where practical, of those measures having a substantive potential for the prevention of disability; (9) Establish a system for regional administration of mental health, developmental disability, and addictive disease services in institutions and in the community;

554

GENERAL ACTS AND RESOLUTIONS, VOL. I

(1 0) Make and administer budget allocations to regional offices established by the board pursuant to Code Section 37-2-4.1 to fund the operation of mental health, developmental disabilities, and addictive diseases facilities and programs; ( 11) Coordinate in consultation with providers, professionals, and other experts the development of appropriate outcome measures for client centered service delivery systems; (12) Establish, operate, supervise, and staff programs and facilities for the treatment of disabilities throughout this state; (13) Disseminate information about available services and the facilities through which such services may be obtained; ( 14) Supervise the regional office's exercise ofits responsibility and authority concerning funding and delivery of disability services; (15) Supervise the regional offices concerning the receipt and administration of grants, gifts, moneys, and donations for purposes pertaining to mental health, developmental disabilities, and addictive diseases; (16) Supervise the administration of contracts with any hospital, community service board, or any public or private providers without regard to regional or state boundaries for the provision of disability services and in making and entering into all contracts necessary or incidental to the performance of the duties and functions of the department and the regional offices; ( 17) Regulate the delivery of care, including behavioral interventions and medication administration by licensed staff, or certified staffas determined by the department, within residential settings serving only persons who are receiving services authorized or financed, in whole or in part, by the department; ( 18) Classify host homes for persons whose services are financially supported, in whole or in part, by funds authorized through the department. As used in this Code section, the term 'host home' means a private residence in a residential area in which the occupant owner or lessee provides housing and provides or arranges for the provision of food, one or more personal services, supports, care, or treatment exclusively for one or two persons who are not related to the occupant owner or lessee by blood or marriage. A host home shall be occupied by the owner or lessee, who shall not be an employee of the same community provider which provides the host home services by contract with the department. The department shall approve and enter into agreements with community providers which, in tum, contract with host homes. The occupant owner or lessee shall not be the guardian of any person served or of their property nor the agent in such person's advance directive for health care. The placement determination for each person placed in a host home shall be made according to such person's choice as well as the individual needs of such person in accordance with the requirements of Code Section 37-3-162,37-4-122, or 37-7-162, as applicable to such person;

GEORGIA LAWS 2009 SESSION

555

(19) Provide guidelines for and oversight of host homes, which may include, but not be limited to, criteria to become a host home, requirements relating to physical plants and supports, placement procedures, and ongoing oversight requirements; (20) Establish a unit of the department which shall receive and consider complaints from individuals receiving services, make recommendations to the commissioner regarding such complaints, and ensure that the rights of individuals receiving services are fully protected; (21) With respect to housing opportunities for persons with mental illness and co-occurring disorders:
(A) Coordinate the department's programs and services with other state agencies and housing providers; (B) Facilitate partnerships with local communities; (C) Educate the public on the need for supportive housing; (D) Collect information on the need for supportive housing and monitor the benefit of such housing; and (E) Identify and determine best practices for the provision of services connected to housing; (22) Exercise all powers and duties provided for in this title or which may be deemed necessary to effectuate the purposes of this title; (23) Assign specific responsibility to one or more units of the department for the development of programs designed to serve disabled infants, children, and youth. To the extent practicable, such units shall cooperate with the Georgia Department of Education and the University System of Georgia in developing such programs; and (24) Have the right to designate private institutions as state institutions; to contract with such private institutions for such activities, in carrying out this title, as the department may deem necessary from time to time; and to exercise such supervision and cooperation in the operation of such designated private institutions as the department may deem necessary.

37-1-21. (a) The department is designated and empowered as the agency of this state responsible for supervision and administrative control of: state facilities for the treatment of mental illness or the habilitation and treatment of individuals with developmental disabilities; programs for the care, custody, and treatment of addictive disease; and other facilities, institutions, or programs which now or hereafter come under the supervision and administrative control of the department. With respect to all such facilities, institutions, or programs the department shall have the following powers and duties:
(1) To create all necessary offices, appoint and remove all officers of such facilities, institutions, or programs, prescribe and change the duties of such officers from time to time, and fix their salaries as provided for by the pay plan covering positions under the State Merit System of Personnel Administration and in accordance with rules and

556

GENERAL ACTS AND RESOLUTIONS, VOL. I

regulations of the State Personnel Board, except that the commissioner shall not be subject to the State Merit System ofPersonnel Administration or the rules and regulations ofthe State Personnel Board. The department shall discharge and cause to be prosecuted any officer or other person who shall assault any patient in any of such facilities or institutions or who shall knowingly use toward any such patient any other or greater force than the occasion may require; (2) To refuse or accept and hold in trust for any such facility, institution, or program any grant or devise of land or bequest or donation of money or other property for the particular use specified or, if no use is specified, for the general use of such facility, institution, or program; (3) To bring suit in its name for any claims which any such facility or institution may have, however arising; (4) To appoint police of such facilities, institutions, or programs who are authorized, while on the grounds or in the buildings of the respective facilities, institutions, or programs to make arrests with the same authority, power, privilege, and duties as the sheriffs of the respective counties in which such facilities, institutions, or programs are situated. If because of the contagious or infectious nature of the disease of persons arrested facilities are not available for their detention, such police shall be authorized to confine such persons within the respective facilities, institutions, or programs pending trial as provided in other cases. After trial and conviction of any such person, he or she shall be sentenced to serve his or her term of sentence in the secured ward of the facility, institution, or program; and (5) To have full authority to receive and treat patients ordered admitted to such facilities, institutions, or programs pursuant to any law, to receive any voluntary patients, to discharge such patients pursuant to law, to contract with patients or other persons acting on behalf ofpatients or legally responsible therefor, and in general to exercise any power or function with respect to patients provided by law. It is the intent of the General Assembly to provide always the highest quality ofdiagnosis, treatment, custody, and care consistent with medical, therapeutic, and habilitative evidence based practice and knowledge. It is the further intent of the General Assembly that the powers and duties of the department with respect to patients shall be administered by persons properly trained professionally for the exercise of their duties, consistent with the intention expressed in this Code section. (b) The board is empowered to prescribe all rules and regulations for the management of such facilities, institutions, and programs not conflicting with the law.

37-1-22. The board shall adopt and promulgate written rules, regulations, and standards as may be deemed necessary to effectuate the purposes of this title and which shall be the basis of state financial participation in mental health, developmental disabilities, and addictive diseases programs.

GEORGIA LAWS 2009 SESSION

557

37-1-23. The board is directed to prescribe rules ofpractice and procedure in order to implement this chapter. The department is directed to make the board's and the department's rules
available for distribution.

37-1-24. No provision in this title shall require the department or any facility or private facility or any community service board to utilize a physician in lieu of a psychologist or a psychologist in lieu of a physician in performing functions under this title even though this title authorizes either a physician or a psychologist to perform the function.

37-1-25. The department is authorized to purchase land or lands adjacent to or near lands now under the control of the department where, in the opinion of the department, the land is needed for the benefit of one of the institutions under its control and management, to pay for such land out of any funds which may be available for such purpose, and to take title to land so purchased in the name of the State of Georgia for the use of the department.

37-1-26. (a) The department shall sell, to the best advantage, all surplus products of the Central State Hospital or other institutions under the control and supervision of the department and shall apply the proceeds thereof to the maintenance of the institution from which such surplus products are received. Should any surplus funds arise from this source, they shall be paid into the state treasury annually; and the department shall, at the end of each quarter, make a detailed report of all such transactions to the Governor. (b) It is not the intention of this Code section to encourage competition in any way by the state, its institutions, agencies, departments or branches, or other subdivisions with the individual, private farmers ofthis state, or others, in the production and sale of agricultural or industrial commodities or products in due course of commerce.

37-1-27. (a) The General Assembly makes the following findings:
(1) Every year in Georgia, approximately 850 people die from suicide; (2) More Georgians die from suicide than from homicide; (3) More teenagers and young adults die from suicide than from cancer, heart disease, AIDS, birth defects, stroke, pneumonia, influenza, and chronic lung disease combined; (4) Many who attempt suicide do not seek professional help after the attempt; (5) In Georgia, three out of four suicide deaths involve a firearm; (6) Factors such as aging, drug and alcohol abuse, unemployment, mental illness, isolation, and bullying in school contribute to causes of suicide; and

558

GENERAL ACTS AND RESOLUTIONS, VOL. I

(7) Education is necessary to inform the public about the causes of suicide and the early intervention programs that are available. (b) There is created the Suicide Prevention Program to be managed by the department. (c) The department, in implementing the Suicide Prevention Program, shall: (I) Establish a link between state agencies and offices, including but not limited to the Division of Aging Services and Division of Family and Children Services of the Department ofHuman Services, the Department ofCommunity Health, local government agencies, health care providers, hospitals, nursing homes, and jails to collect data on suicide deaths and attempted suicides; (2) Work with public officials to improve firearm safety; (3) Improve education for nurses, judges, physician assistants, social workers, psychologists, and other counselors with regard to suicide education and prevention and expand educational resources for professionals working with those persons most at risk of suicide; (4) Provide training and minimal screening tools for clergy, teachers and other educational staff, and correctional workers on how to identify and respond to persons at risk of suicide; (5) Provide educational programs for family members of persons at an elevated risk of suicide; (6) Develop standardized protocols to be used by the department in reviewing suicide death scene investigations; (7) Work to increase the number of follow-back studies of suicides; (8) Work to increase the number of hospitals that code for external causes of injury; (9) Implement a state-wide reporting system for reporting suicides; (I 0) Support pilot projects to link and analyze information on self-destructive behavior from various, distinct data systems; and (11) Perform such other tasks as deemed appropriate to further suicide education and prevention in Georgia. (d) The Suicide Prevention Program shall coordinate with and receive technical assistance from epidemiologists and other staff of the Division of Public Health of the Department of Community Health to support the research and outreach efforts related to this program.

37-1-28. (a) As used in this Code section, the term 'conviction data' means a record of a finding or verdict of guilty or a plea of guilty or a plea of nolo contendere with regard to any crime, regardless of whether an appeal of the conviction has been sought. (b) The department may receive from any law enforcement agency conviction data that is relevant to a person whom the department, its contractors, or a district or county health agency is considering as a final selectee for employment in a position the duties of which involve direct care, treatment, custodial responsibilities, or any combination thereoffor its clients. The department may also receive conviction data which is relevant to a person

GEORGIA LAWS 2009 SESSION

559

whom the department, its contractors, or a district or county health agency is considering as a final selectee for employment in a position if, in the judgment of the employer, a final employment decision regarding the selectee can only be made by a review of conviction data in relation to the particular duties of the position and the security and safety of clients, the general public, or other employees. (c) The department shall establish a uniform method of obtaining conviction data under subsection (a) of this Code section which shall be applicable to the department and its contractors. Such uniform method shall require the submission to the Georgia Crime Information Center of fingerprints and the records search fee in accordance with Code Section 35-3-35. Upon receipt thereof, the Georgia Crime Information Center shall promptly transmit fingerprints to the Federal Bureau oflnvestigation for a search ofbureau records and an appropriate report and shall promptly conduct a search of its own records and records to which it has access. After receiving the fingerprints and fee, the Georgia Crime Information Center shall notify the department in writing of any derogatory finding, including, but not limited to, any conviction data regarding the fingerprint records check or if there is no such finding. (d) All conviction data received shall be for the exclusive purpose of making employment decisions or decisions concerning individuals in the care of the department and shall be privileged and shall not be released or otherwise disclosed to any other person or agency. Immediately following the employment decisions or upon receipt of the conviction data, all such conviction data collected by the department or its agent shall be maintained by the department or agent pursuant to laws regarding and the rules or regulations of the Federal Bureau of Investigation and the Georgia Crime Information Center, as is applicable. Penalties for the unauthorized release or disclosure of any conviction data shall be as prescribed pursuant to laws regarding and rules or regulations of the Federal Bureau of Investigation and the Georgia Crime Information Center, as is applicable. (e) The department may promulgate written rules and regulations to implement the provisions of this Code section. (f) The department may receive from any law enforcement agency criminal history information, including arrest and conviction data, and any and all other information which it may be provided pursuant to state or federal law which is relevant to any person in the care of the department. The department shall establish a uniform method of obtaining criminal history information under this subsection. Such method shall require the submission to the Georgia Crime Information Center of fingerprints together with any required records search fee in accordance with Code Section 35-3-35. Upon receipt thereof, the Georgia Crime Information Center shall promptly transmit the fingerprints submitted by the department to the Federal Bureau of Investigation for a search of bureau records and an appropriate report and shall promptly conduct a search of its own records and records to which it has access. Such method shall also permit the submission of the names alone of such persons to the proper law enforcement agency for a name based check of such person's criminal history information as maintained by the Georgia Crime

560

GENERAL ACTS AND RESOLUTIONS, VOL. I

Information Center and the Federal Bureau of Investigation. In such circumstances, the department shall submit fingerprints of those persons together with any required records search fee, to the Federal Bureau of Investigation within 15 calendar days ofthe date ofthe name based check on that person. The fingerprints shall be forwarded to the Federal Bureau oflnvestigation through the Georgia Crime Information Center in accordance with Code Section 35-3-35. Following the submission of such fingerprints, the department may receive the criminal history information, including arrest and conviction data, relevant to such person. (g) The department shall be authorized to conduct a name or descriptor based check of any person's criminal history information, including arrest and conviction data, and other information from the Georgia Crime Information Center regarding any adult person who provides care or is in contact with persons under the care of the department without the consent ofsuch person and without fingerprint comparison to the fullest extent permissible by federal and state law.

.ARTICLE 3

37-1-40. All rules and regulations ofthe Board ofBehavioral Health and Developmental Disabilities shall be adopted pursuant to Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.'

ARTICLE 4

37-1-50. (a) No license, permit, or certificate or other similar right shall be revoked or suspended without opportunity for a hearing as provided in Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' Any such hearing or appeal related thereto shall be conducted in accordance with such Act. (b) The department is authorized and empowered to employ and appoint hearing examiners to conduct hearings, issue compulsory process, administer oaths, and submit their findings and recommendations to the appointing agency; provided, however, that any such examiner shall be a member of the State Bar of Georgia in good standing.

37-1-51. Reserved.

37-1-52. Reserved.

GEORGIA LAWS 2009 SESSION

561

37-l-53. Notwithstanding any other provision of law to the contrary, the department is authorized by regulation to classify as confidential and privileged documents, reports, and other information and data obtained by them from persons, firms, corporations, municipalities, counties, and other public authorities and political subdivisions where such matters relate to secret processes, formulas, and methods or where such matters were obtained or furnished on a confidential basis. All matters so classified shall not be subject to public inspection or discovery and shall not be subject to production or disclosure in any court of law or elsewhere until and unless the judge of the court of competent jurisdiction, after in camera inspection, determines that the public interest requires such production and disclosure or that such production and disclosure may be necessary in the interest ofjustice. This subsection shall not apply to clinical records maintained pursuant to Code Sections 37-3-166,37-3-167,37-4-125,37-4-126,37-7-166, and 37-7-167.

ARTICLE 5 Part 1

37-1-70. As used in this part, the term:
(1) 'Inspection warrant' means a warrant authorizing a search or inspection of private property where such a search or inspection is one that is necessary for the enforcement of a ' mental health law.' (2) 'Mental health law' means Code Sections 37-3-7, 37-3-8, and 37-4-4, Chapter 6 of this title, and any rule or regulation duly promulgated thereunder.

37-1-71. The commissioner or the commissioner's delegate, in addition to other procedures now or hereafter provided, may obtain an inspection warrant under the conditions specified in this chapter. Such warrant shall authorize the commissioner or the commissioner's delegate to conduct a search or inspection of property either with or without the consent of the person whose property is to be searched or inspected if such search or inspection is one that is elsewhere authorized under the rules and regulations duly promulgated under this title.

37-1-72. (a) Inspection warrants shall be issued only by a judge of a court of record whose territorial jurisdiction encompasses the property to be inspected. (b) The issuing judge shall issue the warrant when the judge is satisfied that the following conditions are met:
(1) The one seeking the warrant must establish under oath or affirmation that the property to be inspected is to be inspected as a part of a legally authorized program of inspection which includes that property or that there is probable cause for believing that

562

GENERAL ACTS AND RESOLUTIONS, VOL. I

there is a condition, object, activity, or circumstance which legally justifies such an inspection of that property; and (2) The issuing judge determines that the issuance of the warrant is authorized by this part.

37-1-73. The inspection warrant shall be validly issued only if it meets the following requirements:
(1) The warrant is attached to the affidavit required to be made in order to obtain the warrant; (2) The warrant describes either directly or by reference to the affidavit the property upon which the inspection is to occur and is sufficiently accurate that the executor ofthe warrant and the owner or possessor of the property can reasonably determine from it the property of which the warrant authorizes an inspection; (3) The warrant indicates the conditions, objects, activities, or circumstances which the inspection is intended to check or reveal; and (4) The warrant refers in general terms to the statutory or regulatory provisions sought to be enforced.

37-1-74. No facts discovered or evidence obtained in an inspection conducted under authority of an inspection warrant issued pursuant to this part shall be competent as evidence in any criminal proceeding against any party.

Part 2

37-1-90. The Department of Behavioral Health and Developmental Disabilities is empowered to institute appropriate proceedings for injunction in the courts of competent jurisdiction in this state for the purpose of enjoining a violation of any provision of this title as now existing or as may be hereafter amended or of any regulation or order duly issued by the board or department. The department is also empowered to maintain action for injunction to abate any public nuisance which is injurious to the public health, safety, or comfort. Such actions may be maintained notwithstanding the fact that such violation also constitutes a crime and notwithstanding that other adequate remedies at law exist. Such actions may be instituted in the name of the department in the county in which a violation of any provision of this title occurs.

Part 3

3 7-1-100. Any person violating the provisions of this title shall be guilty of a misdemeanor.

GEORGIA LAWS 2009 SESSION

563

CHAPTER 2 ARTICLE 1

37-2-1. (a) The State of Georgia recognizes its responsibility for its citizens who are mentally ill or developmentally disabled including individuals with epilepsy, cerebral palsy, autism, and other neurologically disabling conditions or who abuse alcohol, narcotics, or other drugs and recognizes an obligation to such citizens to meet their needs through a coordinated system of community facilities, programs, and services. (b) It is the policy ofthis state to provide adequate mental health, developmental disability, addictive disease, and other disability services to all its citizens. It is further the policy of this state to provide such services through a unified system which encourages cooperation and sharing of resources among all providers of such services, both governmental and private. (c) It is the purpose of this chapter to enable and encourage the development of comprehensive, preventive, early detection, habilitative, rehabilitative, and treatment disability services; to improve and expand community programs for the disabled; to provide continuity of care through integration of county, area, regional, and state services and facilities for the disabled; to provide for joint disability services and the sharing of manpower and other resources; and to monitor and restructure the system of providing disability services in the State of Georgia to make better use of the combined public and private resources of the state and local communities. (d) The provisions of this chapter shall be liberally construed to achieve the objectives set forth in this Code section.

37-2-2. As used in this chapter, the term:
(1) 'Community service board' means a public mental health, developmental disabilities, and addictive diseases board established pursuant to Code Section 37-2-6. (2) 'Community service board area' means an area inclusive of the counties which fall within the boundaries of a community service board as designated by the department pursuant to subsection (b) of Code Section 37-2-3 for the establishment of a community service board. (3) 'Community service board service area' means a community service board area and any other county or portion thereof in which the community service board provides services. (4) 'Council' means the Behavioral Health Coordinating Council established pursuant to Code Section 37-2-4. (5) 'Health services' means any education or service provided by the department, the Department of Community Health, or the Department of Human Services, either directly or by contract.

564

GENERAL ACTS AND RESOLUTIONS, VOL. I

(6) 'Hospital' means a state owned or state operated facility providing services which include, but are not limited to, inpatient care and the diagnosis, care, and treatment or habilitation of the disabled. Such hospital may also provide or manage state owned or operated programs in the community.

37-2-3. (a) The board shall designate boundaries for mental health, developmental disabilities, and addictive diseases regions and may modify the boundaries of such regions from time to time as deemed necessary by the board. (b) The department, with the approval of the commissioner, shall designate community service board areas, which shall serve as boundaries for the establishment of community service boards within this state for the purpose of delivering disability services. The department shall be authorized to initiate the redesignation of such community service board area boundaries and may consider requests from a county or group of counties or a community service board or a group of community service boards for recommended changes to the boundaries of the community service board areas. The department, with the approval of the commissioner, is authorized to redesignate two or more contiguous community service board areas as a single community service board area upon the request of the community service boards serving such areas; and, if so authorized, the assets, equipment, and resources of such community service boards shall become the assets, equipment, and resources of the reconstituted community service board serving the successor single board area. It is the intent of the General Assembly not to limit a community service board to serving only those counties within the boundaries of its community service board area. (c) To the extent practicable, the boundaries for regional planning boards and offices and community service areas shall not subdivide any county unit or conflict with any districts established by the Department of Community Health and the state relating to the planning for, or delivery of, health services. In dividing the state into areas, the board and the department shall take into consideration such factors as geographic boundaries, roads and other means of transportation, population concentrations, city and county lines, other relevant community services, and community economic and social relationships. Consideration shall also be given to the existence of facilities and personnel available in the areas for the delivery of disability services.

37-2-4. (a) There is created the Behavioral Health Coordinating Council. The council shall consist of the commissioner of behavioral health and developmental disabilities; the commissioner of community health; the commissioner of human services; the commissioner of juvenile justice; the commissioner of corrections; an adult consumer of public behavioral health services, appointed by the Governor; a family member of a consumer of public behavioral health services, appointed by the Governor; a parent of a

GEORGIA LAWS 2009 SESSION

565

child receiving public behavioral health services, appointed by the Governor; a member of the House of Representatives, appointed by the Speaker of the House of Representatives; and a member of the Senate, appointed by the Lieutenant Governor. (b) The commissioner of behavioral health and developmental disabilities shall be the chairperson of the council. A vice chairperson and a secretary shall be selected by the members of the council as prescribed in the council's bylaws. (c) Meetings of the council shall be held quarterly, or more frequently, on the call of the chairperson. Meetings ofthe council shall be held with no less than five days' public notice for regular meetings and with such notice as the bylaws may prescribe for special meetings. Each member shall be given written notice of all meetings. All meetings of the council shall be subject to the provisions of Chapter 14 of Title 50. Minutes or transcripts shall be kept of all meetings of the council and shall include a record of the votes of each member, specifying the yea or nay vote or absence of each member, on all questions and matters coming before the council. No member may abstain from a vote other than for reasons constituting disqualification to the satisfaction of a majority of a quorum of the council on a recorded vote. No member of the council shall be represented by a delegate or agent. (d) Except as otherwise provided in this Code section, a majority of the members of the council then in office shall constitute a quorum for the transaction ofbusiness. No vacancy on the council shall impair the right of the quorum to exercise the powers and perform the duties of the council. The vote of a majority of the members of the council present at the time of the vote, if a quorum is present at such time, shall be the act of the council unless the vote of a greater number is required by law or by the bylaws of the council. (e) The council shall:
(1) Develop solutions to the systemic barriers or problems to the delivery of behavioral health services by making recommendations that implement funding, policy changes, practice changes, and evaluation of specific goals designed to improve services delivery and outcome for individuals served by the various departments; (2) Focus on specific goals designed to resolve issues for provision of behavioral health services that negatively impact individuals serviced by at least two departments; (3) Monitor and evaluate the implementation of established goals; and (4) Establish common outcome measures. (t)(l) The council may consult with various entities, including state agencies, councils, and advisory committees and other advisory groups as deemed appropriate by the council. (2) All state departments, agencies, boards, bureaus, commissions, and authorities are authorized and required to make available to the council access to records or data which are available in electronic format or, if electronic format is unavailable, in whatever format is available. The judicial and legislative branches are authorized to likewise provide such access to the council.

566

GENERAL ACTS AND RESOLUTIONS, VOL. I

(g) The council shall be attached to the Department of Behavioral Health and Developmental Disabilities for administrative purposes only as provided by Code Section 50-4-3.
(h)( 1) The council shall submit annual reports of its recommendations and evaluation of their implementation to the Governor and the General Assembly. (2) The recommendations developed by the council shall be presented to the board of each member department for approval or review at least annually. (i) For purposes of this Code section, the term 'behavioral health services' has the same meaning as 'disability services' as defined in Code Section 37-1-1.

37-2-4.1. (a) The department shall create regional mental health, developmental disabilities, and addictive diseases offices. The number ofthese offices may be modified from time to time as deemed necessary by the department. (b) The department shall create a separate regional mental health, developmental disabilities, and addictive diseases planning board for each regional office established under subsection (a) of this Code section. Each board shall provide and facilitate coordinated and comprehensive planning for its region in conformity with minimum standards and procedures established by the department. Each board shall be designated with such identifying words before the term 'regional mental health, developmental disabilities, and addictive diseases planning board' as that regional planning board may, from time to time, choose and designate by official action. (c) The powers, functions, obligations, and duties of the regional mental health, mental retardation, and substance abuse boards as they existed on June 30, 2002, are transferred to the department. The department shall succeed to all rights, privileges, entitlements, contracts, leases, agreements, and other transactions of the regional boards which were in effect on June 30, 2002, and none ofthose rights, privileges, entitlements, contracts, leases, agreements, and other transactions shall be impaired or diminished by reason of such transfer. In all such instances, the department shall be substituted for such regional board and the department shall succeed to the rights and duties under such contracts, leases, agreements, and other transactions.

37-2-5. (a) Each regional planning board shall engage in disability services planning including job supports and housing within its region and shall perform such other functions as may be provided or authorized by law. (b) Membership on the regional planning board within an established region shall be determined as follows:
(1) Each county with a population of 50,000 or Jess according to the United States decennial census of 1990 or any future such census shall appoint one member to the board;

GEORGIA LAWS 2009 SESSION

567

(2) Each county with a population of more than 50,000 according to the United States decennial census of 1990 or any future such census shall appoint one member for each population increment of 50,000 or any portion thereof; (3) The appointment or appointments for each county shall be made by the county governing authority; and (4) The county governing authority shall appoint a consumer of disability services, a family member of a consumer, an advocate for disability services, or a local leader or business person with an interest in mental health, developmental disabilities, and addictive diseases; provided, however, that for counties with more than one appointment, the county governing authority shall seek to ensure that such appointments represent various groups and disability services. (b.1) A county governing authority may appoint the school superintendent, a member of the county board of health, a member of the local board of education, or any other elected or appointed official to serve on the regional planning board, provided that such person meets the qualifications ofparagraph (4) of subsection (b) ofthis Code section, such person does not serve on a community service board, and such appointment does not violate the provisions of Chapter 10 of Title 45. (b.2)(1) A person shall not be eligible to be appointed to or serve on a regional planning board if such person is:
(A) A member of the community service board which serves that region; or (B) An employee or board member of a private or public entity which contracts with the department, the Department of Human Services, or the Department of Community Health to provide health, mental health, developmental disabilities, or addictive diseases services within the region; (C) An employee of such regional office or employee or board member of any private or public group, organization, or service provider which contracts with or receives funds from such regional office ;or (D) An employee or board member of the department, the Department of Human Services, or the Department of Community Health. (2) A person shall not be eligible to be appointed to or serve on a regional planning board if such person's spouse, parent, child, or sibling is a member of that regional planning board or a member, employee, or board member specified in paragraph (1) of this subsection. No person who has served a full term or more on a regional board or regional planning board may be appointed to a community service board until a period of at least two years has passed since the time such person served on the regional board or the regional planning board. No person who has served on a regional board and who becomes a member of a regional planning board on June 30, 2002, may be appointed to a community service board until a period of at least two years has passed since the time such person has served on the regional planning board. (c) In making appointments to the regional planning board, the various county governing authorities shall ensure that appointments are reflective of the cultural and social

568

GENERAL ACTS AND RESOLUTIONS, VOL. I

characteristics, including gender, race, ethnic, and age characteristics, of the regional and county populations. The county governing authorities are further encouraged to ensure that each disability group is viably represented on the regional planning board, and in so doing the county governing authority may consider suggestions for appointments from clinical professional associations as well as advocacy groups, including but not limited to the Georgia Mental Health Consumer Network, People First of Georgia, the Georgia Parent Support Network, National Alliance for the Mentally Ill Georgia, the American Association for Retired Persons, Georgians for Children, Mental Health America of Georgia, Georgia ARC Network, and the Georgia Council on Substance Abuse and their local chapters and affiliates.
(d)( I) In addition, members of the regional mental health, mental retardation, and substance abuse boards in office on June 30, 2002, shall become members ofthe regional planning board for the area in which they reside on July 1, 2002, and shall serve out the balance of their terms. (2) The initial term of a new member of a regional planning board shall be determined by the commissioner in order to establish staggered terms on the board. At such time as the terms of the members of the board are equally staggered, the term of a member ofthe regional planning board shall be for a period of three years and until the member's successor is appointed and qualified. A member may serve no more than two consecutive terms. The term of a regional planning board member shall terminate upon resignation, death, or inability to serve due to medical infirmity or other incapacity or such other reasonable condition as the regional planning board may impose under its bylaws. Vacancies on the regional planning board shall be filled in the same manner as the original appointment. (e) Prior to August I, 2002, each regional planning board shall adopt bylaws governing its operation and management. At a minimum, the bylaws shall provide for staggered terms of the board, requirements for an annual meeting to elect officers, a mechanism for ensuring that consumers ofdisability services and family members of consumers constitute a majority of the appointments to the board, and a mechanism for ensuring that each disability service is equitably represented by appointments to the board. Any board member who serves an initial term of less than three years may be eligible to be reappointed for two full consecutive three-year terms. The chairperson and vice chairperson ofthe regional planning board shall be elected from among the members ofthe board to serve a term of one year with the option of reelection for an additional one-year term. The bylaws shall provide for any other officers and their means of selection, as well as any necessary committees or subcommittees of the board. Prior to their adoption by the regional planning board, the bylaws shall be submitted to the department for review and approval. The regional planning board must have the written approval ofthe commissioner prior to the adoption of bylaws.

GEORGIA LAWS 2009 SESSION

569

(f) The regional planning board shall meet not less than once every two months, beginning on July 1 and continuing through the next June 30, which time frame shall be the fiscal year for each regional planning board. (g) Each member of the regional planning board may, upon approval of the regional coordinator, receive reimbursement for actual expenses incurred in carrying out the duties of such office in conformance with rates and allowances set for state employees by the Office of Planning and Budget and the same mileage allowance for use of a personal car as that received by all other state officials and employees or a travel allowance of actual transportation cost if traveling by public carrier. (h) Each regional planning board which is composed of members who are appointed thereto by the governing authority of only one county shall have a minimum of six members, notwithstanding the provisions of subsection (b) of this Code section, which members shall in all other respects be appointed as provided in this Code section.

37-2-5.1. (a) Each region shall be served by a regional coordinator who shall be duly qualified and appointed by the commissioner. The regional coordinator shall serve as the supervisor of the regional office, which shall be a unit of the department. The regional coordinator shall serve at the pleasure of the commissioner. The commissioner shall be authorized to appoint an interim regional coordinator at any time that the position ofregional coordinator is vacant and prior to the appointment of a duly qualified and approved successor. (b) The regional coordinator may appoint such other staff including a regional services administrator and personnel to work for the regional office as the department deems necessary and appropriate. The regional coordinator and such staff and personnel shall be employees of the department. Expenses for the regional office and planning board, the employment ofthe regional coordinator, other staff and personnel, and the operation of the regional office shall be funded by the department as funds are appropriated by the General Assembly. The department shall impose limits on the administrative and operating expenditures of the regional office and planning board.
(c)( 1) State, federal, and other funds appropriated to the department and available for the purpose of funding the planning and delivery of disability services shall be distributed in accordance with this subsection. All funds associated with services to clients residing within a given region shall be managed through the department; the term 'all funds' shall include funding for hospitals, community service boards, private and public contracts, and any contracts relating to service delivery for clients within the given region. The department shall establish a funding amount for regions conditioned upon the amount of funds appropriated. The funding amount shall be determined, in part, based on consumer service needs, service and program history, population based funding needs, infrastructure mandates, program efficiency and effectiveness, geographic distances, and other factors affecting the cost and level of service needs within each region.

570

GENERAL ACTS AND RESOLUTIONS, VOL. I

(2) The department shall establish guidelines to ensure that regions receive such funding based on client population, past and future service delivery needs and capabilities, and in consideration of special needs populations, such as homeless and transient populations. The department shall ensure that funds are managed based primarily on services to clients and in compliance with all federal, state, and regulatory requirements. (3) The department, in compliance with the provisions ofthe General Appropriations Act and other applicable laws, is authorized to move funds to and between community and institutional programs based on need, and the department shall develop appropriate allocation and accounting mechanisms to move funds in a planned and rational manner between hospitals, community service boards, and other providers based on client needs and utilization.

37-2-5.2. (a) Under the supervision of the department, each regional office shall have the following duties and functions:
(1) To prepare, in consultation with consumers and families, community programs, hospitals, other public and private providers, its regional planning board, and appropriate advisory and advocacy groups, an annual plan for the funding and provision of all disability services in the region. The plan shall be submitted to the department at a time and in the manner specified by the department so as to ensure that the plan is a basis for the annual appropriations request; (2) To provide, as funds become available, for consumer assessment and service authorization and coordination for each consumer receiving services within the region; (3) To exercise responsibility and authority as specified in this chapter within the region in all matters relating to the funding and delivery of disability services; (4) To receive and administer grants, gifts, moneys, and donations for purposes pertaining to mental health, developmental disability, and addictive disease services; (5) To enter into contracts on behalf of the department with any hospital, community service board, or other public or private providers without regard to regional or state boundaries for the provision of disability services, and to enter into all contracts on behalf of the department necessary or incidental to the performance of duties and functions of the department and regional office; (6) To encourage the development, in cooperation with the department, of private and public providers of programs and disability services which respond to the needs of consumers and families of consumers within the region; (7) To serve as the representative of the citizens of the area in regard to disability services; (8) To receive and consider complaints and grievances submitted by individuals, associations, or agencies involved with the delivery or receipt of disability services and, ifdeemed appropriate, to seek resolution, through processes which may include impartial mediation and alternate dispute resolution, of such complaints and grievances with the

GEORGIA LAWS 2009 SESSION

571

appropriate hospital, community service board, or other private or public provider of service; (9) To assure the highest achievable level ofpublic awareness and understanding ofboth available and needed disability services; (10) To visit regularly disability services facilities and programs which serve the region in order to assure contracted providers are licensed and accredited by the designated agencies prescribed by the department, and in order to evaluate the effectiveness and appropriateness of the services, as such services relate to the health, safety, and welfare of service recipients, and to provide technical assistance to programs in delivering services; and (11) To participate with other regional offices and planning boards, the department, local, state, or federal government agencies, educational institutions, and public and private organizations in the coordination ofplanning, research, service development, and evaluation activities:
(A) To work cooperatively with all units of county and local government, including the county boards of health, within the region; (B) To establish goals and objectives, not inconsistent with those established by the department, for its region; and (C) To participate in the establishment and operation of a data base and network, coordinated by the department, to serve as a comprehensive management information system for disability services and programs. (b) It is the express intent of this chapter to confer upon the regional offices as the administrative entities of the department the flexibility, responsibility, and authority necessary to enter into contracts on behalf of the department with a wide range of public and private providers to ensure that consumers are afforded cost-effective, locally based, and quality disability services. Under the supervision of the department, regional offices are specifically authorized to enter into contracts on behalf of the department directly with any county governing authority, any disability services organization created or designated by such county governing authority, any county board of health, any private or public provider, or any hospital for the provision of disability services. (c) Each regional office shall account for all funds received, expended, and administered and shall make reports to the department regarding the funds received from the department. The audit of such activity shall be part of the annual audit of the department.

37-2-6. (a) Community service boards in existence on June 30, 2006, are re-created effective July 1, 2006, to provide mental health, developmental disabilities, and addictive diseases services. Effective July I, 2009, such community service boards may enroll and contract with the department, the Department of Human Services, or the Department of Community Health to become a provider of mental health, developmental disabilities, and addictive diseases services or health, recovery, housing, or other supportive services. Such boards

572

GENERAL ACTS AND RESOLUTIONS, VOL. I

shall be considered public agencies. Each community service board shall be a public corporation and an instrumentality ofthe state; provided, however, the liabilities, debts, and obligations of a community service board shall not constitute liabilities, debts, or obligations of the state or any county or municipal corporation and neither the state nor any county or municipal corporation shall be liable for any liability, debt, or obligation of a community service board. Each community service board re-created pursuant to this Code section is created for nonprofit and public purposes to exercise essential governmental functions. The re-creation of community service boards pursuant to this Code section shall not alter the provisions of Code Section 37-2-6.2 which shall apply to those re-created community service boards and their employees covered by that Code section and those employees' rights are retained. (b) Each community service board shall consist of members appointed by the governing authorities of the counties within the community service board area. Membership on such community service board shall be determined as follows:
(l}(A) The governing authority of each county within the community service board area:
(i) With a population of 50,000 or less according to the most recent United States decennial census shall appoint one member to the board; and (ii) With a population ofmore than 50,000 according to the most recent United States decennial census shall appoint one member for each population increment of 50,000 or any portion thereof; or (B) In the event that the number of community service board member positions established in accordance with subparagraph (A) of this paragraph would exceed 13, the membership of such community service board pursuant to this subsection shall be appointed as follows and the bylaws shall be amended accordingly: (i) For community service boards whose community service board area contains 13 or fewer counties, the board shall be set at 13 members and appointments to the board shall be made by the governing authority of each county within the community service board area in descending order from the county with the largest population to the county with the smallest population according to the most recent United States decennial census and this method shall be repeated until all 13 members of the community service board are appointed. If a county governing authority fails to make an appointment within a reasonable time, the next descending county by population shall make an appointment and the method shall continue; and (ii) For community service boards whose community service board area contains more than 13 counties, one member of the community service board shall be appointed by the governing authority of each county within the community service board area, so that the number of members on the board is equal to the number of counties in the community service board area. The county governing authority shall appoint as at least one of its appointments a consumer of disability services, a child psychiatrist, a child psychologist, a family

GEORGIA LAWS 2009 SESSION

573

member of a consumer, an advocate for disability services, a parent of a child with mental illness or addictive disease, or a local leader or businessperson with an interest in mental health, developmental disabilities, and addictive diseases; provided, however, that for counties with more than one appointment, the county governing authority shall seek to ensure that such appointments represent various groups and disability services; (2) In addition to the members appointed pursuant to paragraph (1) of this subsection, each community service board may appoint up to three additional members in order to address variation in the population sizes of counties or the financial contributions of counties within the community service board area or may authorize the elected chief executive officer of a county governing authority, by whatever name called, or an elected member of that county governing authority to serve on the community service board while holding such elective office. The bylaws of the community service board shall address the number of such additional members, if any, and the purpose or purposes for which such positions are created. The term of office of such additional members shall be the same as that of other members as provided in subsection (h) of this Code section; except that the term of office of a member in a position created to authorize the elected chief executive officer of a county governing authority, by whatever name called, or an elected member of that county governing authority to serve on the community service board shall be the same term of office as the elective term of office of said chief executive officer or said member of that county governing authority; (3) Each community service board in existence on June 30, 2006, shall reconstitute its membership in accordance with the provisions of paragraphs (1) and (2) of this subsection, effective July 1, 2006, as follows: (A) A community service board which increases or reduces the number of its members in accordance with paragraphs (I) and (2) of this subsection shall revise its bylaws adopted in accordance with subsection (h) ofthis Code section to reflect such increases or reductions. A community service board which reduces the number of its members shall designate which position or positions are to be eliminated and shall make reasonable efforts to eliminate any position or positions ofmembers whose terms expire on or before June 30, 2006; provided, however, that members serving on a community service board whose terms do not expire on or before June 30, 2006, shall continue to serve out the terms of office to which they were appointed, regardless of whether this causes a board to temporarily exceed the maximum number of members. Any additional positions created in conformity with such paragraphs (1) and (2) may be filled on July I, 2006, and the governing authority of a county that is otherwise authorized to appoint such additional community service board member or members may do so no sooner than May 1, 2006, but any person so appointed shall not take office until July I, 2006. If a position on such community service board is not filled on July 1, 2006, a vacancy in that position shall be deemed to have occurred on that date. A community service board is authorized to make whatever changes necessary in the

574

GENERAL ACTS AND RESOLUTIONS, VOL. I

terms of office of its members in order to achieve the staggering of terms required by subsection (h) of this Code section; and (B) The term of office of an ex officio, voting member of a community service board holding membership on June 30, 2006, shall expire on June 30, 2006; and (4)(A) A person shall not be eligible to be appointed to or serve on a community service board if such person is:
(i) A member of the regional planning board which serves the region in which that community service board is located; (ii) An employee or board member of a public or private entity which contracts with the department, the Department ofHuman Services, or the Department ofCommunity Health to provide mental health, developmental disabilities, and addictive diseases services or health services within the region; or (iii) An employee of that community service board or employee or board member of any private or public group, organization, or service provider which contracts with or receives funds from that community service board. (B) A person shall not be eligible to be appointed to or serve on a community service board if such person's spouse, parent, child, or sibling is a member of that community service board or a member, employee, or board member specified in this paragraph. With respect to appointments by the same county governing authority, no person who has served a full term or more on a community service board may be appointed to a regional planning board until a period of at least two years has passed since the time such person served on the community service board, and no person who has served a full term or more on a regional planning board may be appointed to a community service board until a period of at least two years has passed since the time such person has served on the regional planning board. (5) A community service board created in accordance with this subsection shall reconstitute its membership in conformity with the most recent United States decennial census in accordance with subparagraph (d)(2)(C) of Code Section 1-3-1. (b.!) A county governing authority may appoint the school superintendent, a member of the county board of health, a member of the board of education, or any other elected or appointed official to serve on the community service board provided that such person meets the qualifications of paragraph (l) of subsection (b) of this Code section and such appointment does not violate the provisions of Chapter 10 of Title 45. For terms of office which begin July 1, 1994, or later, an employee of the Department of Human Resources (now known as the Department of Behavioral Health and Developmental Disabilities for these purposes) or an employee of a county board of health shall not serve on a community service board. For terms of office which begin July 1, 2009, or later, an employee of the department, the Department of Human Services, or the Department of Community Health or a board member of the respective boards of each department shall not serve on a community service board.

GEORGIA LAWS 2009 SESSION

575

(c) In making appointments to the community service board, the county governing authorities shall ensure that such appointments are reflective of the cultural and social characteristics, including gender, race, ethnic, and age characteristics, of the community service board area and county populations. The county governing authorities are further encouraged to ensure that each disability group is represented on the community service board, and in making such appointments the county governing authorities may consider suggestions from clinical professional associations as well as advocacy groups. For the purposes ofthis subsection, 'advocacy groups' means any organizations or associations that advocate for, promote, or have an interest in disability services and are exempted as a charitable organization from federal income tax pursuant to Section 501 (c) of the Internal Revenue Code; provided, however, that 'advocacy groups' shall not mean paid providers of disability services or health services. (c.l) A county governing authority in making appointments to the community service board shall take into consideration that at least one member ofthe community service board is an individual who is trained or certified in finance or accounting; provided, however, if after a reasonable effort at recruitment there is no person trained or certified in finance or accounting within the community service board area who is willing and able to serve, the county governing authority may consider for appointment any other person having a familiarity with financial or accounting practices. (d) Each county in which the governing authority of the county is authorized to appoint members to the community service board shall participate with the board in the operation of the program through the community service board. All contractual obligations, including but not limited to real estate leases, rentals, and other property agreements, other duties, rights, and benefits of the mental health, developmental disabilities, and addictive diseases service areas in existence on June 30, 2006, shall continue to exist along with the new powers granted to the community service boards effective July I, 2006. (e) Notwithstanding any other provision of this chapter, a community service board may be constituted in a method other than that outlined in subsection (b) of this Code section if:
(I) A board of health of a county desiring to be the lead county board of health for that county submits a written agreement to the former Division of Mental Health, Developmental Disabilities, and Addictive Diseases (now known as the Department of Behavioral Health and Developmental Disabilities) of the former Department of Human Resources before July I, 1993, to serve as the community service board and to continue providing disability services in that county after July I, 1994, and the governing authority for that county adopted a resolution stating its desire to continue the provision of disability services through its board of health after July I, 1994, and submitted a copy of such resolution to the former division before July I, 1993; or
(2)(A) The lead county board of health for a community mental health, mental retardation, and substance abuse service area, as designated by the former Division of Mental Health, Developmental Disabilities, and Addictive Diseases (now known as the

576

GENERAL ACTS AND RESOLUTIONS, VOL. I

Department of Behavioral Health and Developmental Disabilities) of the former Department of Human Resources on July 15, 1993, but which area excludes any county which meets the requirements of paragraph (1) of this subsection, submitted a written agreement to the former division and to all counties within such service area to serve as the community service board for that area and to continue providing disability services after July 1, 1994, which agreement was submitted between July 31, 1993, and December 31, 1993; and (B) Each county governing authority which is within the service area of a lead county board of health which has submitted an agreement pursuant to subparagraph (A) of this paragraph adopted a resolution stating its desire to continue the provision of disability services through such lead county board of health after July 1, 1994, and submitted a copy of that resolution to the former division, the regional board, and the lead county board of health between July 31, 1993, and December 31, 1993; and (3) The lead county board of health qualifying as such under paragraph (1) or (2) of this subsection agrees in writing to appoint a director for mental health, mental retardation, and substance abuse other than the director of the county board of health as stipulated in Code Section 31-3-12.1, to appoint an advisory council on mental health, mental retardation, and substance abuse consisting of consumers, families of consumers, and representatives from each ofthe counties within the boundaries ofthe community service board, and to comply with all other provisions relating to the delivery of disability services pursuant to this chapter. (f) If the conditions enumerated in subsection (e) of this Code section are not met prior to or on December 31, 1993, a community service board as provided in subsection (b) shall be established and appointed by January 31, 1994, to govern the provision of disability services within the boundaries of the community service board. Such community service board shall have the authority to adopt bylaws and undertake organizational and contractual activities after January 31, 1994; provided, however, that the community service board established pursuant to this Code section may not begin providing services to clients until July 1, 1994. (g) If a community service board is established pursuant to paragraph (2) of subsection (e) of this Code section, such community service board must operate as established at least until June 30, 1996; provided, however, that in each fiscal year following June 30, 1996, the counties included under the jurisdiction of such a community service board may vote to reconstitute the community service board pursuant to the provisions of subsection (b) of this Code section by passage of a resolution by a majority of the county governing authorities within the jurisdiction ofthe community service board prior to January 1, 1997, or each year thereafter. (h) Each community service board shall adopt bylaws and operational policies and guidelines in conformity with the provisions of this chapter. Those bylaws shall address board appointment procedures, initial terms of board members, the staggering of terms, quorum, a mechanism for ensuring that consumers of disability services and family

GEORGIA LAWS 2009 SESSION

577

members of consumers constitute no less than 50 percent of the board members appointed pursuant to subsection (b) of this Code section, and a mechanism for ensuring equitable representation of the various disability groups. A quorum for the transaction of any business and for the exercise of any power or function of the community service board shall consist of a majority of the total number of filled board member positions appointed pursuant to subsection (b) of this Code section. A vote of the majority of such quorum shall be the act of the governing board of the community service board except where the bylaws of the community service board may require a greater vote. The regular term of office for each community service board member shall be three years. Vacancies on such board shall be filled in the same manner as the original appointment. For the purposes of this subsection, 'equitable representation of the various disability groups' shall mean that consumers and family members of such consumers who constitute no less than 50 percent of the board members holding membership pursuant to subsection (b) of this Code section shall be appointed so as to assure that an equal number of such members to the fullest extent possible represents mental health, developmental disabilities, and addictive diseases interests. (i) Each community service board which is composed of members who are appointed thereto by the governing authority of only one county shall have a minimum of six and no more than 13 members, not including any additional members appointed pursuant to paragraph (2) of subsection (b) of this Code section, notwithstanding the provisions of subsection (b) of this Code section, which members in all other respects shall be appointed as provided in this Code section. (j) No officer or employee of a community service board who has authority to take, direct others to take, recommend, or approve any personnel action shall take or threaten action against any employee of a community service board as a reprisal for making a complaint or disclosing information concerning the possible existence of any activity constituting fraud, waste, or abuse in or relating to the programs, operations, or client services of the board to the board or to a member of the General Assembly unless the complaint was made or the information was disclosed with the knowledge that it was false or with willful disregard for its truth or falsity. Any action taken in violation of this subsection shall give the public employee a right to have such action set aside in a proceeding instituted in the superior court. (k) A member of a community service board who after notice that such member has failed to complete any required training prescribed by the department pursuant to paragraph (6) of Code Section 37-1-20 continues such failure for 30 days may be removed from office by the remaining members of the community service board. (I) A member of a community service board may resign from office by giving written notice to the executive director of the community service board. The resignation is irrevocable after delivery to such executive director but shall become effective upon the date on which the notice is received or on the effective date given by the member in the notice, whichever date is later. The executive director, upon receipt of the resignation,

578

GENERAL ACTS AND RESOLUTIONS, VOL. I

shall give notice of the resignation to the remaining members of the community service

board and to the chief executive officer or governing authority ofthe county that appointed

the member.

(m) The office of a member of a community service board shall be vacated upon such

member's resignation, death, or inability to serve due to medical infirmity or other

incapacity, removal by the community service board as authorized in this Code section or

upon such other reasonable condition as the community service board may impose under

its bylaws.

(n) A member of a community service board may not enter upon the duties of office until

such member takes the following oath of office:

STATE OF GEORGIA

COUNTY OF _ _ __

I,

, do solemnly swear or affirm that I will truly perform the

duties of a member of the

Community Service Board to the

best of my ability.

I do further swear or affirm:

( 1) That I am not the holder of any unaccounted for public money due this state or any

political subdivision or authority thereof;

(2) That I am not the holder of any office of trust under the government of the United

States, any other state, or any foreign state which I am by the laws of the State ofGeorgia

prohibited from holding;

(3) That I am otherwise qualified to hold said office according to the Constitution and

the laws of Georgia; and

(4) That I will support the Constitution of the United States and this state.

Signature of member of Community Service Board

Sworn and subscribed

before me this ___ day

of

, __.

(SEAL)

Typed name of member of __________ Community Service Board

37-2-6.1. (a) Each community service board shall employ an executive director to serve as its chief executive officer who shall direct the day-to-day operations of the community service board. Such executive director shall be appointed and removed by the community service

GEORGIA LAWS 2009 SESSION

579

board and shall appoint other necessary staff pursuant to an annual budget adopted by the board, which budget shall provide for securing appropriate facilities, sites, and professionals necessary for the provision of disability and health services. The community service board may delegate any power, authority, duty, or function to its executive director or other staff. The executive director or other staff is authorized to exercise any power, authority, duty, or function on behalf of the community service board. (b) Each community service board, under the jurisdiction of its board, shall perform duties, responsibilities, and functions and may exercise power and authority described in this subsection. Each program may exercise the following power and authority:
(1) Each community service board may adopt bylaws for the conduct of its affairs; provided, however, that the community service board shall meet at least quarterly, and that all such meetings and any bylaws shall be open to the public, as otherwise required under Georgia law; (2) Each community service board may make and enter into all contracts necessary and incidental to the performance of its duties and functions; (3) Each community service board may acquire by purchase, gift, lease, or otherwise and may own, hold, improve, use, and sell, convey, exchange, transfer, lease, sublease, and dispose of real and personal property of every kind and character, or any interest therein, for its corporate purposes; (4) Each community service board may contract to utilize the services of the Department ofAdministrative Services, the State Merit System ofPersonnel Administration, the state auditor, or any other agency of state, local, or federal government; (5) Each community service board may provide, either independently or through contract with appropriate state or local governmental entities, the following benefits to its employees, their dependents, and survivors, in addition to any compensation or other benefits provided to such persons:
(A) Retirement, pension, disability, medical, and hospitalization benefits, through the purchase of insurance or otherwise, but medical and hospitalization benefits may only be provided through the Department of Community Health under the same conditions as provided for such benefits to state employees, and the Department of Community Health shall so provide if requested; (B) Life insurance coverage and coverage under federal old age and survivors' insurance programs; (C) Sick leave, annual leave, and holiday leave; and (D) Any other similar benefits including, but not limited to, death benefits; (6) Each community service board may cooperate with all units of local government in the counties where the community service board provides services as well as neighboring regions and with the programs of other departments, agencies, and regional commissions and regional planning boards; (7) Each community service board shall establish and maintain a personnel program for its employees and fix the compensation and terms of compensation of its employees;

580

GENERAL ACTS AND RESOLUTIONS, VOL. I

provided, however, each community service board shall comply with the provisions of Chapter 20 of Title 45, relating to state personnel administration, for so long as and to the extent that each employee of such board who is a covered employee as defined in Code Section 45-20-2 and is subject to the rules and regulations of the State Merit System of Personnel Administration remains in a covered position or as otherwise provided by law; (8) Each community service board may receive and administer grants, gifts, contracts, moneys, and donations for purposes pertaining to the delivery of disability services or of health services; (9) Each community service board may establish fees for the provision of disability services or health services according to the terms of contracts entered into with the department, Department of Human Services, or Department of Community Health, as appropriate; (10) Each community service board may accept appropriations, loans of funds, facilities, equipment, and supplies from local governmental entities in the counties where the community service board provides services; (11) Each member of the community service board may, upon approval of the executive director, receive reimbursement for actual expenses incurred in carrying out the duties of such office; provided, however, such reimbursement shall not exceed the rates and allowances set for state employees by the Office of Planning and Budget or the mileage allowance for use of a personal car as that received by all other state officials and employees or a travel allowance of actual transportation cost if traveling by public carrier; (12) Each community service board shall elect a chairperson and vice chairperson from among its membership. The members shall also elect a secretary and treasurer from among its membership or may designate the executive director of the community service board to serve in one or both offices. Such officers shall serve for such terms as shall be prescribed in the bylaws of the community service board or until their respective successors are elected and qualified. No member shall hold more than one office of the community service board; except that the same person may serve as secretary and treasurer. The bylaws of the community service board shall provide for any other officers of such board and the means of their selection, the terms of office of the officers, and an annual meeting to elect officers; (13) Each community service board may have a seal and alter it; (14) Each community service board may contract with the State Merit System of Personnel Administration regarding its personnel who remain in the classified service; (15) Each community service board may establish fees, rates, rents, and charges for the use of facilities of the community service board for the provision of disability services or of health services through the Department of Community Health, in accordance with the terms of contracts entered into with the department, Department of Human Services, or Department of Community Health, as appropriate;

GEORGIA LAWS 2009 SESSION

581

(16) Each community service board may borrow money for any business purpose and may incur debt, liabilities, and obligations for any business purpose. A debt, liability, or obligation incurred by a community service board shall not be considered a debt, liability, or obligation of the state or any county or any municipality or any political subdivision of the state. A community service board may not borrow money as permitted by this Code section ifthe highest aggregate annual debt service requirements ofthe then current fiscal year or any subsequent year for outstanding borrowings of the community service board, including the proposed borrowing, exceed 15 percent of the total revenues of the community service board in its fiscal year immediately preceding the fiscal year in which such debt is to be incurred. Interest paid upon such borrowings shall be exempt from taxation by the state or its political subdivisions. A state contract with a community service board shall not be used or accepted as security or collateral for a debt, liability, or obligation of a community service board without the prior written approval of the commissioner; (17) Each community service board, to the extent authorized by law and the contract for the funds involved, may carry forward without lapse fund balances and establish operating, capital, and debt reserve accounts from revenues and grants derived from state, county, and all other sources; and (18) Each community service board may operate, establish, or operate and establish facilities deemed by the community service board as necessary and convenient for the administration, operation, or provision of disability services or of health services by the community service board and may construct, reconstruct, improve, alter, repair, and equip such facilities to the extent authorized by state and federal law. (c) Nothing shall prohibit a community service board from contracting with any county governing authority, private or other public provider, or hospital for the provision of disability services or of health services. (d) Each community service board exists for nonprofit and public purposes, and it is found and declared that the carrying out of the purposes of each community service board is exclusively for public benefit and its property is public property. Thus, no community service board shall be required to pay any state or local ad valorem, sales, use, or income taxes. (e) A community service board shall not have the power to tax, the power to issue general obligation bonds or revenue bonds or revenue certificates, or the power to financially obligate the state or any county or any municipal corporation. (f) A community service board shall not operate any facility for profit. A community service board may fix fees, rents, rates, and charges that are reasonably expected to produce revenues, which, together with all other funds of the community service board, will be sufficient to administer, operate, and provide the following: (l) Disability services or health services; (2) The cost of acquiring, constructing, equipping, maintaining, repairing, and operating its facilities; and

582

GENERAL ACTS AND RESOLUTIONS, VOL. I

(3) The creation and maintenance of reserves sufficient to meet principal and interest payments due on any obligation of the community service board. (g) Each community service board may provide reasonable reserves for the improvement, replacement, or expansion of its facilities and services. Reserves under this subsection shall be subject to the limitations in paragraph ( 16) of subsection (b) of this Code section. (h) Each county and municipal corporation of this state is authorized to convey or lease property of such county or municipal corporation to a community service board for its public purposes. Any property conveyed or leased to a community services board by a county or municipal corporation shall be operated by such community service board in accordance with this chapter and the terms of the community service board's agreements with the county or municipal corporation providing such conveyance or lease. (i) Each community service board shall keep books of account reflecting all funds received, expended, and administered by the community service board which shall be independently audited annually. (j) A community service board may create, form, or become a member of a nonprofit corporation, limited liability company, or other nonprofit entity, the voting membership of which shall be limited to community service boards, governmental entities, nonprofit corporations, or a combination thereof, if such entity is created for purposes that are within the powers ofthe community service board, for the cooperative functioning ofits members, or a combination thereof; provided, however, that no funds provided pursuant to a contract between the department and the community service board may be used in the formation or operation of the nonprofit corporation, limited liability company, or other nonprofit entity. No community service board, whether or not it exercises the power authorized by this subsection, shall be relieved of compliance with Chapter 14 of Title 50, relating to open and public meetings, and Article 4 of Chapter 18 of Title 50, relating to inspection ofpublic records, unless otherwise provided by law. (k) No community service board shall employ or retain in employment, either directly or indirectly through contract, any person who is receiving a retirement benefit from the Employees' Retirement System of Georgia except in accordance with the provisions of subsection (c) of Code Section 47-2-110; provided, however, that any such person who is employed as of July I, 2004, may continue to be employed. (I) A community service board may join or form and operate, either directly or indirectly, one or more networks of community service boards, disability or health service professionals, and other providers of disability services or health services to arrange for the provision of disability services or health services through such networks; to contract either directly or through such networks with the Department of Community Health to provide services to Medicaid beneficiaries; to provide disability services or health services in an efficient and cost-effective manner on a prepaid, capitation, or other reimbursement basis; and to undertake other disability or health services related managed care activities. For purposes of this subsection only and notwithstanding Code Section 33-3-3 or any other provision of law, a community service board shall be permitted to and shall comply with

GEORGIA LAWS 2009 SESSION

583

the requirements of Chapter 20A of Title 33 to the extent that such requirements apply to the activities undertaken by the community service board or by a community service board under this subsection or subsection (j) of this Code section. No community service board, whether or not it exercises the powers authorized by this subsection, shall be relieved of compliance with Article 4 of Chapter 18 of Title 50, relating to inspection of public records, unless otherwise provided by law. Any licensed health care provider shall be eligible to apply to become a participating provider under such a plan or network that provides coverage for health care, disability services, or health services which are within the lawful scope of the provider's license, but nothing in this Code section shall be construed to require any such plan or network to provide coverage for any specific health care, disability service, or health service.

37-2-6.2. (a)( I) Those employees whose job descriptions, duties, or functions as of June 30, 1994, included the performance of employment duties or functions which will become employment duties or functions of the personnel of a community service board on July 1, 1994, shall become employees ofthe applicable community service boards on and after July 1, 1994. Such employees shall be subject to the employment practices and policies ofthe applicable community service board on and after July 1, 1994. Employees who are subject to the State Merit System of Personnel Administration and who are transferred to a community service board shall retain all existing rights under the State Merit System of Personnel Administration. Retirement rights of such transferred employees existing under the Employees' Retirement System of Georgia or other public retirement systems on June 30, 1994, shall not be impaired or interrupted by the transfer of such employees and membership in any such retirement system shall continue in the same status possessed by the transferred employees on June 30, 1994, without any interruption in membership service and without the loss of any creditable service. For purposes of coverage under the Employees' Retirement System of Georgia, such employees transferred to the community service boards on July 1, 1994, shall be deemed to be state employees. Accrued annual and sick leave possessed by said employees on June 30, 1994, shall be retained by said employees as employees of the community service board. Any person who is granted employment rights and benefits as a member of a community service board pursuant to this subsection and who later becomes employed, without any break in service, by the department, Department of Human Services, or Department of Community Health, a hospital thereof, another community service board, a county board of health for which such person provides services pursuant to this title, or a regional board shall retain, in that later employment position, all such rights and benefits. Such rights and benefits shall also be retained by any person who is employed on June 30, 1994, by the former Division of Mental Health, Developmental Disabilities, and Addictive Diseases (now known as the Department of Behavioral Health and Developmental Disabilities) of the former Department of Human Resources, a hospital

584

GENERAL ACTS AND RESOLUTIONS, VOL. I

thereof, a county board ofhealth for which such person provides services pursuant to this title, or a regional board and who later becomes employed, without any break in service, by a community service board. (2) Classified employees of a community service board under this chapter shall in all instances be employed and dismissed in accordance with rules and regulations of the State Merit System of Personnel Administration. (3) All rights, credits, and funds in the Employees' Retirement System of Georgia which are possessed by personnel transferred by provisions of this Code section to the community service boards are continued and preserved, it being the intention of the General Assembly that such persons shall not lose any rights, credits, or funds to which they may be entitled prior to becoming employees of the community service boards. (b) As to those persons employed by the former Division ofMental Health, Developmental Disabilities, and Addictive Diseases (now known as the Department of Behavioral Health and Developmental Disabilities) ofthe former Department ofHuman Resources, a hospital thereof, or a regional board on June 30, 1994, any termination from state employment after that date of any such person who is a member of the classified service shall not result from the anticipated or actual employment or utilization by: (I) The department; (2) A regional board; (3) A community service board; (4) A hospital; (5) The Department of Human Services; (6) The Department of Community Health; or (7) Any private provider of disability services or health services of any person who is not an employee of the state or a political subdivision thereof to perform the duties and functions of such terminated state personnel unless such termination and utilization is the result of a reduction in appropriations for such duties or functions or is the result of a reduction in force caused by any other state department or agency which has ceased to contract with the department, the Department of Human Services, or the Department of Community Health for the services which had been provided by the terminated state personnel.

37-2-6.3. (a) A community service board is a public body as provided in paragraph (I) of subsection (c) of Code Section 37-2-11.1. (b) A community service board has the power to bring an action in its own name and, to the extent otherwise authorized by law and to the extent not immune from suit, may be sued in its own name. The state and the counties in which the community service board operates shall not be considered a party to or liable under any such litigation. (c) Debts, obligations, and liabilities of a community service board are not debts, obligations, or liabilities of the state or of the counties in which such board operates. A

GEORGIA LAWS 2009 SESSION

585

community service board is prohibited from entering into debts, obligations, or liabilities which are also debts, obligations, or liabilities of the state or of any county.

37-2-6.4. (a) Notwithstanding any other provisions of this chapter, a community service board may reconstitute or convert its organizational structure in the following ways:
( l) With the approval of the governing board of the community service board and the approval of the county governing authorities of the counties served by the community service board, the community service board may convert to a private nonprofit corporation. So long as the reconstituted organization continues to serve a public purpose as defined by the department, the Department of Human Services, or the Department of Community Health, as appropriate, such organization shall be authorized to retain the use of assets, equipment, and resources purchased with state and federal funds by the former community service board. In the event the new private nonprofit fails to serve such public purpose, those assets, equipment, and resources purchased by the former community service board with state and federal funds shall be returned to the department, the Department of Human Services, or the Department of Community Health, as appropriate, or to an agency designated by such department. For a period of three years following the community service board's conversion to a private nonprofit corporation, the private nonprofit corporation shall ensure that consumers of disability services or health services, as appropriate, and family members of such consumers constitute a majority ofthe appointed board members and that the various disability groups and health services groups are equitably represented on the board of the nonprofit corporation; (2) With the approval of the governing board of the community service board and the approval of all of the county governing authorities of the counties served by the community service board, the community service board may convert to a unit of county government. All assets, equipment, and resources of the community service board shall be transferred to the new unit of county government; or (3) With the approval of the governing board of the community service board and the approval of all of the county governing authorities of the counties served by the community service board, the community service board may become a component part of a hospital authority in those counties served by the community service board. So long as the hospital authority continues to serve a public purpose as defined by the department, the Department of Human Services, or the Department of Community Health, as appropriate, the hospital authority shall be authorized to retain possession of those assets, equipment, and resources purchased by the community service board with state and federal funds. In the event the hospital authority fails to serve such public purpose, those assets, equipment, and resources purchased by the community service board with state and federal funds shall be returned to the department, the Department ofHuman Services, or the Department of Community Health, as appropriate, or to an agency designated by such appropriate department or departments.

586

GENERAL ACTS AND RESOLUTIONS, VOL. I

(b) In the event that all county governing authorities of a community service area designated pursuant to subsection (b) of Code Section 37-2-3 concur that a community service board reconstituted pursuant to subsection (a) of this Code section has failed to provide disability services or health services as required, those county governing authorities may request that the department coordinate the formation of a new community service board pursuant to Code Section 37-2-6. Upon notification of the request, the department shall assist the county governing authorities in making appointments to the new community service board and establishing bylaws pursuant to Code Section 37-2-6. The department shall make a determination about the disposition of all assets, equipment, and resources purchased with state or federal funding in the possession ofthe predecessor agency. To the extent that the community service board was providing disability services or health services through the Department of Human Services or the Department of Community Health, such department or departments shall provide to the Department of Behavioral Health and Developmental Disabilities all documents, data, information, and consultation necessary or helpful to the formation of the new community service board and the determination and disposition of assets, equipment, and resources of the community service board.

37-2-6.5. (a) By joint action of the membership of a community service board created pursuant to Code Section 37-2-6 and the governing authority of each county within the community service board area, such community service board may cease operations; provided, however, such community service board shall notify the commissioner at least 90 days in advance of the meeting of the community service board in which such action is to be taken. Such joint action shall indicate the date on which the community service board shall cease operations. (b) Upon receipt of notification that a community service board intends to cease operations, the commissioner shall notify the chairperson and executive director of such community service board and the governing authority ofeach county within the community service board area of such board that:
(1) The department, after securing the approval of the Governor, intends to appoint a manager or management team to manage and operate the programs and services of the community service board in accordance with the provisions of paragraph (1) of subsection (c) of Code Section 37-2-10 until the department shall determine:
(A) That such community service board should continue in operation, provided one or more members appointed to such board in accordance with subsection (b) of Code Section 37-2-6 shall be removed in accordance with subparagraph (c)(3)(H) of Code Section 37-2-10, and the department, acting on behalf of the membership of the community service board, nominates a successor to a removed member and advises the county governing authority that appointed such removed member to appoint a successor;

GEORGIA LAWS 2009 SESSION

587

(B) That all ofthe members of such community service board appointed in accordance with subsection (b) of Code Section 37-2-6 shall be removed and such community service board shall be reconstituted; and that the department shall assist the county governing authorities in making appointments to the new community service board; or (C) In the case where the membership of such community service board is the membership of a county board of health designated in accordance with Code Section 31-3-12.1 or subsection (e) of Code Section 37-2-6, that the entire membership of the community service board should be removed and the membership of the community service board be reconstituted in accordance with subsection (b) of Code Section 37-2-6; (2) The department, with the approval of the commissioner, intends to redesignate the boundaries of the community service board area served by such board pursuant to paragraph (1) of subsection (b) of Code Section 37-2-3 by expanding the boundaries of an adjacent community service board area served by another community service board to include the counties in the community service board area served by the community service board that intends to cease operations so that the community service board serving such adjacent area may assume responsibility for the provision of disability services within such counties; (3) The department intends to request pursuant to Code Section 31-3-12.1 that the governing authority of a county within the community service board area of such board authorize the membership of the board of health of such county to serve as the membership of such community service board; or (4) The department, after securing the approval of the Governor, intends to appoint a manager or management team to manage and operate the programs and services of the community service board until such time as arrangements can be made to secure one or more alternate service providers to assume responsibility for the provision of services previously provided by the community service board. (c) Ifa community service board ceases operation and is succeeded by another community service board pursuant to paragraph (2), a county board ofhealth pursuant to paragraph (3 ), or a manager or management team pursuant to paragraph (4) of subsection (b) of this Code section, the department shall make a determination about the disposition of all assets, equipment, and resources purchased with state or federal funding in the possession of the predecessor community service board. (d) If a community service board ceases operation and one or more alternate service providers assume responsibility for the provision of services previously provided by the community service board pursuant to paragraph (4) of subsection (b) of this Code section, the department shall petition the superior court of the county in which the principal office of that community service board was located for appointment of a receiver of the assets of the community service board for the protection of the board's creditors and the public. The receiver shall be authorized to marshal and sell or transfer assets of the board, and, after payment of the costs, expenses, and approved fees of the proceeding, to pay the liabilities

588

GENERAL ACTS AND RESOLUTIONS, VOL. I

of the community service board. The court shall then decree that the board be dissolved. Upon completion of the liquidation, any surplus remaining after paying all costs of the liquidation shall be distributed, as determined by the court, to the agencies, entities, or providers providing disability services in the community service board area formerly served by the community service board which ceased operations. At no time shall any community service board upon ceasing operations convey any of its property, except as may be otherwise authorized by a superior court in this subsection, to any private person, association, or corporation.

37-2-7. (a) The department shall formulate and publish biennially a state plan for disability services which shall take into account the disability services plans submitted by the regional offices as required by Code Section 37-2-5.2. The state disability services plan shall be comprehensive and shall include public and private institutional and community services to the disabled. In developing the state plan, the department shall request input from the regional offices and planning boards, the community service boards, hospitals, and other public and private providers. The plan shall include an overview of current services and programs and shall also present information on future program, service, educational, and training needs. (b) The plan shall address ways of eliminating, to the extent possible, detrimental delays and interruptions in the administration of disability services when moving an individual from one element of service to another in order to ensure continuity of care and treatment for persons receiving such services. (c) The plan shall further set forth the proposed annual budget of the department and the regions. (d) The plan shall be submitted to the department, the Governor, the General Assembly, the council, the regional planning boards, the hospitals, the community service boards, and any other public or private provider requesting a copy of the plan. (e) At such time as the state plan is submitted, the department shall further submit an analysis of services provided, programs instituted, progress made, and the extent of implementation of the previous biennial plan. Such analysis shall measure the effectiveness and the efficiency of the methods of delivering services which ameliorate or prevent disability and restore health. This analysis shall further address the efforts of the department in coordinating services in accordance with Code Section 37-2-9.

37-2-8. Reserved.

37-2-9. To the maximum extent possible, disability services provided by the department and the regional offices, hospitals, community service boards, and other public and private

GEORGIA LAWS 2009 SESSION

589

providers shall be coordinated with related activities of the department and judicial, correctional, educational, social, and other health service agencies and organizations, both private and public.

37-2-9.1. (a) Each regional planning board and community service board shall comply with the provisions of Chapter 14 of Title 50, relating to open and public meetings, and Article 4 of Chapter 18 of Title 50, relating to inspection of public records, except where records or proceedings are expressly made confidential pursuant to other provisions of law. (b) Each regional office and community service board and other public and private providers are authorized to establish one or more advisory boards for the purpose of ensuring coordination with various agencies and organizations and providing professional and other expert guidance.

37-2-10. (a) Notwithstanding any other proviSions of the law, the commissiOner with the concurrence ofthe Governor is authorized to establish and administer community programs on an emergency basis in the event one or more community service boards fail to assume responsibility for the establishment and implementation of an adequate range of disability services or to provide appropriate disability services as determined by the department or substantially breach their contracts with the department pursuant to this chapter. (b) Upon notification by a community service board of an inability to provide an adequate range of disability services or to provide appropriate services, the commissioner, with concurrence of the Governor, may:
(1) Assume responsibility for the administration and operation of all of the community programs operated by or through such board and, in which case, the programs shall become department programs; the department shall acquire the assets of the community service board; and the community service board employees shall become employees of the department; or (2) Assume responsibility for the administration and operation of one or more of the community programs operated by or through such board, in which case, such program or programs shall become a department program or programs; the department shall acquire those assets of the community service board assigned to such program or programs; and the employees of such program or programs shall become employees of the department. Any community service board programs not transferred to the department shall continue to be operated by the community service board and the employees for such programs shall remain community service board employees. (c)(1) Notwithstanding any other provisions ofthe law, in extenuating circumstances, the commissioner with the concurrence of the Governor is authorized to appoint a manager or management team to manage and operate the programs and services of the community service board if the commissioner finds that the community service board:

590

GENERAL ACTS AND RESOLUTIONS, VOL. I

(A) Provides notice pursuant to Code Section 37-2-6.5 that such board intends to cease operations; (B) Intentionally, recklessly, or negligently failed to discharge its duties pursuant to a contract with the department; (C) Misused state or federal funds; (D) Engaged in a fraudulent act, transaction, practice, or course of business; (E) Endangered the life, safety, or health of a consumer served by the community service board; (F) Failed to keep fiscal records and maintain proper control over its assets; (G) Failed to respond to a substantial deficiency in a review or audit; (H) Otherwise substantially failed to comply with this chapter or the rules or standards of the department; or (I) No longer has the fiscal ability to continue to provide contracted services and, without the intervention of the department, continued provision of disability services or health services to consumers in the service area is in immediate jeopardy. (2) In order to carry out the provisions of paragraph (I) of this subsection, the commissioner shall give written notice to the community service board regarding the appointment of a manager or management team and the circumstances on which the appointment is based. The commissioner may require the community service board to pay costs incurred by the manager or management team. (3) Subject to the determination of the commissioner, a manager or management team appointed pursuant to this subsection may: (A) Evaluate, redesign, modify, administer, supervise, or monitor a procedure, operation, or the management of the community service board; (B) Hire, supervise, discipline, reassign, or terminate the employment of an employee of the community service board; (C) Reallocate the resources and manage the assets of the community service board; (D) Require that a financial transaction, expenditure, or contract for goods and services be approved by the manager or management team; (E) Redesign, modify, or terminate a program or service of the community service board; (F) Direct the members of the community service board, the executive director, chief financial officer, or any other administrative or program manager to take an action; (G) Exercise a power, duty, authority, or function of the community service board as authorized by this chapter; (H) Recommend to the commissioner the removal of a member or the executive director of the community service board; and the provisions of any law to the contrary notwithstanding, the commissioner may remove such member or executive director from office; and (I) Report at least monthly to the commissioner on actions taken.

GEORGIA LAWS 2009 SESSION

591

(4) A manager or management team appointed pursuant to this subsection may not use or dispose of any asset or funds contributed to the community service board by the governing authority of a county or municipal corporation without the approval of such governing authority. (5) If a manager or management team is appointed pursuant to this Code section, the department may:
(A) Upon a determination that the conditions that gave rise to the appointment of a manager or management team pursuant to this subsection have been met and that such manager or management team is no longer necessary, terminate the authority delegated to such manager or management team and restore authority to the community service board to manage and operate the services and programs of the community service board; or (B) Operate and manage the programs of the community service board until such time as arrangements can be made to secure one or more alternative service providers to assume responsibility for the provision of services previously provided by the community service board. If this option is exercised, the department shall petition the appropriate superior court for appointment of a receiver pursuant to subsection (d) of Code Section 37-2-6.5. (6) Nothing in this subsection shall be construed to prohibit the department from canceling a contract with a community service board.

37-2-11. (a) It is the goal of the State of Georgia that every citizen be provided an adequate level of disability care through a unified system of disability services. To this end, the department shall, to the maximum extent possible, allocate funds available for services so as to provide an adequate disability services program available to all citizens of this state. In funding and providing disability services, the department and the regional offices shall ensure that all providers, public or private, meet minimum standards of quality and competency as established by the department. (b) Fees generated, if any, by hospitals, community service boards, and other private and public providers, providing services under contract or purview of the department, shall be reported to the department and applied wherever appropriate against the cost of providing, and increasing the quantity and quality of, disability services; provided, however, that income to a community service board derived from fees may be used to further the purposes of such community service board as found in Code Section 37-3-6.1, subject to appropriations. The department shall be responsible for developing procedures to properly account for the collection, remittance, and reporting of generated fees. The department shall work with the community service boards and other public or private providers to develop an appropriate mechanism for accounting for the funds and resources contributed to local disability services by counties and municipalities within the area. Such contributions are not required to be submitted to either the community service boards or

592

GENERAL ACTS AND RESOLUTIONS, VOL. I

the department; however, appropriate documentation and accounting entries shall make certain that the county or municipality is credited, and if necessary compensated, appropriately for such contribution of funds or resources. (c) No person shall be denied disability services provided by the state as defined in this chapter based on age, gender, race, ethnic origin, or inability to pay; provided, however, unless otherwise prohibited by law or contract, providers of disability services may deny nonemergency disability services to any person who is able to pay, but who refuses to pay. The department shall develop a state-wide sliding fee scale for the provision of disability services and shall promulgate standards that define emergency disability services and refusal to pay.

37-2-11.1. (a) Venue for the purpose of any action against a community service board shall be the county in which the principal office of the community service board is located. For purposes ofthis Code section, 'principal office' shall be defined as the facility which houses the executive director or other such top administrator for the community service board. (b) In any legal proceeding, a regional planning board or the regional office shall be considered a unit of the department and shall be afforded the assistance of legal counsel from the Attorney General.
(c)(1) The community service boards shall be public bodies but shall not be considered agencies of the state or any specific county or municipality. Such community service boards are public agencies in their own right and shall have the same immunity as provided for counties. No county shall be liable for any action, error, or omission of a community service board. Notwithstanding any provisions of law to the contrary, and regardless of any provisions of law which grant employees of the community service boards benefits under programs operated by the state or which deem them to be state employees only for purposes of those benefits, employees of the community service boards shall not be employees of the state but shall be employees of the community service boards and, further, the state shall not be liable for any action, error, or omission of such employees. (2) A community service board may employ or contract for legal counsel to assist in performing its duties and shall be authorized to appoint legal counsel to represent the community service board and its employees. The community service board may exercise any authority granted in Article 2 of Chapter 9 of Title 45, relating to the indemnification, defense, and insuring of members and employees of public bodies.

37-2-11.2. (a) Notwithstanding any other law to the contrary, to ensure the quality and integrity of patient and client care, any program receiving any public funds from, or subject to licensing, certification, or facility approval by, the department, the Department of Human Services, the Department of Community Health, or a regional office shall be required to

GEORGIA LAWS 2009 SESSION

593

provide the department or the appropriate regional office or both, upon request, complete access to, including but not limited to authorization to examine and reproduce, any records required to be maintained in accordance with contracts, standards, or rules and regulations of the department, the Department of Human Services, or the Department of Community Health or pursuant to the provisions of this title. (b) Records obtained pursuant to subsection (a) of this Code section shall not be considered public records and shall not be released by the department, the Department of Human Services, the Department of Community Health, or any regional office unless otherwise specifically authorized by law. (c) The community service board shall maintain a clinical record for each consumer receiving treatment or habilitation services from such board. The treatment of clinical records of consumers in receiving services for mental illness shall be governed by the provisions of Code Section 37-3-166. The treatment of clinical records of consumers receiving habilitation services for developmental disabilities shall be governed by the provisions of Code Section 37-4-125. The treatment of clinical records of consumers in treatment for addictive diseases shall be governed by the provisions of Code Section 37-7-166.'

SECTION 3-2. The following Code sections of the Official Code of Georgia Annotated are amended by replacing "Department of Human Resources" wherever it occurs with "Department of Behavioral Health and Developmental Disabilities":
(1) Code Section 15-11-73, relating to juvenile traffic offenses; (2) Code Section 15-11-152, relating to ordering an evaluation of a child's mental condition; (3) Code Section 16-7-83, relating to persons convicted or under indictment for certain offenses; (4) Code Section 16-11-129, relating to license to carry pistol or revolver; (5) Code Section 17-7-130, relating to proceedings upon plea of mental incompetency to stand trial; (6) Code Section 17-7-131, relating to proceedings upon plea of insanity or mental incompetency at time of crime; (7) Code Section 26-4-5, relating to definitions relative to the "Georgia Pharmacy Practice Act"; (8) Code Section 33-24-28, relating to termination of coverage of dependent child upon attainment of specified age; (9) Code Section 37-3-146, relating to education of children undergoing treatment in a facility for persons who are mentally ill; (1 0) Code Section 37-3-150, relating to right to appeal orders of probate court, juvenile court, or hearing examiner;

594

GENERAL ACTS AND RESOLUTIONS, VOL. I

(11) Code Section 37-4-4, relating to coordination of training programs for the mentally retarded; (12) Code Section 37-4-110, relating to appeal rights of clients, their representatives, or attorneys relating to habilitation of mentally retarded persons; (13) Code Section 37-5-4, relating to applicability of the "Community Services Act for the Mentally Retarded"; (14) Code Section 37-5-7, relating to duty of the Department of Human Resources to provide consulting and financial assistance to county boards of health; (15) Code Section 37-7-3, relating to coordination of state drug and alcohol abuse programs; (16) Code Section 37-7-146, relating to education of children undergoing treatment in a facility for persons who are alcoholics, drug dependent individuals, or drug abusers; (17) Code Section 37-7-150, relating to right to appeal orders of probate court, juvenile court, or hearing examiner; (18) Code Section 40-5-82, relating to administration of the Driver Improvement Program; ( 19) Code Section 42-1-13, relating to the Sexual Offender Registration Review Board; (20) Code Section 42-8-35.3, relating to conditions of probation for stalking or aggravated stalking; (21) Code Section 42-9-41, relating to duty of the State Board of Pardons and Paroles to obtain and place in records information respecting persons subject to relief or placed on probation; (22) Code Section 43-12A-5, relating to provider centers that engage in the practice of providing, installing, or monitoring ignition interlock devices not to operate under any name deceptively similar to another business; (23) Code Section 45-9-4.2, relating to liability coverage for nonprofit agencies providing services to the mentally retarded; (24) Code Section 49-5-221, relating to definitions relative to children and adolescents with severe emotional problems; (25) Code Section 49-5-223, relating to the State Plan for the Coordinated System of Care for children and adolescents with severe emotional problems; (26) Code Section 49-5-224, relating to the submission by the commissioner of human resources of an annual report on the State Plan for the Coordinated System of Care; (27) Code Section 49-5-227, relating to the Governor's Office for Children and Families to comment on the State Plan for Coordinated System of Care and provide recommendations; and (28) Code Section 50-27-24, relating to lottery prize proceeds subject to state income tax.

GEORGIA LAWS 2009 SESSION

595

SECTION 3-3. The following Code sections of the Official Code of Georgia Annotated are amended by replacing "commissioner of human resources" wherever it occurs with "commissioner of behavioral health and developmental disabilities":
(1) Code Section 42-1-13, relating to the Sexual Offender Registration Review Board; and (2) Code Section 49-5-224, relating to the submission by the commissioner of human resources of an annual report on the State Plan for the Coordinated System of Care;

SECTION 3-4. The following Code sections of the Official Code of Georgia Annotated are amended by replacing "Division of Mental Health, Developmental Disabilities, and Addictive Diseases ofthe Department of Human Resources" wherever it occurs with "Department of Behavioral Health and Developmental Disabilities":
(1) Code Section 15-11-149, relating to disposition of mentally ill or mentally retarded child; (2) Code Section 40-5-64, relating to limited driving permits for certain offenders; (3) Code Section 45-18-5.2, relating to sheltered employment center employees; and (4) Code Section 49-4A-9, relating to sentence of youthful offenders.

SECTION 3-5. The following Code sections of the Official Code of Georgia Annotated are amended by replacing "mentally retarded" or "Mentally Retarded" wherever it occurs with "developmentally disabled" or "Developmentally Disabled", respectively:
(l) Code Section 31-22-9.1, relating to who may perform HIV tests; (2) Code Section 35-l-8, relating to the acquisition, collection, classification, and preservation ofinformation assisting in identifying deceased persons and locating missing persons; (3) Code Section 37-4-l, relating to the declaration of policy relating to the habilitation of mentally retarded persons generally; (4) Code Section 37-4-3, relating to the authority of the board of human resources to issue regulations relating to the habilitation of mentally retarded persons generally; (5) Code Section 37-4-4, relating to coordination of training programs for the mentally retarded; (6) Code Section 37-4-5, relating to validity ofhospital orders entered before September 1, 1978; (7) Code Section 37-4-8, relating to approval of private facilities; (8) Code Section 37-4-20, relating to examination of minor children; (9) Code Section 37-4-21, relating to admission of mentally retarded persons to facilities for purposes of temporary supervision and care;

596

GENERAL ACTS AND RESOLUTIONS, VOL. I

(10) Code Section 37-4-22, relating to admission of persons to facilities for dental services; (11) Code Section 37-4-40, relating to filing petition with the court for according of program of services to mentally retarded person; ( 12) Code Section 37-4-40.1, relating to certification that a person requires temporary care; (13) Code Section 37-4-40.2, relating to admission or discharge of a person in custody of a state facility for temporary care; (14) Code Section 37-4-42, relating to procedure for continuation of court ordered habilitation; (15) Code Section 37-4-62, relating to transfer of clients to custody of federal agencies for services; (16) Code Section 37-4-120, relating to individual dignity of clients to be respected; (17) Code Section 37-4-123, relating to recognition of clients' physical integrity; (18) Code Section 37-5-1, relating to the short title; ( 19) Code Section 37-5-2, relating to declaration of policy relative to community services for the mentally retarded; (20) Code Section 37-5-4, relating to applicability of chapter; (21) Code Section 37-5-5, relating to duty of county board of health to provide community services; (22) Code Section 37-5-6, relating to county or health district plan for community services; (23) Code Section 37-5-7, relating to duty of department to provide consulting and financial assistance to county boards of health; (24) Code Section 37-6-2, relating to participation by department in financing of day-care centers for mentally retarded children; (25) Code Section 37-6-3, relating to participation by department in financing of day-care centers generally; (26) Code Section 37-6-4, relating to grants-in-aid to county board of health for purchase of services from private day-care centers; (27) Code Section 37-6-6, relating to inspection and approval of day-care centers; (28) Code Section 37-6-7, relating to departmental standards for day-care centers; (29) Code Section 37-9-6, relating to standards for determination of assessments for less than full cost of care; (30) Code Section 45-9-4.2, relating to liability coverage for nonprofit agencies providing services to the mentally retarded; (31) Code Section 49-4-51, relating to definitions relative to the "Aid to the Blind Act"; and (32) Code Section 49-4-80, relating to definitions relative to aid to the disabled.

GEORGIA LAWS 2009 SESSION

597

SECTION 3-6. The following Code sections of the Official Code of Georgia Annotated are amended by replacing "mental retardation" wherever it occurs with "developmental disability":
(1) Code Section 31-12-3.2, relating to meningococcal disease; (2) Code Section 31-32-4, relating to the advance directives for health care form; (3) Code Section 33-24-28, relating to termination of coverage of dependent child upon attainment of specified age; (4) Code Section 37-4-40.4, relating to evaluation of a person in custody of a state facility for temporary care; (5) Code Section 37-4-61, relating to transportation of clients generally; (6) Code Section 49-4-31, relating to definitions relative to old-age assistance; (7) Code Section 49-4-51, relating to definitions relative to the "Aid to the Blind Act"; and (8) Code Section 49-4-80, relating to definitions relative to aid to the disabled.

SECTION 3-7. The following Code sections of the Official Code of Georgia Annotated are amended by replacing "mental retardation" wherever it occurs with "a developmental disability":
(1) Code Section 31-20-3, relating to sterilization of mentally incompetent persons; (2) Code Section 37-4-80, relating to effect of inability to pay on right to habilitation services; (3) Code Section 37-4-100, relating to retention of rights and privileges by clients generally; and (4) Code Section 37-4-122, relating to client's care and treatment rights.

SECTION 3-8. Code Section 30-8-1 ofthe Official Code of Georgia Annotated, relating to the Governor's Council on Developmental Disabilities, is amended as follows:
'30-8-1. (a) There is created the Georgia Council on Developmental Disabilities. The council shall serve as the designated state agency and state planning council for purposes of carrying out the provisions of Chapter 75 of Title 42 of the United States Code, as now or hereafter amended, relating to programs for persons with developmental disabilities. (b) The members of the council shall be appointed by the Governor from among the residents ofthe state, and the composition ofthe council shall comply with the membership requirements of Chapter 75 of Title 42 of the United States Code, as now or hereafter amended. The Governor shall consider appointing to the council persons representing a broad range of individuals with developmental disabilities and individuals interested in programs for the developmentally disabled. To the extent feasible, appointments to the council shall be made with a view toward equitable geographic, racial, and ethnic representation.

598

GENERAL ACTS AND RESOLUTIONS, VOL. I

(c) Each member shall serve for a term of four years or until a successor is appointed. Members shall be eligible to succeed themselves. Vacancies shall be filled in the same manner as original appointments. The council shall elect its own chairperson and such other officers as it deems necessary. The council may adopt rules and procedures and shall meet at the call of the chairperson. (d) The Georgia Council on Developmental Disabilities shall:
(1) Develop and implement a state plan, which includes the specification of federal and state priority areas, to address on a state-wide and comprehensive basis the need for services, support, and other assistance for individuals with developmental disabilities and their families; (2) Monitor, review, and evaluate, not less than annually, the implementation and effectiveness of the plan; (3) Submit to the United States secretary of health and human services, through the Governor, such plan and periodic reports on the council's activities as the secretary finds necessary; (4) Receive, account for, and disburse funds paid to the state pursuant to the provisions of Chapter 75 of Title 42 of the United States Code, as now or hereafter amended, and as authorized by the approved state plan; (5) To the maximum extent feasible, review and comment on all plans in the state which relate to programs affecting persons with developmental disabilities; (6) Serve as an advocate for persons with developmental disabilities; (7) Advise the Governor, the General Assembly, and all other state agencies in matters relating to developmentally disabled persons; and (8) Fulfill the responsibilities and meet the requirements of a designated state agency and of a state planning council as provided by Chapter 75 of Title 42 of the United States Code, as now or hereafter amended. (e) The Georgia Council on Developmental Disabilities shall be attached to the Department of Behavioral Health and Developmental Disabilities for administrative purposes only as provided in Code Section 50-4-3. The council shall recruit and hire staff as provided by law and as the council determines necessary to carry out its duties. All costs incurred by the council shall be covered by funds paid to the state under Chapter 75 ofTitle 42 of the United States Code, as now or hereafter amended, except that members who are state employees shall be reimbursed for their expenses by their agency in the same manner as other state employees. Members who are not state employees shall be reimbursed for their actual expenses, including travel and any other expenses incurred in performance of their council duties, from funds appropriated to the Department of Behavioral Health and Developmental Disabilities.'

SECTION 3-9. Code Section 31-3-12.1 of the Official Code of Georgia Annotated, relating to contracts between county boards, is amended as follows:

GEORGIA LAWS 2009 SESSION

599

'31-3-12.1. (a) In addition to any other power authorized by law, the county governing authority may authorize the county board of health to enter into a contract with the Department of Behavioral Health and Developmental Disabilities or a community mental health, developmental disabilities, and addictive diseases service board created under Chapter 2 of Title 37 to provide certain mental health, developmental disabilities, and addictive diseases services based on the contractual agreement between the parties. In the event that the county governing authority exercises the authority granted by this subsection, the county board ofhealth shall appoint a director for mental health, developmental disabilities, and addictive diseases or a supervisor of the specific service which is being provided by the county board of health, whichever is applicable, who shall meet the requirements established by this subsection. The director for mental health, developmental disabilities, and addictive diseases, or the service supervisor, shall not be required to be a physician and shall be a person other than the director of the county board of health appointed pursuant to Code Section 31-3-11. Further, such director for mental health, developmental disabilities, and addictive diseases or such supervisor of the specific service shall report directly to the county board of health and shall have no formal reporting relationship with the director of the county board of health. (b) Pursuant to subsection (e) of Code Section 37-2-6, a county governing authority may authorize the membership of a county board of health to serve as the membership of a community mental health, developmental disabilities, and addictive diseases service board, provided that the county governing authority, the county board of health, and any other affected county governing authority act pursuant to subsection (e) of Code Section 37-2-6. If the membership of a county board of health exercises the authority granted pursuant to this subsection and Chapter 2 of Title 37 to serve as the membership of a community service board, the membership of the county board of health shall constitute the membership of the community service board and, at any time that such members are exercising duties and powers related to mental health, developmental disabilities, and addictive diseases, the community service board shall be an independent agency and shall operate in accordance with the provisions of Title 37 as a community service board. Notwithstanding any provisions of law to the contrary, a community service board and a county board of health which have the same membership may contract with each other, provided that any such contract is approved by the department and the Department of Behavioral Health and Developmental Disabilities prior to adoption."

SECTION 3-10. Code Section 35-3-34.1 ofthe Official Code ofGeorgia Annotated, relating to circumstances when exonerated first offender's criminal record may be disclosed, is amended by revising paragraph (3) of subsection (a) as follows:
'(3) The request for information is an inquiry about a person who has applied for employment with a facility as defined in Code Section 37-3-1 or 37-4-2 that provides

600

GENERAL ACTS AND RESOLUTIONS, VOL. I

services to persons who are mentally ill as defined in Code Section 37-1-1 or developmentally disabled as defined in Code Section 37-1-1, and the person who is the subject of the inquiry to the center was prosecuted for the offense of sexual battery, incest, pimping, or pandering."

SECTION 3-11. Code Section 37-2-30 of the Official Code of Georgia Annotated, relating to definitions relative to the office of disability services ombudsman, is amended by revising paragraph (3) as follows:
'(3) 'Consumer' means a natural person who has been or is a recipient of disability services as defined in Code Section 37-1-1 and shall include natural persons who are seeking disability services."

SECTION 3-12. Code Section 37-3-1 of the Official Code of Georgia Annotated, relating to definitions relative to the examination and treatment for mental illness, is amended by revising paragraphs (11) and (12) and repealing paragraph (14.2) as follows:
'Reserved.' '(12) 'Mentally ill person requiring involuntary treatment' means a mentally ill person who is an inpatient or an outpatient."

SECTION 3-13. Code Section 37-4-2 of the Official Code of Georgia Annotated, relating to definitions relative to the habilitation of the mentally retarded, is amended as follows:
'37-4-2. As used in this chapter, the term:
(I) 'Client' means any person with a developmental disability who seeks habilitation under this chapter or any person for whom such habilitation is sought. (2) 'Clinical record' means a written record pertaining to an individual client and includes habilitation record, progress notes, charts, admission and discharge data, and all other information which is recorded by a facility and which pertains to the client's habilitation. Such other information as may be required by rules and regulations ofthe board shall also be included. (3) 'Community services' means all services deemed reasonably necessary by the Department of Behavioral Health and Developmental Disabilities to provide for the education, training, habilitation, and care of developmentally disabled individuals. Such services shall include, but not be limited to, diagnostic and evaluation services, day-care and training services, work activity services, community residential services such as group family care homes, transportation services, social services, medical services, and specified home services.

GEORGIA LAWS 2009 SESSION

601

(4) 'Comprehensive evaluation team' or 'comprehensive habilitation team' means and shall consist of a group of persons with special training and experience in the assessment of needs and provision of services for developmentally disabled persons, which group shall include, at a minimum, persons qualified to provide social, psychological, medical, and other services. The department shall specify the qualifications ofthe individuals who comprise a comprehensive evaluation team or a comprehensive habilitation team and shall ensure that such teams are located throughout the state so as to provide diagnostic, evaluation, and habilitation services for all citizens of Georgia. (5) 'Court' means:
(A) In the case of an individual who is 17 years of age or older, the probate court of the county of residence of the client or the county in which such client is found. Notwithstanding Code Section 15-9-13, in any case in which the judge of said probate court is unable to hear a case brought under this chapter within the time required for such hearing, said judge shall appoint a person to serve and exercise all the jurisdiction of the probate court in such case. Any person so appointed shall be a member of the State Bar of Georgia and shall be otherwise qualified for his or her duties by training and experience. Such appointment may be made on a case-by-case basis or by making a standing appointment of one or more persons. Any person receiving such standing appointment shall serve at the pleasure of the judge making the appointment or the judge's successor in office to hear such cases if and when necessary. The compensation of a person so appointed shall be as agreed upon by the judge who makes the appointment and the person appointed with the approval of the governing authority of the county for which such person is appointed and shall be paid from the county funds of said county. All fees collected for the services of such appointed person shall be paid into the general funds of the county served; or (B) In the case of an individual who is under the age of 17 years, the juvenile court of the county of residence of the client or the county in which such client is found. (6) 'Developmentally disabled person in need of community services' means a developmentally disabled person who, after comprehensive evaluation, is found to be in need of community services as defined in Code Section 37-5-3. (7) 'Developmentally disabled person requiring temporary and immediate care' means a person who is developmentally disabled, and: (A) Who presents a substantial risk of imminent harm to himself or herself or others; (B) Who is in need of immediate care, evaluation, stabilization, or treatment for certain developmental, medical, or behavioral needs; and (C) For whom there currently exists no available, appropriate community residential setting for meeting the needs of the person. (8) 'Facility' means any state owned or state operated institution utilized 24 hours a day for the habilitation and residence of persons who are developmentally disabled, any facility operated or utilized for such purpose by the United States Department ofVeterans

602

GENERAL ACTS AND RESOLUTIONS, VOL. I

Affairs or any other federal agency, and any other facility within the State of Georgia approved for such purpose by the department. (9) 'Full and fair hearing' or 'hearing' means a proceeding before a hearing examiner, under Code Section 37-4-42, or before a court, as defined in paragraph (5) of this Code section. The hearing may be held in a regular courtroom or in an informal setting, in the discretion of the hearing examiner or the court, but the hearing shall be recorded electronically or by a qualified court reporter. The client shall be provided with effective assistance of counsel. If the client cannot afford counsel, the court shall appoint counsel for him or her or the hearing examiner shall have the court appoint such counsel. The client shall have the right to confront and cross-examine witnesses and to offer evidence. The client shall have the right to subpoena witnesses and to require testimony before the hearing examiner or in court in person or by deposition from any physician upon whose evaluation the decision of the hearing examiner or the court may rest. The client shall have the right to obtain a continuance for any reasonable time for good cause shown. The hearing examiner and the court shall apply the rules of evidence applicable in civil cases. The burden ofproof shall be upon the party seeking treatment of the client. The standard of proof shall be by clear and convincing evidence. At the request of the client, the public may be excluded from the hearing; and the client need not be present if the court consents; in either of these events, the record shall reflect the reason for the hearing examiner's or the court's action. (10) 'Habilitation' means the process by which program personnel help clients acquire and maintain those life skills which will enable them to cope more effectively with the demands of their own persons and of their environment and to raise the level of their physical, mental, social, and vocational abilities. (11) 'Individualized program plan' means a proposed habilitation program written in behavioral terms, developed by the comprehensive evaluation team, and specifically tailored to the needs of an individual client. Each plan shall include:
(A) A statement of the nature of the client's specific problems and specific needs; (B) A description of intermediate and long-range habilitation goals and a projected timetable for their attainment; (C) A description of the proposed habilitation program and its relation to habilitation goals; (D) Identification of the facility and types of professional personnel responsible for execution of the client's habilitation program; (E) A statement of the least restrictive environment necessary to achieve the purposes of habilitation, based upon the needs of the client; (F) An explanation of criteria for acceptance or rejection of alternative environments for habilitation; and (G) Proposed criteria for release of the client into less restrictive habilitation environments upon obtaining specified habilitation goals.

GEORGIA LAWS 2009 SESSION

603

(12) 'Least restrictive alternative,' 'least restrictive environment,' or 'least restrictive appropriate habilitation' means that which is the least restrictive available alternative, environment, or appropriate habilitation, as applicable, within the limits of state funds specifically appropriated therefor. (13) 'Person in charge of a client's habilitation' means a superintendent or regional state hospital administrator of a facility, a case manager, or any other service provider designated by the department to have overall responsibility for implementation of a client's individualized program plan. The department shall designate such a person for each individual ordered to receive services from the department under this chapter. (14) 'Representatives' means the persons appointed as provided in Code Section 37-4-107 to receive any notice under this chapter. (15) 'Superintendent' means the chiefadministrative officer who has overall management responsibility at any facility, other than a regional state hospital or state owned or operated community program, receiving developmentally disabled persons under this chapter or an individual appointed as the designee of such superintendent."

SECTION 3-14. Code Section 37-4-40 of the Official Code of Georgia Annotated, relating to filing petitions with the court for according of program services to a mentally retarded person, is amended by revising subsections (a) and (d) as follows:
'(a) Any person may file a petition for a court ordered program of services from the department for a developmentally disabled citizen of this state. Such petition shall be executed under oath in the court of the county in which the allegedly developmentally disabled person is a resident or where such person is found. The petition shall assert that the petitioner believes that the client is developmentally disabled and (1) that the petitioner is the parent, guardian, or person standing in loco parentis of the client for whom habilitative services are being sought and that the petitioner is unable to obtain adequate and appropriate programs and services as defined in Code Section 37-5-3 and Code Section 20-2-131 to meet the needs of the client or (2) that the petitioner believes that the parent, guardian, or person acting in loco parentis has failed or is unable to secure adequate and appropriate programs and services as defined in Code Section 37-5-3 and Code Section 20-2-131 to meet the needs of the client. The petition shall set forth the alleged facts upon which the above assertions are based, the names and addresses, if known, of any witnesses who can allege relevant facts, and, if known, the names and addresses of the nearest relatives and the guardian, if any, of the client." '(d) If a majority of the evaluation team does not find the allegedly developmentally disabled person to be developmentally disabled and in need of being ordered to receive such services from the department or if a majority of the comprehensive evaluation team finds the client to be a developmentally disabled person in need of court ordered services from the department, the court shall set a hearing on the petition and shall serve notice of such hearing on the petitioner, on the prospective client, and on his representatives or

604

GENERAL ACTS AND RESOLUTIONS, VOL. I

guardian as provided in Code Section 37-4-107; and such notice shall be served within 72 hours after the filing of the report by the evaluation team. Such notice shall be accompanied by:
(1) A copy of the petition; (2) A notice that the client has a right to counsel and that the client or his representatives may apply immediately to the court to have counsel appointed if the client cannot afford counsel and that the court will appoint counsel for the client unless the client either indicates in writing that he will have retained counsel by the time set for hearing or waives his right to counsel; (3) A copy of the individualized program plan developed by the evaluation team under subsection (c) of this Code section; and (4) A notice that the client has a right to be examined by a comprehensive evaluation team of his own choice at his own expense and to have that team submit a suggested individualized program plan for the client which conforms with the requirements of paragraph (11) of Code Section 37-4-2. The hearing shall be held no sooner than ten days and no later than 15 days, Saturdays, Sundays, and holidays excepted, after the date the evaluation team report is filed. The court shall grant a continuance upon application by the client or his representatives, if necessary, to permit preparation for the hearing.'

SECTION 3-15. Code Section 37-4-109 of the Official Code of Georgia Annotated, relating to establishment of patients and staff complaint procedure, is amended as follows:
'37-4-109. The department shall establish procedures whereby complaints of the client or complaints of the staff concerning admission, treatment, or habilitation can be speedily heard. Clients shall receive reasonable notice of such procedures. Final decisions shall be made by the superintendent, the regional state hospital administrator, or an advisory committee, whichever is appropriate, with the right of appeal to the commissioner or his or her designee. The board shall establish rules and regulations for the implementation of such procedures. However, the client shall not be required to utilize these procedures in lieu of other available legal remedies.'

SECTION 3-16. Code Section 37-5-3 of the Official Code of Georgia Annotated, relating to definitions relative to community services for the mentally retarded, is amended as follows:
'37-5-3. As used in this chapter, the term
'community services' means a coordinated, consumer and family centered, consumer and family directed, and comprehensive system of community services, individualized supports, and other forms of assistance that enable individuals with developmental

GEORGIA LAWS 2009 SESSION

605

disabilities to exercise self-determination, be independent, be productive, and be integrated and included in all facets of community life. Such services shall include those deemed reasonably necessary by the department to provide for education, training, rehabilitation, and care of individuals with developmental disabilities and shall include but not be limited to: diagnostic and evaluation services; day-care and training services; work-activity services; support coordination, day support, and personal support services; supportive employment services; community residential services such as group family-care homes, community living arrangements, and host homes; transportation services incidental to educational, training, and rehabilitation services; technology and durable equipment support and services; social services; medical services; and specified home services.'

SECTION 3-17. Code Section 37-5-10 of the Official Code of Georgia Annotated, relating to timetable for implementation of this chapter, is amended as follows:
'37-5-10. The department shall employ sufficient professional and nonprofessional persons to assure full implementation of this chapter by June 30, 1978. All community services specified in Code Section 37-5-3 shall be made available for all mentally retarded individuals by June 30, 1978.'

SECTION 3-18. Code Section 37-6-1 of the Official Code of Georgia Annotated, relating to definitions relative to day-care centers for the mentally retarded, is amended as follows:
'37-6-1. As used in this chapter, the term
'day-care center' means any facility that is operated and maintained for and is qualified to furnish care and training to individuals with developmental disabilities on less than a 24 hour basis.'

SECTION 3-19. Code Section 37-7-1 of the Official Code of Georgia Annotated, relating to definitions relative to hospitalization of alcoholics, is amended by revising paragraph ( 17.2) as follows:
'(17.2) 'Regional state hospital administrator' means the chief administrative officer of a state owned or state operated hospital and the state owned or operated community programs in a region. The regional state hospital administrator has overall management responsibility for the regional state hospital and manages services provided by employees of the regional state hospital and employees of state owned or operated community programs within a mental health, developmental disabilities, and addictive diseases region established in accordance with Code Section 37-2-3.'

606

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 3-20. Code Section 37-9-2 of the Official Code of Georgia Annotated, relating to definitions relative to payment of expenses for support, treatment, and care of patients in institutions generally, is amended by revising paragraph (6) as follows:
"(6) 'State hospital' means any state hospital which now or hereafter comes under the control of the department and any facility operated in conjunction therewith.'

SECTION 3-21. Code Section 37-10-2 of the Official Code of Georgia Annotated, relating to the Interstate Compact on Mental Health, is amended by revising Article XV as follows:

"ARTICLE XV.

(a) Pursuant to said compact, the Commissioner of Behavioral Health and Developmental Disabilities, or his delegate, is hereby designated to be the compact administrator. The compact administrator, acting jointly with like officers of other party States, shall have power to promulgate rules and regulations to carry out more effectively the terms of the compact. The compact administrator is hereby authorized, empowered and directed to cooperate with all departments, agencies and officers of and in the government ofthis State and its subdivisions in facilitating the proper administration of the compact or any supplementary agreement or agreements entered into by this State thereunder. (b) The compact administrator is hereby authorized and empowered to enter into supplementary agreements with appropriate officials of other States pursuant to Articles VII and XI of the compact. In the event that such supplementary agreements shall require or contemplate the use of any institution or facility of this State or require or contemplate the provision of any service of this State, no such agreement shall have force or effect until approved by the head ofthe department or agency under whose jurisdiction said institution or facility is operated or whose department or agency will be charged with the rendering of such service. (c) The compact administrator, using funds appropriated to the Department of Behavioral Health and Developmental Disabilities and the Department of Community Health, may make or arrange for any payments necessary to discharge any financial obligations imposed upon this State by the compact or by any supplementary agreement entered into thereunder. (d) Duly authenticated copies of this Act shall be transmitted by the Secretary of State of the State of Georgia to the Governor of each State, to the Attorney General and the Administrator of General Services of the United States, and to the Council of State Governments, and to the Veterans' Administration. (e) The compact administrator is hereby directed to consult with the immediate family of any proposed transferee and, in the case of a proposed transfer from an institution in this State to an institution in another party State, to take no final action without notice to the

GEORGIA LAWS 2009 SESSION

607

admitting court or in case of admission other than by a court, then notice to the admitting medical facility is required. (f) In the administration ofthis compact, the compact administrator shall in no way abridge the rights or privileges of any patient to appeal to the courts for a hearing as provided under the laws of Georgia.'

SECTION 3-22. Code Section 40-16-5 of the Official Code of Georgia Annotated, relating to authority of the commissioner of driver services, is amended by revising paragraph (5) of subsection (d) as follows:
'(5) All rules and regulations previously adopted which relate to functions transferred under this chapter from the Department of Human Resources (now known as the Department ofBehavioral Health and Developmental Disabilities for these purposes) to the Department of Driver Services.'

SECTION 3-23. Code Section 42-5-52 of the Official Code of Georgia Annotated, relating to classification and separation of inmates generally, is amended by revising subsections (d), (e), and (f) as follows:
'(d) The department is authorized to transfer a mentally diseased inmate from a state or county correctional institution or other facility operating under its authority to a criminal ward or facility of the Department of Behavioral Health and Developmental Disabilities. The inmate shall remain in the custody of the Department of Behavioral Health and Developmental Disabilities until proper officials of the facility at which the inmate is detained declare that his or her sanity has been restored, at which time the inmate shall be returned to the custody of the department. At any time after completion of his or her sentence, an inmate detained by the Department of Behavioral Health and Developmental Disabilities on the grounds that he or she is mentally diseased may petition for release in accordance with the procedure provided in Chapter 3 of Title 37. Prior to completion of his or her sentence, this procedure shall not be available to the inmate. (e) Upon being presented with a proper certification from the county physician of a county where a person has been sentenced to confinement that the person sentenced is addicted to drugs or alcohol to the extent that the person's health will be impaired or life endangered if immediate treatment is not rendered, the department shall transfer the inmate to the custody of the Department of Behavioral Health and Developmental Disabilities. The inmate shall remain in such custody until officials of the Department of Behavioral Health and Developmental Disabilities determine the inmate is able to serve his or her sentence elsewhere. (f) The department may transfer any inmate afflicted with active tuberculosis from any state or county correctional institution, or any other facility operating under the authority of the department, to a tubercular ward or facility specially provided and maintained for

608

GENERAL ACTS AND RESOLUTIONS, VOL. I

criminals by the department at a tuberculosis facility or facilities operating under the Department of Community Health.

SECTION 3-24. Code Section 42-5-52.1 of the Official Code of Georgia Annotated, relating to submission to HIV test of inmates, is amended by revising subsection (c) as follows:
"(c) No later than December 31, 1991, the department shall require to submit to an HIV test each person who has been committed to the custody of the commissioner to serve time in a penal institution of this state and who remains in such custody, or who would be in such custody but for having been transferred to the custody of the Department of Human Resources (now known as the Department of Behavioral Health and Developmental Disabilities) under Code Section 42-5-52, if that person has not submitted to an HIV test following that person's most recent commitment to the custody of the commissioner and unless that person is in such custody because of having committed an AIDS transmitting crime and has already submitted to an HIV test pursuant to Code Section 17-10-15 ."

SECTION 3-25. Code Section 42-8-63.1 of the Official Code of Georgia Annotated, relating to discharges disqualifying individuals from employment, is amended by revising paragraph (4) of subsection (a) as follows:
"(4) The request for information is an inquiry about a person who has applied for employment with a facility as defined in Code Section 37-3-1 or 37-4-2 that provides services to persons who are mentally ill as defined in Code Section 37-1-1 or developmentally disabled as defined in Code Section 37-1-1, and the person who is the subject of the inquiry to the center was prosecuted for the offense of sexual battery, incest, pimping, or pandering."

SECTION 3-26. Code Section 49-5-220 of the Official Code of Georgia Annotated, relating to legislative findings and intent with respect to children and adolescents with severe emotional problems, is amended as follows:
"49-5-220. (a) The General Assembly declares its intention and desire to:
(1) Ensure a comprehensive mental health program consisting of early identification, prevention, and early intervention for every child in Georgia; (2) Preserve the sanctity of the family unit; (3) Prevent the unnecessary removal ofchildren and adolescents with a severe emotional disturbance from their homes; (4) Prevent the unnecessary placement of these children out of state; (5) Bring those children home who through use of public funds are inappropriately placed out of state; and

GEORGIA LAWS 2009 SESSION

609

(6) Develop a coordinated system of care so that children and adolescents with a severe emotional disturbance and their families will receive appropriate educational, nonresidential and residential mental health services, and support services, as prescribed in an individualized plan. (b) In recognition of the fact that services to these children are provided by several different agencies, each having a different philosophy, a different mandate, and a different source offunding, the General Assembly intends that the Department of Behavioral Health and Developmental Disabilities shall have the primary responsibility for planning, developing, and implementing the coordinated system of care for severely emotionally disturbed children. Further, it recognizes that to enable severely emotionally disturbed children to develop appropriate behaviors and demonstrate academic and vocational skills, it is necessary that the Department of Education provide appropriate education in accordance with P.L. 94-142 and that the Department of Behavioral Health and Developmental Disabilities provide mental health treatment. (c) Further, in recognition that only a portion ofthe children needing services are receiving them and in recognition that not all the services that comprise a coordinated system of care are currently in existence or do not exist in adequate numbers, the General Assembly intends that the Department of Behavioral Health and Developmental Disabilities and the Department of Education jointly develop and implement a State Plan for the Coordinated System of Care for severely or emotionally disturbed children or adolescents as defined in paragraph (10) of Code Section 49-5-221. (d) The commissioner of behavioral health and developmental disabilities and the State School Superintendent shall be responsible for the development and implementation ofthe state plan. (e) The commissioner of behavioral health and developmental disabilities shall be responsible for preparing this jointly developed state plan for publication and dissemination. The commissioner ofbehavioral health and developmental disabilities shall also be responsible for preparing for publication and dissemination the annual report. (f) The receipt of services under this article is not intended to be conditioned upon placement of a child in the legal custody, protective supervision, or protection of the Department of Human Services."

SECTION 3-27. Code Section 49-5-225 of the Official Code of Georgia Annotated, relating to local interagency committees with respect to children and adolescents with severe emotional problems, is amended by revising subsection (a) as follows:
'(a) At least one local interagency committee shall be established for each region of the Department of Behavioral Health and Developmental Disabilities whose permanent membership shall include a local representative from each of the following:
(1) The community mental health agency responsible for coordinating children's services;

610

GENERAL ACTS AND RESOLUTIONS, VOL. I

(2) The Division of Family and Children Services ofthe Department of Human Services; (3) The Department of Juvenile Justice; (4) The Division of Public Health of the Department of Community Health; (5) A member of the special education staff of the local education agency; (6) The Division of Rehabilitation Services of the Department of Labor.'

PART IV Effective Date and Repealer.

SECTION 4-1. This Act shall be effective on July 1, 2009.

SECTION 4-2. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

PUBLIC OFFICERS- CORONERS; STATE JURISDICTION WHEN DEATH ON STATE PROPERTY; CANINE SERVICE DOGS.
No. 103 (Senate Bill No. 38).
AN ACT
To amend Article 2 of Chapter 16 of Title 45 of the Official Code of Georgia Annotated, relating to death investigations by coroners, so as to clarify that the Georgia Bureau of Investigations has jurisdiction over the post mortem examination or autopsy on persons whose death occurs on certain state property; to provide for the training of canine service dogs for the purpose of body recovery and rescue of persons; to provide for related matters; to repeal conflicting Jaws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Article 2 of Chapter 16 of Title 45 of the Official Code of Georgia Annotated, relating to death investigations by coroners, is amended in Code Section 45-16-25, relating to duties of a coroner or county medical examiner upon receipt of notice of suspicious or unusual death,

GEORGIA LAWS 2009 SESSION

611

authority to embalm a body, identification, inventory and disposition of a deceased's property, and use of a deceased's property for evidence, by adding a new subsection to read as follows:
'(d) The Georgia Bureau of Investigation is authorized to perform a post mortem examination and autopsy on a person whose death occurs within a state owned or leased building or on the curtilage of such building. The Georgia Bureau of Investigation shall have jurisdiction relating to the investigation of such a death, and this authority and jurisdiction shall supersede any other authority or jurisdiction provided for by this article relating to a post mortem examination or autopsy."

SECTION 2. Said article is further amended by adding a new Code section to read as follows:
'45-16-50. A medical examiner within the state of Georgia is authorized to provide to an approved canine instructor or school certain biological substances such as human blood or bodily fluids for the sole purpose of utilizing such substances for the training and handling of police canines in body recovery of human remains or rescue of persons. Such biological substances shall be contained and transported in accordance with appropriate health and safety standards.'

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

PENAL INSTITUTIONS- INCARCERATED PERSONS; HIV TESTING.
No. 104 (Senate Bill No. 64).
AN ACT
To amend Article 3 of Chapter 5 of Title 42 of the Official Code of Georgia Annotated, relating to conditions ofdetention generally, so as to provide that certain incarcerated persons shall be tested for HIV prior to release; to provide for notice and counseling; to require the Department of Corrections to seek funding for such HIV testing program; to provide for a definition; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

612

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 1. Article 3 of Chapter 5 of Title 42 of the Official Code of Georgia Annotated, relating to conditions of detention generally, is amended by adding a new Code section to read as follows:
42-5-52.2. (a) For purposes of this Code section, 'HIV' means HIV as defined by Code Section 31-22-9.1. (b) The department shall implement an HIV testing program whereby any state inmate who has been in the custody of a state penal institution for one year or longer and who has not previously tested positive for HIV shall be tested for HIV within 30 days prior to his or her expected date of release from the custody of the department. (c) Each person tested as provided in subsection (b) of this Code section shall be notified by the department in writing of the results of such testing prior to his or her release. Prior to the release of any person testing positive for HIV, the appropriate information as required by Code Sections 24-9-47 and 31-22-9.2 or other law shall be provided by the department to the Department of Human Resources. Prior to the release of any person testing positive for HIV, the department shall also provide to such person in writing contact information regarding medical, educational, and counseling services available through the Department of Human Resources. Any person testing positive for HIV shall be provided instruction relating to living with HIV, the prevention of the spread of such virus, and the legal consequences of infecting unknowing partners. (d) The department shall seek state and federal grants or other possible sources of revenue for the purpose of funding a program of HIV testing authorized by this Code section. In addition, the department is authorized to accept gifts, subject to the approval of the board, for the purpose of funding such program. (e) The department shall consolidate inmates who have tested positive for HIV in a manner that most efficiently provides education, counseling, and treatment for such persons. (f) The provisions of this Code section shall not be construed to limit the provision for HIV testing in Code Section 42-9-42.1.'

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

GEORGIA LAWS 2009 SESSION

613

HEALTH - SAFETY NET CLINICS.

No. 105 (Senate Bill No. 133).

AN ACT

To amend Article 8 of Chapter 8 of Title 31 of the Official Code of Georgia Annotated, relating to the "'Health Share' Volunteers in Medicine Act," so as to revise a definition; to provide for sovereign immunity protection for certain health care professionals in safety net clinics who participate in the Health Share Program; to provide for statutory construction; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Article 8 of Chapter 8 of Title 31 of the Official Code of Georgia Annotated, relating to the "'Health Share' Volunteers in Medicine Act," is amended in Code Section 31-8-192, relating to definitions, by revising subparagraph (R) of paragraph (5) as follows:
'(R) A safety net clinic, which includes any other medical facility the primary purpose of which is to deliver human dental or medical diagnostic services or which delivers nonsurgical human medical treatment and which may include an office maintained by a provider;"

SECTION 2. Said article is further amended by adding a new Code section to read as follows:
'31-8-195.1. (a) A registered professional nurse, nurse midwife, licensed practical nurse, or advanced practice registered nurse licensed or registered under Chapter 26 of Title 43 who is employed by a safety net clinic that executes a contract with a governmental contractor pursuant to this article shall be considered a state officer or employee for purposes of Article 2 of Chapter 21 of Title 50 while providing health care services pursuant to such contract, so long as such nurse provides nonemergent care and such nurse's total compensation, including all cash and noncash remunerations, does not fluctuate in relation to:
(1) The number of patients served in the clinic; (2) The number of patient visits to the clinic; (3) Treatments in the clinic; or (4) Any other fact relating to the number of patient contacts or services rendered pursuant to a contract under this article. (b) A physician licensed pursuant to Chapter 34 of Title 43 or medical resident who provides nonemergent medical care and treatment in a safety net clinic that executes a

614

GENERAL ACTS AND RESOLUTIONS, VOL. I

contract with a governmental contractor pursuant to this article shall be considered a state officer or employee for purposes of Article 2 of Chapter 21 of Title 50 while providing health care services pursuant to such contract, so long as the physician is practicing pursuant to a license issued under Code Section 43-34-45.1 or the physician or resident receives no compensation from the safety net clinic and is on staff at a local or regional hospital and provided that the physician's total compensation, including all cash and noncash remunerations, does not fluctuate in relation to:
( 1) The number of patients served in the clinic; (2) The number of patient visits to the clinic; (3) Treatments in the clinic; or (4) Any other fact relating to the number of patient contacts or services rendered pursuant to a contract under this article. (c) No hospital shall require a physician to provide services at a safety net clinic as a condition for granting of staff privileges or for retaining staff privileges at such hospital. (d) This Code section shall be supplemental to all other provisions of law that provide defenses to health care providers. This Code section shall not create any new cause of action against a health care provider or additional liability to health care providers.'

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

PROPERTY- FORECLOSURE; UNDER POWER OF SALE.
No. 106 (Senate Bill No. 141).
AN ACT
To amend Article 7 of Chapter 14 of Title 44 of the Official Code of Georgia Annotated, relating to foreclosure on mortgages, so as to require recording of documents relating to sales under power; to change provisions relating to sales made on foreclosure under power of sale, mailing of notice to debtor, and applicability of notice requirement; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

GEORGIA LAWS 2009 SESSION

615

SECTION 1. Article 7 of Chapter 14 of Title 44 of the Official Code of Georgia Annotated, relating to foreclosure on mortgages, is amended by revising Code Section 44-14-160, relating to recording of foreclosures and deed under power, as follows:
44-14-160. Within 90 days of a foreclosure sale, all deeds under power shall be recorded by the holder of a deed to secure debt or a mortgage with the clerk of the superior court of the county or counties in which the foreclosed property is located. The clerk shall write in the margin ofthe page where the deed to secure debt or mortgage foreclosed upon is recorded the word 'foreclosed' and the deed book and page number on which is recorded the deed under power conveying the real property; provided, however, that, in counties where the clerk keeps the records affecting real estate on microfilm, the notation provided for in this Code section shall be made in the same manner in the index or other place where the clerk records transfers and cancellations of deeds to secure debt.'

SECTION 2. Said article is further amended by revising Code Section 44-14-162.3, relating to sales made on foreclosure under power of sale, mailing of notice to debtor, and applicability of notice requirement, as follows:
'44-14-162.3. (a) The notice requirement of Code Section 44-14-162.2 shall apply only to the exercise of a power of sale of property all or part of which is to be used as a dwelling place by the debtor at the time the mortgage, security deed, or lien contract is entered into. (b) No waiver or release of the notice requirement of Code Section 44-14-162.2 shall be valid when made in or contemporaneously with the security instrument containing the power of nonjudicial foreclosure sale; but, notwithstanding the requirements of Code Sections 44-14-162.1,44-14-162.2, this Code section, and Code Section 44-14-162.4, a subsequent quitclaim deed in lieu of foreclosure shall be valid and effective as such.'

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

616

GENERAL ACTS AND RESOLUTIONS, VOL. I

INSURANCE- AGENT LICENSE APPLICANTS; MANAGING GENERAL AGENTS.

No. 107 (Senate Bill No. 144).

AN ACT

To amend Title 33 of the Official Code of Georgia Annotated, relating to insurance, so as to repeal the requirement that an applicant for an insurance agent's license shall be appointed an agent by an authorized insurer prior to issuance of the license; to prohibit a licensed managing general agent from charging a fully earned policy fee in connection with the issuance of an insurance policy unless such fee is part of the insurer's rate filing; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Title 33 of the Official Code of Georgia Annotated, relating to insurance, is amended by revising subsection (a) of Code Section 33-23-5, relating to qualifications and requirements for license, as follows:
'(a) For the protection of the people of this state, the Commissioner shall not issue, continue, or permit to exist any license, except in compliance with this chapter and except as provided in Code Sections 33-23-3,33-23-4,33-23-12, 33-23-13, 33-23-14, 33-23-16, 33-23-17,33-23-29,33-23-29.1, and 33-23-37. The Commissioner shall not issue a license to any individual applicant for a license who does not meet or conform to qualifications or requirements set forth in paragraphs ( 1) through (7) of this subsection:
(1) The individual applicant shall be a resident of this state who shall reside and be present within this state for at least six months of every year or an individual whose principal place of business is within this state; provided, however, that in cities, towns, or trade areas, either unincorporated or composed of two or more incorporated cities or towns, located partly within and partly outside this state, requirements as to residence and principal place of business shall be deemed met if the residence or place of business is located in any part of the city, town, or trade area and if the other state in which the city, town, or trade area is located in part has established like requirements as to residence and place of business. The individual applying for an agent, adjuster, or counselor license shall be at least 18 years of age; (2) If applying for an agent's license for property and casualty insurance, the applicant shall not use or intend to use such license for the purpose of obtaining a rebate or commission upon controlled business; and the applicant shall not in any calendar year effect controlled business that will aggregate as much as 25 percent of the volume of

GEORGIA LAWS 2009 SESSION

617

insurance effected by such applicant during such year, as measured by the comparative amounts of premiums; (3) The individual applicant shall be of good character; (4) The individual applicant shall pass any written examination required for the license by this article, provided that:
(A) An individual who applies for an insurance agent's license in this state who was previously licensed for the same lines of authority in another state shall not be required to complete any prelicensing education or examination. This exemption shall only be available if the individual is currently licensed in that state or if the application is received within 90 days of the cancellation of the applicant's previous license and if the prior state issues a certification that, at the time of cancellation, the applicant was in good standing in that state or the state's producer data base records maintained by the National Association oflnsurance Commissioners, its affiliates, or subsidiaries indicate that the agent is or was licensed in good standing for the line ofauthority requested; and (B) An individual licensed as an insurance agent in another state who moves to this state shall make application within 90 days of establishing legal residence to become a resident licensee pursuant to Code Section 33-23-8. No prelicensing education or examination shall be required of that individual to obtain a license for any line of authority previously held in the prior state except where the Commissioner determines otherwise by rule or regulation; (5) If applying for a license as counselor, the applicant shall show that he or she either has had five years' experience as an agent, subagent, or adjuster or in some other phase of the insurance business or has sufficient teaching or educational qualifications or experience which, in the opinion of the Commissioner, has qualified the applicant to act as such counselor; and the applicant shall pass such examination as shall be required by the Commissioner unless such applicant is exempted by the Commissioner, based on the applicant's experience and qualifications and pursuant to a regulation adopted by the Commissioner; (6) If applying for an agent's license, limited subagent's license, or adjuster's license, no applicant shall be qualified therefor or be so licensed unless he or she has successfully completed classroom courses in insurance satisfactory to the Commissioner at a school which has been approved by the Commissioner; and (7) The Commissioner shall by rule or regulation establish criteria and procedures for the scope of prelicensing requirements and exemptions, if any, to the prelicensing or examination requirements.

SECTION 2. Said title is further amended by revising subsection (b) of Code Section 33-23-5.1, relating to conviction data, as follows:
'(b) With respect to the requirements of paragraph (3) of subsection (a) of Code Section 33-23-5, the Commissioner shall be authorized to obtain conviction data with

618

GENERAL ACTS AND RESOLUTIONS, VOL. I

respect to an applicant as authorized in this Code section. The Commissioner shall submit to the Georgia Crime Information Center two complete sets of fingerprints of the applicant for appointment or employment, the required records search fees, and such other information as may be required. Upon receipt of such material, the Georgia Crime Information Center shall promptly forward one set of fingerprints to the Federal Bureau of Investigation for a search of bureau records and the preparation of an appropriate report concerning such records search and shall retain the other set and promptly conduct a search of its own records and all records to which the center has access. The Georgia Crime Information Center shall notify the Commissioner in writing of any derogatory finding, including, but not limited to, any conviction data regarding the fingerprint records check or ifthere is no such finding. All conviction data received by the Commissioner shall not be a public record, shall be privileged, and shall not be disclosed to any other person or agency except as provided in this Code section and except to any person or agency that otherwise has a legal right to inspect the employment file. All such records shall be maintained by the Commissioner pursuant to the laws regarding such records and the rules and regulations ofthe Federal Bureau ofinvestigation and the Georgia Crime Information Center, as applicable."

SECTION 3. Said title is further amended in Chapter 47, relating to managing general agents, by adding a new Code section to read as follows:
'33-47-4.1. No licensed managing general agent may charge a fully earned policy fee in connection with the issuance of an insurance policy unless such fee shall be a component of the insurer's rate filing. No fully earned policy fee may exceed $25.00."

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

GEORGIA LAWS 2009 SESSION

619

CONSERVATION- BUFFERS; STATE WATERS.

No. 108 (Senate Bill No. 155).

AN ACT

To amend Code Section 12-7-6 of the Official Code of Georgia Annotated, relating to best management practices for control of soil erosion and sedimentation and minimum requirements for rules, regulations, ordinances, or resolutions, so as to change certain provisions relating to 25 foot buffers along state waters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Code Section 12-7-6 ofthe Official Code of Georgia Annotated, relating to best management practices for control of soil erosion and sedimentation and minimum requirements for rules, regulations, ordinances, or resolutions, is amended by revising subparagraph (b)(15)(A) as follows:
'(15)(A) There is established a 25 foot buffer along the banks of all state waters, as measured horizontally from the point where vegetation has been wrested by normal stream flow or wave action, except:
(i) As provided by paragraph (16) of this subsection; (ii) Where the director determines to allow a variance that is at least as protective of natural resources and the environment; (iii) Where otherwise allowed by the director pursuant to Code Section 12-2-8; (iv) Where a drainage structure or a roadway drainage structure must be constructed, provided that adequate erosion control measures are incorporated in the project plans and specifications and are implemented; or (v) Along any ephemeral stream. As used in this division, the term 'ephemeral stream' means a stream:
(I) That under normal circumstances has water flowing only during and for a short duration after precipitation events; (II) That has the channel located above the ground-water table year round; (III) For which ground water is not a source of water; and (IV) For which runoff from precipitation is the primary source of water flow. Unless exempted under division (v) of this subparagraph, buffers of at least 25 feet established pursuant to Part 6 of Article 5 of Chapter 5 of this title shall remain in force unless a variance is granted by the director as provided in this paragraph.'

620

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

ELECTIONS - GENERAL ASSEMBLY -ETHICS AND CAMPAIGN FINANCE; REVISE; LEGISLATORS; INCOME TAX NONFILERS; TAX DEFAULTERS.
No. 109 (Senate Bill No. 168).
AN ACT
To revise provisions relating to ethics and campaign finance; to change provisions relating to the powers and duties of the State Ethics Commission; to amend Chapter 5 of Title 21 of the Official Code of Georgia Annotated, the "Ethics in Government Act," so as to revise provisions relating to prohibitions against campaign contributions by regulated entities to their elected regulators; to revise provisions relating to contributions by officers and employees of regulated entities; to require disclosure report identification of contributions by officers and employees; to prohibit elected regulators from soliciting contributions from officers and employees; to change certain provisions regarding filing campaign disclosure reports and financial disclosure reports; to eliminate duplicate copy filing of certain disclosure reports with county election superintendents; to provide that electronic filing shall constitute an affirmation that a report is true, complete, and correct and that no written affirmation shall be required for electronic filings; to amend Chapter 1 of Title 28 of the Official Code of Georgia Annotated, relating to the General Assembly in general, so as to provide for certain reports with respect to members failing to file tax returns or in default on tax payments; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 5 of Title 21 of the Official Code of Georgia Annotated, the "Ethics in Government Act," is amended in Code Section 21-5-6, relating to powers and duties of the State Ethics Commission, by revising paragraphs (7) and (8) of subsection (a) as follows:

GEORGIA LAWS 2009 SESSION

621

'(7) To adopt in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," such rules and regulations as are specifically authorized in this chapter; and (8) To do any and all things necessary or convenient to enable it to perform wholly and adequately its duties and to exercise the powers specifically authorized to it in this chapter.*

SECTION 2. Said chapter is further amended in Code Section 21-5-30.1, relating to prohibited contributions by regulated entities to elected executive officers or candidates, by revising subsection (d) as follows:
'(d) Nothing contained in this Code section shall be construed to prevent any person who may be employed by a regulated entity, including a person in whose name a license or lease is held, or who is an officer of a regulated entity from voluntarily making a campaign contribution from that person's personal funds to or on behalf of a person holding office as an elected executive officer regulating such entity or to or on behalf of a candidate for the office ofan elected executive officer regulating such entity or to or on behalf of a campaign committee of any such candidate; provided, however, that:
(l) The elected executive officer or candidate receiving one or more campaign contributions described in this subsection shall in his or her disclosure report under Code Section 21-5-34 separately identify each contribution and the total ofcontributions which he or she knows or should have reason to know are described in this subsection; (2) It shall be unlawful for any regulated entity or elected executive officer to require another by coercive action to make any such contribution."

SECTION 3. Said chapter is further amended in Code Section 21-5-34, relating to disclosure reports, by revising subparagraph (a)( 1)(A) and the introductory language of subsection (e) as follows:
'(a)(1 )(A) The candidate or the chairperson or treasurer of each campaign committee organized to bring about the nomination or election ofa candidate for any office, except county and municipal offices, and the chairperson or treasurer of every campaign committee designed to bring about the recall of a public officer or to oppose the recall of a public officer or designed to bring about the approval or rejection by the voters of any proposed constitutional amendment, state-wide proposed question, or state-wide referendum shall sign and file with the commission the required campaign contribution disclosure reports. '(e) Any person who makes contributions to, accepts contributions for, or makes expenditures on behalf of candidates, and any independent committee, shall file a registration with the commission in the same manner as is required of campaign committees prior to accepting or making contributions or expenditures. Such persons, other than independent committees, shall also file campaign contribution disclosure reports

622

GENERAL ACTS AND RESOLUTIONS, VOL. I

in the same places and at the same times as required of the candidates they are supporting. The following persons shall be exempt from the foregoing registration and reporting requirements:"

SECTION 4. Said chapter is further amended in Code Section 21-5-34.1, relating to filing campaign contribution disclosure reports electronically, by revising subsection (e) as follows:
"(e) The electronic filing of any campaign contribution disclosure report required under this article shall constitute an affirmation that the report is true, complete, and correct:

SECTION 5. Said chapter is further amended in Code Section 21-5-50, relating to filing of financial disclosure statements by public officers and candidates, by revising subsection (e) as follows:
"(e) The electronic filing of any financial disclosure statement required under this article shall constitute an affirmation that the statement is true, complete, and correct."

SECTION 6. Said chapter is further amended by revising Code Section 21-5-51, relating to verification of financial disclosure statements, and Code Section 21-5-52, relating to mail filing of financial disclosure statements, as follows:
"21-5-51. The financial disclosure statements required under this article shall be verified by oath or affirmation of the public officer filing the statement, such oath or affirmation to be taken before an officer authorized to administer oaths, unless filed electronically in which case the electronic filing shall constitute an affirmation that the statement is true, complete, and correct.

21-5-52. (a) The mailing of the notarized financial disclosure affidavit by United States mail, with adequate postage affixed, within the required filing time as determined by the official United States postage date cancellation, shall be prima-facie proof of filing when the disclosure statement is not filed electronically. (b) It shall be the duty of the commission or any other officer or body which receives for filing any document required to be filed under this chapter to maintain with the filed document a copy of the postal markings or statutory overnight delivery service markings of any envelope, package, or wrapping in which the document was delivered for filing if mailed or sent after the date such filing was due."

SECTION 7. Chapter I of Title 28 of the Official Code of Georgia Annotated, relating to the General Assembly in general, is amended by adding a new Code section to read as follows:

GEORGIA LAWS 2009 SESSION

623

'28-1-8. (a) The state revenue commissioner shall be required to report to the chairperson of the Senate Ethics Committee the name of any Senator who has not filed a Georgia personal income tax return required by law to be filed by the Senator or is a defaulter for state income taxes in violation of Article II, Section II, Paragraph III of the Constitution. The state revenue commissioner shall be required to report to the chairperson of the House Committee on Ethics the name of any Representative who has not filed a Georgia personal income tax return required by law to be filed by the Representative or is a defaulter for state income taxes in violation of Article II, Section II, Paragraph III of the Constitution. (b) The state revenue commissioner shall give written notice by registered or certified mail, return receipt requested, or statutory overnight delivery of any report under this Code section to the member of the General Assembly who is to be named at least 30 days prior to making such report. (c) Upon receipt of a report under this Code section, the chairperson of the committee to whom the report is made shall undertake an appropriate investigation of the matter and report the findings of the investigation to the presiding officer of his or her chamber. (d) Nothing in this Code section shall apply with respect to a tax return for which the taxpayer has timely applied for and received an unexpired extension of time to file. (e) The provisions of this Code section shall control over the provisions of Code Section 48-7-60 or any other law relating to confidential treatment of state income tax return information.'

SECTION 8. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 9. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

624

GENERAL ACTS AND RESOLUTIONS, VOL. I

COURTS- MAGISTRATES; PROBATE JUDGES; TRAINING SUSPENDED.

No. 110 (Senate Bill No. 199).

AN ACT

To amend Title 15 of the Official Code of Georgia Annotated, relating to courts, so as to provide for the suspension for one year of the otherwise required annual training for magistrates and probate judges; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Title 15 of the Official Code of Georgia Annotated, relating to courts, is amended in Code Section 15-9-1.1, relating to training requirements for probate judges, by revising subsection (c) as follows:
'(c)(1) Each judge of the probate court shall be required to complete additional training prescribed by the Probate Judges Training Council and the Institute of Continuing Judicial Education of Georgia during each year he or she serves as a judge of the probate court after the initial year oftraining and shall file a certificate of such additional training issued by the Institute of Continuing Judicial Education of Georgia with the Probate Judges Training Council. (2) For the calendar years 2009 and 2010 only, the Probate Judges Training Council may suspend, in whole or in part, the training requirements of this subsection. If the council suspends such requirements, and if any probate judge has completed all or a portion of the required training prior to suspension of the training requirements, credit for the training so completed shall be carried over and applied to calendar year 2010 or 2011.'

SECTION 2. Said title is further amended in Code Section 15-10-13 7, relating to training requirements for magistrates, by revising subsection (c) as follows:
(c)( 1) In order to maintain the status of a certified magistrate judge, each person certified as such shall complete 20 hours of additional training per annum during each calendar year after the year of his or her initial certification in which he or she serves as a magistrate judge. (2) For the calendar years 2009 and 2010 only, the council may suspend, in whole or in part, the training requirements of this subsection. If the council suspends such requirements, and if any magistrate judge has completed all or a portion of the required

GEORGIA LAWS 2009 SESSION

625

training prior to suspension of the training requirements, credit for the training so completed shall be carried over and applied to calendar year 2010 or 2011."

SECTION 3. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

TORTS- MANUFACTURER LIABILITY.
No. Ill (Senate Bill No. 213).
AN ACT
To amend Chapter I of Title 51 of the Official Code of Georgia Annotated, relating to general provisions relative to torts, so as to specify manufacturer liability in certain cases; to provide for related matters; to provide for an effective date and applicability; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 1 of Title 51 of the Official Code of Georgia Annotated, relating to general provisions relative to torts, is amended by revising Code Section 51-1-11, relating to when privity is required to support an action, product liability actions, and time limitation therefor, by adding a new subsection to read as follows:
'(d) Irrespective of privity, a manufacturer shall not be held liable for the manufacture of a product alleged to be defective based on theories of market share or enterprise, or other theories of industry-wide liability. (e) Irrespective of privity, a manufacturer of a product alleged to be defective shall not be held liable for a public nuisance based on theories of market share or enterprise, or other theories of industry-wide liability.'

626

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply to causes of action arising on or after such date.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

COURTS- VIOLENT DELINQUENTS; RELEASE NOTIFICATION.
No. 112 (Senate Bill No. 246).
AN ACT
To amend Part 5 of Article 1 of Chapter 11 of Title 15 of the Official Code of Georgia Annotated, relating to arrest and detention, so as to provide notice of the release of a child from detention under certain circumstances; to provide for definitions; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Part 5 of Article 1 of Chapter 11 of Title 15 of the Official Code of Georgia Annotated, relating to arrest and detention, is amended by adding a new Code section to read as follows:
'15-11-51. (a) As used in this Code section, the term:
(I) 'Notice' shall have the same meaning as set forth in Code Section 17-17-3. (2) 'Victim' shall have the same meaning as set forth in Code Section 17-17-3. (3) 'Violent delinquent act' means the commission, attempt to commit, conspiracy to commit, or solicitation of another to commit a delinquent act which if committed by an adult would constitute:
(A) A serious violent felony as defined by Code Section 17-10-6.1; (B) A designated felony as defined by Code Section 15-11-63; (C) Stalking or aggravated stalking as provided by Article 7 of Chapter 5 of Title 16; or (D) Any attempt to commit, conspiracy to commit, or solicitation of another to commit an offense enumerated in subparagraphs (A) through (C) of this paragraph.

GEORGIA LAWS 2009 SESSION

627

(b) If a child accused of a violent delinquent act is detained pending adjudication as provided by Code Sections 15-11-46.1 and 15-11-47, the juvenile court intake officer shall provide notice to the victim, whenever practicable, that such child is to be released from detention not less than 24 hours prior to such child's release from detention. (c) Not less than 48 hours prior to the release from detention of a child who has been adjudicated to have committed a violent delinquent act, the juvenile court intake officer shall, whenever practicable, provide notice to the victim of such pending release. (d) Notification need not be given unless the victim has expressed a desire for such notification and has provided the juvenile court intake officer with a current address and telephone number. It shall be the duty of the juvenile court intake officer to advise the victim of his or her right to notification and of the requirement of the victim's providing a primary and personal telephone number to which such notification shall be directed.'

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

GEORGIA MILITARY COLLEGE.
No. 113 (Senate Resolution No. 96).
A RESOLUTION
Urging the Board of Trustees and the president of Georgia Military College to maintain the current military programs at the military junior college ofGeorgia, Georgia Military College; and for other purposes.
WHEREAS, Georgia Military College is a public independentjunior college within the State of Georgia; and
WHEREAS, in 1950, Georgia Military College was designated as a United States Department of the Army Military Junior College, and today, it continues to accept a mission of developing military leaders; and

628

GENERAL ACTS AND RESOLUTIONS, VOL. I

WHEREAS, Georgia Military College is one of only five colleges in the United States authorized to award a commission as a 2nd Lieutenant in just two years time; and

WHEREAS, Georgia Military College has been designated by the United States Military Academy at West Point as one of only five preparatory colleges in the United States; and

WHEREAS, the Georgia General Assembly finds that it is essential for our national defense to encourage citizens in considering military leadership positions as honorable and rewarding professions; and

WHEREAS, Georgia Military College's military training programs are providing valuable assets to the Georgia National Guard, the Army Reserves, and to active United States Army forces; and

WHEREAS, a diverse junior college, Georgia Military College is coeducational and offers students a variety of clubs, student organizations, activities, and character development opportunities; and

WHEREAS, Georgia Military College takes great pride in alumni that include the former Secretary of Labor in the Ford Administration; former Deputy Postmaster General; former United States Congressman and Chairman of the House of Naval Affairs Committee and later Chairman of the House Armed Services Committee; former Governor of the State of Georgia; numerous Georgia General Assembly Senators and Representatives; many local government officials; and untold numbers of general officers and others who have served our country honorably during combat, disaster-relief, and other peacetime operations; and

WHEREAS, one distinction, however, separates Georgia Military College from every other junior college in this state: the school's military science program; and

WHEREAS, the military science program at Georgia Military College has a history of excellence and prominence not only in this state but also throughout this country and around the world; and

WHEREAS, it is in the best interests ofthis state to preserve the military science and military commissioning programs at Georgia Military College.

NOW, THEREFORE, BE IT RESOLVED BY THE GENERAL ASSEMBLY OF GEORGIA that this body hereby urges the Board of Trustees and the president of Georgia Military College to maintain the current military program at the military junior college of Georgia, Georgia Military College.

GEORGIA LAWS 2009 SESSION

629

BE IT FURTHER RESOLVED that Georgia Military College is hereby designated as the State of Georgia's Military Junior College.

BE IT FURTHER RESOLVED that the Secretary of the Senate is authorized and directed to transmit an appropriate copy of this resolution to the Board of Trustees and the president of Georgia Military College.

Approved May 4, 2009.

MOTOR VEHICLES -PUBLIC UTILITIES -MOTOR CARRIER PERMITTING; UNIFIED CARRIER REGISTRATION.
No. 114 (House Bill No. 57).
AN ACT
To amend Chapter 2 of Title 40 of the Official Code of Georgia Annotated, relating to registration and licensing of motor vehicles, so as to define certain terms and fees; to change certain provisions relating to motor carrier permitting; to designate the Department of Revenue as the agency responsible for the administration of the federal Unified Carrier Registration Act of 2005; to amend Title 46 of the Official Code of Georgia Annotated, relating to public utilities and public transportation, so as to repeal and reserve certain provisions; to provide that certain provisions are unenforceable; to provide that identification requirements shall comply with the applicable provisions of the federal Unified Carrier Registration Act of 2005; to provide for promulgation of rules; to provide exemptions from application of provisions; to provide for related matters; to provide for effective dates and applicability; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 2 of Title 40 of the Official Code of Georgia Annotated, relating to registration and licensing of motor vehicles, is amended by revising Code Section 40-2-1, relating to definitions, as follows:
.40-2-l. As used in this chapter, the term:
(l) 'Cancellation of vehicle registration' means the annulment or termination by formal action of the department of a person's vehicle registration because of an error or defect

630

GENERAL ACTS AND RESOLUTIONS, VOL. I

in the registration or because the person is no longer entitled to such registration. The cancellation of registration is without prejudice and application for a new registration may be made at any time after such cancellation. (2) 'Commissioner' means the state revenue commissioner. (3) 'Department' means the Department of Revenue. (4) 'Motor carrier' means:
(A) Any entity subject to the terms of the Unified Carrier Registration Agreement pursuant to 49 U.S.C. Section 14504a whether engaged in interstate or intrastate commerce, or both; or (B) Any entity defined by the commissioner, commissioner of public safety, or Public Service Commission who operates or controls commercial motor vehicles as defined in 49 C.F.R. Section 390.5, Title 46, or this chapter whether operated in interstate or intrastate commerce, or both. (5) 'Operating authority' means the registration required by 49 U.S.C. Section 13902,49 C.F.R. Part 365,49 C.F.R. Part 368, and 49 C.F.R. Section 392.9a. (6) 'Regulatory compliance inspection' means the examination of facilities, property, buildings, vehicles, drivers, employees, cargo, packages, records, books, or supporting documentation kept or required to be kept in the normal course of motor carrier business or enterprise operations. (7) 'Resident' means a person who has a permanent home or domicile in Georgia and to which, having been absent, he or she has the intention of returning. For the purposes of this chapter, there is a rebuttable presumption that any person who, except for infrequent, brief absences, has been present in the state for 30 or more days is a resident. (8) 'Revocation of vehicle registration' means the termination by formal action of the department of a vehicle registration, which registration shall not be subject to renewal or reinstatement, except that an application for a new registration may be presented and acted upon by the department after the expiration of the applicable period of time prescribed by law. (9) 'Suspension ofvehicle registration' means the temporary withdrawal by formal action of the department of a vehicle registration, which temporary withdrawal shall be for a period specifically designated by the department.'

SECTION 2. Said title is further amended by inserting a new article to read as follows:

'ARTICLE 6A

40-2-140. (a) The Department ofRevenue shall be the state agency responsible for the administration of the federal Unified Carrier Registration Act of2005, which includes participating in the

GEORGIA LAWS 2009 SESSION

631

development, implementation, and administration of the Unified Carrier Registration Agreement. (b) Every foreign or domestic motor carrier, leasing company leasing to a motor carrier, broker, or freight forwarder that engages in interstate commerce in this state shall register with the commissioner or a base state and pay all fees as required by the federal Unified Carrier Registration Act of 2005.
(c)(1) Any motor carrier, leasing company leasing to a motor carrier, broker, or freight forwarder that engages in intrastate commerce and operates a motor vehicle on or over any public highway of this state shall register with the commissioner and pay a fee determined by the commissioner. (2) No motor carrier shall be issued a registration unless there is filed with the commissioner or the Federal Motor Carrier Safety Administration or any successor agency a certificate of insurance for such applicant or holder, on forms prescribed by the commissioner, evidencing a policy of indemnity insurance by an insurance company licensed to do business in this state. Such policy shall provide for the protection of passengers in passenger vehicles and the protection of the public against the negligence of such motor carrier, and its servants or agents, when it is determined to be the proximate cause of any injury. The commissioner shall determine and fix the amounts of such indemnity insurance and shall prescribe the provisions and limitations thereof. The insurer shall file such certificate. Failure to file any form required by the commissioner shall not diminish the rights of any person to pursue an action directly against a motor carrier's insurer. The insurer may file its certificate of insurance electronically with the commissioner. (3) The commissioner shall have the power to permit self-insurance in lieu of a policy of indemnity insurance whenever in his or her opinion the financial ability of the motor carrier so warrants. (4) Any person having a cause of action, whether arising in tort or contract, under this Code section may join in the same cause of action the motor carrier and its insurance carrier. (d) Before any motor carrier engaged in exempt passenger intrastate commerce shall operate any motor vehicle on or over any public highway of this state, the motor carrier shall register with the commissioner and pay a fee determined by the commissioner. (e) In addition to any requirements under the federal Unified Carrier Registration Act of 2005, motor carriers required to have operating authority shall fulfill all applicable requirements for obtaining operating authority prior to any operation of a motor vehicle to which such requirements apply. (t) The commissioner shall collect the fees imposed by this Code section and may establish rules and regulations and prescribe such forms as are necessary to administer this Code section and the federal Unified Carrier Registration Act of 2005. Notwithstanding the provisions of Code Sections 40-2-131 and 48-2-17, the commissioner shall retain and

632

GENERAL ACTS AND RESOLUTIONS, VOL. I

utilize such fees for motor carrier safety programs and enforcement and administration of this article. (g) The commissioner of public safety, and persons he or she designates pursuant to Chapter 2 ofTitle 35, shall have the authority to perform regulatory compliance inspections under the provisions of Article 5 of Chapter 2 of Title 35 for purposes of determining compliance with laws and regulations, the enforcement and administration of which is the responsibility of the Department of Public Safety. (h) Every officer, agent, or employee of any corporation and every person who fails to comply with this article and any order, rule, or regulation of the Public Service Commission, Department of Public Safety, or Department of Revenue, or who procures, aids, or abets therein, shall be guilty of a misdemeanor. Misdemeanor violations of this article may be prosecuted, handled, and disposed of in the manner provided for in Chapter 13 of this title.'

SECTION 3. Title 46 of the Official Code of Georgia Annotated, relating to public utilities and public transportation, is amended by revising Code Section 46-7-12.1, relating to motor carriers' requirements as to obtaining indemnity insurance or self-insurance before issuance ofpermit, in its entirety as follows:
'46-7-12.1. (a) As used in this Code section, the term:
(1) 'Motor carrier transportation contract' means a contract, agreement, or understanding covering:
(A) The transportation of property for compensation or hire by the motor carrier; (B) Entrance on property by the motor carrier for the purpose of loading, unloading, or transporting property for compensation or hire; or (C) A service incidental to activity described in subparagraph (A) or (B) of this paragraph, including, but not limited to, storage of property. Motor carrier transportation contract shall not include the Uniform Intermodal Interchange and Facilities Access Agreement administered by the Intermodal Associaton of North America or other agreements providing for the interchange, use, or possession of intermodal chassis, containers, or other intermodal equipment. (2) 'Promisee' means the promisee and any agents, employees, servants, or independent contractors who are directly responsible to the promisee except for motor carriers party to a motor carrier transportation contract with a promisee and such motor carrier's agents, employees, servants, or independent contractors directly responsible to such motor carrier. (b) Notwithstanding any provision of law to the contrary, a provision, clause, covenant, or agreement contained in, collateral to, or affecting a motor carrier transportation contract that purports to indemnify, defend, or hold harmless, or has the effect of indemnifying, defending, or holding harmless, the promisee from or against any liability for loss or

GEORGIA LAWS 2009 SESSION

633

damage resulting from the negligence or intentional acts or omissions of the promisee is against the public policy of this state and is void and unenforceable.'

SECTION 4. Said title is further amended by repealing and reserving subsections (a) through (d) of Code Section 46-7-15, relating to registration and licensing of motor carriers and cities and counties barred from levying taxes on carriers.

SECTION 5. Said title is further amended by repealing Code Section 46-7-15.1, relating to motor carrier of property permits, in its entirety.

SECTION 6. Said title is further amended by repealing and reserving Code Section 46-7-16, relating to registration and insurance for motor carriers engaged solely in interstate commerce; emergency, temporary, or trip-lease vehicle registration permits; late registration and identification; reciprocal agreements; and certificate not required.

SECTION 7. Said title is further amended by revising Code Section 46-7-26, relating to the authority of the commissioner to promulgate rules and regulations for safety, as follows:
'46-7-26. (a) The commissioner of public safety shall have the authority to promulgate rules and regulations for the safe operation of motor vehicles and drivers and the safe transportation ofhazardous materials. Any such rules and regulations promulgated or deemed necessary by the commissioner of public safety shall include the following:
(1) Every motor vehicle and all parts thereof shall be maintained in a safe condition at all times; and the lights, brakes, and equipment shall meet such safety requirements as the commissioner of public safety shall from time to time promulgate; (2) Every driver employed to operate a motor vehicle for a motor carrier shall be at least 18 years of age, of temperate habits and good moral character, possess a valid driver's license, not use or possess prohibited drugs or alcohol while on duty, and shall be fully competent to operate the motor vehicle under his or her charge; (3) Accidents arising from or in connection with the operation of motor common or contract carriers shall be reported to the commissioner oftransportation in such detail and in such manner as the commissioner of transportation may require; and (4) The commissioner of public safety shall require every motor common, contract, exempt, and private carrier's vehicles to have attached to each unit or vehicle such distinctive markings as shall be adopted by the commissioner of public safety. Such identification requirements shall comply with the applicable provisions of the federal Unified Carrier Registration Act of 2005.

634

GENERAL ACTS AND RESOLUTIONS, VOL. I

(b) Regulations governing the safe operation of motor vehicles and drivers and the safe transportation of hazardous materials may be adopted by administrative order, including, but not limited to, referencing compatible federal regulations or standards without compliance with the procedural requirements of Chapter 13 of Title 50, provided that such compatible federal regulations or standards shall be maintained on file by the Department of Public Safety and made available for inspection and copying by the public, by means including, but not limited to, posting on the department's computer Internet site. The commissioner of public safety may comply with the filing requirements of Chapter 13 of Title 50 by filing with the office of the Secretary of State merely the name and designation of such rules, regulations, standards, and orders. The courts shall take judicial notice of rules, regulations, standards, or orders so adopted or published. (c) The commissioner of public safety may, pursuant to rule or regulation, specify and impose civil monetary penalties for violations of laws, rules, and regulations relating to driver and motor carrier safety and transportation of hazardous materials. Except as may be hereafter authorized by law, the maximum amount of any such monetary penalty shall not exceed the maximum penalty authorized by law or rule or regulation for the same violation immediately prior to July 1, 2005.'

SECTION 8. Said title is further amended by revising Code Section 46-7-37, relating to private carriers excepted from application of article; safety rules authorized; and certificates or permits not required, as follows:
'46-7-37. (a) Except as otherwise provided in this Code section, this article shall not apply to private carriers engaged exclusively in the transportation of goods belonging to the individual, firm, partnership, corporation, or association owning, controlling, operating, or managing the motor vehicle in private transportation over any public highway in this state. (b) Private carriers shall be subject to the requirements of Code Sections 46-7-26 and 46-7-27, as well as the jurisdiction ofthe commissioner ofpublic safety, pursuant to Article 5 of Chapter 2 of Title 35. (c) Private carriers are not required to hold certificates or permits issued by the commi0SSi0 on.

SECTION 9. Said title is further amended by revising Code Section 46-7-39, relating to the penalty for failure to comply with Chapter 7 of such title, as follows:
'46-7-39. (a) Every officer, agent, or employee of any corporation and every person who violates or fails to comply with this chapter relating to the regulation of motor carriers or any order, rule, or regulation of the Public Service Commission, Department of Public Safety, or

GEORGIA LAWS 2009 SESSION

635

Department of Revenue, or who procures, aids, or abets therein, shall be guilty of a misdemeanor. (b) No person shall drive or operate, or cause the operation of, a motor vehicle in violation ofan out-of-service order. As used in this subsection, the term 'out-of-service order' means a temporary prohibition against operating as a carrier or driving or moving a motor vehicle, freight container or any cargo thereon, or any package containing a hazardous material. (c) Misdemeanor violations of this chapter may be prosecuted, handled, and disposed of in the manner provided for by Chapter 13 of Title 40.'

SECTION 10. (a) Section 3 of this Act shall become effective on July 1, 2009, and shall apply to contracts entered into on or after such date. (b) Sections 4 and 5 of this Act shall become effective October I, 2009, for the purpose ofadopting rules and regulations to implement the federal Unified Carrier Registration Act of2005. (c) The remaining sections of this Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 11. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

INSURANCE- INSURANCE CONTRACTS; MINIMUM NUMBER OF EMPLOYEES.
No. 115 (House Bill No. 80).
AN ACT
To amend Code Section 33-24-6 of the Official Code of Georgia Annotated, relating to consent of an insured to an insurance contract and exceptions, so as to change the minimum number of employees required to be covered under an insurance contract or contracts held by a corporation or trustee; to provided for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

636

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 1. Code Section 33-24-6 of the Official Code of Georgia Annotated, relating to consent of an insured to an insurance contract and exceptions, is amended by revising paragraph (5) of subsection (a) as follows:
'(5) A corporation not described in paragraph (4) of this subsection may effectuate insurance upon its employees in whom it has an insurable interest, and a trustee of a trust established by a corporation providing life, health, disability, retirement, or similar benefits may effectuate insurance upon employees for whom such benefits are to be provided if the insurance contract or contracts held by such corporation or trustee cover at least two employees. For purposes of this paragraph, any employee of a group of corporations consisting of a parent corporation and its directly or indirectly owned subsidiaries shall be considered to be an employee of each corporation within that group; or'

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

REVENUE- SALES TAX EXEMPTION; AIRCRAFT MAINTENANCE OR REPAIR.
No. 116 (House Bill No. 116).
AN ACT
To amend Code Section 48-8-3 of the Official Code of Georgia Annotated, relating to exemptions from sales and use tax, so as to provide for an exemption for a limited period of time regarding the sale or use of engines, parts, equipment, or other tangible personal property used in the maintenance or repair of certain aircraft; to repeal conflicting Jaws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Code Section 48-8-3 ofthe Official Code of Georgia Annotated, relating to exemptions from sales and use tax, is amended by revising paragraph (86) as follows:

GEORGIA LAWS 2009 SESSION

637

'(86) For the period commencing on July I, 2007, and ending on June 30,2011, the sale or use of engines, parts, equipment, and other tangible personal property used in the maintenance or repair of aircraft when such engines, parts, equipment, and other tangible personal property are installed on such aircraft that is being repaired or maintained in this state so long as such aircraft is not registered in this state.'

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

REVENUE- SALES TAX EXEMPTION; SCHOOL SUPPLIES; ENERGY OR WATER EFFICIENT PRODUCTS.
No. 117 (House Bill No. 120).
AN ACT
To amend Code Section 48-8-3 of the Official Code of Georgia Annotated, relating to exemptions from state sales and use tax, so as to provide for an exemption with respect to the sale of certain school supplies, clothing, footwear, computers, and computer related accessories for a limited period oftime; to provide for an exemption from sales and use tax with respect to certain sales of certain energy efficient products or water efficient products for a limited period of time; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Code Section 48-8-3 ofthe Official Code of Georgia Annotated, relating to exemptions from state sales and use tax, is amended by revising subparagraph (A) of paragraph (75) as follows:
'(75)(A) The sale of any covered item. The exemption provided by this paragraph shall apply only to sales occurring during a period commencing at 12:01 A.M. on July 30, 2009, and concluding at 12:00 Midnight on August 2, 2009.'

638

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 2. Said Code section is further amended by revising subparagraph (A) of paragraph (82) as follows:
'(82)(A) Purchase of energy efficient products or water efficient products with a sales price of $1,500.00 or less per product purchased for noncommercial home or personal use. The exemption provided by this paragraph shall apply only to sales occurring during a period commencing at 12:01 A.M. on October 1, 2009, and concluding at 12:00 Midnight on October 4, 2009."

SECTION 3. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

EDUCATION- SCHOOL YEAR; 180 DAYS; TEACHER CONTRACTS; FULL-DAY KINDERGARTEN; FOOD PERSONNEL BASE PAY; MENTAL STATE; ELEMENTS OF OFFENSE; VETERANS DAY.
No. 118 (House Bill No. 193).
AN ACT
To amend Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to elementary and secondary education, so as to provide for a 180 day school year or the equivalent thereof; to revise a provision relating to a full-day kindergarten program; to revise certain provisions relating to the base pay of school food and nutrition personnel; to revise a provision relating to the residential high school program for gifted youth; to revise the definition of the term "school year" relating to teacher contracts; to provide that a mental state of knowledge and intention or recklessness may be an element of such offense; to provide for an effective date and for applicability; to revise provisions relating to instructional activity concerning Veterans Day; to provide that public elementary and secondary schools shall be closed on November 11 of each year in honor of Veterans Day; to provide for related matters; to repeal conflicting laws; and for other purposes.

GEORGIA LAWS 2009 SESSION

639

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to elementary and secondary education, is amended in Code Section 20-2-151, relating to general and career education programs, by revising subparagraph (b)(l)(A) as follows:
'(l)(A) All local school systems may offer a full-day kindergarten program. For purposes of this subsection, the term 'full-day kindergarten program' means a student is provided classroom instruction for a minimum of four and one-half hours daily for a 180 day school year, or the equivalent thereof as determined in accordance with State Board of Education guidelines:
SECTION 2. Said chapter is further amended in Code Section 20-2-168, relating to distribution of federal funds, combined purchase of supplies and equipment, minimum school year, summer school programs, and year-round operation, by revising paragraph (1) of subsection (c) as follows:
'(c)(l) Except as otherwise provided in this Code section, public elementary and secondary schools of this state receiving state aid under this article may provide each eligible student with access to no less than 180 school days of education each fiscal year, or the equivalent thereof as determined in accordance with State Board of Education guidelines. The State Board of Education shall define a school year, which shall be no less than 180 days of instruction in accordance with the provisions of this subsection, or the equivalent thereof; shall define the length of the school day, based on a 180 day school year, and equivalent lengths; and shall provide that all public elementary and secondary schools, beginning in the 20 I0-20 II school year, may be closed for instruction on November II of each year to enable students, teachers, and administrators to participate in Veterans Day programs to honor veterans of the armed forces:
SECTION 3. Said chapter is further amended in Code Section 20-2-187, relating to state-wide school lunch program, instruction in nutrition, hygiene, etiquette, and social graces, and school food and nutrition, by amending paragraph (2) of subsection (c) as follows:
*(2) The base payment shall be calculated on the basis of 1,520 hours in an annual school year for a full-time equivalent school lunch position, multiplied by an amount not less than $161.00 per month for 12 months. Future annual increases in the base payment shall reflect the same percentage increase provided by the state for other state funded positions. The state board shall annually establish a state performance standard and shall determine the number of full-time equivalent school lunch positions needed to plan, prepare, and serve meals based on the state performance standard and the average daily number of student lunches served during the preceding school year.'

640

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 4. Said chapter is further amended in Code Section 20-2-306, relating to honors program and residential high school program, by revising subsection (b) as follows:
'(b) The State Board of Education is authorized to inaugurate and operate a residential high school program for highly gifted and talented youth of this state. This residential high school program shall consist only of students in the eleventh and twelfth grades. Enrollment shall be by student application and on a voluntary basis; provided, however, that the parent or legal guardian of each student must have signed an agreement authorizing enrollment in this program. This program shall be operated during the normal school year for a minimum of 180 days, or the equivalent thereof as determined in accordance with State Board of Education guidelines, in cooperation with one or more of the state universities or colleges from funds provided by the General Assembly. The state board is authorized to enter into cooperative agreements with the Board of Regents of the University System of Georgia concerning the operation and sharing of costs of this program. The state board shall prescribe policy, regulations, standards, and criteria as needed for the effective operation of this program.

SECTIONS. Said chapter is further amended in Code Section 20-2-942, relating to procedure for nonrenewal after acceptance by teacher of school year contract for fourth consecutive school year, procedure for nonrenewal by another local board of education, professional certificated personnel, rights of school administrators, and tenure, by revising paragraph (2) of subsection (a) as follows:
'(2) 'School year' means a period of at least 180 school days, or the equivalent thereof as determined in accordance with State Board of Education guidelines, beginning in or about September and ending in or about June.'

SECTION SA. Said chapter is further amended by revising Code Section 20-2-147, relating to instructional activity concerning Veterans Day, as follows:
'20-2-147. On a school day immediately preceding or as close to the annual observance of Veterans Day as practicable as determined by a school's scheduled curriculum, each elementary and secondary school may provide for instructional activity focusing on the contributions of veterans and the importance of the armed forces of the United States. Beginning in the 2010-2011 school year, public elementary and secondary schools may be closed on Veterans Day as provided in paragraph (1) of subsection (c) of Code Section 20-2-168.'

GEORGIA LAWS 2009 SESSION

641

SECTION 5B. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval. Section SA of this Act shall apply with respect to conduct on or after that date, and conduct prior to that date shall continue to be governed by prior law.

SECTION 6. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

COURTS- TRIAL JURIES; ELECTRIC MEMBERSHIP CORPORATION MEMBERS AS JURORS.
No. 119 (House Bill No. 195).
AN ACT
To amend Article 5 of Chapter 12 of Title 15 of the Official Code of Georgia Annotated, relating to trial juries, so as to provide that members of an electric membership corporation may be competent to serve as a juror under certain circumstances in cases in which the electric membership corporation is a party or is interested; to provide for related matters; to provide an effective date; to repeal conflicting laws; for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Article 5 ofChapter 12 ofTitle 15 ofthe Official Code ofGeorgia Annotated, relating to trial juries, is amended by adding a new Code section to read as follows:
'15-12-137.1. A member of an electric membership corporation shall not be incompetent, based solely on such membership, to serve as a juror in a case in which the electric membership corporation is a party or is interested; provided, however, that if the judge in such case finds that the nature of the case or that the circumstances surrounding a potential juror's membership in an electric membership corporation may cause a potential juror to have a bias or prejudice for or against the electric membership corporation in that case, the judge may grant a party's motion to disqualify such member for cause.'

642

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

REVENUE-SALESTAX EXEMPTION; JET FUEL.
No. 120 (House Bill No. 212).
AN ACT
To amend Code Section 48-8-3 of the Official Code of Georgia Annotated, relating to exemptions from sales and use taxation, so as to continue for a limited period of time the partial exemption from the state sales and use tax on certain sales or uses of jet fuel; to continue for a limited period of time the exemption from a certain local sales and use tax on certain sales or uses ofjet fuel; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Code Section 48-8-3 ofthe Official Code of Georgia Annotated, relating to exemptions from sales and use taxation, is amended by revising subparagraph (H) of paragraph (33.1) as follows:
'(H) The exemption provided for in this paragraph shall apply only as to transactions occurring on or after July 1, 2009, and prior to July 1, 2011 ;'
SECTION 2. This Act shall become effective on July I, 2009.

GEORGIA LAWS 2009 SESSION

643

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

CIVIL PRACTICE- WRITS OF MANDAMUS OR PROHIBITION; JUDGE, REMOVAL.
No. 121 (House Bill No. 221).
AN ACT
To amend Chapter 6 of Title 9 of the Official Code of Georgia Annotated, relating to extraordinary writs, so as to provide that no writ of mandamus or writ of prohibition to compel the removal of a judge shall issue where no motion to recuse has been filed in a timely manner or where a motion to recuse has been denied; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 6 of Title 9 of the Official Code of Georgia Annotated, relating to extraordinary writs, is amended by revising Code Section 9-6-20, relating to when mandamus may issue, as follows:
'9-6-20. 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 ifthere is no other specific legal remedy for the legal rights; provided, however, that no writ of mandamus to compel the removal of a judge shall issue where no motion to recuse has been filed, if such motion is available, or where a motion to recuse has been denied after assignment to a separate judge for hearing.'
SECTION 2. Said chapter is further amended by revising Code Section 9-6-40, relating to prohibition counterpart of mandamus, as follows:
'9-6-40. The writ of prohibition is the counterpart of mandamus, to restrain subordinate courts and inferior judicial tribunals from exceeding their jurisdiction where no other legal remedy or

644

GENERAL ACTS AND RESOLUTIONS, VOL. I

relief is given. The granting or refusal thereof is governed by the same principles of right, necessity, and justice as apply to mandamus; provided, however, that no writ ofprohibition to compel the removal of a judge shall issue where no motion to recuse has been filed, if such motion is available, or where a motion to recuse has been denied after assignment to a separate judge for hearing.'

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

APPEAL- COURTS- APPELLATE FILING FEES; BAR EXAMINERS; EXPENSES; FEES.
No. 122 (House Bill No. 283).
AN ACT
To revise prov1s1ons relating to financing and operations of the judicial branch of government; to amend Article I of Chapter 6 of Title 5 of the Official Code of Georgia Annotated, relating to general provisions pertaining to certiorari and appeals to appellate courts generally, so as to change certain provisions relating to filing fees for appeals to the Supreme Court and the Court of Appeals; to amend Article 1 of Chapter 19 of Title 15 of the Official Code of Georgia Annotated, relating to general provisions relating to attorneys, so as to change provisions relating to the expenses of the board and the amount and disposition of examination fees; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Article 1 of Chapter 6 of Title 5 of the Official Code of Georgia Annotated, relating to general provisions pertaining to certiorari and appeals to appellate courts generally, is amended by revising Code Section 5-6-4, relating to a bill of costs, payment of costs, filing of an affidavit of indigence, and payment of costs or filing of an affidavit as a prerequisite to the receipt of an application for appeal or brief by the clerk, as follows:
'5-6-4. The bill of costs for every application to the Supreme Court for a writ of certiorari or for applications for appeals filed in the Supreme Court or the Court of Appeals or appeals to

GEORGIA LAWS 2009 SESSION

645

the Supreme Court or the Court of Appeals shall be $80.00 in criminal cases and in habeas corpus cases for persons whose liberty is being restrained by virtue of a sentence imposed against them by a state court and $300.00 in all other civil cases. The costs shall be paid by counsel for the applicant or appellant at the time of the filing of the application or, in the case of direct appeals, at the time of the filing ofthe original brief of the appellant. In those cases in which the writ of certiorari or an application for appeal is granted, there shall be no additional costs. Costs shall not be required in those instances when at the time the same are due counsel for the applicant or appellant shall file a statement that an affidavit of indigence has been duly filed or file an affidavit that he or she was appointed to represent the defendant by the trial court because of the defendant's indigency. The clerk is prohibited from receiving the application for appeal or the brief of the appellant unless the costs have been paid or a sufficient affidavit of indigence is filed or contained in the record.'

SECTION 2. Article I of Chapter 19 of Title 15 of the Official Code of Georgia Annotated, relating to general provisions relating to attorneys, is amended by revising Code Section 15-19-2, relating to the rules of governing the Board of Bar Examiners, expenses ofthe board, and the amount and disposition of examination fees, as follows:
'15-19-2. (a) It shall be the duty of the Justices of the Supreme Court to appoint and fix the number, terms, and compensation of the Board of Bar Examiners, whose powers and duties shall be as set forth by the Supreme Court by rule. All salaries, fees, and other expenses incurred in administering the Board of Bar Examiners and the examinations conducted by the board shall be paid by the Supreme Court. (b) The Supreme Court, upon recommendation by the board, shall by rule set the amount of the examination fee to be paid by the applicants for admission to the bar by examination and shall direct to whom and when the fee shall be paid. The examination fee shall be reasonable and shall be determined in such a manner that the total amount of the fees charged and collected by the board in each fiscal year shall approximate the direct and indirect costs of administering the examination.'

SECTION 3. Section 1 of this Act shall become effective on July 1, 2009, and Section 2 of this Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

646

GENERAL ACTS AND RESOLUTIONS, VOL. I

REVENUE- AD VALOREM TAX EXEMPTION; UNREMARRIED SURVIVING SPOUSE OR MINOR CHILDREN OF DISABLED VETERAN; ASSESSORS AND APPRAISERS; PRIOR NOTICE WHEN GOING UPON PROPERTY.

No. 123 (House Bill No. 304).

AN ACT

To amend Code Section 48-5-48 of the Official Code of Georgia Annotated, relating to the state-wide homestead exemption for disabled veterans, so as to extend the exemption; to amend Article 4 of Chapter 5 of Title 48 of the Official Code of Georgia Annotated, relating to county taxation, so as to change certain provisions regarding appraisers and assessors going upon property in the performance of their duties; to provide for additional duties ofthe county tax commissioners; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Code Section 48-5-48 of the Official Code of Georgia Annotated, relating to the state-wide homestead exemption for disabled veterans, is amended by adding the following:
(b.1) The unremarried surviving spouse or minor children of any disabled veteran shall also be entitled to an exemption of the greater of$32,500.00 or the maximum amount on a homestead, or any subsequent homestead within the same county, where such spouse or minor children continue to occupy the home as a homestead, such exemption being from ad valorem taxation for state, county, municipal, and school purposes.'

SECTION 2. Article 4 of Chapter 5 of Title 48 of the Official Code of Georgia Annotated, relating to county taxation, is amended by revising Code Section 48-5-264.1, relating to the right of appraisers and assessors to go upon property, as follows:
48-5-264.1. (a) The chief appraiser, other members of the county property appraisal staff, authorized agents of the county board of tax assessors, and members of the county board of tax assessors who are conducting official business of the chief appraiser, the county appraisal staff, or the county board of tax assessors may go upon property outside of buildings, posted or otherwise, in order to carry out the duty of making appraisals of the fair market

GEORGIA LAWS 2009 SESSION

647

value of taxable property in the county, other than property returned directly to the commissioner; provided, however, such person representing such chiefappraiser, appraisal staff, or county board of tax assessors shall carry identification which is sufficiently prominent to permit the occupant to readily ascertain that such person is such representative. Such representative shall not enter upon the property unless reasonable notice has been provided to the owner and to the occupant of the property regarding the purpose for which such person is entering upon such property. (b) The county tax commissioner shall include a statement with the ad valorem tax bill of each taxpayer notifying the taxpayer of the right to file an ad valorem property tax return. A notification of the right of taxpayers to file ad valorem property tax returns shall also be maintained by the tax commissioner on the official website of the county.'

SECTION 3. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

APPEAL- TRIBUNAL APPEALED FROM; COSTS.
No. 124 (House Bill No. 324).
AN ACT
To amend Article 2 of Chapter 3 of Title 5 of the Official Code of Georgia Annotated, relating to procedure for appeals to superior or state court, so as to require the payment of costs of the tribunal appealed from before hearing of an appeal in state court, in the same manner as currently required in superior court; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Article 2 of Chapter 3 of Title 5 of the Official Code of Georgia Annotated, relating to procedure for appeals to superior or state court, is amended by revising Code Section 5-3-22, relating to payment of costs and supersedeas on appeal to superior court, as follows:

648

GENERAL ACTS AND RESOLUTIONS, VOL. I

'5-3-22. (a) No appeal shall be heard in the superior or state court until any costs which have accrued in the court, agency, or tribunal below have been paid unless the appellant files with the superior or state court or with the court, agency, or tribunal appealed from an affidavit stating that because of indigence he or she is unable to pay the costs on appeal. In all cases, no appeal shall be dismissed in the superior or state court because of nonpayment of the costs below until the appellant has been directed by the court to do so and has failed to comply with the court's direction. (b) Filing ofthe notice of appeal and payment of costs or filing of an affidavit as provided in subsection (a) of this Code section shall act as supersedeas, and it shall not be necessary that a supersedeas bond be filed; provided, however, that the superior or state court upon motion may at any time require that supersedeas bond with good security be given in such amount as the court may deem necessary unless the appellant files with the court an affidavit stating that because of indigence he or she is unable to give bond.'

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

REVENUE -FORMS OF TAX PAYMENT; ELECTRONIC FILING.
No. 125 (House Bill No. 334).
AN ACT
To amend Article 2 of Chapter 2 of Title 48 of the Official Code of Georgia Annotated, relating to administration of revenue and taxation, so as to change certain provisions regarding forms ofpayment; to provide for penalties when taxpayers who are required to file electronically do not do so; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Article 2 of Chapter 2 of Title 48 of the Official Code of Georgia Annotated, relating to administration of revenue and taxation, is amended in subsection (f) of Code Section 48-2-32, relating to forms of payment, by revising paragraph (2.1) to read as follows:

GEORGIA LAWS 2009 SESSION

649

'(2.1)(A) The commissioner may require that any person or business owing more than $1,000.00 in connection with any return, report, or other document pertaining to sales tax, use tax, withholding tax, or motor fuel distributor tax required to be filed with the department for tax periods beginning on or after January 1, 20 I0, and prior to January I, 2011, shall pay any such sales tax, use tax, withholding tax, or motor fuel distributor tax liability to the state by electronic funds transfer so that the state receives collectable funds on the date such payment is required to be made. In emergency situations, the commissioner may authorize alternative means of payment in funds immediately available to the state on the date of payment. (B) The commissioner may require that any person or business owing more than $500.00 in connection with any return, report, or other document pertaining to sales tax, use tax, withholding tax, or motor fuel distributor tax required to be filed with the department for tax periods beginning on or after January I, 2011, shall pay any such sales tax, use tax, withholding tax, or motor fuel distributor tax liability to the state by electronic funds transfer so that the state receives collectable funds on the date such payment is required to be made. In emergency situations, the commissioner may authorize alternative means of payment in funds immediately available to the state on the date of payment.'

SECTION 2. Said article is further amended by adding a new Code section to read as follows:
48-2-44.1. (a) When this title requires that any return pertaining to sales tax, use tax, withholding tax, or motor fuel distributor tax be electronically transmitted or filed, or provides that the commissioner may by rule or regulation require that any return pertaining to sales tax, use tax, withholding tax, or motor fuel distributor tax be electronically transmitted or filed, and a taxpayer fails to electronically transmit or file such return, the taxpayer shall be deemed to have failed to make the required filing; provided, however, that any such taxpayer whose electronic filing was first transmitted on or before the due date of the return, including any extensions, and was rejected shall be allowed to perfect the electronic filing under rules consistent with those applied by the Internal Revenue Service with respect to rejections of returns which are required to be electronically transmitted or filed. Such deemed failure to make the required filing shall also result in the forfeiture of the compensation of dealers for reporting and paying tax provided in Code Section 48-8-50 since such Code section provides such compensation only if such return is timely filed. The penalty imposed on the taxpayer for such failure shall be the greater of$25.00 for each such return or 5 percent of the tax due on each such return before application of any payments or credits. Such $25.00 penalty or 5 percent penalty amount shall be consistent with the penalty imposed on the failure to file a withholding tax return as provided in Code Section 48-7-126. (b) The commissioner may grant waivers of the requirements of this Code section in cases of undue hardship.

650

GENERAL ACTS AND RESOLUTIONS, VOL. I

(c) No penalties shall be assessed pursuant to this Code section upon a showing by the taxpayer or the tax return preparer that the failure was due to reasonable cause and not due to gross or willful neglect or disregard of the law or of regulations or instructions issued pursuant to the law.'

SECTION 3. This Act shall become effective on January 1, 2010.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

REVENUE- SALES TAX EXEMPTION; FOOD FOR HUNGER RELIEF PURPOSES.
No. 126 (House Bill No. 358).
AN ACT
To amend Code Section 48-8-3 of the Official Code of Georgia Annotated, relating to exemptions from sales and use taxation, so as to extend the periods of exemption for use of food for hunger relief purposes and use of food donated for disaster relief purposes; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Code Section 48-8-3 ofthe Official Code ofGeorgia Annotated, relating to exemptions from sales and use taxation, is amended by revising paragraphs (57.2) and (57.3) as follows:
'(57.2)(A) For the period commencing July 1, 2007, and ending on June 30, 2011, the use of prepared food and beverages which are donated to a qualified nonprofit agency and which are used for hunger relief purposes. (B) As used in this paragraph, the term 'qualified nonprofit agency' means any entity which is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code and which provides hunger relief.

GEORGIA LAWS 2009 SESSION

651

(C) Any person making a donation of prepared food and beverages for the purpose specified in this paragraph shall remit the tax imposed thereon unless the person making use of such prepared food and beverages furnishes the person making the donation with an exemption determination letter issued by the commissioner certifying that the person making use of such food and beverages is entitled to use the prepared food and beverages without paying the tax. (D) The commissioner is authorized to promulgate rules and regulations deemed necessary in order to administer and effectuate this paragraph; (57.3)(A) For the period commencing July 1, 2007, and ending on June 30, 2011, the use of prepared food and beverages which are donated following a natural disaster and which are used for disaster relief purposes. (B) The commissioner is authorized to promulgate rules and regulations deemed necessary in order to administer and effectuate this paragraph;"

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

REVENUE- SALES TAX EXEMPTION SYMPHONY HALLS.
No. 127 (House Bill No. 395).
AN ACT
To amend Code Section 48-8-3 of the Official Code of Georgia Annotated, relating to exemptions from sales and use taxes, so as to extend the exemption for sales of certain tangible personal property used in direct connection with the construction of certain symphony halls; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

652

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 1. Code Section 48-8-3 ofthe Official Code ofGeorgia Annotated, relating to exemptions from sales and use taxes, is amended by revising subparagraph (A) of paragraph (78) as follows:
'(78)(A) Notwithstanding any provision ofCode Section 48-8-63 to the contrary, from the effective date of this paragraph until September I, 20 II, sales of tangible personal property used in direct connection with the construction of a new symphony hall facility owned or operated by an organization which is exempt from taxation under Section 50l(c)(3) of the Internal Revenue Code if the aggregate construction cost of such facility is $200 million or more.'

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

INSURANCE - REVENUE -HIGH DEDUCTIBLE HEALTH PLANS; EXEMPTIONS, EXCLUSIONS, AND CREDITS.
No. 128 (House Bill No. 410).
AN ACT
To amend Titles 33 and 48 ofthe Official Code of Georgia Annotated, relating, respectively, to insurance and revenue and taxation, so as to change certain provisions relating to amount and method of computing tax on insurance premiums generally; to provide for an exemption from certain local insurance premium taxes on premiums for certain high deductible health plans; to change certain provisions relating to amount and method of computing certain local insurance premium taxes; to change certain provisions regarding the income tax exclusion for certain premiums for certain high deductible health plans; to change certain provisions regarding the income tax credit for qualified health insurance expenses; to provide for automatic repeal of certain provisions; to provide for an effective date; to provide for applicability; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

GEORGIA LAWS 2009 SESSION

653

SECTION 1. Title 33 of the Official Code of Georgia Annotated, relating to insurance, is amended by revising subsection (c) of Code Section 33-8-4, relating to amount and method of computing tax on insurance premiums generally, as follows:
'(c) Insurers shall be exempt from otherwise applicable state premium taxes as provided for in subsection (a) of this Code section on premiums paid by Georgia residents for high deductible health plans as defined by Section 223 of the Internal Revenue Code.'

SECTION 2. Said title is further amended in Code Section 33-8-8.1, relating to county and municipal corporation taxes on life insurance companies, by adding a new subsection to read as follows:
'(a.1) Insurers shall be exempt from otherwise applicable local premium taxes as provided for in subsection (b) of this Code section on premiums paid by Georgia residents for high deductible health plans as defined by Section 223 of the Internal Revenue Code. This subsection shall stand repealed in its entirety on January 1, 2015.'

SECTION 3. Said title is further amended by revising subsection (a.1) of Code Section 33-8-8.2, relating to amount and method of computing local insurance premium taxes on insurance companies other than life insurance companies, as follows:
'(a.1) Insurers shall be exempt from otherwise applicable local premium taxes as provided for in subsection (a) of this Code section on premiums paid by Georgia residents for high deductible health plans as defined by Section 223 of the Internal Revenue Code.'

SECTION 4. Title 48 of the Official Code of Georgia Annotated, relating to revenue and taxation, is amended by revising paragraph (13.1) of subsection (a) of Code Section 48-7-27, relating to computation of taxable net income, as follows:
'(13.1) An amount equal to 100 percent of the premium paid by the taxpayer during the taxable year for high deductible health plans as defined by Section 223 of the Internal Revenue Code to the extent the deduction has not been included in federal adjusted gross income, as defined under the Internal Revenue Code of 1986, and the expenses have not been provided from a health reimbursement arrangement and have not been included in itemized nonbusiness deductions;'.

SECTION 5. Said title is further amended by revising paragraphs (1) and (3) of subsection (a) of Code Section 48-7-29.13, relating to tax credit for qualified health insurance expenses, as follows:
'(l) 'Qualified health insurance' means a high deductible health plan as defined by Section 223 of the Internal Revenue Code.'

654

GENERAL ACTS AND RESOLUTIONS, VOL. I

"(3) 'Taxpayer' means an employer who employs directly, or who pays compensation to individuals whose compensation is reported on Form 1099, 50 or fewer persons and for whom the taxpayer provides high deductible health plans as defined by Section 223 of the Internal Revenue Code and in which such employees are enrolled."

SECTION 6. (a) This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall be applicable to all taxable years beginning on or after January 1, 2009, except as provided in subsection (b) of this section. (b) Section 2 of this Act shall be applicable to all taxable years beginning on or after January I, 2010.

SECTION 7. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

REVENUE- INCOME TAX CREDITS; LESS DEVELOPED AREAS; RETRAINING; RESEARCH; PORT TRAFFIC; HEADQUARTERS; REVISE.
No. 129 (House Bill No. 439).
AN ACT
To amend Article 2 of Chapter 7 of Title 48 of the Official Code of Georgia Annotated, relating to imposition, rate, computation, and exemptions regarding income taxes, so as to provide for the comprehensive revision of income tax credits for business enterprises in less developed areas, employers providing approved retraining, business enterprises having qualified research expenses, base year port traffic, and taxpayers establishing or relocating headquarters into this state; to provide for procedures, conditions, and limitations; to provide an effective date; to provide for applicability; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Article 2 of Chapter 7 of Title 48 of the Official Code of Georgia Annotated, relating to imposition, rate, computation, and exemptions regarding income taxes, is amended by

GEORGIA LAWS 2009 SESSION

655

revising Code Section 48-7-40, relating to tax credits for business enterprises in less developed areas, to read as follows:
'48-7-40. (a) As used in this Code section, the term:
(1) 'Broadcasting' means the transmission or licensing of audio, video, text, or other programming content to the general public, subscribers, or to third parties via radio, television, cable, satellite, or the Internet or Internet Protocol and includes motion picture and sound recording, editing, production, postproduction, and distribution. 'Broadcasting' is limited to establishments classified under the 2007 North American Industry Classification System Codes 515, broadcasting; 519, Internet publishing and broadcasting; 51 7, telecommunications; and 512, motion picture and sound recording industries. (2) 'Business enterprise' means any business or the headquarters of any such business which is engaged in manufacturing, warehousing and distribution, processing, telecommunications, broadcasting, tourism, research and development industries, and services for the elderly and persons with disabilities. Such term shall not include retail businesses. (3) 'Competitive project' means expansion or location of some or all of a business enterprise's operations in this state having significant regional impact where the commissioner of economic development certifies that but for some or all of the tax incentives provided in this Code section, the business enterprise would have located or expanded outside this state. (4) 'Existing business enterprise' means any business or the headquarters of any such business which has operated for the immediately preceding three years a facility in this state which is engaged in manufacturing, warehousing and distribution, processing, telecommunications, broadcasting, tourism, or research and development industries. Such term shall not include retail businesses. (b)(1) Not later than December 31 of each year, using the most current data available from the Department of Labor and the United States Department of Commerce, the commissioner of community affairs shall rank and designate as less developed areas all 159 counties in this state using a combination of the following equally weighted factors:
(A) Highest unemployment rate for the most recent 36 month period; (B) Lowest per capita income for the most recent 36 month period; and (C) Highest percentage of residents whose incomes are below the poverty level according to the most recent data available. (2) Counties ranked and designated as the first through seventy-first least developed counties shall be classified as tier 1, counties ranked and designated as the seventy-second through one hundred sixth least developed counties shall be classified as tier 2, counties ranked and designated as the one hundred seventh through one hundred forty-first least developed counties shall be classified as tier 3, and counties ranked and

656

GENERAL ACTS AND RESOLUTIONS, VOL. I

designated as the one hundred forty-second through one hundred fifty-ninth least developed counties shall be classified as tier 4. (c) The commissioner of community affairs shall be authorized to include in the tier 2 designation provided for in subsection (b) of this Code section any tier 3 county which, in the opinion of the commissioner of community affairs, undergoes a sudden and severe period of economic distress caused by the closing of one or more business enterprises located in such county. No designation made pursuant to this subsection shall operate to displace or remove any other county previously designated as a tier 2 county. (c.l) The commissioner of community affairs shall be authorized to include in the tier I designation provided for in subsection (b) of this Code section any tier 2 county which, in the opinion of the commissioner of community affairs, undergoes a sudden and severe period of economic distress caused by the closing of one or more business enterprises located in such county. No designation made pursuant to this subsection shall operate to displace or remove any other county previously designated as a tier 1 county. (d) For business enterprises which plan a significant expansion in their labor forces, the commissioner of community affairs shall prescribe redesignation procedures to ensure that the business enterprises can claim credits in future years without regard to whether or not a particular county is reclassified in a different tier. (e)(l) Business enterprises in counties designated by the commissioner of community affairs as tier 1 counties shall be allowed a tax credit for taxes imposed under this article equal to $3,500.00 annually per eligible new full-time employee job for five years beginning with the first taxable year in which the new full-time employee job is created and for the four immediately succeeding taxable years; provided, however, that where the amount of such credit exceeds a business enterprise's liability for such taxes in a taxable year, the excess may be taken as a credit against such business enterprise's quarterly or monthly payment under Code Section 48-7-103 but not to exceed in any one taxable year $3,500.00 for each new full-time employee job when aggregated with the credit applied against taxes under this article. Each employee whose employer receives credit against such business enterprise's quarterly or monthly payment under Code Section 48-7-103 shall receive credit against his or her income tax liability under Code Section 48-7-20 for the corresponding taxable year for the full amount which would be credited against such liability prior to the application of the credit provided for in this paragraph. Credits against quarterly or monthly payments under Code Section 48-7-103 and credits against liability under Code Section 48-7-20 established by this paragraph shall not constitute income to the taxpayer. Business enterprises in counties designated by the commissioner of community affairs as tier 2 counties shall be allowed a job tax credit for taxes imposed under this article equal to $2,500.00 annually, business enterprises in counties designated by the commissioner of community affairs as tier 3 counties shall be allowed a job tax credit for taxes imposed under this article equal to $1,250.00 annually, and business enterprises in counties designated by the commissioner of community affairs as tier 4 counties shall be allowed a job tax credit for taxes imposed under this article equal to

GEORGIA LAWS 2009 SESSION

657

$750.00 annually for each new full-time employee job for five years beginning with the first taxable year in which the new full-time employee job is created and for the four immediately succeeding taxable years. Where a business enterprise is engaged in a competitive project located in a county designated by the commissioner of community affairs as a tier 2 county and where the amount of the credit provided in this paragraph exceeds such business enterprise's liability for taxes imposed under this article in a taxable year, or where a business enterprise is engaged in a competitive project located in a county designated by the commissioner of community affairs as a tier 3 or tier 4 county and where the amount of the credit provided in this paragraph exceeds 50 percent of such business enterprise's liability for taxes imposed under this article in a taxable year, the excess may be taken as a credit against such business enterprise's quarterly or monthly payment under Code Section 48-7-103 but not to exceed in any one taxable year $2,500.00 for each new full-time employee job when aggregated with the credit applied against taxes under this article. Each employee whose employer receives credit against such business enterprise's quarterly or monthly payment under Code Section 48-7-103 shall receive credit against his or her income tax liability under Code Section 48-7-20 for the corresponding taxable year for the full amount which would be credited against such liability prior to the application of the credit provided for in this paragraph. Credits against quarterly or monthly payments under Code Section 48-7-103 and credits against liability under Code Section 48-7-20 established by this paragraph shall not constitute income to the taxpayer. The number of new full-time jobs shall be determined by comparing the monthly average number of full-time employees subject to Georgia income tax withholding for the taxable year with the corresponding period of the prior taxable year. In tier 1 counties, those business enterprises that increase employment by five or more shall be eligible for the credit. In tier 2 counties, only those business enterprises that increase employment by ten or more shall be eligible for the credit. In tier 3 counties, only those business enterprises that increase employment by 15 or more shall be eligible for the credit. In tier 4 counties, only those business enterprises that increase employment by 25 or more shall be eligible for the credit. The average wage of the new jobs created must be above the average wage of the county that has the lowest average wage of any county in the state to qualify as reported in the most recently available annual issue of the Georgia Employment and Wages Averages Report of the Department of Labor. To qualify for a credit under this paragraph, the employer must make health insurance coverage available to the employee filling the new full-time job; provided, however, that nothing in this paragraph shall be construed to require the employer to pay for all or any part of health insurance coverage for such an employee in order to claim the credit provided for in this paragraph if such employer does not pay for all or any part of health insurance coverage for other employees. Credit shall not be allowed during a year if the net employment increase falls below the number required in such tier. In any year in which the net employment increase falls below the number required in such tier, the taxpayer shall forfeit the right to the credit claimed for that

658

GENERAL ACTS AND RESOLUTIONS, VOL. I

taxable year. For the year that the net employment increase falls below the number required in such tier, a taxpayer that forfeits such right is therefore liable for all past taxes imposed by this article for that taxable year and all past payments under Code Section 48-7-103 for that taxable year that were foregone by the state as a result of the credits provided by this Code section; provided, however, that Code Section 48-2-40 shall not apply to any such forfeiture. The state revenue commissioner shall adjust the credit allowed each year for net new employment fluctuations above the minimum level ofthe number required in such tier. (2) Existing business enterprises shall be allowed an additional tax credit for taxes imposed under this article equal to $500.00 per eligible new full-time employee job the first year in which the new full-time employee job is created. The additional credit shall be claimed in the first taxable year in which the new full-time employee job is created. The number ofnew full-time jobs shall be determined by comparing the monthly average number of full-time employees subject to Georgia income tax withholding for the taxable year with the corresponding period of the prior taxable year. In tier 1 counties, those existing business enterprises that increase employment by five or more shall be eligible for the credit. In tier 2 counties, only those existing business enterprises that increase employment by ten or more shall be eligible for the credit. In tier 3 counties, only those existing business enterprises that increase employment by 15 or more shall be eligible for the credit. In tier 4 counties, only those existing business enterprises that increase employment by 25 or more shall be eligible for the credit. The average wage of the new jobs created must be above the average wage of the county that has the lowest average wage of any county in the state to qualify as reported in the most recently available annual issue of the Georgia Employment and Wages Averages Report of the Department of Labor. To qualify for a credit under this paragraph, the employer must make health insurance coverage available to the employee filling the new full-time job; provided, however, that nothing in this paragraph shall be construed to require the employer to pay for all or any part of health insurance coverage for such an employee in order to claim the credit provided for in this paragraph if such employer does not pay for all or any part of health insurance coverage for other employees. Credit shall not be allowed during a year if the net employment increase falls below the number required in such tier. Any credit generated and utilized for years prior to the year in which the net employment increase falls below the number required in such tier shall not be affected. The state revenue commissioner shall adjust the credit allowed each year for net new employment fluctuations above the minimum level of the number required in such tier. This paragraph shall apply only to new eligible full-time jobs created in taxable years beginning on or after January 1, 2006, and ending no later than taxable years beginning prior to January 1, 2011. (f) Tax credits for four years for the taxes imposed under this article shall be awarded for additional new full-time jobs created by business enterprises qualified under subsection (b), (c), or (c.l) of this Code section. Additional new full-time jobs shall be determined by

GEORGIA LAWS 2009 SESSION

659

subtracting the highest total employment of the business enterprise during years two through five, or whatever portion of years two through five which has been completed, from the total increased employment. The state revenue commissioner shall adjust the credit allowed in the event of employment fluctuations during the five years of credit. (g) The sale, merger, acquisition, or bankruptcy of any business enterprise shall not create new eligibility in any succeeding business entity, but any unused job tax credit may be transferred and continued by any transferee of the business enterprise. The commissioner of community affairs shall determine whether or not qualifying net increases or decreases have occurred and may require reports, promulgate regulations, and hold hearings as needed for substantiation and qualification.
(h)( I) Except as provided in paragraph (2) of this subsection, any credit claimed under this Code section but not used in any taxable year may be carried forward for ten years from the close of the taxable year in which the qualified jobs were established, subject to forfeiture as provided in paragraph ( l) of subsection (e) of this Code section, but in tiers 3 and 4 the credit established by this Code section taken in any one taxable year shall be limited to an amount not greater than 50 percent of the taxpayer's state income tax liability which is attributable to income derived from operations in this state for that taxable year. In tier l and 2 counties, the credit allowed under this Code section against taxes imposed under this article in any taxable year shall be limited to an amount not greater than l 00 percent of the taxpayer's state income tax liability attributable to income derived from operations in this state for such taxable year. (2) The additional credit claimed by an existing business enterprise pursuant to the provisions ofparagraph (2) of subsection (e) ofthis Code section must be applied against taxes imposed for the taxable year in which such credit is available and may not be carried forward to any subsequent taxable year. (i) Notwithstanding any provision of this Code section to the contrary, in counties recognized and designated as the first through fortieth least developed counties in the tier l designation, job tax credits shall be allowed as provided in this Code section, in addition to business enterprises or existing business enterprises, to any business of any nature. G) Notwithstanding Code Section 48-2-35, any tax credit claimed under this Code section shall be claimed within one year of the earlier of the date the original tax return was filed or the date such return was due as prescribed in subsection (a) of Code Section 48-7-56, including any approved extensions. (k) The commissioner may require such reports, promulgate such regulations, and gather such relevant data necessary and advisable for the evaluation of the job tax credits established by this Code section. (I) Taxpayers that initially claimed the credit under this Code section for any taxable year beginning before January I, 2009, shall be governed, for purposes of all such credits claimed as well as any credits claimed in subsequent taxable years related to such initial claim, by this Code section as it was in effect for the taxable year in which the taxpayer made such initial claim."

660

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 2. Said article is further amended by revising Code Section 48-7-40.1, relating to tax credits for business enterprises in less developed areas, to read as follows:
'48-7-40.1. (a) As used in this Code section, the term:
(I) 'Broadcasting' means the transmission or licensing of audio, video, text, or other programming content to the general public, subscribers, or to third parties via radio, television, cable, satellite, or the Internet or Internet Protocol and includes motion picture and sound recording, editing, production, postproduction, and distribution. 'Broadcasting' is limited to establishments classified under the 2007 North American Industry Classification System Codes 515, broadcasting; 519, Internet publishing and broadcasting; 517, telecommunications; and 512, motion picture and sound recording industries. (2) 'Business enterprise' means any business or the headquarters of any such business which is engaged in manufacturing, warehousing and distribution, processing, telecommunications, broadcasting, tourism, and research and development industries. Such term shall not include retail businesses. (b) Not later than December 31 of each year, using the most current data available from the Department of Labor and the United States Department of Commerce, the commissioner of community affairs shall rank and designate as less developed areas the areas which are comprised of ten or more contiguous census tracts in this state using a combination of the following equally weighted factors: (I) Highest unemployment rate for the most recent 36 month period; (2) Lowest per capita income for the most recent 36 month period; and (3) Highest percentage of residents whose income is below the poverty level according to the most recent data available. (c) The commissioner of community affairs also shall be authorized to include in the designation provided for in subsection (b) of this Code section: (I) Any area comprised often or more contiguous census tracts which, in the opinion of the commissioner of community affairs, undergoes a sudden and severe period of economic distress caused by the closing of one or more business enterprises located in such area; (2) Any area comprised of one or more census tracts adjacent to a federal military installation where pervasive poverty is evidenced by a 15 percent poverty rate or greater as reflected in the most recent decennial census; (3) Any area comprised of one or more contiguous census tracts which, in the opinion of the commissioner of community affairs, is or will be adversely impacted by the loss of one or more jobs, businesses, or residences as a result of an airport expansion, including noise buy-outs, or the closing of a business enterprise which, in the opinion of the commissioner of community affairs, results or will result in a sudden and severe period of economic distress; or

GEORGIA LAWS 2009 SESSION

661

(4) Any area which is within or adjacent to one or more contiguous census block groups with a poverty rate of 15 percent or greater as determined from data in the most current United States decennial census, where the area is also included within a state enterprise zone pursuant to Chapter 88 of Title 36 or where a redevelopment plan has been adopted pursuant to Chapter 61 of Title 36 and which, in the opinion of the commissioner of community affairs, displays pervasive poverty, underdevelopment, general distress, and blight. No designation made pursuant to this subsection shall operate to displace or remove any other area previously designated as a less developed area. Notwithstanding any provision ofthis Code section to the contrary, in areas designated as suffering from pervasive poverty under this subsection, job tax credits shall be allowed as provided in this Code section, in addition to business enterprises, to any lawful business. (d) For business enterprises which plan a significant expansion in their labor forces, the commissioner of community affairs shall prescribe redesignation procedures to ensure that the business enterprises can claim credits in future years without regard to whether or not a particular area is removed from the list of less developed areas. (e) Business enterprises in areas designated by the commissioner of community affairs as less developed areas shall be allowed a job tax credit for taxes imposed under this article equal to $3,500.00 annually per eligible new full-time employee job for five years beginning with the first taxable year in which the new full-time employee job is created and for the four immediately succeeding taxable years; provided, however, that where the amount of such credit exceeds a business enterprise's liability for such taxes in a taxable year, the excess may be taken as a credit against such business enterprise's quarterly or monthly payment under Code Section 48-7-103 but not to exceed in any one taxable year $3,500.00 for each new full-time employee job when aggregated with the credit applied against taxes under this article. Each employee whose employer receives credit against such business enterprise's quarterly or monthly payment under Code Section 48-7-103 shall receive credit against his or her income tax liability under Code Section 48-7-20 for the corresponding taxable year for the full amount which would be credited against such liability prior to the application ofthe credit provided for in this subsection. Credits against quarterly or monthly payments under Code Section 48-7-103 and credits against liability under Code Section 48-7-20 established by this subsection shall not constitute income to the taxpayer. The number of new full-time jobs shall be determined by comparing the monthly average number of full-time employees subject to Georgia income tax withholding for the taxable year with the corresponding period of the prior taxable year. Only those business enterprises that increase employment by five or more in a less developed area shall be eligible for the credit; provided, however, that within areas of pervasive poverty as designated under paragraphs (2) and (4) of subsection (c) ofthis Code section businesses shall only have to increase employment by two or more jobs in order to be eligible for the credit, provided that, if a business only increases employment by two jobs, the persons hired for such jobs shall not be married to one another. The average wage of the new jobs

662

GENERAL ACTS AND RESOLUTIONS, VOL. I

created must be above the average wage of the county that has the lowest wage of any county in the state to qualify as reported in the most recently available annual issue of the Georgia Employment and Wages Averages Report ofthe Department of Labor. To qualify for a credit under this subsection, the employer must make health insurance coverage available to the employee filling the new full-time job; provided, however, that nothing in this subsection shall be construed to require the employer to pay for all or any part of health insurance coverage for such an employee in order to claim the credit provided for in this subsection if such employer does not pay for all or any part of health insurance coverage for other employees. Credit shall not be allowed during a year if the net employment increase falls below five or two, as applicable. In any year in which the net employment increase falls below five or two, as applicable, the taxpayer shall forfeit the right to the credit claimed for that taxable year. For the year that the net employment increase falls below five or two, as applicable, a taxpayer that forfeits such right is therefore liable for all past taxes imposed by this article for that taxable year and all past payments under Code Section 48-7-103 for that taxable year that were foregone by the state as a result of the credits provided by this Code section; provided, however that Code Section 48-2-40 shall not apply to any such forfeiture. The state revenue commissioner shall adjust the credit allowed each year for net new employment fluctuations above the minimum level of five or two. (t) Tax credits for four years for the taxes imposed under this article shall be awarded for additional new full-time jobs created by business enterprises qualified under subsection (b) or (c) of this Code section. Additional new full-time jobs shall be determined by subtracting the highest total employment of the business enterprise during years two through five, or whatever portion of years two through five which has been completed, from the total increased employment. The state revenue commissioner shall adjust the credit allowed in the event of employment fluctuations during the additional five years of credit. (g) The sale, merger, acquisition, or bankruptcy of any business enterprise shall not create new eligibility in any succeeding business entity, but any unused job tax credit may be transferred and continued by any transferee of the business enterprise. The commissioner of community affairs shall determine whether or not qualifying net increases or decreases have occurred and may require reports, promulgate regulations, and hold hearings as needed for substantiation and qualification. (h) Any credit claimed under this Code section but not used in any taxable year may be carried forward for ten years from the close of the taxable year in which the qualified jobs were established, subject to forfeiture as provided in subsection (e) of this Code section, but the credit established by this Code section taken in any one taxable year shall be limited to an amount not greater than 100 percent of the taxpayer's state income tax liability which is attributable to income derived from operations in this state for that taxable year. (i) Notwithstanding Code Section 48-2-35, any tax credit claimed under this Code section shall be claimed within one year of the earlier of the date the original tax return was filed

GEORGIA LAWS 2009 SESSION

663

or the date such return was due as prescribed in subsection (a) of Code Section 48-7-56, including any approved extensions. (j) Taxpayers that initially claimed the credit under this Code section for any taxable year beginning before January 1, 2009, shall be governed, for purposes of all such credits claimed as well as any credits claimed in subsequent taxable years related to such initial claim, by this Code section as it was in effect for the taxable year in which the taxpayer made such initial claim.'

SECTION 3. Said article is further amended by revising Code Section 48-7-40.5, relating to tax credits for employers providing approved retraining programs, to read as follows:
'48-7-40.5. (a) As used in this Code section, the term:
(1) 'Approved retraining' means employer provided or employer sponsored retraining that meets the following conditions:
(A) It enhances the functional skills of employees otherwise unable to function effectively on the job due to skill deficiencies or who would otherwise be displaced because such skill deficiencies would inhibit their utilization of new technology; provided, however, that approved retraining shall not include any retraining on commercially, mass produced software packages for word processing, data base management, presentations, spreadsheets, e-mail, personal information management, or computer operating systems except a retraining tax credit shall be allowable for those providing support or training on such software; (B) It is approved and certified by the Technical College System of Georgia; and (C) The employer does not require the employee to make any payment for the retraining, either directly or indirectly through use of forfeiture of leave time, vacation time, or other compensable time. (2) 'Cost of retraining' means direct instructional costs as defined by the Technical College System of Georgia including instructor salaries, materials, supplies, and textbooks but specifically excluding costs associated with renting or otherwise securing space. (3) 'Employee' means any employee resident in this state who is employed for at least 25 hours a week and who has been continuously employed by the employer for at least 16 consecutive weeks. (4) 'Employer' means any employer upon whom an income tax is imposed by this chapter. (5) 'Employer provided' refers to approved retraining offered on the premises of the employer or on premises approved by the Technical College System of Georgia by instructors hired by or employed by an employer.

664

GENERAL ACTS AND RESOLUTIONS, VOL. I

(6) 'Employer sponsored' refers to a contractual arrangement with a school, university, college, or other instructional facility which offers approved retraining that is paid for by the employer. (b) A tax credit shall be granted to an employer who provides or sponsors one or more approved retraining programs in a taxable year. The total amount of the tax credit allowed per full-time employee shall be equal to one-half of the costs of retraining per full-time employee, or $500.00 per full-time employee, whichever is less, for each employee who has successfully completed an approved retraining program; provided, however, that in no event shall the amount of the tax credit authorized under this subsection exceed $1,250.00 per year per full-time employee who has successfully completed more than one approved retraining program. No employer shall receive a credit if the employer requires that the employee reimburse or pay the employer for the cost of retraining. (c) Any tax credit claimed under this Code section for any taxable year beginning on or after January 1, 1998, but not used for any such taxable year may be carried forward for ten years from the close of the taxable year in which the tax credit was granted. The tax credit granted to any employer pursuant to this Code section shall not exceed 50 percent of the amount of the taxpayer's income tax liability for the taxable year as computed without regard to this Code section. Notwithstanding Code Section 48-2-35, any tax credit claimed under this Code section shall be claimed within one year of the earlier of the date the original return was filed or the date such return was due as prescribed in subsection (a) of Code Section 48-7-56, including any approved extensions. (d) To be eligible to claim the credit granted under this Code section, the employer shall certify to the department the name of the employee, the course work successfully completed by such employee, the name of the provider ofthe approved retraining, and such other information as may be required by the department to ensure that credits are only granted to employers who provide or sponsor approved retraining pursuant to this Code section and that such credits are only granted to employers with respect to employees who successfully complete such approved retraining. The department shall adopt rules and regulations and forms to implement this credit program. The department is expressly authorized and directed to work with the Technical College System of Georgia to ensure the proper granting of credits pursuant to this Code section. (e) The Technical College System of Georgia is expressly authorized and directed to establish such standards as it deems necessary and convenient in approving employer provided and employer sponsored retraining programs. In establishing such standards, the Technical College System of Georgia shall establish required hours of classroom instruction, required courses, certification of teachers or instructors, progressive levels of instruction, and standardized measures of employee evaluation to determine successful completion of a course of study.'

GEORGIA LAWS 2009 SESSION

665

SECTION 4. Said article is further amended by revising Code Section 48-7-40.12, relating to income tax credits for business enterprises having qualified research expenses, to read as follows:
'48-7-40.12. (a) As used in this Code section, the term:
( 1) 'Base amount' means the product of a business enterprise's Georgia gross receipts in the current taxable year and the average of the ratios of its aggregate qualified research expenses to Georgia gross receipts for the preceding three taxable years or 0.300, whichever is less; provided, however, that a business enterprise need not have had a positive taxable net income for the preceding three taxable years in order to claim the credit provided in this Code section. For purposes of this paragraph, 'Georgia gross receipts' shall be the numerator of the gross receipts factor provided in subsection (d) of Code Section 48-7-31. (2) 'Broadcasting' means the transmission or licensing of audio, video, text, or other programming content to the general public, subscribers, or to third parties via radio, television, cable, satellite, or the Internet or Internet Protocol and includes motion picture and sound recording, editing, production, postproduction, and distribution. 'Broadcasting' is limited to establishments classified under the 2007 North American Industry Classification System Codes 515, broadcasting; 519, Internet publishing and broadcasting; 517, telecommunications; and 512, motion picture and sound recording industries. (3) 'Business enterprise' means any business or the headquarters of any such business which is engaged in manufacturing, warehousing and distribution, processing, telecommunications, broadcasting, tourism, and research and development industries. Such term shall not include retail businesses. (4) 'Qualified research expenses' means qualified research expenses for any business enterprise as that term is defined in Section 41 of the Internal Revenue Code of 1986, as amended, except that all wages paid and all purchases of services and supplies must be for research conducted within the State of Georgia. (b) A tax credit is allowed a business enterprise which has qualified research expenses in Georgia in a taxable year exceeding a base amount, provided that the business enterprise for the same taxable year claims and is allowed a research credit under Section 41 of the Internal Revenue Code of 1986, as amended. (c) The tax credit provided in subsection (b) of this Code section shall be 10 percent of the excess over the base amount referred to in said subsection. (d) Any unused credit claimed under this Code section may be carried forward ten years from the close ofthe taxable year in which the qualified research expenses were made. The credit taken in any one taxable year shall not exceed 50 percent of the business enterprise's remaining Georgia net income tax liability after all other credits have been applied. (e) In the first five years of a newly formed business enterprise's operations in this state, where the amount of a credit claimed under this Code section exceeds 50 percent of a

666

GENERAL ACTS AND RESOLUTIONS, VOL. I

taxpayer's liability for such taxes in a taxable year, the excess may be taken as a credit against such taxpayer's quarterly or monthly payment under Code Section 48-7-103. Each employee whose employer receives credit against such taxpayer's quarterly or monthly payment under Code Section 48-7-103 shall receive a credit against his or her income tax liability under Code Section 48-7-20 for the corresponding taxable year for the full amount which would be credited against such liability prior to the application ofthe credit provided for in this subsection. Credits against quarterly or monthly payments under Code Section 48-7-103 and credits against liability under Code Section 48-7-20 established by this subsection shall not constitute income to the taxpayer."

SECTION 5. Said article is further amended in Code Section 48-7-40.15, relating to alternative tax credits for base year port traffic, by revising paragraphs (1) and (5) of subsection (a) as follows:
"(1) 'Base year port traffic' means: (A) For taxable years beginning prior to January I, 2010, the total amount of net tons, containers, or twenty-foot equivalent units (TEU's) of product actually transported by way of a waterborne ship or vehicle through a port facility during the period from January 1, 1997, through December 31, 1997; provided, however, that in the event the total amount actually transported during such period was not at least 75 net tons, five containers, or ten twenty-foot equivalent units (TEU's), then 'base year port traffic' means 75 net tons, five containers, or ten twenty-foot equivalent units (TEU's). (B) For all taxable years beginning on or after January 1, 2010, the total amount of net tons, containers, or twenty-foot equivalent units (TEU's) of product actually imported into this state or exported out of this state by way of a waterborne ship or vehicle through a port facility during the second preceding 12 month period; provided, however, that in the event the total amount actually imported into this state or exported out of this state during such period was not at least 75 net tons, five containers, or ten twenty-foot equivalent units (TEU's), then 'base year port traffic' means 75 net tons, five containers, or ten twenty-foot equivalent units (TEU's)."
"(5) 'Port traffic' means: (A) For taxable years beginning prior to January 1, 2010, the total amount of net tons, containers, or twenty-foot equivalent units (TEU's) of product transported by way of a waterborne ship or vehicle through a port facility. (B) For all taxable years beginning on or after January 1, 2010, the total amount of net tons, containers, or twenty-foot equivalent units (TEU's) of product imported into this state or exported out of this state by way of a waterborne ship or vehicle through a port facility."

SECTION 6. Said article is further amended by revising Code Section 48-7-40.17, relating to income tax credits for establishing or relocating headquarters into this state, to read as follows:

GEORGIA LAWS 2009 SESSION

667

'48-7-40.17. (a) As used in this Code section, the term:
(1) 'Average wage' means the average wage of the county in which a new quality job is located as reported in the most recently available annual issue of the Georgia Employment and Wages Averages Report of the Department of Labor. (2) 'New quality job' means employment for an individual which:
(A) Is located in this state; (B) Has a regular work week of 30 hours or more; (C) Is not a job that is or was already located in Georgia regardless of which taxpayer the individual performed services for; (D) Pays at or above 110 percent of the average wage of the county in which it is located; and (E) Has no predetermined end date. (b) A taxpayer establishing new quality jobs in this state or relocating quality jobs into this state which elects not to receive the tax credits provided for by Code Sections 48-7-40,48-7-40.1,48-7-40.2,48-7-40.3,48-7-40.4,48-7-40.7,48-7-40.8, and 48-7-40.9 for such jobs and investments created by, arising from, related to, or connected in any way with the same project and, within one year of the first date on which the taxpayer pursuant to the provisions of Code Section 48-7-101 withholds wages for employees in this state and employs at least 50 persons in new quality jobs in this state, shall be allowed a credit for taxes imposed under this article: (l) Equal to $2,500.00 annually per eligible new quality job where the job pays 110 percent or more but less than 120 percent of the average wage of the county in which the new quality job is located; (2) Equal to $3,000.00 annually per eligible new quality job where the job pays 120 percent or more but less than 150 percent of the average wage of the county in which the new quality job is located; (3) Equal to $4,000.00 annually per eligible new quality job where the job pays 150 percent or more but less than 175 percent of the average wage of the county in which the new quality job is located; (4) Equal to $4,500.00 annually per eligible new quality job where the job pays 175 percent or more but less than 200 percent of the average wage of the county in which the new quality job is located; and (5) Equal to $5,000.00 annually per eligible new quality job where the job pays 200 percent or more of the average wage of the county in which the new quality job is located; provided, however, that where the amount of such credit exceeds a taxpayer's liability for such taxes in a taxable year, the excess may be taken as a credit against such taxpayer's quarterly or monthly payment under Code Section 48-7-103 but not to exceed in any one taxable year the credit amounts in paragraphs (1) through (5) of this subsection for each new quality job when aggregated with the credit applied against taxes under this article.

668

GENERAL ACTS AND RESOLUTIONS, VOL. I

Each employee whose employer receives credit against such taxpayer's quarterly or monthly payment under Code Section 48-7-103 shall receive a credit against his or her income tax liability under Code Section 48-7-20 for the corresponding taxable year for the full amount which would be credited against such liability prior to the application of the credit provided for in this subsection. Credits against quarterly or monthly payments under Code Section 48-7-103 and credits against liability under Code Section 48-7-20 established by this subsection shall not constitute income to the taxpayer. For each new quality job created, the credit established by this subsection may be taken for the first taxable year in which the new quality job is created and for the four immediately succeeding taxable years; provided, however, that such new quality jobs must be created within seven years from the close ofthe taxable year in which the taxpayer first becomes eligible for such credit. Credit shall not be allowed during a year if the net employment increase falls below the 50 new quality jobs required. Any credit received for years prior to the year in which the net employment increase falls below the 50 new quality jobs required shall not be affected except as provided in subsection (f) of this Code section. The commissioner shall adjust the credit allowed each year for net new employment fluctuations above the 50 new quality jobs required. (c) The number of new quality jobs to which this Code section shall be applicable shall be determined by comparing the monthly average of new quality jobs subject to Georgia income tax withholding for the taxable year with the corresponding average for the prior taxable year. (d) Any credit claimed under this Code section but not used in any taxable year may be carried forward for ten years from the close of the taxable year in which the new quality jobs were established. (e) Notwithstanding Code Section 48-2-35, any tax credit claimed under this Code section shall be claimed within one year of the earlier of the date the original return was filed or the date such return was due as prescribed in subsection (a) of Code Section 48-7-56, including any approved extensions. (f) If the taxpayer has failed to maintain a new quality job in a taxable year, the taxpayer shall forfeit the right to the credit claimed for such job in that year. For each year such new quality job is not maintained, a taxpayer that forfeits such right is therefore liable for all past taxes imposed by this article for that taxable year and all past payments under Code Section 48-7-103 for that taxable year that were foregone by the state as a result of the credits provided by this Code section; provided, however, that Code Section 48-2-40 shall not apply to any such forfeiture. (g) Taxpayers that initially claimed the credit under this Code section for any taxable year beginning before January 1, 2009, shall be governed, for purposes of all such credits claimed as well as any credits claimed in subsequent taxable years related to such initial claim, by this Code section as it was in effect for the taxable year in which the taxpayer made such initial claim.

GEORGIA LAWS 2009 SESSION

669

(h) The commissioner shall promulgate any rules and regulations necessary to implement and administer this Code section.'

SECTION 7. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall be applicable for all taxable years beginning on or after January 1, 2009.

SECTION 8. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

PUBLIC UTILITIES- STATE RIDESHARE PROGRAMS; FOR HIRE OR CARRIER STATUS.
No. 130 (House Bill No. 440).
AN ACT
To amend Chapter 1 of Title 46 of the Official Code of Georgia Annotated, relating to general provisions concerning public utility and public transportation matters, so as to provide that state government endorsed ride share programs are neither for hire nor carrier operations; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter I of Title 46 of the Official Code of Georgia Annotated, relating to general provisions concerning public utility and public transportation matters, is amended in Code Section 46-1-1, relating to definitions relative to public utilities and public transportation, by adding new paragraphs (5.1), (6.2), and (6.3), and revising paragraphs (6) and (13) as follows:
'(5.1) 'Exempt rideshare' means: (A) Government endorsed rideshare programs; (B) Rideshare programs in which a rideshare driver seeks reimbursement for, or the rideshare participants pool or otherwise share, rideshare costs such as fuel; or

670

GENERAL ACTS AND RESOLUTIONS, VOL. I

(C) The leasing or rental of a vehicle, in the ordinary course of the lessor's or rentor's business, for rideshare purposes as part of a government endorsed rideshare program, or for rideshare under a contract requiring compliance with subparagraph (B) of this paragraph. (6) 'For compensation' or 'for hire' means an activity wherein for payment or other compensation a motor vehicle and driver are furnished to a person by another person, acting directly or knowingly and willfully acting with another to provide the combined service ofthe vehicle and driver, and includes every person acting in concert with, under the control of, or under common control with a motor carrier who shall offer to furnish transportation for compensation or for hire, provided that no exempt rideshare shall be deemed to involve any element of transportation for compensation or for hire." (6.2) 'Government endorsed rideshare program' means a vanpool, carpool, or similar rideshare operation conducted by or under the auspices of a state or local governmental transit instrumentality, such as GRTA, a transportation management association, or a community improvement district, or conducted under the auspices of such transit agencies, including through any form ofcontract between such transit instrumentality and private persons or businesses. (6.3) 'GRTA' means the Georgia Regional Transportation Authority, which is itself exempt from regulation as a carrier under Code Section 50-32-71 ." (13) 'Private carrier' means every person except motor common carriers or motor contract carriers owning, controlling, operating, or managing any motor propelled vehicle, and the lessees or trustees thereof or receivers appointed by any court whatsoever, used in the business of transporting persons or property in private transportation not for hire over any public highway in this state. The term 'private carrier' shall not include: (A) Motor vehicles not for hire engaged solely in the harvesting or transportation of forest products; provided, however, that motor vehicles not for hire with a manufacturer's gross weight rated capacity of 44,000 pounds or more engaged solely in the transportation of unmanufactured forest products shall be subject only to the Georgia Forest Products Trucking Rules provided for in division (9)(C)(x) of this Code section; (B) Motor vehicles not for hire engaged solely in the transportation of road-building materials; (C) Motor vehicles not for hire engaged solely in the transportation of unmanufactured agricultural or dairy products between farm, market, gin, warehouse, or mill whether such vehicle is owned by the owner or producer of such agricultural or dairy products or not, so long as the title remains in the producer; (D) Except for the motor vehicles excluded under subparagraph (C) of this paragraph, motor vehicles having a manufacturer's gross vehicle weight rating of 10,000 pounds or less; provided, however, that motor vehicles which have a manufacturer's gross vehicle weight rating of 10,000 pounds or less and which are transporting hazardous

GEORGIA LAWS 2009 SESSION

671

materials, as the term 'hazardous materials' is defined in Title 49 C.F.R., Parts 107, 171-173, and 177-178, shall be included within the meaning ofthe term 'private carrier'; or (E) Exempt rideshares.'

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

REVENUE- TAX RETURN PREPARERS; CIVIL PENALTIES; INJUNCTIVE RELIEF.
No. 131 (House Bill No. 444).
AN ACT
To amend Article 2 of Chapter 2 of Title 48 of the Official Code of Georgia Annotated, relating to state administration of revenue and taxation, so as to provide for civil penalties and injunctive relief regarding certain tax return preparers; to provide for definitions; to provide for procedures, conditions, and limitations; to provide for an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Article 2 of Chapter 2 of Title 48 of the Official Code of Georgia Annotated, relating to state administration of revenue and taxation, is amended by adding a new Code section to read as follows: '48-2-62.
(a) As used in this Code section, the term: (1) 'Tax return preparer' means any person who prepares for compensation, or who employs one or more persons to prepare for compensation, any return of tax imposed under Chapter 7, 7A, or 8 of this title or any claim for refund of such tax. The

672

GENERAL ACTS AND RESOLUTIONS, VOL. I

preparation of a substantial portion of a return or claim for refund shall be treated as if it were the preparation of such return or claim for refund. A person shall not be considered a tax return preparer merely because the person does any of the following:
(A) Furnishes typing, reproducing, or other mechanical assistance; (B) Prepares a return or claim for refund of the employer, or an officer or employee of the employer, by whom the person is regularly and continuously employed; (C) Prepares as a fiduciary a return or claim for refund for any person; or (D) Prepares a claim for refund for a taxpayer in response to a notice of proposed assessment issued to the taxpayer. (2) 'Understatement of liability' means an understatement of the net amount payable for a tax imposed under Chapter 7, 7A, or 8 of this title or an overstatement ofthe net amount creditable or refundable from such tax. For purposes of this paragraph, the amount determined as an underpayment of estimated income tax under the relevant provisions of this chapter is not considered an understatement of liability. (b)(1) Any tax return preparer who prepares any return or claim for refund for which any part of an understatement of liability is due because of a position described in paragraph (2) of this subsection shall pay a penalty not to exceed $500.00 for each such return or claim for refund. (2) A position is described in this subsection if: (A) The tax return preparer knew or reasonably should have known of the position; (B) There was not a reasonable basis for the position; and (C) The position was frivolous or not adequately disclosed in the return or claim for refund or in a statement attached to the return or claim for refund. (3) No penalty shall be imposed under this subsection if it is shown that there is reasonable cause for the understatement of liability and the tax return preparer acted in good faith. (c) Any tax return preparer who prepares any return or claim for refund for which any part of an understatement ofliability is due because ofconduct described in this subsection shall pay a penalty for each such return or claim for refund in an amount equal to the greater of $5,000.00 or 50 percent of the income derived, or to be derived, by the tax return preparer for the return or claim for refund. Conduct described in this subsection is conduct by the tax return preparer which is: (1) A willful attempt in any manner to understate the liability for tax on the return or claim for refund; and (2) A reckless or intentional disregard of the law. (d) If at any time there is a final administrative determination or a final judicial decision that there was no understatement ofliability in the case of the taxpayer's underlying return or claim for refund for which a penalty under subsection (b) or (c) of this Code section has been assessed against the tax return preparer, such assessment shall be canceled; and if any portion of such penalty has been paid, the amount so paid shall be refunded to the tax return

GEORGIA LAWS 2009 SESSION

673

preparer as an overpayment of tax without regard to any period of limitations which, but for this subsection, would apply to the making of such refund. (e) Other assessable penalties on the preparation for other persons of returns of tax imposed under Chapter 7, 7A, or 8 of this title shall be as follows:
(l) Any tax return preparer who prepares any return or claim for refund and is required by regulations prescribed by the commissioner to sign such return or claim for refund but who fails to sign such return shall pay a penalty of $50.00 for such failure, unless it is shown that such failure is due to reasonable cause and not due to willful neglect or that the practice conformed to accepted industry standards. The maximum penalty imposed under this paragraph on any tax return preparer during any calendar year shall not exceed $25,000.00;
(2)(A) Any tax return preparer who prepares any return or claim for refund and fails to furnish the preparer's identifying number on such return or claim for refund shall pay a penalty of $50.00 for such failure, unless it is shown that such failure:
(i) Is due to reasonable cause and not due to willful neglect; or (ii) Failed to conform to accepted industry standards. (B) The maximum penalty imposed under this paragraph on any tax return preparer during any calendar year shall not exceed $25,000.00; and (3) Any tax return preparer who fraudulently endorses or otherwise negotiates directly or through an agent any check made for the taxes imposed under Chapter 7, 7A, or 8 of this title which is issued to a taxpayer other than the tax return preparer shall pay a penalty of $500.00 for each such check. This paragraph shall not apply to the deposit by a bank, within the meaning of Section 581 of the Internal Revenue Code of 1986, of the full amount of the check in the taxpayer's account in such bank for the benefit of the taxpayer. (f)( I) A civil action in the name of the State of Georgia may be commenced at the request of the commissioner to enjoin any tax return preparer, or employer having knowledge of an employee tax return preparer, who is doing business in this state and engaging in conduct described in this subsection from further engaging in preparing tax returns. This action may be brought by the department in the superior court of the county of the tax return preparer's residence or principal place of business or in which the taxpayer for whose tax return the action is brought resides. The court may exercise its jurisdiction over the action separate and apart from any other action brought by the State of Georgia against the tax return preparer or any taxpayer. (2) In an action under this subsection, the court may issue an injunction prohibiting a person from acting as a tax return preparer if the court finds that the individual has: (A) Engaged in any pattern of conduct subject to civil penalty under subsection (b), (c), or (e) of this Code section; or (B) Guaranteed the payment of any tax refund or the allowance of any tax credit. (g) Any claim for refund of any penalty paid under this Code section shall be filed in accordance with rules and regulations promulgated by the commissioner. Any penalty

674

GENERAL ACTS AND RESOLUTIONS, VOL. I

under subsection (b) or (e) of this Code section shall be assessed within three years after the return or claim for refund was filed, and no proceeding in court without assessment for the collection of such tax shall begin after the expiration of such period. In the case of any penalty under subsection (c) of this Code section, the penalty may be assessed, or a proceeding in court for the collection of the penalty may be begun without assessment, at any time. Except as provided in subsection (d) of this Code section, any claim for refund of an overpayment of any penalty assessed under subsection (b), (c), or (e) of this Code section shall be filed within three years from the time the penalty was paid. (h) Except as otherwise provided by this Code section, proceedings to assess, collect, or seek a refund of any penalty imposed under this Code section shall be conducted in the same manner and subject to the same rights of appeal as assessments, collections, and claims for refund of the related taxes under Chapter 7, 7A, or 8 of this title, as the case may be.'

SECTION 2. This Act shall become effective on its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

REVENUE - STATE AD VALOREM TAX EXEMPTION; BUSINESS INVENTORY.
No. 132 (House Bill No. 482).
AN ACT
To amend Part 1 of Article 2 of Chapter 5 of Title 48 of the Official Code of Georgia Annotated, relating to exemptions from ad valorem taxation, so as to provide that, subject to referendum approval, all tangible personal property constituting the inventory of a business shall be exempt from state ad valorem taxation; to provide for a referendum election with respect to effectiveness; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

GEORGIA LAWS 2009 SESSION

675

SECTION 1. Part 1 of Article 2 of Chapter 5 of Title 48 of the Official Code of Georgia Annotated, relating to exemptions from ad valorem taxation, is amended by adding a new Code section to read as follows:
'48-5-41.2 All tangible personal property constituting the inventory of a business shall be exempt from state ad valorem taxation.'

SECTION 2. Unless prohibited by the federal Voting Rights Act of 1965, as amended, the Secretary of State shall call and conduct an election as provided in this section for the purpose of submitting Section 1 of this Act to the electors of the State of Georgia for approval or rejection. The Secretary of State shall conduct that election on the date of the November, 2010, state-wide general election. The Secretary of State shall issue the call and conduct that special election as provided by general law. The Secretary of State shall cause the date and purpose ofthe special election to be published in the official organ of each county in the state once a week for two weeks immediately preceding the date of the referendum. The ballot shall have written thereon the following:
"( ) YES Shall the Act be approved which grants an exemption from state ad valorem ( ) NO taxation for inventory of a business?"
All persons desiring to vote for approval of the Act shall vote "Yes," and all persons desiring to vote for rejection of the Act shall vote "No." If more than one-half of the votes cast on such question are for approval of the Act, then Section 1 of this Act shall become effective on January 1, 2011, and shall apply to all taxable years beginning on or after that date. If Section 1 of this Act is not so approved or if the election is not conducted as provided in this section, Section 1 of this Act shall not become effective.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

676

GENERAL ACTS AND RESOLUTIONS, VOL. I

INSURANCE- MUTUAL LIFE INSURER; EQUITY PAYMENT.

No. 133 (House Bill No. 550).

AN ACT

To amend Code Section 33-14-76 of the Official Code of Georgia Annotated, relating to conversion of a mutual insurer to a stock insurer, so as to provide an additional method of payment by a mutual life insurer of the equity; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Code Section 33-14-76 of the Official Code of Georgia Annotated, relating to conversion of a mutual insurer to a stock insurer, is amended by revising paragraph (6) of subsection (b) as follows:
'(6) The plan, as elected by the insurer and voted upon by the members, gives to each policyholder of the insurer as specified in paragraph (5) of this subsection one of the following:
(A)(i) A preemptive right to acquire his or her proportionate part of all of the proposed capital stock of the insurer within a designated reasonable period and to apply upon the purchase price thereof the amount of his or her equity in the insurer as determined in paragraph (4) of this subsection. (ii) Shares are so offered to policyholders at a price not greater than that to be thereafter offered to others. (iii) The plan provides for payment, to each policyholder not electing to apply his or her equity in the insurer for or upon the purchase price of stock to which preemptively entitled, of cash in the amount of not less than 50 percent of the amount of his or her equity not so used for the purchase of stock, which cash payment together with stock so purchased, if any, shall constitute full payment and discharge of the policyholder's equity as an owner of the mutual insurer; (B)(i) Payment in cash to each policyholder of 100 percent of his or her equity in the insurer, as determined in paragraph (4) of this subsection. (ii) If a life insurer, payment may be provided as a paid-up life insurance policy with a cash value equal to 100 percent ofthe policyholder's equity in the insurer; provided, however, that the insurer may not impose a surrender charge on any policyholder electing to surrender his or her paid-up life insurance policy for its cash value; or

GEORGIA LAWS 2009 SESSION

677

(C)(i) A preemptive right to acquire a percentage of his or her proportionate part of all of the proposed capital stock of the insurer within a designated reasonable period and to apply upon the purchase price thereof that same percentage amount of his or her equity in the insurer as determined in paragraph (4) of this subsection. (ii) Shares are so offered to policyholders at a price not greater than that to be thereafter offered to others. (iii) The plan provides for payment, to each policyholder not electing to apply his or her equity in the insurer for or upon the purchase price of stock to which preemptively entitled, of cash in the amount of not less than 50 percent of the amount of his or her equity not so used for the purchase of stock, which cash payment together with stock so purchased, if any, shall constitute full payment and discharge ofthe policyholder's equity as an owner of the mutual insurer.'

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved May 4, 2009.

COMPENSATE JOHN JEROME WHITE.
No. 134 (House Resolution No. 161).
A RESOLUTION
Compensating Mr. John Jerome White; and for other purposes.
WHEREAS, in 1979, a man forcibly entered the home of a 74 year-old woman in Meriwether County and robbed, beat, and raped her; and
WHEREAS, a young man named Mr. John Jerome White was convicted of the crimes, largely on eyewitness testimony, and sentenced to life in prison; and
WHEREAS, he was paroled in 1990, but subsequent convictions caused him to be returned to prison to serve out the life sentence; and
WHEREAS, DNA tests conducted at the urging of the Georgia Innocence Project led authorities to identify the actual perpetrator ofthe crimes, a man with whom law enforcement was familiar and who was in the lineup at the time the witness mistakenly identified Mr. White as the perpetrator; and

678

GENERAL ACTS AND RESOLUTIONS, VOL. I

WHEREAS, on December 10, 2007, Mr. White was released after his 1979 indictment was nol-prossed; and

WHEREAS, Mr. White, now 48 years old, lost almost three decades of his life and is now the longest serving of the nation's exonerees due to post-conviction DNA testing; and

WHEREAS, Mr. White has suffered loss of liberty, personal injury, lost wages, injury to reputation, emotional distress, and other damages as a result of his 28 years of incarceration and expenses in trying to prove his innocence totaling $3 million; and

WHEREAS, the conviction, incarceration, and subsequent loss ofliberty and other damages occurred through no fault or negligence on the part of Mr. White, and it is only fitting and proper that he be compensated for his loss.

NOW, THEREFORE, BE IT RESOLVED BY THE GENERAL ASSEMBLY OF GEORGIA that the Department of Administrative Services is authorized and directed to pay the sum of $500,000.00, to be paid out over a period of 20 years to Mr. John Jerome White as compensation as provided above. The payments provided for in this resolution may be accomplished through the purchase of one or more annuities. Said sum shall be paid from funds appropriated to or available to the Department of Administrative Services and shall be in full and complete satisfaction of all claims against the state arising out of said occurrence.

BE IT FURTHER RESOLVED that all payments and all obligations of the state for any and all future payments shall cease upon the date of death of the beneficiary, Mr. John Jerome White, and no such payments shall be assignable under any circumstances. All payments shall cease upon any further felony conviction. Mr. White shall be subject to periodic, unannounced drug testing, and all payments shall cease if any such test indicates the presence of any illegal drugs. No payment shall be made during any period during which Mr. White is not employed, self-employed, performing voluntary work for a charitable organization, or seeking employment. Prior to the commencement of payments, Mr. White and the Department of Administrative Services shall enter into a written agreement containing the terms and conditions specified in this resolution; and the execution of such agreement shall be a condition precedent to any payment by the department.

Approved May 4, 2009.

GEORGIA LAWS 2009 SESSION

679

MOTOR VEHICLES- DEPARTMENT OF DRIVER SERVICES; LICENSE REINSTATEMENT FEES; SPEEDING; ROAD TYPE; SUPER SPEEDING OFFENSES.

No. 135 (House Bill No. 160).

AN ACT

To amend provisions of the Official Code of Georgia Annotated relating to fees to be paid to the Department of Driver Services; to amend Chapter 5 of Title 40 of the Official Code of Georgia Annotated, relating to drivers' licenses, so as to increase the fees paid to the Department of Driver Services for reinstatement or restoration of suspended or revoked drivers' licenses; to amend Article 9 of Chapter 6 of Title 40 of the Official Code of Georgia Annotated, relating to speed restrictions, so as to specify that instruments charging violations of speed regulations shall state whether the violation occurred on a two-lane road or highway; to provide for an additional fee to be administered by the Department of Driver Services for certain super speeding offenses; to provide for related matters; to provide for effective dates; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

PART I SECTION 1.

Chapter 5 of Title 40 of the Official Code of Georgia Annotated, relating to drivers'licenses, is amended by revising Code Section 40-5-22.1, relating to suspensions and reinstatements of drivers' licenses of children under 16 convicted of driving under the influence of alcohol or drugs, as follows:
40-5-22.1. Notwithstanding any other provision oflaw, if a child under 16 years of age is adjudicated delinquent of driving under the influence of alcohol or drugs or of possession of marijuana or a controlled substance in violation of Code Section 16-13-30 or of the unlawful possession of a dangerous drug in violation of Code Section 16-13-72 or convicted in any other court of such offenses, the court shall order that the privilege of such child to apply for and be issued a driver's license or Ieamer's permit shall be suspended and delayed until such child is 17 years of age for a first conviction and until such child is 18 years of age for a second or subsequent such conviction. Upon reaching the required age, such license privilege shall be reinstated if the child submits proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program or an assessment and intervention program approved

680

GENERAL ACTS AND RESOLUTIONS, VOL. I

by the juvenile court and pays a reinstatement fee to the Department of Driver Services. The reinstatement fee for a first such conviction shall be $210.00 or $200.00 if paid by mail. The reinstatement fee for a second such conviction shall be $310.00 or $300.00 if paid by mail. The reinstatement fee for a third or subsequent such conviction shall be $410.00 or $400.00 if paid by mail. The court shall notify the department of its order delaying the issuance of such child's license within 15 days of the date of such order. The department shall not issue a driver's license or learner's permit to any person contrary to a court order issued pursuant to this Code section.'

SECTION 2. Said chapter is further amended in Code Section 40-5-30, relating to restrictions on drivers' licenses, by revising subsection (c) as follows:
"(c) The department, upon receiving satisfactory evidence of any violation of the restrictions of such license, may suspend the license for a period of six months. The department shall reinstate the license at the end of six months upon receipt of a reinstatement fee of $210.00 or $200.00 if paid by mail. No person shall operate a motor vehicle in any manner in violation of the restrictions imposed in a restricted license issued to him or her.'

SECTION 3. Said chapter is further amended in Code Section 40-5-56, relating to suspension of drivers' licenses for failure to respond to citation, by revising subsection (b) as follows:
"(b) The suspension provided for in this Code section shall be for an indefinite period until such person shall respond and pay any fines and penalties imposed. Such person's license shall be reinstated if the person submits proof of payment of the fine from the court of jurisdiction and pays a restoration fee of $100.00 or $90.00 when such reinstatement is processed by mail to the department. Such suspension shall be in addition to any other suspension or revocation provided for in this chapter."

SECTION 4. Said chapter is further amended in Code Section 40-5-57.1, relating to license suspensions and reinstatements for young drivers, by revising subsection (c) as follows:
"(c)(l) Any driver's license suspended under subsection (a) of this Code section for commission of any offense other than violation of Code Section 40-6-391 shall not become valid and shall remain suspended until such person submits proof of completion of a defensive driving program approved by the department and pays the applicable reinstatement fee. (2) The reinstatement fee for a first such conviction shall be $210.00 or $200.00 if paid by mail. The reinstatement fee for a second or subsequent such conviction shall be $310.00 or $300.00 if paid by mail."

GEORGIA LAWS 2009 SESSION

681

SECTION 5. Said chapter is further amended in Code Section 40-5-62, relating to reinstatement oflicense revocations, by revising subsection (b) as follows:
'(b) The department shall not issue a new license nor restore a person's suspended license or nonresident's operating privilege unless and until it is satisfied after investigation of the character, habits, and driving ability of such person that it will be safe to grant the privilege of driving a motor vehicle on the public highways. Notwithstanding subsection (a) of this Code section or any other provision of this title, the department shall not issue a new license to any person whose license was revoked as a habitual violator for three violations of Code Section 40-6-391 within a five-year period unless and until such person submits proof of completion of an approved DUI Alcohol or Drug Use Risk Reduction Program. The department may issue rules and regulations providing for reinstatement hearings. In the case of a revocation pursuant to Code Section 40-5-58, the department shall charge a fee of $410.00 or $400.00 if processed by mail in addition to the fee prescribed by Code Section 40-5-25 to issue a new driver's license to a person whose driver's license has been revoked.'

SECTION 6. Said chapter is further amended in Code Section 40-5-70, relating to license suspensions for driving without required minimum insurance, by revising subsection (a) as follows:
'(a) In addition to any other punishment, the driver's license of a person convicted under subsection (a), (b), or (c) of Code Section 40-6-10 shall be suspended for a period of 60 days. The person shall submit the driver's license to the court upon conviction, and the court shall forward the driver's license to the department. After the 60 day suspension period and when the person provides proof of having prepaid a six-month minimum insurance policy and pays a restoration fee of $210.00 or $200.00 when processed by mail to the department, the suspension shall terminate and the department shall return the person's driver's license to such person. For a second or subsequent offense within a five-year period, the suspension period shall be increased to 90 days, and, in addition to the driver's license, such person's license tag and tag registration shall also be suspended for a period of 90 days. The restoration fee for a second or subsequent offense within a five-year period shall be $310.00 or $300.00 if paid by mail. The procedures for submission of drivers' licenses to the court and the forwarding of such licenses to the department shall also apply to license tags and tag registrations.'

SECTION 7. Said chapter is further amended in Code Section 40-5-75, relating to license suspensions for drug convictions, by revising subsection (a) as follows:

682

GENERAL ACTS AND RESOLUTIONS, VOL. I

'(a) The driver's license of any person convicted of any violation ofthe Georgia Controlled Substances Act, including, but not limited to, possession, distribution, manufacture, cultivation, sale, transfer of, trafficking in, the attempt or conspiracy to possess, distribute, manufacture, cultivate, sell, transfer or traffic in a controlled substance or marijuana, or the law of any other jurisdiction, shall by operation of law be suspended, and such suspension shall be subject to the following terms and conditions:
(1) Upon the first conviction of any such offense, with no arrest and conviction of and no plea of nolo contendere accepted to such offense within the previous five years, as measured from the dates of previous arrests for which convictions were obtained to the date ofthe current arrest for which a conviction is obtained, the period ofsuspension shall be for not less than 180 days. At the end of 180 days, the person may apply to the department for reinstatement of his or her driver's license. Such license shall be reinstated only if the person submits proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program and pays to the Department of Driver Services a restoration fee of $210.00 or $200.00 when such reinstatement is processed by mail. For purposes of this paragraph, a plea of nolo contendere by a person to a charge of any drug related offense listed in this subsection shall, except as provided in subsection (c) of this Code section, constitute a conviction; (2) Upon the second conviction of any such offense within five years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, the period of suspension shall be for three years, provided that after one year from the date of the conviction, the person may apply to the department for reinstatement ofhis or her driver's license by submitting proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program and paying to the Department of Driver Services a restoration fee of $310.00 or $300.00 when such reinstatement is processed by mail. For purposes of this paragraph, a plea of nolo contendere and all previous pleas ofnolo contendere within such five-year period oftime shall constitute a conviction; and (3) Upon the third conviction of any such offense within five years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, such person's license shall be suspended for a period of five years. At the end of two years, the person may apply to the department for a three-year driving permit upon compliance with the following conditions:
(A) Such person has not been convicted or pleaded nolo contendere to any drug related offense, including driving under the influence, for a period of two years immediately preceding the application for such permit; (B) Such person submits proof of completion of a licensed drug treatment program. Such proof shall be submitted within two years of the license suspension and prior to the issuance of the permit. Such licensed drug treatment program shall be paid for by the offender. The offender shall pay a permit fee of $25.00 to the department;

GEORGIA LAWS 2009 SESSION

683

(C) Such person submits proof of financial responsibility as provided in Chapter 9 of this title; and (D) Refusal to issue such permit would cause extreme hardship to the applicant. For the purposes of this subparagraph, the term 'extreme hardship' means that the applicant cannot reasonably obtain other transportation, and, therefore, the applicant would be prohibited from:
(i) Going to his or her place of employment or performing the normal duties of his or her occupation; (ii) Receiving scheduled medical care or obtaining prescription drugs; (iii) Attending a college or school at which he or she is regularly enrolled as a student; or (iv) Attending regularly scheduled sessions or meetings of support organizations for persons who have addiction or abuse problems related to alcohol or other drugs, which organizations are recognized by the commissioner. At the end of five years from the date on which the license was suspended, the person may apply to the department for reinstatement of his or her driver's license by submitting proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program and paying to the Department of Driver Services a restoration fee of $410.00 or $400.00 when such reinstatement is processed by mail. For purposes of this paragraph, a plea of nolo contendere and all previous pleas of nolo contendere within such five-year period of time shall constitute a conviction.'

SECTION 8. Said chapter is further amended by revising Code Section 40-5-84, relating to reinstatement of suspended drivers' licenses, as follows:
'40-5-84. (a) Except as otherwise provided, the license of any person whose license is suspended for the first time as a result ofthe conviction of an offense listed in Code Section 40-5-54 shall, at the expiration of 120 days following the date the license is suspended, be reinstated by the department upon receipt by the department ofa certificate ofcompletion ofan approved defensive driving course and the payment of a restoration fee of $210.00 or $200.00 when such reinstatement is processed by mail. (b) The license of any person whose license is suspended for the second time as a result ofthe conviction of an offense listed in Code Section 40-5-54 shall, at the expiration of 120 days following the date the license is suspended, be reinstated by the department upon receipt by the department of a certificate of completion of an advanced defensive driving course and the payment of a restoration fee of$31 0.00 or $300.00 when such reinstatement is processed by mail. (c) The license of any person whose license is suspended for the first time within a five-year period as a result of the assessment of points pursuant to Code Section 40-5-57 shall be reinstated by the department immediately upon receipt by the department of a

684

GENERAL ACTS AND RESOLUTIONS, VOL. I

certificate of completion of an approved defensive driving course and the payment of a restoration fee of $210.00 or $200.00 when such reinstatement is processed by mail. (d) The license of any person whose license is suspended for the second time within a five-year period as a result of the assessment of points pursuant to Code Section 40-5-57 shall be reinstated by the department immediately upon receipt by the department of a certificate of completion of an advanced defensive driving course and the payment of a restoration fee of $310.00 or $300.00 when such reinstatement is processed by mail. (e) The license of any person whose license is suspended for the third or subsequent time within a five-year period as a result of the assessment of points pursuant to Code Section 40-5-57 shall be reinstated by the department upon receipt by the department of a certificate of completion of an advanced defensive driving course and the payment of a restoration fee of $410.00 or $400.00 when such reinstatement is processed by mail.'

SECTION 9. Said chapter is further amended in Code Section 40-5-121, relating to driving on a suspended or revoked license, by revising subsection (b) as follows:
(b)( 1) The department, upon receiving a record of the conviction of any person under this Code section upon a charge of driving a vehicle while the license of such person was suspended, disqualified, or revoked, including suspensions under subsection (f) of Code Section 40-5-75, shall extend the period of suspension or disqualification by six months. Upon the expiration of six months from the date on which the suspension or disqualification is extended and payment of the applicable reinstatement fee, the department shall reinstate the license. The reinstatement fee for a first such conviction within a five-year period shall be $210.00 or $200.00 if paid by mail. The reinstatement fee for a second such conviction within a five-year period shall be $310.00 or $300.00 if paid by mail. The reinstatement fee for a third or subsequent such conviction within a five-year period shall be $410.00 or $400.00 if paid by mail. (2) The court shall be required to confiscate the license, if applicable, and attach it to the uniform citation and forward it to the department within ten days of conviction. The period of suspension or disqualification provided for in this Code section shall begin on the date the person is convicted of violating this Code section."

PART II SECTION 10.

Article 9 of Chapter 6 of Title 40 of the Official Code of Georgia Annotated, relating to speed restrictions, is amended by revising subsection (a) of Code Section 40-6-187, relating to charging violations, to read as follows:
(a) In every charge of violation of any speed regulation in this chapter, the summons, uniform traffic citation, official charging instrument, or notice to appear shall specify the speed at which the defendant is alleged to have driven, the maximum speed applicable

GEORGIA LAWS 2009 SESSION

685

within the district or at the location, and whether the violation occurred on a two-lane road or highway. For purposes of this Code section, the term 'two-lane road or highway' means a road or highway with two lanes for through-traffic movement exclusive of any portion of the road or highway adjoining the traveled way for parking, speed change, turning, weaving, truck climbing, or other purposes supplementary to through-traffic movement."

SECTION 11. Said article is further amended by adding a new Code section to read as follows:
'40-6-189. (a) As used in this Code section, the term 'department' means the Department of Driver Services. (b) In addition to any other fines or penalties imposed by any local jurisdiction or the department, the department shall administer and collect a fee of $200.00 from any driver who is convicted of driving at a speed of85 miles per hour or more on any road or highway or 75 miles per hour or more on any two-lane road or highway, as defined in Code Section 40-6-187. Such a driver, upon conviction, shall be classified as a 'super speeder.' (c) The department shall notify offenders ofthe imposition ofa fee under this Code section within 30 days after receipt of a qualifying ticket and notice of conviction. Failure to pay the fee imposed by this Code section within 90 days after receipt of the notice shall result in the suspension of the driver's license or driving privileges of the offender, and, in addition to the existing fees and penalties, a fee of $50.00 shall be assessed, payable upon the application for reinstatement of the driver's license or driving privileges. Notice shall be provided by the department to the offender by first-class mail to the address shown on the records of the department. Such mailed notice shall be adequate notification of the fee imposed by this Code section and of the offender's ability to avoid a driver's license suspension by paying the fee prior to the effective date of the suspension. No other notice shall be required to make the driver's license suspension effective. (d) The department shall be authorized to promulgate rules and regulations to implement the provisions of this Code section. (e) All fees collected under the provisions of this Code section shall be deposited in the general fund of this state with the intent that these moneys be used to fund a trauma care system in Georgia and the direct and indirect costs associated with the administration of this Code section. The Office of Treasury and Fiscal Services shall separately account for all of the moneys received under the provisions of this Code section.

PART III SECTION 12.

Part I of this Act shall become effective on July 1, 2009. Part II of this Act shall become effective on January 1, 2010.

686

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 13. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

HEALTH- INCOME TAX DONATION; CANCER RESEARCH.
No. 136 (Senate Bill No. 201).
AN ACT
To amend Chapter 12 of Title 31 of the Official Code of Georgia Annotated, relating to control of hazardous conditions, preventable diseases, and metabolic disorders, so as to provide for voluntary contributions through individual income tax returns and other mechanisms for cancer research; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 12 of Title 31 of the Official Code of Georgia Annotated, relating to control of hazardous conditions, preventable diseases, and metabolic disorders, is amended by revising Code Section 31-12-14, relating to breast cancer, prostate cancer, and ovarian cancer research program fund, as follows:
"31-12-14. (a) The General Assembly finds that it is in the best interest of the state to provide for cancer research programs. In addition to and as a supplement to traditional financing mechanisms for such programs, it is the policy ofthis state to enable and encourage citizens voluntarily to support such programs. (b) To support programs for cancer research, the department may, without limitation, promote and solicit voluntary contributions through the individual income tax return contribution mechanism established in subsection (e) of this Code section or through any fund raising or other promotional techniques deemed appropriate by the department. (c) There is established a special fund to be known as the 'Cancer Research Program Fund.' This fund shall consist of all moneys contributed under subsection (b) ofthis Code section, all moneys transferred to the department under subsection (e) of this Code section, and any other moneys contributed to this fund. All balances in the fund shall be deposited in an interest-bearing account identifying the fund and shall be carried forward each year so that

GEORGIA LAWS 2009 SESSION

687

no part thereof may be deposited in the general treasury. The fund shall be administered and the moneys held in the fund shall be expended by the department through contracts for cancer research conducted in Georgia. (d) Contributions to the fund shall be deemed supplemental to and shall in no way supplant funding that would otherwise be appropriated for these purposes. Contributions shall only be used for research and for administrative costs authorized in paragraph (2) of subsection (e) ofthis Code section and shall not be used for personnel or administrative positions. The department shall prepare, by February 1 of each year, an accounting ofthe moneys received and expended from the fund and a review and evaluation of all expended moneys of the fund. The report shall be made available to the Governor, the Lieutenant Governor, the Speaker of the House of Representatives, the members of the Board of Human Resources, and, upon request, to members of the public.
(e)(1) Unless an earlier date is deemed feasible and is established by the Governor, each Georgia individual income tax return form for taxable years beginning on or after January 1, 2000, shall contain appropriate language, to be determined by the state revenue commissioner, offering the taxpayer the opportunity to contribute to the Cancer Research Program Fund established in subsection (c) of this Code section by either donating all or any part of any tax refund due, by authorizing a reduction in the refund check otherwise payable, or by contributing any amount over and above any amount of tax owed by adding that amount to the taxpayer's payment. The instructions accompanying the individual income tax return form shall contain a description of the purposes for which this fund was established and the intended use ofmoneys received from the contributions. Each taxpayer required to file a state individual income tax return who desires to contribute to such fund may designate such contribution as provided in this Code section on the appropriate individual income tax return form. (2) The Department ofRevenue shall determine annually the total amount so contributed, shall withhold therefrom a reasonable amount for administering this voluntary contribution program, and shall transmit the balance to the department for deposit in the fund established in subsection (c) of this Code section; provided, however, that the amount retained for administrative costs, including implementation costs, shall not exceed $50,000.00 per year. If, in any tax year, the administrative costs of the Department of Revenue for collecting contributions pursuant to this Code section exceed the sum of such contributions, the administrative costs which the Department ofRevenue is authorized to withhold from such contributions shall not exceed the sum of such contributions.

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

688

GENERAL ACTS AND RESOLUTIONS, VOL. I

CRIMINAL PROCEDUREPROFESSIONAL BONDSMAN.

No. 137 (House Bill No. 147).

AN ACT

To amend Chapter 6 of Title 17 ofthe Official Code of Georgia Annotated, relating to bonds and recognizances, so as to provide that professional bondsmen shall provide clerks of court with contact information for purposes of receiving certain notices; to provide that clerks of court shall maintain such information; to relieve a surety from liability under certain circumstances; to add a provision relating to conditions not warranting forfeiture of bond for failure to appear; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Chapter 6 of Title 17 of the Official Code of Georgia Annotated, relating to bonds and recognizances, is amended by revising Code Section 17-6-50, relating to persons deemed professional bondsmen and criminal background investigation, by adding a new subsection (d) to read as follows:
"(d) It shall be the duty of each professional bondsman approved by the sheriff in accordance with this part to provide the clerk of each court before which one or more of such professional bondsman's principals are required to appear with the business name, complete address, telephone number, and e-mail address of the chief operating officer or his or her designee of such professional bondsman for the purpose of receiving any notices that may be sent pursuant to Code Section 17-6-71. Each professional bondsman shall have the duty to keep such information current and accurate. It shall be the duty of each clerk of court to keep, maintain, and update such information as provided by a professional bondsman.'
SECTION 2. Said chapter is further amended by revising subsection (a) of Code Section 17-6-71, relating to execution hearing on failure of principal to appear, as follows:
'(a) The judge shall, at the end of the court day, upon the failure ofthe principal to appear, forfeit the bond and order an execution hearing not sooner than 120 days but not later than 150 days after such failure to appear. Notice of the execution hearing shall be served by the clerk of the court in which the bond forfeiture occurred within ten days of such failure to appear by certified mail or by electronic means as provided in Code Section 17-6-50 to the surety at the address listed on the bond or by personal service to the surety within ten

GEORGIA LAWS 2009 SESSION

689

days of such failure to appear at its home office or to its designated registered agent. Service shall be considered complete upon the mailing of such certified notice Such ten-day notice shall be adhered to strictly. If notice of the execution hearing is not served as specified in this subsection, the surety shall be relieved of liability on the appearance bond.'

SECTION 2A. Said chapter is further amended by revising Code Section 17-6-72, relating to conditions not warranting forfeiture of bond for failure to appear, by adding a new subsection to read as follows:
'(c.l) No judgment shall be rendered on a forfeiture of any appearance bond if it is shown to the satisfaction of the court that the principal on the bond was prevented from attending because he or she was deported by federal authorities. An official written notice of such deportation from a federal official shall be considered proof ofthe principal's deportation."

SECTION 3. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

PROPERTY- TIME-SHARES; PRIVATE RESIDENCE CLUB OR CLUB DEVELOPMENTS; RESTRICTIVE COVENANTS.
No. 138 (House Bill No. 492).
AN ACT
To amend Part 1 of Article 5 of Chapter 3 of Title 44 of the Official Code of Georgia Annotated, relating to general provisions regarding time-share projects and programs, so as to provide definitions; to provide that private residence clubs and private residence club developments are not time-share estates, time-share programs, time-share projects, or time-share uses; to provide for the application of certain restrictive covenants; to provide for exceptions to certain ordinances and regulations; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.

690

GENERAL ACTS AND RESOLUTIONS, VOL. I

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Part 1 of Article 5 of Chapter 3 of Title 44 of the Official Code of Georgia Annotated, relating to general provisions regarding time-share projects and programs, is amended by adding a new Code section to read as follows:
44-3-162.1. (a) As used in this Code section, the term:
(1) 'Private residence club' means an improvement located on real property, including, but not limited to, a single-family residence, the title to which is held by a maximum of eight individuals as tenants in common in fee simple or by a limited liability company containing not greater than eight members, and the use of such improvement or residence includes, without limitation, exclusive occupancy for certain time periods which are determined among the titleholders or limited liability company members by project instrument, including, but not limited to, a declaration ofrestrictive covenants, a contract, or otherwise. A private residence club may or may not be located in a private residence club development. (2) 'Private residence club development' means a development of at least two private residence clubs in which the titleholders or members of the limited liability company, as respects to each private residence club, contractually agree by project instrument, contract, or otherwise to permit occupancy for certain time periods to the titleholders or members of the limited liability company as exist with respect to any or all of the private residence clubs in the private residence club development. (b) Neither a private residence club nor a private residence club development shall be considered a time-share estate, time-share program, time-share project, or time-share use under this article, and this article shall not be applicable to private residence clubs or private residence club developments; provided, however, that, notwithstanding the foregoing, if there exists a restrictive covenant on real estate that restricts or prohibits time-share estates, time-share programs, time-share projects, or time-share uses, such restrictive covenants shall equally restrict or prohibit a private residence club and a private residence club development unless such restrictive covenant expressly states that it does not apply to private residence clubs and private residence club developments. No zoning, subdivision, or building code or other real estate use ordinance or regulation shall prohibit a private residence club form of ownership or impose any requirement upon a private residence club which it does not impose upon a physically identical improvement or development under a different form of ownership. No subdivision law, ordinance, or regulation shall apply to any division of an improvement, including a single-family residence, into a private residence club or private residence club development.'

GEORGIA LAWS 2009 SESSION

691

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

CRIMINAL PROCEDURE - ELECTRONIC PRETRIAL RELEASE AND MONITORING.
No. 139 (House Bill No. 306).
AN ACT
To amend Chapter 6 of the Title 17 of the Official Code of Georgia Annotated, relating to bonds and recognizances, so as to provide legislative findings and intent; to provide for an electronic pretrial release and monitoring program for defendants; to provide the standards, terms, and conditions for such program; to provide for penalties for violating the terms of such program; to provide for fees for such monitoring; to provide for the payment of such fees by the sheriffunder certain circumstances; to provide for the revocation of participation in such program under certain circumstances; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. The General Assembly finds that a program of electronic pretrial release, monitoring, and home confinement incorporates modern technology to accomplish the following purposes, including, but not limited to:
(1) Ensuring proper prioritization of local incarceration resources; (2) Improving child support collections by giving nonpayors an opportunity to maintain employment while under electronic surveillance; (3) Better protecting crime victims by global positioning satellite (GPS) tracking and monitoring of pretrial release offenders to better ensure ongoing protection of crime victims;

692

GENERAL ACTS AND RESOLUTIONS, VOL. I

(4) Permitting defendants with extraordinary health problems to seek appropriate medical care; (5) Assisting sheriffs in alleviating jail overcrowding by creating alternative methods of pretrial release and monitoring and home confinement; (6) Reducing the costs of pretrial detention to governing authorities of counties as the costs of self-paid, electronic pretrial release and monitoring are substantially less than pretrial incarceration; and (7) Creating instant alert capabilities to law enforcement in the event terms of pretrial release are violated.

SECTION 2. Chapter 6 of the Title 17 of the Official Code of Georgia Annotated, relating to bonds and recognizances, is amended by adding a new Code section to read as follows:
'17-6-l.l. (a) In addition to other methods ofposting bail or as special condition ofbond, a defendant may be released from custody pending the trial of his or her case on the condition that the defendant comply with the terms and conditions of an electronic pretrial release and monitoring program which is approved pursuant to subsection (j) of this Code section. The sheriff of a county may enter into agreements with such approved providers. A bonding company, bonding agent, or probation service provider may be a provider of such services. (b) If it appears to the court that a defendant subject to its jurisdiction is a suitable candidate for electronic pretrial release and monitoring, the court may, in its sole discretion and subject to the eligibility requirements of this Code section, authorize the defendant to be released under the provisions of an electronic pretrial release and monitoring program. A judge may only authorize electronic pretrial release and monitoring if that judge has jurisdiction to set a bond for the offense charged and the defendant is otherwise eligible for bond under subsection (e) of Code Section 17-6-1. When a court of competent jurisdiction has already set bond for a defendant indicating that the defendant is otherwise eligible for release on bail pursuant to subsection (e) of Code Section 17-6-1, in addition to accepting cash in satisfaction of the bond set by a court, the court may instruct the sheriff that the defendant is to be released to an electronic pretrial release and monitoring program. (c) The court, in its sole discretion, may revoke at any time the eligibility of any defendant to participate in the electronic pretrial release and monitoring program in which event the defendant shall be immediately returned to custody. Ifthe defendant's case has not been assigned to a particular division of the court, the chief judge shall have such authority. (d) A defendant may not be released to, or remain in, an electronic pretrial release and monitoring program who has any other outstanding warrants, accusations, indictments, holds, or incarceration orders from any other court, law enforcement agency, or probation or parole officer that require the posting of bond or further adjudication.

GEORGIA LAWS 2009 SESSION

693

(e) A defendant released pursuant to an electronic pretrial release and monitoring program shall abide by such conditions as the court may impose relating to such program, including, but not limited to, the following:
(I) Periods of home confinement; (2) Compliance with all requirements and conditions ofthe electronic pretrial release and monitoring program provider; (3) Compliance with any court orders or special conditions of bond which may include an order directing that no contact, direct or indirect, be made with the victim or forbidding entry upon, about, or near certain premises; (4) An order directing that the accused provide support and maintenance for the person's dependents to the best of his or her ability; (5) Restrictions on the use of alcoholic beverages and controlled substances; (6) Curfews; (7) Limitations on work hours and employment; (8) An order directing the accused to submit to test of breath, blood, or urine from time to time; (9) Travel restrictions; (10) An order directing that electronic pretrial release and monitoring equipment be kept in good working condition; (11) An order directing that the person refrain from violating the criminal laws of any state, county, or municipality; (12) An order directing timely payment of all fees connected with the electronic pretrial release and monitoring program; (13) Payroll deductions to fund electronic pretrial release and monitoring fees; (14) Provisions to permit reasonable medical treatment; (15) Provisions for procuring reasonable necessities, such as grocery shopping; (16) Provisions for attendance in educational, rehabilitative, and treatment programs; and (17) Such other terms and conditions as the court may deem just and proper. (f) Under no circumstances shall electronic pretrial release and monitoring equipment be introduced internally or beneath the skin of any person. (g) In the event that a court of competent jurisdiction finds probable cause, upon oath, affirmation, or sworn affidavit, that a defendant has violated the terms or conditions of his or her electronic pretrial release and monitoring program, other than terms regarding home confinement set forth in paragraph (1) of subsection (e) of this Code section, or finds that the defendant provided false or misleading information concerning his or her qualifications to participate in the electronic pretrial release and monitoring program, including, but not limited to, name, date of birth, address, or other personal identification information, then the defendant's ongoing participation in such program shall be terminated immediately and, upon arrest of the defendant for such violation by any law enforcement officer, the defendant shall be returned to confinement at the county jail or other facility from which the defendant was released.

694

GENERAL ACTS AND RESOLUTIONS, VOL. I

(h)(l) As an additional condition of electronic pretrial release and monitoring, a defendant authorized to participate in such program by the court shall pay a reasonable, nonrefundable fee for program enrollment, equipment use, and monitoring to the provider of such program. If a bonding company, bonding agent, or probation service provider is the provider, the fees earned in the capacity of being such a provider shall be in addition to the fees allowed in Code Sections 17-6-30, 42-8-34, and 42-8-100. (2) The fees connected with the electronic pretrial release and monitoring program shall be timely paid by a defendant as a condition of his or her ongoing participation in the electronic pretrial release and monitoring program in accordance with the terms for such programs as approved by the court. Failure to make timely payments shall constitute a violation of the terms of the electronic pretrial release and monitoring program and shall result in the defendant's immediate return to custody. (3) Defendants who have an extraordinary medical conditions requiring ongoing medical treatment or indigent persons, as defined by the court, and who are selected by the court following the indigency standards established by the court may have such electronic pretrial release and monitoring fees paid by the sheriff with the consent of the governing authority. (i) No defendant released under an electronic pretrial release and monitoring program under this Code section shall be deemed to be an agent, employee, or involuntary servant of the county or the electronic pretrial release and monitoring provider while so released, working, or participating in training or going to and from the defendant's place of employment or training. Neither the electronic pretrial release and monitoring provider nor the sheriff shall be civilly liable for the criminal acts of a defendant released pursuant to this Code section. (j) Any person or corporation approved by the chief judge of the court and the sheriff in their discretion who meets the following minimum requirements may be approved to provide electronic pretrial release and monitoring services: (I) The provider shall comply with all applicable federal, state, and local laws and all rules and regulations established by the chiefjudge and the sheriff in counties where the provider provides electronic pretrial release and monitoring services; (2) The provider shall provide the chief judge and the sheriff with the name of the provider, the name of an individual who shall serve as the contact person for the provider, and the telephone number of such contact person; (3) The provider shall promptly, not later than three business days after such change, notify the chief judge and sheriff of any changes in its address, ownership, or qualifications under this Code section; (4) The provider shall provide simultaneous access to all records regarding all monitoring information, GPS tracking, home confinement, and victim protection regarding each person placed on electronic pretrial release and monitoring; and (5) The provider shall act as surety for the bond.

GEORGIA LAWS 2009 SESSION

695

(k) The sheriff shall maintain a list of approved providers of electronic pretrial release and monitoring services. The sheriff, in his or her discretion, may temporarily or permanently remove any provider from the list of approved providers should the provider:
(1) Fail to comply with the requirements of this Code section; (2) Fail to monitor properly any defendant that the provider was required to monitor; (3) Charge an excessive fee for use and monitoring of electronic monitoring equipment; or (4) Act or fail to act in such a manner that, in the discretion of the sheriff, constitutes good cause for removal.'

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

PROPERTY -UNIFORM REAL PROPERTY ELECTRONIC RECORDING ACT.
No. 140 (House Bill No. 127).
AN ACT
To amend Chapter 2 of Title 44 of the Official Code of Georgia Annotated, relating to recordation and registration of deeds and other instruments, so as to adopt the Uniform Real Property Electronic Recording Act; to provide for definitions; to provide for the validity of electronic documents; to provide for the recording of certain documents; to provide for the adoption of rules, regulations, and standardized forms; to provide for uniformity of application and construction; to provide for the relation of this Act to the federal Electronic Signatures in Global and National Commerce Act; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 2 of Title 44 of the Official Code of Georgia Annotated, relating to recordation and registration ofdeeds and other instruments, is amended in Article 1, relating to recording, by designating the existing matter as Part 1 and adding a new part to read as follows:

696

GENERAL ACTS AND RESOLUTIONS, VOL. I

"Part 2 44-2-35. This part shall be known and may be cited as the 'Uniform Real Property Electronic Recording Act.'

44-2-36. As used in this part, the term:
(l) 'Authority' means the Georgia Superior Court Clerks' Cooperative Authority established pursuant to Code Section 15-6-94. (2) 'Document' means information that is:
(A) Inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; and (B) Eligible to be recorded in the land records maintained by the clerk of superior court. (3) 'Electronic' means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. (4) 'Electronic document' means a document that is received by the clerk of superior court in an electronic form. (5) 'Electronic signature' means an electronic sound, symbol, or process attached to or logically associated with a document and executed or adopted by a person with the intent to sign the document. (6) 'Paper document' means a document that is received by the clerk of superior court that is not electronic. (7) 'Person' means an individual, corporation, business trust, estate, trust partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity. (8) 'State' means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

44-2-37. (a) An electronic document prepared and filed in compliance with this part shall satisfy any requirement as a condition for recording that a document be an original, on paper or another tangible medium, or in writing. (b) An electronic signature shall satisfy any requirement as a condition for recording that a document be signed. (c) A requirement that a document or a signature associated with a document be notarized, acknowledged, verified, witnessed, or made under oath is satisfied if the electronic signature of the person authorized to perform that act, and all other information required to be included by other applicable law, is attached to or logically associated with the

GEORGIA LAWS 2009 SESSION

697

document or signature. A physical or electronic image of a stamp, impression, or seal need not accompany an electronic signature.

44-2-38. A clerk of superior court:
(I) Who implements any of the functions listed in this Code section shall do so in compliance with standards established by the authority; (2) May receive, index, store, archive, and transmit electronic documents; (3) May provide for access to, and search and retrieval of, documents and information by electronic means; (4) Who accepts electronic documents for recording shall continue to accept for filing paper documents as authorized by state law and shall record both electronic documents and paper documents in the same manner as provided for by law; (5) For archival purposes, may convert into electronic form paper documents accepted for recording; (6) May convert into electronic form historical documents recorded on paper; (7) May accept electronically any fee or other moneys that the clerk of superior court is authorized to collect; and (8) May agree with other officials of a state or a political subdivision thereof, or of the United States, on procedures or processes to electronically facilitate satisfaction of prior approvals and conditions precedent to recording and on the electronic payment of statutorily required fees and other moneys.

44-2-39. (a) The authority shall adopt rules and regulations and any standardized forms necessary to implement this part. (b) To promote uniform standards and practices and compatibility of technology used within offices of clerks of superior court in this state and recording offices in other states that have enacted or may enact provisions substantially similar to those contained within this part, the authority shall consider when adopting, amending, and repealing its rules and regulations and any standardized forms:
(l) Standards and practices of other jurisdictions; (2) The most recent standards promulgated by national standard-setting bodies, such as the Property Records Industry Association; (3) The views of interested persons and governmental officials and entities; (4) The needs of counties of varying size, population, and resources; and (5) Standards that ensure that electronic documents are accurate, authentic, adequately preserved, and resistant to tampering.

698

GENERAL ACTS AND RESOLUTIONS, VOL. I

44-2-39.1. In applying and construing this part, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact substantially similar provisions.

44-2-39.2. The provisions of this part modify, limit, and supersede the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., but shall not modify, limit, or supersede Section 10l(c) of that federal act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that federal act, 15 U.S.C. Section 7003(b).'

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

COMMERCE- CORPORATIONS- COURTS- HEALTHINSURANCE- PROFESSIONS- PROPERTYSTATE GOVERNMENT- UNIFORM ELECTRONIC TRANSACTIONS ACT.
No. 141 (House Bill No. 126).
AN ACT
To amend Title 10 of the Official Code of Georgia Annotated, relating to commerce and trade, so as to enact the Uniform Electronic Transactions Act; to provide for definitions; to provide for the authorization of electronic records and electronic signatures; to provide for admissibility of certain electronic records and electronic signatures; to provide for the use of electronic records and electronic signatures to vary by agreement of certain parties; to provide for the presentation of certain records; to provide for the effect of an electronic record or an electronic signature; to provide for the effect of a change or error; to provide for notarization and acknowledgment of an electronic record or an electronic signature; to

GEORGIA LAWS 2009 SESSION

699

provide for the retention of electronic records; to provide for automated transactions; to provide for transferable records; to provide for acceptance and distribution of electronic records by governmental agencies; to provide for exclusions; to provide for applicability; to provide for relief from the unauthorized use of electronic signatures; to amend Titles 14, 15, 31, 33, 43, 44, and 50 of the Official Code of Georgia Annotated, relating to corporations, courts, health, insurance, professions and businesses, property, and state government, respectively, so as to correct cross-references; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Title 10 of the Official Code of Georgia Annotated, relating to commerce and trade, is amended by revising Chapter 12, relating to electronic records and signatures, in its entirety as follows:

"CHAPTER 12 10-12-1. This chapter shall be known and may be cited as the 'Uniform Electronic Transactions Act.'

10-12-2. As used in this chapter, the term:
(1) 'Agreement' means the bargain of the parties in fact, as found in their language or inferred from other circumstances and from rules, regulations, and procedures, given the effect of agreements under laws otherwise applicable to a particular transaction. (2) 'Automated transaction' means a transaction conducted or performed, in whole or in part, by electronic means or electronic records in which the acts or records of one or both parties are not reviewed by an individual in the ordinary course in forming a contract, performing under an existing contract, or fulfilling an obligation required by the transaction. (3) 'Computer program' means a set of statements or instructions to be used directly or indirectly in an information processing system in order to bring about a certain result. (4) 'Contract' means the total legal obligation resulting from the parties' agreement as affected by this chapter and other applicable law. (5) 'Electronic' means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. (6) 'Electronic agent' means a computer program or an electronic or other automated means used independently to initiate an action or respond to electronic records or performances, in whole or in part, without review or action by an individual. (7) 'Electronic record' means a record created, generated, sent, communicated, received, or stored by electronic means.

700

GENERAL ACTS AND RESOLUTIONS, VOL. I

(8) 'Electronic signature' means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record. (9) 'Governmental agency' means an executive, legislative, or judicial agency, department, board, commission, authority, institution, or instrumentality of the federal government or of a state or of a county, municipality, or other political subdivision of a state. (I 0) 'Information' means data, text, images, sounds, codes, computer programs, software, data bases, or the like. (II) 'Information processing system' means an electronic system for creating, generating, sending, receiving, storing, displaying, or processing information. (12) 'Person' means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, governmental agency, public corporation, or any other legal or commercial entity. (13) 'Record' means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. (14) 'Security procedure' means a procedure employed for the purpose of verifying that an electronic signature, record, or performance is that of a specific person or for detecting changes or errors in the information in an electronic record. The term includes a procedure that requires the use of algorithms or other codes, identifying words or numbers, encryption, or callback or other acknowledgment procedures. (15) 'State' means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band, or Alaskan native village, which is recognized by federal law or formally acknowledged by a state. (16) 'Transaction' means an action or set of actions occurring between two or more persons relating to the conduct of business, commercial, or governmental affairs.

10-12-3. (a) Except as otherwise provided in subsection (b) of this Code section, this chapter shall apply to electronic records and electronic signatures relating to a transaction. (b) This chapter shall not apply to a transaction to the extent it is governed by:
(I) A Jaw governing the creation and execution of wills, codicils, or testamentary trusts; (2) Title !!other than Code Sections 11-1-107 and 11-1-206, Article 2, and Article 2A; or (3) The Uniform Computer Information Transactions Act. (c) This chapter shall apply to an electronic record or electronic signature otherwise excluded from the application of this chapter under subsection (b) of this Code section to the extent it is governed by a law other than those specified in subsection (b) of this Code section.

GEORGIA LAWS 2009 SESSION

701

(d) A transaction subject to this chapter shall also be subject to other applicable substantive law. (e) A governmental agency which is a party to a transaction subject to this chapter shall also be further subject to the records retention requirements for state and local government records established by state law.

10-12-4. This chapter shall apply to any electronic record or electronic signature created, generated, sent, communicated, received, or stored on or after July 1, 2009.

10-12-5. (a) This chapter shall not require a record or signature to be created, generated, sent, communicated, received, stored, or otherwise processed or used by electronic means or in electronic form. (b) This chapter shall apply only to transactions between parties each of which has agreed to conduct transactions by electronic means. Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties' conduct. (c) A party that agrees to conduct a transaction by electronic means rnay refuse to conduct other transactions by electronic means. The right granted by this subsection shall not be waived by agreement. (d) Except as otherwise provided in this chapter, the effect of any of this chapter's provisions may be varied by agreement. The presence in certain provisions of this chapter of the words 'unless otherwise agreed,' or words of similar import, shall not imply that the effect of other provisions may not be varied by agreement. (e) Whether an electronic record or electronic signature has legal consequences shall be determined by this chapter and other applicable laws.

10-12-6. This chapter shall be construed and applied:
(1) To facilitate electronic transactions consistent with other applicable laws; (2) To be consistent with reasonable practices concerning electronic transactions and with the continued expansion of those practices; and (3) To effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.

10-12-7. (a) A record or signature shall not be denied legal effect or enforceability solely because it is in electronic form. (b) A contract shall not be denied legal effect or enforceability solely because an electronic record was used in its formation.

702

GENERAL ACTS AND RESOLUTIONS, VOL. I

(c) If a law requires a record to be in writing, an electronic record shall satisfy the law. (d) If a law requires a signature, an electronic signature shall satisfy the law.

10-12-8. (a) If parties have agreed to conduct a transaction by electronic means and a law requires a person to provide, send, or deliver information in writing to another person, the requirement shall be satisfied if the information is provided, sent, or delivered, as the case may be, in an electronic record capable of retention by the recipient at the time of receipt An electronic record is not capable of retention by the recipient if the sender or its information processing system inhibits the ability of the recipient to print or store the electronic record. (b) If a law other than this chapter requires a record to be posted or displayed in a certain manner; to be sent, communicated, or transmitted by a specified method; or to contain information that is formatted in a certain manner, the following rules shall apply:
(1) The record shall be posted or displayed in the manner specified in the other law; (2) Except as otherwise provided in paragraph (2) of subsection (d) of this Code section, the record shall be sent, communicated, or transmitted by the method specified in the other law; and (3) The record shall contain the information formatted in the manner specified in the other law. (c) If a sender inhibits the ability of a recipient to store or print an electronic record, the electronic record shall not be enforceable against the recipient. (d) The requirements of this Code section shall not be varied by agreement, but: (1) To the extent a law other than this chapter requires information to be provided, sent, or delivered in writing but permits that requirement to be varied by agreement, the requirement under subsection (a) of this Code section that the information be in the form of an electronic record capable of retention may also be varied by agreement; and (2) A requirement under a law other than this chapter to send, communicate, or transmit a record by first-class mail, postage prepaid, or by regular United States mail may be varied by agreement to the extent permitted by the other law.

10-12-9. (a) An electronic record or electronic signature shall be attributable to a person if such record or signature was the act of the person. The act of the person may be shown in any manner, including a showing ofthe efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable. (b) The effect of an electronic record or electronic signature attributed to a person under subsection (a) of this Code section shall be determined from the context and surrounding circumstances at the time of its creation, execution, or adoption, including the parties' agreement, if any, and otherwise as provided by law.

GEORGIA LAWS 2009 SESSION

703

10-12-10. If a change or error in an electronic record occurs in a transmission between parties to a transaction, the following rules shall apply:
(1) If the parties have agreed to use a security procedure to detect changes or errors and one party has conformed to the procedure but the other party has not, and the nonconforming party would have detected the change or error had that party also conformed, the conforming party may avoid the effect of the changed or erroneous electronic record; (2) In an automated transaction involving an individual, the individual may avoid the effect of an electronic record that resulted from an error made by the individual in dealing with the electronic agent of another person if the electronic agent did not provide an opportunity for the prevention or correction of the error and, at the time the individual learns of the error, the individual:
(A) Promptly notifies the other person ofthe error and that the individual did not intend to be bound by the electronic record received by the other person; (B) Takes reasonable steps, including steps that conform to the other person's reasonable instructions, to return to the other person or, if instructed by the other person, to destroy the consideration received, if any, as a result of the erroneous electronic record; and (C) Has not used or received any benefit or value from the consideration, if any, received from the other person; (3) If neither paragraph (1) nor paragraph (2) of this Code section applies, the change or error shall have the effect provided by other law, including the law of mistake, and the parties' contract, if any; and (4) Paragraphs (2) and (3) of this Code section shall not be varied by agreement.

10-12-11. If a law requires a signature or record to be notarized, acknowledged, verified, or made under oath, such requirement shall be satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record.

10-12-12. (a) If a law requires that a record be retained, such requirement shall be satisfied by retaining an electronic record of the information in the record which:
(1) Accurately reflects the information set forth in the record after it was first generated in its final form as an electronic record or otherwise; and (2) Remains accessible for the retention period required by law. (b) A requirement to retain a record in accordance with subsection (a) of this Code section shall not apply to any information the sole purpose of which is to enable the record to be sent, communicated, or received.

704

GENERAL ACTS AND RESOLUTIONS, VOL. I

(c) A person may satisfy subsection (a) of this Code section by using the services of another person if the requirements of that subsection are satisfied. (d) If a law requires a record to be presented or retained in its original form, or provides consequences if the record is not presented or retained in its original form, that law is satisfied by an electronic record retained in accordance with subsection (a) of this Code section. (e) If a law requires retention of a check, that requirement is satisfied by retention of an electronic record of the information on the front and back of the check in accordance with subsection (a) of this Code section. (f) A record retained as an electronic record in accordance with subsection (a) of this Code section shall satisfy a law requiring a person to retain a record for evidentiary, audit, or like purposes unless a law enacted after the effective date of this chapter specifically prohibits the use of an electronic record for the specified purpose. (g) This Code section shall not preclude a governmental agency of this state from specifying additional requirements for the retention of a record subject to the agency's jurisdiction. (h) This Code section shall not preclude the Georgia Technology Authority from specifying additional technology requirements in accordance with Code Section 50-25-4.

10-12-13. In a proceeding, evidence of a record or signature shall not be excluded solely because it is in electronic form.

10-12-14. In an automated transaction, the following rules shall apply:
(I) A contract may be formed by the interaction of electronic agents of the parties, even if no individual was aware of or reviewed the electronic agents' actions or the resulting terms and agreements; (2) A contract may be formed by the interaction of an electronic agent and an individual, acting on the individual's own behalf or for another person, including by an interaction in which the individual performs actions that the individual is free to refuse to perform and which the individual knows or has reason to know will cause the electronic agent to complete the transaction or performance; and (3) The terms of the contract are determined by the substantive law applicable to the contract.

10-12-15. (a) Unless otherwise agreed between the sender and the recipient, an electronic record is sent when:
(I) It is addressed properly or otherwise directed properly to an information processing system that the recipient has designated or uses for receiving electronic records or

GEORGIA LAWS 2009 SESSION

705

information ofthe type sent and from which the recipient is able to retrieve the electronic record; (2) It is in a form capable of being processed by that system; and (3) It enters an information processing system outside the control of the sender or of a person that sent the electronic record on behalf of the sender or enters a region of the information processing system designated or used by the recipient which is under the control of the recipient. (b) Unless otherwise agreed between a sender and the recipient, an electronic record is received when: (1) It enters an information processing system that the recipient has designated or uses for receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record; and (2) It is in a form capable of being processed by that system. (c) Subsection (b) of this Code section shall apply even if the information processing system is located in a different place than the electronic record is deemed to be received under subsection (d) of this Code section. (d) Unless otherwise expressly provided in the electronic record or agreed between the sender and the recipient, an electronic record is deemed to be sent from the sender's place of business and to be received at the recipient's place of business. For purposes of this subsection, the following rules shall apply: (I) If the sender or recipient has more than one place of business, the place of business of that person is the place having the closest relationship to the underlying transaction; and (2) If the sender or the recipient does not have a place of business, the place of business is the sender's or recipient's residence, as the case may be. (e) An electronic record is received under subsection (b) of this Code section even if no individual is aware of its receipt. (f) Receipt of an electronic acknowledgment from an information processing system described in subsection (b) of this Code section shall establish that a record was received but, by itself, does not establish that the content sent corresponds to the content received. (g) If a person is aware that an electronic record purportedly sent under subsection (a) of this Code section, or purportedly received under subsection (b) of this Code section, was not actually sent or received, the legal effect of the sending or receipt shall be determined by other applicable law. Except to the extent permitted by the other law, the requirements of this subsection shall not be varied by agreement.

10-12-16. (a) As used in this Code section, 'transferable record' means an electronic record that:
(1) Would be a note under Article 3 of Title 11 or a document under Article 7 of Title 11 if the electronic record were in writing; and (2) The issuer of the electronic record expressly has agreed is a transferable record.

706

GENERAL ACTS AND RESOLUTIONS, VOL. I

(b) A person has control of a transferable record if a system employed for evidencing the transfer of interests in the transferable record reliably establishes that person as the person to which the transferable record was issued or transferred. (c) A system satisfies subsection (b) of this Code section, and a person is deemed to have control of a transferable record, if the transferable record is created, stored, and assigned in such a manner that:
(I) A single authoritative copy of the transferable record exists which is unique, identifiable, and, except as otherwise provided in paragraphs (4), (5), and (6) of this subsection, unalterable; (2) The authoritative copy identifies the person asserting control as:
(A) The person to which the transferable record was issued; or (B) Ifthe authoritative copy indicates that the transferable record has been transferred, the person to which the transferable record was most recently transferred; (3) The authoritative copy is communicated to and maintained by the person asserting control or its designated custodian; (4) Copies or revisions that add or change an identified assignee ofthe authoritative copy can be made only with the consent of the person asserting control; (5) Each copy of the authoritative copy and any copy of a copy is readily identifiable as a copy that is not the authoritative copy; and (6) Any revision of the authoritative copy is readily identifiable as authorized or unauthorized. (d) Except as otherwise agreed, a person having control of a transferable record is the holder, as defined in Code Section 11-1-201, of the transferable record and has the same rights and defenses as a holder of an equivalent record or writing under Title II, including, if the applicable statutory requirements under subsection (a) of Code Section 11-3-302 or Code Section 11-7-50 I or 11-9-308 are satisfied, the rights and defenses of a holder in due course, a holder to which a negotiable document of title has been duly negotiated, or a purchaser, respectively. Delivery, possession, and indorsement are not required to obtain or exercise any of the rights under this subsection. (e) Except as otherwise agreed, an obligor under a transferable record shall have the same rights and defenses as an equivalent obligor under equivalent records or writings under Title II. (f) If requested by a person against which enforcement is sought, the person seeking to enforce the transferable record shall provide reasonable proof that the person is in control of the transferable record. Proof may include access to the authoritative copy of the transferable record and related business records sufficient to review the terms of the transferable record and to establish the identity of the person having control of the transferable record.

GEORGIA LAWS 2009 SESSION

707

10-12-17. Each governmental agency of this state shall determine whether, and the extent to which, it will create and retain electronic records and convert written records to electronic records.

10-12-18. (a) Except as otherwise provided in subsection (f) of Code Section 10-12-12, each governmental agency of this state shall determine whether, and the extent to which, it will send and accept electronic records and electronic signatures to and from other persons and otherwise create, generate, communicate, store, process, use, and rely upon electronic records and electronic signatures. (b) To the extent that a governmental agency uses electronic records and electronic signatures under subsection (a) of this Code section, the governmental agency, giving due consideration to security, may specify:
(1) The manner and format in which the electronic records shall be created, generated, sent, communicated, received, and stored and the systems established for those purposes; (2) If electronic records must be signed by electronic means, the type of electronic signature required, the manner and format in which the electronic signature shall be affixed to the electronic record, and the identity of, or criteria that shall be met by, any third party used by a person filing a document to facilitate the process; (3) Control processes and procedures as appropriate to ensure adequate preservation, disposition, integrity, security, confidentiality, and auditability of electronic records; and (4) Any other required attributes for electronic records which are specified for corresponding nonelectronic records or reasonably necessary under the circumstances. (c) Except as otherwise provided in subsection (f) of Code Section 10-12-12, this chapter shall not require a governmental agency of this state to use or permit the use of electronic records or electronic signatures.

10-12-19. Any governmental agency of this state which adopts standards pursuant to Code Section 10-12-18 may encourage and promote consistency and interoperability with similar requirements adopted by other governmental agencies of this and other states and the federal government and nongovernmental persons interacting with governmental agencies ofthis state. If appropriate, those standards may specify differing levels of standards from which governmental agencies of this state may choose in implementing the most appropriate standard for a particular application.

10-12-20. This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commere Act, 15 U.S.C. Section 7001, et. seq., but does not modify, limit, or supersede Section 10 1(c) of that act, 15 U.S.C. Section 7001 (c), or authorize electronic

708

GENERAL ACTS AND RESOLUTIONS, VOL. I

delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).'

SECTION 2. The following Code sections of the Official Code of Georgia Annotated are amended by replacing "Georgia Electronic Records and Signatures Act" wherever it occurs with "Uniform Electronic Transactions Act":
(1) Code Section 14-2-120, relating to filing requirements relative to business corporations; (2) Code Section 14-3-120, relating to filing of documents relative to nonprofit corporations; (3) Code Section 14-9-206, relating to filing with the Secretary of State relative to the Georgia Revised Uniform Limited Partnership Act; (4) Code Section 14-11-206, relating to filing by the Secretary of State relative to limited liability companies; (5) Code Section 33-22-14.1, relating to transmissions of electronic records subject to the provisions of the Georgia Electronic Records and Signatures Act; (6) Code Section 44-3-102, relating to meetings of condominium associations, notice, and reports; and (7) Code Section 44-3-230, relating to the frequency of property owners' association meetings and notice.

SECTION 3. Code Section 15-10-53 of the Official Code of Georgia Annotated, relating to filing documents by electronic means, is revised as follows:
"15-10-53. (a) Any magistrate court may provide for the filing of civil, garnishment, distress warrant, dispossessory, foreclosure, abandoned motor vehicle, and all other noncriminal actions, claims, answers, counterclaims, pleadings, postjudgment interrogatories, and other documents by electronic means. (b) Any pleading or document filed electronically shall be in a format prescribed by the court. (c) Any pleading or document filed electronically shall include the electronic signature of the person filing the pleading or document as defined in Code Section 10-12-2. (d) Any pleading or document filed electronically which is required to be verified, verified under oath, or be accompanied by an affidavit may include such verification, oath, or affidavit by one of the following methods:
( 1) As provided in Code Section 10-12-11; (2) By oath or affirmation of the party filing the pleading at the time of the trial of the case; (3) By supplemental verified pleading; or

GEORGIA LAWS 2009 SESSION

709

(4) By electronic verification, oath, or affidavit in substantially the following form:

'By affixing this electronic verification, oath, or affidavit to the pleading(s) submitted

to the court and attaching my electronic signature hereon, I do hereby swear or affirm

that the statements set forth in the above pleading(s) are true and correct.

Date:

Electronic Signature:_____

(e) Service of any claim or complaint filed electronically shall be made as provided by

law. Service of all subsequent pleadings and notices may be made electronically only on

a party who has filed pleadings electronically; service on all other parties shall be made by

such other means as are provided by law. Each pleading or document which is required to

be served on other parties shall include a certificate of service indicating the method by

which service on the other party has been made. An electronic certificate of service shall

be made in substantially the following form:

'By affixing this electronic certificate of service to the pleading(s) or document(s)

submitted to the court and attaching my electronic signature hereon, I do hereby swear

or affirm that I have this date served the opposing party with a copy of this pleading by

e-mail or placing a copy in regular mail with sufficient postage thereon to the following

address: (set forth address of opposing party).

Date:

Electronic Signature:_ _ _ _ _ __

(f) Nothing in this Code section shall prevent a party from contesting an electronic

pleading, document, or signature on the basis of forgery or fraud. Any pleading or

document found by the court to have been fraudulently filed shall be stricken from the

record.

(g) Where the authenticity or the integrity of an electronic pleading, document, or

signature is challenged, the proponent of the electronic pleading, document, or signature

shall have the burden of proving that the electronic pleading, document, or signature is

authentic.

(h) Upon the receipt of any pleading or other document filed electronically, the clerk of

magistrate court shall notify the filer of receipt of the pleading or document. Such notice

shall include the date and time the court accepted the pleading or document as filed.

(i) Any pleading or document filed electronically shall be deemed filed as of the time the

clerk of court gains electronic control of the document.

(j) When the filing of the pleading or document requires the payment of a fee, the clerk of

magistrate court may establish procedures for the payment of such fees connected with

such filing. The filing of any such pleading or document shall create an obligation by the

party to pay such fee to the clerk of court instanter.

(k) The clerk of court may assess an additional transaction fee or fees for each electronic

filing and electronic payment.'

SECTION 4. Code Section 31-33-8 of the Official Code of Georgia Annotated, relating to electronic records, is amended by revising subsection (a) as follows:

710

GENERAL ACTS AND RESOLUTIONS, VOL. I

'31-33-8. (a) Notwithstanding any other provision of the law to the contrary, any provider may, in its sole discretion, create, maintain, transmit, receive, and store records in an electronic format within the meaning of Code Section 10-12-2 and may, in its sole discretion, temporarily or permanently convert records into an electronic format."

SECTION 5. Code Section 43-39A-4.1 of the Official Code of Georgia Annotated, relating to rules and regulations with respect to real estate appraisers, is revised as follows:
'43-39A-4.1. Notwithstanding any provision of law to the contrary, with respect to any form or application required to be completed by an applicant or an appraiser, or with respect to any document required to be issued by the board, the board is authorized to promulgate rules and regulations setting forth:
(I) Any procedure that will reduce the use of paper forms, applications, or documents; (2) Any procedure that will reduce the necessity for the board to maintain paper documents; (3) The procedure for submitting or issuing any such form, application, or document by facsimile or electronic means; and (4) The procedure for satisfying any signature requirement on any such form by electronic signature, voice signature, or other means so long as appropriate security measures are implemented that assure security and verification of any required signature. As used in this Code section, the term 'electronic signature' shall have the same meaning as provided in Code Section 10-12-2."

SECTION 6. Code Section 43-40-3.1 of the Official Code of Georgia Annotated, relating to rules and regulations with respect to real estate brokers and salespersons, is revised as follows:
'43-40-3.1. Notwithstanding any provision of law to the contrary, with respect to any form or application required to be completed by an applicant or a licensee, or with respect to any document required to be issued by the commission, the commission is authorized to promulgate rules and regulations setting forth:
(I) Any procedure that will reduce the use of paper forms, applications, or documents; (2) Any procedure that will reduce the necessity for the commission to maintain paper documents; (3) The procedure for submitting or issuing any such form, application, or document by facsimile or electronic means; and (4) The procedure for satisfying any signature requirement on any such form by electronic signature, voice signature, or other means so long as appropriate security measures are implemented that assure security and verification of any required signature.

GEORGIA LAWS 2009 SESSION

711

As used in this Code section, the term 'electronic signature' shall have the same meaning as provided in Code Section 10-12-2."

SECTION 7. Code Section 50-18-72 ofthe Official Code of Georgia Annotated, relating to when public disclosure of certain records is not required and the disclosure of exempting legal authority, is amended by revising paragraph (12) of subsection (a) as follows:
'(12) Public records containing information that would disclose or might lead to the disclosure of any component in the process used to execute or adopt an electronic signature, if such disclosure would or might cause the electronic signature to cease being under the sole control of the person using it. For purposes of this paragraph, the term 'electronic signature' has the same meaning as that term is defined in Code Section 10-12-2;'

SECTION 8. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

HEALTH- HOSPITAL ACQUISITION; ATTORNEY GENERAL; NOTICE OF COSTS AND EXPENSES.
No. 142 (House Bill No. 667).
AN ACT
To amend Article 15 of Chapter 7 of Title 31 of the Official Code of Georgia Annotated, relating to hospital acquisition, so as to change certain provisions relating to content and form ofnotice to the Attorney General, fees, and retention of experts; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Article 15 of Chapter 7 of Title 31 of the Official Code of Georgia Annotated, relating to hospital acquisition, is amended by revising subsections (c) and (d) of Code Section 31-7-402, relating to content and form of notice to the Attorney General, fees, and retention of experts, as follows:

712

GENERAL ACTS AND RESOLUTIONS, VOL. I

"(c) The Attorney General shall be authorized to retain financial, economic, health planning, or other experts or consultants to assist in addressing each of the criteria set forth in Code Section 31-7-406. Within 30 days after notice from the Attorney General, the actual and reasonable cost and expense incurred in connection with the retention of such experts or consultants shall be paid directly to such experts and consultants by the parties to the proposed transaction in such proportionate amounts as the parties may agree or otherwise as determined by the Attorney General."

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

ELECTIONS- VOTER REGISTRATION; PROOF OF U.S. CITIZENSHIP.
No. 143 (Senate Bill No. 86).
AN ACT
To amend Article 6 of Chapter 2 of Title 21 of the Official Code of Georgia Annotated, relating to registration of voters, so as to provide that persons applying to register to vote shall provide evidence of United States citizenship prior to the acceptance of their registrations; to provide for acceptable forms of evidence of citizenship; to provide for retention of such information; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Article 6 of Chapter 2 of Title 21 of the Official Code of Georgia Annotated, relating to registration of voters, is amended by adding a new subsection to Code Section 21-2-216, relating to qualifications of electors generally, to read as follows:
"(g)(l) On and after January 1, 2010, an application for registration under this chapter shall be accompanied by satisfactory evidence of United States citizenship. Upon the

GEORGIA LAWS 2009 SESSION

713

receipt of an application without satisfactory evidence of citizenship, the board of registrars shall notify the applicant in writing of the requirement to provide satisfactory evidence of citizenship. The board of registrars shall not determine the eligibility of the applicant until and unless satisfactory evidence ofcitizenship is supplied by the applicant. If the initial application is received without satisfactory evidence of citizenship prior to the close of voter registration preceding an election, but the applicant supplies satisfactory evidence of citizenship on or prior to the date of such election and the applicant is found eligible to vote, the applicant shall be permitted to vote in the election and any run-off elections resulting therefrom and subsequent elections; provided, however, that those electors who register to vote for the first time in this state by mail also shall supply current and valid identification as required in subsection (c) of Code Section 21-2-220. In the event the applicant does not respond to the request for the missing information within 30 days following the sending of notification to provide satisfactory evidence of citizenship, the application shall be rejected. (2) Satisfactory evidence of citizenship shall include any of the following:
(A) The number of the applicant's Georgia driver's license or identification card issued by the Department ofDriver Services ifthe applicant has provided satisfactory evidence ofUnited States citizenship to the Department ofDriver Services or a legible photocopy of the applicant's driver's license or identification card issued by an equivalent government agency of another state if the agency indicates on the driver's license or identification card that the applicant has provided satisfactory evidence ofUnited States citizenship to the agency; (B) A legible photocopy of the applicant's birth certificate that verifies citizenship to the satisfaction of the board of registrars; (C) A legible photocopy of pertinent pages of the applicant's United States passport identifying the applicant and the applicant's passport number or presentation to the board of registrars of the applicant's United States passport; (D) A presentation to the board of registrars of the applicant's United States naturalization documents or the alien registration number from the applicant's naturalization documents. If only the applicant's alien registration number is provided, the applicant shall not be found eligible to vote until the applicant's alien registration number is verified with the United States Citizenship and Immigration Services by the board of registrars; (E) Other documents or methods of proof that are established pursuant to the federal Immigration Reform and Control Act of 1986 (P. L. 99-603); (F) The applicant's Bureau of Indian Affairs. card number, tribal treaty card number, or tribal enrollment number; and (G) For residents of this state who are United States citizens but are not in possession of any of the documents or methods of proof enumerated under subparagraphs (A) through (F) of this paragraph, other documents or methods of proof for establishing

714

GENERAL ACTS AND RESOLUTIONS, VOL. I

evidence ofUnited States citizenship which shall be promulgated by rule and regulation of the State Election Board. (3) Notwithstanding any provision ofthis subsection, any person who is registered in this state on December 31, 2009, shall be deemed to have provided satisfactory evidence of citizenship and shall not be required to submit evidence of citizenship. (4) After citizenship has been demonstrated to a board of registrars, an elector shall not be required to resubmit satisfactory evidence of citizenship in that or any other county in this state so long as the person continuously remains an elector of this state. (5) For the purposes of this subsection, proof of voter registration from another state shall not be satisfactory evidence of citizenship. (6) After a person has submitted satisfactory evidence of citizenship, the board of registrars shall indicate such information on the elector's voter registration record. After two years, the board of registrars may destroy all documents that were submitted as evidence of citizenship. (7) The Secretary of State shall establish procedures to match an applicant's voter registration information to the information contained in the data base maintained by the Department of Driver Services for the verification of the accuracy of the information provided on the application for voter registration, including whether the applicant has provided satisfactory evidence of United States citizenship.'

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

CONSERVATION -GEORGIA VOLUNTARY REMEDIATION PROGRAM ACT.
No. 144 (House Bill No. 248).
AN ACT
To amend Article 3 of Chapter 8 of Title 12 of the Official Code of Georgia Annotated, relating to hazardous waste, so as to provide for voluntary and timely investigation and remediation of properties where there have been releases of regulated substances into the environment for the purpose of reducing human and environmental exposure to safe levels; to provide a short title; to provide legislative declarations; to define certain terms; to provide for power and duties of the director of the Environmental Protection Division; to provide criteria for qualifying for a voluntary remediation program; to provide for corrective action;

GEORGIA LAWS 2009 SESSION

715

to provide for program standards and policies; to provide for rules and regulations; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Article 3 of Chapter 8 of Title 12 of the Official Code of Georgia Annotated, relating to hazardous waste, is amended by adding a new part to read as follows:

'Part 3

12-8-100. This part shall be known and may be cited as the 'Georgia Voluntary Remediation Program Act.'

12-8-101. (a) It is declared to be the public policy of the State of Georgia to encourage the voluntary and timely investigation and remediation of properties where there have been releases of regulated substances into the environment for the purpose of reducing human and environmental exposure to safe levels, to protect current and likely future use of groundwater, and to ensure the cost-effective allocation of limited resources that fully accomplish the provisions, purposes, standards, and policies of this part. (b) The General Assembly declares its intent to encourage voluntary and cost-effective investigation and remediation of qualifying properties under this part and that provisions of this part shall apply and take precedence over any conflicting provisions, regulations, or policies existing under Part 2 of this article with regard to any properties properly enrolled in the voluntary remediation program created under this part.

12-8-102. (a) Unless otherwise provided in this part, the definition of all terms included in Code Sections 12-8-62, 12-8-92, and 12-8-202 shall be applicable to this part. (b) As used in this part, the term:
(1) 'Cleanup standards' means those rules and regulations adopted by the board pursuant to Code Section 12-8-93. (2) 'Constituents of concern' means the specific regulated substances that may contribute to unacceptable exposure at a site. (3) 'Controls' means institutional controls or engineering controls. (4) 'Engineering controls' means any physical mechanism, device, measure, system, or actions taken at a property that minimize the potential for exposure, control migration or dispersal, or maintain the effectiveness of other remedial actions. Engineering controls may include, without limitation, caps, covers, physical barriers, containment structures,

716

GENERAL ACTS AND RESOLUTIONS, VOL. I

leachate collection systems, ground water or surface water control systems, solidification, stabilization, treatment, fixation, slurry walls, and vapor control systems. Engineered property development features shall be acceptable as engineering controls provided these features physically control or eliminate the potential for exposure to contaminants of concern or control migration. (5) 'Exposure' means contact of a constituent of concern with a receptor. (6) 'Exposure domain' means the contaminated geographical area or areas of a site that can result in exposure to a particular receptor by a specified exposure pathway: the soil exposure domain for routine surficial contact with site soils is the soil area impacted by site constituents of concern from the ground surface down to a depth of two feet below ground surface; the soil exposure domain for exposure of construction workers or underground utility workers is the impacted area of site soils from the ground surface down to the depth of construction; and the soil exposure domain for protection of groundwater at an established point of exposure is the impacted area of site soils from the ground surface down to the uppermost groundwater zone. (7) 'Exposure pathway' means a route by which a receptor comes into contact with a constituent of concern. (8) 'Fate and transport parameters' means quantitative factors that describe the various media through which constituents of concern migrate from a source of release to a receptor. (9) 'Institutional controls' means legal or administrative measures that minimize the potential for human exposure to contaminants of concern or protect and enhance the integrity of a remedy or engineering controls. Examples include, without restriction: easements, covenants, deed notices, well drilling or groundwater use prohibitions, zoning restrictions, digging restrictions, orders, building permit conditions, and land-use restrictions. ( 10) 'Point of demonstration wells' means monitoring wells located between the source of site groundwater contamination and the actual or estimated downgradient point of exposure. ( 11) 'Point of exposure' means the nearest of the following locations:
(A) The closest existing down gradient drinking water supply well; (B) The likely nearest future location of a downgradient drinking water supply well where public supply water is not currently available and is not likely to be made available within the foreseeable future; or (C) The hypothetical point of drinking water exposure located at a distance of 1000 feet downgradient from the delineated site contamination under this part. (12) 'Proof of financial assurance' means a mechanism, in a form specified by the director, designed to demonstrate that sufficient funds will be available to implement and maintain specific actions or controls. Mechanisms for proof of financial assurance include, but are not limited to, insurance, trust funds, surety bonds, letters of credit, performance bonds, certificates of deposit, financial tests, and corporate guarantees.

GEORGIA LAWS 2009 SESSION

717

(13) 'Receptor' means any human or sensitive organism which is or has the reasonable potential to be adversely affected by the release of constituents of concern. (14) 'Representative concentration' means the average concentration to which a specified receptor is exposed over an exposure duration within a relevant exposure domain for soils or at an established or estimated point of exposure for groundwater and consistent with United States Environmental Protection Agency guidance for determination of average exposure concentration. (15) 'Voluntary remediation program' means the program established under this part. (16} 'Voluntary remediation property' means a qualifying property enrolled in the voluntary remediation program. (17) 'Technical impracticability' means the inability to fully delineate or remediate contamination without incremental expenditures disproportionate to the incremental benefit. An example may include, without limitation, dense non-aqueous phase liquids in fractured bedrock settings.

12-8-103. The board shall have the power to adopt, promulgate, modify, amend, and repeal rules and regulations to implement and enforce the provisions ofthis part as necessary to provide for the investigation and remediation of voluntary remediation properties, to the extent necessary to facilitate the accomplishment of the provisions, purposes, standards, and policies of this part.

12-8-104. (a) The director shall have the power and duty:
(1) To make determinations, in accordance with procedures and criteria enumerated in this part, as to whether a property qualifies and an applicant is eligible for the voluntary remediation program; (2) To approve, in accordance with procedures and criteria enumerated in this part and rules and regulations promulgated pursuant to this part, voluntary remediation plans; (3) To approve, in accordance with procedures and criteria enumerated in this part and rules and regulations promulgated pursuant to this part, compliance status reports; (4) To concur with certifications of compliance; (5) To collect application fees from participants; and (6) To grant waivers of all or any portion of the fees provided by this part for any small business or for any county, municipality, or other political subdivision of this state. (b) The powers and duties described in subsection (a) of this Code section may be exercised and performed by the director through such duly authorized agents and employees as the director deems necessary and proper.

718

GENERAL ACTS AND RESOLUTIONS, VOL. I

12-8-105. In order to be considered a qualifying property for the voluntary remediation program under this part, a property shall meet the following criteria:
(1) The property must be listed on the inventory under Part 2 of this article or be a property which meets the criteria of Code Section 12-8-205 or otherwise have a release of regulated substances into the environment; (2) The property shall not:
(A) Be listed on the federal National Priorities List pursuant to the federal Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601, et seq.; (B) Be currently undergoing response activities required by an order of the regional administrator of the federal Environmental Protection Agency; or (C) Be a facility required to have a permit under Code Section 12-8-66; (3) Qualifying the property under this part would not violate the terms and conditions under which the division operates and administers remedial programs by delegation or similar authorization from the United States Environmental Protection Agency; and (4) Any lien filed under subsection (e) of Code Section 12-8-96 or subsection (b) of Code Section 12-13-12 against the property shall be satisfied or settled and released by the director pursuant to Code Section 12-8-94 or Code Section 12-13-6.

12-8-106. A participant in the voluntary remediation program must meet the following criteria:
(1) Be the property owner of the voluntary remediation property or have express permission to enter another's property to perform corrective action including, to the extent applicable, implementing controls for the site pursuant to written lease, license, order, or indenture; (2) Not be in violation of any order, judgement, statute, rule, or regulation subject to the enforcement authority of the director; and (3) Meet other such criteria as may be established by the board pursuant to Code Section 12-8-103.

12-8-107. (a) In order to enroll any qualifying property in the voluntary remediation program described in this part, an applicant shall submit to the director a voluntary remediation plan prepared by a registered professional engineer or a registered professional geologist who is registered with the State Board of Registration for Professional Engineers and Land Surveyors or the State Board of Registration for Geologists and who has experience in responsible charge of the investigation and remediation of such releases. The voluntary remediation plan shall be in such streamlined form as may be prescribed by the director; provided, however, that the plan shall, at minimum, enumerate and describe those actions planned to bring the qualifying property into compliance with the applicable cleanup

GEORGIA LAWS 2009 SESSION

719

standards, with one or more registered professionals to be retained by the applicant at its sole cost to oversee the investigation and remediation described in the plan; all in accordance with the provisions, purposes, standards, and policies of the voluntary remediation program. The voluntary remediation plan shall be considered an application for enrollment in the voluntary remediation program, and a nonrefundable application fee of $5,000.00 shall be submitted with the application. The director may, at any time, invoice the participant for any costs to the division in reviewing the application or subsequent document that exceed the initial application review fee, including reasonably detailed itemization and justification of the costs. Failure to remit payment within 60 days of receipt of such invoice may cause rejection of the participant from the voluntary remediation program. The director may not issue a written concurrence with a certification of compliance if there is an outstanding fee to be paid by the participant. (b) Upon the director's approval of the voluntary remediation plan described in subsection (a) ofthis Code section, the qualifying property shall be deemed enrolled, and the applicant deemed a participant, in the voluntary remediation program. It shall be the responsibility of the participant to cause one or more registered professionals to oversee the implementation of said plan in accordance with the provisions, purposes, standards, and policies of this part. The registered professional shall submit at least semi-annual status reports to the director describing the implementation of the plan during the preceding period. Upon request of the applicant, the director shall have the discretion to approve annual or longer periods for submittal of status reports. Within 30 days of the director's approval of the voluntary remediation plan described in subsection (a) ofthis Code section, the director shall cause any relevant voluntary remediation property listed on the inventory under Part 2 of this article to be designated as undergoing corrective action pursuant to the voluntary remediation program. (c) The director may issue an order requiring the participant to submit proof of financial assurance for continuing actions or controls upon issuance of the director's approval with the voluntary remediation plan. (d) The participant may terminate at any time the enrollment of the property in the voluntary remediation program and the participant's requirements under this part. The director may terminate, at any time prior to approval of the compliance status report described in subsection (e) of this Code section, the enrollment of the property in the voluntary remediation program and the participant's requirements under this part if the director determines that either:
( l) The participant has failed to implement the voluntary remediation plan in accordance with the provisions, purposes, standards, and policies of the voluntary remediation program; or (2) Such continued enrollment would result in a condition which poses an imminent or substantial danger to human health and the environment. (e) Upon completion of corrective action under this Code section, the participant shall cause to be prepared a compliance status report confirming consistency of the corrective

720

GENERAL ACTS AND RESOLUTIONS, VOL. I

action with the provisions, purposes, standards, and policies of the voluntary remediation program and certifying the compliance of the relevant voluntary remediation property with the applicable cleanup standards in effect at the time. (f) Upon receipt of the compliance status report described in subsection (d) of this Code section, a decision of concurrence with the report and certification shall be issued on evidence satisfactory to the director that it is consistent with the provisions, purposes, standards, and policies ofthe voluntary remediation program. The participant shall comply with the applicable public participation requirements for compliance status reports as promulgated pursuant to Part 2 of this article. Within 90 days of the director's written concurrence, the director shall cause the property to be removed from the inventory under Part 2 of this article. (g) In addition to other provisions of this part:
(1) The director shall remove the voluntary remediation property from the inventory if the participant demonstrates to the director at the time of enrollment, in accordance with rules and regulations promulgated by the board pursuant to Part 2 of this article, that a release exceeding a reportable quantity did not exist at the voluntary remediation property, unless the director issues a decision that such release poses an imminent or substantial danger to human health and the environment; (2) The participant shall not be required to perform corrective action or to certify compliance for groundwater if the voluntary remediation property was listed on the inventory as a result of a release to soil exceeding a reportable quantity for soil but was not listed on the inventory as a result of a release to groundwater exceeding a reportable quantity, and if the participant further demonstrates to the director at the time of enrollment that a release exceeding a reportable quantity for groundwater does not exist at the voluntary remediation property; and the groundwater protection requirements for soils shall be based on protection of the established point of exposure for groundwater as provided under this part. The director may require annual groundwater monitoring for up to five years for a voluntary remeditation property removed from the inventory pursuant to this paragraph unless the director determines that further monitoring is necessary to protect human health and the environment; and (3) The limitations provided under subparagraph (c)(3)(B) of Code Section 12-2-2 shall not apply to the director's decisions or actions under this part. (h) Any voluntary remediation property or site relying on controls, including, but not limited to, groundwater use restrictions for the purposes of certifying compliance with cleanup standards, shall execute a covenant restricting such use in conformance with O.C.G.A. 44-16-1, et seq., the 'Georgia Uniform Environmental Covenants Act.' The division shall maintain an inventory of such properties as provided for in that statute.

GEORGIA LAWS 2009 SESSION

721

12-8-108. At the participant's option, any or all of the following standards and policies may be considered and used in connection with the investigation and remediation of a voluntary remediation property under this part:
{1) SITE DELINEATION CONCENTRATION CRITERIA. Satisfactory evidence ofthe definition of the horizontal and vertical delineation of soil or groundwater contamination for the purposes of this part may be determined on the basis of any of the following concentrations; provided, however, that the provisions of subparagraphs (B) and (C) of this paragraph shall not be used if the concentrations are higher than as provided in subparagraph (E) of this paragraph:
(A) Concentrations from an appropriate number of samples that are representative of local ambient or anthropogenic background conditions not affected by the subject site release; (B) Soil concentrations less than those concentrations that require notification under standards promulgated by the board pursuant to Part 2 of this article; (C) Two times the laboratory lower detection limit concentration using an applicable analytical test method recognized by the United States Environmental Protection Agency, provided that such concentrations do not exceed all cleanup standards; (D) For metals in soils, the concentrations reported for Georgia undisturbed native soil samples as reported in the United States Geological Survey (USGS) Open File Report 8 1-197 (Boerngen and Shacklette, 1981 ), or such later version as may be adopted by rule or regulation of the board; or (E) Default, residential cleanup standards; (2) EXPOSURE PATHWAY. A site-specific exposure pathway shall be considered complete if there are no discontinuities in or impediments to constituent of concern movement, including without limitation controls, from the source of the release to the receptor. Otherwise, the exposure pathway shall be incomplete and there shall be no exposure pathway that requires evaluation; (3) REPRESENTATIVE EXPOSURE CONCENTRATIONS. Compliance with site-specific cleanup standards shall be determined on the basis of representative concentrations of constituents of concern in soils across each applicable soil exposure domain, and the representative concentrations for groundwater at a point of exposure; (4) POINT OF DEMONSTRATION MONITORING FOR GROUNDWATER. Concentrations of site-specific constituents of concern in groundwater shall be measured and evaluated at a point of demonstration well to demonstrate that groundwater concentrations are protective of any established downgradient point of exposure; (5) CLEANUP STANDARDS FOR SOIL. Compliance with site-specific cleanup standards for soil may be based on: (A) Direct exposure factors for surficial soils within two feet of the land surface; (B) Construction worker exposure factors for subsurface soils to a specified subsurface construction depth; and

722

GENERAL ACTS AND RESOLUTIONS, VOL. I

(C) Soil concentrations for protection of groundwater criteria (at an established point of exposure for groundwater as defined under this part) for soils situated above the uppermost groundwater zone. Whenever such depth-specific soil criteria are applied, the voluntary remediation plan for the site shall include a description of the continuing actions and controls necessary to maintain compliance; (6) AVAILABLE CLEANUP STANDARDS. Any cleanup standard lawfully promulgated pursuant to Code Section 12-8-93 that is protective of human health and the environment and accomplishes the provisions, purposes, standards, and policies of this part may be used without demonstrating that a different cleanup standard is inappropriate or impracticable; (7) FATE AND TRANSPORT PARAMETERS. Compliance with site-specific cleanup standards may be determined on the basis of any fate and transport model recognized by the United States Environmental Protection Agency or United States Geological Survey and using most probable representative values for model parameters as adopted by the board; (8) SOURCE MATERIAL. Compliance with site-specific cleanup standards that require that source material be removed may be satisfied when such material is removed, decontaminated, or otherwise immobilized in the subsurface, to the extent practicable; and (9) TECHNICAL IMPRACTICABILITY. Site delineation or remediation beyond the point of technical impracticability shall not be required if the site does not otherwise pose an imminent or substantial danger to human health and the environment.'

SECTION 2. This Act shall become effective on the first day of the month following the month in which it is approved by the Governor or in which it becomes law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

GEORGIA LAWS 2009 SESSION

723

REVENUE- UNIDENTIFIABLE SALES TAX PROCEEDS; DISTRIBUTION BY STATE REVENUE COMMISSIONER.

No. 145 (House Bill No. 181).

AN ACT

To amend Code Section 48-8-67 of the Official Code of Georgia Annotated, relating to distributions of unidentifiable sales and use tax proceeds, so as to repeal certain provisions regarding limitations on the state revenue commissioner's authority to make certain distributions; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Code Section 48-8-67 of the Official Code of Georgia Annotated, relating to distributions of unidentifiable sales and use tax proceeds, is amended by revising subsection (h) as follows:
'(h) The authority ofthe commissioner to make distributions pursuant to this Code section shall cease on December 31, 2011, unless such authority is extended by a subsequent general Act of the General Assembly.'

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

724

GENERAL ACTS AND RESOLUTIONS, VOL. I

INSURANCE-MULTIPLE EMPLOYER SELF-INSURED HEALTH PLANS.

No. 146 (Senate Bill No. 63).

AN ACT

To amend Code Section 33-50-2 of the Official Code of Georgia Annotated, relating to a required license for any multiple employer self-insured health plan to transact business in this state and health plans of municipalities, counties, or other political subdivisions, so as to provide that any plan or arrangement established or maintained by two or more accredited independent nonproprietary institutions ofhigher education located in this state is not subject to the requirements relating to multiple employer self-insured health plans; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Code Section 33-50-2 of the Official Code of Georgia Annotated, relating to a required license for any multiple employer self-insured health plan to transact business in this state and health plans of municipalities, counties, or other political subdivisions, is amended by revising subsection (b) as follows:
"(b) This chapter does not apply to any plan or arrangement established or maintained by municipalities, counties, or other political subdivisions ofthis state; any multiple employer self-insured health plan which is not subject to the application of state insurance laws under the provisions ofthe Employee Retirement Income Security Act of 1974, 29 U.S.C. Section 1001, et seq.; to organizations established under the authority of or receiving funds pursuant to 42 U .S.C. Section 254(b) or 254(c), the federal Public Health Service Act; any other nonprofit organization exempt from federal taxation whose primary purpose is providing access to primary health care services for indigent citizens of Georgia; any plan or arrangement established or maintained by a nonprofit educational organization with assets of more than $100 million for the benefit of the employees of such organization and the employees of any affiliated or associated persons, firms, associations, or corporations which perform functions related to those of such educational organization or of which a majority of the membership of the governing body is composed of employees or members of the governing body of the nonprofit educational organization; or to any plan or arrangement established or maintained, directly or through a legal entity, by two or more accredited independent nonproprietary institutions of higher education located in this state that have combined assets of more than $100 million and are members of the Georgia nonprofit corporation representing a majority ofthe accredited independent nonproprietary

GEORGIA LAWS 2009 SESSION

725

institutions of higher education located in this state for the benefit of the employees, including retired employees, of:
(1) Such institutions; (2) Any affiliated or associated persons, firms, associations, trusts, or corporations that perform functions similar or related to those of one or more of such institutions or of which a majority of the membership of the governing body is composed of employees or members of the governing body of one or more of such institutions; and (3) The Georgia nonprofit corporation representing a majority of the accredited independent nonproprietary institutions of higher education located in this state."

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

HANDICAPPED PERSONS- DISABLED ADULTS; LONG-TERM CARE OFFENSES.
No. 147 (House Bill No. 457).
AN ACT
To amend Chapter 5 of Title 30 the Official Code of Georgia Annotated, relating to protection of disabled adults and elder persons, so as to revise the definition of the term "disabled adult"; to provide that certain acts against disabled adults in long-term care facilities are unlawful; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 5 of Title 30 the Official Code of Georgia Annotated, relating to protection of disabled adults and elder persons, is amended by revising paragraph (6) of Code Section 30-5-3, relating to definitions, as follows:
'(6) 'Disabled adult' means a person 18 years of age or older who is not a resident of a long-term care facility, as defined in Article 4 of Chapter 8 of Title 31, but who is mentally or physically incapacitated or has Alzheimer's disease, as defined in Code Section 31-8-180, or dementia, as defined in Code Section 49-6-72."

726

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 2. Said chapter is further amended by revising Code Section 30-5-8, relating to criminal offenses and penalties, as follows:
'30-5-8. (a)(1) In addition to any other provision oflaw, the abuse, neglect, or exploitation of any disabled adult or elder person shall be unlawful. (2) In addition to any other provision of law, it shall be unlawful for a person to act with the specific intent to abuse, neglect, or commit exploitation of any disabled adult. For purposes of this paragraph only, the term 'disabled adult' means a person 18 years of age or older who is: (A) A resident of a long-term care facility, as defined in Article 4 of Chapter 8 of Title 31; and (B) Mentally or physically incapacitated or has Alzheimer's disease, as defined in Code Section 31-8-180, or dementia, as defined in Code Section 49-6-72. An owner, officer, administrator, or board member of a long-term care facility shall not be held criminally liable for the actions of a person who is convicted pursuant to this paragraph. Nothing in this paragraph shall be construed to preempt any other law or to deny to any individual any rights or remedies which are provided under any other law. (3) Except as otherwise provided in Title 16, any person violating the provisions of this subsection shall be guilty of a felony and, upon conviction, shall be punished by imprisonment for not less than one nor more than five years. (b)(l) It shall be unlawful for any person or official required by paragraph (1) of subsection (a) of Code Section 30-5-4 to report a case of disabled adult or elder person abuse to fail knowingly and willfully to make such report. (2) Any person violating the provisions of this subsection shall be guilty of a misdemeanor.
(c) Any violation of this Code section shall constitute a separate offense.'

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

GEORGIA LAWS 2009 SESSION

727

EDUCATION- CHARTER SCHOOLS; FACILITIES FUND; SURPLUS PROPERTY.

No. 148 (House Bill No. 555).

AN ACT

To amend Article 31 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to the "Charter Schools Act of 1998," so as to revise certain provisions relating to a facilities fund for charter schools; to revise certain provisions relating to the use of surplus property of a local board of education by a local charter school; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Article 31 of Chapter 2 of Title 20 ofthe Official Code of Georgia Annotated, relating to the "Charter Schools Act of 1998," is amended in Code Section 20-2-2068.2, relating to a facilities fund for charter schools, as follows:
'20-2-2068.2. (a) From moneys specifically appropriated for such purpose, the state board shall create a facilities fund for local charter schools, state chartered special schools, and commission charter schools as defined in Code Section 20-2-2081 for the purpose of establishing a per pupil, need based facilities aid program. (b) A charter school or commission charter school may receive moneys from the facilities fund if the charter school or commission charter school has received final approval from the Georgia Charter Schools Commission or from the state board for operation during that fiscal year. (c) A charter school's or commission charter school's governing body may use moneys from the facilities fund for the following purposes:
(1) Purchase of real property; (2) Construction of school facilities, including initial and additional equipment and furnishings; (3) Purchase, lease-purchase, or lease of permanent or relocatable school facilities; (4) Purchase of vehicles to transport students to and from the charter school or commission charter school; and (5) Renovation, repair, and maintenance of school facilities that the school owns or is purchasing through a lease-purchase or long-term lease of five years or longer. (d) The Department of Education shall specify procedures for submitting and approving requests for funding under this Code section and for documenting expenditures.

728

GENERAL ACTS AND RESOLUTIONS, VOL. I

(e) Local boards are required to renovate, repair, and maintain the school facilities of charter schools in the district to the same extent as other public schools in the district if the local board owns the charter school facility, unless otherwise agreed upon by the petitioner and the local board in the charter.
(f)( 1) Prior to releasing moneys from the facilities fund, the Department of Education shall ensure that the governing board of the local charter school and the local board shall enter into a written agreement that includes a provision for the reversion of any unencumbered funds and all equipment and property purchased with public education funds to the ownership of the local board in the event the local charter school terminates operations. (2) Prior to releasing moneys from the facilities fund, the Department of Education shall ensure that the governing board of the state chartered special school and the state board shall enter into a written agreement that includes a provision for the reversion of any unencumbered funds and all equipment and property purchased with public education funds to the ownership of the state board in the event the state chartered special school terminates operations. (3) Prior to releasing moneys from the facilities fund, the Department of Education shall ensure that the governing board of the commission charter school and the Georgia Charter Schools Commission shall enter into a written agreement that includes a provision for the reversion of any unencumbered funds and all equipment and property purchased with public education funds to the ownership of the Georgia Charter Schools Commission in the event the commission charter school terminates operations. (g) The reversion of property in accordance with subsection (f) of this Code section is subject to the complete satisfaction of alllawfulliens or encumbrances. (h) Each local board of education shall make its unused facilities available to local charter schools. The terms of the use of such a facility by the charter school shall be subject to negotiation between the board and the local charter school and shall be memorialized as a separate agreement. A local charter school that is allowed to use such a facility under such an agreement shall not sell or dispose of any interest in such property without the written permission of the local board. A local charter school may not be charged a rental or leasing fee for the existing facility or for property normally used by the public school which became the local charter school. A local charter school that receives property from a local board may not sell or dispose of such property without the written permission ofthe local board."

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

GEORGIA LAWS 2009 SESSION

729

CRIMES- CHILD MOLESTATION; IMAGE TRANSMISSION; PARTICIPATION; VENUE.

No. 149 (House Bill No. 123).

AN ACT

To amend Chapter 6 of Title 16 ofthe Official Code of Georgia Annotated, relating to sexual offenses, so as to change certain provisions relating to child molestation; to provide a definition; to provide for venue; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Chapter 6 of Title 16 of the Official Code of Georgia Annotated, relating to sexual offenses, is amended by revising Code Section 16-6-4, relating to child molestation and aggravated child molestation, as follows:
'16-6-4. (a) A person commits the offense of child molestation when such person:
(1) Does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person; or (2) By means of an electronic device, transmits images of a person engaging in, inducing, or otherwise participating in any immoral or indecent act to a child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person. (b)( 1) Except as provided in paragraph (2) of this subsection, a person convicted of a first offense of child molestation shall be punished by imprisonment for not less than five nor more than 20 years and shall be subject to the sentencing and punishment provisions of Code Sections 17-10-6.2 and 17-10-7. Upon a defendant being incarcerated on a conviction for a first offense, the Department of Corrections shall provide counseling to such defendant. Except as provided in paragraph (2) of this subsection, upon a second or subsequent conviction of an offense of child molestation, the defendant shall be punished by imprisonment for not less than ten years nor more than 30 years or by imprisonment for life and shall be subject to the sentencing and punishment provisions of Code Sections 17-10-6.2 and 17-10-7; provided, however, that prior to trial, a defendant shall be given notice, in writing, that the state intends to seek a punishment of life imprisonment.

730

GENERAL ACTS AND RESOLUTIONS, VOL. I

(2) If the victim is at least 14 but less than 16 years of age and the person convicted of child molestation is 18 years of age or younger and is no more than four years older than the victim, such person shall be guilty of a misdemeanor and shall not be subject to the sentencing and punishment provisions of Code Section 17-10-6.2. (c) A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy. (d)(l) Except as provided in paragraph (2) of this subsection, a person convicted of the offense of aggravated child molestation shall be punished by imprisonment for life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life, and shall be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7. (2) A person convicted of the offense of aggravated child molestation when:
(A) The victim is at least 13 but less than 16 years of age; (B) The person convicted of aggravated child molestation is 18 years of age or younger and is no more than four years older than the victim; and (C) The basis of the charge of aggravated child molestation involves an act of sodomy shall be guilty of a misdemeanor and shall not be subject to the sentencing and punishment provisions of Code Section 17-10-6.1. (e) A person shall be subject to prosecution in this state pursuant to Code Section 17-2-1 for any conduct made unlawful by paragraph (2) of subsection (a) of this Code section which the person engages in while: ( l) Either within or outside of this state if, by such conduct, the person commits a violation ofparagraph (2) of subsection (a) of this Code section which involves a child who resides in this state; or (2) Within this state if, by such conduct, the person commits a violation ofparagraph (2) of subsection (a) of this Code section which involves a child who resides within or outside this state.'

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

GEORGIA LAWS 2009 SESSION

731

COMMERCE - CRIMES -METAL THEFT; SECONDARY METALS RECYCLERS.

No. 150 (Senate Bill No. 82).

AN ACT

To amend Article 14 of Chapter 1 of Title 10 and Code Section 16-8-12 of the Official Code of Georgia Annotated, relating to secondary metals recyclers and penalties for certain theft crimes, respectively, so as to provide for the regulation of theft of regulated metal property; to change a definition; to change provisions relating to transaction records; to regulate payments to persons selling certain property to secondary metals recyclers; to revise provisions relating to theft of regulated metal property; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Article 14 of Chapter 1 of Title 10 of the Official Code of Georgia Annotated, relating to secondary metals recyclers, is amended by revising paragraph (5) of Code Section 10-1-3 50, relating to definitions, as follows:
'(5) 'Personal identification card' means a current and unexpired driver's license or identification card issued by the Department of Driver Services or a similar card issued by another state, a military identification card, or an appropriate work authorization issued by the U.S. Citizenship and Immigration Services ofthe Department of Homeland Security, which shall contain the individual's name, address, and photograph.'

SECTION 2. Said article is further amended by revising paragraph (6) of subsection (a) of Code Section 10-1-351, relating to record of transactions, and adding a new subsection (c) to read as follows:
'(6) A photocopy of a valid personal identification card of the person delivering the regulated metal property to the secondary metals recycler;" '(c) When the metal being purchased is a motor vehicle, the person offering to sell the motor vehicle to a secondary metals recycler shall either provide the title to such motor vehicle or fully execute a cancellation of certificate of title for scrap vehicles form as promulgated by the Department of Revenue, Motor Vehicle Division, designated as MV-1 SP, in accordance with Code Section 40-3-36. The secondary metals recycler shall forward the title or MV-1 SP form to the Department of Revenue within 72 hours of receipt of the title or form.'

732

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 3. Said article is further amended by adding a new Code section to read as follows:
'1 0-1-352.1. (a) As used in this Code section, the terms:
(1) 'Aluminum property' means aluminum forms designed to shape concrete. (2) 'Copper property' means any copper wire, copper tubing, copper pipe, or any item composed completely of copper. (b) A secondary metals recycler may pay by check or by cash for any copper property, catalytic converter, or aluminum property as follows: (1) Cash payments shall occur no earlier than 24 hours after the copper property, catalytic converter, or aluminum property is provided to the secondary metals recycler; and (2) Checks shall be payable only to the person named who was recorded as delivering the copper property, catalytic converter, or aluminum property to the secondary metals recycler; provided, however, that if such person is delivering the copper property, catalytic converter, or aluminum property on behalf of a governmental entity or a nonprofit or for profit business, the check may be payable to such business or entity and may also be transmitted to such business or entity. (c) The provisions of this Code section shall not apply to any transaction between business entities.'

SECTION 4. Code Section 16-8-12 of the Official Code of Georgia Annotated, relating to penalties for violation of Code Sections 16-8-2 through 16-8-9, is amended by revising paragraph (9) of subsection (a) as follows:
'(9) Notwithstanding the provisions of paragraph (1) of this subsection, if the property of the theft was ferrous metals or regulated metal property, as such terms are defined in Code Section 10-1-350, and the sum of the aggregate amount of such property, in its original and undamaged condition, plus any reasonable costs which are or would be incurred in the repair or the attempt to recover any property damaged in the theft or removal of such regulated metal property, exceeds $500.00, by imprisonment for not less than one nor more than five years, a fine of not more than $5,000.00, or both.'

SECTION 5. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

GEORGIA LAWS 2009 SESSION

733

DOMESTIC RELATIONS- SOCIAL SERVICES- SEXUAL EXPLOITATION.

No. 151 (Senate Bill No. 69).

AN ACT

To amend Titles 19 and 49 of the Official Code of Georgia Annotated, relating to domestic relations and social services, respectively, so as to expand the definition of "sexual exploitation"; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Title 19 of the Official Code of Georgia Annotated, relating to domestic relations, is amended by revising paragraph (4) of subsection (b) of Code Section 19-7-5, relating to reporting of child abuse, as follows:
"(4) 'Sexual exploitation' means conduct by any person who allows, permits, encourages, or requires that child to engage in:
(A) Prostitution, as defined in Code Section 16-6-9; or (B) Sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct, as defined in Code Section 16-12-100."

SECTION 2. Said title is further amended by revising paragraph (12) of Code Section 19-15-1, relating to definitions relative to child abuse, as follows:
"(12) 'Sexual exploitation' means conduct by any person who allows, permits, encourages, or requires that child to engage in:
(A) Prostitution, as defined in Code Section 16-6-9; or (B) Sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct, as defined in Code Section 16-12-100."

SECTION 3. Title 49 of the Official Code of Georgia Annotated, relating to social services, is amended by revising paragraph (4) of subsection (a) of Code Section 49-5-40, relating to definitions relative to child abuse and deprivation records, as follows:
'(4) 'Sexual exploitation' means conduct by any person who allows, permits, encourages, or requires that child to engage in:
(A) Prostitution, as defined in Code Section 16-6-9; or

734

GENERAL ACTS AND RESOLUTIONS, VOL. I

(B) Sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct, as defined in Code Section 16-12-100."

SECTION 4. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 5. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

LOCAL GOVERNMENT- PROHIBIT IMMIGRATION SANCTUARY POLICIES.
No. 152 (Senate Bill No. 20).
AN ACT
To amend Chapter 80 of Title 36 of the Official Code of Georgia Annotated, relating to general provisions applicable to counties, municipal corporations, and other governmental entities, so as to prohibit immigration sanctuary polices by local governmental entities; to provide for penalties; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 80 of Title 36 of the Official Code of Georgia Annotated, relating to general provisions applicable to counties, municipal corporations, and other governmental entities, is amended by adding a new Code section to read as follows:
"36-80-23. (a) As used in this Code section, the term:
(1) 'Federal officials or law enforcement officers' means any person employed by the United States government for the purpose of enforcing or regulating federal immigration laws and any peace officer certified by the Georgia Peace Officer Standards and Training Council where such federal official or peace officer is acting within the scope of his or

GEORGIA LAWS 2009 SESSION

735

her employment for the purpose of enforcing federal immigration laws or preserving homeland security. (2) 'Immigration status' means the legality or illegality of an individual's presence in the United States as determined by federal law. (3) 'Immigration status information' means any information, not including any information required by law to be kept confidential but otherwise including but not limited to any statement, document, computer generated data, recording, or photograph, which is relevant to immigration status or the identity or location of an individual who is reasonably believed to be illegally residing within the United States or who is reasonably believed to be involved in domestic terrorism as that term is defined in Code Section 16-4-10 or a terroristic act as that term is defined by Code Section 35-3-62. (4) 'Local governing body' means any political subdivision of this state, including any county, consolidated government, municipality, authority, school district, commission, board, or any other local public body corporate, governmental unit, or political subdivision. (5) 'Local official or employee' means any elected or appointed official, supervisor or managerial employee, contractor, agent, or certified peace officer acting on behalf of or in conjunction with a local governing body. (6) 'Sanctuary policy' means any regulation, rule, policy, or practice adopted by a local governing body which prohibits or restricts local officials or employees from communicating or cooperating with federal officials or law enforcement officers with regard to reporting immigration status information while such local official or employee is acting within the scope of his or her official duties. (b) No local governing body, whether acting through its governing body or by an initiative, referendum, or any other process, shall enact, adopt, implement, or enforce any sanctuary policy. (c) Any local governing body that acts in violation of this Code section shall be subject to the withholding of state funding or state administered federal funding other than funds to provide services specified in subsection (c) of Code Section 50-36-1. (d) The Department ofCommunity Affairs, the Department of Transportation, or any other state agency that provides funding to local governing bodies may require certification of compliance with this Code section as a condition of funding."

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

736

GENERAL ACTS AND RESOLUTIONS, VOL. I

CRIMES- RAPID RAIL STATION; INTERMODAL BUS STATION; FOOD AND BEVERAGES.

No. 153 (Senate Bill No. 89).

AN ACT

To amend Code Section 16-12-120 of the Official Code of Georgia Annotated, relating to acts prohibited in public transit buses and rapid rail cars or stations, so as to allow the consumption of food and beverages in a rapid rail station or intermodal bus station; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Code Section 16-12-120 of the Official Code of Georgia Annotated, relating to acts prohibited in public transit buses and rapid rail cars or stations, is amended by revising paragraph (4) of subsection (a) as follows:
'(4) Consumes food or beverage or possesses any open food or beverage container, provided that this paragraph shall not apply to resealable beverages in resealable plastic containers, to an operator of a public transit bus at an authorized layover point, or to a person providing food or beverage to any child under age five; provided, however, that nothing in this paragraph shall apply to a rapid rail station or intermodal bus station, unless the public transit system operating such station adopts a policy prohibiting food or beverages in such station, and further that nothing in this paragraph shall preclude a public transit system operated or funded by a county, municipality, or consolidated government from prohibiting the consumption of any beverage in a public transit bus;'

SECTION 2. This Act shall become effective on July 1, 2009.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

GEORGIA LAWS 2009 SESSION

737

INSURANCE- GROUP ACCIDENT AND SICKNESS PLANS; CONTINUATION COVERAGE; ASSIGNMENT SYSTEMS; HEALTH REIMBURSEMENT ARRANGEMENT ONLY PLANS.

No. 154 (Senate Bill No. 94).

AN ACT

To amend Title 33 of the Official Code of Georgia Annotated, relating to insurance, so as to revise the time periods and eligibility for continuation coverage under certain group accident and sickness insurance plans; to provide for additional continuation plan options; to require the Commissioner of Insurance to promulgate rules and regulations to provide for reporting and notification of eligibility requirements for participation in the Georgia Health Insurance Assignment System and the Georgia Health Benefits Assignment System; to provide that the Commissioner of Insurance shall be authorized to allow certain health reimbursement arrangement only plans that encourage employer financial support of health insurance or health related expenses to be approved for sale in connection with or packaged with otherwise approved individual health insurance policies; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Title 33 of the Official Code of Georgia Annotated, relating to insurance, is amended by revising Code Section 33-24-21.1, relating to conversion privilege and continuation right provisions in group accident and sickness contracts, as follows:
'33-24-21.1. (a) As used in this Code section, the term:
(1) 'Assistance eligible individual' shall have the same meaning as provided by Section 3001 of Title III of the federal American Recovery and Reinvestment Act of 2009. (2) 'Creditable coverage' under another health benefit plan means medical expense coverage with no greater than a 90 day gap in coverage under any of the following:
(A) Medicare or Medicaid; (B) An employer based accident and sickness insurance or health benefit arrangement; (C) An individual accident and sickness insurance policy, including coverage issued by a health maintenance organization, nonprofit hospital or nonprofit medical service corporation, health care corporation, or fraternal benefit society; (D) A spouse's benefits or coverage under medicare or Medicaid or an employer based health insurance or health benefit arrangement;

738

GENERAL ACTS AND RESOLUTIONS, VOL. I

(E) A conversion policy; (F) A franchise policy issued on an individual basis to a member of a true association as defined in subsection (b) of Code Section 33-30-1; (G) A health plan formed pursuant to 10 U.S.C. Chapter 55; (H) A health plan provided through the Indian Health Service or a tribal organization program or both; (I) A state health benefits risk pool; (J) A health plan formed pursuant to 5 U.S.C. Chapter 89; (K) A public health plan; or (L) A Peace Corps Act health benefit plan. (3) 'Eligible dependent' means a person who is entitled to medical benefits coverage under a group contract or group plan by reason of such person's dependency on or relationship to a group member. (4) 'Group contract or group plan' is synonymous with the term 'contract or plan' and means: (A) A group contract of the type issued by a nonprofit medical service corporation established under Chapter 18 of this title; (B) A group contract of the type issued by a nonprofit hospital service corporation established under Chapter 19 of this title; (C) A group contract of the type issued by a health care plan established under Chapter 20 of this title; (D) A group contract of the type issued by a health maintenance organization established under Chapter 21 of this title; or (E) A group accident and sickness insurance policy or contract, as defined in Chapter 30 of this title. (5) 'Group member' means a person who has been a member of the group for at least six months and who is entitled to medical benefits coverage under a group contract or group plan and who is an insured, certificate holder, or subscriber under the contract or plan. (6) 'Insurer' means an insurance company, health care corporation, nonprofit hospital service corporation, medical service nonprofit corporation, health care plan, or health maintenance organization. (7) 'Qualifying eligible individual' means: (A) A Georgia domiciliary, for whom, as of the date on which the individual seeks coverage under this Code section, the aggregate of the periods of creditable coverage is 18 months or more; and (B) Who is not eligible for coverage under any of the following:
(i) A group health plan, including continuation rights under this Code section or the federal Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA); (ii) Part A or Part B of Title XVIII of the federal Social Security Act; or (iii) The state plan under Title XIX of the federal Social Security Act or any successor program.

GEORGIA LAWS 2009 SESSION

739

(a.l) Any group member or qualifying eligible individual who is an assistance eligible individual as provided by Section 3001 of Title III of the federal American Recovery and Reinvestment Act (P.L. 111-5), during the period permitted under such act whose coverage has been terminated and who has been continuously covered under the group contract or group plan, and under any contract or plan providing similar benefits that it replaces, for at least six months immediately prior to such termination, shall be entitled to have his or her coverage and the coverage of his or her eligible dependents continued under the contract or plan. Such coverage shall continue for the fractional policy month remaining, if any, at termination plus nine additional policy months upon payment of the premium to the insurer by cash, certified check, or money order, at the same rate for active group members set forth in the contract or plan, on a monthly basis in advance as such premium becomes due during this coverage period. For the period that the assistance eligible individual is eligible for the premium assistance subsidy as provided in Section 3001 of Title III of the federal American Recovery and Reinvestment Act (P.L. 111-5), such premium payment shall be calculated as 35 percent of the rate for active group members including any portion of the premium paid by a former employer or other person if such employer or other person no longer contributes premium payments for this coverage. (a.2) The rights and benefits under this Code section attributable to Section 3001 of Title III ofthe federal American Recovery and Reinvestment Act (P .L. 111-5) shall expire when that act expires. Any extension of such benefits shall require an Act of the Georgia General Assembly. Under no circumstances shall the extended benefits for assistance eligible individuals become the responsibility ofthe State ofGeorgia or any insurer after September 30,2010. (b) Each group contract or group plan delivered or issued for delivery in this state, other than a group accident and sickness insurance policy, contract, or plan issued in connection with an extension of credit, which provides hospital, surgical, or major medical coverage, or any combination of these coverages, on an expense incurred or service basis, excluding contracts and plans which provide benefits for specific diseases or accidental injuries only, shall provide that members and qualifying eligible individuals whose insurance under the group contract or plan would otherwise terminate shall be entitled to continue their hospital, surgical, and major medical insurance coverage under that group contract or plan for themselves and their eligible dependents.
(c)(l) Any group member or qualifying eligible individual whose coverage has been terminated and who has been continuously covered under the group contract or group plan, and under any contract or plan providing similar benefits which it replaces, for at least six months immediately prior to such termination, shall be entitled to have his or her coverage and the coverage of his or her eligible dependents continued under the contract or plan. Such coverage must continue for the fractional policy month remaining, if any, at termination plus three additional policy months, except the period of continuation coverage for assistance eligible individual in subsection (a. I) of this Code section, shall be nine months, upon payment of the premium by cash, certified check, or money order,

740

GENERAL ACTS AND RESOLUTIONS, VOL. I

at the option of the employer, to the policyholder or employer, at the same rate for active group members set forth in the contract or plan, on a monthly basis in advance as such premium becomes due during this coverage period. Such premium payment must include any portion of the premium paid by a former employer or other person if such employer or other person no longer contributes premium payments for this coverage. At the end of such period, the group member shall have the same conversion rights that were available on the date of termination of coverage in accordance with the conversion privileges contained in the group contract or group plan. (2) A covered individual who is an assistance eligible individual has a right to elect continuation of his or her coverage and the coverage of his or her dependents at any time between the effective date of this paragraph and 60 days after receiving notice from the employer's insurer of the right to participate in a second election period for state continuation benefits under this Code section in accordance with Section 3001 of Title III of the federal American Recovery and Reinvestment Act (P.L. 111-5) if:
(A) The individual was involuntarily terminated from employment between September I, 2008, and February 17,2009, as defined in Section 3001 of Title III of the federal American Recovery and Reinvestment Act (P.L. 111-5); (B) The individual was eligible for state continuation under this chapter at the time of termination; (C) The individual continues to be eligible for state continuation benefits under this chapter, provided that the total period of continuous eligibility shall not exceed nine policy months from the month of the qualifying event making the individual an assistance eligible individual or the date of the election as provided in this paragraph, whichever is later; and (D) The individual or the employer of the individual contacts the insurer and informs the insurer that the individual wants to take advantage ofthe second election period for state continuation coverage under the provisions of Section 3001 of Title III of the federal American Recovery and Reinvestment Act (P .L. 111-5). (3) In addition to the group policy under which the group member was insured, the group member and any qualifying eligible individual shall, to the extent that such plan is currently offered under the group plans offered by the company, also be offered the option of continuation coverage through a high deductible health plan, or its actuarial equivalent, that is eligible for use with a health savings account under the applicable provisions of Section 223 of the Internal Revenue Code. Such high deductible health plans shall have premiums consistent with the underlying group plan of coverage rated relative to the standard or manual rates for the benefits provided. (4) Claims for a covered individual under continuation of coverage shall not be considered in rating or rerating the group premiums for the group from which the continuation of coverage is provided, except that the pooled experience for all of the insurer's continuation of coverage claims for fully insured claims may impact all such groups on an equal percentage basis.

GEORGIA LAWS 2009 SESSION

741

(d)(l) A group member shall not be entitled to have coverage continued if: (A) termination of coverage occurred because the employment of the group member was terminated for cause; (B) termination of coverage occurred because the group member failed to pay any required contribution; or (C) any discontinued group coverage is immediately replaced by similar group coverage including coverage under a health benefits plan as defined in the federal Employee Retirement Income Security Act of 1974,29 U.S.C. Section 1001, et seq. Further, a group member shall not be entitled to have coverage continued if the group contract or group plan was terminated in its entirety or was terminated with respect to a class to which the group member belonged. This subsection shall not affect conversion rights available to a qualifying eligible individual under any contract or plan. (2) A qualifying eligible individual shall not be entitled to have coverage continued if the most recent creditable coverage within the coverage period was terminated based on one of the following factors: (A) failure of the qualifying eligible individual to pay premiums or contributions in accordance with the terms of the health insurance coverage or failure of the issuer to receive timely premium payments; (B) the qualifying eligible individual has performed an act or practice that constitutes fraud or made an intentional misrepresentation of material fact under the terms of coverage; or (C) any discontinued group coverage is immediately replaced by similar group coverage including coverage under a health benefits plan as defined in the federal Employee Retirement Income Security Act of 1974, 29 U.S.C. Section 1001, et seq. This subsection shall not affect conversion rights available to a group member under any contract or plan. (e) If the group contract or group plan terminates while any group member or qualifying eligible individual is covered or whose coverage is being continued, the group administrator, as prescribed by the insurer, must notify each such group member or qualifying eligible individual that he or she must exercise his or her conversion rights within: (1) Thirty days of such notice for group members who are not qualifying eligible individuals; or (2) Sixty-three days of such notice for qualifying eligible individuals. (f) Every group contract or group plan, other than a group accident and sickness insurance policy, contract, or plan issued in connection with an extension of credit, which provides hospital, surgical, or major medical expense insurance, or any combination of these coverages, on an expense incurred or service basis, excluding policies which provide benefits for specific diseases or for accidental injuries only, shall contain a conversion privilege provision. (g) Eligibility for the converted policies or contracts shall be as follows: (I) Any qualifying eligible individual whose insurance and its corresponding eligibility under the group policy, including any continuation available, elected, and exhausted under this Code section or the federal Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA), has been terminated for any reason, including failure of the employer

742

GENERAL ACTS AND RESOLUTIONS, VOL. I

to pay premiums to the insurer, other than fraud or failure of the qualifying eligible individual to pay a required premium contribution to the employer or, if so required, to the insurer directly and who has at least 18 months of creditable coverage immediately prior to termination shall be entitled, without evidence of insurability, to convert to individual or group based coverage covering such qualifying eligible individual and any eligible dependents who were covered under the qualifying eligible individual's coverage under the group contract or group plan. Such conversion coverage must be, at the option of the individual, retroactive to the date of termination of the group coverage or the date on which continuation or COBRA coverage ended, whichever is later. The insurer must offer qualifying eligible individuals at least two distinct conversion options from which to choose. One such choice of coverage shall be comparable to comprehensive health insurance coverage offered in the individual market in this state or comparable to a standard option ofcoverage available under the group or individual health insurance laws of this state. The other choice may be more limited in nature but must also qualify as creditable coverage. Each coverage shall be filed, together with applicable rates, for approval by the Commissioner. Such choices shall be known as the 'Enhanced Conversion Options'; (2) Premiums for the enhanced conversion options for all qualifying eligible individuals shall be determined in accordance with the following provisions:
(A) Solely for purposes of this subsection, the claims experience produced by all groups covered under comprehensive major medical or hospitalization accident and sickness insurance for each insurer shall be fully pooled to determine the group pool rate. Except to the extent that the claims experience of an individual group affects the overall experience of the group pool, the claims experience produced by any individual group of each insurer shall not be used in any manner for enhanced conversion policy rating purposes; (B) Each insurer's group pool shall consist of each insurer's total claims experience produced by all groups in this state, regardless of the marketing mechanism or distribution system utilized in the sale ofthe group insurance from which the qualifying eligible individual is converting. The pool shall include the experience generated under any medical expense insurance coverage offered under separate group contracts and contracts issued to trusts, multiple employer trusts, or association groups or trusts, including trusts or arrangements providing group or group-type coverage issued to a trust or association or to any other group policyholder where such group or group-type contract provides coverage, primarily or incidentally, through contracts issued or issued for delivery in this state or provided by solicitation and sale to Georgia residents through an out-of-state multiple employer trust or arrangement; and any other group-type coverage which is determined to be a group shall also be included in the pool for enhanced conversion policy rating purposes; and (C) Any other factors deemed relevant by the Commissioner may be considered in determination of each enhanced conversion policy pool rate so long as it does not have

GEORGIA LAWS 2009 SESSION

743

the effect of lessening the risk-spreading characteristic of the pooling requirement. Duration since issue and tier factors may not be considered in conversion policy rating. Notwithstanding subparagraph (A) of this paragraph, the total premium calculated for all enhanced conversion policies may deviate from the group pool rate by not more than pius or minus 50 percent based upon the experience generated under the pool of enhanced conversion policies so long as rates do not deviate for similarly situated individuals covered through the pool of enhanced conversion policies; (3) Any group member who is not a qualifying eligible individual and whose insurance under the group policy has been terminated for any reason, including failure of the employer to pay premiums to the insurer, other than eligibility for medicare (reaching a limiting age for coverage under the group policy) or failure of the group member to pay a required premium contribution, and who has been continuously covered under the group contract or group plan, and under any contract or plan providing similar benefits which it replaces, for at least six months immediately prior to termination shall be entitled, without evidence of insurability, to convert to individual or group coverage covering such group member and any eligible dependents who were covered under the group member's coverage under the group contract or group plan. Such conversion coverage must be, at the option of the individual, retroactive to the date of termination of the group coverage or the date on which continuation or COBRA coverage ended, whichever is later. The premium of the basic converted policy shall be determined in accordance with the insurer's table of premium rates applicable to the age and classification of risks of each person to be covered under that policy and to the type and amount of coverage provided. This form of conversion coverage shall be known as the 'Basic Conversion Option'; and (4) Nothing in this Code section shall be construed to prevent an insurer from offering additional options to qualifying eligible individuals or group members. (h) Each group certificate issued to each group member or qualifying eligible individual, in addition to setting forth any conversion rights, shall set forth the continuation right in a separate provision bearing its own caption. The provisions shall clearly set forth a full description ofthe continuation and conversion rights available, including all requirements, limitations, and exceptions, the premium required, and the time ofpayment of all premiums due during the period of continuation or conversion. (i) This Code section shall not apply to limited benefit insurance policies. For the purposes of this Code section, the term 'limited benefit insurance' means accident and sickness insurance designed, advertised, and marketed to supplement major medical insurance. The term limited benefit insurance includes accident only, CHAMPUS supplement, dental, disability income, fixed indemnity, long-term care, medicare supplement, specified disease, vision, and any other accident and sickness insurance other than basic hospital expense, basic medical-surgical expense, and comprehensive major medical insurance coverage.

744

GENERAL ACTS AND RESOLUTIONS, VOL. I

U) The Commissioner shall adopt such rules and regulations as he or she deems necessary for the administration of this Code section. Such rules and regulations may prescribe various conversion plans, including minimum conversion standards and minimum benefits, but not requiring benefits in excess of those provided under the group contract or group plan from which conversion is made, scope of coverage, preexisting limitations, optional coverages, reductions, notices to covered persons, and such other requirements as the Commissioner deems necessary for the protection of the citizens of this state.
(k)(l) Except as provided in paragraph (2) of this subsection, this Code section shall apply to all group plans and group contracts delivered or issued for delivery in this state on or after July 1, 2009, and to group plans and group contracts then in effect on the first anniversary date occurring on or after July 1, 2009. (2) The provisions of paragraphs (2) and (3) of subsection (c) of this Code section shall apply to all group plans and group contracts in effect on September 1, 2008. (1) As soon as practicable, but no later than 30 days after the effective date of this subsection, the Commissioner shall develop and direct insurers to issue notices for assistance eligible individuals regarding availability of expanded eligibility, second election, and continuation coverage assistance to be sent to the last known addresses of such assistance eligible individuals. (m) Nothing in this chapter shall imply that individuals entitled to continuation coverage who are not assistance eligible individuals shall receive benefits beyond the period of coverage provided in paragraph (1) of subsection (c) of this Code section or that assistance eligible individuals are entitled to any continuation benefit period beyond what is provided by Section 3001 of Title III of the federal American Recovery and Reinvestment Act of 2009.'

SECTION 2. Said title is further amended by adding a new Code section to read as follows:
"33-51-7. (a) The Commissioner shall be authorized to allow health reimbursement arrangement only plans that encourage employer financial support of health insurance or health related expenses recognized under the rules ofthe federal Internal Revenue Service to be approved for sale in connection with or packaged with individual health insurance policies otherwise approved by the Commissioner. (b) Health reimbursement arrangement only plans that are not sold in connection with or packaged with individual health insurance policies shall not be considered insurance under this title. (c) Individual insurance policies offered or funded through health reimbursement arrangements shall not be considered employer sponsored or group coverage for purposes of this title, and nothing in this Code section shall be interpreted to require an insurer to offer an individual health insurance policy for sale in connection with or packaged with a

GEORGIA LAWS 2009 SESSION

745

health reimbursement arrangement or to accept premiums from health reimbursement arrangement plans for individual health insurance policies.'

SECTION 3. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

OFFICIAL CODE OF GEORGIA- REDESIGNATE STATE MERIT SYSTEM OF PERSONNEL ADMINISTRATION AS STATE PERSONNEL ADMINISTRATION.
No. !55 (Senate Bill No. 97).
AN ACT
To amend the Official Code of Georgia Annotated, so as to change the designation of the State Merit System of Personnel Administration to the State Personnel Administration; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. The Official Code of Georgia Annotated is amended by replacing the term "state merit system" with "State Personnel Administration" wherever such term appears in:
(1) Code Section 1-4-1, relating to public and legal holidays and leave for observance of religious holidays not specifically provided for; (2) Code Section 7-1-35, relating to deputy commissioners, examiners, and assistants; (3) Code Section 12-3-536, relating to transferring powers of authority to the Department of Economic Development; (4) Code Section 12-11-5, relating to the director and administration of corps programs; (5) Code Section 15-6-88, relating to minimum annual salary schedule; (6) Code Section 15-9-63, relating to a schedule of minimum salaries; (7) Code Section 15-9-63 .I, relating to compensation for services as magistrate or chief magistrate, and longevity increases;

746

GENERAL ACTS AND RESOLUTIONS, VOL. I

(8) Code Section 15-10-23, relating to minimum compensation, annual salary, increases, and supplements; (9) Code Section 15-11-24.3, relating to intake and probation services ofjuvenile courts; (1 0) Code Section 15-16-20, relating to minimum annual salary, increase, and operating expenses; (11) Code Section 17-12-25, relating to public defender salary; (12) Code Section 20-lA-3, relating to a director, board, duties and powers, salary, personnel, and rules and regulations; (13) Code Section 20-lA-8, relating to transfer of functions, powers, personnel equipment, and assets to a department and funding; (14) Code Section 20-2-302, relating to funds for operation of schools for deaf and blind persons; (15) Code Section 20-3-250.24, relating to compensation and benefits of commission employees; (16) Code Section 20-3-329, relating to employees of commission transferred to authority, status of authority employees hired after July I, 1996, status of transferred employees, and benefits of transferred employees not impaired; (17) Code Section 20-4-12, relating to expenses and mileage allowance; (18) Code Section 20-4-17, relating to agencies to receive federal funds and transfer of personnel to Department of Technical and Adult Education; (19) Code Section 20-4-27, relating to service in state merit system; (20) Code Section 20-4-30, relating to compensation of classified employees electing to become unclassified; (21) Code Section 21-5-30.2, relating to contributions by public agencies; (22) Code Section 34-9-52, relating to officials, personnel, and employees subject to state merit system and compensation of board members and administrative law judges; (23) Code Section 34-9-355, relating to directors emeritus of board and duties; (24) Code Section 35-1-6, relating to appointment of nonuniforrned investigators, salaries, status, assignment, and powers; (25) Code Section 35-2-46, relating to dismissal of officers, troopers, and communications officers; (26) Code Section 35-2-47, relating to suspension pending dismissal; (27) Code Section 36-5-28, relating to members of county governing authority to receive compensation increase when classified service employees receive increase, calculation, and effective date; (28) Code Section 38-2-132, relating to administration of militia and Department of Defense, personnel, and state merit system; (29) Code Section 38-4-9, relating to commissioner of veterans service, employment of personnel, preference to veterans, surviving spouses, and dependents, and advise Governor, board, and General Assembly;

GEORGIA LAWS 2009 SESSION

747

(30) Code Section 40-15-4, relating to coordinator authorized and duties and requirements; (31) Code Section 43-1-2, relating to duties of division director; (32) Code Section 43-40-4, relating to office of commissioner, qualifications, restrictions, staff, oath, duties and powers, and reimbursement; (33) Code Section 45-1-4, relating to complaints or information from public employees as to fraud, waste, and abuse in state programs and operations; (34) Code Section 45-7-4, relating to annual salaries of certain state officials and cost-of-living adjustments; (35) Code Section 45-15-30, relating to creation of the Department of Law, assistants, deputies, and other support personnel; determination of duties, salaries, and effect promotions, limitation on private practice oflaw, and disclosure requirement for assistant attorney general representing criminal defendant; (36) Code Section 45-16-11, relating to compensation of county coroners, increases, calculation, supplements, and expenses; (37) Code Section 45-18-51, relating to the creation of the Employee Benefit Plan Council, membership, terms of office, and vacancies, compensation and expense reimbursement, officers, executive secretary and staff support, meetings, adoption of procedures and promulgation of rules and regulations; (38) Code Section 45-20-1, relating to purposes and principles; (39) Code Section 45-20-6, relating to composition ofclassified and unclassified service, effect of exclusion from classified service on eligibility for membership in Employees' Retirement System of Georgia, and working test period before obtaining merit system protection; (40) Code Section 45-20-11, relating to audits of merit system and reports of audit findings; (41) Code Section 45-20-15, relating to confidentiality of information received by staff in counseling and exceptions; (42) Code Section 45-23-3, relating to definitions regarding a drug-free public work force; (43) Code Section 45-23-4, relating to suspension or termination of public employee convicted of drug offense; (44) Code Section 45-23-7, relating to continuance of employment for drug user and requirements and procedure; (45) Code Section 45-23-8, relating to administrative procedures; (46) Code Section 46-2-42, relating to employment of assistant director of Utility Finance Section, employment ofaccountants, statisticians, experts, and clerical personnel and classification of employees; (47) Code Section 48-2-5, relating to office of deputy state revenue commissioner; (48) Code Section 48-2-6, relating to departmental organization, employees, compensation, and collection of delinquent taxes by contractors;

748

GENERAL ACTS AND RESOLUTIONS, VOL. I

(49) Code Section 48-5-183, relating to salaries oftax collectors and tax commissioners; (50) Code Section 48-5-263, relating to qualifications, duties, and compensation of appraisers; (51) Code Section 48-5-267, relating to state payments for minimum staff of appraisers and state salary supplements for qualified appraisers; (52) Code Section 50-5B-2, relating to administrative units, directors, and employees; (53) Code Section 50-8-17, relating to employees serve in unclassified service and election option for current classified employees; (54) Code Section 50-8-142, relating to employees; (55) Code Section 50-12-65, relating to appointment, terms, compensation, and expenses of board members, personnel, meetings, and quorum; (56) Code Section 50-12-71, relating to appointment, terms, and expenses of board member; (57) Code Section 50-13-40, relating to creation of the Office of State Administrative Hearings and chief state administrative law judge; (58) Code Section 50-13-44, relating to administrative transfer of individuals to Office of State Administrative Hearings, approval of chief state administrative law judge, funding of transferred positions, and transferred employees status; (59) Code Section 50-18-93, relating to duties of division; (60) Code Section 50-26-22, relating to transfer of personnel to Department of Community Affairs; and (61) Code Section 50-34-18, relating to transfer of positions authorized by authority to Department of Community Affairs.

SECTION 2. The Official Code of Georgia Annotated is further amended by replacing the term "State Merit System ofPersonnel Administration" with "State Personnel Administration" wherever such term appears in:
(1) Code Section 2-2-4, relating to the Commissioner of Agriculture and salary and expenses and compensation of employees; (2) Code Section 12-2-6, relating to the authority to arrange for and accept federal aid and cooperation, volunteer services, and cooperation with other government entities and civic organizations; (3) Code Section 12-4-1, relating to powers and duties of Environmental Protection Division as to mineral and geological resources; (4) Code Section 12-6-5, relating to powers and duties of commission generally and volunteer services; (5) Code Section 15-5-6, relating to administrative assistant, duties, status, and compensation;

GEORGIA LAWS 2009 SESSION

749

(6) Code Section 15-6-27, relating to procedure for hiring personnel employed by superior court judges, authority and duties, uniform policies, salaries and benefits, expenses, supplies, and local supplements; (7) Code Section 15-18-19, relating to state paid personnel, powers, policies relating to, authorized leave, and salary schedules; (8) Code Section 17-12-27, relating to appointment of assistant public defenders, salary, and promotions; (9) Code Section 17-12-30, relating to classification of personnel, responsibilities, compensation, and local supplements; (10) Code Section 20-3-39, relating to reassignment of responsibilities for operation and management ofpublic libraries, employees, transfer offunding, and rules and regulations; (11) Code Section 27-1-16, relating to establishment of unit of conservation rangers, qualifications, appointment, and supervisory personnel, and retention of badge and weapon upon disability retirement; (12) Code Section 31-3-11, relating to appointments of director and staff and supervision; (13) Code Section 31-3-15, relating to establishment of health districts; ( 14) Code Section 31-5A-4, relating to the Department of Community Health's powers, duties, functions, and responsibilities, divisions, directors, the Office ofWomen's Health, and contracts for health benefits; (15) Code Section 31-5A-5, relating to transfer of personnel and functions, conforming to federal standards of personnel administration, existing procedures, regulations, and agreements, and rules adoption and implementation; (16) Code Section 31-7-17, relating to licensure and regulation of hospitals and related institutions transfer to Department of Community Health; (17) Code Section 31-7-159, relating to licensure and regulation ofhome health agencies transfer to Department of Community Health; (18) Code Section 31-7-265, relating to facility licensing and employee records checks for personal care homes transfer to Department of Community Health; (19) Code Section 31-7-308, relating to licensure and regulation of private home care providers transfer to Department of Community Health; (20) Code Section 31-10-4, relating to appointment of state registrar of vital records; (21) Code Section 31-29-6, relating to rights of employees under merit system; (22) Code Section 34-15-2, relating to July transfer of Division of Rehabilitation Services to the Department of Labor; (23) Code Section 35-1-6, relating to appointment of nonuniformed investigators, salaries, status, assignment, and powers; (24) Code Section 35-2-74, relating to governor to prescribe coverage by state merit system; (25) Code Section 35-3-6, relating to Director of the State Merit System of Personnel Administration, classification in state merit system, and compensation;

750

GENERAL ACTS AND RESOLUTIONS, VOL. I

(26) Code Section 35-3-9, relating to narcotics agents; (27) Code Section 35-3-11, relating to applicability to agents of bureau of rules of State Personnel Board and state merit system and retention of badge and weapon by disabled agent; (28) Code Section 35-3-3 I, relating to establishment of the Georgia Crime Information Center, staff and equipment generally, and merit system status of personnel; (29) Code Section 35-3-8 I, relating to establishment, development, maintenance, and operation of center and staff; (30) Code Section 37- I-21, relating to institutional powers and duties of Department of Human Resources and Board of Human Resources; (31) Code Section 37-2-6.1, relating to community service boards, program director, staff, budget, and facilities, powers and duties, and exemption from state and local taxation; (32) Code Section 37-2-6.2, relating to employees whose jobs include duties or functions which will become duties or functions of a community service board on July 1, I994, and rights, duties, and benefits of employees; (33) Code Section 42-8-26, relating to qualifications of probation supervisors, compensation and expenses, conflicts of interest, and bonds; (34) Code Section 45-1-4, relating to complaints or information from public employees as to fraud, waste, and abuse in state programs and operations; (35) Code Section 45-7-54, relating to voluntary contributions by state government employees through payroll deductions to certain not for profit organizations; (36) Code Section 45-10-20, relating to definitions of conflicts of interests regarding public officers and employees; (37) Code Section 45-10-27, relating to construction of part with rules and regulations of the State Merit System of Personnel Administration; (38) Code Section 45- I 2-72, relating to the establishment of Office of Planning and Budget and general provisions; (39) Code Section 45-19-22, relating to definitions of fair employment practices regarding public officers and employees; (40) Code Section 45-20-2, relating to definitions regarding the state merit system and personnel administration; (41) Code Section 45-20-3, relating to duties and functions of State Personnel Board generally, compensation, and quorum; (42) Code Section 45-20-3.1, relating to rule-making procedure; (43) Code Section 45-20-4, relating to creation of commissioner of personnel administration, appointment, compensation, powers and duties, and appointment and prescription of duties of deputy commissioner and other assistants; (44) Code Section 45-20-12, relating to implementation ofpublic management certificate program;

GEORGIA LAWS 2009 SESSION

751

(45) Code Section 45-23-3, relating to definitions of a drug-free public work force in regard to public officers and employees; (46) Code Section 49-1-5, relating to suspension and removal of county board member, county director, or employee or official of department; (47) Code Section 49-3-4, relating to appointment of staff, salaries, and power of commissioner to transfer employees; (48) Code Section 49-3-7, relating to removal of county director for falsification of qualifications; (49) Code Section 49-4A-5, relating to transfer offunctions and employees of Division ofYouth Services; (50) Code Section 49-5-6, relating to merit system to conform to federal standards, power to employ and contract for professional services, employment and dismissal procedures, and membership in state retirement system; (51) Code Section 50-5-53, relating to authorization to employ assistants, fix salaries, and make assignments; (52) Code Section 50-8-6, relating to divisions, sections, and offices of department; and (53) Code Section 50-25-5.1, relating to chief information officer, appointment and removal, compensation, and powers and duties.

SECTION 3. The Official Code of Georgia Annotated is further amended by changing the terms "state merit system" and "merit system" to "State Personnel Administration" in Code Section 45-20-15, relating to confidentiality of information received by staff in counseling and exceptions.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

752

GENERAL ACTS AND RESOLUTIONS, VOL. I

RETIREMENT- REDESIGNATE STATE MERIT SYSTEM OF PERSONNEL ADMINISTRATION AS STATE PERSONNEL ADMINISTRATION.

No. 156 (Senate Bill No. 98).

AN ACT

To amend Title 47 of the Official Code of Georgia Annotated, relating to retirement and pensions, so as to change certain references to the State Merit System of Personnel Administration to the State Personnel Administration; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Title 47 of the Official Code of Georgia Annotated, relating to retirement and pensions, is amended by replacing the term "State Merit System ofPersonnel Administration" with "State Personnel Administration" and by replacing the term "state merit system of personnel administration" with "State Personnel Administration" whenever such term appears in:
(1) Code Section 47-2-1, relating to definitions; (2) Code Section 4 7-2-2, relating to involuntary separation from employment and grounds and procedures for discharge of employees; (3) Code Section 47-2-22, relating to the election of a chairman and director, actuarial services, application ofthe State Merit System of Personnel Administration, and payment of costs of the State Merit System of Personnel Administration; (4) Code Section 47-2-91, relating to credit for accumulations of forfeited annual and sick leave; (5) Code Section 47-2-110, relating to retirement ages, application and eligibility for a retirement allowance, suspension ofretirement allowance upon reemployment, and health benefits; (6) Code Section 47-2-123, relating to allowance payable upon death, disability, or involuntary separation from employment, restrictions on separation for disability, and restrictions on entitlement to involuntary separation benefits; (7) Code Section 47-2-142, relating to credit for prior service rendered by persons transferred under loan to a federal agency but ineligible for federal service retirement membership or who served overseas with the Red Cross during World War II; (8) Code Section 47-3-1, relating to definitions; (9) Code Section 47-3-60, relating to eligibility, termination, leaves of absence, service credit for postgraduate study, and transfer of service credit;

GEORGIA LAWS 2009 SESSION

753

(10) Code Section 47-6-84, relating to termination of retirement allowance upon return to service and retirement benefits for retired members returning to service in the General Assembly; (11) Code Section 47-19-9, relating to application ofthe State Merit System of Personnel Administration to employees of the department and payment of pro rata share of costs; and (12) Code Section 47-23-109, relating to cessation ofretirement allowance for resuming state service.

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

RETIREMENT- CHANGE DUTIES OF DEPARTMENT OF ADMINISTRATIVE SERVICES TO VARIOUS RETIREMENT SYSTEMS.
No. 157 (Senate Bill No. 109).
AN ACT
To amend Title 47 of the Official Code of Georgia Annotated, relating to retirement and pensions, so as to change certain duties and obligations from the Department of Administrative Services to the Council of Superior Court Judges of Georgia, the Council of State Court Judges of Georgia, the Prosecuting Attorneys' Council of the State of Georgia, and the Council of Juvenile Court Judges, as appropriate; to provide for certain reporting; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Title 47 of the Official Code of Georgia Annotated, relating to retirement and pensions, is amended by revising Code Section 47-2-260, relating to continuation ofmembership, rights, and benefits ofjudges of superior courts and district attorneys in the Employees' Retirement System ofGeorgia, notice ofelection to continue membership, and contributions, as follows:
'47-2-260. (a) The provisions of this or any other law to the contrary notwithstanding, on and after April 1, 1969, any person appointed or elected as a judge of the superior court or as a

754

GENERAL ACTS AND RESOLUTIONS, VOL. I

district attorney who at the time of such appointment or election is a member of the Employees' Retirement System of Georgia shall be entitled to elect to continue as a member of the retirement system while holding office as a judge of the superior court or district attorney. All rights, credits, and funds in the retirement system which are possessed by any such member at the time ofthe member's appointment or election shall be continued in force and the member shall be entitled to all rights and benefits under the retirement system to which the member was entitled at the time of the member's appointment or election and to all rights subsequently acquired. (b) Within 30 days after appointment or election as a judge of the superior court or as a district attorney, any such person who elects to continue as a member of the retirement system shall notify the director of the Employees' Retirement System of Georgia and the Council of Superior Court Judges of Georgia or the Prosecuting Attorneys' Council of the State of Georgia, as appropriate, of that decision. Upon making such election and giving the required notice, a member who is subject to the provisions of this Code section shall not be required to become a member of or make contributions to the Georgia Judicial Retirement System created by Chapter 23 of this title. (c) Employee contributions, including contributions for retirement allowances, survivors benefits under Code Section 47-2-128, and social security coverage, of members referred to in this Code section shall be deducted by the Council of Superior Court Judges of Georgia or the Prosecuting Attorneys' Council ofthe State of Georgia, as appropriate, from the compensation paid by the state to such members and remitted to the retirement system. (d) The Council of Superior Court Judges of Georgia and the Prosecuting Attorneys' Council of the State of Georgia are authorized and directed to pay from the funds appropriated or otherwise made available for the operation of the judicial branch of government of this state the required employer contributions, including contributions for retirement allowances, survivors benefits under Code Section 47-2-128, and social security coverage, and to remit those contributions to the retirement system."

SECTION 2. Said title is further amended by revising subsection (b) of Code Section 47-2-262, relating to membership in the Employees' Retirement System of Georgia ofassistant district attorneys and employees of the Prosecuting Attorneys' Council, notice of election to become a member, and contributions, as follows:
(b) Each assistant district attorney and each employee of the Prosecuting Attorneys' Council of the State of Georgia, hereinafter in this Code section collectively referred to as 'employee' or 'employees,' employed on June 30, 1979, may elect to become a member of the Employees' Retirement System of Georgia. Any such employee electing to become a member of the retirement system shall so notify the board of trustees not later than October 1, 1979. Any such employee who failed to notify the board of trustees by that date shall not at any time thereafter be eligible for membership in the retirement system. Any person who becomes an employee on or after July 1, 1979, shall become a member of the

GEORGIA LAWS 2009 SESSION

755

Employees' Retirement System of Georgia as a condition of his or her employment, unless he or she is eligible for membership in another publicly supported retirement or pension system or fund which provides retirement benefits based wholly or partially on compensation of such employee paid from state funds. An employee who is eligible for membership in any such other publicly supported retirement or pension system or fund may elect to become a member of the retirement system in lieu of membership in such other publicly supported retirement or pension system or fund by notifying the board of trustees of such election within 90 days after becoming employed with the Prosecuting Attorneys' Council of the State of Georgia. Any such employee who fails to notify the board of trustees within such time shall not at any time thereafter be eligible for membership in the retirement system. The state salary paid to employees who become members of the retirement system shall be the basis for employee and employer contributions for such employees. All employer contributions required by this chapter for such members shall be paid from funds appropriated or otherwise available. The Prosecuting Attorneys' Council of the State of Georgia shall deduct from the state salaries payable to such members the employee contributions required by this chapter.'

SECTION 3. Said title is further amended by revising subsection (a) of Code Section 47-2-264, relating to membership in the Employees' Retirement System of Georgia of secretaries employed by judges of superior courts and district attorneys, creditable service, and contributions, as follows:
'(a) Each secretary employed by a judge of the superior court or a district attorney under Code Section 15-6-25 or 15-18-17 shall be a member ofthe Employees' Retirement System of Georgia with a commencement date of July I, 1975. Any such secretary who is already a member of the retirement system by virtue of service with another employer shall be entitled to credit for all service rendered while an employee under the retirement system. All contributions required under this chapter made on behalf of such judicial secretaries shall be paid from funds appropriated or otherwise available for the operation of the superior courts, and all contributions required under this chapter made on behalf of such secretaries of district attorneys shall be paid from funds appropriated or otherwise available. All such payments shall be in addition to the regular compensation provided by law for such secretaries.'

SECTION 4. Said title is further amended by revising subsection (d) of Code Section 47-2-265, relating to membership in the Employees' Retirement System of Georgia of district attorney investigators, as follows:
'(d) The state salaries paid to district attorney investigators who become members of the retirement system pursuant to this Code section shall be the basis for employee and employer contributions to the retirement system for such members. All employer

756

GENERAL ACTS AND RESOLUTIONS, VOL. I

contributions, including employee contributions made by the employer on behalf of members, which are required by this chapter for such members shall be paid from funds appropriated or otherwise available. The Prosecuting Attorneys' Council of the State of Georgia shall deduct from the state salaries payable to such members the additional employee contributions required by this chapter.'

SECTION 5. Said title is further amended by revising subparagraph (f)(l)(B) of Code Section 47-2-266, relating to membership in the Employees' Retirement System of Georgia of judicial employees and contributions, as follows:
(B) The Council of Superior Court Judges of Georgia, the president of The Council of Superior Court Judges of Georgia, or the district administrative judge employing the person claiming the creditable service shall pay the employer contributions that would have been paid to the retirement system ifthe person claiming the creditable service had been a member during the period of time for which creditable service is claimed plus regular interest on such employer contributions compounded annually from the time the prior service was rendered to the date of payment. For prior service as a judicial employee specified in subparagraph (a)(l)(D) of this Code section, the employer contributions plus interest required by this subparagraph shall be paid by the Council of Superior Court Judges of Georgia from funds appropriated or available for the operation of the superior courts.'

SECTION 6. Said title is further amended by revising Code Section 47-2-267, relating to membership of employees of district attorneys in the Employees' Retirement System of Georgia and contributions, as follows:
'47-2-267. Except as provided in Code Section 47-2-265, each full-time employee of a district attorney, which employee is compensated through funds appropriated by the General Assembly, shall be a member of this retirement system as a condition of employment. Any such employee who is already a member of this retirement system by virtue of service with another employer shall be entitled to credit for all service rendered while an employee under the retirement system. All contributions required under this chapter shall be paid from funds appropriated or otherwise available. The Prosecuting Attorneys' Council ofthe State of Georgia shall deduct from the state salaries paid to such members the employee contributions required by this chapter."

SECTION 7. Said title is further amended by revising subsection (a) of Code Section 47-2-290, relating to judges, solicitors, and other employees of state courts subject to a merit system,

GEORGIA LAWS 2009 SESSION

757

membership in the Employees' Retirement System of Georgia, contributions, and exemptions, as follows:
'(a) The state courts of this state are declared to be adjuncts of the superior courts, the state courts having concurrent jurisdiction in all civil and criminal matters except those exclusively vested in the superior courts. All judges, solicitors, and other employees of any state court in this state shall be subject to a merit system of personnel administration as promulgated by each state court under which all such officers and employees shall perform services on the basis of merit, fitness, and efficiency. All such officers and employees are authorized to become members of the Employees' Retirement System of Georgia in accordance with this chapter. The governing authority of each county of this state shall deduct or collect from each member the employee contributions required by this chapter and shall remit those contributions to the retirement system on a monthly basis. The Council of State Court Judges of Georgia is authorized and directed to pay from the funds appropriated or otherwise available the employer contribution required by this chapter for judges and employees of the state courts, which contribution shall be paid by the Council of State Court Judges of Georgia, upon receipt of an invoice from the retirement system. The Prosecuting Attorneys' Council of the State of Georgia is authorized and directed to pay from the funds appropriated or otherwise available the employer contribution required by this chapter for solicitors-general of the state courts, which contribution shall be paid by the Prosecuting Attorneys' Council of the State of Georgia, upon receipt of an invoice from the retirement system.'

SECTION 8. Said title is further amended by revising paragraph (1) of subsection (a) of Code Section 47-8-67, relating to election of survivors benefits coverage, contributions required for such coverage, effect of such coverage on appointment to the office of senior judge, and amount of survivors benefits, as follows:
'(1) Any judge so electing shall pay an amount equal to 2 percent of his or her state salary for each year of prior service as a judge of superior court up to the time of such election and shall thereafter contribute, in addition to the 5 percent contribution required by this chapter, 2 percent of the salary paid to him or her by the state. Such amount shall be deducted from such salary by the Council of Superior Court Judges of Georgia and deposited into the retirement fund; and"

SECTION 9. Said title is further amended by revising subsection (b) of Code Section 47-12-41, relating to payments by district attorneys into the District Attorneys Retirement Fund of Ge<?rgia, as follows:
'(b) Each district attorney who is now in office and who is otherwise eligible to participate in the benefits provided by this chapter shall make his or her payments to the fund until his or her retirement. Any such district attorney who is eligible to participate in the fund but

758

GENERAL ACTS AND RESOLUTIONS, VOL. I

who has not made the payments set forth in this Code section may pay such amounts into the fund not later than July 1, 1961, with interest at the rate of 5 percent per annum on all amounts due since February 17, 1949, to the date of payment to the Prosecuting Attorneys' Council of the State of Georgia."

SECTION 10. Said title is further amended by revising subsection (a) of Code Section 47-12-43, relating to manner of deduction of payments to the fund, penalty for late payments, and payments made on behalf of the district attorney, as follows:
'(a) The payment into the fund either of 5 percent or 7 1/2 percent, as applicable, of the state salary shall be deducted monthly by the Prosecuting Attorneys' Council of the State of Georgia from the salary of each district attorney who is a member of the fund. If any such payments have not been made by February 15 of the succeeding year, the sum due shall incur a penalty of 6 percent interest per annum computed on the principal amount from February 15 until actually paid. Beginning with the payments to be made covering the calendar year 1964, and for each calendar year thereafter, if the sum due is not paid by February 15 of the succeeding year, such sum due shall be increased by 10 percent plus 6 percent interest per annum, computed on the sum due plus the additional 10 percent, from February 15 until the date of actual payment of the entire amount."

SECTION 11. Said title is further amended by revising Code Section 47-12-44, relating to transfer of membership and contributions to the Employees' Retirement System ofGeorgia and payment of additional state contribution upon transfer, as follows:
'47-12-44. The board of trustees shall transfer to the Employees' Retirement System of Georgia all contributions made to the fund by a member who transfers to the Employees' Retirement System of Georgia; and the Prosecuting Attorneys' Council of the State of Georgia is authorized and directed to pay from the funds appropriated or otherwise available an additional amount equal to the 5 percent contribution of such member plus an additional 20 percent of the contribution, so that the state contribution shall be in accordance with the Employees' Retirement System of Georgia."

SECTION 12. Said title is further amended by revising subsection (e) of Code Section 47-18-40, relating to agreement between state and federal government for state employees, like agreements between federal government and interstate instrumentalities, and division of retirement system, as follows:
'(e) The position of any member of the division or part of the Superior Court Judges Retirement Fund of Georgia who does not desire coverage may be transferred to the separate retirement fund composed of positions of members who do desire coverage upon

GEORGIA LAWS 2009 SESSION

759

such terms and conditions and at such time as permitted by federal law. In the event of such transfer, the employee contributions of such member required for social security coverage shall be deducted by the Council of Superior Court Judges of Georgia and remitted to the state agency, together with the required employer contributions. The Council of Superior Court Judges of Georgia is authorized and directed to pay, from funds appropriated or otherwise available for the operation of the superior courts, the required employer contributions on any such transferred member!

SECTION 13. Said title is further amended by revising Code Section 47-18-43, relating to referendum on the question of coverage of positions covered by Chapter 12 of such title, as follows:
'47-18-43. Anything in this chapter to the contrary notwithstanding, the Governor is empowered to authorize a referendum in accordance with the requirements of Section 218(d)(3) of the Social Security Act on the question ofwhether services in positions covered by the District Attorneys Retirement Fund of Georgia, Chapter 12 of this title, shall be excluded from or included under an agreement under this chapter with an effective date of July I, 1956. If the referendum results in an affirmative vote, employee contributions required for social security coverage shall be deducted by the Prosecuting Attorneys' Council of the State of Georgia from the compensation or other funds due the employee and shall be remitted to the state agency, together with the required employer contributions. Such employee deductions shall be based on an affidavit from each individual as to the total wages received by him or her each calendar quarter as district attorney. Such affidavit shall be forwarded to the Prosecuting Attorneys' Council ofthe State of Georgia before the fifth day of the month following the end of each calendar quarter. If any district attorney fails to submit the required affidavit to the Prosecuting Attorneys' Council of the State of Georgia within the required time, any and all funds due such individual shall be withheld by the Prosecuting Attorneys' Council of the State of Georgia until an appropriate affidavit has been received. The Prosecuting Attorneys' Council of the State of Georgia is authorized and directed to pay the required employer contribution from the funds appropriated or otherwise available."

SECTION 14. Said title is further amended by revising Code Section 47-18-44, relating to referendum on the question of coverage of positions covered by Chapter 8 of such title, as follows:
'47-18-44. The Governor is empowered to authorize a referendum in accordance with the requirements of Section 218(d)(3) of the Social Security Act on the question of whether services in positions covered by the Superior Court Judges Retirement Fund of Georgia, Chapter 8 of this title, shall be excluded from or included under an agreement under this chapter with an effective date of July 1, 1956. If the referendum results in an affirmative vote, employee

760

GENERAL ACTS AND RESOLUTIONS, VOL. I

contributions required for social security coverage shall be deducted by the Council of Superior Court Judges of Georgia and remitted to the state agency, together with the required employer contributions. The Council of Superior Court Judges of Georgia is authorized and directed to pay the required employer contribution from the funds appropriated for the operation of the superior courts of the state.'

SECTION 15. Said title is further amended by revising Code Section 47-23-25, relating to payment of administrative expenses, as follows:
'47-23-25. In order to pay the administrative expenses of the fund and upon the receipt of a request from the board on or after July 1, 1998, and each year thereafter, the Council of Superior Court Judges of Georgia, the Council of State Court Judges of Georgia, the Council of Juvenile Court Judges, and the Prosecuting Attorneys' Council of the State of Georgia are authorized and directed to pay into the fund, from funds appropriated or otherwise available, an amount sufficient to pay the administrative expenses of the fund as certified by the board to the Council of Superior Court Judges of Georgia, the Council of State Court Judges of Georgia, the Council of Juvenile Court Judges, and the Prosecuting Attorneys' Council of the State of Georgia.'

SECTION 16. Said title is further amended by revising Code Section 47-23-47, relating to transfer of members' contributions, as follows:
'47-23-47. The board of trustees shall transfer to the Employees' Retirement System of Georgia all contributions made to the fund by a member who transfers to the Employees' Retirement System of Georgia; and the Council of Superior Court Judges of Georgia, the Council of State Court Judges of Georgia, the Council of Juvenile Court Judges, and the Prosecuting Attorneys' Council of the State of Georgia, as appropriate, are authorized and directed to pay from the funds appropriated or otherwise available an additional amount equal to the 5 percent contribution of such member plus an additional 20 percent of the contribution, so that the state contribution shall be in accordance with the Employees' Retirement System of Georgia.'

SECTION 17. Said title is further amended by revising subsection (a) of Code Section 47-23-80, relating to contributions by superior court judges and district attorneys and employer contributions, as follows:
"(a) The provisions of this Code section shall be applicable to judges ofthe superior courts and district attorneys. The amount of employee contributions to the fund by superior court judges shall be 7 1/2 percent of the earnable monthly compensation from state funds

GEORGIA LAWS 2009 SESSION

761

provided by law for judges of the superior courts. The amount of employee contributions to the fund by district attorneys shall be 7 1/2 percent of the earnable monthly compensation from state funds provided by law for district attorneys. The Council of Superior Court Judges of Georgia and the Prosecuting Attorneys' Council of the State of Georgia, as appropriate, are authorized to deduct 7 1/2 percent monthly from the earnable monthly compensation of each judge of the superior courts and each district attorney who is a member of the retirement system to cover the employee contributions to the fund. The Council of Superior Court Judges ofGeorgia and the Prosecuting Attorneys' Council ofthe State of Georgia, as appropriate, are also authorized to make an additional deduction from such earnable monthly compensation to cover any required employee tax for social security coverage. The Council of Superior Court Judges ofGeorgia and the Prosecuting Attorneys' Council of the State of Georgia, as appropriate, are authorized and directed to pay, from the funds appropriated or otherwise available, any required employer contribution for social security coverage on such judges and district attorneys. From funds appropriated or otherwise available, the Council of Superior Court Judges of Georgia and the Prosecuting Attorneys' Council of the State of Georgia, as appropriate, are authorized and directed to pay into the fund the employer contributions, including contributions to fund any creditable service authorized by this chapter, which, together with employee contributions and the earnings of the fund, shall be an amount sufficient to fund the service and disability retirement benefits and the spouses' benefits under this chapter."

SECTION 18. Said title is further amended by revising paragraph (2) of subsection (b) of Code Section 47-23-81, relating to contributions by judges and solicitors-general of state courts, employer contributions, and reports required, as follows:
'(2) The Council of State Court Judges of Georgia and the Prosecuting Attorneys' Council of the State of Georgia are authorized and directed to pay into the fund provided for by this chapter monthly employer contributions, including contributions to fund any creditable service authorized by this chapter. Such amounts are to be determined by the board and, together with employee contributions and the earnings of the fund, shall be an amount sufficient to fund the service and disability retirement benefits under this chapter. The Council of State Court Judges of Georgia and the Prosecuting Attorneys' Council of the State of Georgia are authorized and directed to pay from the funds appropriated or otherwise available any required employer contribution for social security coverage on such members."

SECTION 19. Said title is further amended by revising subsection (c) of Code Section 47-23-81, relating to contributions by state court judges and solicitors-general of state courts, employer contributions, and reports required, as follows:

762

GENERAL ACTS AND RESOLUTIONS, VOL. I

"(c)(l) It shall be the duty of each employing unit affected by this chapter to designate a responsible person to submit the reports and forward the employee contributions set forth in this Code section. It shall be the duty of the person so designated to comply with this Code section. If the required reports and employee contributions are not forwarded to the board or if duplicate copies of the reports are not directed to the Office of Treasury and Fiscal Services, in accordance with this Code section, as appropriate, the Office of Treasury and Fiscal Services is authorized to withhold any state payments payable to the governmental unit failing to forward such reports and employee contributions until such time as such reports and contributions have been received. (2) It shall be the duty of the clerk of each state court to notify the Council of State Court Judges of Georgia, the Prosecuting Attorneys' Council of the State of Georgia, and the board of directors of this retirement system of the election or appointment of a new state court judge or solicitor-general or the vacating of any such office. Such notification shall be made within two weeks of such election, appointment, or vacancy. (3) Each employing unit affected by this chapter shall provide the Council of State Court Judges of Georgia, the Prosecuting Attorneys' Council of the State of Georgia, and the board of directors of this retirement system with a list of all employees of the employing unit who are current members of this retirement system. Such report shall be made each calendar month.'

SECTION 20. Said title is further amended by revising paragraph (2) of subsection (b) of Code Section 47-23-82, relating to contributions by juvenile court judges, employer contributions, and reports required, as follows:
"(2) The Council of Juvenile Court Judges is authorized and directed to pay into the fund provided for by this chapter monthly employer contributions, including contributions to fund any creditable service authorized by this chapter. Such amounts are to be determined by the board and, together with employee contributions and the earnings of the fund, shall be an amount sufficient to fund the service and disability retirement benefits under this chapter.'

SECTION 21. This Act shall become effective on July I, 2010.

SECTION 22. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

GEORGIA LAWS 2009 SESSION

763

STATE GOVERNMENT- MADE IN GEORGIA PROGRAM.

No. !58 (Senate Bill No. 117).

AN ACT

To amend Chapter 7 of Title 50 of the Official Code of Georgia Annotated, relating to the Department of Economic Development, so as to revise provisions related to the "Made in Georgia" program; to provide for rules and regulations; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Chapter 7 of Title 50 ofthe Official Code of Georgia Annotated, relating to the Department of Economic Development, is amended by revising Code Section 50-7-80, relating to creation of the "Made in Georgia" Program, as follows:
'50-7-80. (a) The General Assembly finds that:
(I) The State of Georgia substantially benefits from the consumption of goods and products manufactured in Georgia; and (2) The State of Georgia could further substantially benefit from creating public awareness of the importance of choosing Georgia's goods and products whenever possible. (b) The Department of Economic Development shall create and implement a 'Made in Georgia' program promoting goods and products manufactured in Georgia. This program shall: (I) Showcase and promote goods and products manufactured in Georgia; (2) Inform Georgians of the diverse manufacturing sector within this state; and (3) Provide educational outreach efforts to bring the science of manufacturing into the classroom and emphasize the significant contributions Georgia companies make to the economy and quality of life in Georgia. (c) The Department of Economic Development shall create and maintain a website informing the public of Georgia manufacturers and their goods and products. All state governmental entities that maintain websites shall cooperate with the Department of Economic Development to include a link to the website created pursuant to this subsection, provided that the Department of Economic Development determines that such link is appropriate and is in the best interest of the state.

764

GENERAL ACTS AND RESOLUTIONS, VOL. I

(d) Companies shall be required to manufacture a minimum of 50 percent of its product or good within the boundaries of the state of Georgia to qualify for inclusion to the provisions of this Code section. (e) The Department of Economic Development may adopt any rules and regulations that it finds necessary to properly implement this Code section.'

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

DEDICATE MULTIPLE PORTIONS OF STATE HIGHWAY SYSTEM.
No. 159 (Senate Resolution No. 176).
A RESOLUTION
Dedicating certain portions of the state highway system; and for other purposes.
PART I WHEREAS, James H. Chandler, Jr., was only 33 years old when he was fatally injured in a traffic accident while he was responding to a bank alarm on his police motorcycle; and
WHEREAS, the accident occurred on September 24, 1982, at the intersection of SR 1 and Cloud Springs Road, and James died the next day from his injuries; and
WHEREAS, he was a graduate of Lakeview High School and the Floyd College Regional Police Academy; and
WHEREAS, at the time of his death, Mr. Chandler had worked with the Fort Oglethorpe Police Department for four years, and in 1999, the police department's training facility was named in his honor; and
WHEREAS, Mr. Chandler was often described as a big guy, with a big heart, who loved his job; and
WHEREAS, he left behind his beautiful wife Jeannie and three sons, Mark, Brian, and Sean; and

GEORGIA LAWS 2009 SESSION

765

WHEREAS, it is only fitting that the memory of James H. Chandler, Jr., be perpetuated by a lasting monument to his life well-lived.

PART II WHEREAS, MSG Davy Weaver, a soldier in the Georgia Army National Guard from Barnesville, Georgia, was killed while riding in a vehicle that was struck by an improvised explosive device in Qalat, Afghanistan, on May 18, 2008; and

WHEREAS, he was born on February 8, 1969, to Patsy Rabuck and Emory Weaver; and

WHEREAS, as a youth, he served his community as a Cub, Boy, and Eagle Scout, and naturally, he fell in love with the military as a young man; and

WHEREAS, MSG Weaver enlisted in the Georgia Army National Guard on March 25, 1987, as an infantry soldier, and he completed Basic Training and Advanced Individual Training at Fort Benning, Georgia; and

WHEREAS, on May 11,2005, he was ordered into active service in support of Operation Iraqi Freedom, and he was stationed in Kuwait and Iraq and spent a year supporting that mission; and

WHEREAS, in May, 2007, he was sent with members of the 48th Brigade Combat Team to Afghanistan in support of Operation Enduring Freedom; and

WHEREAS, MSG Weaver was awarded the Combat Infantryman's Badge in September, 2007, for his actions under enemy fire and rocket attack in Afghanistan; and

WHEREAS, he loved his family dearly and loved his job and mission in Afghanistan; and

WHEREAS, he is survived by his wife, Susan, his children Bradley, Malachi, and Ellanor, and his step-daughters Jennifer and Mary A. Morris; and

WHEREAS, MSG Weaver will be forever remembered as a true hero and professional soldier, and it is only fitting and proper that a lasting memorial be dedicated in his honor.

PART III WHEREAS, the Battle of Chickamauga, named after the Chickamauga Creek which flowed nearby, was fought September 19-20, 1863, and involved more than 150,000 soldiers of the Northern and Southern Armies; and

766

GENERAL ACTS AND RESOLUTIONS, VOL. I

WHEREAS, the landscape of the battle was one where neither army wanted to fight, and the thick forest limited visibility to 150 feet, less than the range of a rifle; cannon were useless, and often the fighting was hand-to-hand; and

WHEREAS, during the battle, soldiers were cared for in the nearby homes and adjacent buildings, with many Union doctors remaining behind to care for the wounded after the Southern victory, and many parched and wounded soldiers of both sides drank from the town's bubbling Crawfish Spring, still active today; and

WHEREAS, the corridor of the highway dedicated in this resolution follows the general route ofmarch ofthe US Army of the Cumberland that fought in the Battle of Chickamauga; and

WHEREAS, it is only fitting to honor the brave men who fought and died here with a lasting memorial to their sacrifice.

PART IV WHEREAS, Mason Varner was born on May 8, 1932, in Macland Community. He spent his entire life in Macland, with the exception of four years he spent in the United States Coast Guard. One of his lifelong friends, Clint Carlile, said Mason could not wait to get back to Macland every chance he got while in the service; and

WHEREAS, Mason attended McEachern School and graduated in 1949. Six high school friends and Mason joined the Coast Guard in 1952 for a four-year stint; and

WHEREAS, Mason met Ann Greenway, a teacher at McEachern School, and they were married on March 4, 1956, and had three children, Melinda, Teri, and John. Ann passed away in 2001; and

WHEREAS, after Mason was discharged from service and returned to Macland, he started Varner's Ace Hardware store at the intersection of Macland and New Macland-Lost Mountain Roads. He and Ann operated the store for approximately 20 years. He was a great businessman; and

WHEREAS, Varner's store at Macland became a community institution, and all types of local, state, and national political discussions were held there; and

WHEREAS, fishing was a passion for Mason and he spent many days and nights on a lake with friends, and some ofhis favorite memories after retirement were from his cabin on Lake Weiss in Alabama; and

GEORGIA LAWS 2009 SESSION

767

WHEREAS, Mason was a lifetime member of McEachern United Methodist Church and supported its many programs. He was also a member of Austell Post #216 of The American Legion; and

WHEREAS, Mason passed away on November 13, 2007, surrounded by his children, grandchildren, brother, sister, nieces, nephews, and many friends. It was exactly as he would have wanted it.

PARTV WHEREAS, Jimmy Middleton was born to Mr. and Mrs. Oscar P. Middleton in 1937 and he grew up in Waverly, Georgia, as the youngest of three children; and

WHEREAS, he began his career in law enforcement in 1959 and served as chief deputy under Sheriff W. E. "Willie" Smith for 18 years before becoming the Sheriff of Camden County; and

WHEREAS, as sheriff from 1977 to 1985, he understood that being effective in his position required a close partnership with the community, and his legacy as a compassionate and hands-on sheriff will be remembered by many people for many years; and

WHEREAS, he served as sheriff during a time when your nearest backup might be a county away; and

WHEREAS, his service to his community went beyond being sheriff, as he also served as county commissioner and on various boards; and

WHEREAS, in 1957, Jimmy married Anne Rentz, and they were blessed with three children and, in turn, five grandchildren; and

WHEREAS, true to his nature, Jimmy was a giving and compassionate man and his friends looked to him for leadership, guidance, and support, and he was respected and loved by countless people in the community; and

WHEREAS, he will be remembered for his loyal dedication to his family and his commitment to the citizens of Camden County.

PART VI WHEREAS, Ray Delaigle has long been recognized by the citizens of Burke County for the vital role that he has played in leadership and his deep personal commitment to the welfare of the citizens of Georgia; and

768

GENERAL ACTS AND RESOLUTIONS, VOL. I

WHEREAS, he has diligently and conscientiously devoted innumerable hours of his time, talents, and energy toward the betterment of his community and state as evidenced dramatically by his superlative service as a member and chairperson of the Board of Commissioners of Burke County; and

WHEREAS, his significant organizational and leadership talents, his remarkable patience and diplomacy, his keen sense of vision, and his sensitivity to the needs ofthe citizens of this state have earned him the respect and admiration of his colleagues and associates; and

WHEREAS, he is a person of magnanimous strengths with an unimpeachable reputation for integrity, intelligence, fairness, and kindness; and

WHEREAS, it is abundantly fitting and proper that the outstanding accomplishments of this remarkable and distinguished Georgian be appropriately recognized by dedicating a lasting reminder of his service to the people of Burke County.

PART VII WHEREAS, all citizens of the United States owe a debt of gratitude for the heroic men and women who volunteer to defend our freedom in distant lands; and

WHEREAS, it is only fitting and proper to provide for lasting memorials to their great courage and dedication.

PART VIII WHEREAS, Phyllis Heller, a Marietta resident, passed away Aprill8, 2007, after a four year fight with an incurable blood cancer called multiple myeloma; and

WHEREAS, she was a heroic woman of many talents; and

WHEREAS, she was born in Hartford, Connecticut, and she attended Boston University School of Music where she majored in bassoon; and

WHEREAS, when Carl Orffs Carmina Burana premiered in this country on November 19, 1954, at Carnegie Hall under the baton of Leopold Stokowski, Phyllis Heller was the first chair bassoonist; and

WHEREAS, she had a lifelong passion for the arts and visited hundreds of museums around the world; and

GEORGIA LAWS 2009 SESSION

769

WHEREAS, in the 1990's she took up stained glass artwork and quickly became highly regarded for her intricate, large-scale designs including full-sized doors and room valances; and

WHEREAS, Ms. Heller was the Chairwoman of Sculpture Internationale, the largest international fine arts sculpture exposition in the United States, which took place in 2002 at Cobb Galleria, and she later went on to help fund and organize the Digital Fine Arts Museum; and

WHEREAS, throughout her career she enjoyed exploring different cultures and societies, and she was a principal in a firm which developed and produced export promotion shows for American manufacturers around the world, and in the process, she visited and produced expositions in more than 40 countries and on every continent except Antarctica; and

WHEREAS, it is only fitting and proper that the life of Phyllis Heller be celebrated and that a lasting tribute to her memory be established.

PART IX
WHEREAS, all citizens of the United States owe a debt of gratitude to the heroic men and women who volunteer to defend our freedom in distant lands; and

WHEREAS, it is only fitting and proper to provide for lasting memorials to their great courage and dedication and especially the sacrifices of veterans and their families residing in Pike County, Georgia.

PART X
WHEREAS, the law enforcement community and the State of Georgia lost one oftheir finest husbands, fathers, and law enforcement officers when Georgia State Patrol Trooper Tony M. Lumley gave his life in defense of the public on December 2, 2003; and

WHEREAS, Trooper Lumley joined the Georgia State Patrol as a Trooper Cadet in March, 2002, and completed his training at the 79th Georgia State Patrol Trooper School and graduated as one of the school's most bright and promising troopers in October of that year; and

WHEREAS, he was assigned to the State Patrol post in Forest Park, Georgia, and, as a result ofhis outstanding performance and work ethic, he was transferred to the State Patrol post in Griffin, Georgia, in February, 2003; and

770

GENERAL ACTS AND RESOLUTIONS, VOL. I

WHEREAS, a consummate team player, he was admired and respected by his peers for his mastery of law enforcement and public relations skills, sense of humor, and professional attitude; and

WHEREAS, he was an exemplary law enforcement officer who was held in high esteem for his disciplined and faithful devotion to protecting and preserving the public's safety; and

WHEREAS, Trooper Lumley is survived by his loving and devoted wife, Misty, and his precious daughters, Nikki and Brook.

PART XI WHEREAS, Donnie Dickens was a long-time resident of Pike County committed to serving his community and was a friend to all those who knew him; and

WHEREAS, Mr. Dickens worked tirelessly for the citizens of Pike County, including many years of dedicated service at the Road Department, where he held the position of Road Superintendent; and

WHEREAS, his selfless commitment to others and his community was further demonstrated by his active service as a member of the Lifsey Springs Volunteer Fire Department and his willingness to drive a school bus for Pike County school children; and

WHEREAS, Donnie Dickens will long be remembered by his family, friends, and the members of the community he served as a generous, hard-working man and a tremendous asset to Pike County.

PART XII WHEREAS, W. F. Gay was a resident of Gay, Georgia, and Meriwether County, Georgia; and

WHEREAS, Mr. Gay distinguished himself by serving several terms as the mayor of Gay; and

WHEREAS, Mr. Gay gave many hours of his time and energy to enhance the well-being of Gay and Meriwether County; and

WHEREAS, over the years, W. F. Gay developed and nurtured countless friendships with residents of Gay and Meriwether County; and

GEORGIA LAWS 2009 SESSION

771

WHEREAS, Mr. Gay departed this life without receiving proper recognition for his contributions, and it is only proper and fitting that an appropriate memorial be established in his memory.

PART XIII WHEREAS, Joe Bryan rendered distinguished public service as mayor of Damascus, Georgia, for six years; as a member of the city council of Damascus for more than 20 years; and as a school board member; and

WHEREAS, he served the peanut industry for more than fifty years, including service as president of Southern Peanut Warehousemen's Association and member of the advisory board of the Georgia Peanut Commission; and

WHEREAS, he was founder, director, and officer of Chem-Nut, Inc.; director of First State Bank, Blakely; and director of Blakely-Early County Chamber of Commerce; and

WHEREAS, he was a Century Member of the Boy Scouts of America and a faithful supporter of Southwest Georgia Academy and area churches; and

WHEREAS, he was a recipient of the Agribusiness Service Award, Georgia Peanut Service Award, and National Peanut Buying Points Association's Pioneer Award; and

WHEREAS, as the remembrance citation from St. James C.M.E. Church reads, "Joe Bryan never refused to help any worthy cause"; and as the citation from Bethel Methodist Church states, "Joe Bryan was a Godly man vigorously pursued a Godly path toward a Godly cause-helping his fellow man."

PART XIV WHEREAS, Glenn McCarver Smith III passed away in an accident on June 21, 2007, at the young age of 15; and

WHEREAS, he was a freshman at Pepperell High School, where he was an honor student taking college prep courses; and

WHEREAS, he was the class treasurer, a member of the student council, the Key Club, and the Fellowship of Christian Athletes; and

WHEREAS, Glenn played baseball and basketball and was active in the youth group at Pleasant Valley South Baptist Church; and

772

GENERAL ACTS AND RESOLUTIONS, VOL. I

WHEREAS, he leaves behind his parents, David and Laura; his sister, LeeAnn; and his grandparents, Johnny and Sarah Smith and Eunice Smith.

PART XV WHEREAS, beginning in 1992, Hinson Mosley was one of the most distinguished members of the House of Representatives, faithfully serving the citizens of House District 178 with vision and determination; and

WHEREAS, a resident of Jesup, Georgia, he enjoyed a stellar reputation as one of the strongest leaders for rural Georgia; and

WHEREAS, he served as a member of the House Appropriations Committee, the House Game, Fish, and Parks Committee (for which he previously served as chairman), and the House State Planning and Community Affairs Committee, and as Vice Chairman of the Transportation Committee; and

WHEREAS, among his many notable accomplishments during the course of his legislative career was authoring the Day of the Woman resolution, the only resolution to hang in the capitol; and

WHEREAS, he is known for his warm and friendly nature and his chinaberry smoked steaks; and

WHEREAS, a retired instrument technician and a devoted family man, Representative Mosley and his wife, Linda, are the loving parents of four children, Kim, George, Sharon, and Darrell; and

WHEREAS, it is only proper that a lasting tribute to this great public servant be established.

PART XVI WHEREAS, Glenn Brown was born April9, 1951, in Screven County; and

WHEREAS, he was the youngest of 12 children born to Albert and Zelma Wiley Brown; and

WHEREAS, Glenn attended Screven County Schools and Mercer University and was a lifelong member of Greenhill Baptist Church; and

WHEREAS, this young farmer and pastor of Ogeechee Baptist Church was married to the former Martha Lane; and

GEORGIA LAWS 2009 SESSION

773

WHEREAS, Glenn lived 25 short years and lost his life in a tragic accident off Highway 21 in the Whitehill area on June 14, 1976; and

WHEREAS, it is only fitting and proper that a lasting memorial in his memory be established.

PART XVII WHEREAS, the Clayton County Board of Commissioners and the Henry County Board of Commissioners have unanimously requested that a portion of Georgia Highway 138 be designated the Lake Spivey Parkway.

PART XVIII WHEREAS, Luke Dollar has been a resident of Marietta, Georgia, in Cobb County, for 35 years; and

WHEREAS, he served his country during the Vietnam conflict; and

WHEREAS, Mr. Dollar has set an example as a leader in his community; and

WHEREAS, he is a father to three outstanding children; and

WHEREAS, his greatest accomplishment, by far, was marrying the beautiful and talented Sue Kelly Dollar, and they have been married for 35 wonderful years; and

WHEREAS, it is only fitting and proper that this fine man be honored for all of his accomplishments.

PART XIX NOW, THEREFORE, BE IT RESOLVED BY THE GENERAL ASSEMBLY OF GEORGIA that the intersection of SR I and Cloud Springs Road be dedicated as the James H. Chandler, Jr. Memorial Intersection.

BE IT FURTHER RESOLVED that the portion of SR 36 from US 41 near Barnesville to Liberty Hill in Lamar County, Georgia, be dedicated as the MSG Davy Nathaniel Weaver Memorial Highway.

BE IT FURTHER RESOLVED that the portion ofSR 341 from its intersection with SR 193 north to its intersection with Gordon Street in Chickamauga be dedicated as the US Army of the Cumberland Highway.

774

GENERAL ACTS AND RESOLUTIONS, VOL. I

BE IT FURTHER RESOLVED that a portion ofMacland Road, SR 360, from the Paulding County line into Cobb County and ending at John Petree Road be dedicated as the Mason Varner Memorial Highway.

BE IT FURTHER RESOLVED that the portion of SR 25/US 17 within the limits of the Ocean Highway in Camden County, beginning at Oscar Road (CR 266 at MP 22.12) and ending at the County Line Bridge (MP 31.56) be dedicated as the Sheriff Jimmy Middleton Memorial Highway.

BE IT FURTHER RESOLVED that the bridge on SR 56 over Rocky Creek in Burke County, Georgia, be dedicated as the Ray Delaigle Bridge.

BE IT FURTHER RESOLVED that the members of this body commend the veterans of all ages and dedicate the portion of SR 301 in Glennville, Georgia, in Tattnall County, as Veterans Boulevard in honor of their great sacrifices on behalf of our country.

BE IT FURTHER RESOLVED that the members of this body honor the memory of Phyllis Heller and dedicate the bridge on SR 120 over Willeo Creek in Cobb County as the Phyllis Heller Memorial Bridge.

BE IT FURTHER RESOLVED that the members of this body commend veterans of all ages as well as the heroic veterans of Pike County, Georgia, and dedicate the portion of SR 362 in Pike County, Georgia, as the Pike County Veterans Memorial Highway in honor of their great sacrifices on behalf of our country.

BE IT FURTHER RESOLVED that the portion SR 18 in Pike County, Georgia, be dedicated as the Trooper Tony M. Lumley Memorial Highway.

BE IT FURTHER RESOLVED that the portion ofSR 109 in Pike County, Georgia, running through Pike County shall be dedicated as the Donnie Dickens Memorial Highway.

BE IT FURTHER RESOLVED that the members of this body dedicate the portion of Spur 109 from Greenville, Georgia, west through Gay, Georgia, in Meriwether County to the Pike County line as theW. F. Gay Memorial Connector.

BE IT FURTHER RESOLVED that the portion of State Route 45 in Early County beginning at the Miller County line and ending at the Calhoun County line is dedicated as the Joe Bryan Highway.

GEORGIA LAWS 2009 SESSION

775

BE IT FURTHER RESOLVED that the members of this body celebrate the much too short life of Glenn McCarver Smith III and dedicate the bridge over Big Cedar Creek near Cave Spring on US 411/SR 53 as the Glenn McCarver Smith III Memorial Bridge.

BE IT FURTHER RESOLVED that the members of this body honor the life and public service of Hinson Mosley and dedicate the portion of US 84 from the city limits of Screven to the city limits of Jesup as the Hinson Mosely Highway.

BE IT FURTHER RESOLVED that the bridge on SR 21 in the Whitehill community of Screven County be dedicated as the Glenn Brown Memorial Overpass.

BE IT FURTHER RESOLVED that the portion of Georgia Highway 138 between Interstate 675 and the corporate limits of the City of Jonesboro shall be designated the Lake Spivey Parkway.

BE IT FURTHER RESOLVED that the portion of SR 120 from the 120 Loop (Marietta Parkway) going east from I-75 to Johnson Ferry Road be dedicated as the Luke Dollar Highway.

BE IT FURTHER RESOLVED that the Department of Transportation is authorized and directed to erect and maintain appropriate signs dedicating the road facilities named in this resolution.

BE IT FURTHER RESOLVED that the Secretary of the Senate is authorized and directed to transmit appropriate copies of this resolution to the Department of Transportation, to the family of James H. Chandler, Jr., to the family ofMSG Davy Nathaniel Weaver, to the City of Chickamauga, to the family of Mason Varner, to the family of Sheriff Jimmy Middleton, to Ray Delaigle, to the Glennville City Council, to the family of Phyllis Heller, to Pike County, to the family of Trooper Tony M. Lumley, to the family of Donnie Dickens, to the family ofW. F. Gay, to the family of Joe Bryan, to the family of Glenn McCarver Smith III, to Hinson Mosely, to the family of Glenn Brown, and to Luke Dollar.

Approved May 5, 2009.

776

GENERAL ACTS AND RESOLUTIONS, VOL. I

LAMAR MOBLEY MEMORIAL BARN; JOHNNY MCGLAMERY OFFICE.

No. 160 (Senate Resolution No. 333).

A RESOLUTION

Honoring certain outstanding Georgia citizens and designating certain state facilities in their memory; and for other purposes.

PART I. WHEREAS, the memory of the late Lamar Mobley would be well served by naming a bam on the Di-Lane Plantation Wildlife Management Area after him; and

WHEREAS, it is fitting and proper to honor the memory of the late Lamar Mobley by naming a state building after him.

PART II. WHEREAS, the memory of the late Johnny McGlamery would be well served by naming the Region 5, Statesboro office of the Georgia Bureau oflnvestigation after him; and

WHEREAS, Johnny McGlamery served the citizens of this State above and beyond the call of duty as a GBI agent and, for many years, as the Senior Inspector of the Region 5 Statesboro office of the Georgia Bureau of Investigation; and

WHEREAS, it is fitting and proper to honor the memory of this outstanding and dedicated public servant by naming a state building after him.

PART III. NOW, THEREFORE, BE IT RESOLVED BY THE GENERAL ASSEMBLY OF GEORGIA that the bam located on the Di-Lane Plantation Wildlife Management Area is hereby designated as the Lamar Mobley Memorial Bam, and the Department of Natural Resources is authorized and directed to erect or attach a sign or plaque indicating the same.

BE IT FURTHER RESOLVED that the Region 5, Statesboro office of the Georgia Bureau of Investigation is hereby designated as the Johnny McGlamery Office, and the Georgia Bureau of Investigation is authorized and directed to erect or attach a sign or plaque indicating the same.

GEORGIA LAWS 2009 SESSION

777

BE IT FURTHER RESOLVED that the Secretary of the Senate is authorized and directed to transmit appropriate copies of this resolution to the Department of Natural Resources, the Board of Public Safety, the Georgia Bureau of Investigation, and the families of Lamar Mobley and Johnny McGlamery.

Approved May 5, 2009.

REVENUE- SALES TAX EXEMPTION; ZOOLOGICAL INSTITUTION.
No. 161 (House Bill No. 129).
AN ACT
To amend Code Section 48-8-3 of the Official Code of Georgia Annotated, relating to exemptions from sales and use taxes, so as to provide for an exemption for a limited period of time with respect to sales of certain tangible personal property used for and in the renovation or expansion of a zoological institution; to provide for a definition; to provide for procedures, conditions, and limitations; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Code Section 48-8-3 ofthe Official Code of Georgia Annotated, relating to exemptions from sales and use taxes, is amended by deleting "or" at the end of paragraph (85), by replacing the period at the end of paragraph (86) with"; or", and by adding a new paragraph to read as follows:
'(87)(A) Notwithstanding any provision of Code Section 48-8-63 to the contrary, from July I, 2009, until June 30, 2011, sales of tangible personal property used for and in the renovation or expansion of a zoological institution. (B) As used in this Code section, the term 'zoological institution' means a nonprofit wildlife park, terrestrial institution, or facility which is:
(i) Open to the public, that exhibits and cares for a collection consisting primarily of animals other than fish, and has received accreditation from the Association of Zoos and Aquariums; and (ii) Located in this state and owned or operated by an organization which is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code.

778

GENERAL ACTS AND RESOLUTIONS, VOL. I

(C) Any person making a sale of tangible personal property for the purpose specified in this paragraph shall collect the tax imposed on this sale unless the purchaser furnishes such person with an exemption determination letter issued by the commissioner certifying that the purchaser is entitled to purchase the tangible personal property without paying the tax.'

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

CONSERVATION- STATE OWNED MARSHLAND OR WATER BOTTOMS.
No. 162 (House Bill No. 170).
AN ACT
To amend Part 4 of Article 4 of Chapter 5 of Title 12 of the Official Code of Georgia Annotated, relating to coastal marshlands, so as to change certain provisions relating to leasing of state owned marshland or water bottoms; to change certain provisions relating to activities to which said part is not applicable; to provide an effective date; to provide for applicability; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Part 4 of Article 4 of Chapter 5 of Title 12 of the Official Code of Georgia Annotated, relating to coastal marshlands, is amended by revising subsection (d) of Code Section 12-5-287, relating to leasing of state owned marshland or water bottoms, as follows:
'(d) Each lease granted under this Code section shall be upon such provisions, requirements, and conditions as the committee shall make and shall, except as provided in subsections (g) and (h) of this Code section, provide for a primary term of not more than ten years. Each lease, except as provided in subsections (g) and (h) of this Code section,

GEORGIA LAWS 2009 SESSION

779

shall require the payment of an annual rental fee which, as of the effective date of this subsection, shall be $1,000.00 per acre, which acreage shall consist of the covered area of dock structures and a ten-foot buffer surrounding such dock structures; and the committee shall in each calendar year thereafter adjust the amount of the annual rental fee per acre to reflect the effect of annual inflation or deflation for the immediately preceding calendar year in accordance with rules and regulations adopted by the board, which rules and regulations may use for this purpose the Consumer Price Index as reported by the Bureau of Labor Statistics of the United States Department of Labor or any other similar index established by the federal government, if the board determines that such federal index reflects the effect of inflation and deflation on the lessees. Except as provided in subsections (g) and (h) of this Code section, an initial lease shall be for the annual fee in effect and established by the committee at the time such lease is entered into. Such lease shall be adjusted annually thereafter as provided in this subsection. Each lease may provide for two renewal terms, each of which shall not be for a term of more than equal duration to the primary term. Rental fees shall be paid in one installment to the department not later than July 15 of each year. A penalty of 10 percent of the annual rental shall be assessed for late payment. Failure to pay rental by August I of the year due shall result in the cancellation of the lease.'

SECTION 2. Said part is further amended by revising paragraph (4) of Code Section 12-5-295, relating to activities to which said part is not applicable, as follows:
'(4) Activities of public utility companies regulated by the Public Service Commission, electric membership corporations, public authorities operating electric systems, or municipal electric systems incident to constructing, erecting, repairing, and maintaining utility lines for the transmission of gas, electricity, or telephone messages;

SECTION 3. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval; provided, however, that Section I of this Act shall not be applied to impair an obligation of contract entered into prior to such effective date.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

780

GENERAL ACTS AND RESOLUTIONS, VOL. I

REVENUE-VALUATION INCREASES; MORATORIUM.

No. 163 (House Bill No. 233).

AN ACT

To amend Title 48 of the Official Code of Georgia Annotated, related to revenue and taxation, so as to provide for a moratorium period during which valuation increases of property shall be limited; to provide for legislative findings; to provide for the authority for this Act; to provide for procedures, conditions, limitations, and exclusions; to provide for applicability; to provide for related matters; to provide for an effective date; to provide for automatic repeal; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Title 48 of the Official Code of Georgia Annotated, related to revenue and taxation, is amended by adding a new chapter to read as follows:

'CHAPTER 5B

48-SB-1. (a) The General Assembly finds that the citizens and property owners of this state are experiencing a crisis in the reduction of value of tangible property of unprecedented magnitude and that it is in the best interests of this state that immediate action be taken to secure the economic stability of all Georgians. This crisis is having a devastating effect on the economy of the State of Georgia, and this Code section is enacted in order to provide for more effective regulation and management of the finance and fiscal administration of the state and pursuant to and in furtherance of the provisions of Article III, Section IX, Paragraph II(c) of the Constitution and other provisions of the Constitution. (b) In recognition of the emergency situation and fiscal conditions set forth in subsection (a) of this Code section and pursuant to the authority specified in subsection (a) of this Code section, for taxable years beginning on or after January 1, 2009, and continuing only until the Sunday immediately preceding the second Monday in January, 2011, a moratorium is declared on all increases in the assessed value of all classes of all subjects of property which are subject to ad valorem taxation property except as specifically permitted under this Code section. The rate of increase of the assessed value of property for county, county school district, municipal, or independent school district ad valorem tax purposes shall not exceed from one taxable year to the succeeding taxable year 0 percent except as otherwise permitted in this Code section.

GEORGIA LAWS 2009 SESSION

781

(c) The limitations of this Code section shall not apply to the correction by local tax officials, pursuant to Chapter 5 ofthis title, of any manifest, factual error or omission in the valuation of property. The limitations of this Code section shall take effect on January l, 2010, for any county which performed or had performed on its behalf a comprehensive county-wide revaluation of all properties in the county in 2008 or any county which in 2009 was under contract prior to February 28, 2009, to have performed on its behalf a comprehensive county-wide revaluation of all properties in the county. (d) Nothing in this Code section shall be construed to prohibit the assessed value of property from decreasing. (e) If property or interests therein are sold or transferred, the assessed value of such property for ad valorem tax purposes shall not exceed the most recent value established under subsection (b) of this Code section. (t) Additions or improvements to property shall be valued for ad valorem tax purposes at their fair market value and shall be added to the owner's valuation amount under this subsection. (g) If property is rezoned, subdivided, or combined with other property at the request of the owner of such property and the use of such property is changed to conform with the use authorized or caused by such rezoning, subdivision, or combination with other property, such property shall be valued for ad valorem tax purposes at its fair market value. (h) Nothing in this Code section shall be construed to alter or affect in any manner the authority granted to the General Assembly under Article VII, Section II, Paragraph II of the Constitution to enact homestead exemptions. (i) The provisions of this chapter shall not apply to real property in any county for which a local constitutional amendment has been continued in force and effect as part of the Constitution which imposes millage rate limitations regarding ad valorem property taxes with respect to real property in such county or county school district unless such local constitutional amendment is repealed. (j) During the period of time in which this Code section is in effect, the commissioner shall continue to examine and review county tax digests as required under this chapter; provided, however, that, in the event a deficiency in the tax digest of a county is attributable directly to the limitations required by this Code section, no penalties shall be levied against such county regarding such deficiency. (k) This chapter shall be repealed in its entirety on the second Monday in January, 20 II.'

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

782

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

EDUCATION- ENROLLMENT OPTIONS; NOTICE; NEPOTISM.
No. 164 (House Bill No. 251).
AN ACT
To amend Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to elementary and secondary education, so as to provide the option for parents to enroll their child in another school within the local school system or in a school in another local school system; to provide for definitions; to provide for statutory construction; to provide for certain notifications regarding available space in classrooms; to provide fornepotism restrictions for eligibility for members of local boards of education and for local school superintendents; to provide for related matters; to provide for an effective date and applicability; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to elementary and secondary education, is amended by adding a new article to read as follows:
ARTICLE 34
20-2-2130. As used in this article, the term:
(1) 'Department' means the Department of Education. (2) 'Parent' means a biological parent, legal guardian, custodian, or other person with legal authority to act on behalf of a child.
20-2-2131. (a)(l) Beginning in school year 2009-2010, the parent of a student enrolled in a public elementary or secondary school in this state may elect to enroll such student in a public school that is located within the school system in which the student resides other than the

GEORGIA LAWS 2009 SESSION

783

one to which the student has been assigned by the local board of education if such school has classroom space available after its assigned students have been enrolled. The parent shall assume the responsibility and cost of transportation of the student to and from the school. (2) No later than July I, 2009, each local school system shall establish a universal, streamlined process available to all students to implement the transfer requirements of paragraph (I) of this subsection. (3) A student who transfers to another school pursuant to this subsection may, at his or her election, continue to attend such school until the student completes all grades of the school. (4) This subsection shall not be construed to affect any student currently attending a school other than the school to which the student has been assigned by the local board of education pursuant to a transfer authorized under the federal No Child Left Behind Act (P.L. 107-110). (b) The department shall establish a model universal, streamlined process to implement the transfer provisions of this Code section. Each local board of education shall adopt a universal, streamlined transfer process that includes, at a minimum, such state model. Such local process shall include a deadline for submitting transfer requests. (c) Each local school system shall annually notify prior to each school year the parents of each student by letter, electronic means, or by such other reasonable means in a timely manner of the options available to the parent under this article. (d) The local school system shall notify parents by July 1 of each year which schools have available space and to which of these schools parents may choose to request a transfer for their children. (e) This Code section shall not apply to charter schools. (f) This Code section shall not apply to newly opened schools with available classroom space for a period of four years after the school opens.

SECTION 2. Said chapter is further amended by revising subsection (c) of Code Section 20-2-51, relating to election of county board of education members, persons ineligible to be members or superintendent, ineligibility for local boards of education, and ineligibility for other offices, as follows:
'(c)(!) No person employed by or serving on the governing body of a private educational institution shall be eligible to serve as a member of a local board of education. No person employed by a local board of education shall be eligible to serve as a member of that board of education. No person employed by the Department of Education or serving as a member of the State Board of Education shall be eligible to serve as a member of a local board of education. This paragraph shall not apply to institutions above the high school level.

784

GENERAL ACTS AND RESOLUTIONS, VOL. I

(2) No person who has an immediate family member sitting on a local board ofeducation or serving as the local school superintendent or as a principal, assistant principal, or system administrative staff in the local school system shall be eligible to serve as a member of such local board of education. As used in this paragraph, the term 'immediate family member' means a spouse, child, sibling, or parent or the spouse of a child, sibling, or parent. This paragraph shall apply only to local board of education members elected or appointed on or after July 1, 2009. Nothing in this Code section shall affect the employment of any person who is employed by a local school system on or before July 1, 2009, or who is employed by a local school system when an immediate family member becomes a local board of education member for that school system.'

SECTION 3. Said chapter is further amended by revising subsection (b) ofCode Section 20-2-101, relating to appointment of county school superintendents, as follows:
'(b)(l) No person shall be eligible to be appointed or employed as superintendent of schools of any county or independent school system unless such person is of good moral character, has never been convicted of any crime involving moral turpitude, and possesses acceptable business or management experience as specified by the Professional Standards Commission or the minimum valid certificate or a letter of eligibility for said certificate required by the Professional Standards Commission. (2) No person shall be eligible to be appointed, employed, or to serve as superintendent of schools of any county or independent school system who has an immediate family member sitting on the local board of education for such school system or who has an immediate family member hired as or promoted to a principal, assistant principal, or system administrative staff on or after July 1, 2009, by that school system. As used in this subsection, the term 'immediate family member' shall have the same meaning as in subsection (c) of Code Section 20-2-51. Nothing in this Code section shall affect the employment of any person who is employed by a local school system on or before July I, 2009, or who is employed by a local school system when an immediate family member becomes the superintendent for that school system.'

SECTION 4. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 5. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

GEORGIA LAWS 2009 SESSION

785

EDUCATION- STUDENT HEALTH; MENINGITIS; VACCINE.

No. 165 (House Bill No. 300).

AN ACT

To amend Part 3 of Article 16 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to student health in elementary and secondary education, so as to require local school systems to provide certain information to parents and guardians of students in grades six through 12 on meningococcal meningitis disease and its vaccine whenever other health information is provided; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Part 3 of Article 16 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to student health in elementary and secondary education, is amended by adding a new Code section to read as follows:
'20-2-776. (a) If a local board of education provides information on immunizations, infectious diseases, medications, or other school health issues to parents and guardians of students in grades six through 12, then the following information about meningococcal meningitis disease and its vaccine shall be included:
(1) A description of causes, symptoms, and means of transmission; (2) A list of sources for additional information; and (3) Related recommendations issued by the federal Centers for Disease Control and Prevention. (b) The Department of Education, in cooperation with the Department of Human Resources, shall develop and make available the information about meningococcal meningitis disease and its vaccine to local school systems as required under subsection (a) of this Code section in an efficient manner that shall include posting the information on its website.'

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

786

GENERAL ACTS AND RESOLUTIONS, VOL. I

CONSERVATION- STATE-WIDE RECYCLING PROGRAM; STATE AGENCIES; EXPAND.

No. 166 (House Bill No. 310).

AN ACT

To amend Code Section 12-8-36 of the Official Code of Georgia Annotated, relating to state agency recycling and collection programs, so as to expand the state-wide recycling program for state agencies; to provide for legislative intent; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. The General Assembly finds that it is in the best interests of the state to encourage recycling and that state agencies can contribute to recycling efforts in a meaningful way. The General Assembly further finds that this Act is intended to be a part of the campaign to Make Georgia's Capitol Green.

SECTION 2. Code Section 12-8-36 of the Official Code of Georgia Annotated, relating to state agency recycling and collection programs, is amended by revising subsection (a) as follows:
'(a) The Georgia Building Authority is authorized to establish and coordinate a state-wide recycling program for state agencies and to establish, engage in, contract for, or otherwise allow or arrange for a collection program for recovered materials generated as a result of agency operations, including, but not limited to, aluminum and steel cans, plastic and glass bottles, and all grades of paper, including corrugated cardboard, and for the mulching or composting of yard trimmings. The Georgia Building Authority is authorized to establish procedures for the collection and storage of such materials from any property or building utilized by the state or any agency thereof and to enter into contractual or other arrangements for the transportation, disposition, or sale of such materials. Proceeds generated from such sale shall be used by the Georgia Building Authority for the purpose of offsetting the costs and expenses of administering and implementing the recycling program:

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

GEORGIA LAWS 2009 SESSION

787

GAME AND FISH -LICENSES; PERIODS; TYPES; RECIPROCITY;
FALCONRY PERMITS; VARIOUS FEES.

No. 167 (House Bill No. 326).

AN ACT

To amend Title 27 of the Official Code of Georgia Annotated, relating to game and fish, so as to change certain provisions relating to effective periods of hunting, fishing, and trapping licenses generally; to change certain provisions relating to archery and primitive weapons hunting license, all weapons hunting license, sportsman license, license card carrier requirement, and creation of lifetime sportsman's license; to change certain provisions relating to required hunter education courses; to change certain provisions relating to trout license, official Georgia waterfowl license, big game license, and alligator hunting license; to change certain provisions relating to powers of department as to making and entering into agreements relating to hunting license reciprocity; to change certain provisions relating to falconry permits, duties, permitted acts, and prohibitions pertaining to permit holders; to change certain provisions relating to field and retriever trials, permits, and hunting licenses; to change certain provisions relating to game and fish license, permit, tag, and stamp fees; to change certain provisions relating to laws applicable to shooting preserves and requirements as to hunting licenses; to amend an Act to amend Title 27 of the Official Code of Georgia Annotated, approved March 10, 1992 (Ga. L. 1992, page 470), so as to delete certain provisions relating to reduction of game and fish license, permit, tag, and stamp fees; to amend an Act to amend Title 27 ofthe Official Code of Georgia Annotated, approved June 3, 2003 (Ga. L. 2003, page 654), so as to repeal and delete certain provisions relating to game and fish license, permit, tag, and stamp fees and an effective date; to amend an Act to amend Article 1 of Chapter 2 of Title 27 of the Official Code of Georgia Annotated, approved May 5, 2005 (Ga. L. 2005, page 517), so as to repeal and delete certain provisions relating to game and fish license, permit, tag, and stamp fees and an effective date; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Title 27 of the Official Code of Georgia Annotated, relating to game and fish, is amended by revising Code Section 27-2-3, relating to effective periods of hunting, fishing, and trapping licenses generally, as follows:

788

GENERAL ACTS AND RESOLUTIONS, VOL. I

'27-2-3. (a) Except as otherwise specifically provided, all hunting, fishing, and trapping licenses, including without limitation commercial fishing and commercial fishing boat licenses issued pursuant to Code Section 27-2-8, shall be effective from April 1 to March 31 of the following year; except that all annual, two-year, or other multi-year hunting, fishing, and hunting and fishing combination licenses issued pursuant to paragraphs (1) through (4) of Code Section 27-2-23 shall be effective through the applicable one-, two-, or multi-year anniversary of the date of issuance. (b) Multi-year licenses valid for any desired number of years may be purchased through a single transaction for licenses listed in paragraphs (1) through (4) of Code Section 27-2-23. The fee for any such multi-year license shall be equivalent to the lowest cost combination of annual or two-year licenses necessary to form the desired multi-year license period. No multi-year license shall be valid at the time of hunting or fishing unless the licensee is a resident of this state at such time.'

SECTION 2. Said title is further amended by revising subsection (a) of Code Section 27-2-3.1, relating to archery and primitive weapons hunting license, all weapons hunting license, sportsman license, license card carrier requirement, and creation of lifetime sportsman's license, as follows:
'(a) Reserved.'

SECTION 3. Said title is further amended by revising subsection (e) of Code Section 27-2-5, relating to required hunter education courses, as follows:
'(e) Any person applying for an annual nonresident hunting/fishing license may provide a certificate of completion or such other evidence of completion the department deems acceptable of the official hunter education or hunter safety course of such person's state of residence if that course shall have been approved by the department. Those persons applying for a hunting license other than a season hunting license shall not be required to exhibit such a certificate or to complete a hunter education course in order to obtain the license.'

SECTION 4. Said title is further amended by revising subsection (b) of Code Section 27-2-6, relating to trout license, official Georgia waterfowl license, big game license, and alligator hunting license, as follows:
(b) It shall be unlawful for any person who has attained the age of 16 years to hunt or possess big game unless such person has in his or her possession a big game license in addition to the required hunting license; provided, however, that all nonresidents,

GEORGIA LAWS 2009 SESSION

789

regardless of age, must possess a nonresident hunting/fishing license along with any harvest records required by law or regulation to hunt big game in this state.'

SECTION 5. Said title is further amended by revising subsections (a) and (c) of Code Section 27-2-7, relating to powers of department as to making and entering into agreements relating to hunting license reciprocity, as follows:
'(a) The department is authorized to make and enter into agreements, from time to time, with the proper authorities of the States of Alabama, Florida, South Carolina, North Carolina, and Tennessee whereby a citizen of the State of Georgia who owns farm lands in such adjoining states may purchase a resident hunting license in the state in which his land is situated which will permit said Georgia citizen to hunt on his own land in the adjoining state without purchasing a nonresident hunting license in that state. The department is authorized to reciprocate this courtesy and issue a resident hunting license in Georgia to citizens of such adjoining states who own farm lands in Georgia, permitting such citizens to hunt on their own land in Georgia without purchasing a nonresident hunting/fishing license.' '(c) The department is authorized to make and enter into agreements, from time to time, with the proper authorities of the States of Alabama, Florida, North Carolina, South Carolina, and Tennessee, regarding nonresident hunting/fishing license fees, seasons, and bag limits; provided, however, that such seasons and bag limits for nonresident hunters shall not be less restrictive than those which control Georgia residents; and provided, further, that nonresident license fees in Georgia shall not be less than the amount established in Code Section 27-2-23 for a small game hunting license and for a big game hunting license.'

SECTION 6. Said title is further amended by revising subsections (a) and (w) of Code Section 27-2-17, relating to falconry permits, duties, permitted acts, and prohibitions pertaining to permit holders, as follows:
'(a) It shall be unlawful for any person to trap, take, transport, or possess raptors for falconry purposes unless the person first procures, in addition to a valid hunting license, a valid falconry permit as provided in Code Section 27-2-23, provided that it shall not be unlawful for a nonresident to transport or possess raptors in this state for falconry purposes if the person has a nonresident hunting/fishing license, as provided in Code Section 27-2-23, and a falconry license or permit from the state of residence of the person, which state meets federal falconry standards.' '(w) It shall be lawful for a nonresident to take or attempt to take raptors from the wild in this state if the nonresident has a valid general or master level falconry permit from such person's state of residence and a valid Georgia nonresident hunting/fishing license and if such person's state of residence provides the same privileges to residents of Georgia.'

790

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 7. Said title is further amended by revising subsection (c) of Code Section 27-2-21, relating to field and retriever trials, permits, and hunting licenses, as follows:
'(c) All persons participating in a field or retriever trial will be required to have an appropriate resident hunting license or nonresident hunting/fishing license unless the field or retriever trial is recognized by a nationally registered field trialing organization or unless the field or retriever trial is conducted by a local field trialing organization based in the State of Georgia which is recognized by the department as being qualified to conduct such trial.'

SECTION 8. Said title is further amended by revising Code Section 27-2-23, relating to game and fish license, permit, tag, and stamp fees, as follows:
'27-2-23. Fees for licenses, permits, tags, and stamps required by this title shall be as follows:
(1) Hunting licenses:

(A) Resident hunting license

Annual

$ 10.00

(B) Resident hunting license

Two-year

18.00

(C) Resident big game license
(D) Nonresident big game license
(E) Nonresident big game license
(F) Resident big game license
(G) Shooting preserve hunting license valid for residents and nonresidents
(H) Commercial fox hunting preserve license
(I) Commercial fox breeder license
(J) Waterfowl license valid for residents and nonresidents
(K) Waterfowl license valid for residents and nonresidents
(L) Georgia migratory bird license

Annual Annual Three-day Two-year
Two-year Season Season
Annual
Two-year Annual

9.00 195.00 90.00 16.00
12.00 60.00 60.00
5.50
11.00 Free

GEORGIA LAWS 2009 SESSION

(2) Hunting and fishing licenses: (A) Resident hunting/fishing license (B) Resident hunting/fishing license (C) Nonresident hunting/fishing license (D) Resident hunting/fishing license (E) Nonresident hunting/fishing license
(3) Sportsman's licenses: (A) Resident sportsman's license (B) Resident sportsman's license
(4) Recreational fishing licenses: (A) Resident fishing license (B) Resident fishing license (C) Nonresident fishing license (D) Resident trout license (E) Resident trout license (F) Resident trout license (G) Nonresident trout license (H) Nonresident trout license
(5) Trapping licenses: (A) Resident commercial trapping license (B) Nonresident commercial trapping license
(6) Commercial fishing licenses: (A) Resident commercial fishing license (B) Nonresident commercial fishing license (C) Resident commercial crabbing license (D) Nonresident commercial crabbing license

Annual Two-year Three-day Three-day Annual
Annual Two-year
Annual Two-year Annual Annual Two-year Three-day Annual Three-day
Annual Annual
Season Season Season Season

791
17.00 31.00 20.00
3.50 100.00
55.00 105.00
9.00 16.00 45.00 5.00 10.00 3.50 20.00 10.00
30.00 295.00
12.00 118.00
12.00 118.00

792

GENERAL ACTS AND RESOLUTIONS, VOL. I

(7) Fur, hide, and pelt licenses: (A) Resident fur dealer license (B) Nonresident fur dealer license (C) Fur dealer's agent license
(8) Miscellaneous licenses and permits: (A) Retail fish dealer license (B) Wholesale fish dealer license (C) Resident game-holding permit (D) Commercial quail breeder permit (E) Scientific collecting permit (F) Wildlife exhibition permit (G) Commercial shooting preserve license (H) Private shooting preserve license (I) Blanket commercial shooting preserve license (J) Commercial fish hatchery license (K) Catch-out pond license (L) Soft-shell crab dealer license (M) Resident taxidermist license (N) Nonresident taxidermist license (0) Falconry permit (P) Commercial alligator farming license (Q) Resident alligator hunting license (R) Nonresident alligator hunting license (S) Wild animal license (T) Wild animal auction license

Annual Annual Annual
Annual Annual Annual Annual Annual Annual Annual Annual
Annual Annual Annual Annual Three-year Three-year Three-year Annual Annual Annual Annual Seven-day

295.00 415.00 180.00
10.00 59.00
5.00 30.00 50.00 59.00 150.00 50.00
500.00 59.00
236.00 10.00
150.00 500.00
30.00 50.00 50.00 200.00 236.00 5,000.00

GEORGIA LAWS 2009 SESSION

793

(U) Resident bait dealer license

Season

25.00

(V) Nonresident bait dealer license

Season

150.00

(9) The board is authorized to provide by rule for a fee not to exceed $19.00 for resident

daily, seasonal, or annual use permits, or licenses; a fee of $38.00 for resident two-year

use permits; or a fee not to exceed $73.00 for nonresident annual use permits or licenses

to hunt and fish on or otherwise use specially designated streams, lakes, public fishing

areas, or wildlife management areas.

(10) The fees established in subparagraphs (l)(A) through (1)(F), (2)(A), (2)(B), (2)(E),

(3)(A), (3)(B), (4)(A), (4)(B), (4)(C), (4)(D), (4)(E), and (4)(G) ofthis Code section shall

be reduced by $2.7 5 for each renewal transaction made before the expiration date of the

then current license or tag. For purposes of this paragraph, the term 'renewal transaction'

means the renewal of one or more licenses by a licensee during a single telephone call,

Internet session, or on-site visit to a store.'

SECTION 9. Said title is further amended by revising Code Section 27-3-114, relating to laws and regulations applicable to shooting preserves and requirements as to hunting licenses, as follows:
'27-3-114. Except as otherwise specifically provided, all wildlife laws and regulations shall be in full force and effect on shooting preserves licensed pursuant to this article. Specifically, hunting licenses shall be required of all persons hunting on such preserves; provided, however, that it shall be lawful for any resident or nonresident to hunt pen raised game birds on such a preserve with a shooting preserve hunting license as provided in Code Section 27-2-23; and provided, further, that it shall be lawful for any person to hunt pen raised game birds without a hunting license on a shooting preserve which possesses a valid blanket shooting preserve license as provided in Code Section 27-2-23.'

SECTION 10. An Act to amend Title 27 of the Official Code of Georgia Annotated, approved March 10, 1992 (Ga. L. 1992, p. 470), is amended by deleting the proviso at the end of Section 5 which reads as follows:
";provided, however, that the fees which are increased in Sections 1 and 3 ofthis Act shall on March 31, 2012, be reduced to the level of such fees prior to the effective date of this Act"
SECTION 11. An Act to amend Title 27 of the Official Code of Georgia Annotated, approved June 3, 2003 (Ga. L. 2003, p. 654), is amended by repealing Section 7B and deleting paragraph (3) of subsection (b) of Section 14 which reads as follows:

794

GENERAL ACTS AND RESOLUTIONS, VOL. I

"(3) Section 7B of this Act shall become effective on March 12, 2012."

SECTION 12. An Act to amend Article 1 of Chapter 2 of Title 27 of the Official Code of Georgia Annotated, approved May 5, 2005 (Ga. L. 2005, p. 517), is amended by repealing Section 2 and deleting the exception at the end of Section 3 which reads as follows:
"; except that Section 2 of this Act shall become effective on March 31, 2012.

SECTION 13. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 14. All laws and parts of laws in conflict with this Act are repealed.
Approved May 5, 2009.

REVENUE- SALES TAX EXEMPTION; CIVIL RIGHTS MUSEUM.
No. 168 (House Bill No. 349).
AN ACT
To amend Code Section 48-8-3 of the Official Code of Georgia Annotated, relating to exemptions from sales and use taxes, so as to provide for an exemption for a limited period of time with respect to sales of certain tangible personal property to, or used in or for the new construction of, a civil rights museum; to provide for a definition; to provide for procedures, conditions, and limitations; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Code Section 48-8-3 ofthe Official Code of Georgia Annotated, relating to exemptions from sales and use taxes, is amended by deleting "or" at the end of paragraph (85), by replacing the period at the end of paragraph (86) with"; or", and by adding a new paragraph to read as follows:

GEORGIA LAWS 2009 SESSION

795

'(87)(A) Notwithstanding any provision ofCode Section 48-8-63 to the contrary, from July 1, 2009, until July 30, 2015, sales oftangible personal property to, or used in or for the new construction of, a civil rights museum. (B) As used in this paragraph, the term 'civil rights museum' means a museum which is constructed after July I, 2009; is owned or operated by an organization which is exempt from taxation under Section 501(c)(3) ofthe Internal Revenue Code; has more than 70,000 square feet of space; and has associated facilities, including, but not limited to, special event space and retail space. (C) Any person making a sale of tangible personal property for the purpose specified in this paragraph shall collect the tax imposed on this sale unless the purchaser furnishes such person with an exemption determination letter issued by the commissioner certifying that the purchaser is entitled to purchase the tangible personal property without paying the tax. (D) The exemption provided for under subparagraph (A) of this paragraph shall not apply to sales oftangible personal property that occur after the museum is opened to the public.'

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

REVENUE- SALES TAX EXEMPTION; FLIGHT SIMULATION TRAINING DEVICES.
No. 169 (House Bill No. 364).
AN ACT
To amend Code Section 48-8-3 of the Official Code of Georgia Annotated, relating to exemptions from sales and use taxes, so as to provide for an exemption regarding the sale or use of an airplane flight simulation training device approved by the Federal Aviation Administration under Appendices A and B, 14 C.F .R. Part 60; to repeal conflicting laws; and for other purposes.

796

GENERAL ACTS AND RESOLUTIONS, VOL. I

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Code Section 48-8-3 of the Official Code of Georgia Annotated, relating to exemptions from sales and use taxes, is amended by striking the word "or" at the end of paragraph (85), replacing the period at the end of paragraph (86) with "; or", and adding a new paragraph to read as follows:
'(87) For the period commencing on July I, 2009, and ending on June 30, 2011, the sale or use of an airplane flight simulation training device approved by the Federal Aviation Administration under Appendices A and B, 14 C.F.R. Part 60.'

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

REVENUE- INCOME TAXES; REAL ESTATE INVESTMENT TRUSTS.
No. 170 (House Bill No. 379).
AN ACT
To amend Article 2 of Chapter 7 of Title 48 of the Official Code of Georgia Annotated, relating to imposition, rate, computation and exemption regarding income taxes, so as to define certain terms; to disallow expenses paid to certain real estate investment trusts; to provide for procedures, conditions, and limitations; to provide an effective date; to provide for applicability; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Article 2 of Chapter 7 of Title 48 of the Official Code of Georgia Annotated, relating to imposition, rate, computation and exemption regarding income taxes, is amended in subsection (b) of Code Section 48-7-21, relating to taxation of corporations, by adding a new paragraph to read as follows:
'(16) Georgia taxable income shall be adjusted as provided in Code Section 48-7-28.4.'

GEORGIA LAWS 2009 SESSION

797

SECTION 2. Said article is further amended in subsection (b) of Code Section 48-7-27, relating to computation of taxable net income, by adding a new paragraph to read as follows:
'(13) Georgia taxable income shall be adjusted as provided in Code Section 48-7-28.4.8

SECTION 3. Said article is further amended by adding a new Code section to read as follows:
48-7-28.4. (a) As used in this Code section, the term:
(l) 'Association taxable as a corporation', for purposes of paragraph (2) of this subsection, does not include:
(A) A real estate investment trust as defined in this Code section, other than a 'captive real estate investment trust'; (B) Any qualified real estate investment trust subsidiary under Section 856(i) of the Internal Revenue Code of 1986, as amended, other than a qualified REIT subsidiary of a 'captive real estate investment trust'; (C) Any Listed Australian Property Trust, meaning an Australian unit trust registered as a 'Managed Investment Scheme' under the Australian Corporations Act in which the principal class of units is listed on a recognized stock exchange in Australia and is regularly traded on an established securities market, or an entity organized as a trust, provided that a Listed Australian Property Trust owns or controls, directly or indirectly, 75 percent or more of the voting power or value of the beneficial interests or shares of such trust; or (D) Any qualified foreign entity, meaning a corporation, trust, association or partnership organized outside the laws of the United States and which satisfies the following criteria:
(i) At least 75 percent of the entity's total asset value at the close of its taxable year is represented by real estate assets, as defined at Section 856(c)(5)(B) of the Internal Revenue Code of 1986, as amended, thereby including shares or certificates of beneficial interest in any real estate investment trust, cash and cash equivalents, and U.S. Government securities; (ii) The entity is not subject to tax on amounts distributed to its beneficial owners, or is exempt from entity-level taxation; (iii) The entity distributes at least 85 percent of its taxable income, as computed in the jurisdiction in which it is organized, to the holders of its shares or certificates of beneficial interest on an annual basis; (iv) Not more than 10 percent of the voting power or value in such entity is held directly or indirectly or constructively by a single entity or individual, or the shares or beneficial interests of such entity are regularly traded on an established securities market; and (v) The entity is organized in a country which has a tax treaty with the United States.

798

GENERAL ACTS AND RESOLUTIONS, VOL. I

(2) 'Captive real estate investment trust' means any real estate investment trust the shares or beneficial interests of which are not regularly traded on an established securities market, and more than 50 percent of the voting power or value of the beneficial interests or shares of which are owned or controlled, directly or indirectly, or constructively, by a single entity that is:
(A) Treated as an association taxable as a corporation under the Internal Revenue Code ofl986,asamended;and (B) Not exempt from federal income tax pursuant to the provisions of Section 50l(a) of the Internal Revenue Code of 1986, as amended. (3) 'Dividends paid deduction' means the deduction for dividends paid which is allowed pursuant to Sections 561 through 565 and Sections 856 through 859 of the Internal Revenue Code of 1986, as amended. (4) 'Real estate investment trust' means an entity that has elected such status for federal income tax purposes and meets the requirements of Section 856 of the Internal Revenue Code of 1986, as amended. (5) 'Related member' means the same as is defined in Code Section 48-7-28.3. (b) For purposes of computing Georgia taxable net income under Code Sections 48-7-21 and 48-7-27, a taxpayer shall add back all expenses and costs directly or indirectly paid, accrued, or incurred to a captive real estate investment trust. Such expenses and costs shall be added back before the income is apportioned or allocated as provided by Code Section 48-7-31. (c) The amount of the adjustment required by subsection (b) of this Code section shall be reduced, but not below zero, to the extent the corresponding expenses and costs received as income by the captive real estate investment trust are reduced by expenses paid, accrued or incurred to persons that are not related members, and such expenses shall be allowed in computing the captive real estate investment trust's federal taxable income. (d) The commissioner shall have the authority to reverse in whole or in part the adjustments required in subsection (b) of this Code section when the taxpayer and the commissioner agree in writing to the application or use of an alternative method of apportionment under subparagraph (d)(2)(C) of Code Section 48-7-31, Code Section 48-7-35, or Code Section 48-7-31.1. Nothing in this Code section shall be construed to limit or negate the commissioner's authority otherwise to enter into agreements and compromises otherwise allowed by law. (e)(1) For purposes of this subsection, the term: (A) 'Allocated or apportioned, or both' does not mean the amount of income that is subject to allocation or apportionment, or both. Rather it means the amount that is arrived at after applying the allocation and apportionment rules of a state as defined in subparagraph (B) of this paragraph. A tax or the portion of a tax, which is or would be imposed regardless of the amount of the income, shall not be considered to be a tax on or measured by the income of the captive real estate investment trust.

GEORGIA LAWS 2009 SESSION

799

(B) 'State' means a state in the United States of America, including the District of Columbia, but does not include those states under whose laws the taxpayer files with the captive real estate investment trust, or the captive real estate investment trust files with another related member, a combined income tax report or return, a consolidated income tax report or return, or any other report or return where such report or return is due because of the imposition of a tax on, or measured by, income and where such combined income tax report or return, consolidated income tax report or return, or other report or return results in the elimination of the tax effects from transactions directly or indirectly between the taxpayer and the captive real estate investment trust or between the captive real estate investment trust and another related member. (2) The amount of the adjustment required by subsection (b) of this Code section shall be reduced, but not below zero, to the extent the corresponding expenses and costs are received as income in an arm's length transaction by the captive real estate investment trust and to the extent such income is allocated or apportioned, or both, to and taxed by Georgia or another state that imposes a tax on or measured by the income of the captive real estate investment trust. For purposes of this paragraph, the corresponding expenses and costs shall not be considered to have been received as income by the captive real estate investment trust to the extent such income is reduced, in computing the income of the captive real estate investment trust in Georgia or another state, by the dividends paid deduction or by expenses paid, accrued, or incurred to persons that are not related members, or both. (3) In claiming the exception allowed by this subsection, the taxpayer shall disclose on its return, with respect to the captive real estate investment trust, the name, the federal identification number, the name of each state, the amount of the expenses and costs allocated or apportioned to and taxed by each state, and such other information as the commissioner may prescribe. (f) Nothing in this Code section shall require a taxpayer to add to its Georgia taxable net income more than once any amount of expenses and costs that the taxpayer pays, accrues, or incurs to a captive real estate investment trust. (g) Nothing in this Code section shall be construed to limit or negate the commissioner's authority to make adjustments under Code Section 48-7-58. (h) Except as otherwise provided in this Code section, a real estate investment trust that is intended to be regularly traded on an established securities market, and that satisfies the requirements of Section 856(a)(5) and (6) of the Internal Revenue Code of 1986, as amended, by reason of Section 856(h)(2) of the Internal Revenue Code of 1986, as amended, shall not be deemed a captive real estate investment trust within the meaning of this Code section. (i) A real estate investment trust that does not become regularly traded on an established securities market within one year of the date on which it first becomes a real estate investment trust shall be deemed not to have been regularly traded on an established securities market, retroactive to the date it first became a real estate investment trust. For

800

GENERAL ACTS AND RESOLUTIONS, VOL. I

purposes of this subsection, a real estate investment trust becomes a real estate investment trust on the first day that it has both met the requirements of Section 856 of the Internal Revenue Code of 1986, as amended, and has elected to be treated as a real estate investment trust pursuant to Section 856(c)(l} of the Internal Revenue Code of 1986, as amended,. (j) For purposes of this Code section, the constructive ownership rules of Section 318(a) ofthe Internal Revenue Code of 1986, as amended, as modified by Section 856(d)(5) ofthe Internal Revenue Code of 1986, as amended, shall apply in determining the ownership of stock, assets, or net profits of any person. (k} The adjustment required by this Code section shall apply to a corporation that files a separate return with Georgia and to the separate taxable income computation of each member of a Georgia consolidated return. (I) In addition to other penalties imposed by this title, the penalty for failure to make the adjustment required by this Code section shall be 10 percent of the additional tax that results because of this Code section. The commissioner may waive this penalty pursuant to the provisions of Code Section 48-2-43. (m) The commissioner is authorized to prescribe forms and promulgate rules and regulations deemed necessary in order to effectuate this Code section.'

SECTION 4. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall be applicable to all taxable years beginning on or after January I, 2010.

SECTION 5. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

DOMESTIC RELATIONS- GUARDIAN- SOCIAL SERVICES- OPTION OF ADOPTION ACT.
No. 171 (House Bill No. 388).
AN ACT
To amend Chapter 8 of Title 19 of the Official Code of Georgia Annotated, relating to adoption, so as to enact the "Option of Adoption Act"; to provide a short title; to define certain terms; to provide that a legal embryo custodian may relinquish rights to an embryo;

GEORGIA LAWS 2009 SESSION

801

to provide for procedures; to provide that a child born as a result of such relinquished embryo shall be the legal child of the recipient; to provide for an expedited order of parentage; to amend the Official Code of Georgia Annotated so as to conform provisions and correct cross-references; 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 "Option of Adoption Act."

SECTION 2. Chapter 8 of Title 19 of the Official Code of Georgia Annotated, relating to adoption, is amended by designating the existing chapter as Article I and adding a new article to read as follows:

"ARTICLE 2

19-8-40. As used in this article, the term:
(1) 'Embryo' or 'human embryo' means an individual fertilized ovum of the human species from the single-cell stage to eight-week development. (2) 'Embryo relinquishment' or 'legal transfer of rights to an embryo' means the relinquishment of rights and responsibilities by the person or persons who hold the legal rights and responsibilities for an embryo and the acceptance of such rights and responsibilities by a recipient intended parent. (3) 'Embryo transfer' means the medical procedure of physically placing an embryo into the uterus of a female. (4) 'Legal embryo custodian' means the person or persons who hold the legal rights and responsibilities for a human embryo and who relinquishes said embryo to another person or persons. (5) 'Recipient intended parent' means a person or persons who receive a relinquished embryo and who accepts full legal rights and responsibilities for such embryo and any child that may be born as a result of embryo transfer.

19-8-41. (a) A legal embryo custodian may relinquish all rights and responsibilities for an embryo to a recipient intended parent prior to embryo transfer. A written contract shall be entered into between each legal embryo custodian and each recipient intended parent prior to embryo transfer for the legal transfer of rights to an embryo and to any child that may result from the embryo transfer. The contract shall be signed by each legal embryo custodian for

802

GENERAL ACTS AND RESOLUTIONS, VOL. I

such embryo and by each recipient intended parent in the presence of a notary public and a witness. Initials or other designations may be used if the parties desire anonymity. The contract may include a written waiver by the legal embryo custodian of notice and service in any legal adoption or other parentage proceeding which may follow. (b) If the embryo was created using donor gametes, the sperm or oocyte donors who irrevocably relinquished their rights in connection with in vitro fertilization shall not be entitled to any notice of the embryo relinquishment, nor shall their consent to the embryo relinquishment be required. (c) Upon embryo relinquishment by each legal embryo custodian pursuant to subsection (a) of this Code section, the legal transfer of rights to an embryo shall be considered complete, and the embryo transfer shall be authorized. (d) A child born to a recipient intended parent as the result of embryo relinquishment pursuant to subsection (a) of this Code section shall be presumed to be the legal child of the recipient intended parent; provided that each legal embryo custodian and each recipient intended parent has entered into a written contract.

19-8-42. (a) Prior to the birth of a child or following the birth of a child, a recipient intended parent may petition the superior court for an expedited order of adoption or parentage. In such cases, the written contract between each legal embryo custodian and each recipient intended parent shall be acceptable in lieu of a surrender of rights. (b) All petitions under this article shall be filed in the county in which any petitioner or any respondent resides. (c) The court shall give effect to any written waiver of notice and service in the legal proceeding for adoption or parentage. (d) In the interest of justice, to promote the stability of embryo transfers, and to promote the interests of children who may be born following such embryo transfers, the court in its discretion may waive such technical requirements as the court deems just and proper.

19-8-43. Upon a filing of a petition for adoption or parentage and the court finding that such petition meets the criteria required by this article, an expedited order of adoption or parentage shall be issued and shall be a final order. Such order shall terminate any future parental rights and responsibilities of any past or present legal embryo custodian or gamete donor in a child which results from the embryo transfer and shall vest such rights and responsibilities in the recipient intended parent.'

SECTION 3. Code Section 15-11-28 of the Official Code of Georgia Annotated, relating to jurisdiction of the juvenile court, is amended by revising subparagraph (a)(2)(C) as follows:

GEORGIA LAWS 2009 SESSION

803

'(C) For the termination of the legal parent-child relationship and the rights of the biological father who is not the legal father of the child, other than that in connection with adoption proceedings under Article 1 of Chapter 8 of Title 19, in which the superior courts shall have concurrent jurisdiction to terminate the legal parent-child relationship and the rights of the biological father who is not the legal father of the child;'

SECTION 4. Code Section 19-8-26 of the Official Code of Georgia Annotated, relating to how surrender of parental rights is executed, is amended by revising subsection (c) as follows:
'(c) The surrender of rights by a parent or guardian pursuant to paragraph (1) of subsection (e) of Code Section 19-8-5 shall conform substantially to the following form:

SURRENDER OF RIGHTS FINAL RELEASE FOR ADOPTION NOTICE TO PARENT OR GUARDIAN:

This is an important legal document and by signing it you are surrendering all of your right, title, and claim to the child identified herein, so as to facilitate the child's placement for adoption. You are to receive a copy of this document and as explained below have the right to withdraw your surrender within ten days from the date you sign it.

I, the undersigned, being solicitous that my (male) (female) child, born (insert name of child), on (insert birthdate of child), should receive the benefits and advantages of a good home, to the end that (she) (he) may be fitted for the requirements of life, consent to this surrender. I, the undersigned, (insert relationship to child) ofthe aforesaid child, do hereby surrender the child to (insert name. surname not required. of each person to whom surrender is made), PROVIDED each such person is named as petitioner in a petition for adoption of the child filed in accordance with Article 1 of Chapter 8 of Title 19 of the Official Code of Georgia Annotated within 60 days from the date hereof. Furthermore, I promise not to interfere in the management ofthe child in any respect whatever; and, in consideration ofthe benefits guaranteed by (insert name. surname not required. of each person to whom surrender is made) in thus providing for the child, I do relinquish all right, title, and claim to the child herein named, it being my wish, intent, and purpose to relinquish absolutely all parental control over the child. It is also my wish, intent, and purpose that if each such person is not named as petitioner in a petition for adoption as provided for above within the 60 day period, other than for excusable neglect, or, if said petition for adoption is filed within 60 days but the adoption action is dismissed with prejudice or otherwise concluded without an order declaring the

804

GENERAL ACTS AND RESOLUTIONS, VOL. I

child to be the adopted child of each such person, then I do hereby surrender the child as follows:
(Mark one of the following as chosen) __ I wish the child returned to me, and I expressly acknowledge that this provision applies only to the limited circumstance that the child is not adopted by the person or persons designated herein and further that this provision does not impair the validity, absolute finality, or totality of this surrender under any circumstance other than the failure ofthe designated person or persons to adopt the child and that no other provision of this surrender impairs the validity, absolute finality, or totality ofthis surrender once the revocation period has elapsed; or __ I surrender the child to (insert name of designated licensed child-placing agency), a licensed child-placing agency, for placement for adoption; or __ I surrender the child to the Department of Human Resources, as provided by subsection (k) of Code Section 19-8-5, for placement for adoption; and (insert name of designated licensed child-placing agency) or the Department ofHuman Resources may petition the superior court for custody of the child in accordance with the terms of this surrender. Furthermore, I hereby agree that the child is to be adopted either by each person named above or by any other such person as may be chosen by the (insert name of designated licensed child-placing agency) or the Department ofHuman Resources and I do expressly waive any other notice or service in any of the legal proceedings for the adoption of the child. Furthermore, I understand that under Georgia law an agent appointed by the court is required to conduct an investigation and render a report to the court in connection with the legal proceeding for the legal adoption of the child and I hereby agree to cooperate fully with such agent in the conduct of this investigation. Furthermore, I hereby certify that I have received a copy of this document and that I understand I may only withdraw this surrender by giving written notice, delivered in person or mailed by registered mail or statutory overnight delivery, to (insert name and address of agent of each person to whom surrender is made) within ten days from the date hereof; that the ten days shall be counted consecutively beginning with the day immediately following the date hereof; however, if the tenth day falls on a Saturday, Sunday, or legal holiday then the last day on which the surrender may be withdrawn shall be the next day that is not a Saturday, Sunday, or legal holiday; and I understand that it may NOT be withdrawn thereafter.

GEORGIA LAWS 2009 SESSION

805

Furthermore, I hereby certify that I have not been subjected to any duress or undue

pressure in the execution of this surrender document and do so freely and voluntarily.

Witness my hand and seal this ___ day of

, __.

_ _ _ _ _(SEAL) (Parent or guardian)

Unofficial witness Sworn to and subscribed before me this day of ______, __.

Notary public (SEAL) My commission expires _ _ _ _ __
SECTION 5. Code Section 29-2-22 of the Official Code of Georgia Annotated, relating to authority of a guardian, is amended by revising paragraph (4) of subsection (a) as follows:
(4) Execute a surrender of rights to enable the adoption of the minor pursuant to the provisions of Article I of Chapter 8 of Title 19 or the adoption laws of any other state; and'
SECTION 6. Code Section 49-5-12 of the Official Code of Georgia Annotated, relating to licensing and inspection of child welfare agencies, is amended by revising paragraphs (I) and (2) of subsection (q) as follows:
(!) Adopt a child or children from receiving or accepting a child or children in the individual's home in anticipation of filing a petition for adoption under Article I of Chapter 8 of Title 19; or (2) Have that individual's child or children placed for adoption from placing that individual's child or children in the home of an individual who is not related to the child or children in anticipation of the individual's initiation ofadoption proceedings pursuant to Article I of Chapter 8 of Title 19:
SECTION 7. All laws and parts of laws in conflict with this Act are repealed.
Approved May 5, 2009.

806

GENERAL ACTS AND RESOLUTIONS, VOL. I

REVENUE- INCOME TAX CREDITS; QUALIFIED JOBS; INVESTMENT PROPERTY AND PROJECTS; REVISE.

No. 172 (House Bill No. 438).

AN ACT

To amend Article 2 of Chapter 7 of Title 48 of the Official Code of Georgia Annotated, relating to imposition, rate, computation, and exemptions regarding income tax, so as to provide for the comprehensive revision of the income tax credits for qualified jobs, investment, investment property, and projects; to provide for procedures, conditions, and limitations; to provide for an effective date; to provide for applicability; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Article 2 of Chapter 7 of Title 48 of the Official Code of Georgia Annotated, relating to imposition, rate, computation, and exemptions regarding income tax is amended by revising Code Section 48-7-40.24, relating to income tax credits for qualified jobs, investment, investment property, and projects, to read as follows:
"48-7-40.24. (a) As used in this Code section, the term:
(1) 'Business enterprise' means any enterprise or organization, whether corporation, partnership, limited liability company, proprietorship, association, trust, business trust, real estate trust, or other form of organization which is registered and authorized to use the federal employment verification system known as 'E-Verify' or any successor federal employment verification system and is engaged in or carrying on any business activities within this state, except that such term shall not include retail businesses. (2) 'Eligible full-time employee' means an individual holding a full-time employee job created by a qualified project who:
(A) Possesses a valid Georgia driver's license or identification card issued by the Georgia Department of Driver Services; or (B) Submits a notarized affidavit swearing to be a United States citizen or lawfully present alien authorized to work in the United States. (3) 'Force majeure' means any: (A) Explosions, implosions, fires, conflagrations, accidents, or contamination; (B) Unusual and unforeseeable weather conditions such as floods, torrential rain, hail, tornadoes, hurricanes, lightning, or other natural calamities or acts of God;

GEORGIA LAWS 2009 SESSION

807

(C) Acts of war (whether or not declared), carnage, blockade, or embargo; (D) Acts of public enemy, acts or threats of terrorism or threats from terrorists, riot, public disorder, or violent demonstrations; (E) Strikes or other labor disturbances; or (F) Expropriation, requisition, confiscation, impoundment, seizure, nationalization, or compulsory acquisition of the site or sites of a qualified project or any part thereof; but such term shall not include any event or circumstance that could have been prevented, overcome, or remedied in whole or in part by the taxpayer through the exercise of reasonable diligence and due care, nor shall such term include the unavailability of funds. (4) 'Full-time employee job' and 'full-time job' means employment of an individual which: (A) Is located in this state at the site or sites of a qualified project or the facility or facilities resulting therefrom; (B) Involves a regular work week of 35 hours or more; (C) Has no predetermined end date; and (D) Pays at or above the average wage of the county with the lowest average wage in the state, as reported in the most recently available annual issue of the Georgia Employment and Wages Averages Report of the Department of Labor. For purposes of this paragraph, leased employees will be considered employees of the company using their services and such persons may be counted in determining the company's job tax credits under this Code section if their employment otherwise meets the definition of full-time job contained herein. In addition, an individual's employment shall not be deemed to have a predetermined end date solely by virtue of a mandatory retirement age set forth in a company policy of general application. The employment of any individual in a bona fide executive, administrative, or professional capacity, within the meaning of Section 13 of the federal Fair Labor Standards Act of 1938, as amended, 29 U.S.C. Section 213(a)(1), as such act existed on January 1, 2002, shall not be deemed to have a predetermined end date solely by virtue of the fact that such employment is pursuant to a fixed-term contract, provided that such contract is for a term of not less than one year. (5) 'Job creation requirement' means the requirement that no later than the close of the sixth taxable year following the withholding start date, the business enterprise will have a minimum of 1,800 eligible full-time employees. (6) 'Job maintenance requirement' means the requirement that, with respect to each year in the recapture period, the monthly average number of eligible full-time employees employed by the business enterprise, determined as prescribed by subsection (I) of this Code section, must equal or exceed 1,800. (7) 'Payroll maintenance requirement' means the requirement that, with respect to each year in the recapture period, the total annual Georgia W-2 reported payroll with respect to a qualified project must equal or exceed $150 million.

808

GENERAL ACTS AND RESOLUTIONS, VOL. I

(8) 'Payroll requirement' means the requirement that no later than the close of the sixth taxable year following the withholding start date, the business enterprise will have a minimum of $150 million in total annual Georgia W-2 reported payroll with respect to a qualified project. (9) 'Qualified investment property' means all real and personal property purchased or acquired by a taxpayer for use in a qualified project, including, but not limited to, amounts expended on land acquisition, improvements, buildings, building improvements, and any personal property to be used in the facility or facilities. (10) 'Qualified investment property requirement' means the requirement that by the close of the sixth taxable year following the withholding start date a minimum of$450 million in qualified investment property will have been purchased or acquired by the business enterprise to be used with respect to a qualified project. (11) 'Qualified project' means a project which meets the job creation requirement and either the payroll requirement or qualified investment property requirement. If the taxpayer selects the qualified investment property requirement as one of the conditions for its project, the property shall involve the construction of one or more new facilities in this state or the expansion of one or more existing facilities in this state. For purposes of this paragraph, the term ' facilities' means all facilities comprising a single project, including noncontiguous parcels ofland, improvements to such land, buildings, building improvements, and any personal property that is used in the facility or facilities. (12) 'Recapture period' means the period of five consecutive taxable years that commences after the first taxable year in which a business enterprise has satisfied the job creation requirement and either the payroll requirement or the qualified investment property requirement, as selected by the taxpayer. (13) 'Withholding start date' means the date on which the business enterprise begins to withhold Georgia income tax from the wages of its employees located at the site or sites of a qualified project. (b) A business enterprise that is planning a qualified project shall be allowed to take the job tax credit provided by this Code section under the following conditions: (1) An application is filed with the commissioner that:
(A) Describes the qualified project to be undertaken by the business enterprise, including when such project will commence and the expected withholding start date; (B) Certifies that such project will meet the job creation requirement and either the payroll requirement or the qualified investment property requirement prescribed by this Code section; and (C) Certifies that during the recapture period applicable to such project the business enterprise will meet the job maintenance requirement and, if applicable, the payroll maintenance requirement prescribed by this Code section; (2) Following the commissioner's referral of the application to a panel composed of the commissioner of community affairs, the commissioner ofeconomic development, and the director of the Office of Planning and Budget, said panel, after reviewing the application,

GEORGIA LAWS 2009 SESSION

809

certifies that the new or expanded facility or facilities will have a significant beneficial economic effect on the region for which they are planned. The panel shall make its determination within 30 days after receipt from the commissioner of the taxpayer's application and any necessary supporting documentation. Although the panel's certification may be based upon other criteria, a project that meets the minimum job creation requirement and either the payroll requirement or qualified investment property requirement, as applicable, specified in paragraph (1) of this subsection will have a significant beneficial economic effect on the region for which it is planned if one of the following additional criteria is met:
(A) The project will create new full-time employee jobs with average wages that are, as determined by the Department of Labor, for all jobs for the county in question:
(i) Twenty percent above such average wage for projects located in tier 1 counties; (ii) Ten percent above such average wage for projects located in tier 2 counties; or (iii) Five percent above such average wage for projects located in tier 3 or tier 4 counties; or (B) The project demonstrates high growth potential based upon the prior year's Georgia net taxable income growth of over 20 percent from the previous year, if the taxpayer's Georgia net taxable income in each of the two preceding years also grew by 20 percent or more. (c) Any lease for a period of five years or longer of any real or personal property used in a new or expanded facility or facilities which would otherwise constitute qualified investment property shall be treated as the purchase or acquisition thereof by the lessee. The taxpayer may treat the full value of the leased property as qualified investment property in the year in which the lease becomes binding on the lessor and the taxpayer. (d) A business enterprise whose application is approved shall be allowed a tax credit for taxes imposed under this article equal to $5,250.00 annually per new eligible full-time employee job for five years beginning with the year in which such job is created through year five after such creation; provided, however, that where the amount of such credit exceeds a business enterprise's liability for such taxes in a taxable year, the excess may be taken as a credit against such business enterprise's quarterly or monthly payment under Code Section 48-7-103. The taxpayer may file an election with the commissioner to take such credit against quarterly or monthly payments under Code Section 48-7-103 that become due before the due date of the income tax return on which such credit may be claimed. In the event of such an election, the commissioner shall confirm with the taxpayer a date, which shall not be later than 30 days after receipt of the taxpayer's election, when the taxpayer may begin to take the credit against such quarterly or monthly payments. For any one taxable year the amounts taken as a credit against taxes imposed under this article and against the business enterprise's quarterly or monthly payments under Code Section 48-7-103 may not in the aggregate exceed $5,250.00 per eligible full-time employee job. Each employee whose employer receives credit against such business enterprise's quarterly or monthly payment under Code Section 48-7-103 shall receive a credit against his or her

810

GENERAL ACTS AND RESOLUTIONS, VOL. I

income tax liability under Code Section 48-7-20 for the corresponding taxable year for the full amount which would be credited against such liability prior to the application of the credit provided for in this subsection. Credits against quarterly or monthly payments under Code Section 48-7-103 and credits against liability under Code Section 48-7-20 established by this subsection shall not constitute income to the taxpayer. To qualify for a credit under this subsection, the employer must make health insurance coverage available to the employee filling the new full-time job; provided, however, that nothing in this subsection shall be construed to require the employer to pay for all or any part of health insurance coverage for such an employee in order to claim the credit provided for in this subsection if such employer does not pay for all or any part of health insurance coverage for other employees. (e) The number of new full-time jobs to which this Code section shall be applicable shall be determined by comparing the monthly average number of eligible full-time employees subject to Georgia income tax withholding for the taxable year with the corresponding period for the prior taxable year. (f) The sale, merger, acquisition, or bankruptcy of any business enterprise shall not create new eligibility in any succeeding business entity, but any unused job tax credit may be transferred and continued by any transferee of the business enterprise. (g) To qualify for the credit provided by this Code section a new full-time job must be created by the close of the seventh taxable year following the business enterprise's withholding start date. In no event may a credit be claimed under this Code section for more than 3,300 new full-time employee jobs created by any one project; provided, however, that the taxpayer may claim the credits provided by Code Sections 48-7-40 and 48-7-40.1 for any such additional jobs if the taxpayer meets the terms and conditions thereof. (h) Any credit claimed under this Code section but not fully used in the manner prescribed in subsection (d) of this Code section may be carried forward for ten years from the close of the taxable year in which the qualified job was established. (i) Except as provided in subsection (g) of this Code section, a taxpayer who is entitled to and takes credits provided by this Code section for a qualified project shall not be allowed to take any of the credits authorized by Code Section 48-7-40, 48-7-40.1, 48-7-40.2, 48-7-40.3, 48-7-40A, 48-7-40.6,48-7-40.7,48-7-40.8,48-7-40.9,48-7-40.10,48-7-40.11, 48-7-40.15, 48-7-40.17, or 48-7-40.18 for jobs, investments, child care, or ground-water usage shifts created by, arising from, related to, or connected in any way with the same project. Provided such taxpayer otherwise qualifies, such taxpayer may take any credit authorized by Code Section 48-7-40.5 for the costs ofretraining an employee located at the site or sites of such project or the facility or facilities resulting therefrom, but only for costs incurred more than five years after the date the facility or facilities first become operational. (j) Except under those circumstances described in subsection (k) of this Code section, the taxpayer shall, not more than 60 days after the close of the sixth taxable year following its

GEORGIA LAWS 2009 SESSION

811

withholding start date, file a report with the commissioner concerning the number of eligible full-time employee jobs created by such project; the wages of such jobs; the qualified investment property purchased or acquired by the taxpayer for the project; and any other information that the commissioner may reasonably require in order to determine whether the taxpayer has met the job creation requirement and either the payroll requirement or the qualified investment property requirement, as selected by the taxpayer, for such project. If the taxpayer has failed to meet any applicable job creation, payroll, or qualified investment property requirement, the taxpayer will forfeit the right to claim any credits provided by this Code section for such project. A taxpayer that forfeits the right to claim such credits is liable for all past taxes imposed by this article and all past payments under Code Section 48-7-103 that were foregone by the state as a result of the credits, plus interest at the rate established by Code Section 48-2-40 computed from the date such taxes or payments would have been due if the credits had not been taken. No later than 90 days after notification from the commissioner that any applicable job creation, payroll, or qualified investment property requirement was not met, the taxpayer shall file amended income tax and withholding tax returns for all affected periods that recalculate those liabilities without regard to the forfeited credits and shall pay any additional amounts shown on such returns, with interest as provided herein. On such amended returns the taxpayer may claim any credit to which it would have been entitled under this article but for having taken the credit provided by this Code section. (k) If the recapture period applicable to a qualified project begins with or before the sixth taxable year following the taxpayer's withholding start date, the taxpayer shall, not later than 60 days after the close of the taxable year immediately preceding the recapture period, file a report with the commissioner concerning the number of eligible full-time employee jobs created by such project; the wages of such jobs; the qualified investment property purchased or acquired by the taxpayer for the project; and any other information that the commissioner may reasonably require in order to verify that the taxpayer met the job creation requirement and either the payroll requirement or the qualified investment property requirement in such preceding year. (I) Not more than 60 days after the close of each taxable year within the recapture period, the taxpayer shall file a report, using such form and providing such information as the commissioner may reasonably require, concerning whether it met the job maintenance requirement and, if applicable, the payroll maintenance requirement for such year. For purposes of this subsection, whether such job maintenance requirement has been satisfied shall be determined by comparing the monthly average number of eligible full-time employees subject to Georgia income tax withholding for the taxable year with 1,800. For purposes of this subsection, whether such payroll maintenance requirement has been satisfied shall be determined by comparing the total annual Georgia W-2 reported payroll with respect to a qualified project for the taxable year with $150 million. If the taxpayer has failed to meet the job maintenance requirement or payroll maintenance requirement, or both, for such year, the taxpayer will forfeit the right to 20 percent of all credits provided

812

GENERAL ACTS AND RESOLUTIONS, VOL. I

by this Code section for such project. A taxpayer that forfeits such right is liable for 20 percent of all past taxes imposed by this article and all past payments under Code Section 48-7-103 that were foregone by the state as a result of the credits provided by this Code section, plus interest at the rate established by Code Section 48-2-40 computed from the date such taxes or payments would have been due if the credits had not been taken. No later than 90 days after notification by the commissioner that the taxpayer has failed to meet the job maintenance requirement or payroll maintenance requirement, or both, for such year, the taxpayer shall file amended income tax and withholding tax returns for all affected periods that recalculate those liabilities without regard to the forfeited credits and shall pay any additional amounts shown on such returns, with interest as provided herein. (m) A taxpayer who fails to meet the job maintenance requirement or payroll maintenance requirement, or both, for any taxable year within the recapture period because of force majeure may petition the commissioner for relief from such requirement. Such a petition must be made with and at the same time as the report required by subsection (I) of this Code section. If the commissioner determines that force majeure materially affected the taxpayer's ability to meet the job maintenance requirement or payroll maintenance requirement, or both, for such year, but that the portion of the year so affected was six months or less, for purposes of the job maintenance requirement the commissioner shall calculate the taxpayer's monthly average number of eligible full-time employees for purposes of subsection (I) of this Code section by disregarding the affected months and for purposes ofthe payroll maintenance requirement the commissioner shall annualize the total Georgia W-2 reported payroll with respect to a qualified project for the portion of the year not so affected. If the commissioner determines that the affected portion of the year was more than six months, the taxable year shall be disregarded in its entirety for purposes of the job maintenance requirement or payroll maintenance requirement, or both, and the recapture period applicable to the qualified project shall be extended for an additional year. (n) Unless more time is allowed therefor by Code Section 48-7-82 or 48-2-49, the commissioner may make any assessment attributable to the forfeiture of credits claimed under this Code section for the periods covered by any amended returns filed by a taxpayer pursuant to subsection (j) or (I) of this Code section within one year from the date such returns are filed. If the taxpayer fails to file the reports or any amended return required by subsection (j) or (I) of this Code Section, the commissioner may assess additional tax or other amounts attributable to the forfeiture ofcredits claimed under this Code section at any time. (o) Projects certified by the panel pursuant to paragraph (2) of subsection (b) of this Code section before January 1, 2009, shall be governed by this Code section as it was in effect for the taxable year the project was certified. (p) The commissioner shall promulgate any rules and regulations necessary to implement and administer this Code section:

GEORGIA LAWS 2009 SESSION

813

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall be applicable to all taxable years beginning on or after January 1, 2009.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

REVENUE-SALESTAX REFUNDS.
No. 173 (House Bill No. 441).
AN ACT
To amend Title 48 of the Official Code of Georgia Annotated, relating to revenue and taxation, so as to provide for the expedited payment of sales and use tax refund claims secured by a satisfactory bond; to provide for civil and criminal penalties regarding certain sales and use tax refund claims; to authorize refunds to credit card issuers for certain motor fuel sales to tax-exempt entities; to provide for procedures, conditions, and limitations; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Title 48 of the Official Code of Georgia Annotated, relating to revenue and taxation, is amended by revising Code Section 48-2-35.1, relating to sales and use tax refunds, to read as follows:
'48-2-35.1. (a) If a certificate or exemption determination letter issued by the commissioner certifying that the purchaser is entitled to purchase tangible personal property or taxable services without the payment of sales and use tax has not been obtained and used prior to purchasing such tangible personal property or taxable services, a refund of sales and use taxes shall be made without interest. (b) Any taxpayer who wishes to expedite the payment of a sales and use tax claim for refund may apply to the commissioner for such expedited refund; and as part of such application the taxpayer shall file a bond that is satisfactory to the commissioner as security

814

GENERAL ACTS AND RESOLUTIONS, VOL. I

for the repayment of such refund and any applicable tax, interest, penalties, fees, or costs in the event that the commissioner determines within the applicable statute of limitations that all or a portion of such refund was paid in error. The commissioner shall issue the refund within 30 days of the date of the posting of the approved bond. Any assessment of tax, interest, penalties, fees, or costs related to the payment of such refund claim shall be made within three years after the date that such refund was paid by the commissioner.
(c)(!) As used in this subsection, the term: (A) 'Disregard' means any careless, reckless, or intentional disregard. (B) 'Excessive amount' means that portion of the claim for refund that exceeds the amount that is eligible for refund and for which there is no reasonable basis. (C) 'Frivolously filed' means a sales and use tax claim for refund in which the amount claimed exceeds the amount eligible for refund by at least 50 percent. (D) 'Negligence' includes any failure to make a reasonable attempt to comply with the provisions of this title. (E) 'Reasonable basis' means a position that is reasonably based on one or more of the following authorities: applicable provisions of this title and other statutory provisions; proposed and adopted regulations construing such statutes; court cases; official opinions of the Attorney General; and letter rulings, policy statements, informational bulletins, and other administrative pronouncements published by the commissioner. Notwithstanding the preceding list of authorities, an authority shall not continue to be an authority to the extent it is overruled or modified, implicitly or explicitly, by a body with the power to overrule or modify the earlier authority.
(2) Any taxpayer who frivolously files a sales and use tax claim for refund shall be subject to a penalty of 20 percent of the excessive amount. No penalty shall be assessed pursuant to this subsection against any portion of an excessive amount for which a refund is claimed in good faith and the filing of which was not due to negligence or disregard of the law. The determination of whether a taxpayer acted in good faith shall be made on a case-by-case basis, taking into account all pertinent facts and circumstances. Generally, the most important factor in such determination is the extent of the taxpayer's effort to assess the taxpayer's proper tax liability. Circumstances that may indicate good faith shall include an honest misunderstanding of fact or law that is reasonable in light of all the facts and circumstances, including the experience, knowledge, and education of the taxpayer. An isolated computational or transcriptional error generally is not inconsistent with good faith. (3) In addition to the penalty imposed under paragraph (2) of this subsection, when all or part of the excessive amount ofthe taxpayer's claim for refund is based on a position which is knowingly and willfully advanced in bad faith and is patently improper, such taxpayer shall be guilty ofa misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than $1,000.00."

GEORGIA LAWS 2009 SESSION

815

SECTION 2. Said title is further amended by adding a new Code section to read as follows:
48-9-10.1. (a) As used in this Code section, the term:
(1) 'Credit card issuer' means the party that extends credit, through the issuance of a credit card, to the qualified governmental tax-exempt entity that purchases 'motor fuel' for 'highway use' as those terms are defined under Code Section 48-9-2 for a qualified governmental tax-exempt entity's exclusive use. (2) 'Qualified governmental tax-exempt entity' means a government entity that is exempt from sales and use tax under Chapter 8 of Title 48, or other provision of general law. (b) In the event that a sale of 'motor fuel' for 'highway use' is made to a qualified governmental tax-exempt entity, by means of a credit card issued by a credit card issuer to the qualified governmental tax-exempt entity when such credit card issuer invoices and bills such qualified governmental tax-exempt entity net ofthe applicable taxes, such credit card issuer may obtain a refund for the sales and use taxes paid on such sales. (c) In order for a credit card issuer to be eligible to claim a refund of sales and use taxes provided under this Code section, the credit card issuer must be registered with Internal Revenue Service under Section 4101 of the Internal Revenue Code as a credit card issuer; establish that it has not collected the tax from the qualified governmental tax-exempt entity who purchased the motor fuel; establish that it repaid the amount of the tax to the dealer in full with all applicable taxes included; and has obtained the written consent of the dealer to the allowance ofthe credit or refund or has otherwise made arrangements which directly or indirectly provide the dealer with reimbursement of the tax. (d) Refunds of sales and use tax pursuant to this Code section shall be made without interest. (e) The commissioner is authorized to promulgate rules and regulations deemed necessary in order to administer and effectuate this Code section.

SECTION 3. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

816

GENERAL ACTS AND RESOLUTIONS, VOL. I

REVENUE- SUBPOENAS OR GARNISHMENT BY CERTIFIED MAIL; SALES TAX REFUND HEARINGS; ELECTRONIC FILERS; ATTACHMENTS; ALTERNATIVE PORT TRAFFIC INCOME TAX CREDIT.

No. 174 (House Bill No. 485).

AN ACT

To amend Title 48 of the Official Code of Georgia Annotated, relating to revenue and taxation, so as to provide for the comprehensive revision ofprovisions regarding revenue and taxation; to provide for the service of subpoenas by certified mail; to expand the right to an administrative hearing with respect to claims for sales and use tax refunds; to provide for certain definitions and change certain provisions regarding sales and use tax refunds; to provide for the service of summons of garnishment by certified mail; to enable individual taxpayers who take the qualified education tax credit to file electronically by changing the provisions regarding when the letter of confirmation of donation shall be attached to the return; to provide for alternative tax credits for base year port traffic; to provide for procedures, conditions, and limitations; to provide for powers, duties, and authority of the state revenue commissioner; to provide for effective dates; to provide for applicability; 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 "Improved Taxpayer Customer Service Act of2009."

SECTION 2. Title 48 of the Official Code of Georgia Annotated, relating to revenue and taxation, is amended by revising paragraph (4) of subsection (a) of Code Section 48-2-8, relating to powers of the state revenue commissioner, as follows:
'(4) Subpoena the attendance of witnesses and require the production of books, papers, records, and documents and, subject to the rights of the taxpayer as to rights of privacy guaranteed to the taxpayer by the Constitution and laws of this state, may examine such items and the books, records, inventories, or business of any taxpayer or of any fiduciary, bailee, or other person having knowledge of the tax liability of any taxpayer or knowledge pertinent to the investigation or inquiry. The subpoena may be served by the commissioner or the commissioner's authorized representative to such person at the

GEORGIA LAWS 2009 SESSION

817

person's last known address by registered or certified mail or statutory overnight delivery, return receipt requested. If such person refuses to accept service of a subpoena by registered or certified mail or statutory overnight delivery, the subpoena shall be served by the commissioner or the commissioner's authorized representative under any other method of lawful service, and the person shall be personally liable to the commissioner for a sum equal to the actual costs incurred to serve the subpoena. This liability shall be
. paid upon notice and demand by the commissioner or the commissioner's delegate and
schoamlml b1.essa1.sosneesrs. ed and collected in the same manner as other taxes administered by the

SECTION 3. Said title is further amended by revising Code Section 48-2-35, relating to tax refunds, as follows:
'48-2-35. (a) A taxpayer shall be refunded any and all taxes or fees which are determined to have been erroneously or illegally assessed and collected from such taxpayer under the laws of this state, whether paid voluntarily or involuntarily, and shall be refunded interest, except as provided in subsection (b) of this Code section, on the amount of the taxes or fees at the rate of 1 percent per month from the date ofpayment of the tax or fee to the commissioner. For the purposes of this Code section, any period of less than one month shall be considered to be one month. Refunds shall be drawn from the treasury on warrants of the Governor issued upon itemized requisitions showing in each instance the person to whom the refund is to be made, the amount of the refund, and the reason for the refund. (b) No interest shall be paid if the taxes or fees were erroneously or illegally assessed and collected due to the taxpayer failing to claim any credits listed in Article 2 of Chapter 7 of this title on or before the due date for filing the applicable income tax return, including any extensions which have been granted.
(c)(1)(A) A claim for refund of a tax or fee erroneously or illegally assessed and collected may be made by the taxpayer at any time within three years after:
(i) The date of the payment of the tax or fee to the commissioner; or (ii) In the case of income taxes, the later of the date of the payment of the tax or fee to the commissioner or the due date for filing the applicable income tax return, including any extensions which have been granted. (B) Each claim shall be filed in writing in the form and containing such information as the commissioner may reasonably require and shall include a summary statement of the grounds upon which the taxpayer relies and an identification of the transactions being contested. (C) Should any person be prevented from filing such a claim because of service of such person or such person's counsel in the armed forces during such period, the period of limitation shall date from the discharge of such person or such person's counsel from such service.

818

GENERAL ACTS AND RESOLUTIONS, VOL. I

(D) A claim for refund may not be submitted by the taxpayer on behalf of a class consisting of other taxpayers who are alleged to be similarly situated. (2) In the event the taxpayer desires a conference or hearing before the commissioner or the commissioner's delegate in connection with any claim for refund, he or she shall specify such desire in writing in the claim and, if the claim conforms with the requirements of this Code section, the commissioner shall grant a conference at a time he or she shall reasonably specify. A taxpayer may contest any claim for refund that is denied in whole or in part by filing with the commissioner a written protest at any time within 30 days from the date of notice of refund denial or partial payment. Such 30 day period shall be extended for such additional period as may be agreed upon in writing between the taxpayer and the commissioner during the initial 30 day period or any extension thereof. In the event the taxpayer wishes to request a conference, that request shall be included in the written protest. All protests shall be prepared in the form and contain such information as the commissioner shall reasonably require and shall include a summary statement of the grounds upon which the taxpayer relies, an identification of the transactions being contested, and the reasons for disputing the findings of the commissioner. The commissioner shall grant a conference before the commissioner's designated officer or agent at a time specified and shall make reasonable rules governing the conduct of conferences. The discretion given in this Code section to the commissioner shall be reasonably exercised on all occasions. (3) The commissioner or the commissioner's delegate shall consider information contained in the taxpayer's claim for refund, together with such other information as may be available, and shall approve or deny the taxpayer's claim and notify the taxpayer of the action. (4) Any taxpayer whose claim for refund is denied by the commissioner or the commissioner's delegate or whose claim is not decided by the commissioner or the commissioner's delegate within one year from the date of filing the claim shall have the right to bring an action for a refund in the superior court of the county of the residence of the taxpayer, except that: (A) If the taxpayer is a public utility or a nonresident, the taxpayer shall have the right to bring an action for a refund in the superior court of the county in which is located the taxpayer's principal place of doing business in this state or in which the taxpayer's chief or highest corporate officer or employee resident in this state maintains an office; or (B) If the taxpayer is a nonresident individual or foreign corporation having no place of doing business and no officer or employee resident and maintaining an office in this state, the taxpayer shall have the right to bring an action for a refund in the Superior Court of Fulton County or in the superior court of the county in which the commissioner in office at the time the action is filed resides. (5) An action for a refund pursuant to paragraph (4) of this subsection shall not be brought by the taxpayer on behalf of a class consisting of other taxpayers who are alleged to be similarly situated.

GEORGIA LAWS 2009 SESSION

819

(6)(A) No action or proceeding for the recovery of a refund under this Code section shall be commenced before the expiration of one year from the date of filing the claim for refund unless the commissioner or the commissioner's delegate renders a decision on the claim within that time, nor shall any action or proceeding be commenced after the later of:
(i) The expiration of two years from the date the claim is denied; or (ii) If a valid protest is filed under paragraph (2) of this subsection, 30 days after the date of the department's notice of decision on such protest. (B) The period prescribed in this paragraph for filing an action for refund shall be extended for such period as may be agreed upon in writing between the taxpayer and the commissioner prior to the expiration of such period or any extension thereof. (d) In the event any taxpayer's claim for refund is approved by the commissioner or the commissioner's delegate and the taxpayer has not paid other state taxes which have become due, the commissioner or department may offset any existing liabilities against the refund. Once the offset authorized by this subsection occurs, the refund shall be deemed granted and the amount of the offset shall be considered for all purposes as a payment toward the particular tax liabilities at issue. Any excess refund amount after any offsets have been applied shall be refunded to the taxpayer at the same time the offset is taken. (e) This Code section shall not apply to taxes paid for alcoholic beverages pursuant to Title 3. (f) For purposes of all claims for refund of sales and use taxes erroneously or illegally assessed and collected, the term 'taxpayer,' as defined under Code Section 48-2-35.1, shall apply.'

SECTION 4. Said title is further amended by revising Code Section 48-2-35.1, relating to sales and use tax refunds, as follows:
48-2-35.1. (a) Except as provided for in this subsection, for the purposes of all claims for refund of sales and use taxes erroneously or illegally assessed and collected, the term 'taxpayer' as used in Code Section 48-2-35 shall mean a dealer as defined in Code Section 48-8-2 that collected and remitted erroneous or illegal sales and use taxes to the commissioner. A person that has erroneously or illegally paid sales taxes to a dealer that collected and remitted such taxes to the commissioner may elect to seek a refund from such dealer. Alternatively, such person may file a claim for refund either initially with the commissioner or with the commissioner after being unable to obtain a refund from such dealer and shall also be considered a taxpayer for purposes of filing a claim for refund under Code Section 48-2-35, but only if such person:
(I) When filing a refund claim initially with the commissioner, provides the department with a notarized form prescribed by the commissioner and executed by the dealer affirming that the dealer:

820

GENERAL ACTS AND RESOLUTIONS, VOL. I

(A) Has not claimed or will not claim a refund ofthe same tax included in the person's request for refund; (B) Will provide to the person any information or documentation in the dealer's possession needed for submission to the department to support or prove the claim for refund; (C) Has remitted to the state the taxes being sought for refund; and (D) Has not taken or will not take a credit for taxes being sought for refund; or (2)(A) When filing a refund claim with the commissioner after being unable to obtain a refund from such dealer, such person provides a letter or other information as may be requested by the commissioner that either:
(i) The dealer refused or was unable to refund the erroneously or illegally assessed and collected taxes; or (ii) The dealer did not act upon the person's written request for refund of the erroneously or illegally assessed and collected taxes within 90 days from the date of such request for refund. (B) Upon acceptance of such letter or information by the commissioner, the dealer shall be deemed to have assigned all rights to the refund to such person. (b) If a certificate or exemption determination letter issued by the commissioner certifying that the purchaser is entitled to purchase tangible personal property or taxable services without the payment of sales and use tax has not been obtained and used prior to purchasing such tangible personal property or taxable services, a refund of sales and use taxes shall be made without interest."

SECTION 5. Said title is further amended by revising Code Section 48-2-55, relating to garnishments and levies, by revising paragraph (2) of subsection (b) as follows:
'(2) The commissioner or the commissioner's authorized representative may use garnishment to collect any tax, fee, license, penalty, interest, or collection costs due the state which are imposed by this title or which the commissioner or the department is responsible for collecting under any other law. Garnishment may be issued by the commissioner or the commissioner's authorized representative against any person whom the commissioner believes to be indebted to the defendant or who has property, money, or effects in such person's hands belonging to the defendant. The summons of garnishment shall be served by the commissioner or the commissioner's authorized representative, shall be served at least 15 days before the sitting of the court to which the summons is made returnable, and shall be returned to either the superior court or the state court of the county in which the garnishee is served. The commissioner or the commissioner's authorized representative shall enter on the execution the names of the persons garnished and shall return the execution to the appropriate court. All subsequent proceedings shall be the same as provided by law regarding garnishments in other cases when judgment has been obtained or execution issued. In addition to any other methods

GEORGIA LAWS 2009 SESSION

821

of service, the summons of garnishment may be served by the commissioner or the commissioner's authorized representative to the garnishee by registered or certified mail or statutory overnight delivery, return receipt requested. Either the return receipt indicating receipt by the garnishee or the envelope bearing the official notification from the United States Postal Service of the garnishee's refusal to accept delivery of such registered or certified mail or statutory overnight delivery shall be filed with the clerk of the court in which the garnishment is pending. If statutory overnight delivery was accomplished through a commercial firm as provided under paragraph (I) of subsection (b) of Code Section 9-10-12, the return receipt indicating receipt by the garnishee or the envelope bearing the official notification of such commercial firm of the garnishee's refusal to accept delivery shall be filed with the clerk of the court in which garnishment is pending. If a garnishee refuses to accept service of a summons of garnishment by registered or certified mail or statutory overnight delivery, the summons of garnishment shall be served by the commissioner or the commissioner's authorized representative under any other method of lawful service and the garnishee shall be personally liable to the commissioner for a sum equal to the actual costs incurred to serve the summons of garnishment. This liability shall be paid upon notice and demand by the commissioner or the commissioner's delegate and shall be assessed and collected in the same manner as other taxes administered by the commissioner.'

SECTION 6. Said title is further amended in Code Section 48-7-29.16, relating to qualified education tax credits, by revising subsection (g) as follows:
'(g) In order for the taxpayer to claim the student scholarship organization tax credit under this Code section, a letter of confirmation of donation issued by the student scholarship organization to which the contribution was made shall be attached to the taxpayer's tax return. However, in the event the taxpayer files an electronic return, such confirmation shall only be required to be electronically attached to the return if the Internal Revenue Service allows such attachments when the data is transmitted to the department. In the event the taxpayer files an electronic return and such confirmation is not attached because the Internal Revenue Service does not, at the time of such electronic filing, allow electronic attachments to the Georgia return, such confirmation shall be maintained by the taxpayer and made available upon request by the commissioner. The letter of confirmation of donation shall contain the taxpayer's name, address, tax identification number, the amount of the contribution, the date of the contribution, and the amount of the credit.'

SECTION 7. Said title is further amended by adding a new Code section to read as follows:
'48-7-40.15A. (a) As used in this Code section, the term:

822

GENERAL ACTS AND RESOLUTIONS, VOL. I

(1) 'Base year port traffic' means the total amount of net tons, containers, or twenty-foot equivalent units (TEU's) of product actually imported into this state or exported out of this state by way of a waterborne ship or vehicle through a port facility during the period from January 1, 1997, through December 31, 1997; provided, however, that in the event the total amount actually imported into this state or exported out of this state during such period was not at least 75 net tons, five containers, or ten twenty-foot equivalent units (TEU's), then 'base year port traffic' means 75 net tons, five containers, or ten twenty-foot equivalent units (TEU's). (2) 'Business enterprise' means any business located in a tier two or tier three county established pursuant to Code Section 48-7-40 and in a less developed area established pursuant to Code Section 48-7-40.1 and which qualifies and receives the tax credit under Code Section 48-7-40.1 and which:
(A) Consists of a distribution facility of greater than 650,000 square feet in operation in this state prior to December 31, 2008; (B) Distributes product to retail stores owned by the same legal entity or its subsidiaries as such distribution facility; and (C) Has a minimum of 8 retail stores in this state in the first year of operations. (3) 'Port traffic' means the total amount of net tons, containers, or twenty-foot equivalent units (TEU's) of product imported into this state or exported out of this state by way of a waterborne ship or vehicle through a port facility. (4) 'Product' means a marketable product or component of a product which has an economic value to the wholesale or retail consumer and is ready to be used without further alteration of its form or a product or material which is marketed as a prepared material or is a component in the manufacturing and assembly of other finished products. (b)(l) In the case of any business enterprise which has increased its port traffic of products during the previous 12 month period by more than 10 percent above its base year port traffic and is qualified to claim a job tax credit under Code Section 48-7-40 or 48-7-40.1 for jobs added at any time on or after January 1, 1998, there shall be allowed an additional $1,250.00 job tax credit against the tax imposed under this article. (2) The tax credit described in this subsection shall be allowed subject to the conditions and limitations set forth in Code Section 48-7-40 and shall be in addition to the credit allowed under Code Section 48-7-40; provided, however, that such credit shall not be allowed during a year if the port traffic does not remain above the minimum level established in this Code section. (c) No business enterprise shall be authorized to claim the credits provided for in both subsection (b) of this Code section and subsection (b) of Code Section 48-7-40.15 on a tax return for any taxable year unless such business enterprise has increased its port traffic of products during the previous 12 month period by more than 20 percent above its base year port traffic and has increased employment by 400 or more no sooner than January 1, 1998. (d)(l) The credit granted under this Code section shall be subject to the following conditions and limitations:

GEORGIA LAWS 2009 SESSION

823

(2) For every year in which a taxpayer claims the credit, the taxpayer shall attach a schedule to the taxpayer's state income tax return which shall set forth the following information, as a minimum, in addition to the information required under Code Sections 48-7-40 and 48-7-40.2 or 48-7-40.7:
(A) A description of how the base year port traffic and the increase in port traffic was determined; (B) The amount of the base year port traffic; (C) The amount of the increase in port traffic for the taxable year, including information which demonstrates an increase in port traffic in excess of the minimum amount required to claim the tax credit under this Code section; (D) Any tax credit utilized by the taxpayer in prior years; (E) The amount of tax credit carried over from prior years; (F) The amount of tax credit utilized by the taxpayer in the current taxable year; and (G) The amount of tax credit to be carried over to subsequent tax years. (3)(A) Any tax credit claimed under subsection (b) of this Code section but not used in any taxable year may be carried forward for ten years from the close of the taxable year in which the qualified jobs were established, provided that the increase in port traffic remains above the minimum levels established in Code Section 48-7-40 and this Code section, respectively. (B) The tax credit established by this Code section in lieu of Code Section 48-7-40.2, 48-7-40.3, or 48-7-40.4 and taken in any one taxable year shall be limited to an amount not greater than 50 percent of the taxpayer's state income tax liability which is attributable to income derived from operations in this state for that taxable year. (C) The tax credit established by this Code section in addition to that pursuant to Code Section 48-7-40 and taken in any one taxable year shall be limited to an amount not greater than 50 percent of the taxpayer's state income tax liability which is attributable to income derived from operations in this state for that taxable year. (D) The sale, merger, acquisition, or bankruptcy of any taxpayer shall not create new eligibility for any succeeding taxpayer, but any unused credit may be transferred and continued by any transferee of the taxpayer. (e) No tax credit may be claimed and allowed pursuant to this Code section for any jobs created on or after January 1, 2015.'

SECTION 8. (a) Except as otherwise provided in this section, this Act shall become effective upon its approval by the Governor or upon its becoming law without such approval. (b) Section 6 of this Act shall become effective upon this Act's approval by the Governor or upon its becoming law without such approval and shall be applicable to all taxable years beginning on or after January 1, 2008.

824

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 9. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

RETIREMENT- SUPERIOR COURT CLERKS; EMPLOYEE CONTRIBUTIONS; PEACE OFFICERS; EMPLOYER CONTRIBUTION.
No. 175 (House Bill No. 487).
AN ACT
To amend Chapter 14 of Title 47 of the Official Code of Georgia Annotated, relating to the Superior Court Clerks' Retirement Fund of Georgia, so as to increase the employee contribution to such fund; to increase certain fines; to provide for an additional payment to such fund; to amend Article 4 of Chapter 17 of Title 47 of the Official Code of Georgia Annotated, relating to revenues collected from fines and fees relative to the Peace Officers' Annuity and Benefit Fund, so as to provide for a certain employer contribution to such fund; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 14 of Title 47 of the Official Code of Georgia Annotated, relating to the Superior Court Clerks' Retirement Fund of Georgia, is amended by revising subsection (a) of Code Section 47-14-40, relating to application for membership in the fund, payments by members into the fund, and penalties for late payment, as follows:
"(a) Any clerk, in order to participate in the benefits provided for in this chapter, shall make application to the Superior Court Clerks' Retirement Fund of Georgia upon forms to be furnished for that purpose by the board, giving such information as may be required by the board. He or she shall pay $50.00 per month into the fund; provided, however, that members who first or again become members on or after September 1, 2009, shall pay $100.00 per month into the fund. All clerks who made application and are accepted for membership in the fund shall remit to the board, not later than the tenth day of each subsequent month, the amount due under this subsection.'

GEORGIA LAWS 2009 SESSION

825

SECTION 2. Said chapter is further amended by revising subsection (b) ofCode Section 47-14-50, relating to payments to the fund from fines and bonds collected in criminal and quasi-criminal cases, duty of collecting authority to record and remit, and penalty for late payment, as follows:
'(b) The sum of$2.00 shall be paid to the board from each fine collected and each bond forfeited and collected in any criminal or quasi-criminal case for violation of state law if the case is tried in any court of this state in which the clerk of such court is eligible for membership in this retirement fund. The collecting authority shall pay such amounts to the board each month or at such other times as the board may provide. Such amounts shall be due on the first day of the month following the month in which they were collected but shall be deemed timely if received by the board on or before the fifteenth day of the month; provided, however, that for purposes of calculating late payment penalties, the due date shall be the first day of the month. It shall be the duty of the collecting authority to keep accurate records of the amounts due the board. Such records may be audited by the board at any time. The sums remitted to the board under this Code section shall be used for the purposes provided for in this chapter:

SECTION 3. Said chapter is further amended in Code Section 47-14-51, relating to payments to the fund from fees collected in certain civil actions and for recording of instruments pertaining to real estate, records, audit of records, and use of sums remitted, by adding a new subsection to read as follows:
'(e) The sum of$1.00 shall be paid out ofthe fees charged and collected pursuant to Title 15 in each civil suit, action, case, or proceeding filed in the superior courts or in any other court of this state in which a clerk eligible for membership in this retirement fund is clerk and shall be remitted to the board as provided in subsection (c) of this Code section. Such fees shall include, without limiting the generality of the foregoing, all adoptions, charters, certiorari, applications by a personal representative for leave to sell or reinvest, trade name registrations, applications for change of name, and all other proceedings of a civil nature filed in the superior courts or other such courts.'

SECTION 4. Article 4 of Chapter I 7 of Title 47 of the Official Code of Georgia Annotated, relating to revenues collected from fines and fees relative to the Peace Officers' Annuity and Benefit Fund, is amended by adding a new Code section to read as follows:
"47-17-61. The Composite State Board of Medical Examiners shall pay an employer contribution for each person who becomes a member of the fund pursuant to division (5)(I)(vi) of Code Section 47-17-1. Such contribution shall be the full actuarial cost of the member's participation as calculated by the actuary for the fund and shall be made on a monthly basis:

826

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 5. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 6. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

RETIREMENT- SUPERIOR COURT CLERKS; CREDITABLE SERVICE
ELIGIBILITY CRITERIA.
No. 176 (House Bill No. 488).
AN ACT
To amend Article 5 of Chapter 14 of Title 47 of the Official Code of Georgia Annotated, relating to retirement benefits, disability benefits, and spouses' benefits under the Superior Court Clerks' Retirement Fund of Georgia, so as to provide eligibility criteria for creditable service; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Article 5 of Chapter 14 of Title 47 of the Official Code of Georgia Annotated, relating to retirement benefits, disability benefits, and spouses' benefits under the Superior Court Clerks' Retirement Fund of Georgia, is amended by adding a new subsection to Code Section 47-14-77, relating to service for which no credit received for retirement purposes, to read as follows:
"(c) No member who first or again becomes a member on or after September 1, 2009, and who is subject to the provisions of Code Section 15-6-50 shall be entitled to include, for any purpose under this chapter, service during which he or she was not in compliance with the training requirements of subsection (c) of such Code section."
SECTION 2. This Act shall become effective on the first day of the month following the month in which it is approved by the Governor or in which it becomes law without such approval.

GEORGIA LAWS 2009 SESSION

827

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

COURTS- ASSOCIATE PROBATE COURT JUDGES; CREATION AND REGULATION; PROBATE JUDGES; VACANCIES AND JURISDICTION; CONSERVATORS; GUARDIANS.
No. 177 (House Bill No. 495).
AN ACT
To amend Chapter 9 of Title 15 of the Official Code of Georgia Annotated, relating to probate courts, so as to provide for the appointment, compensation, term, authority, qualifications, training, and limitations of associate probate court judges; to provide for the filling of vacancies in the office of judge of the probate court; to provide for the qualifications of certain judges of the probate court; to provide for the jurisdiction ofjudges ofthe probate court; to update language regarding conservators and guardians; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Chapter 9 of Title 15 of the Official Code of Georgia Annotated, relating to probate courts, is amended by adding a new Code section to read as follows:
'15-9-2.1. (a) Appointment, compensation, and term.
( 1) The judge of the probate court may appoint one or more persons to serve as associate judges of the probate court in probate matters on a full-time or part-time basis subject to the approval of the governing authority of the county. Such associate judges of the probate court shall serve at the pleasure of the judge of the probate court. (2) Whenever a full-time associate judge of the probate court is appointed to serve in a probate court, the clerk of the probate court shall forward a certified copy of the order of appointment to the Council of Probate Court Judges of Georgia. (3) Full-time associate judges of the probate court shall be included in the list of members of the Council of Probate Court Judges of Georgia as set forth in Code

828

GENERAL ACTS AND RESOLUTIONS, VOL. I

Section 15-9-15. An associate judge of the probate court shall not be a voting member

and shall not serve as an officer of the Council of Probate Court Judges of Georgia.

(4) Compensation of the associate judges of the probate court shall be fixed by the judge

of the probate court subject to the approval of the governing authority or governing

authorities of the county or counties for which the associate judge of the probate court is

appointed. The salary and any employment benefits of each associate judge of the

probate court shall be paid from county funds. No associate judge of the probate court

shall be eligible to participate in the Judges of the Probate Courts Retirement Fund of

Georgia.

(5) The term of employment of an associate judge of the probate court shall run

concurrently with the term of the elected judge of the probate court pursuant to Code

Section 15-9-1.

(b) Authority. Both full-time and part-time associate judges of the probate court shall be

vested with all of the authority of the judge of the probate court of the county or counties

for which the associate judge of the probate court is appointed. In all proceedings before

the court, the judgment of the associate judge of the probate court shall be the final

judgment of the court for appeal purposes.

(c) Qualifications and training requirements.

(1) With the exception of the residency requirement set forth in subparagraph (a)(l)(B)

of Code Section 15-9-2, all associate judges of the probate court shall have the same

qualifications required of the elected judge of the probate court of the county or counties

for which the associate judge of the probate court is appointed.

(2) All full-time associate judges of the probate court shall complete the training

requirements set forth for judges of the probate court in Code Section 15-9-1.1. All

part-time associate judges of the probate court shall be required to attend a minimum of

nine hours in an area related to probate court, mental health, or traffic matters as

determined by the elected judge of the probate court. All probate required training shall

be paid for by the governing authority or governing authorities of the county or counties

for which the associate judge of the probate court is appointed.

(d) Oath and bond.

(1) Before entering on the duties of their offices, all full-time and part-time associate

judges of the probate court shall take the oaths required of all civil officers and, in

addition, the following oath:

'I do swear that I will well and faithfully discharge the duties of associate judge of the

probate court for the County of

during my continuation in office,

according to law, to the best of my knowledge and ability, without favor or affection

to any party. So help me God.'

(2) The clerk of the probate court shall make an entry of the oath of each associate judge

ofthe probate court on the minutes ofthe probate court. In the case of an associate judge

of the probate court serving as a magistrate, no oath, certificate, or commission shall be

GEORGIA LAWS 2009 SESSION

829

required except the oath and commission of the associate judge of the probate court as an associate judge of the probate court. (e) Restriction on the practice oflaw and the fiduciary role. (I) It shall be unlawful for any full-time associate judge of the probate court to engage in any practice of law outside his or her role as an associate judge of the probate court. It shall be unlawful for any part-time associate judge of the probate court to engage directly or indirectly in the practice of law in his or her own name or in the name of another as a partner in any manner in any case, proceeding, or matter of any kind in his or her own court or in any other court in any case, proceeding, or any other matters of which his or her own court has pending jurisdiction or has jurisdiction. It shall be unlawful for any associate judge of the probate court, full-time or part-time, to give advice or counsel to any person on any matter of any kind whatsoever that has arisen directly or indirectly in his or her own court, except such advice or counsel as he or she is called upon to give while performing the duties of an associate judge of the probate court. (2) The provisions of subsection (b) of Code Section 15-9-2 regarding limitations on the fiduciary role apply to both full-time and part-time associate judges of the probate court. (f) Assumption of duties upon vacancy in the office of judge of probate court. Notwithstanding the provisions of subsection (c) of Code Section 15-9-2 or Code Sections 15-9-10, 15-9-11, and 15-9-11.1, the senior full-time associate judge of the probate court shall be the first in line to serve as judge of the probate court in the event of a vacancy in the office of the judge of probate court and shall dispense with any and all unfinished proceedings pursuant to Code Section 15-9-12. The associate judge of the probate court shall be eligible to fill a vacancy in the office of probate judge for the remainder of the unexpired term without regard to whether such associate probate judge meets any residency requirements otherwise imposed by law; however, the associate probate judge shall become a resident of the county before qualifying for election to the office of probate judge. Any associate probate judge taking office as authorized by this subsection shall thereafter be eligible to succeed himself or herself as long as he or she remains a resident of the county. (g) Proceedings when an associate judge ofthe probate court is disqualified. Whenever the judge of the probate court is disqualified to act in any case pursuant to Code Section 15-9-13, the associate judge of the probate court shall also be disqualified.'

SECTION 2. Said chapter is further amended by revising subsection (c) of Code Section 15-9-4, relating to additional eligibility requirements in certain counties, as follows:
'(c) A judge of the probate court holding such office on or after June 30, 2000, shall continue to hold such office and shall be allowed to seek reelection for such office. Notwithstanding the requirement that in certain counties the judge of the probate court be admitted to practice law for seven years preceding election, no decision, judgment, ruling

830

GENERAL ACTS AND RESOLUTIONS, VOL. I

or other official action of any judge of the probate court shall be overturned, denied, or overruled based solely on this requirement for qualification, election, and holding the office of judge of the probate court.'

SECTION 3. Said chapter is further amended by revising subsection (a) of Code Section 15-9-11, relating to calling of special election to fill vacancy, as follows:
'(a) When a vacancy occurs in the office of judge of the probate court in any county, it shall be the duty of the person who assumes the duties of the judge, as provided in Code Section 15-9-10, within ten days after the vacancy occurs, to order a special election for the purpose of filling the vacancy. He or she shall give notice of the special election by publication in the newspaper in which the citations of the judge of the probate court are published. The special election shall be held in accordance with Chapter 2 of Title 21. Notwithstanding the provisions of this subsection, if the vacancy occurs after January 1 in the last year of the term of office of the judge of probate court, the person assuming the duties of the judge of the probate court shall be commissioned for and shall serve the remainder of the unexpired term of office.'

SECTION 4. Said chapter is further amended by revising subsection (a) of Code Section 15-9-30, relating to subject matter jurisdiction, as follows:
'(a) Probate courts have authority, unless otherwise provided by law, to exercise original, exclusive, and general jurisdiction of the following subject matters:
(1) The probate of wills; (2) The granting of letters testamentary and of administration and the repeal or revocation of the same; (3) All controversies in relation to the right of executorship or administration; (4) The sale and disposition of the property belonging to, and the distribution of, deceased persons' estates; (5) The appointment and removal of guardians of minors, conservators of minors, guardians of incapacitated adults, and conservators of incapacitated adults and persons who are incompetent because of mental illness or mental retardation; (6) All controversies as to the right of guardianship and conservatorship, except that the probate court shall not be an appropriate court to take action under Code Section 19-7-4; (7) The auditing and passing of returns of all executors, administrators, guardians of property, conservators, and guardians; (8) The discharge of former sureties and the requiring of new sureties from administrators, guardians of property, conservators, and guardians; (9) All matters as may be conferred on them by Chapter 3 of Title 37; (1 0) All other matters and things as appertain or relate to estates of deceased persons and to persons who are incompetent because of mental illness or mental retardation; and

GEORGIA LAWS 2009 SESSION

831

(11) All matters as may be conferred on them by the Constitution and laws.'

SECTIONS. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

LAW ENFORCEMENT -BOARD OF PUBLIC SAFETY; FIRE CHIEF ELIGIBILITY AS MEMBER.
No. 178 (House Bill No. 607).
AN ACT
To amend Article 1 of Chapter 2 of Title 35 of the Official Code of Georgia Annotated, relating to general provisions pertaining to the Department of Public Safety, so as to change certain provisions relating to the Board of Public Safety; to provide for a member of the Georgia Association of Fire Chiefs to serve as a member of the board; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Article 1 of Chapter 2 of Title 35 of the Official Code of Georgia Annotated, relating to general provisions pertaining to the Department of Public Safety, is amended by revising Code Section 35-2-1, relating to the creation of the Board of Public Safety, composition, appointment, and terms of office of members, as follows:
'35-2-1. (a) There is created a Board of Public Safety which shall establish the general policy to be followed by the Department of Public Safety. (b) The board shall consist of 15 members:
(1) The following three members serve as follows: (A) The Governor, ex officio, who shall be chairperson of the board; (B) An appointee of the Governor who shall not be the Attorney General; and (C) The official in charge of the Department of Corrections, ex officio.
(2) Five members shall be selected as follows: (A) A representative appointed by the Governor by and with the advice and consent of the Senate from the membership of the Georgia Sheriffs Association; the first

832

GENERAL ACTS AND RESOLUTIONS, VOL. I

representative shall serve an initial term ending on January 20, 1975, each subsequent term being three years; (B) A representative appointed by the Governor by and with the advice and consent of the Senate from the membership of the Georgia Association of Chiefs of Police; the first representative shall serve an initial term ending on January 20, 1974, each subsequent term being three years; (C) A representative appointed by the Governor by and with the advice and consent of the Senate from the membership of the District Attorneys Association of Georgia; the first representative shall serve an initial term ending on January 20, 1973, each subsequent term being three years; (D) A representative appointed by the Governor by and with the advice and consent of the Senate from the membership of the Georgia State Firemen's Association; the first representative shall serve an initial term ending on January 20, 1984. Each subsequent term shall be for three years; and (E) A representative appointed by the Governor by and with the advice and consent of the Senate from the membership of the Georgia Association of Fire Chiefs; the first representative shall serve an initial term beginning on January 21, 2011. Each term shall be for three years. (3) Four members shall be selected as follows: (A) Two members appointed by the Governor. The first appointees shall serve an initial term ending on January 20, 2002. Each subsequent term shall be for three years; (B) One member appointed by the Lieutenant Governor. The first appointee shall serve an initial term ending on January 20, 2002. Each subsequent term shall be for three years; and (C) One member appointed by the Speaker of the House of Representatives. The first appointee shall serve an initial term ending on January 20, 2002. Each subsequent term shall be for three years. (4) By majority vote the board shall appoint three members from the state at large; no person so appointed shall be an officer or employee of any state or local governmental entity at the time of his or her appointment to or during his or her membership on the board. All terms of the three at-large members shall be four years. Any vacancy in the at-large membership shall be filled by the board for the unexpired term. (c) Appointments made pursuant to paragraph (2) of subsection (b) of this Code section at times when the Senate is not in session shall be effective ad interim.'

SECTION 2. This Act shall become effective on January 20, 2011, and shall apply to appointments made on or after such date.

GEORGIA LAWS 2009 SESSION

833

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

MOTOR VEHICLES- SPECIAL LICENSE PLATES; GEORGIA AQUARIUM; ATLANTA FALCONS YOUTH FOUNDATION.
No. 179 (House Bill No. 639).
AN ACT
To amend Code Section 40-2-86.21 of the Official Code of Georgia Annotated, relating to special license plates promoting certain beneficial projects and supporting certain agencies, funds, or nonprofit corporations, so as to provide for a special license plate supporting the Georgia Aquarium in its mission to promote the conservation of aquatic biodiversity throughout the world; to change certain provisions regarding a special license plate supporting the Atlanta Falcons Foundation to a special license plate supporting the Atlanta Falcons Youth Foundation; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Code Section 40-2-86.21, relating to special license plates promoting certain beneficial projects and supporting certain agencies, funds, or nonprofit corporations, is amended in subsection (o), by revising paragraph (23) and by adding a new paragraph to read as follows:
'(23) A special license plate for the Atlanta Falcons Youth Foundation to assist the charities supported by the foundation. The funds raised by the sale of this special license plate shall be disbursed to the Atlanta Falcons Youth Foundation. Such license plate shall not include a space for a county name decal but shall instead bear the legend 'Atlanta Falcons' in lieu of the name of the county of issuance.' '(40) A special license plate for the Georgia Aquarium to support its mission as an entertaining, educational, and scientific institution and to promote the conservation of aquatic biodiversity throughout the world. The funds raised by the sale of this special plate shall be disbursed to Georgia Aquarium, Inc. Such license plate shall not include a space for a county name decal but shall instead bear the legend 'Georgia Aquarium' in lieu of the name of the county of issuance."

834

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved May 5, 2009.

DEDICATE MULTIPLE PORTIONS OF STATE HIGHWAY SYSTEM.
No. 180 (House Resolution No. 336).
A RESOLUTION
Dedicating certain portions of the state highway system; and for other purposes.
PART I WHEREAS, Corporal Jonathan Ryan Ayers of Snellville, Georgia, died serving his country on Sunday, July 13, 2008; and
WHEREAS, he was a graduate of Shiloh High School where he served with distinction in the ROTC program and won the award for "most impressive commander" in 2002; and
WHEREAS, he joined the Army in April 2006 and went straight from basic and advanced individual training at Fort Benning, Georgia, to the 2nd Battalion, 503rd Infantry Regiment (Airborne), 173rd Airborne Brigade Combat Team, based in Vicenza, Italy; and
WHEREAS, Jonathan served in the Army for two years, during which time he deployed to Afghanistan, where he earned the Silver Star, Bronze Star, Purple Heart, and a Good Conduct Medal for his bravery in combat; and
WHEREAS, he died of wounds sustained when his outpost was attacked by small-arms fire and rocket propelled grenades from enemy forces in Wanat, Afghanistan; and
WHEREAS, CPL Ayers and his fellow soldiers were completing work on a new base in a remote, mountainous region bordering Pakistan; and
WHEREAS, he is survived by his loving parents, Bill and Suzanne Ayers, his brother, Joshua, and his grandmother, Pattie Weatherly; and

GEORGIA LAWS 2009 SESSION

83S

WHEREAS, it is only proper and fitting to honor this fallen hero who now stands in the unbroken line of patriots who have dared to die that freedom might live and grow and increase in its blessings.

PART II WHEREAS, DaveS. Miller was born in the Whitehouse community in 1874 and spent his entire life there; and

WHEREAS, he first worked as a blacksmith, and his shop still stands on the east side of Highway ISS just north of Miller's store; and

WHEREAS, in 1830 Silas Moseley, the ancestor of the Moseley clan in Henry County, built the first bridge and corn mill on Big Cotton Indian Creek, and after the Civil War the Hinton family bought the mill property from the Moseleys; and

WHEREAS, in 1925, DaveS. Miller bought the mill property and from that time until his death in 1966 he ran a very prosperous business which included the corn mill, a cotton gin, a saw mill, and a planing mill; and

WHEREAS, DaveS. Miller's son, Carlton Miller, ran the mill from 1925 untill947, and his son, David Miller, ran the gin and country store; and

WHEREAS, the mill complex was the center of activity for the community and the operation was active until 1960 when Dave S. Miller was too old to work any more; and

WHEREAS, it is only fitting and proper to honor Dave S. Miller for the tremendous impact he and his sons had on their community and Henry County.

PART III WHEREAS, William Raleigh Cook was born in Henry County, Georgia, on July 4, 1888, and passed away on August 30, 1957; and

WHEREAS, Mamie Leona Steele was born in Henry County, Georgia, on October 5, 1893, and passed away on July 19, 1971; and

WHEREAS, they were married in Henry County on December 18, 1912, and set up a homestead at Little Cotton Indian Creek and Decatur Road (now Ga. Hwy 155); and

WHEREAS, they farmed the local area and lived on Little Cotton Indian Creek throughout their lives, and they served as managers of the historic ShingleroofCampground Hotel in the 1920's and 1930's; and

836

GENERAL ACTS AND RESOLUTIONS, VOL. I

WHEREAS, they were lifelong members at nearby Salem Baptist Church and greeted and met travelers along Decatur Road for nearly a century; and

WHEREAS, the ancestors of both William and Mamie Cook were among the earliest white settlers of Henry County, Georgia, including John Cook who settled in Henry County after serving in the War of 1812 and also including veterans of the Civil War and the Spanish American War. These ancestors lived in the area around Little Cotton Indian Creek along Decatur Road; and

WHEREAS, the descendants ofWilliam and Mamie Cook include four generations ofHenry County residents, many of whom still reside on and near the original homestead. Their number includes decorated veterans of the Second World War, the Korean War, and the Vietnam Conflict. Additionally, many of these descendants have served Henry County as successful businesspersons, academics, horse and cattle ranchers, real estate developers, and professionals in banking, technology, healthcare, and engineering; and

WHEREAS, it is only proper and fitting that a lasting memorial be dedicated to the memory of William and Mamie Cook.

PART IV WHEREAS, Bobby Walden, the "Big Toe from Cairo" was born in Boston, Georgia, on March 9, 1938; and

WHEREAS, he was an all-state halfback at Cairo and also lettered in basketball and track; and

WHEREAS, he went to the University of Georgia in 1957 and was part of a Bulldog football team that included teammates Fran Tarkenton, Fred Brown, Bill Godfrey, Pat Dye, and Charlie Britt; and

WHEREAS, at the conclusion of his college career, Bobby joined the Edmonton Eskimos, and he led the team in punting, rushing, and receiving in 1961 and 1962; and

WHEREAS, he then joined the Minnesota Vikings of the National Football League and led the NFL in punting in 1965 with an average of 46.4 yards per kick; and

WHEREAS, Bobby was traded to the Pittsburgh Steelers in 1967 and continued as one ofthe premier punters in the league for the next decade; and

WHEREAS, he was an All-Pro selection in 1974, and he punted for Pittsburgh's Super Bowl championship teams in 1974 and 1975; and

GEORGIA LAWS 2009 SESSION

837

WHEREAS, Bobby has returned to his roots to live in Cairo and Bainbridge since his retirement from professional football in 1977; and

WHEREAS, Bobby has been married for 44 years to the former Scarlett Bates ofBainbridge, and they have one son, Bobby Walden, Jr.; and

WHEREAS, it is only fitting and proper that Bobby Walden be recognized for his outstanding accomplishments on and off the football field.

PARTV WHEREAS, the State of Georgia lost one of her great trailblazers and a mighty advocate in George W. Ford, Jr.; and

WHEREAS, Mr. Ford was a native son of Columbus, Georgia, who was among the first 200 African American men to serve in the Marine Corps and who, after his service in World War II, became a highly respected member of the Civil Rights movement; and

WHEREAS, he inspired fellow African Americans by lighting a torch to follow his example in such leadership roles as cofounding the Urban League of Greater Columbus, serving as president of the local National Association for the Advancement of Colored People branch, and acting as a voice of reason and builder of bridges in his community; and

WHEREAS, Mr. Ford was the founder and president emeritus of Progressive Funeral Home and served with distinction as a member of the board of directors for both Aflac and the Columbus Bank and Trust Company; and

WHEREAS, the work of this mentor, friend, and teacher was honored with the Jim Woodruff, Jr., Memorial Award in 2003; and

WHEREAS, Mr. Ford's actions have paved the way for so many others, and his legacy will live on in future generations of Georgians; and

WHEREAS, it is only proper that George W. Ford, Jr., be honored for his life well lived and that a permanent monument in his memory be established.

PART VI WHEREAS, Edward A. Logan was born in Benton, Louisiana in 1898; and

WHEREAS, he served in the United States Army at the end of World War I and studied engineering by a correspondence course before moving to Hattiesburg, Mississippi, to take a job with the Mississippi Highway Department; and

838

GENERAL ACTS AND RESOLUTIONS, VOL. I

WHEREAS, several years later he moved to Atlanta and studied until he received his degree in civil engineering and he was then employed by the Georgia Highway Department as a surveyor; and

WHEREAS, in 1924, Mr. Logan was sent to the Florida line to begin surveying and building US 17 and during this time he lived in Woodbine, Brunswick, and Riceboro; and

WHEREAS, he later lived in Savannah, Waycross, and Fitzgerald and then back to Savannah where he worked as the district engineer for all three towns; and

WHEREAS, in 1940, he took leave from the Georgia Highway Department to do defense work with private contractors; and

WHEREAS, in 1951, he moved to St. Simons Island and went back to work for the Georgia Highway Department in 1958 where he was the district engineer for the Jesup division until he retired in 1968 at age 70; and

WHEREAS, Mr. Logan was a lifelong Presbyterian and served as an elder in the St. Simons Presbyterian Church, and he was also a Rotarian, a 33rd Degree Mason, a Shriner, and a member of the American Legion and loved to hunt deer and turkey; and

WHEREAS, he was married to Eula Mae Best from Hazlehurst, Georgia, and they had two children, Edward and Jean; and

WHEREAS, it is only proper that Edward A. Logan be honored for his life well lived and that a permanent monument in his memory be established.

PART VII WHEREAS, the Honorable Richard S. Gault was a distinguished Georgian and highly respected jurist who will long be remembered as the patriarch of the courts of Forsyth County, as well as a trusted advisor, confidant, and friend to the legal community; and

WHEREAS, Judge Gault died suddenly on July 23, 2003; and

WHEREAS, he graduated from Marietta High School, was a cadet at the United States Air Force Academy, served four years in the Air Force, was honorably discharged with the rank of captain in 1971, and he earned his Juris Doctorate from the Emory University School of Law; and

GEORGIA LAWS 2009 SESSION

839

WHEREAS, he served six years as an Assistant and Special Assistant Attorney General of Georgia, six years as solicitor and four years as judge of the State Court of Cherokee and Forsyth Counties, and 14 years as judge of the Superior Court of the Blue Ridge Circuit; and

WHEREAS, Judge Gault worked tirelessly to ensure that the judicial needs of the citizens of Georgia and fast-growing Forsyth County were met, and his work was vital to the formation of the Bell-Forsyth Judicial Circuit in 1998; and

WHEREAS, his keen intellect, integrity, and skill in communicating the needs ofthe judicial branch earned him the esteem of his colleagues on the bench and the respect and admiration of members ofthe executive and legislative branches of state government, as exemplified by his membership on the Chief Justice's Commission on Professionalism from 1997-2002 and on the Supreme Court Blue Ribbon Commission on the Judiciary; and

WHEREAS, Judge Gault was a dedicated leader in his community as a member of First Baptist Church of Cumming and president of his Unity Sunday School Class, and he was a charter member of the Forsyth County Rotary Club, an organizer in the Charter Class of Leadership Forsyth, and served as director ofthe Cumming-Forsyth Chamber ofCommerce; and

WHEREAS, it is only proper and fitting that the memory of Judge Gault be honored by dedicating a lasting memorial to his life of service to his community and to the State of Georgia.

PART VIII WHEREAS, Doug Ferguson was born on December 28, 1946, to John Lewis Ferguson and Jessie Lorene Ferguson of Emerson, Georgia, and he lived his entire life in Emerson; and

WHEREAS, Doug married Melissa Stokes on March 19, 1969, and they had two sons, Aaron and Alexander, who also reside in Emerson; and

WHEREAS, in 1994, he opened Doug's Place Restaurant in the former Moms Groceries store building, a landmark in Emerson that is over 100 years old; and

WHEREAS, Doug was instrumental in establishing an annual "Emerson Reunion" bringing together former and current Emerson residents for a great time of fellowship and strengthening of the Emerson identity; and

WHEREAS, Doug's Place was recognized by the Georgia House of Representatives in 2001 by means of House Resolution 575 commending Doug's Place Restaurant for being "a fine eating establishment known far and wide as a place for good food, fast service, and ample

840

GENERAL ACTS AND RESOLUTIONS, VOL. I

servings; and the success of this venture no doubt is due to the strong work ethic, fairness, honesty, and talent of the very dedicated Ferguson family"; and

WHEREAS, Doug Ferguson passed away on January 14, 2007, but he shall never be forgotten by the citizens of Emerson; and

WHEREAS, it is only proper that Doug Ferguson be honored for his life well lived and that a permanent monument in his memory be established.

PART IX WHEREAS, David Paul (Bubba) Land was born on February 11, 1971, the fine son of Paul and Linda Land, brother to Shelly, and proud father of Taylor; and

WHEREAS, David realized his dream of being a police officer when, in March of 1990, he became an Atlanta police officer; and

WHEREAS, in 1992, he went to work for the Stone Mountain Police Department where he worked as an officer until being hired by the Forsyth County Sheriffs Office in December of 1997; and

WHEREAS, while working with the Forsyth County Sheriffs Office, David met Paula Shapiro, who was also working as a deputy with the Sheriffs Office, and in July of 2002, David and Paula were married in a storybook wedding at Walt Disney World in Orlando, Florida; and

WHEREAS, on March 24, 2003, David was promoted to the rank of Sergeant and returned to the uniform patrol; and

WHEREAS, on March 26, 2003, at approximately 1600 hours, Sgt. Land responded to a call for service regarding a fight in progress and as he was traveling west on Highway 20 (Buford Highway) on his motorcycle with lights and siren activated, a motorist turned left into his path and he was thrown from the motorcycle and received fatal injuries; and

WHEREAS, in May of2004, Sgt. Land was placed on the Police Officer's Memorial Wall in Washington, D.C., by his family, friends, and brothers and sisters of the Forsyth County Sheriffs Office; and

WHEREAS, in December of 2007, David's brothers and sisters of the Fraternal Order of Police Lanier Lodge #82 voted and changed the lodge name to the Sgt. D.P. Land Memorial Lodge #82 in memory of David who served his community and was a friend to all; and

GEORGIA LAWS 2009 SESSION

841

WHEREAS, Sgt. Land paid the ultimate sacrifice by giving his life in the performance ofhis duties in the career that he loved, and it is only fitting that a lasting memorial to honor his memory be established.

PART IX-A WHEREAS, Tom Buck was born on March 2, 1938, and was educated in the public schools of Columbus, Georgia; and

WHEREAS, his distinguished career included serving 19 consecutive terms of office in the Georgia House of Representatives; and

WHEREAS, he provided stellar leadership as Chairman of the House Committee on Retirement, the House Committee on the University System, the House Committee on Ways and Means, and the House Committee on Appropriations; and

WHEREAS, his expertise on the state budget, developed over years of tireless service as a House budget conferee, and his prodigious knowledge of tax law and policy were invaluable in developing responsible fiscal policies in times ofprosperity and times ofhard choices; and

WHEREAS, as Chairman ofthe Muscogee House Delegation, he was always attentive to the needs of his community; and

WHEREAS, he has been generous with his time and energy for community endeavors, serving on the board of trustees for the Columbus State University Foundation, St. Francis Hospital, and the Columbus River Center for the Performing Arts; and

WHEREAS, his dedication, insight, and tenacity are attributes that have made him an exemplary public servant.

PART IX-B WHEREAS, the State of Georgia mourns the loss of one of its most distinguished citizens with the untimely passing of Honorable Jack Hays Morgan, Sr., on March 3, 2009; and

WHEREAS, Mr. Morgan was born in 1919 inNewton County, Georgia, and was known as an intelligent, fair minded, and dedicated community leader and entrepreneur; and

WHEREAS, as a young man, Mr. Morgan worked several odd jobs including picking peaches, working at a bus station snack bar, and delivering bread for a bakery, before he entered the Navy to serve as a guardian of this nation's freedom and liberty; and

842

GENERAL ACTS AND RESOLUTIONS, VOL. I

WHEREAS, upon his return home from the service, Mr. Morgan entered the agricultural field as a pulpwood cutter and was instrumental in the post-War World II development of Newton County, opening the county's first pulpwood yard, Morgan Timber Company, and later founding the area's first grading and paving services with Morgan Concrete Company; and

WHEREAS, over the years, Mr. Morgan expanded his business and agricultural ventures to include cotton and dairy farming, raising cattle, harvesting peaches and soybeans, and many real estate and development projects; and

WHEREAS, Mr. Morgan's interest in politics and public service began in 1961 when he was elected to the Georgia House of Representatives, and he continued to serve as a state and community leader as Newton County Commission Chairman; and

WHEREAS, during his eight-year tenure as chairman, Mr. Morgan oversaw the paving of 142 miles of county roads and the start of the county's first ambulance service, garbage collections, and landfill; and

WHEREAS, he was a devoted man of faith and civic leader as an active member of Covington's First United Methodist Church and the Georgia Rural Development Authority; and

WHEREAS, Mr. Morgan was united in love and marriage to Barbara Davis and was blessed with eight remarkable children; and

WHEREAS, Mr. Morgan will long be remembered for his love of family and friendship, and this loyal husband, father, neighbor, and friend will be missed by all who had the great fortune of knowing him.

PART IX-C WHEREAS, the State of Georgia mourns the loss of one of its most distinguished citizens with the passing of Mr. Lamar B. Hays on March 4, 2009; and

WHEREAS, Mr. Hays was born in 1936, in Newton County, Georgia, a beloved son of the late Lee and Sarah Byrd Hays; and

WHEREAS, Mr. Hays served as a guardian of the nation's freedom and liberty with the Air National Guard and was a member of the Woodmen of the World; and

GEORGIA LAWS 2009 SESSION

843

WHEREAS, dedicated to improving his community and the lives of his neighbors, Mr. Hays served as chief of the Mansfield Volunteer Fire Department and served on the City Council of Mansfield for many years; and

WHEREAS, Mr. Hays was the owner of Hays Tractor of Mansfield and enjoyed spending his free time in nature, fishing and gardening; and

WHEREAS, Mr. Hays was united in love and marriage for 47 years to his adoring wife Carrie Henderson Hays, and he was surrounded by loving families of his daughters Susan, Sandra, and Sheila, which included his six grandchildren; and

WHEREAS, this distinguished Georgian gave inspiration to many through his high ideals, morals, and deep concern for his fellow citizens and he possessed the vast wisdom which only comes through experience and the strength of character which is achieved through overcoming the many challenges of life; and

WHEREAS, he was a person of magnanimous strengths with an unimpeachable reputation for integrity, intelligence, fairness, and kindness and, by the example he made of his life, he made this world a better place in which to live; and

WHEREAS, Mr. Hays will long be remembered for his love of family and friendship, and this loyal father, grandfather, husband, and friend will be missed by all who had the great fortune of knowing him.

PART IX-D WHEREAS, Jeffrey Steven Blanton was born on November 4, 1981, at Cobb County Hospital in Marietta, Georgia; and

WHEREAS, in 1992, when Jeffrey was 11, he moved with his family to Senoia, Georgia, in Coweta County; and

WHEREAS, from the ages of 11 through 16, Jeffrey played baseball in the Senoia Recreation Department league; and

WHEREAS, in his seventh and eighth grade years he played football for East Coweta Middle School; and

WHEREAS, at the age of 15 he gave his life to God, was baptized, and became a member of Starr's Mill Baptist Church in Fayetteville, Georgia; and

844

GENERAL ACTS AND RESOLUTIONS, VOL. I

WHEREAS, Jeffrey's Jove ofbaseball continued from the ages of I6 through I9 as an umpire for the Senoia Recreation Department league; and

WHEREAS, during his junior year in high school he joined the Vocational Opportunities Club ofAmerica, and in I999 he won first place for the East Coweta High School math team at a competition at St. Simons Island; and

WHEREAS, at an early age of 16 he showed a real interest in joining the military and joined the R.O.T.C. in his junior year and stayed until his senior year; and

WHEREAS, Jeffrey's hobbies included hunting and fishing and he loved to fish for trout and hunt for deer; and

WHEREAS, he graduated from Marietta High School in June, 200I, and after the disasters on September II, 200 I, he made the decision to enlist in the Marines so he could fight the war on terrorism for his country; and

WHEREAS, he enlisted in November, 200I, and in March, 2002, he left for Parris Island for 13 weeks of boot camp, and afterwards he was sent to Camp Lejeune in North Carolina for infantry training; and

WHEREAS, when he completed his training he was stationed in Hawaii where he received more extensive training and was able to travel to places like Japan and Afghanistan; and

WHEREAS, while in Hawaii, Jeffrey met and married an Army paralegal on February 29, 2004; and

WHEREAS, in June, 2004, he was deployed to Iraq where he served until he was shot in the foot and lost three of his toes, for which he received a Purple Heart and was offered an honorable discharge; but he decided he would stay in the Marines and that his place was with his men. He went back on duty on December II and was killed during sweep missions on December I2, 2004; and

WHEREAS, on December 20, 2004, Jeffrey was laid to rest at Marietta National Cemetery; and

WHEREAS, LCPL Jeffrey Blanton loved and served his country with great pride, and his loyalty and service should always be remembered for generations to come.

GEORGIA LAWS 2009 SESSION

845

PART IX-E WHEREAS, Edith C. Fulgham was a retired nutritionist with the Lanier County School System; and

WHEREAS, she cared for her own children as well as all of the school children in Lanier County; and

WHEREAS, she was beloved by everyone that had the opportunity to spend time with her; and

WHEREAS, it is only fitting and proper that a lasting memorial to this fine lady be established in Lanier County.

PART X NOW, THEREFORE, BE IT RESOLVED BY THE GENERAL ASSEMBLY OF GEORGIA that the interchange at US 78 and Killian Hill Road, in Gwinnett County, be dedicated as the CPL Jonathan Ryan Ayers Memorial Interchange.

BE IT FURTHER RESOLVED that the new bridge in Henry County over Big Cotton Creek be dedicated as the Dave S. Miller Memorial Bridge.

BE IT FURTHER RESOLVED that the bridge on SR 155 at Little Cotton Indian Creek be dedicated as the William R. and Mamie Steele Cook Memorial Bridge.

BE IT FURTHER RESOLVED that the portion of U.S. Highway 84, in Decatur County, Georgia, from the Grady County line west to the traffic light at Whigham Dairy Road, within the limits of the Wiregrass Georgia Parkway, be dedicated as the Bobby Walden Highway.

BE IT FURTHER RESOLVED that the interchange at Interstate Highway 85 and St. Mary's Road in Muscogee County be dedicated as the George W. Ford, Jr. Interchange.

BE IT FURTHER RESOLVED that the bridge in Glynn County over Fancy Bluff Creek on SR 520/SR 25 at milepost 14.75 be dedicated as the Edward A. Logan Memorial Bridge.

BE IT FURTHER RESOLVED that the interchange at GA 400 and SR 20 in Forsyth County be dedicated as the Judge Richard S. (Stan) Gault Memorial Interchange.

BE IT FURTHER RESOLVED that the bridge being erected over Hwy 41, in Emerson, Georgia, be dedicated as the Doug Ferguson Memorial Bridge.

846

GENERAL ACTS AND RESOLUTIONS, VOL. I

BE IT FURTHER RESOLVED that the bridge on SR 20 over Haw Creek in Forsyth County, Georgia, be dedicated as the Sgt. D.P. Land Memorial Bridge.

BE IT FURTHER RESOLVED that the portion of SR 22 Spur from US 27 (Veterans Parkway) to Brown Avenue in Muscogee County, Georgia, be dedicated as the Tom Buck Parkway.

BE IT FURTHER RESOLVED that the portion of US 278 in Newton County from its intersection with Martin Luther King, Jr., Drive to its intersection with GA 142 be dedicated as the Jack and Davis Morgan Memorial Highway.

BE IT FURTHER RESOLVED that the portion of GA Hwy II inside the city limits of Mansfield, Georgia, be dedicated as the Lamar B. Hays Memorial Parkway.

BE IT FURTHER RESOLVED that the portion of SR 85 from the Fayette/Coweta County line to the Meriwether County line be dedicated as the Jeffrey Steven Blanton Memorial Highway.

BE IT FURTHER RESOLVED that the bridge on SR 135 over Big Creek in Lanier County be dedicated as the Edith C. Fulgham Memorial Bridge.

BE IT FURTHER RESOLVED that the Department of Transportation is authorized and directed to erect and maintain appropriate signs dedicating the road facilities named in this resolution.

BE IT FURTHER RESOLVED that the Clerk of the House of Representatives is authorized and directed to transmit appropriate copies of this resolution to the Department of Transportation, to the family of Corporal Jonathan Ryan Ayers, to the family of Dave S. Miller, to the family of William R. and Mamie Steele Cook, to Robert Earl (Bobby) Walden, to the family of George W. Ford, Jr., to the family of Edward A. Logan, to the family of Richard S. (Stan) Gault, to the family of Doug Ferguson, to the family of Sgt. D. P. Land, to Tom Buck, to the family of Jack Hays Morgan, Sr., to the family of Davis Morgan, to the family of Lamar B. Hays, to the family of Jeffrey Steven Blanton, and to the family of Edith C. Fulgham.

Approved May 5, 2009.

GEORGIA LAWS 2009 SESSION

847

COURTS- CORDELE JUDICIAL CIRCUIT; TERMS.

No. 210 (House Bill No. 216).

AN ACT

To amend Code Section 15-6-3 of the Official Code of Georgia Annotated, relating to terms of superior court, so as to change certain terms of court in the Cordele Judicial Circuit; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Code Section 15-6-3 of the Official Code of Georgia Annotated, relating to terms of superior court, is amended by revising paragraph (13) as follows:
"(13) CORDELE CIRCUIT: (A) Ben Hill County- Second and third Mondays in January; first, second, and third Mondays in April; third and fourth Mondays in June; and third and fourth Mondays in September and Monday following. (B) Crisp County- Third and fourth Mondays in February and Monday following; third and fourth Mondays in May; first, second, and third Mondays in August; and second and third Mondays in November. (C) Dooly County- First and second Mondays in February; fourth Monday in April and Monday following; third and fourth Mondays in July; and third and fourth Mondays in October. (D) Wilcox County- Second and third Mondays in March; fourth Monday in August and Monday following; and first and second Mondays in December.'

SECTION 2. This Act shall become effective on January 1, 2010.

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 6, 2009.

848

GENERAL ACTS AND RESOLUTIONS, VOL. I

AVIATION- HIGHWAYS - STATE GOVERNMENTGEORGIA AVIATION AUTHORITY ACT; REPEAL AIR TRANSPORTATION ACT.

No. 240 (Senate Bill No. 85).

AN ACT

To amend Title 6 of the Official Code of Georgia Annotated, relating to aviation, so as to create the Georgia Aviation Authority; to provide for a short title and definitions; to provide for the membership, governance, operation, powers, duties, and administrative attachment of the authority; to provide that the general purpose of the authority shall be to acquire, operate, maintain, house, and dispose of all state aviation assets; to provide for the transfer of certain employees for administrative purposes only; to provide for other matters related to the authority and its creation; to provide for audits of the authority; to provide for an exemption from taxes; to provide for automatic repeal of the authority; to amend Code Section 32-2-2 of the Official Code of Georgia Annotated, relating to powers and duties of the Department of Transportation, so as to remove provisions relative to the authority ofthat department with respect to state aircraft; to amend Chapter 19 ofTitle 50 ofthe Official Code of Georgia Annotated, relating to state government transportation services, so as to repeal Article 2, the "Air Transportation Act," relating to the powers and duties of the Department of Transportation with respect to state air transportation; to provide for other related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Title 6 ofthe Official Code of Georgia Annotated, relating to aviation, is amended by adding a new chapter to read as follows:

'CHAPTER 5

6-5-l. This chapter shall be known and may be cited as the 'Georgia Aviation Authority Act.'

6-5-2. As used in this chapter, the term:
(l) 'Authority' means the Georgia Aviation Authority. (2) 'State aircraft' means any aircraft, including equipment, owned, leased, rented, chartered, or otherwise obtained by the authority.

GEORGIA LAWS 2009 SESSION

849

6-5-3. (a) There is created a body corporate and politic to be known as the Georgia Aviation Authority which shall be deemed to be an instrumentality of the state and a public corporation, and by that name, style, and title the body may contract and be contracted with, implead and be impleaded, and bring and defend actions in all courts. The authority shall consist of the Governor or his or her designee, the Lieutenant Governor or his or her designee, the Speaker of the House of Representatives or his or her designee, the commissioner of transportation, the commissioner of public safety, the commissioner of natural resources, the director ofthe State Forestry Commission, and two persons from the aviation business community with one such member of the aviation business community to be appointed by the Speaker ofthe House ofRepresentatives, and the other such member of the aviation business community to be appointed by the President of the Senate. The chairperson of the authority shall be a member of the authority elected for a two-year term by a majority vote of the members of the authority. A chairperson may not serve more than two consecutive terms as chairperson. The authority shall make rules and regulations for its own governance. It shall have perpetual existence. (b) The authority is assigned to the Department of Administrative Services for administrative purposes only as prescribed in Code Section 50-4-3. (c) The authority may in its discretion employ an executive director and other personnel. The authority may also by agreement with any department or agency of state government make use of personnel of such department or agency. (d) The authority shall be subject to Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' (e) The authority may designate personnel positions employed by the authority as peace officers who shall be required by the terms of their employment to give their full time to the preservation of public order, the protection oflife and property, the detection of crime, and such other duties as may be specified by the authority. Personnel in such positions shall comply with the requirements of Chapter 8 of Title 35, the 'Georgia Peace Officer Standards and Training Act,' and shall have the power of arrest in the performance of their duties.

6-5-4. (a) The general purpose of the authority shall be to acquire, operate, maintain, house, and dispose of all state aviation assets, to provide aviation services and oversight of state aircraft and aviation operations to ensure the safety of state air travelers and aviation property, to achieve policy objectives through aviation missions, and to provide for the efficient operation of state aircraft. All aircraft owned or operated as of July 1, 2009, or a later date determined by the Governor, by any other entity of state government shall be transferred on that date to the custody and control of the authority; provided, however, that this chapter shall have no application to aircraft owned or operated by the Department of Defense. On and after July 1, 2009, or a later date determined by the Governor, no other

850

GENERAL ACTS AND RESOLUTIONS, VOL. I

entity of state government shall acquire, lease, or charter any aircraft other than through the authority. Any person who is employed by an entity of state government as a pilot and who is required by the terms of his or her employment to comply with the requirements of Chapter 8 of Title 35, the 'Georgia Peace Officer Standards and Training Act,' shall remain in the employment of the employing agency but shall be transferred for administrative purposes only to the authority on July 1, 2009, in compliance with subsection (c) of Code Section 6-5-3. All state aircraft required for the proper conduct of the business of the several administrative departments, boards, bureaus, commissions, authorities, offices, or other agencies of Georgia and authorized agents of the General Assembly, or either branch thereof, and department owned airfields and their appurtenances shall be managed and maintained by the authority. The cost for the use of such state aircraft shall be charged by the authority to the using state entity. The amount of such charge shall be determined by the authority. The authority shall be authorized to dispose of any state aircraft and apply the proceeds derived therefrom to the purchase of replacement aviation assets. (b) In the furtherance of its purpose, the authority shall have the power to:
(1) Organize, staff, train personnel to operate, maintain, house, purchase, and dispose of aviation assets; (2) Purchase, maintain, develop, and modify facilities to support aviation assets and operations; (3) Develop operating, maintenance, safety, security, training, education, and scheduling standards for state aviation operations and conduct inspections, audits, and other similar oversight to determine practices and compliance with such standards; (4) Develop an accountability system for state aviation operations and activities; (5) Identify the costs associated with the purchase, operation, maintenance, and administration of state aircraft and aviation operations and related facilities, training, and education, develop an appropriate billing structure, and charge agencies and other state entities for the costs of state aircraft and aviation operations; provided, however, that any billing to an agency by the authority shall be suspended whenever the Governor declares a state of emergency on any cost associated with aircraft used during and in response to the state of emergency; (6) Retain appropriate external consulting and auditing expertise; (7) Engage aviation industry representatives to ensure best practices for state aviation assets; (8) Delegate certain powers pursuant to this chapter to other state entities; and (9) Otherwise implement appropriate and efficient management practices for state aviation operations. (c) The authority shall provide priority support for those state agencies and departments, including local and state public safety and law enforcement entities, whose operations require aviation operations. No state entity other than the authority shall be authorized to expend state funds to purchase, lease, rent, charter, maintain, or repair state aircraft to be

GEORGIA LAWS 2009 SESSION

851

used in connection with state business or to employ a person whose official duties consist of piloting state aircraft without the approval of the authority. (d) The funds and assets of the authority, as well as the performance of the authority, its services, and equipment, shall be audited annually by the state auditor. The initial audit shall be concluded no later than December 30, 2010. The results of such audit shall be open to inspection at reasonable times by any person. A copy of the audit report shall be sent to the state accounting officer. The authority shall also provide the Governor, the Speaker ofthe House, the President ofthe Senate, the chairperson of the House Committee on Public Safety and Homeland Security, the chairperson of the Senate Public Safety Committee, the chairperson of the Senate Veterans, Military and Homeland Security Committee, the chairperson of the House Committee on Transportation, and the chairperson of the Senate Transportation Committee with a copy of the state audit report which shall include a full report of the activities and services of the authority. The performance audit report shall be provided no later than December 31, 2013.

6-5-5. In addition to the powers specified in Code Section 6-5-4, the authority shall have the powers:
(1) To have a seal and alter the same at its pleasure; (2) To acquire by purchase, lease, or otherwise and to hold, lease, and dispose of real and personal property of every kind and character for its corporate purposes; (3) To acquire in its own name by purchase, on such terms and conditions and in such manner as it may deem proper real property or rights of easements therein or franchises necessary or convenient for its corporate purposes and to use the same so long as its corporate existence shall continue and to lease or make contracts with respect to the use of or disposal of the same in any manner it deems to the best advantage of the authority. No property shall be acquired under this chapter upon which any lien or other encumbrance exists unless at the time such property is so acquired a sufficient sum of money is deposited in trust to pay and redeem the fair value of the lien or encumbrance; and if the authority shall deem it expedient to construct any project on lands which are a part ofthe real estate holdings ofthe state, the Governor is authorized to execute for and on behalf of the state a lease of the lands to the authority for such parcel or parcels as shall be needed for a period not to exceed 50 years. If the authority shall deem it expedient to construct any project on any other lands the title to which shall then be in the state, the Governor is authorized to convey, for and in behalf of the state, title to such lands to the authority; (4) To appoint and select officers, agents, and employees, including pilots, maintenance workers, engineering, architectural, aviation, and construction experts, fiscal agents, and attorneys, and fix their compensation and otherwise adopt policies that establish a system of sound personnel management;

852

GENERAL ACTS AND RESOLUTIONS, VOL. I

(5) To make contracts and leases and to execute all instruments necessary or convenient, including contracts for construction of projects and leases of projects or contracts with respect to the use of projects which it causes to be erected or acquired; and any and all political subdivisions, departments, institutions, or agencies ofthe state are authorized to enter into contracts, leases, or agreements with the authority upon such terms and for such purposes as they deem advisable. Without limiting the generality ofthe above, authority is specifically granted to any department, board, commission, or agency of the state to enter into contracts and lease agreements for the use or concerning the use of any structure, building, or facilities or a combination ofany two or more structures, buildings, or facilities ofthe authority for a term not exceeding 50 years; and any department, board, commission, or agency of the state may obligate itself to pay an agreed sum for the use of the property so leased and also to obligate itself as part of the lease contract to pay the cost of maintaining, repairing, and operating the property leased from the authority; (6) To accept loans or grants of money or materials or property of any kind from the United States or any agency or instrumentality thereof upon such terms and conditions as the United States or the agency or instrumentality may impose; (7) To exercise any power usually possessed by private corporations performing similar functions, which is not in conflict with the Constitution and laws of this state; and (8) To do all things necessary or convenient to carry out the powers expressly given in this chapter.

6-5-6. All moneys received pursuant to the authority of this chapter shall be deemed trust funds to be held and applied solely as provided in this chapter.

6-5-7. (a) It is found, determined, and declared that the creation of the authority and the carrying out of its corporate purpose are in all respects for the benefit of the people of this state and are a public purpose and the authority will be performing an essential governmental function in the exercise of the power conferred upon it by this chapter. (b) In order to ensure that addressing emergency law enforcement needs is the authority's first priority, the authority, in coordination with the Board of Public Safety, shall adopt policies and procedures to ensure that responding to emergencies, imminent threats to individual and public safety, natural disasters, or other emergency law enforcement needs is met. The authority shall be exempt from all sales and use tax on property purchased, leased, or used by the authority.

6-5-8. Any action to protect or enforce any rights under this chapter shall be brought in the Superior Court of Fulton County.

GEORGIA LAWS 2009 SESSION

853

6-5-9. This chapter, being for the welfare of the state and its inhabitants, shall be liberally construed to effect the purposes hereof.

6-5-10. This chapter shall stand repealed on July I, 2014, unless it is further extended by an Act of the General Assembly.'

SECTION 2. Code Section 32-2-2 of the Official Code of Georgia Annotated, relating to powers and duties of the Department of Transportation, is amended by revising paragraph (16) of subsection (a) as follows:
'(16) Reserved;'

SECTION 3. Chapter 19 of Title 50 of the Official Code of Georgia Annotated, relating to state government transportation services, is amended by repealing and reserving Article 2 as follows:

'ARTICLE 2 RESERVED'

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved May 7, 2009.

EDUCATION- MILITARY DEPENDENTS; TRANSFER; PLACEMENT; ENROLLMENT.
No. 241 (Senate Bill No. 114).
AN ACT
To amend Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to elementary and secondary education, so as to define certain terms; to provide for applicability; to provide for the transfer of students who are military dependents into a local school system; to provide for placement; to provide for a waiver of course prerequisites; to

854

GENERAL ACTS AND RESOLUTIONS, VOL. I

provide for additional excused absences for certain students; to provide for eligibility for enrollment; to provide for on-time graduation; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to elementary and secondary education, is amended by adding a new article to read as follows:

'ARTICLE 34 Part 1

20-2-2130. As used in this article, the term:
(I) 'Active duty' means full-time duty status in the active uniformed services of the United States, including members of the National Guard and Reserve on active duty orders pursuant to 10 U.S.C. Sections 1209 and 1211. (2) 'Child of military families' means a school-aged child, enrolled in kindergarten through grade 12, in the household of an active duty member. (3) 'Deployment' means the period one month prior to the service members' departure from their home station on military orders though six months after return to their home station. (4) 'Educational records' means those official records, files, and data directly related to a student and maintained by the school or local education agency, including but not limited to records encompassing all the material kept in the student's cumulative folder such as general identifying data, records of attendance and of academic work completed, records ofachievement and results ofevaluative tests, health data, disciplinary status, test protocols, and individualized education programs. (5) 'Extracurricular activities' means a voluntary activity sponsored by the school or local education agency or an organization sanctioned by the local education agency. Extracurricular activities include, but are not limited to, preparation for and involvement in public performances, contests, athletic competitions, demonstrations, displays, and club activities. (6) 'Local education agency' means a public authority legally constituted by the state as an administrative agency to provide control of and direction for kindergarten through grade 12 public educational institutions. (7) 'Sending state' means the member state from which a child of a military family is sent, brought, or caused to be sent or brought.

GEORGIA LAWS 2009 SESSION

855

(8) 'State' means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa, the Northern Marianas Islands, and any other United States territory. (9) 'Student' means the child of a military family for whom the local education agency receives public funding and who is formally enrolled in kindergarten through grade 12. (10) 'Transition' means:
(A) The formal and physical process of transferring from school to school; or (B) The period of time in which a student moves from one school in the sending state to another school in the receiving state. (11) 'Uniformed services' means the Army, Navy, Air Force, Marine Corps, Coast Guard, Commissioned Corps of the National Oceanic and Atmospheric Administration, and Public Health Services. (12) 'Veteran' means a person who served in the uniformed services and who was discharged or released therefrom under conditions other than dishonorable.

20-2-2131. (a) Except as otherwise provided in subsection (b) of this Code section, this article shall apply to the children of:
(1) Active duty members of the uniformed services as defined in Code Section 20-2-2130, including members of theNational Guard and Reserve on active duty orders pursuant to 10 U.S.C. Sections 1209 and 1211; (2) Members or veterans of the uniformed services who are severely injured and medically discharged or retired for a period of one year after medical discharge or retirement; and (3) Members of the uniformed services who die on active duty or as a result of injuries sustained on active duty for a period of one year after death. (b) The provisions of this article shall not apply to the children of: (1) Inactive members of the national guard and military reserves; (2) Members of the uniformed services now retired, except as provided in subsection (a) of this Code section; (3) Veterans of the uniformed services, except as provided in subsection (a) of this Code section; and (4) Other United States Department of Defense personnel and other federal agency civilian and contract employees not defined as active duty members of the uniformed services.

Part 2

20-2-2140. In the event that official education records cannot be released to the parents or legal guardian for the purpose of transfer, a local school system shall accept a complete set of

856

GENERAL ACTS AND RESOLUTIONS, VOL. I

unofficial educational records prepared by the sending school and furnished to the parent or legal guardian. Upon receipt of such unofficial education records, the local school system shall enroll and appropriately place the student based on the information provided in the unofficial records pending validation by the official records, as quickly as possible. Simultaneously with the enrollment and conditional placement of the student, the local school system shall request the student's official education record from the school in the sending state.

20-2-2141. Local school systems shall give 30 days from the date of enrollment for students to obtain any immunization required by the receiving state. For a series of immunizations, initial vaccinations must be obtained within 30 days.

Part 3

20-2-2150. Students shall be allowed to continue their enrollment at grade level in the local school system commensurate with their grade level, including kindergarten, from a local education agency in the sending state at the time of transition, regardless of age. A student who has satisfactorily completed the prerequisite grade level in the local education agency in the sending state shall be eligible for enrollment in the next highest grade level in the receiving state, regardless of age. A student transferring after the start of the school year in the receiving state shall enter the school in the receiving state on their validated level from an accredited school in the sending state.

20-2-2151. When the student transfers before or during the school year, the local school system shall initially honor placement of the student in educational courses based on the student's enrollment in the sending state school or educational assessments conducted at the school in the sending state, ifthe courses are offered. Course placement includes but is not limited to honors, international baccalaureate, advanced placement, vocational, technical, and career pathways courses. Continuing the student's academic program from the previous school and promoting placement in academically and career challenging courses should be paramount when considering placement. Nothing in this Code section shall preclude the local school system from performing subsequent evaluations to ensure appropriate placement and continued enrollment of the student in any course.

20-2-2152. The local school system shall initially honor placement of the student in educational programs based on current educational assessments conducted at the school in the sending

GEORGIA LAWS 2009 SESSION

857

state or participation or placement in similar programs in the sending state. Such programs include, but are not limited to:
(1) Gifted and talented programs; and (2) English as a second language. Nothing in this Code section shall preclude the school in the recelVlng state from performing subsequent evaluations to ensure appropriate placement of the student.

20-2-2153. Local school systems shall have flexibility in waiving course or program prerequisites or other preconditions for placement in courses and programs offered by the local school system.

20-2-2154. A local school system may grant additional excused absences to a student whose parent or legal guardian is an active duty member of the uniformed services and has been called to duty for, is on leave from, or immediately returned from deployment to a combat zone or combat support posting, so that such student may visit with his or her parent or legal guardian relative to such leave or deployment of the parent or guardian.

Part 4

20-2-2160. (a) Special power of attorney, relative to the guardianship of a child of a military family and executed under applicable law, shall be sufficient for the purposes of enrollment and all other actions requiring parental participation and consent. (b) A local school system shall be prohibited from charging local tuition to a transitioning military child placed in the care of a noncustodial parent or other person standing in loco parentis who lives in a jurisdiction other than that of the custodial parent. (c) A transitioning military child, placed in the care of a noncustodial parent or other person standing in loco parentis who lives in a jurisdiction other than that of the custodial parent, may continue to attend the school in which he or she was enrolled while residing with the custodial parent.

20-2-2161. Local school systems shall facilitate the opportunity for transitioning military children's inclusion in extracurricular activities, regardless ofapplication deadlines, to the extent they are otherwise qualified.

858

GENERAL ACTS AND RESOLUTIONS, VOL. I

Part 5

20-2-2170. In order to facilitate the on-time graduation ofchildren ofmilitary families, states and local school systems shall incorporate the following procedures:
(1) Local school systems shall waive specific courses required for graduation if similar course work has been satisfactorily completed in another local education agency or shall provide reasonable justification for denial. Should a waiver not be granted to a student who would qualify to graduate from the sending school, the local school system shall provide an alternative means of acquiring required course work so that graduation may occur on time; (2) Local school systems shall accept exit or end-of-course exams required for graduation from the sending state, national norm-referenced achievement tests, or alternative testing in lieu of testing requirements for graduation in this state; and (3) Should a military student transferring at the beginning or during his or her senior year be ineligible to graduate from the receiving local education agency after all alternatives have been considered, the local school system shall coordinate with the sending local education agency to ensure the receipt of a diploma.'

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved May 7, 2009.

EDUCATION -HOPE SCHOLARSHIP; MILITARY CHILDREN; RESIDENCY.
No. 242 (House Bill No. 484).
AN ACT
To amend Part 7 of Article 7 of Chapter 3 of Title 20 of the Official Code of Georgia Annotated, relating to HOPE scholarships and grants, so as to provide that dependent children of military personnel stationed in Georgia on active duty shall be deemed to meet the residency requirements for purposes of HOPE scholarships and grants; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

GEORGIA LAWS 2009 SESSION

859

SECTION 1. Part 7 of Article 7 of Chapter 3 of Title 20 of the Official Code of Georgia Annotated, relating to HOPE scholarships and grants, is amended in Code Section 20-3-519.2, relating to eligibility requirements for a HOPE scholarship at a public postsecondary institution, by adding a new subsection to read as follows:
'(i) A dependent child of military personnel stationed in Georgia on active duty shall be deemed to meet the residency requirements ofparagraph (I) of subsections (a), (b), (c), and (d) of this Code section.'

SECTION 2. Said part is further amended in Code Section 20-3-519.3, relating to eligibility requirements for a HOPE scholarship at a private postsecondary institution, by adding a new subsection to read as follows:
'(h) A dependent child of military personnel stationed in Georgia on active duty shall be deemed to meet the residency requirements ofparagraph ( 1) of subsections (a), (b), (c), and (d) of this Code section.'

SECTION 3. Said part is further amended in Code Section 20-3-519.5, relating to eligibility requirements for a HOPE grant at a branch of the Technical College System of Georgia, by adding a new subsection to read as follows:
'(g) A dependent child of military personnel stationed in Georgia on active duty shall be deemed to meet the residency requirements of paragraph (1) of subsection (a) of this Code section.'

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved May 7, 2009.

PROFESSIONS -GEORGIA COMPOSITE MEDICAL BOARD.
No. 243 (House Bill No. 509).
AN ACT
To amend Title 43 of the Official Code of Georgia Annotated, relating to professions and businesses, so as to change provisions relating to the regulation of physicians, acupuncture,

860

GENERAL ACTS AND RESOLUTIONS, VOL. I

physician's assistants, cancer and glaucoma treatment, respiratory care, clinical perfusionists, and orthotics and prosthetics practice; to provide for comprehensive revision to the regulation of such professions; to provide for definitions; to establish the Georgia Composite Medical Board to regulate physicians, acupuncturists, physician assistants, cancer and glaucoma treatment, respiratory care practice, clinical perfusionists, orthotics and prosthetics, and cosmetic laser services; to provide for the process of selection and removal to and from the board; to provide for the powers and duties of the board; to provide for the requirement of an oath of office for board members; to provide for the election of officers of the board; to provide for allowances for the board members; to provide for a chairperson of the board; to provide for powers and duties of the chairperson; to provide for peer review of certain medical professionals; to require individuals regulated under Chapter 34 of said title to notify the board upon the conviction of a felony; to provide for the suspension and reinstatement under certain circumstances of a license, permit, or certificate granted under Chapter 34; to provide for the renewal of a license, permit, or certificate granted under Chapter 34; to provide for a short title; to provide that a license is required to practice medicine; to provide for certain standards, conditions, and requirements to practice medicine; to provide for the delegation of certain duties from physicians to nurses or physician assistants; to provide penalties for practicing medicine without a license; to provide for the delegation of tasks involving polysomnography; to require a license to practice acupuncture; to provide certain standards, conditions, and requirements to practice acupuncture; to provide for a penalty for practicing acupuncture without a license; to require a license to act as a physician assistant; to provide certain standards, conditions, and requirements prior to licensure as a physician assistant; to provide for certain responsibilities for physician assistants; to provide for the review of physician assistants; to require certification to practice respiratory care; to provide certain standards, conditions, and requirements prior to certification as a respiratory therapist; to provide a penalty for practicing respiratory care without certification; to require a license to act as a clinical perfusionist; to provide for a temporary license to act as a clinical perfusionist; to provide for certain standards, conditions, and requirements prior to licensure as a clinical perfusionist; to provide a penalty for acting as a clinical perfusionist without a license; to require a license to practice orthotics and prosthetics; to provide for certain standards, conditions, and requirements prior to licensure to practice orthotics and prosthetics; to provide for a penalty for practicing orthotics and prosthetics without a license; to revise laws relating to cosmetic laser services; to amend various other titles of the Official Code of Georgia Annotated for purposes of conformity; to provide that a physician assistant can make a pronouncement of death under certain circumstances for purposes of vital records; to provide for related matters; to provide for a contingency and effective dates; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

GEORGIA LAWS 2009 SESSION

861

SECTION 1. Title 43 of the Official Code of Georgia Annotated, relating to professions and businesses is amended by revising Chapter 34 as follows:

"CHAPTER 34 ARTICLE 1

43-34-1. As used in this chapter, the term:
(1) 'Board' means the Georgia Composite Medical Board. (2) 'Physician' means a person licensed to practice medicine pursuant to Article 2 of this chapter. (3) 'To practice medicine,' 'the practice of medicine,' or 'practicing medicine' shall have the same meaning as in paragraph (3) of Code Section 43-34-21.

43-34-2. (a) A board is established to be known as the Georgia Composite Medical Board. The board shall be composed of 15 members, all of whom shalt be citizens of the United States and residents of this state. All appointments to the board shall be made by the Governor and confirmed by the Senate. (b) Thirteen of the members shall be actively practicing physicians of integrity and ability and shall hold unrestricted licenses to practice medicine in this state. Eleven of the 13 physician members shall be graduates of reputable medical schools conferring the M.D. degree; the other two physician members shall be graduates of reputable osteopathic medical schools conferring the D.O. degree. All of the physician members shall have been engaged in the active practice of their profession within this state for a period of at least five years prior to their appointment. Any vacancy occurring in a post held by a holder of the D.O. degree shall be filled by a D.O. and any vacancy occurring in a post held by an M.D. degree shall be filled by an M.D. (c) The fourteenth and fifteenth members of the board shall have no connection whatsoever with the practice of medicine and may vote only on matters relating to administration and policy which do not directly relate to practical and scientific examination of physicians in this state. (d) Any member of the board may be removed from his or her position and generate an open position on the board:
(1) By a majority vote of the members of the board if a member of the board misses three or more consecutive meetings or misses more than one-third of all meetings including meetings conducted by teleconference, without a valid medical reason or reasons deemed excusable, which removal shall not be effective unless approved by the Governor; or (2) By the Governor if the board member:
(A) Has willfully neglected his or her duty as a board member;

862

GENERAL ACTS AND RESOLUTIONS, VOL. I

(B) Has been convicted of a crime involving moral turpitude; (C) Has been convicted of a felony; (D) Is no longer in the active practice of medicine, if a physician member; (E) Is no longer a resident of the State of Georgia; or (F) Has received any restriction of his or her medical license in Georgia or any other state, if a physician member. (e)( 1) The board shall appoint a Physician Assistants Advisory Committee composed of four physicians, at least two of whom shall be members of the board, and four licensed physician assistants, who shall each serve for terms of office of two years and until their successors are appointed and qualified. The committee shall review matters to come before the board which relate to physician assistants, including but not limited to applicants for physician assistant licensure and relicensure and education requirements therefor, and proposed board regulations concerning physician assistants. The committee shall periodically make recommendations to the board regarding matters reviewed. Each member of the advisory committee shall be entitled to the same expense allowances, mileage allowances, and reimbursement as members of the board as provided for in this chapter. (2) The committee shall appoint a physician assistant in an advisory capacity to the board. The advisory person shall serve at the pleasure of the committee as an ex officio adviser to the board in all matters relating to physician assistants and shall share in the privileges and benefits of the board without a vote. (f) The board shall review applicants' qualifications for licensure, certification, or permitting pursuant to this chapter. (g) The board shall have the authority to contract with medical associations or other professionally qualified organizations to conduct impaired physicians programs.

43-34-3. (a) The members of the Composite State Board of Medical Examiners, now known as the Georgia Composite Medical Board, in office on June 30,2009, shall continue to serve out their respective terms and until their respective successors are appointed and qualified. The two new board members added as of July 1, 2009, pursuant to Code Section 43-34-2 shall be appointed by the Governor to serve as members of the board for terms of office beginning on July 1, 2009. The terms of office of the two new members shall be for two years and three years, respectively, with the Governor to specify the initial term of office for each new member at the time of his or her appointment. Upon the expiration of such initial terms, successors to such members of the board whose terms of office expire shall serve for terms of four years each. (b) Terms of office of members of the board shall be four years. Members of the board shall serve for the terms specified and until their respective successors are appointed and qualified. All reappointments and new appointments shall be made so that the various geographic regions of the state shall be represented. Any vacancy that may occur in the

GEORGIA LAWS 2009 SESSION

863

board as a result of death, resignation, relocation from the state, or other cause shall be filled for the unexpired term in the same manner as regular appointments are made.

43-34-4. Immediately and before entering upon the duties of office, the members of the board shall take the constitutional oath of office and shall file the same in the office of the Governor, who, upon receiving the oath of office, shall issue to each member a certificate of appointment.

43-34-5. (a) The board shall meet and shall annually elect a chairperson and vice chairperson. Each member of the board may receive the expense allowance as provided by subsection (b) of Code Section 45-7-21 and the same mileage allowance for the use of a personal car as that received by other state officials and employees or a travel allowance of actual transportation cost if traveling by public carrier within the state. Each board member shall also be reimbursed for any conference or meeting registration fee incurred in the performance of his or her duties as a board member. For each day's service outside of the state as a board member, such member shall receive actual expenses as an expense allowance as well as the mileage allowance for the use of a personal car equal to that received by other state officials and employees or a travel allowance of actual transportation cost if traveling by public carrier or by rental motor vehicle. Expense vouchers submitted by board members are subject to approval of the chairperson and executive director. Out-of-state travel by board members must be approved by the board chairperson and the executive director. (b) The board shall hold regular meetings each month, unless in the discretion of the chairperson it is deemed unnecessary for a particular month. Called meetings may be held at the discretion of the chairperson. (c) The board shall have the following powers and duties:
(1) To adopt, amend, and repeal such rules and regulations in accordance with this chapter necessary for the proper administration and enforcement of this chapter; (2) To adopt a seal by which the board shall authenticate the acts of the board; (3) To establish a pool of qualified physicians to act as peer reviewers and expert witnesses and to appoint or contract with physicians professionally qualified by education and training, medical associations, or other professionally qualified organizations to serve as peer reviewers; provided, however, that no licensing, investigative, or disciplinary duties or functions of the board may be delegated to any medical association or related entity by contract or otherwise; (4) To employ a medical director and other staff to implement this chapter and provide necessary and appropriate support who shall be subject to the same confidentiality requirements of the board; (5) To keep a docket of public proceedings, actions, and filings;

864

GENERAL ACTS AND RESOLUTIONS, VOL. I

(6) To set its office hours; (7) To set all reasonable fees by adoption of a schedule of fees approved by the board. The board shall set such fees sufficient to cover costs of operation; (8) To establish rules regarding licensure and certification status, including but not limited to inactive status, as the board deems appropriate; (9) To issue, deny, or reinstate the licenses, certificates, or permits of duly qualified applicants for licensure, certification, or permits under this chapter; ( 10) To revoke, suspend, issue terms and conditions, place on probation, limit practice, fine, require additional medical training, require medical community service, or otherwise sanction licensees, certificate holders, or permit holders; ( 11) To renew licenses, certificates, and permits and set renewal and expiration dates and application and other deadlines; (12) To approve such examinations as are necessary to determine competency to practice under this chapter; (13) To set examination standards, approve examinations, and set passing score requirements; (14) To adopt necessary rules concerning proceedings, hearings, review hearings, actions, filings, depositions, and motions related to uncontested cases; (15) To initiate investigations for the purposes of discovering violations of this chapter; (16) To administer oaths, subpoena witnesses and documentary evidence including medical records, and take testimony in all matters relating to its duties; (17) To conduct hearings, reviews, and other proceedings according to Chapter 13 of Title 50; (18) To conduct investigative interviews; (19) To issue cease and desist orders to stop the unlicensed practice of medicine or other profession licensed, certified, or permitted under this chapter and impose penalties for such violations; (20) To request injunctive relief or refer cases for criminal prosecution to appropriate enforcement authorities; (21) To release investigative or applicant files to another enforcement agency or lawful licensing authority in another state; (22) To sue and be sued in a court of competent jurisdiction; and (23) To enter into contracts. (d) A license issued by the board shall not be limited or restricted to a particular medical specialty.

43-34-6. (a) The board shall not be under the jurisdiction of the Secretary of State but shall be an independent state agency attached to the Department of Community Health for administrative purposes only, as provided in Code Section 50-4-3, except that such department shall prepare and submit the budget for the board. The board shall have with

GEORGIA LAWS 2009 SESSION

865

respect to all matters within the jurisdiction of the board as provided under this chapter the powers, duties, and functions of professional licensing boards as provided in Chapter 1 of this title. (b) The board shall appoint and fix the compensation of an executive director of such board who shall serve at the pleasure of the board. Any reference in this chapter to the executive director shall mean the executive director appointed pursuant to this subsection. (c) Meetings and hearings of the board shall be held at the site of the office of the board or at such other site as may be specified by the chairperson of the board. A majority of the members ofthe board shall constitute a quorum for the transaction ofbusiness of the board. (d) Licenses, certificates, and permits issued by the board shall be subject to renewal and shall be valid for up to two years unless otherwise specified by this chapter and shall be renewable biennially on the renewal date established by the board. (e) The board, through the executive director, may hire investigators for the purpose of conducting investigations. Any person so employed shall be considered to be a peace officer and shall have all powers, duties, and status of a peace officer of this state; provided, however, that such investigators shall only be authorized, upon written approval of the executive director, notwithstanding Code Sections 16-11-126, 16-11-128, and 16-11-129, to carry firearms in the performance of their duties and exercise the powers of arrest in the performance of their duties. (f) The venue of any action involving members of the board shall be the county in which is found the primary office ofthe governmental entity of which the defendant is an officer. The executive director of the board shall not be considered a member of the board in determining the venue of any such action and no court shall have jurisdiction of any such action solely by virtue of the executive director residing or maintaining a residence within its jurisdiction. (g) The board shall give point credit to veterans in the same manner as required under Code Sections 43-1-9 through 43-1-13. (h) Initial judicial review of a final decision of the board shall be had solely in the superior court of the county of domicile of the board. (i) The executive director shall make a report no later than December 31 of each year covering the activities of the board for that calendar year, which shall be made available to any member of the General Assembly upon request. (j) The executive director, with the approval of the board, notwithstanding any other provisions of law to the contrary, shall enter into such contracts as are deemed necessary to carry out this chapter to provide for all services required of the board.

43-34-7. The executive director shall prepare and maintain a roster containing the names and business addresses of all current licensees, certificate holders, and permit holders for each of the various professions regulated by the Georgia Composite Medical Board. A copy of the roster shall be available to any person upon request at a fee prescribed by the board

866

GENERAL ACTS AND RESOLUTIONS, VOL. I

sufficient to cover the cost of printing and distribution. The following shall be treated as confidential, not subject to Article 4 of Chapter 18 of Title 50, relating to open records, and shall not be disclosed without the approval of the board:
(1) Applications and other personal information submitted by applicants, except to the applicant, the staff, and the board; (2) Information, favorable or unfavorable, submitted by a reference source concerning an applicant, except to the staff and the board; (3) Examination questions and other examination materials, except to the staff and the board; and (4) The deliberations of the board with respect to an application, an examination, a complaint, an investigation, or a disciplinary proceeding, except as may be contained in official board minutes; provided, however, that such deliberations may be released only to another state or federal enforcement agency or lawful licensing authority. Releasing the documents pursuant to this paragraph shall not subject any otherwise privileged documents to the provisions of Code Section 50-18-70.

43-34-8. (a) The board shall have authority to refuse to grant a license, certificate, or permit to an applicant or to discipline a person regulated under this chapter or any antecedent law upon a finding by the board that the licensee, certificate holder, or permit holder or applicant has:
(1) Failed to demonstrate the qualifications or standards for a license, certificate, or permit contained in this chapter or in the rules and regulations of the board. It shall be incumbent upon the applicant to demonstrate to the satisfaction ofthe board that he or she meets all requirements for the issuance of a license; and, if the board is not satisfied as to the applicant's qualifications, it shall not issue a license, certificate, or permit; (2) Knowingly made misleading, deceptive, untrue, or fraudulent representations in the practice of a profession licensed, certified, or permitted under this chapter or in any document connected therewith, or practiced fraud or deceit or intentionally made any false statement in obtaining a license, certificate, or permit under this chapter to practice pursuant to this chapter, or made a false statement or deceptive registration with the board; (3) Been convicted of a felony in the courts of this state or any other state, territory, country, or of the United States. As used in this paragraph, the term 'conviction of a felony' shall include a conviction of an offense which if committed in this state would be deemed a felony under either state or federal law, without regard to its designation elsewhere. As used in this paragraph, the term 'conviction' shall include a finding or verdict of guilt, a plea of guilty resulting in first offender status, or a plea of nolo contendere in a criminal proceeding, regardless of whether the adjudication of guilt or sentence is withheld or not entered thereon; (4) Committed a crime involving moral turpitude, without regard to conviction; the conviction of a crime involving moral turpitude shall be evidence of the commission of

GEORGIA LAWS 2009 SESSION

867

such crime. As used in this paragraph, the term 'conviction' shall have the meaning prescribed in paragraph (3) of this subsection. For the purpose of this chapter, a conviction or plea of guilty or of nolo contendere to a charge or indictment by either federal or state government for income tax evasion shall not be considered a crime involving moral turpitude; (5) Had his or her license, certificate, or permit to practice pursuant to this chapter revoked, suspended, or annulled by any lawful licensing authority; or had other disciplinary action taken against him or her by any lawful licensing authority; or been denied a license by any lawful licensing authority; (6) Advertised for or solicited patients; obtained a fee or other thing of value on the representation that a manifestly incurable disease can be permanently cured; or made untruthful or improbable statements, or flamboyant or extravagant claims concerning his or her professional excellence or treatment protocols; (7) Engaged in any unprofessional, unethical, deceptive, or deleterious conduct or practice harmful to the public, which conduct or practice need not have resulted in actual injury to any person. As used in this paragraph, the term 'unprofessional conduct' shall include any departure from, or failure to conform to, the minimum standards of acceptable and prevailing medical practice and shall also include, but not be limited to, the prescribing or use ofdrugs, treatment, or diagnostic procedures which are detrimental to the patient as determined by the minimum standards of acceptable and prevailing medical practice or by rule of the board; (8) Performed, procured, or aided or abetted in performing or procuring a criminal abortion; (9) Knowingly maintained a professional connection or association with any person who is in violation of this chapter or the rules or regulations of the board; or knowingly aided, assisted, procured, or advised any person to practice pursuant to this chapter contrary to this chapter or to the rules and regulations of the board; or knowingly performed any act which in any way aids, assists, procures, advises, or encourages any unlicensed person or entity to practice pursuant to this chapter; or divided fees or agreed to divide fees received for professional services with any person, firm, association, corporation, or other entity for bringing or referring a patient; (10) Violated or attempted to violate a law, rule, or regulation of this state, any other state, the board, the United States, or any other lawful authority without regard to whether the violation is criminally punishable, which law, rule, or regulation relates to or in part regulates the practice of medicine, when the licensee or applicant knows or should know that such action is violative of such law, rule, or regulation; or violated a lawful order of the board, previously entered by the board in a disciplinary hearing; (11) Committed any act or omission which is indicative of bad moral character or untrustworthiness; (12) Been adjudged mentally incompetent by a court of competent jurisdiction, within or outside this state. Any such adjudication shall automatically suspend the license,

868

GENERAL ACTS AND RESOLUTIONS, VOL. I

certificate, or permit of any such person and shall prevent the reissuance or renewal of any license, certificate, or permit so suspended for as long as the adjudication of incompetence is in effect unless the board, upon a finding that the licensee, certificate holder, or permit holder is mentally competent, orders otherwise. Any applicant who has been so adjudged to be mentally incompetent shall not receive a license, certificate, or permit unless the board, upon a finding that the applicant is mentally competent, orders otherwise; (13) Become unable to practice pursuant to this chapter with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material, or as a result of any mental or physical condition:
(A) In enforcing this paragraph the board may, upon reasonable grounds, require a licensee, certificate holder, permit holder, or applicant to submit to a mental or physical examination by physicians designated by the board. The expense of this examination shall be borne by the licensee, certificate holder, or permit holder or applicant. The results of such examination shall be admissible in any hearing before the board, notwithstanding any claim of privilege under a contrary rule of law or statute, including, but not limited to, Code Section 24-9-21. Every person who shall accept the privilege of practicing a profession regulated under this chapter or who shall file an application for a license to practice a profession regulated under this chapter in this state shall be deemed to have given his or her consent to submit to such mental or physical examination and to have waived all objections to the admissibility of the results in any hearing before the board, upon the grounds that the same constitutes a privileged communication. If a licensee, certificate holder, or permit holder or applicant fails to submit to such an examination when properly directed to do so by the board, unless such failure was due to circumstances beyond his or her control, the board may enter a final order upon proper notice, hearing, and proof of such refusal. Any licensee, certificate holder, permit holder, or applicant who is prohibited from practicing pursuant to this chapter under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate to the board that he or she can resume or begin practice pursuant to this chapter with reasonable skill and safety to patients; (B) For the purposes ofthis paragraph, the board may, upon reasonable grounds, obtain any and all records relating to the mental or physical condition of a licensee, certificate holder, or permit holder or applicant, including psychiatric records; and such records shall be admissible in any hearing before the board, notwithstanding any privilege under a contrary rule of law or statute, including, but not limited to, Code Section 24-9-21. Every person who shall accept the privilege of practicing pursuant to this chapter in this state or who shall file an application to practice pursuant to this chapter in this state shall be deemed to have given his or her consent to the board's obtaining any such records and to have waived all objections to the admissibility of such records in any hearing before the board, upon the grounds that the same constitute a privileged communication; and

GEORGIA LAWS 2009 SESSION

869

(C) If any licensee, certificate holder, or permit holder or applicant could, in the absence of this paragraph, invoke a privilege to prevent the disclosure of the results of the examination provided for in subparagraph (A) of this paragraph or the records relating to the mental or physical condition of such licensee, certificate holder, or permit holder or applicant obtained pursuant to subparagraph (B) of this paragraph, all such information shall be received by the board in camera and shall not be disclosed to the public, nor shall any part of the record containing such information be used against any licensee, certificate holder, or permit holder or applicant in any other type of proceeding; (14) Cheated on or attempted to subvert an examination by the board; (15) Committed an act of sexual abuse, misconduct, or exploitation of a patient including guardians and parents of minors; (16) Mistreated or abandoned a patient or his or her records; provided, however that a physician in compliance with Chapter 33 of Title 31 shall not be considered to have abandoned patient records; (17) Entered into conduct which discredits the profession; (18) Failed to furnish records, including, but not limited to, medical records, to the board in response to a subpoena or failed to answer questions on the renewal of the license, certificate, or permit; (19) Failed to maintain appropriate medical or other records as required by board rule; (20) Failed to follow generally accepted infection control procedures or Occupational Safety and Health Administration (OSHA) standards; (21) Failed to comply with federal laws and standards relating to the practice ofmedicine or other health care profession regulated under this chapter, the regulations of drugs, the delivery of health care, or other related laws; (22) Failed to comply with an order for child support as defined by Code Section 19-11-9.3; it shall be incumbent upon the applicant, licensee, certificate holder, or permit holder to supply a notice of release to the board from the appropriate child support authorities within the Department of Human Resources indicating that the licensee, certificate holder, permit holder, or applicant has come into compliance with an order for child support so that a license, certificate, or permit may be issued if all other conditions for the issuance of a license, certificate, or permit are met; (23) Failed to enter into satisfactory repayment status and is a borrower in default as defined by Code Section 20-3-295; it shall be incumbent upon the applicant, licensee, certificate holder, or permit holder to supply the notice of release to the board from the Georgia Higher Education Assistance Corporation indicating that the licensee, certificate holder, permit holder, or applicant has entered into satisfactory repayment status so that a license, certificate, or permit may be issued or granted if all other conditions for issuance of a license, certificate, or permit are met; or (24) Except for practice settings identified in paragraph (7) of subsection (g) of Code Section 43-34-26 and arrangements approved by the board prior to July 1, 2009, as set

870

GENERAL ACTS AND RESOLUTIONS, VOL. I

forth in subsection (k) of Code Section 43-34-103, been a physician that has been or is employed by one the physician:
(A) Delegates medical acts to: (B) Enters a protocol or job description with; or (C) Is responsible for supervising. (a. I) The provisions ofChapter 13 ofTitle 50, the 'Georgia Administrative Procedure Act,' with respect to emergency action by a professional licensing board and summary suspension of a license are adopted and incorporated by reference into this Code section. (b)( I) When the board finds that any person is unqualified to be granted a license, certificate, or permit or finds that any person should be disciplined pursuant to subsection (a) of this Code section, the board may take any one or more of the following actions: (A) Refuse to grant a license, certificate, or permit to an applicant; (B) Place the licensee, certificate holder, or permit holder on probation for a definite or indefinite period with terms and conditions; (C) Administer a public or private reprimand, provided that a private reprimand shall not be disclosed to any person except the licensee, certificate holder, or permit holder; (D) Suspend any license, certificate, or permit for a definite or indefinite period; (E) Limit or restrict any license, certificate, or permit; (F) Revoke any license, certificate, or permit; (G) Impose a fine not to exceed $3,000.00 for each violation of a law, rule, or regulation relating to the licensee, certificate holder, permit holder or applicant; (H) Impose a fine in a reasonable amount to reimburse the board for the administrative costs; (I) Require passage of a board approved minimum competency examination; (J) Require board approved medical education; (K) Condition the penalty, or withhold formal disposition, which actions shall be kept confidential, unless there is a public order upon the licensee or applicant, certificate holder, or permit holder's submission to the care, counseling, or treatment by physicians or other professional persons and the completion of such care, counseling, or treatment, as directed by the board; or (L) Require a board approved mental and physical evaluation of all licensees, certificate holders, or permit holders. (2) In addition to and in conjunction with the actions enumerated pursuant to paragraph (1) of this subsection, the board may make a finding adverse to the licensee, certificate holder, permit holder, or applicant but withhold imposition of judgment and penalty; or it may impose the judgment and penalty but suspend enforcement thereof and place the licensee, certificate holder, permit holder, or applicant on probation, which probation may be vacated upon noncompliance with such reasonable terms as the board may impose.

GEORGIA LAWS 2009 SESSION

871

(3) Neither the issuance of a private reprimand nor the denial of a license, certificate, or permit nor the denial of a request for reinstatement of a revoked license, certificate, or permit nor the refusal to issue a previously denied license, certificate, or permit shall be considered to be a contested case within the meaning of Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act'; notice and hearing within the meaning of said chapter shall not be required, but the applicant or licensee, certificate holder, or permit holder shall be allowed to appear before the board if he or she so requests. A board may resolve a pending action by the issuance of a letter of concern. Such letter shall not be considered a disciplinary action or a contested case under Chapter 13 ofTitle 50 and shall not be disclosed to any person except the holder of a license, certificate, or permit or an applicant. (b.l) The board shall suspend the license, certificate, or permit of a person licensed by the board who has been certified by a federal agency and reported to the board for nonpayment or default or breach of a repayment or service obligation under any federal education loan, loan repayment, or service conditional scholarship program. Prior to the suspension, the licensee, certificate holder, or permit holder shall be entitled to notice of the board's intended action and opportunity to appear before the board according to procedures set forth in the board's rules and regulations. A suspension of a license, certificate, or permit under this subsection is not a contested case under Chapter 13 of Title 50, 'Georgia Administrative Procedure Act.' A license, certificate, or permit suspended under this Code section shall not be reinstated or reissued until the person provides the board a written release issued by the reporting agency stating that the person is making payments on the loan or satisfying the service requirements in accordance with an agreement approved by the reporting agency. If the person has continued to meet all other requirements for issuance of a license, certificate, or permit during the period of suspension, reinstatement of the license, certificate, or permit shall be automatic upon receipt of the notice and payment of any reinstatement fee which the board may impose. (c) In its discretion, the board may restore and reissue a license, certificate, or permit issued under this chapter or any antecedent law and, as a condition thereof, may impose any disciplinary or corrective measure provided in this chapter. (d) The executive director is vested with the power and authority to make, or cause to be made through employees or agents of the board, such investigations as he or she, or the board, or any district attorney may deem necessary or advisable in the enforcement of this chapter. Any person properly conducting an investigation on behalf ofthe board shall have access to and may examine any writing, document, or other material, except that as to which privilege has not been denied or deemed waived by this chapter, and which is deemed by the chairperson of the board, or vice chairperson if the chairperson is not available, to be related to the fitness of any licensee, certificate holder, permit holder, or applicant to practice pursuant to this chapter. The executive director or the chairperson of the board, or vice chairperson if the chairperson is not available, may issue subpoenas to compel such access. When a subpoena is disobeyed, the board may apply to the superior

872

GENERAL ACTS AND RESOLUTIONS, VOL. I

court of the county where the person to whom the subpoena is issued resides for an order requiring obedience. Failure to comply with such order shall be punishable as for contempt of court. The results of any investigations whatsoever shall be reported only to the board, and the records of such investigations shall be kept by the board; no part of any such record shall be released for any purpose other than a hearing before the board and as provided in Chapter 34A of this title; nor shall such records be subject to subpoena. The board shall be authorized to release records that are not otherwise confidential or privileged only to another state or federal enforcement agency or lawful licensing authority and such release shall not alter the confidential or privileged nature of the documents. (e) In any hearing to determine a licensee's, certificate holder's, permit holder's, or applicant's fitness to practice pursuant to this chapter, any record relating to any patient of the licensee, certificate holder, permit holder, or applicant shall be admissible into evidence, regardless of any statutory privilege which such patient might otherwise be able to invoke. In addition, no such patient may withhold testimony bearing upon a licensee's, certificate holder's, permit holder's, or applicant's fitness to practice pursuant to this chapter on the ground of privilege between such licensee, certificate holder, permit holder, or applicant and such patient. Any testimony or written evidence relating to a patient of a licensee, certificate holder, permit holder, or applicant or to the record of any such patient shall be received by the board in camera and shall not be disclosed to the public. (f) In any hearing in which the fitness of a licensee, certificate holder, permit holder, or applicant to practice pursuant to this chapter is in question, the board may exclude all persons from its deliberation of the appropriate action to be taken and may, when in its discretion it deems it necessary, speak to a licensee, certificate holder, permit holder, or applicant in private. (g) A person, partnership, firm, corporation, association, authority, or other entity shall be immune from civil and criminal liability for reporting or investigating the acts or omissions of a licensee, certificate holder, permit holder, or applicant which violate the provisions of subsection (a) of this Code section or any other provisions of law relating to a licensee's, certificate holder's, permit holder's, or applicant's fitness to practice pursuant to this chapter or for initiating or conducting proceedings against such licensee, certificate holder, permit holder, or applicant, if such report is made or action is taken in good faith without fraud or malice. Any person who testifies in good faith without fraud or malice before the board in any proceeding involving a violation of subsection (a) of this Code section or any other law relating to a licensee's, certificate holder's, permit holder's, or applicant's fitness to practice pursuant to this chapter, or who makes a recommendation to the board in the nature of peer review, shall be immune from civil and criminal liability for so testifying. (h) Peer review conducted pursuant to this Code section shall be subject to the provisions of Article 6 of Chapter 7 of Title 31, relating to medical peer review groups. Any person providing information for purposes of peer review under this Code section and any person providing information to the board under this Code section shall not be criminally or civilly liable in any way for such actions unless:

GEORGIA LAWS 2009 SESSION

873

(I) Such information is unrelated to the carrying out of peer review under this Code section; or (2) Such information is false and the person disclosing such information knew that such information was false. (i) This Code section is enacted in the public welfare and shall be liberally construed. (j) The board shall investigate a licensee's, certificate holder's, or permit holder's fitness to practice pursuant to this chapter ifthe board has received a notification, pursuant to Code Section 33-3-27, regarding that licensee, certificate holder, or permit holder of a medical malpractice judgment or settlement in excess of $100,000.00 or a notification pursuant to Code Section 33-3-27 that there have been two or more previous judgments against or settlements with the licensee, certificate holder, or permit holder relating to practice pursuant to this chapter involving an action for medical malpractice. Every licensee, certificate holder, or permit holder shall notify the board of any settlement or judgment involving the licensee, certificate holder, or permit holder involving an action for medical malpractice. (k) The board may conduct an assessment of a licensee's, certificate holder's, or permit holder's fitness to practice pursuant to this chapter if it has disciplined the licensee, certificate holder, or permit holder three times in the last ten years as a result of an action for medical malpractice. The assessment shall include an examination of the licensee's, certificate holder's, or permit holder's entire history with respect to practice pursuant to this chapter and a one-day on-site visit to the licensee's, certificate holder's, or permit holder's current practice location. The assessment shall be completed within six months ofthe third disciplinary action. As a result of its findings the board may take any action it deems necessary to reduce medical errors and promote patient safety, including revocation, suspension, or limiting the licensee's, certificate holder's, or permit holder's license, certificate, or permit or requiring additional clinical training, additional continuing medical education, proctoring, or referral to appropriate rehabilitation facilities. As used in this subsection, the term 'action for medical malpractice' shall have the same meaning as provided in Code Section 9-3-70. The board shall implement this subsection upon the effective date of a specific appropriation of funds for purposes of this subsection as expressed in a line item making specific reference to the full funding of this subsection in an appropriations Act enacted by the General Assembly. (I) If any licensee, certificate holder, permit holder, or applicant after 30 days' notice fails to appear at any hearing of the board for that licensee, certificate holder, permit holder, or applicant, the board may proceed to hear the evidence against such licensee, certificate holder, permit holder, or applicant and take action as if such licensee, certificate holder, permit holder, or applicant had been present. A notice of hearing, initial or recommended decision, or final decision of the board in a disciplinary proceeding shall be served personally upon the licensee, certificate holder, permit holder, or applicant or served by certified mail, return receipt requested, to the last known address of record with the board. If such material is served by certified mail and is returned marked 'unclaimed' or 'refused'

874

GENERAL ACTS AND RESOLUTIONS, VOL. I

or is otherwise undeliverable and if the licensee, certificate holder, permit holder, or applicant cannot, after diligent effort, be located, the executive director shall be deemed to be the agent for service for such licensee, certificate holder, permit holder, or applicant for purposes of this Code section, and service upon the executive director shall be deemed to be service upon the licensee, certificate holder, permit holder, or applicant. (m) The voluntary surrender of a license, certificate, or permit or the failure to renew a license, certificate, or permit by the end of the established penalty period shall have the same effect as a revocation of said license, certificate, or permit, subject to reinstatement in the discretion of the board. The board may restore and reissue a license, certificate, or permit to practice under this chapter and, as a condition thereof, may impose any disciplinary sanction provided by this Code section. (n) Subsections (a) and (b) of this Code section shall be supplemental to and shall not operate to prohibit the board from acting pursuant to those provisions of law which may now or hereafter authorize other disciplinary grounds and actions for the board. In cases where those other provisions are law so authorize other disciplinary grounds and actions but subsections (a) and (b) of this Code section limit such grounds for action, those other provisions shall apply. (o) The board shall publish all final public disciplinary actions taken against a licensee, certificate holder, or permit holder pursuant to this chapter on its official website.

43-34-9. Proceedings before the board wherein a licensee's, certificate holder's, or permit holder's right to practice pursuant to this chapter in this state is terminated, suspended, or limited or wherein a public reprimand is administered shall require prior notice to the licensee and an opportunity for hearing; and such proceedings shall be considered contested cases within the meaning ofChapter 13 ofTitle 50, the 'Georgia Administrative Procedure Act.' Neither refusal of a license, certificate, or permit nor a private reprimand nor a letter of concern shall be considered a contested case within the meaning of Chapter 13 of Title 50, and notice and hearing within the meaning of such chapter shall not be required; provided, however, that the applicant shall be allowed to appear before the board, if the applicant so requests, prior to the board making a final decision regarding the issuance of the license, certificate, or permit. The power to subpoena as set forth in Chapter 13 of Title 50 shall include the power to subpoena any book, writing, paper, or document. If any licensee, certificate holder, or permit holder fails to appear at any hearing after reasonable notice, the board may proceed to hear the evidence against such licensee, certificate holder, or permit holder and take action as if such licensee, certificate holder, or permit holder had been present.

43-34-10. Any licensee, certificate holder, or permit holder who is convicted under the laws of this state, the United States, or any other state, territory, or country of a felony as defined in

GEORGIA LAWS 2009 SESSION

875

paragraph (5) of Code Section 16-1-3 shall be required to notify the board of the conviction within ten days of the conviction. The failure to notify the board of a conviction shall be considered grounds for revocation of his or her license, certificate, permit, or other authorization to conduct a profession regulated under this chapter.

43-34-11. (a)(l) The board shall be authorized to require persons seeking renewal of a license, certificate, or permit under this chapter to complete board approved continuing education of not less than 40 hours biennially. The board shall be authorized to approve courses offered by institutions of higher learning, specialty societies, or professional organizations, including, but not limited to, the American Medical Association, the National Medical Association, and the American Osteopathic Association, the number of hours required, and the category in which these hours should be earned. This paragraph shall not apply to respiratory care professionals or persons seeking renewal of certification as respiratory care professionals. (2) The board shall be authorized to require persons seeking renewal of certification as respiratory care professionals under Article 6 of this chapter to complete board approved continuing education. The board shall be authorized to establish the number of hours of continuing education required biennially for renewal of certification as a respiratory care professional and the categories in which these hours should be earned. The board shall be authorized to approve courses offered by institutions of higher learning, specialty societies, or professional organizations. Any action taken by the board pursuant to this paragraph shall be taken in conformity with the provisions of Code Section 43-34-143. (b)(1) The board shall be authorized to waive the continuing education requirement in cases of hardship, disability, illness, or in cases where physicians or physician assistants are serving in fellowships, new specialty residencies, postgraduate specialty programs, the United States Congress or Georgia General Assembly, or under such other circumstances as the board deems appropriate. (2) The board shall require no more than 20 hours of continuing education annually for retired physicians who have an active license and who provide uncompensated health care services pursuant to Code Section 43-34-41 or Article 8 of Chapter 8 of Title 31; provided, however, that the board shall be authorized to require up to 40 hours of continuing education for retired physicians who have not had an active license to practice medicine for up to five years.
(c) The board shall be authorized to promulgate rules and regulations to implement and ensure compliance with the requirements of this Code section. (d) This Code section shall apply to each licensing, certification, permit, and renewal cycle which begins after the 1990-1991 renewal.

876

GENERAL ACTS AND RESOLUTIONS, VOL. I

43-34-12. (a) For purposes of this chapter, the term 'radiologist assistant' means an advanced level certified diagnostic radiologic technologist who assists radiologists under levels of supervision defined by the Georgia Composite Medical Board in performing advanced diagnostic imaging procedures as determined by board rule, including, but not limited to, enteral and parenteral procedures when performed under the direction of the supervising radiologist and may include injecting diagnostic agents to sites other than intravenous, performing diagnostic aspirations and localizations, and assisting radiologists with other invasive procedures. (b) This Code section is for definitional purposes only and shall not be construed to require any duties or obligations regarding radiology assistants that did not already exist as of June 30,2009.

ARTICLE 2

43-34-20. This article shall be known as the 'Medical Practice Act of the State of Georgia.'

43-34-21. As used in this article, the term:
(l) 'Board' means the Georgia Composite Medical Board. (2) 'Physician' means a person licensed to practice medicine under this article. (2.1) 'Postgraduate training' means a program for the training of interns, residents, or postresidency fellows that is approved by the Accreditation Council for Graduate Medical Education (ACGME), American Osteopathic Association (AOA), or the board. (3) 'To practice medicine,' 'the practice of medicine,' or 'practicing medicine' means to hold oneself out to the public as being engaged in the diagnosis or treatment of disease, defects, or injuries of human beings; or the suggestion, recommendation, or prescribing of any form of treatment for the intended palliation, relief, or cure of any physical, mental, or functional ailment or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift, or compensation whatsoever; or the maintenance of an office for the reception, examination, and treatment of persons suffering from disease, defect, or injury of body or mind; or attaching the title 'M.D.,' 'Oph.,' 'D.,' 'Dop.,' 'Surgeon,' 'Doctor,' 'D.O.,' 'Doctor of Osteopathy,' 'Allopathic Physician,' 'Osteopathic Physician,' or 'Physician,' either alone or in connection with other words, or any other words or abbreviations to one's name, indicating that such person is engaged in the treatment or diagnosis of disease, defects, or injuries to human beings, provided that the terms 'doctors of medicine,' 'doctors of osteopathic medicine,' 'doctors of medicine licensed to practice in the state,' and similar terms wherever used or appearing in this article or elsewhere shall mean and include only those persons licensed under this article.

GEORGIA LAWS 2009 SESSION

877

43-34-22. (a) If any person shall hold himself or herself out to the public as being engaged in the diagnosis or treatment of disease or injuries ofhuman beings, or shall suggest, recommend, or prescribe any form of treatment for the palliation, relief, or cure of any physical or mental ailment of any person, with the intention of receiving therefor, either directly or indirectly, any fee, gift, or compensation whatsoever, or shall maintain an office for the reception, examination, or treatment of diseased or injured human beings, or shall attach the title 'M.D.,' 'Oph.,' 'D.,' 'Dop.,' 'Surgeon,' 'Doctor,' 'D.O.,' 'Doctor of Osteopathy,' 'Osteopathic Physician,' or 'Physician,' either alone or in connection with other words, or any other word or abbreviation to his or her name indicative that he or she is engaged in the treatment of diseased, defective, or injured human beings, and shall not in any of these cases then possess a valid license to practice medicine under the laws ofthis state, he or she shall be deemed to be practicing medicine without complying with this article and shall be deemed in violation of this article. (b) Nothing in this chapter shall be construed to prohibit:
( 1) Gratuitous services in cases of emergency; (2) The practice of the religious tenets or general beliefs of any church whatsoever; (3) The requiring of a fee for examination by opticians, at their established places of business, who do not prescribe or use drugs or medicines or attach to their names titles indicative that any such persons are engaged in the practice ofmedicine, as defined in this article; (4) The performance of their duties for the federal government by federal physicians, both military and civilian; (5) The consultation on special cases approved by the board in this state of regularly licensed physicians from other states or territories; (6) The licensed practice of dentistry, optometry, psychology, podiatry, or chiropractic; (7) The licensed practice of midwifery or nursing; (8) The utilization of a physician assistant to perform tasks approved by the board, and the performance of such tasks by the physician assistant; the delegation by a physician to a qualified person other than a physician assistant of any acts, duties, or functions which are otherwise permitted by law or established by custom; and the performance of such acts, duties, or functions by such a person other than a physician assistant; or (9) The performance of:
(A) Any medical task by a student enrolled in a medical school, osteopathic medical school, or physician assistant training program approved by the board; (B) Any dental task by a student enrolled in a dental college approved by the Georgia Board of Dentistry; or (C) Any nursing task by a student enrolled in a nursing program approved by the Georgia Board of Nursing where any such task is performed under the supervision of an authorized instructor lawfully licensed in this state to perform such tasks.

878

GENERAL ACTS AND RESOLUTIONS, VOL. I

(c) Nothing in this article shall be construed as preventing any person holding a valid license as a Doctor of Osteopathy on March 16, 1970, from engaging in the practice of osteopathy as the same was practiced by such person at such time, subject to biennial renewal of his or her license. Such limited renewal licenses shall not authorize the practice of obstetrics or surgery other than the minor suturing of cuts.

43-34-23. (a) As used in this Code section, the term:
(1) 'Administer' means to give a unit dose of any drug or to perform any medical treatment or diagnostic study. (2) 'Controlled substance' means any controlled substance, as defined in Code Section 16-13-21, except any Schedule I controlled substance listed in Code Section 16-13-25. (3) 'Dangerous drug' means any dangerous drug, as defined in Code Section 16-13-71, but does not include any controlled substance or Schedule I controlled substance. (3 .1) 'Dispense' means to issue one or more doses of any drug in a suitable container with appropriate labeling for subsequent administration to, or use by, a patient. (4) 'Dispensing procedure' means a written document signed by a licensed pharmacist and a licensed physician which document establishes the appropriate manner under which drugs may be dispensed pursuant to this Code section. (5) 'Drug' means any dangerous drug or controlled substance. (5.1) 'Job description' shall have the same meaning as in Code Section 43-34-102. (6) 'Nurse' means a person who is a registered professional nurse licensed as such under Article 1 of Chapter 26 of this title. (7) 'Nurse protocol' means a written document mutually agreed upon and signed by a nurse and a licensed physician, by which document the physician delegates to that nurse the authority to perform certain medical acts pursuant to subsection (b) of this Code section, and which acts shall include, without being limited to, the administering and ordering of any drug. (8) 'Order' means to select a drug, medical treatment, or diagnostic study through physician delegation in accordance with a nurse protocol or a physician assistant's job description. Ordering under such delegation shall not be construed to be prescribing nor shall ordering of a drug be construed to authorize the issuance of a written prescription. (9) ' 'Physician assistant' means a person licensed as a physician assistant pursuant to Article 4 of this chapter, the' Physician Assistant Act.' (b)(1) A physician may delegate to:
(A) A physician assistant in accordance with a job description; or (B) A nurse recognized by the Georgia Board of Nursing as a certified nurse midwife, certified registered nurse anesthetist, certified nurse practitioner, or clinical nurse specialist, psychiatric/mental health in accordance with a nurse protocol

GEORGIA LAWS 2009 SESSION

879

the authority to order controlled substances selected from a formulary of such drugs established by the board and the authority to order dangerous drugs, medical treatments, and diagnostic studies. (2) A physician may delegate to a nurse or physician assistant the authority to order dangerous drugs, medical treatments, or diagnostic studies and a nurse or physician assistant is authorized to dispense dangerous drugs, in accordance with a dispensing procedure and under the authority of an order issued in conformity with a nurse protocol or job description, ifthat nurse or physician assistant orders or dispenses those dangerous drugs, medical treatments, or diagnostic studies:
(A) As an agent or employee of: (i) The Division of Public Health of the Department of Human Resources; (ii) Any county board of health; or (iii) Any organization: (I) Which is exempt from federal taxes pursuant to Section 50 I (c)(3) ofthe Internal Revenue Code, as defined in Code Section 48-1-2, other than an organization which is a hospital, preferred provider organization, health maintenance organization, or similar organization; or (II) Established under the authority of or receiving funds pursuant to 42 U.S.C. Section 254b or 254c of the United States Public Health Service Act, which organization provides that those medical services and dangerous drugs which are ordered or dispensed by its physician assistants and nurses will be provided at no cost to the patient or at a cost based solely upon the patient's ability to pay; and
(B) In conformity with subsection (b) of Code Section 26-4-130 and the rules and regulations established pursuant thereto by the State Board of Pharmacy. (3) In addition, a physician may delegate to a nurse or physician assistant the authority to order dangerous drugs, medical treatments, or diagnostic studies and a nurse or physician assistant is authorized to dispense dangerous drugs, in accordance with a dispensing procedure and under the authority of an order issued in conformity with a nurse protocol or job description, if that nurse or physician assistant orders or dispenses such drugs, treatments, or studies to a patient of an outpatient clinic: (A) Which is owned or operated by a licensed hospital; (B) Which provides such drugs, treatments, or studies free or at a charge to the patient based solely upon the patient's ability to pay; provided, however, such charge shall not exceed the actual cost to the outpatient clinic; and (C) Whose services are primarily provided to the medically disadvantaged and that nurse or physician orders or dispenses such drugs in conformity with subsection (b) of Code Section 26-4-130 and the rules and regulations established pursuant thereto by the State Board of Pharmacy. (4) Delegation of authority to a physician assistant pursuant to this subsection shall be authorized only if that delegation is contained in the job description approved for that physician assistant by the board.

880

GENERAL ACTS AND RESOLUTIONS, VOL. I

(5) Delegation of authority to a nurse pursuant to this subsection shall be authorized only if that delegation is contained in a nurse protocol for that nurse. (c) The board shall be empowered to promulgate rules and regulations governing physicians and physician assistants to carry out the intents and purposes of this Code section, including establishing criteria and standards governing physicians, physician assistants, job descriptions, and nurse protocols. The board shall be authorized to require that protocols not falling within such established criteria and standards be submitted to the board for review and approval or rejection. (d) Notwithstanding any other provision of Jaw to the contrary, a physician assistant or nurse may perform any act authorized to be performed by that person pursuant to and in conformity with this Code section without such act constituting the practice of medicine. (e) Nothing in this Code section shall be construed to limit or repeal this article and Articles 4 and 6 of this chapter, relating to physicians, osteopathic physicians, physician assistants, and respiratory therapists, or Article 1 of Chapter 26 of this title, relating to registered nurses. (f) Nothing in this Code section shall be construed to limit or repeal any existing authority of a licensed physician to delegate to a qualified person any acts, duties, or functions which are otherwise permitted by law or established by custom. (g) Nothing in this Code section shall be construed to authorize or permit the issuance of a Drug Enforcement Administration license to a nurse who is not an advanced practice registered nurse. (h) Nothing in this Code section shall be construed to limit or repeal the authority of any organization described in division (i) or (ii) of subparagraph (b)(2)(A) ofthis Code section or any organization established under the authority of or receiving funds pursuant to 42 U .S.C. Section 254b or 254c of the United States Public Health Service Act to supervise its agents or employees or interfere with the employer and employee relationship of any such agents or employees. (i) Notwithstanding any other provision of Jaw to the contrary, a physician assistant or nurse may perform any act deemed necessary to provide treatment to a hospital or nursing home patient in a life-threatening situation when such act is authorized by standing procedures established by the medical staff of the hospital or nursing home.

43-34-24. (a) As used in this Code section, the term 'pharmacist' means a person who meets the requirements specified in Code Section 26-4-50. (b) A physician may delegate to a pharmacist the authority to modify drug therapy as part of drug therapy management. The physician making such delegation shall adequately supervise the application of his or her order delegating the authority to modify drug therapy. Delegation of such authority shall only be made pursuant to the physician's diagnosis, written order, and drug therapy protocol. Unless a drug therapy modification is a substitution of a generic drug which is pharmaceutically and therapeutically equivalent

GEORGIA LAWS 2009 SESSION

881

to the patient's initial prescription drug order pursuant to Code Section 26-4-81, that protocol shall meet the applicable requirements for issuance of prescriptions provided in Code Section 16-13-41 or 16-13-74, whichever is applicable. A drug therapy protocol issued pursuant to this subsection may authorize a pharmacist to dispense a specific drug contained in the protocol as an alternative drug which is not pharmaceutically and therapeutically equivalent to the patient's initial prescription drug order and shall be deemed to be the physician's separate and distinct prescription drug order. All protocols authorized by this subsection shall:
(1) Identify the pharmacist who is authorized to modify drug therapy and the physician who is delegating the authority to modify drug therapy; (2) Indicate the physician's diagnosis of condition or disease state of the patient whose drug therapy may be modified; (3) Identify each patient for whom the physician has delegated the authority to modify drug therapy; (4) Describe specific responsibilities and parameters for modification of drug therapy and patient monitoring authorized under the protocol; (5) Include a statement regarding the types and categories of medication as well as the maximum and minimum dosage levels within the types and categories of medication for which the pharmacist may modify drug therapy including:
(A) Additional procedures or plans which the pharmacist shall follow when the pharmacist modifies drug therapy; and (B) The method of documentation and mechanism of communication of appropriate medical care information or pharmacy care information, or both; description and required frequency of reports which shall include:
(i) Any problems or complications encountered; (ii) A listing of recommendations by pharmacist; and (iii) A complete list of each instance in which drug therapy was modified and how such therapy was modified since the last report; and (6) Stipulate that each such patient must be notified that the pharmacist is authorized to modify drug therapy pursuant to protocol between the pharmacist and the physician. (c) A physician delegating the authority to modify drug therapy must be available through communications for consultation, assistance, and direction. A physician may only delegate the authority to modify drug therapy for a patient under the direct medical care and supervision of that physician. (d) An order delegating the authority to modify drug therapy under this Code section shall not be valid for more than two years from the date such order was issued. (e) Nothing in this Code section shall be construed to expand or change any existing authority for a pharmacist to substitute drugs under Code Section 26-4-81. (f) Nothing in this Code section shall be construed to prohibit hospital pharmacists from participating in drug therapy management by protocol or other legal authority established

882

GENERAL ACTS AND RESOLUTIONS, VOL. I

or approved by a member ofthe hospital medical staff for the care and treatment ofhospital patients.

43-34-25. (a) As used in this Code section, the term:
(1) 'Advanced practice registered nurse' shall have the same meaning as provided in paragraph (1.1) of Code Section 43-26-3. (2) 'Birthing center' means a facility or building where human births occur on a regular or ongoing basis and which is classified by the Department of Community Health as a birthing center. (3) 'Controlled substance' means any controlled substance as defined in Code Section 16-13-21 but shall not include any Schedule I controlled substance included in Code Section 16-13-25 or any Schedule II controlled substance included in Code Section 16-13-26. (4) 'Dangerous drug' means any dangerous drug as defined in Code Section 16-13-71. (5) 'Delegating physician' means a physician who has entered into a nurse protocol agreement pursuant to this Code section. (6) 'Diagnostic study' means a laboratory test, X-ray, ultrasound, or procedure used to identify a characteristic or distinguishing feature of a particular disease or condition. (7) 'Drug' means any dangerous drug or controlled substance. (8) 'Free health clinic' shall have the same meaning as provided in Code Section 51-1-29.4. (9) 'Life threatening' means an emergency situation in which a patient's life or physical well-being will be harmed if certain testing is not performed immediately. (10) 'Nurse protocol agreement' means a written document mutually agreed upon and signed by an advanced practice registered nurse and a physician, by which document the physician delegates to that advanced practice registered nurse the authority to perform certain medical acts pursuant to this Code section, and which acts may include, without being limited to, the ordering of drugs, medical devices, medical treatments, diagnostic studies, or in life-threatening situations radiographic imaging tests. Such agreements shall conform to the provisions set forth in subsection (c) of this Code section. (11) 'Order' means to prescribe pursuant to a nurse protocol agreement which drug, medical device, medical treatment, diagnostic study, or in life-threatening situations radiographic imaging test is appropriate for a patient and to communicate the same in writing, orally, via facsimile, or electronically. (12) 'Physician' means a person licensed to practice medicine under this article and:
(A) Whose principal place of practice is within this state; or (B) Whose principal place of practice is outside this state but is within 50 miles from the location where the nurse protocol agreement is being utilized within this state. (13) 'Prescription drug order' means a written or oral order of an advanced practice registered nurse for a drug or medical device for a specific patient. Such term includes

GEORGIA LAWS 2009 SESSION

883

an electronic visual image prescription drug order and an electronic data prescription drug order. (14) 'Professional sample' means a complimentary dose of a drug, medication, medication voucher, or medical device provided by the manufacturer for use in patient care. (15) 'Radiographic imaging test' means a computed tomography, magnetic resonance imaging, positron emission tomography, or nuclear medicine. (b) In addition to and without limiting the authority granted pursuant to Code Section 43-34-23, a physician may delegate to an advanced practice registered nurse in accordance with a nurse protocol agreement the authority to order drugs, medical devices, medical treatments, diagnostic studies, or, in life-threatening situations, radiographic imaging tests. (c) A nurse protocol agreement between a physician and an advanced practice registered nurse pursuant to this Code section shall: (1) Be between an advanced practice registered nurse who is in a comparable specialty area or field as that of the delegating physician; (2) Contain a provision for immediate consultation between the advanced practice registered nurse and the delegating physician; ifthe delegating physician is not available, the delegating physician for purposes of consultation may designate another physician who concurs with the terms of the nurse protocol agreement; (3) Identify the parameters under which delegated acts may be performed by the advanced practice registered nurse, including without limitation the number of refills which may be ordered, the kinds of diagnostic studies which may be ordered, the extent to which radiographic image tests may be ordered, and the circumstances under which a prescription drug order may be executed. In the event the delegating physician authorizes the advanced practice registered nurse to order an X-ray, ultrasound, or radiographic imaging test, the nurse protocol agreement shall contain provisions whereby such X-ray, ultrasound, or radiographic imaging test shall be read and interpreted by a physician who is trained in the reading and interpretation of such tests; a report of such X-ray, ultrasound, or radiographic imaging test may be reviewed by the advanced practice registered nurse; and a copy of such report shall be forwarded to the delegating physician, except that such provision for an ultrasound shall not be required for an advanced practice registered nurse acting within his or her scope ofpractice as authorized by Code Sections 43-26-3 and 43-26-5; (4) Require documentation either in writing or by electronic means or other medium by the advanced practice registered nurse of those acts performed by the advanced practice registered nurse which are specific to the medical acts authorized by the delegating physician; (5) Include a schedule for periodic review by the delegating physician of patient records. Such patient records review may be achieved with a sampling of such records as determined by the delegating physician;

884

GENERAL ACTS AND RESOLUTIONS, VOL. I

(6) Provide for patient evaluation or follow-up examination by the delegating physician or other physician designated by the delegating physician pursuant to paragraph (2) of this subsection, with the frequency of such evaluation or follow-up examination based on the nature, extent, and scope of the delegated act or acts as determined by the delegating physician in accordance with paragraph (3) of this subsection and accepted standards of medical practice as determined by the board; (7) Be reviewed, revised, or updated annually by the delegating physician and the advanced practice registered nurse; (8) Be available for review upon written request to the advanced practice registered nurse by the Georgia Board of Nursing or to the physician by the board; and (9) Provide that a patient who receives a prescription drug order for any controlled substance pursuant to a nurse protocol agreement shall be evaluated or examined by the delegating physician or other physician designated by the delegating physician pursuant to paragraph (2) of this subsection on at least a quarterly basis or at a more frequent interval as determined by the board. (d) A written prescription drug order issued pursuant to this Code section shall be signed by the advanced practice registered nurse and shall be on a form which shall include, without limitation, the names of the advanced practice registered nurse and delegating physician who are parties to the nurse protocol agreement, the patient's name and address, the drug or device ordered, directions with regard to the taking and dosage of the drug or use ofthe device, and the number of refills. A prescription drug order which is transmitted either electronically or via facsimile shall conform to the requirements set out in paragraphs (1) and (2) of subsection (c) of Code Section 26-4-80, respectively. (e) An advanced practice registered nurse may be authorized under a nurse protocol agreement to request, receive, and sign for professional samples and may distribute professional samples to patients. The office or facility at which the advanced practice registered nurse is working shall maintain a list of the professional samples approved by the delegating physician for request, receipt, and distribution by the advanced practice registered nurse as well as a complete list of the specific number and dosage of each professional sample and medication voucher received and dispensed. In addition to the requirements of this Code section, all professional samples shall be maintained as required by applicable state and federal laws and regulations. (f) A managed care system, health plan, hospital, insurance company, or other similar entity shall not require a physician or advanced practice registered nurse to be a party to a nurse protocol agreement as a condition for participation in or reimbursement from such entity. (g) A delegating physician may not enter into a nurse protocol agreement pursuant to this Code section with more than four advanced practice registered nurses at any one time, except this limitation shall not apply to an advanced practice registered nurse that is practicing: (1) In a hospital licensed under Title 31;

GEORGIA LAWS 2009 SESSION

885

(2) In any college or university as defined in Code Section 20-8-1; (3) In the Department of Human Resources; (4) In any county board of health; (5) In any free health clinic; (6) In a birthing center; (7) In any entity:
(A) Which is exempt from federal taxes pursuant to Section 50l(c)(3) of the Internal Revenue Code, as defined in Code Section 48-1-2, and primarily serves uninsured or indigent Medicaid and medicare patients; or (B) Which has been established under the authority of or is receiving funds pursuant to 42 U.S.C. Section 254b or 254c of the United States Public Health Service Act; (8) In any local board of education which has a school nurse program; or (9) In a health maintenance organization that has an exclusive contract with a medical group practice and arranges for the provision of substantially all physician services to enrollees in health benefits of the health maintenance organization. (h) Nothing in this Code section shall be construed to create a presumption of liability, either civil or criminal, on the part of a pharmacist duly licensed under Chapter 4 of Title 26 who, in good faith, fills a prescription drug order of an advanced practice registered nurse issued pursuant to a nurse protocol agreement. (i) Nothing in this Code section shall be construed to apply to the practice of a certified registered nurse anesthetist. (j) Nothing in this Code section shall be construed to require an advanced practice registered nurse to be a party to a nurse protocol agreement in order to practice as a registered professional nurse or an advanced practice registered nurse as otherwise permitted by Article 1 of Chapter 26 of this title. (k) Nothing in this Code section shall be construed to authorize an advanced practice registered nurse to issue a prescription drug order for a Schedule I or II controlled substance or authorize refills of any drug for more than 12 months from the date of the original order except in the case of oral contraceptives, hormone replacement therapy, or prenatal vitamins which may be refilled for a period of 24 months. (I) Nothing in this Code section shall be construed to allow an advanced practice registered nurse to perform an abortion or to administer, prescribe, or issue a drug order that is intended to cause an abortion to occur pharmacologically. (m) The board shall have the authority to promulgate rules and regulations governing a delegating physician in order to carry out the intents and purposes of this Code section. Further, the board shall be authorized to: (1) Require that a nurse protocol agreement shall be filed by the delegating physician with the board within a reasonable time from the date of execution; (2) Determine, after review of a filed nurse protocol agreement, if such nurse protocol agreement fails to meet accepted standards of medical practice as established by the board; and

886

GENERAL ACTS AND RESOLUTIONS, VOL. I

(3) Require the delegating physician to amend any such noncompliant nurse protocol agreement in order to meet such accepted standards. (n) Except for practice settings identified in paragraph (7) of subsection (g) of this Code section, it shall be unlawful for a physician to be an employee of an advanced practice registered nurse, alone or in combination with others, if the physician is required to supervise the employing advanced practice registered nurse. Such conduct shall be subject to sanctions by the Georgia Board of Nursing as to the advanced practice registered nurse and the board as to the physician. (o) An advanced practice registered nurse shall be allowed to make a pronouncement of death pursuant to authority delegated by the supervising physician ofthe advanced practice registered nurse and to certify such pronouncement in the same manner as a physician.

43-34-26. (a)(l)(A) Any person who wishes to obtain the right to practice medicine in this state and who was not, prior to March 16, 1970, registered or licensed to practice medicine, either by the State Board of Medical Examiners or the State Board of Examiners in Osteopathy, shall, before it shall be lawful for him or her to practice medicine in this state, make application to the board through the executive director, upon such forms and in such manner as shall be adopted and prescribed by the board, and shall obtain from the board a license to practice medicine. Any person who practices medicine without first having obtained a license shall be deemed to have violated this article. All applicants for a license to practice medicine or for a renewal of any such license which has been revoked shall furnish the board with evidence of good moral character. Applications from candidates to practice medicine or surgery in any of its branches shall be accompanied by proof that the applicant is a graduate of some legally incorporated medical school or osteopathic medical school. (B) The board by rule or regulation may establish standards for evaluating, inspecting, and approving any medical school or osteopathic medical school. The evaluation procedure may include consideration of reports from any outside agency having expertise in medical school or osteopathic medical school evaluation; provided, however, that the board shall make the final decision on approval of medical schools and osteopathic medical schools. Nothing contained in this Code section shall prevent the approval of medical schools outside of the United States or the licensing of graduates of medical schools outside of the United States if such schools and their graduates comply with the standards established in this Code section and by rule of the board.
(2) Each medical school or osteopathic medical school in good standing with the board shall have a minimum preliminary educational requirement of the completion of a two-year premedical college course. (3) Graduates of board approved medical schools or osteopathic medical schools and persons who graduated on or before July 1, 1985, from medical schools or osteopathic

GEORGIA LAWS 2009 SESSION

887

medical schools which are not approved by the board must complete one year of a postgraduate residency training program. Persons who graduated after July I, 1985, from medical schools or osteopathic medical schools which are not approved by the board must complete three years of residency, fellowship, or other postgraduate medical training that is approved by the Accreditation Council for Graduate Medical Education (ACGME), the American Osteopathic Association (AOA), or the board to be eligible for a license to practice medicine in this state. Current certification of any applicant by a member board of the American Board of Medical Specialties may be considered by the board as evidence that such applicant's postgraduate medical training has satisfied the requirements of this paragraph. However, before any such person shall be eligible to receive a license to practice medicine in this state, he or she shall furnish the board with satisfactory evidence of attainments and qualifications under this Code section and the rules and regulations of the board. Nothing contained in this Code section shall be construed so as to require a person who has previously passed an examination given by the board for a license to practice medicine in this state to stand another examination. (4) If the applicant submits proof that he or she has had postgraduate training as required in paragraph(3) of this subsection and if he or she furnishes satisfactory evidence of qualifications under this article and the rules and regulations of the board, he or she shall be eligible to receive a license from the board giving him or her absolute authority to practice medicine in this state. (5) If the date of graduation from an institution mentioned in subparagraph (B) of paragraph (1) of this subsection is on or before January 1, 1967, no proof ofpostgraduate training in an approved hospital need be submitted to obtain a license from the board. (b)(1) Students who have completed the academic curriculum in residence in a foreign medical school and who: (A) Have studied medicine at a medical school located outside of the United States, Puerto Rico, and Canada which is approved by the board; and (B) Have completed all of the formal requirements of the foreign medical school except any postgraduate training equivalent may substitute for the postgraduate training equivalent required by a foreign country an academic year of supervised clinical training (clinical clerkship) prior to entrance into the first year of American Medical Association approved graduate education. The supervised clinical training must be under the direction of a medical school approved by the liaison committee on medical education. (2) Before beginning the supervised clinical training, the students must have their academic records reviewed and approved by the medical schools supervising their clinical training and shall pass the Educational Council for Foreign Medical Graduates (ECFMG) qualifying examination. (3) Students who are judged by the sponsoring medical schools to have successfully completed the supervised clinical training shall be eligible to enter the first year of American Medical Association approved graduate training program without completing

888

GENERAL ACTS AND RESOLUTIONS, VOL. I

internship obligations required by the foreign country and without obtaining Educational Council for Foreign Medical Graduates (ECFMG) certification. (c) For any applicant who has not passed a board approved licensing examination or a board approved specialty board examination or recertification examination within seven years of the date of application, the board shall determine, by an evaluation program established by rule, such person's fitness to resume active status and may require the person to complete a period of evaluated clinical experience and successful completion of an examination. The board may also require a licensee or applicant who is subject to discipline pursuant to Code Section 43-34-9 to take and pass a clinical competency assessment or similar examination approved by the board as a condition of licensure. Nothing contained in this Code section shall be construed so as to require a person who has previously passed an examination approved by the board for a license to practice medicine in this state to stand another examination as a condition of renewal of a current unrestricted license. (d) The board may approve any examination or examinations that it deems must be passed in order to meet the requirements for licensure. Such examinations shall be in English. The board shall establish the passing score which all applicants for licensure shall meet or exceed. If an applicant fails for the third or any subsequent time any examination which is required to be passed in order to become a licensed practitioner in this state, the applicant shall not be eligible to retake any such examination until such applicant furnishes proof of having completed postgraduate one year of approved Accreditation Council for Graduate Medical Education (ACGME) training.

43-34-27. Any qualified applicant who is an alien, except for graduates of accredited Canadian medical schools as approved by the board, must have resided in the United States for one year. All qualified applicants who are aliens and who shall comply with all other requirements of this article shall be eligible to stand the examination provided for in this article and, upon his or her successful completion thereof, shall be granted a license to practice medicine upon compliance with all other requirements prescribed as a prerequisite to the issuance of a license. Graduates of accredited Canadian medical schools, as approved by the board, are exempt from the residency requirement of one year in the United States and may be granted a license by endorsement of the Licentiate Medical Counsel of Canada (LMCC) examination without further examination if the board determines that the applicant substantially meets the qualifications required for licensure in this state.

43-34-28. The board may grant a license without examination to licensees of boards of other states requiring equal or higher qualifications.

GEORGIA LAWS 2009 SESSION

889

43-34-29. Notwithstanding any other law to the contrary, the board may issue, in its discretion, without examination, a teacher's license to licensed physicians of other states and foreign countries for the sole purpose of teaching or demonstrating medicine in a board approved medical college or its affiliated clinic in this state. If issued after January 1, 1999, a teacher's license shall be valid for up to two years and may only be renewed, at the board's discretion, for one additional year.

43-34-30. Licensed physicians of other states and foreign countries may be permitted to enter this state for consultation with any licensed physician of this state. A physician from another state or from a foreign country shall not be permitted to establish offices in this state for the practice of his or her profession, either temporary or permanent, or practice under another physician's license, unless he or she obtains a license from the board..

43-34-31. (a) A person who is physically located in another state or foreign country and who, through the use of any means, including electronic, radiographic, or other means of telecommunication, through which medical information or data are transmitted, performs an act that is part of a patient care service located in this state, including but not limited to the initiation of imaging procedures or the preparation of pathological material for examination, and that would affect the diagnosis or treatment of the patient is engaged in the practice of medicine in this state. Any person who performs such acts through such means shall be required to have a license to practice medicine in this state and shall be subject to regulation by the board. Any such out-of-state or foreign practitioner shall not have ultimate authority over the care or primary diagnosis of a patient who is located in this state. (b) This Code section shall not apply to:
(1) The acts of a doctor of medicine or doctor of osteopathic medicine located in another state or foreign country who:
(A) Provides consultation services at the request of a physician licensed in this state; and (B) Provides such services on an occasional rather than on a regular or routine basis; (2) The acts of a physician or osteopathic physician licensed in another state or foreign country who: (A) Provides consultation services in the case of an emergency; (B) Provides consultation services without compensation, remuneration, or other expectation thereof; or (C) Provides consultation services to a medical school which is located within this state and approved by the board; or

890

GENERAL ACTS AND RESOLUTIONS, VOL. I

(3) The acts of a physician or osteopathic physician located in another state or foreign country when invited as a guest of any medical school or osteopathic medical school approved by the board or a state medical society or component thereof, for the sole purpose of engaging in professional education through lectures, clinics, or demonstrations, provided that such physician or osteopathic physician is licensed to practice medicine or osteopathic medicine in the state or foreign country in which he or she is located. (c) This Code section shall not be construed to alter the scope ofpractice of any health care provider or authorize the delivery of health care services in a setting or in a manner not otherwise authorized by the laws of this state. (d) All persons subject to the provisions of this Code section shall be required to comply with all applicable requirements of the laws of this state relating to the maintenance of patient records and the confidentiality of patient information, regardless of where such physician or health care provider may be located and regardless of where or how the records of any patient located in this state are maintained.

43-34-32. The executive director, with the approval of the chairperson of the board, may in his or her discretion issue a temporary license to an applicant, which license shall have the same force and effect as a permanent license until the next regular meeting of the board when the temporary license shall become void.

43-34-33. (a) Notwithstanding any other law to the contrary, under exceptional circumstances the board may consider applications from institutions on behalf of physicians who are graduates of international medical schools who the institution wishes to employ but who do not have independent licenses to practice medicine in the State of Georgia. The board shall review the credentials of physicians to ensure that they have adequate training and experience and have confirmation of supervisory oversight of any such physician, prior to awarding any such institutional license. The institutional license shall be jointly awarded to the institution and the physician, indicating that the license to practice medicine is limited to that institution and under proper medical supervision in accordance with this Code section. The institutional license may be renewable biennially, so long as the licensee remains in the employ of the institution requesting the license, provided that such institutional license shall not be prima-facie evidence that the holder thereof meets the minimum basic requirements for examination by the board or for the issuance of a permanent license to practice medicine. (b) A person issued an institutional license pursuant to this Code section shall not engage in the private practice of medicine and shall not receive fees or any other remuneration from his or her patients. Persons practicing medicine pursuant to an institutional license issued in accordance with this Code section shall receive as their sole remuneration for the

GEORGIA LAWS 2009 SESSION

891

practice of medicine the salary and other remuneration paid by the institution. The license of any person who violates this Code section shall be subject to revocation by the board after notice and opportunity for hearing. (c) Any physician applying for an institutional license who meets all other requirements ofthe board must also furnish documentation ofone year ofAmerican Medical Association or American Osteopathic Association approved postgraduate training (internship or residency), or other training acceptable to the board. (d) Institutional license holders shall not be permitted to apply for a Drug Enforcement Agency registration number to write prescriptions to be filled outside the institution.

43-34-34. A person who held a valid provisional license on or before Aprill6, 1979, shall be able to renew such license annually without any one-time-only renewal limitation, as long as such person continues to meet the other requirements specified in this article and does not otherwise violate this article.

43-34-35. The board shall issue licenses to practice medicine to all persons who shall furnish satisfactory evidence of attainments and qualifications under this article and the rules and regulations of the board. Such license shall give absolute authority to the person to whom it is issued to practice medicine in this state unless restricted as otherwise authorized by law.

43-34-36. The board is authorized to pass upon the good standing and reputation of any medical school or osteopathic medical school. Only such medical schools or osteopathic medical schools will be considered in good standing that possess a full and complete faculty for the teaching of medicine, surgery, and obstetrics in all their branches; that afford their students adequate clinical and hospital facilities; that have adequate curricula as determined by the board in its discretion; that fulfill all their published promises, requirements, and other claims respecting advantages to their students and the course of instruction; that exact a preliminary educational requirement equal to that specified by this article; that require students to furnish testimonials of good moral standing; and that give advanced standing only on cards from accredited medical schools or osteopathic medical schools. In determining the reputation of the medical school or osteopathic medical school, the right to investigate and make a personal inspection of the same is authorized.

43-34-37. (a) Physicians and surgeons licensed to practice medicine in accordance with and under this article shall be the only persons authorized to administer or perform artificial insemination upon any female human being. Any other person or persons who shall

892

GENERAL ACTS AND RESOLUTIONS, VOL. I

attempt to administer or perform or who shall actually administer or perform artificial insemination upon any female human being shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment in the penitentiary for not less than one year nor more than five years. (b) Any physician or surgeon who obtains written authorization signed by both the husband and the wife authorizing him to perform or administer artificial insemination shall be relieved of civil liability to the husband and wife or to any child conceived by artificial insemination for the result or results of said artificial insemination, provided that the written authorization provided for in this Code section shall not relieve any physician or surgeon from any civil liability arising from his own negligent administration or performance of artificial insemination.

43-34-38. (a) This Code section shall be known and may be cited as the 'Access to Medical Treatment Act.' (b) Notwithstanding any other provision of law, and except as provided in subsection (c) of this Code section, an individual shall have the right to be treated for any illness or disease which is potentially life threatening or chronically disabling by a person licensed to practice medicine under this article with any experimental or nonconventional medical treatment that such individual desires or the legal representative of such individual authorizes if such person licensed to practice medicine under this article has personally examined such individual and agrees to treat such individual. (c) A person licensed to practice medicine under this article may provide any medical treatment to an individual described in subsection (b) of this Code section if:
(1) There is no reasonable basis to conclude that the medical treatment itself, when administered as directed, poses an unreasonable and significant risk of danger to such individual; and (2) The person licensed to practice medicine under this article has provided the patient with a written statement and an oral explanation, which the patient has acknowledged by the patient's signature or the signature of the patient's legal representative, that discloses the facts regarding the nature of the treatment, specifically including that the treatment offered is experimental or nonconventional, that the drug or medical device has not been approved by the Food and Drug Administration for any indication, as well as the material risks generally recognized by reasonably prudent physicians of such treatment's side effects. (d) The treatment of patients in compliance with this Code section by a person licensed to practice medicine under this article shall not by itself constitute unprofessional practice or conduct.

GEORGIA LAWS 2009 SESSION

893

43-34-39. In addition to any other remedy or criminal prosecution, whenever it shall appear to the board that any person, firm, company, partnership, association, or corporation or the agent, officer, or director of such firm, company, partnership, association, or corporation is or has been violating any of the provisions of this article or any of the laws of the state relating to the practice of medicine, the board may, on its own motion or on the verified complaint in writing of any person, file a complaint in its own name in the superior court having venue and jurisdiction over the parties, alleging the facts and praying for a temporary restraining order and an injunction and permanent injunction against such person, firm, company, partnership, association, or corporation, including any agent, officer, or director of same, restraining him or her from violating such law. Upon proofthereof, the court shall issue such restraining order, injunction, and permanent injunction without requiring allegation or proof that the petitioner therefor has no adequate remedy at law. No restraining order or injunction, whether temporary, permanent, or otherwise, shall be granted without a hearing after at least ten days' notice. It is declared that such violation of this article is a menace and a nuisance dangerous to the public health, safety, and welfare.

43-34-40. Any person who shall buy, sell, or fraudulently obtain any diploma, license, record, or registration to practice osteopathic medicine, illegally obtained or signed, or issued unlawfully or under fraudulent representation; or who shall use any of the forms or letters, 'Osteopathy,' 'Osteopath,' 'Osteopathist,' 'Diplomate in Osteopathy,' 'D.O.,' 'D.Sc.O.,' 'Osteopathic Physician,' 'Doctor of Osteopathy,' or any other title or letters, either alone or with other qualifying words or phrases, under such circumstances as to induce the belief that the person who uses such term or terms is engaged in the practice of osteopathic medicine, or anyone who shall hold himself or herself out as practicing any other nondrug-giving school ofmedical practice, without having complied with this article, shall be guilty of a felony.

43-34-41. (a) This Code section shall be known and may be cited as the 'Georgia Volunteers in Medicine Health Care Act.' (b) Notwithstanding any other provision of law, the board shall issue a special license to qualifying physicians under the terms and conditions set forth in this Code section. The special license shall only be issued to a person who:
(1) Is currently licensed to practice medicine in any medical-licensing jurisdiction in the United States and whose license is unrestricted and in good standing; or (2) Is retired from the practice of medicine and not currently engaged in such practice either full time or part time and has, prior to retirement, maintained full licensure in good standing in any medical-licensing jurisdiction in the United States.

894

GENERAL ACTS AND RESOLUTIONS, VOL. I

As used in this subsection, the term 'unrestricted' means that no restrictions have been placed on a physician's license by the board, no sanctions or disciplinary actions have been imposed by the board on a physician, and a physician is not under probation or suspension by the board. (c) The special licensee shall be permitted to practice medicine only in the noncompensated employ ofpersons that provide medical services only to indigent patients in medically underserved or critical need population areas of the state, as determined by the board, or pursuant to Article 8 of Chapter 8 of Title 31. (d) The person applying for the special license under this Code section shall submit to the board a copy of his or her medical degree, a copy of his or her license in his or her current or previous licensing and regulating jurisdiction, and a notarized statement from the employing agency, institution, corporation, association, or health care program, on a form prescribed by the board, whereby he or she agrees unequivocally not to receive compensation for any medical services he or she may render while in possession of the special license. (e) The examination by the board, any application fees, and all licensure and renewal fees shall be waived for the holder of the special license under this Code section and do not apply to such person. (f) If at the time application is made for the special license the physician is not in compliance with the continuing medical education requirements established by the board, such person must document such compliance before a special license is issued.
(g)(1) Except as provided for in paragraph (2) of this subsection, the liability of persons practicing medicine under and in compliance with a special license issued under this Code section and the liability of their employers for such practice shall be governed by Code Section 51-1-29.1. (2) The liability of persons practicing medicine pursuant to Article 8 of Chapter 8 of Title 31 under and in compliance with a special license issued under this Code section and the liability of their employers shall be governed by the provisions of such article. (h) Nothing contained in this Code section shall be construed to authorize the holder of the special license provided for in this Code section to perform surgery or any surgical procedure. (i) This Code section, being in derogation of the common law, shall be strictly construed.

43-34-42. (a) Any person who practices medicine without complying with this article or who otherwise violates any provision of this article shall be guilty of a felony and, upon conviction thereof, shall be punished by a fine of $1,000.00 per each violation or by imprisonment from two to five years, or both. (b) Any person presenting or attempting to file as his or her own the diploma or certificate or credentials of another or who shall give false or forged evidence of any kind to the board or any member thereof in connection with an application for a license to practice medicine

GEORGIA LAWS 2009 SESSION

895

or who shall practice medicine under a false or assumed name or who shall falsely impersonate any other practitioner of a like or different name shall be guilty of a felony and, upon conviction thereof, shall be punished by a fine of $5,000.00 or by imprisonment from two to five years, or both.

43-34-43. (a) As used in this Code section, the term:
(1) 'Program director' means a physician licensed in this state who is responsible for screening, selecting, and supervising physicians enrolled in one or more ofan institution's postgraduate training programs. (2) 'Temporary postgraduate training permit' means a permit issued by the board to a graduate of a board approved medical school or osteopathic medical school who is enrolled in a postgraduate training program deemed acceptable by the board and who does not currently hold a full and unrestricted license in this state. (3) 'Training institution' means an institution that sponsors and conducts a postgraduate training program approved by the Accreditation Council for Graduate Medical Education (ACGME), the American Osteopathic Association (AOA), or other program approved by the board for the training of interns, residents, or postresidency fellows including Canadian schools. (b)(!) An individual seeking to pursue postgraduate medical training in this state who does not hold a license to practice medicine issued under this article shall apply to the board for a temporary postgraduate training permit. The application shall be made on forms that the board shall furnish and shall be accompanied by the application and permit fees set by the board. Such application shall include the following:
(A) Evidence satisfactory to the board that the applicant has been accepted or appointed to participate at a training institution in this state in one of the following:
(i) An internship or residency program accredited by either the Accreditation Council for Graduate Medical Education or the American Osteopathic Association; or (ii) A clinical fellowship program at an institution with a residency program accredited either by the Accreditation Council for Graduate Medical Education or the American Osteopathic Association that is in a clinical field the same as or related to the clinical field of the fellowship program; (B) Information satisfactory to the board that identifies the beginning and ending dates of the period for which the applicant has been accepted or appointed to participate in the internship, residency, or clinical fellowship program; and (C) Any other information that the board requires. Nothing in this Code section shall prohibit an individual from obtaining a full and unrestricted license to practice medicine under this article. (2) If the applicant meets the requirements of paragraph (1) of this subsection, the board shall issue a temporary postgraduate training permit to the applicant. A temporary postgraduate training permit issued pursuant to this subsection shall be valid only for a

896

GENERAL ACTS AND RESOLUTIONS, VOL. I

period of one year but may, in the discretion of the board and upon application duly made and payment of the renewal fee required by the board, be renewed annually for the duration ofthe postgraduate training program for a period not to exceed seven years. The board shall maintain a registry of all individuals who hold temporary postgraduate training permits. (3) The holder of a valid temporary postgraduate training permit shall be entitled to perform such acts as may be prescribed by or incidental to the holder's postgraduate residency training program, but the holder shall not be entitled otherwise to engage in the practice of medicine in this state. The holder shall train only under the supervision of the physicians responsible for supervision as part of the postgraduate training program. The temporary postgraduate training permit shall authorize the person receiving the permit to practice in facilities affiliated with the postgraduate training program only if such practice is part of the training program. (4) Prior to participating in a postgraduate medical training program in this state, individuals must either hold a license to practice medicine or a temporary postgraduate training permit issued by the board or have applied for a temporary postgraduate training permit. The board shall issue temporary postgraduate training permits to applicants meeting the board's qualifications within 30 days of receipt by the board of the application. (5) A temporary postgraduate training permit issued pursuant to this Code section shall expire upon the permit holder's withdrawal or termination from, or completion of, the postgraduate training program or upon obtaining a license to practice medicine under this article. (6) The board shall have the authority to discipline the holder of a temporary postgraduate training permit in the same manner and based upon any ground or violation enumerated in Code Section 43-34-8. (7) By obtaining a temporary postgraduate training permit, the permit holder consents to the release of information pursuant to subsection (d) ofthis Code section from program directors and supervising physicians and authorizes the chairperson of the board to be an agent for service. (c)(l) The board shall have the authority to refuse to issue or renew or to suspend, revoke, or limit a temporary postgraduate training permit based upon any of the grounds or violations enumerated in Code Section 43-34-8. (2) The refusal, suspension, revocation, or limitation of a temporary postgraduate training permit shall not be deemed to be a contested case under Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' and notice and a hearing within the meaning of such chapter shall not be required. The individual or permit holder shall be allowed to appear before the board if he or she so requests regarding such refusal, suspension, revocation, or limitation.

GEORGIA LAWS 2009 SESSION

897

(d)( I) It is the responsibility of the program director for the training program to notify the board upon the permit holder's withdrawal or termination from, or completion of, the postgraduate training program. (2) Program directors shall comply with all other reporting requirements which the board by rule and regulation may require. (3) Failure to comply with the board's reporting requirements shall be grounds for disciplinary action by the board. (e) The board may adopt such rules and regulations as necessary to effect the purpose of this Code section.

43-34-44. Nothing in this article shall be construed to prohibit the performance by medical assistants of medical tasks, including subcutaneous and intramuscular injections; obtaining vital signs; administering nebulizer treatments; or other tasks approved by the board pursuant to rule, if under the supervision by a physician in his or her office; provided, however, that this shall not require on-site supervision at all times, or the performance by medical assistants of medical tasks ordered by a physician assistant or advanced practice registered nurse delegated the authority to issue such an order in accordance with law and pursuant to rules of the board.

43-34-45. (a) As used in this Code section, the term:
(I) 'Polysomnography' means the treatment, management, diagnostic testing, control, education, and care of patients with sleep and wake disorders. Polysomnography includes, but is not limited to, the process of analysis, monitoring, and recording of physiologic data during sleep and wakefulness to assist in the treatment of disorders, syndromes, and dysfunctions that are sleep related, manifest during sleep, or disrupt normal sleep activities. Polysomnography also includes, but is not limited to, the therapeutic and diagnostic use of low-flow oxygen, the use of positive airway pressure including continuous positive airway pressure (CPAP) and hi-level modalities, adaptive servo-ventilation, and maintenance of nasal and oral airways that do not extend into the trachea. (2) 'Polysomnographic technologist' means any person performing polysomnography services under the supervision of a person licensed under this article. (3) 'Supervision' means that the supervising physician licensed under this article shall remain available, either in person or through telephonic or electronic means, at the time that polysomnography services are provided. (b) A physician may delegate tasks involving polysomnography to a polysomnographic technologist without regard to whether such technologist is certified or licensed as a respiratory care therapist under Article 6 of this chapter. (c) Nothing in this Code section shall be construed to:

898

GENERAL ACTS AND RESOLUTIONS, VOL. I

(1) Permit the practice of medicine as defined in this article by polysomnographic technologists; (2) Prohibit a health care provider licensed in this state from engaging in the practice for which he or she is licensed, including, but not limited to, respiratory care professionals certified under Article 6 of this chapter; or (3) Authorize a polysomnographic technologist to treat, manage, control, educate, or care for patients other than those with sleep or wake disorders or to provide diagnostic testing for patients other than those with suspected sleep or wake disorders.

ARTICLE 3

43-34-60. This article shall be known and may be cited as the 'Acupuncture Act of Georgia.'

43-34-61. The General Assembly finds and declares that the practice of acupuncture in Georgia affects the public health, safety, and welfare and that it is necessarily a proper subject of regulation and control.

43-34-62. As used in this article, the term:
(I) 'Acupuncture' means a form of therapy developed from traditional and modem Oriental concepts for health care that employs Oriental medical techniques, treatment, and adjunctive therapies for the promotion, maintenance, and restoration of health and the prevention of disease. (2) 'Auricular (ear) detoxification therapy' means the insertion ofdisposable acupuncture needles into the five auricular acupuncture points stipulated by theNational Acupuncture Detoxification Association protocol for the sole purpose of treatment of chemical dependency. (3) 'Board' means the Georgia Composite Medical Board. (4) 'Practice of acupuncture' means the insertion of disposable acupuncture needles and the application of moxibustion to specific areas of the human body based upon Oriental medical principles as a therapeutic modality. Dry needling is a technique of the practice of acupuncture. Adjunctive therapies within the scope of acupuncture may include manual, mechanical, herbal, thermal, electrical, and electromagnetic treatment and the recommendation of dietary guidelines and exercise, but only if such treatments, recommendations, and exercises are based on concepts of traditional Oriental medicine and are directly related to acupuncture therapy.

GEORGIA LAWS 2009 SESSION

899

43-34-63. The board, in consultation with the advisory committee, shall have the power and responsibility to:
(1) Determine the qualifications and fitness of applicants for licensure and renewal of licensure; (2) Adopt and revise rules consistent with the laws of this state that are necessary to conduct its business, carry out its duties, and administer this article; (3) Examine for, approve, issue, deny, revoke, suspend, and renew the licenses of acupuncture applicants and licensed acupuncturists under this article and conduct hearings in connection with these actions; (4) Conduct hearings on complaints concerning violations of this article and the rules adopted under this article and cause the prosecution and enjoinder of the violations; (5) Establish application, examination, and licensure fees; (6) Request and receive the assistance of state educational institutions or other state agencies and prepare information ofconsumer interest describing the regulatory functions of the board and the procedures by which consumer complaints are filed with and resolved by the board. The board shall make the information available to the public and appropriate state agencies; and (7) Establish continuing education requirements.

43-34-64. (a) Each applicant for a license to practice acupuncture shall meet the following requirements:
(1) Be at least 21 years of age; (2) Submit a completed application required by the board; (3) Submit any fees required by the board; (4) Be certified in acupuncture by a national certification agency accredited by the National Organization of Competency Assurance and approved by the board; (5) Have successfully completed a nationally recognized clean needle technique course approved by the board; (6) Have obtained professional liability insurance in the amount of at least $1 00,000.00/$300,000.00; (7) Have passed an acupuncture examination offered by an organization accredited by the National Organization of Competency Assurance and approved by the board; and (8) Have successfully completed a degree in acupuncture or a formal course of study and training in acupuncture. The applicant shall submit documentation satisfactory to the board to show that such education or course of study and training was:
(A) Completed at a school that is accredited by the Accreditation Commission for Acupuncture and Oriental Medicine (ACAOM) or other accrediting entity approved by the board: or

900

GENERAL ACTS AND RESOLUTIONS, VOL. I

(B) Completed by means of a program of acupuncture study and training that is substantially equivalent to the acupuncture education offered by an accredited school of acupuncture approved by the board. (b) Reserved. (c) Before any person licensed to practice acupuncture under this article, who has less than one year of postgraduate clinical experience, may practice on his or her own, such person must engage in one year ofactive practice under the supervision of a licensed acupuncturist with a minimum of four years active licensed clinical practice. Such supervising acupuncturist may be licensed in Georgia or any other state or country with licensing requirements substantially equal to Georgia's licensing requirements and may accumulate the required four years of active licensed clinical practice in any combination of states so long as the licensing requirements of such other states or countries are substantially equal to Georgia's licensing requirements. (d) Each applicant for a license to perform auricular (ear) detoxification therapy as an auricular (ear) detoxification technician shall meet the following requirements: (I) Be at least 21 years of age; (2) Submit a completed application required by the board; (3) Submit any fees required by the board; (4) Have successfully completed a nationally recognized training program in auricular (ear) detoxification therapy for the treatment of chemical dependency as approved by the board; and (5) Have successfully completed a nationally recognized clean needle technique course approved by the board. (e) The practice of auricular (ear) detoxification therapy may take place in a city, county, state, federal, or private chemical dependency program approved by the board under the direct supervision of a licensed acupuncturist or a person authorized to practice acupuncture by the board who is also authorized to practice medicine under Article 2 of this chapter.

43-34-65. After evaluation of an application and other evidence submitted by an applicant, the board shall notify such applicant that the application and evidence submitted are satisfactory and accepted or unsatisfactory and rejected. If an application is rejected, the notice shall state the reasons for rejection.

43-34-66. (a) Any document evidencing licensure issued by the board is the property of the board and must be surrendered on demand. (b) Every person who holds a license issued by the board in accordance with this article and who is engaged in the active practice of acupuncture or the active practice of auricular

GEORGIA LAWS 2009 SESSION

901

(ear) detoxification therapy as an auricular (ear) detoxification technician shall display the document evidencing licensure in an appropriate and public manner. (c) Every person who holds a license issued by the board shall inform the board of any change of address.

43-34-67. (a) A license issued under this article shall be renewed biennially if the person holding such license is not in violation of this article at the time of application for renewal and if the application fulfills current requirements of continuing education as established by the board. (b) Each person licensed under this article is responsible for renewing his or her license before the expiration date. (c) Under procedures and conditions established by the board, a license holder may request that his or her license be declared inactive. The licensee may apply for active status at any time and, upon meeting the conditions set by the board, shall be declared active.

43-34-68. (a) Any person who undergoes acupuncture must consent to such procedure and shall be informed in general terms of the following:
(1) That the practice of acupuncture is based upon the Oriental arts and is completely distinct and different from traditional western medicine; (2) That the acupuncturist cannot practice medicine, is not making a medical diagnosis of the person's disease or condition, and that such person should see a physician if he or she wants to obtain a medical diagnosis; and (3) The nature and the purpose of the acupuncture treatment. (b) The board shall develop a standard informed consent form to be used by persons licensed under this article. Such informed consent form shall include the information set forth in subsection (a) ofthis Code section as well as any other and additional information the board deems appropriate. The information set forth in the informed consent form shall be in language which is easy to read and readily understandable to the consuming public.

43-34-69. The board, in consultation with the advisory committee, may impose any sanction authorized under subsection (b) of Code Section 43-34-8 upon a finding of any conduct specified in subsection (a) ofCode Section 43-34-8 or a finding that such conduct involved dividing or agreeing to divide a fee for acupuncture services with any person who refers a patient, notwithstanding that such board is not a professional licensing board.

43-34-70. The board shall appoint an acupuncture advisory committee. The advisory committee shall include members ofthe acupuncture profession licensed to practice acupuncture under this

902

GENERAL ACTS AND RESOLUTIONS, VOL. I

article, persons licensed to practice medicine under Article 2 of this chapter who are acupuncturists, and such members as the board in its discretion may determine. Members shall receive no compensation for service on the committee. The committee shall have such advisory duties and responsibilities as the board may determine. Acupuncture advisory committee members must be licensed pursuant to this article.

43-34-71. (a) Unless licensed under this article or exempted under subsection (b) of this Code section, no person shall:
(1) Practice acupuncture or auricular (ear) detoxification therapy; or (2) Represent himself or herself to be an acupuncturist or auricular (ear) detoxification technician who is licensed under this article. (b) The prohibition in subsection (a) of this Code section does not apply to: (1) Any person licensed to practice medicine under Article 2 of this chapter; (2) The practice of acupuncture which is an integral part of the program of study by students enrolled in an acupuncture education program under the direct clinical supervision of a licensed acupuncturist with at least five years of clinical experience; or (3) The practice of acupuncture by any person licensed or certified to perform acupuncture in any other jurisdiction that has requirements equivalent to or more stringent than this article where such person is doing so in the course of regular instruction in an approved educational program of acupuncture or in an educational seminar of an approved professional organization of acupuncture, provided that in the latter case the practice is supervised directly by a person licensed to practice acupuncture pursuant to this article or an acupuncturist who is licensed to practice medicine under Article 2 of this chapter. (c) Any person violating subsection (a) of this Code section shall, upon conviction thereof, be guilty of a misdemeanor.

43-34-72. (a) The titles 'Licensed Acupuncturist' (L. Ac.) and 'Acupuncturist' may only be used by persons licensed under this article. (b) The title 'Auricular Detoxification Technician' (A.D.T.) may only be used by persons licensed to practice auricular (ear) detoxification therapy under this article. Possession of a license to practice as an A.D.T. does not by itself entitle a person to identify himself or herself as an acupuncturist. An auricular (ear) detoxification technician is strictly limited to five ear points' treatment for detoxification for substance abuse, chemical dependency, or both. (c) No person licensed under this article may advertise or hold himself or herself out to the public as being authorized to practice medicine under Article 2 of this chapter.

GEORGIA LAWS 2009 SESSION

903

ARTICLE 4

43-34-100. This article shall be known and may be cited as the 'Physician Assistant Act.'

43-34-101. (a) To alleviate the growing shortage and geographic maldistribution of health care services in this state, the General Assembly intends, by this article, to recognize physician assistants and their role in addressing this growing health care shortage. (b) This article is intended to encourage the more effective utilization of the skills of physicians by enabling them to delegate health care tasks to such assistants where such delegation is consistent with the patient's health and welfare.

43-34-102. As used in this article, the term:
(1) 'Applicant' means an individual seeking licensure as a physician assistant pursuant to this article. (2) 'Alternate supervising physician' means a physician to whom a board approved primary supervising physician has delegated the responsibility of supervising a physician assistant who is licensed to that primary supervising physician and who agrees to supervise the physician assistant for the primary supervising physician and who is on record with the board. (3) 'Board' means the Georgia Composite Medical Board. (4) 'Job description' means a document, signed by the primary supervising physician and the physician assistant, in which the primary supervising physician delegates to that physician assistant authority to perform certain medical acts and which describes the professional background and specialty of the primary supervising physician and the qualifications including related experience of the physician assistant; and includes a general description of how the physician assistant will be utilized in the practice. A job description shall not be required to contain every activity the physician deems the physician assistant qualified to perform but shall confine the activities of the physician assistant to those in the scope of practice of the primary supervising physician. (5) 'Order' means to prescribe pursuant to a job description which drug, medical device, medical treatment, or diagnostic study is appropriate for a patient and to communicate the same in writing, orally, via facsimile, or electronically. (6) 'Physician' means a person lawfully licensed in this state to practice medicine and surgery pursuant to Article 2 of this chapter. (7) ' Physician assistant' means a skilled person who is licensed to a supervising physician and who is qualified by academic and practical training to provide patients' services not necessarily within the physical presence but under the personal direction or supervision of the supervising physician.

904

GENERAL ACTS AND RESOLUTIONS, VOL. I

(8) 'Prescription drug order' means a written or oral order of a physician assistant for a drug or medical device for a specific patient. Such term includes an electronic visual image prescription drug order and an electronic data prescription drug order. (9) 'Primary supervising physician' means the physician to whom the board licenses a physician assistant pursuant to a board approved job description and who has the primary responsibility for supervising the practice of a physician assistant pursuant to that physician assistant's job description.

43-34-103. (a)(l) In order to obtain licensure as a physician assistant, an applicant shall submit an application to the board. Such application shall include: (A) Evidence submitted by the applicant of his or her good moral character; and (B) Evidence of his or her competency in a health care area related to the job description which, as a minimum, shall include: (i) Evidence of satisfactory completion of a training program approved by the board. If the applicant is not a graduate of an accredited school approved by the board, he or she shall be required to receive board approved refresher training and testing; and (ii) Evidence that the applicant has passed the Physician Assistant National Certification Examination (PANCE) administered by the National Commission for the Certification of Physician Assistants (NCCPA), or its successor, or the National Association for the Certification ofAnesthesia Assistants, (NACAA) or its successor. The board may issue a temporary permit to any applicant for licensure who has satisfied the provisions ofdivision (i) ofthis subparagraph and who is an applicant for the next available board approved or administered examination or who has completed this examination and is awaiting the results of such examination. The temporary permit shall expire upon notification ofthe applicant's failure to achieve a satisfactory score on the board approved or administered examination. A physician assistant licensed pursuant to this paragraph shall not be authorized to perform any medical acts of any sort except as approved for utilization by a physician in a job description pursuant to paragraph (2) of this subsection. The board may grant an inactive licensure status to a physician assistant who is licensed pursuant to this article but who is not practicing with the supervision of a board approved primary supervising physician. (2) In order to obtain approval for the utilization of a physician assistant, whether the utilization is in a private practice or through a public or private health care institution or organization, the licensed physician who will be responsible for the performance of such physician assistant shall submit an application to the board which shall include: (i) Evidence that the physician assistant is licensed pursuant to paragraph (1) ofthis subsection;

GEORGIA LAWS 2009 SESSION

905

(ii) A job description meeting the requirements of paragraph (4) of Code Section 43-34-102; and (iii) A fee, established by the board; provided, however, that no fee will be required if the physician assistant is an employee of the state or a county government. (b)(l) No primary supervising physician shall have more than four physician assistants licensed to him or her at a time; provided, however, that no physician may supervise more than two physician assistants at any one time except as provided in paragraph (2) of this subsection. (2)(A) A physician may supervise as many as four physician assistants at any one time while practicing in a group practice in which other physician members of such group practice are primary supervising physicians. (B) A physician may supervise as many as four physician assistants at any one time while acting as an alternate supervising physician: (i) In an institutional setting such as a hospital or clinic; (ii) On call for a primary supervising physician or a group practice; or (iii) If otherwise approved by the board to act as an alternate supervising physician. (3) A primary supervising physician shall designate in writing to the board such other physicians who may serve as an alternate supervising physician for each physician assistant licensed to such primary supervising physician. The board shall have authority to approve or deny such designations in whole or in part; provided, however, a physician may be listed as an alternate supervising physician for any number ofphysician assistants so long as he or she only supervises as many physician assistants at any one time as allowed by paragraph (2) of this subsection. (c)(l) At all times while providing patient services, a physician assistant shall have a signed job description submitted by his or her primary supervising physician and approved by the board. (2) Nothing in this article shall prevent a primary supervising physician from submitting to the board a new or amended physician assistant job description. (d) A physician assistant is authorized to practice in those public or private places or facilities where the supervising physician or alternate supervising physician regularly sees patients, provided that nothing in this article shall prohibit the rendering of services to a patient by a physician assistant who is not in the physical presence of the supervising physician or preclude a physician assistant from making house calls, performing hospital duties, serving as an ambulance attendant, or performing any functions authorized by the supervising physician which the physician assistant is qualified to perform. (e) A physician assistant may not be utilized to perform the duties of a pharmacist licensed under Chapter 4 of Title 26, relating to pharmacists. (e.l )( 1) In addition to and without limiting the authority granted by Code Section 43-34-23, a physician may delegate to a physician assistant in accordance with a job description, the authority to issue a prescription drug order or orders for any device as defined in Code Section 26-4-5, or to issue any dangerous drug as defined in Code

906

GENERAL ACTS AND RESOLUTIONS, VOL. I

Section 16-13-71 or any Schedule III, IV, or V controlled substance as defined in Code Section 16-13-21 on a prescription drug order or prescription device order form as specified in paragraph (3) of this subsection. Delegation of such authority shall be contained in the job description required by this Code section. The delegating physician shall remain responsible for the medical acts of the physician assistant performing such delegated acts and shall adequately supervise the physician assistant. If an existing job description for a physician assistant does not contain such authority to order a prescription drug or device order as provided by this subsection, that physician assistant may not issue any such prescription drug or device order until a new job description delegating such authority is submitted to and approved by the board. Nothing in this Code section shall be construed to authorize the written prescription drug order of a Schedule I or II controlled substance. (2) Nothing in this subsection shall be construed to create a presumption of liability, either civil or criminal, on the part of a pharmacist who is duly licensed under Title 26 and who in good faith fills a prescription drug or device order presented by a patient pursuant to this subsection. The pharmacist shall presume that the prescription drug or device order was issued by a physician assistant duly licensed under this article who has qualified under this Code section to prescribe pharmaceutical agents. The pharmacist shall also presume that the pharmaceutical agent prescribed by the physician assistant is an approved pharmaceutical agent, unless the pharmacist has actual or constructive knowledge to the contrary. (3) The physician assistant shall only be authorized to exercise the rights granted under this subsection using a prescription drug or device order form which includes the name, address, and telephone number of the prescribing supervising or alternate supervising physician, the patient's name and address, the drug or device prescribed, the number of refills, and directions to the patient with regard to the taking and dosage of the drug. A prescription drug order which is transmitted either electronically or via facsimile shall conform to the requirements set out in paragraphs (I) and (2) of subsection (c) of Code Section 26-4-80, respectively. Any form containing less information than that described in this paragraph shall not be offered to or accepted by any pharmacist who is duly licensed under Title 26. (4) The physician assistant or office staff shall notify the patient that the patient has the right to see the physician prior to any prescription drug or device order being issued by the physician assistant. (5) Nothing in this Code section shall be construed to authorize a physician assistant to authorize refills of any drug for more than 12 months from the date of the original prescription drug or device order. (6) A supervising physician or alternate supervising physician shall evaluate or examine, at least every three months, any patient receiving controlled substances.

GEORGIA LAWS 2009 SESSION

907

(7) In addition to the copy of the prescription drug or device order delivered to the patient, a record of such prescription shall be maintained in the patient's medical record in the following manner:
(A) The physician assistant carrying out a prescription drug or device order shall document such order either in writing or by electronic means; and (B) Except in facilities operated by the Division of Public Health of the Department of Human Resources, the supervising physician shall review the prescription drug or device order copy and medical record entry for prescription drug or device orders issued within the past 30 days by the physician assistant. Such review may be achieved with a sampling of no less than 50 percent of such prescription drug or device order copies and medical record entries. (8) A physician assistant is not permitted to prescribe drugs or devices except as authorized in the physician assistant's job description and in accordance with this article. (9) The board shall adopt rules establishing procedures to evaluate an application for a job description containing the authority to order a prescription drug or device and any other rules the board deems necessary or appropriate to carry out the intent and purpose of this Code section or to protect the public welfare. (10) Nothing in this Code section is intended to repeal any rules established by the board relating to the requirements and duties of physician assistants in remote practice sites. (11) A physician assistant authorized by a primary supervising physician to order controlled substances pursuant to this Code section is authorized to register with the federal Drug Enforcement Administration. (12) A physician assistant delegated the authority by the primary supervising physician to issue a prescription drug or device order shall be required to complete a minimum of three hours of continuing education biennially in practice specific pharmaceuticals in which the physician assistant has prescriptive order privileges. A managed care system, health plan, hospital, insurance company, or other similar entity shall not require a physician to be a party to a job description as a condition for participation in or reimbursement from such entity. (e.2) A physician assistant shall be allowed to request, receive, and sign for professional samples and may distribute professional samples to patients, pursuant to authority delegated by the supervising physician of that physician assistant. Delegation of such authority shall be contained in the job description required by this Code section; provided, however, the office or facility at which the physician assistant is working must maintain a list of professional samples approved by the supervising physician for request, receipt, and distribution by the physician assistant as well as a complete list ofthe specific number and dosage of each professional sample received and dispensed. In addition to the requirements of this Code section, all professional samples shall be maintained as required by applicable state and federal law and regulations. As used in this subsection, the term 'professional samples' means complimentary doses of a drug, medication vouchers, or medical devices provided by the manufacturer for use in patient care.

908

GENERAL ACTS AND RESOLUTIONS, VOL. I

(f) A physician employed by the Department of Human Resources or by any institution thereof or by a local health department whose duties are administrative in nature and who does not normally provide health care to patients as such employee shall not be authorized to apply for or utilize the services of any physician assistant employed by the Department of Human Resources or by any institution thereof or by a local health department. (g) Nothing in this article shall be construed to prohibit a physician assistant from performing those acts the performance of which have been delegated to that physician assistant pursuant to and in conformity with Code Section 43-34-23. (h) A physician and a physician assistant may enter into a temporary practice agreement exempt from any filing fees with the board by which agreement the physician supervises the services provided by the physician assistant to patients at a specific facility or program that provides medical services only to indigent patients in medically underserved or critical need population areas of the state, as determined by the board, or pursuant to Article 8 of Chapter 8 of Title 31, provided that:
(I) Such services are provided primarily to financially disadvantaged patients; (2) Such services are free or at a charge to the patient based solely on the patient's ability to pay and provided, further, that such charges do not exceed the actual cost to the facility or program; (3) The supervising physician and the physician assistant voluntarily and gratuitously donate their services; (4) Prior to providing any patient services, a copy of the temporary practice agreement, signed by both the supervising physician and the physician assistant, is on file at the facility or program and is sent to the board; (5) The temporary practice agreement is for a specified period oftime, limits the services of the physician assistant to those within the usual scope of practice of the supervising physician, and is signed by both the supervising physician and the physician assistant prior to the physician assistant providing patient services; and (6) The facility or program has notified the board of its intent to provide patient services and utilize licensed physicians and physician assistants under the conditions set out in this subsection. (i)(l) Notwithstanding any provision of this article to the contrary, a physician assistant licensed pursuant to this article or licensed, certified, or otherwise authorized to practice in any other state or federal jurisdiction and whose license, certification, or authorization is in good standing who responds to a need for medical care created by conditions which characterize those of a state of emergency or public health emergency may render such care that the physician assistant is able to provide with such supervision as is available at the immediate scene or at the local site where such need for medical care exists or at a relief site established as part of a state or local safety plan established pursuant to Chapter 3 of Title 38. Such services shall be provided by a physician assistant in response to the request of an appropriate state or local official implementing a state or local emergency management plan or program, and in accordance with applicable

GEORGIA LAWS 2009 SESSION

909

guidelines established by such officials or plans. The authority granted by this Code section shall last no longer than 48 hours or such time as the board may establish under guidelines for supervision of the physician assistant rendering medical care. (2) For the purposes ofthis subsection, the term 'public health emergency' has the same meaning as in paragraph (6) of Code Section 38-3-3, and the term 'state of emergency' has the same meaning as in paragraph (7) of Code Section 38-3-3. (j) A physician assistant shall be allowed to make a pronouncement of death pursuant to authority delegated by the supervising physician of the physician assistant and to certify such pronouncement in the same manner as a physician. (k) It shall be unlawful for a physician to be an employee of a physician assistant, alone or in combination with others, if the physician is required to supervise the physician assistant; provided, however, that this shall not apply to arrangements of this nature which were approved by the board on or before July 1, 2009. Arrangements approved prior to such date are nontransferable. Such conduct shall be subject to sanctions by the board as to the physician and the physician assistant.

43-34-104. (a) Within a reasonable time after receipt of the documents required by this article, the board shall give to the applicant written notice of approval or disapproval of the physician assistant's application; and, if approval of the application is given, the board shall issue to the assistant a license authorizing the assistant to perform medical tasks under the direction and supervision of the physician. (b) The board shall not approve an application unless it finds from the information forwarded with the application that the applicant has complied with the requirements in this article.

43-34-105. On receipt of notice of the board's approval, a physician assistant, under the direction of the applying physician, may perform the tasks described in the job description, provided that nothing in this Code section shall make unlawful the performance of a medical task by the physician assistant, whether or not such task is specified in the general job description, when it is performed under the direct supervision and in the presence of the physician utilizing him or her.

43-34-106. Any physician, clinic, or hospital using a physician assistant shall post a notice to that effect in a prominent place.

43-34-107. (a) The approval of a physician's utilization of a physician assistant may be terminated and the license revoked by the board when, after due notice and a hearing, in accordance with

910

GENERAL ACTS AND RESOLUTIONS, VOL. I

this Code section, it shall find that the assistant is incompetent or has committed unethical or immoral acts, including, but not limited to, holding himself or herself out or permitting another to represent him or her as a licensed physician; performing otherwise than at the direction of a physician approved by the board to utilize the assistant's services; habitually using intoxicants or drugs to such an extent that he or she is unable safely to perform as an assistant to the physician; or being convicted in any court, state or federal, of any felony or other criminal offense involving moral turpitude. (b) Before the board shall give written notice to the physician assistant of termination of approval granted by it to an assistant, it will give to the assistant a timely and reasonable written notice indicating the general nature of the charges, accusation, or complaint preferred against him and stating that the assistant will be given an opportunity to be heard concerning such charges or complaints; and it shall hold a public hearing within a reasonable time. Following such hearing, the board shall determine, on the basis of its regulations, whether the approval of the assistant shall be terminated. (c) In hearings held pursuant to this Code section, the board shall apply the rules of evidence as prescribed in Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' (d) The board may impose on a physician assistant any sanction authorized under subsection (b) of Code Section 43-34-8 upon a finding of any conduct specified in subsection (a) of Code Section 43-34-8.

43-34-108. In addition to the powers specifically delegated to it in this article, the board shall have the authority to perform all acts which are necessary, proper, or incidental to the efficient development ofthe category of health care established by this article. The board shall have the authority to promulgate rules and regulations governing the definitions of delegation by physicians to qualified persons other than physician assistants of any acts, duties, or functions which are permitted by law or established by custom. Any power vested by law in the board, but not implemented by specific provisions for the exercise thereof, may be executed and carried out by the board in a reasonable manner, pursuant to such rules, regulations, and procedures as the board may adopt and subject to such limitations as may be provided by law.

43-34-109. If a patient receives medical services from a physician assistant more than two times in a 12 month period, the primary or alternate supervising physician shall see such patient on no less than one following visit by the patient during the same 12 month period.

GEORGIA LAWS 2009 SESSION

911

43-34-110. Nothing in this article shall be construed to allow a physician assistant to perform an abortion or to administer, prescribe, or issue a drug order that is intended to cause abortion to occur pharmacologically.

ARTICLE 5

43-34-120. This article shall be known and may be cited as the 'Controlled Substances Therapeutic Research Act.'

43-34-121. (a) The General Assembly finds and declares that the potential medicinal value of marijuana has received insufficient study due to a lack of financial incentives for the undertaking of appropriate research by private drug manufacturing concerns. Individual physicians cannot feasibly utilize marijuana in clinical trials because of federal governmental controls which involve expensive, time-consuming approval and monitoring procedures. (b) The General Assembly further finds and declares that limited studies throughout the nation indicate that marijuana and certain of its derivatives possess valuable and, in some cases, unique therapeutic properties, including the ability to relieve nausea and vomiting which routinely accompany chemotherapy and irradiation used to treat cancer patients. Marijuana also may be effective in reducing intraocular pressure in glaucoma patients who do not respond well to conventional medications. (c) The General Assembly further finds and declares that, in enabling individual physicians and their patients to participate in a state-sponsored program for the investigational use of marijuana and its derivatives, qualified physicians and surgeons throughout the state will be able to study the benefits of the drug in a controlled clinical setting, and additional knowledge will be gained with respect to dosage and effects. (d) It is the intent of the General Assembly in enacting this article to permit research into the therapeutic applications of marijuana and its derivatives in cancer and glaucoma patients. This would allow qualified physicians approved by the Patient Qualification Review Board created by Code Section 43-34-124 to provide the drug on a compassionate basis to seriously ill persons suffering from the severe side effects of chemotherapy or radiation treatment and to persons suffering from glaucoma who are not responding to conventional treatment, which persons would otherwise have no lawful access to it. It is the further intent of the General Assembly to facilitate clinical trials of marijuana and its derivatives, particularly with respect to persons suffering from cancer and glaucoma who would be benefited by use of the drug. (e) This article is limited to clinical trials and research into therapeutic applications of marijuana only for use in treating glaucoma and in treating the side effects of

912

GENERAL ACTS AND RESOLUTIONS, VOL. I

chemotherapeutic agents and radiation and should not be construed as either encouraging or sanctioning the social use of marijuana. Nothing in this article shall be construed to encourage the use of marijuana in lieu of or in conjunction with other accepted medical treatment, but only as an adjunct to such accepted medical treatment.

43-34-122. As used in this article, the term:
(1) 'Board' means the Georgia Composite Medical Board. (2) 'Marijuana' means marijuana or tetrahydrocannabinol, as defined or listed in Article 2 of Chapter 13 of Title 16. (3) 'Physician' means a person licensed to practice medicine pursuant to Article 2 ofthis chapter. (4) 'Program' means the Controlled Substances Therapeutic Research Program established pursuant to Code Section 43-34-123. (5) 'Review board' means the Patient Qualification Review Board established pursuant to Code Section 43-34-124.

43-34-123. (a) There is established under the Georgia Composite Medical Board the Controlled Substances Therapeutic Research Program, which shall be administered by the board. Under the program, the board shall act as a sponsor of state-wide investigational studies, utilizing as drug investigators individual physicians who elect to participate in accordance with the guidelines and protocols developed by the board. Such guidelines and protocols shall be designed to ensure that stringent security and record-keeping requirements for research drugs are met and that participants in the program meet those research standards necessary to establish empirical bases for the evaluation of marijuana as a medically recognized therapeutic substance. The board shall promulgate such rules and regulations as it deems necessary or advisable to administer the program. In promulgating such guidelines, protocols, rules, and regulations, the board shall take into consideration those pertinent rules and regulations promulgated by the Federal Drug Enforcement Agency, the Food and Drug Administration, and the National Institute on Drug Abuse. (b) The program shall be limited to patients who are certified to the board by a physician as being:
(1) Cancer patients involved in a life-threatening situation in which treatment by chemotherapy or radiology has produced severe side effects; or (2) Glaucoma patients who are not responding to conventional controlled substances. (c) No patient may be admitted to the program without full disclosure by the physician of the experimental nature of the program and of the possible risks and side effects of the proposed treatment. (d) The cost of any blood test required by the federal Food and Drug Administration prior to entrance into the pro gram shall be paid by the patient seeking entrance into the program.

GEORGIA LAWS 2009 SESSION

913

(e) Only the following persons shall have access to the names and other identifying characteristics of patients in the program for whom marijuana has been prescribed under this article:
(1) The board; (2) The review board created by Code Section 43-34-124; (3) The Attorney General or his or her designee; (4) Any person directly connected with the program who has a legitimate need for the information; and (5) Any federal agency having responsibility for the program.

43-34-124. (a) The board shall appoint the Patient Qualification Review Board. Each member of the review board shall be approved for such membership by a majority vote of the board and shall serve at the pleasure of the board. The review board shall be composed of:
(1) A board certified physician in ophthalmology; (2) A board certified physician in surgery; (3) A board certified physician in internal medicine and medical oncology; (4) A board certified physician in psychiatry; (5) A board certified physician in radiology; and (6) A pharmacist licensed under Chapter 4 ofTitle 26, relating to pharmacists, pharmacy, and drugs. (b) The review board shall elect from its members a chairperson and a vice chairperson. The review board shall hold regular meetings at least once every 60 days and shall meet at such additional times as shall be called by the chairperson of the review board or the chairperson of the board. Each member of the review board shall receive for services for each day's attendance upon meetings of such board the same amount authorized by law for members ofthe General Assembly for attendance upon meetings ofthe General Assembly. (c) The board shall adopt such rules and regulations as it deems necessary for the performance of the duties of the review board. (d) The review board shall review all patient applicants for the program and their physicians and shall certify those qualified for participation in the program. The review board shall additionally certify pharmacies which are licensed by the state and which are otherwise qualified and certify physicians regarding the distribution of marijuana pursuant to Code Section 43-34-125. Meetings of the review board to certify patients, physicians, or pharmacies shall not be open to the public, as otherwise required by Chapter 14 of Title 50.

43-34-125. (a) The board shall apply to contract with the National Institute on Drug Abuse for receipt of marijuana pursuant to this article and pursuant to regulations promulgated by the

914

GENERAL ACTS AND RESOLUTIONS, VOL. I

National Institute on Drug Abuse, the Food and Drug Administration, and the Federal Drug Enforcement Agency. (b) The board shall cause marijuana approved for use in the program to be transferred to a certified pharmacy, licensed by the state, for distribution to the certified patient by a licensed pharmacist upon a written order for research medication ofthe certified physician, pursuant to this article. Any reasonable costs incurred by the board in obtaining or testing marijuana shall be charged to participating physicians who may seek reimbursement from their research subjects utilizing the marijuana.

43-34-126. Patient participants in the program are immune from state prosecution for possession of marijuana as authorized by this article and under the program established in this article. A person authorized under this program shall not possess an amount of marijuana in excess of the amount prescribed under the authority of this article. The amount prescribed shall be maintained in the container in which it was placed at the time the prescription was filled. Physician, pharmacy, and pharmacist participants in the program are immune from state prosecution for possession, distribution, and any other use of marijuana, which use is authorized such persons by this article. Any such possession, distribution, or other use not authorized by this article shall be enforced and punished as provided in Chapter 13 of Title 16, relating to controlled substances and dangerous drugs, and Chapter 4 of Title 26, relating to pharmacists and pharmacies.

ARTICLE 6

43-34-140. This article shall be known and may be cited as the 'Respiratory Care Practices Act.'

43-34-141. The General Assembly finds and declares that the practice of respiratory care in Georgia affects the public health, safety, and welfare and that it is necessarily a proper subject of regulation and control.

43-34-142. As used in this article, the term:
(1) 'Board' means the Georgia Composite Medical Board. (2) 'Respiratory care' means the rendering of services to patients with deficiencies or abnormalities which affect the pulmonary and cardiac systems and which services involve therapy, management, rehabilitation, diagnostic evaluation, education, or care of such patients with regard to such deficiencies or abnormalities. (3) 'Respiratory care professional' means any person certified under this article to practice respiratory care.

GEORGIA LAWS 2009 SESSION

915

43-34-143. The board, in consultation with the advisory committee, shall have the power and responsibility to:
( 1) Determine the qualifications and fitness of applicants for certification, renewal ofthe certificate, and reciprocal certification; (2) Adopt and revise rules consistent with the laws of the State of Georgia that are necessary to conduct its business, carry out its duties, and administer this article; (3) Examine for, approve, issue, deny, revoke, suspend, and renew the certification of respiratory care professional applicants and certificate holders under this article and conduct hearings in connection with these actions; (4) Conduct hearings on complaints concerning violations of this article and the rules adopted under this article and cause the prosecution and enjoinder of the violations; (5) Establish application, examination, and certification fees; (6) Request and receive the assistance of state educational institutions or other state agencies; (7) Prepare information of consumer interest describing the regulatory functions of the board and describing the procedures by which consumer complaints are filed with and resolved by the board. The board shall make the information available to the general public and appropriate state agencies; and (8) Establish continuing education requirements.

43-34-144. (a) Each applicant for certification as a respiratory care professional shall meet the following requirements:
(1) Is at least 18 years of age; (2) Has submitted a completed application as required by the board; (3) Has submitted any fees required by the board; (4) Has successfully passed the entry level examination given by the National Board for Respiratory Care, Inc., or such other examination as the board may in its discretion administer or approve; and (5) Has met such other requirements as may be prescribed by the board. (b) In addition to the requirements specified in subsection (a) of this Code section, each applicant for certification under this article shall be working under the supervision or direction of a person licensed under Article 2 of this chapter and shall, in order to maintain certification, continue to work under the supervision or direction ofa person licensed under Article 2 of this chapter.

43-34-145. After evaluation ofan application and other evidence submitted, the board shall notify each applicant that the application and evidence submitted are satisfactory and accepted or unsatisfactory and rejected. If rejected, the notice shall state the reasons for the rejection.

916

GENERAL ACTS AND RESOLUTIONS, VOL. I

43-34-146. (a) Any document evidencing certification issued by the board is the property of the board and must be surrendered on demand. (b) The certificate holder shall display the document evidencing certification in an appropriate and public manner. (c) The certificate holder shall inform the board of any change of address. (d) The certificate shall be renewed biennially if the certificate holder is not in violation of this article at the time of application for renewal and if the applicant fulfills current requirements of continuing education as established by the board. (e) Each person certified under this article is responsible for renewing his or her certificate before the expiration date. (f) Under procedures and conditions established by the board, a certificate holder may request that his or her certification be declared inactive. The certificate holder may apply for active status at any time and upon meeting the conditions set by the board shall be declared active. (g) The board shall be authorized to:
(I) Require persons seeking renewal of certification as respiratory care professionals under this article to complete board approved continuing education; (2) Establish the number of hours of continuing education to be completed as well as the categories in which the continuing education is to be completed; and (3) Approve courses offered by institutions of higher learning, specialty societies, or professional organizations.

43-34-147. Upon payment of a fee determined by the board, a temporary permit may be issued to practice respiratory care:
(I) For a period of 12 months to an applicant for certification under Code Section 43-34-148 providing that applicant presents written evidence verified by oath that the applicant was certified, licensed, or practicing respiratory care within the last 12 months in another state; or (2) To a person who is a graduate of an accredited respiratory therapy program accredited by the Commission on Accreditation ofAllied Health Education Programs, or the equivalent thereof as accepted by the board, pending completion of the other requirements for certification under this article.

43-34-148. An individual who has been granted certification, registration, licensure, or other authority by whatever name known to practice respiratory care in another state having requirements for such authority to practice which are substantially equal to or which exceed the requirements for a similar certificate in this state may petition the board for reciprocity in this state and, upon submission of an application and requisite fees and upon verification

GEORGIA LAWS 2009 SESSION

917

by oath and submission of evidence acceptable to the board, may be granted a certificate to practice respiratory care in Georgia.

43-34-149. The board, in consultation with the advisory committee, may impose on a respiratory care professional any sanction authorized under subsection (b) of Code Section 43-34-8 upon a finding of any conduct specified in subsection (a) of Code Section 43-34-8.

43-34-150. The board shall appoint a respiratory care advisory committee. The committee shall be composed ofpersons engaged in the practice ofrespiratory therapy, persons licensed under Article 2 of this chapter who specialize or are board certified in pulmonary medicine, and such members as the board at its discretion may determine. Members shall receive no compensation for service on the committee. The committee shall have such advisory duties and responsibilities as the board may determine.

43-34-151. (a) Unless certified under this article or exempted under subsection (b) of this Code section, no person shall:
(I) Practice respiratory care; or (2) Represent himself or herself to be a respiratory care professional who is certified under this article. (b) The prohibition in subsection (a) of this Code section does not apply to: (I) The delivery of respiratory care by health care personnel who have been formally trained in these modalities and who are duly licensed to provide that care under any other provision of this title; (2) The practice of respiratory care which is an integral part of the program of study by students enrolled in a respiratory care education program recognized by the Joint Review Committee for Respiratory Therapy Education and the American Medical Association Committee on Allied Health Education and Accreditation (CAHEA) or the equivalent thereof as accepted by the board. Students enrolled in respiratory therapy education programs shall be identified as 'student-RCP' and shall only provide respiratory care under direct clinical supervision; (3) Self-care by a patient or gratuitous care by a friend or family member who does not represent or hold himself or herself out to be a respiratory care professional; (4) Respiratory care services rendered in the course of an emergency or disaster; (5) Persons in the military services or working in federal facilities when functioning in the course of their assigned duties; (6) The performance of respiratory care diagnostic testing by individuals who are certified or registered as pulmonary function technologists by the National Board for Respiratory Care, or equivalent certifying agency, as recognized by the board;

918

GENERAL ACTS AND RESOLUTIONS, VOL. I

(7) The delivery, assembly, setup, testing, and demonstration of oxygen and aerosol equipment upon the order of a physician licensed under Article 2 of this chapter; (8) Persons who perform limited respiratory care procedures under the supervision of a certified respiratory care professional in a hospital or nursing home when the board has defined the competencies required to perform such limited respiratory care procedures; or (9) Persons who perform polysomnography under Code Section 43-34-45. (c) Any person violating the prohibition of subsection (a) of this Code section shall be guilty of a misdemeanor. (d) Practitioners regulated under this article shall be covered pursuant to Code Section 51-1-29. (e) Nothing in this article shall be construed to permit the practice of medicine as defined by this chapter.

43-34-152. Proceedings under this article shall be governed by Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.'
ARTICLE 7
43-34-170. This article shall be known and may be cited as the 'Clinical Perfusionist Licensure Act.'
43-34-171. As used in this article, the term:
(l) 'Advisory committee' means the committee appointed pursuant to Code Section 43-34-180. (2) 'Board' means the Georgia Composite Medical Board. (3) 'Extracorporeal circulation' means the diversion of a patient's blood through a heart-lung machine or a similar device that assumes the function of the patient's heart, lungs, kidneys, liver, or other organ. (4) 'License' means a license to practice as a licensed clinical perfusionist or provisional licensed clinical perfusionist. (5) 'Licensed clinical perfusionist' means a person licensed as such pursuant to this article. (6) 'Perfusion' means the functions necessary for the support, treatment, measurement, or supplementation of the cardiovascular, circulatory, or respiratory system or other organ, or a combination of such activities, and to ensure the safe management of physiologic functions by monitoring and analyzing the parameters of the systems under the order and supervision of a physician, including, but not limited to:

GEORGIA LAWS 2009 SESSION

919

(A) The use of extracorporeal circulation; long-term cardiopulmonary support techniques, including extracorporeal carbon dioxide removal and extracorporeal membrane oxygenation; and associated therapeutic and diagnostic technologies; (B) Counterpulsation, ventricular assistance, autotransfusion, blood conservation techniques, myocardial and organ preservation, extracorporeallife support, and isolated limb perfusion; (C) The use of techniques involving blood management, advanced life support, and other related functions; (D) In the performance of the acts described in subparagraphs (A) through (C) of this paragraph:
(i) The administration of: (I) Pharmacological and therapeutic agents; or (II) Blood products or anesthetic agents through the extracorporeal circuit or through an intravenous line as ordered by a physician; or
(ii) The performance and use of: (I) Coagulation monitoring and analysis; (II) Physiologic monitoring and analysis; (III) Blood gas and chemistry monitoring and analysis; (IV) Hematological monitoring and analysis; (V) Hypothermia and hyperthermia; (VI) Hemoconcentration and hemodilution; and (VII) Hemodialysis; and
(E) The observation of signs and symptoms related to perfusion services, the determination ofwhetherthe signs and symptoms exhibit abnormal characteristics, and the implementation of appropriate reporting, clinical perfusion protocols, or changes in, or the initiation of, emergency procedures. (7) 'Perfusion protocols' means perfusion related policies and protocols developed or approved by a licensed health care facility or a physician through collaboration with administrators, licensed clinical perfusionists, and other health care professionals. (8) 'Physician' means a person licensed to practice medicine under Article 2 of this chapter. (9) 'Provisional licensed clinical perfusionist' means a person provisionally licensed pursuant to this article.

43-34-172. The board, in consultation with the advisory committee, shall have the power and responsibility to:
(I) Determine the qualifications and fitness of applicants for licensure and renewal of licensure; (2) Adopt and revise rules consistent with the laws of this state that are necessary to conduct its business, carry out its duties, and administer this article;

920

GENERAL ACTS AND RESOLUTIONS, VOL. I

(3) Examine for, approve, issue, deny, revoke, suspend, sanction, and renew the licenses of board applicants for licensure as licensed clinical perfusionists and provisional licensed clinical perfusionists under this article and conduct hearings in connection with these actions; (4) Conduct hearings on complaints concerning violations of this article and the rules adopted under this article and cause the prosecution and enjoinder of the violations; (5) Establish application, examination, and licensure fees; (6) Request and receive the assistance of state educational institutions or other state agencies and prepare information ofconsumer interest describing the regulatory functions of the board and the procedures by which consumer complaints are filed with and resolved by the board. The board shall make the information available to the public and appropriate state agencies; and (7) Establish education, examination, and continuing education requirements.

43-34-173. (a) Except as otherwise provided in subsection (b) of this Code section, each applicant for a license to practice as a licensed clinical perfusionist shall meet the following requirements:
( l) Be at least 21 years of age; (2) Submit a completed application required by the board; (3) Submit any fees required by the board; (4) Have successfully completed a perfusion education program approved by the board, which program has educational standards at least as stringent as programs approved by the Committee on Allied Health Education and Accreditation (CAHEA) prior to 1994 or the Commission on Accreditation of Allied Health Education Programs (CAAHEP) or its successor; (5) Pass a competency examination prepared or approved by the board and administered to qualified applicants at least once each calendar year, which examination may be or may include the complete examination given by the American Board of Cardiovascular Perfusion (ABCP) or its successor; and (6) Have met such other requirements as may be prescribed by the board. (b) The executive director, with the approval of the chairperson of the board, may in his or her discretion issue a temporary license to an applicant, which license shall have the same force and effect as a permanent license until the next regular meeting of the board at which time the temporary license shall become void.

43-34-174. (a) A license is not the property of the holder but is the property of the board. A license to practice perfusion is valid for two years. The board may provide that licenses expire on various dates. A person may renew an unexpired license by submitting proof of current certification by the American Board of Cardiovascular Perfusion (ABCP) or its successor

GEORGIA LAWS 2009 SESSION

921

and compliance with the continuing professional education requirements prescribed by the board and paying the required renewal fee to the board before the expiration date of the license. (b) The license holder must:
(1) Display the license in an appropriate and public manner; or (2) Maintain on file at all times during which the license holder provides services in a health care facility a true and correct copy of the license certificate in the appropriate records of the facility and keep the board informed of any change of address. (c) A license issued by the board is the property of the board and shall be surrendered on demand. (d) Each person licensed under this article shall be responsible for renewing his or her license before the expiration date. (e) If a person's license has been expired for not more than three months, the person may renew the license by submitting proof, satisfactory to the board, of compliance with the continuing professional education requirements prescribed by the board and any penalty fee prescribed by the board. (f) If a person's license has been expired for more than three months, the person may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the current requirements and procedures for obtaining a license. (g) The board may reinstate without reexamination an expired license of a person who was licensed in this state, moved to another state or states, is currently licensed or certified, and has been in practice in another state or states for two years immediately preceding the person's application to reinstate a license. The person shall pay the required fee as established by the board.

43-34-175. (a) A license as a provisional licensed clinical perfusionist may be issued by the board to a person who submits to the board evidence of having successfully completed an approved perfusion education program required for licensure under Code Section 43-34-173 and upon the filing of an application and payment of the application fee. (b) A provisional licensed clinical perfusionist shall be under the supervision and direction of a licensed clinical perfusionist at all times during which the provisional licensed clinical perfusionist performs perfusion. The board may promulgate rules governing such supervision and direction but shall not require the immediate physical presence of the supervising licensed clinical perfusionist. (c) A provisional license shall be valid for two years from the date it is issued and may not be renewed. The provisional licensee must comply with all of the requirements for licensure under Code Section 43-34-173 prior to the expiration ofthe two-year provisional license period. A provisional licensee may submit an application for licensure as a licensed clinical perfusionist once he or she has complied with all of the requirements for licensure under Code Section 43-34-173.

922

GENERAL ACTS AND RESOLUTIONS, VOL. I

(d) If a person fails to meet the requirements for licensure under Code Section 43-34-173 on or before the expiration of the two-year provisional license period, such person's provisional license shall be automatically revoked and surrendered to the board.

43-34-176. On receipt of an application and application fee, the board may waive the examination and educational requirements for an applicant who at the time of application:
(I) Is appropriately licensed or certified in another state, territory, or possession whose requirements for the license or certificate are substantially equal to the requirements of this article; or (2) Holds a current certificate as a certified clinical perfusionist issued by the American Board of Cardiovascular Perfusion (ABCP) or its successor.

43-34-177. (a) A person may not engage or offer to engage in perfusion or use the title or represent or imply that the person has the title of 'licensed clinical perfusionist' or 'provisional licensed clinical perfusionist' or use the letters 'L.C.P.' or 'P.L.C.P.' and may not use any facsimile of such titles in any manner to indicate or imply that the person is a licensed clinical perfusionist or provisional licensed clinical perfusionist unless the person holds an appropriate license issued pursuant to this article or is exempted under the provisions of Code Section 43-34-178. (b) A person may not use the title or represent or imply that such person has the title 'certified clinical perfusionist' or use the letters 'C.C.P.' and may not use any facsimile of such title in any manner to indicate or imply that such person is a certified clinical perfusionist certified by the American Board of Cardiovascular Perfusion (ABCP) unless the person holds a certificate as a certified clinical perfusionist issued by the American Board of Cardiovascular Perfusion (ABCP). (c) Any person who violates the provisions of subsection (a) or (b) of this Code section shall be guilty of a misdemeanor.

43-34-178. (a) The provisions of Code Section 43-34-177 shall not apply to:
(I) A person licensed as a physician pursuant to Article 2 of this chapter; (2) A person licensed under this title as a registered professional nurse or a licensed physician assistant or certified as a respiratory care professional under this title if:
(A) The person does not represent to the public, directly or indirectly, that the person is licensed pursuant to this article and does not use any name, title, or designation indicating that he or she is licensed pursuant to this article; and (B) The person limits his or her acts or practice to the scope of practice authorized by the appropriate licensing agency;

GEORGIA LAWS 2009 SESSION

923

(3) Any person performing autotransfusion who possesses appropriate training and practices within the guidelines of the American Association of Blood Banks under the supervision of a perfusionist licensed under this article or a physician licensed under Article 2 of this chapter; (4) A student enrolled in an accredited perfusion education program if the perfusion services performed are:
(A) An integral part of the student's course of study; and (B) Performed under the direct supervision of a licensed clinical perfusionist who is assigned to supervise the student and is on duty and immediately available in the assigned patient care area; (5) The practice of any legally qualified perfusionist employed by the United States government while in the discharge of his or her official duties; or (6) A person working as a dialysis care technician in an end stage renal disease facility licensed pursuant to Chapter 44 of Title 31 or a licensed hospital. (b) Any person violating subsection (a) of this Code section shall be guilty of a felony.

43-34-179. The board, in consultation with the advisory committee, may impose on a licensed clinical perfusionist or a provisional licensed clinical perfusionist any sanction authorized under subsection (b) of Code Section 43-34-8 upon a finding of any conduct specified in subsection (a) of Code Section 43-34-8.

43-34-180. The board shall appoint an advisory committee. The advisory committee shall include clinical perfusionists licensed under this article and such members as the board in its discretion may determine. Members shall receive no compensation for service on the committee. The committee shall have such advisory duties and responsibilities as the board may determine. Advisory committee members must be licensed pursuant to this article.

ARTICLE 8

43-34-190. This article shall be known and may be cited as the 'Orthotics and Prosthetics Practice Act.'

43-34-191. The General Assembly finds that the practice of orthotics and prosthetics in this state is an allied health profession recognized by the American Medical Association, with educational standards established by the Commission on Accreditation of Allied Health Education Programs. The increasing population of elderly and physically challenged individuals who need orthotic and prosthetic services requires that the orthotic and prosthetic professions be regulated to ensure the provision of high-quality services and devices. The people of

924

GENERAL ACTS AND RESOLUTIONS, VOL. I

this state deserve the best care available and will benefit from the assurance of initial and ongoing professional competence of the orthotists and prosthetists practicing in this state. The practice of orthotics and prosthetics serves to improve and enhance the lives of individuals with disabilities by enabling them to resume productive lives following serious illness, injury, or trauma. Unregulated dispensing of orthotic and prosthetic care does not adequately meet the needs or serve the interests of the public. In keeping with requirements imposed on similar health disciplines, licensure ofthe orthotic and prosthetic professions will help ensure the health and safety of consumers, as well as maximize their functional abilities and productivity levels. This article shall be liberally construed to best carry out these subjects and purposes.

43-34-192. As used in this article, the term:
( 1) 'Assistant' means a person who assists an orthotist, prosthetist, or prosthetist orthotist with patient care services and fabrication of orthoses or prostheses under the supervision of a licensed orthotist or prosthetist. (2) 'Board' means the Georgia Composite Medical Board. (3) 'Custom fabricated and fitted device' means that an orthosis or prosthesis is fabricated to original measurements or a mold, or both, for use by a patient in accordance with a prescription and which requires substantial clinical and technical judgment in its design and fitting. (4) 'Custom fitted device' means a prefabricated orthosis or prosthesis sized or modified, or both, for use by a patient in accordance with a prescription and which requires substantial clinical judgment and substantive alteration for appropriate use. (5) 'Facility' means the business location where orthotic or prosthetic care is provided and which has the appropriate clinical and laboratory space and equipment to provide comprehensive orthotic or prosthetic care. Licensed orthotists and prosthetists must be available to either provide care or supervise the provision of care by nonlicensed staff. (6) 'Level of competence' means a hierarchical position that an individual occupies within a field or profession relative to other practitioners in the profession. (7) 'Licensed orthotist' means a person licensed under this article to practice orthotics and who represents himself or herself to the public by title and description of services that includes the term 'orthotic,' 'orthotist,' 'brace,' or a similar title or description of services. (8) 'Licensed physician' means a person licensed to practice medicine under Article 2 of this chapter. (9) 'Licensed podiatrist' means a person licensed to practice podiatry under Chapter 35 of this title, the 'Georgia Podiatry Practice Act.' (10) 'Licensed prosthetist' means a person licensed under this article to practice prosthetics and who represents himself or herself to the public by title and description of services that includes the term 'prosthetic,' 'prosthetist,' 'artificial limb,' or a similar title or description of services.

GEORGIA LAWS 2009 SESSION

925

( 11) 'Off-the-shelfdevice' means a prefabricated prosthesis or orthosis sized or modified, or both, for use by a patient in accordance with a prescription and which does not require substantial clinical judgment and substantive alteration for appropriate use. (12) 'Orthosis' means a custom designed, fabricated, fitted, modified, or fitted and modified device to correct, support, or compensate for a neuromusculoskeletal disorder or acquired condition. Orthosis does not include fabric or elastic supports, corsets, arch supports, low-temperature plastic splints, trusses, elastic hoses, canes, crutches, soft cervical collars, dental appliances, or other similar devices that are carried in stock and sold as over-the-counter items by a drug store, department store, corset shop, or surgical supply facility. (13) 'Orthotic and prosthetic education program' means a course of instruction accredited by the Commission on Accreditation of Allied Health Education Programs consisting of:
(A) A basic curriculum of college level instruction in math, physics, biology, chemistry, and psychology; and (B) A specific curriculum in orthotic or prosthetic courses, including:
(i) Lectures covering pertinent anatomy, biomechanics, pathomechanics, prosthetic or orthotic components and materials, training and functional capabilities, prosthetic or orthotic performance evaluation, prescription considerations, etiology of amputations and disease processes necessitating prosthetic or orthotic use, and medical management; (ii) Subject matter related to pediatric and geriatric problems; (iii) Instruction in acute care techniques, such as immediate and early postsurgical prosthetics and fracture bracing techniques; and (iv) Lectures, demonstrations, and laboratory experiences related to the entire process of measuring, casting, fitting, fabricating, aligning, and completing prostheses or orthoses. (14) 'Orthotic and prosthetic scope of practice' means a list that includes the role played by an occupant of a particular level of competence, what he or she can be expected to do and not to do, and his or her relation to others in the field. These should be based on nationally accepted standards of orthotic and prosthetic certifying agencies with accreditation by the National Commission for Certifying Agencies. (15) 'Orthotics' means the science and practice of evaluating, measuring, designing, fabricating, assembling, fitting, adjusting, or servicing an orthosis under an order from a licensed physician or podiatrist for the correction or alleviation of neuromuscular or musculoskeletal dysfunction, disease, injury, or deformity. (16) 'Orthotist' means an allied health professional who is specifically trained and educated to provide or manage the provision of a custom designed, fabricated, or modified and fitted external orthosis to an orthotic patient based on a clinical assessment and a physician's or podiatrist's prescription to restore physiological function or cosmesis or both and who represents himself or herself to the public by such title as providing orthotic services.

926

GENERAL ACTS AND RESOLUTIONS, VOL. I

(17) 'Over-the-counter device' means a prefabricated, mass produced device that is prepackaged and requires no professional advice or judgment in either size selection or use and includes fabric or elastic supports, corsets, generic arch supports, and elastic hoses. (18) 'Person' means a natural person. (19) 'Prosthesis' means a custom designed, fabricated, fitted, modified, or fitted and modified device to replace an absent external limb for purposes ofrestoring physiological function or cosmesis or both. Prosthesis does not include artificial eyes, ears, fingers, or toes; dental appliances; cosmetic devices such as artificial breasts, eyelashes, or wigs; or other devices that do not have a significant impact on the musculoskeletal functions of the body. (20) 'Prosthetics' means the science and practice of evaluating, measuring, designing, fabricating, assembling, fitting, adjusting, or servicing a prosthesis under an order from a licensed physician or podiatrist. (21) 'Prosthetist' means an allied health professional who is specifically trained and educated to provide or manage the provision of a custom designed, fabricated, modified, and fitted external limb prosthesis to a prosthetic patient based on a clinical assessment and a physician's or podiatrist's prescription to restore physiological function or cosmesis or both and who represents himself or herself to the public by such title as providing prosthetic services. (22) 'Prosthetist orthotist' means a person who practices both disciplines of prosthetics and orthotics and who represents himself or herself to the public by such title as providing prosthetic and orthotic services. (23) 'Resident' means a person who has completed an education program in either orthotics or prosthetics and is continuing his or her clinical education in a residency accredited by the National Commission on Orthotic and Prosthetic Education. (24) 'Technician' means a person who assists an orthotist, prosthetist, or prosthetist orthotist with fabrication of orthoses or prostheses but does not provide direct patient care.

43-34-193. This article shall not be construed to prohibit:
(I) A licensed physician from engaging in the practice for which he or she is licensed; (2) A person licensed in this state under any other law from engaging in the practice for which he or she is licensed; (3) The practice of orthotics or prosthetics by a person who is employed by the federal government or any bureau, division, or agency of the federal government while in the discharge of the employee's official duties; (4) The practice of orthotics or prosthetics by:
(A) A student enrolled in a school of orthotics or prosthetics; or

GEORGIA LAWS 2009 SESSION

927

(B) A resident continuing his or her clinical education in a residency accredited by the National Commission on Orthotic and Prosthetic Education; (5) The practice of orthotics or prosthetics by a person who is an orthotist or prosthetist licensed under the laws of another state or territory of the United States or another country and has applied in writing to the board, in a form and substance satisfactory to the board, for a license as an orthotist or prosthetist and who is qualified to receive the license until: (A) The expiration of six months after the filing of the written application; (B) The withdrawal of the application; or (C) The denial of the application by the board; (6) A person licensed by this state as a physical therapist or occupational therapist from engaging in his or her profession; (7) A licensed podiatrist from engaging in his or her profession; (8) A licensed athletic trainer from engaging in his or her profession; (9) A registered pharmacist from engaging in the practice for which he or she is registered; (10) Any person licensed, certified, or permitted under any other article of this chapter from engaging in the practice for which he or she is licensed, certified, or permitted; (11) The measuring, molding, or fitting of knee braces by any person; (12) Employees or authorized representatives ofan orthotic manufacturer from engaging in one or more of the following: evaluating, adjusting, measuring, designing, fabricating, assembling, fitting, servicing, training, repairing, replacing, or delivering an orthotic device under the order, direction, or prescription of a physician or health provider operating within his or her licensed scope of practice and meeting the criteria of the Part II Policy and Procedures for Orthotics and Prosthetics Services pursuant to Title XIX of the federal Social Security Act, as amended; or (13) A board certified pedorthist from manufacturing, fabricating, dispensing, or any combination thereof custom foot orthotics or foot or ankle gauntlets.

43-34-194. An application for an original license shall be made to the board on a form prescribed thereby and shall be accompanied by the required fee, which shall not be refundable. An application shall require information that in the judgment of the board will enable it to determine the qualifications of the applicant for a license.

43-34-195. (a) To qualify for a license to practice orthotics or prosthetics, a person shall:
(1)(A) Possess a baccalaureate degree from a college or university; (B) Have completed the amount of formal training, including, but not limited to, any hours of classroom education and clinical practice, established and approved by the board; and

928

GENERAL ACTS AND RESOLUTIONS, VOL. I

(C) Complete a clinical residency in the professional area for which a license is sought in accordance with standards, guidelines, or procedures for residencies inside or outside this state established and approved by the board. The majority of training must be devoted to services performed in the discipline for which the license will be sought and under the supervision of a practitioner licensed in orthotics or prosthetics or a person certified as an orthotist, prosthetist, or prosthetist orthotist, provided that the certification was obtained before the date this article becomes effective; or (2)(A) Possess an associate's degree from a college or university with specific courses of study in human anatomy, physiology, physics, chemistry, and biology; and (B) Have completed at least five years of continued work experience performed in the discipline for which the license will be sought under the supervision of a practitioner licensed in such discipline or certified in such discipline by an agency accredited by the National Commission for Certifying Agencies; (3) Pass all written, practical, and oral examinations that are required and approved by the board; (4) Be qualified to practice in accordance with nationally accepted standards of orthotic and prosthetic care; and (5) Have met such other requirements as may be prescribed by the board. (b) The standards and requirements for licensure established by the board shall be substantially equal to or in excess of standards commonly accepted in the profession of orthotics or prosthetics. The board shall adopt rules as necessary to set the standards and requirements. (c) A person may be licensed in more than one discipline.

43-34-196. The board, in consultation with the advisory committee, may impose on a licensed orthotist or prosthetist any sanction authorized under subsection (b) of Code Section 43-34-8 upon a finding of any conduct specified in subsection (a) of Code Section 43-34-8.

43-34-197. (a) No person shall work as an assistant to an orthotist, prosthetist, or prosthetist orthotist and provide patient care services or fabrication of orthoses or prostheses unless he or she is doing the work under the supervision of a licensed orthotist, prosthetist, or prosthetist orthotist. (b) No person shall work as a technician unless the work is performed under the supervision of a person licensed under this article.

43-34-198. (a) Until July 1, 2007, a person certified as an orthotist, prosthetist, or prosthetist orthotist by the American Board for Certification in Orthotics and Prosthetics, Incorporated or the Board of Orthotist/Prosthetist Certification, or holding similar certifications from other

GEORGIA LAWS 2009 SESSION

929

accrediting bodies with equivalent educational requirements and examination standards, may apply for and may be granted orthotic or prosthetic licensure under this article upon payment of the required fee. After that date, any applicant for licensure as an orthotist or a prosthetist shall meet the requirements of subsection (a) of Code Section 43-34-195. (b) On and after July 1, 2007, no person shall practice orthotics or prosthetics in this state and hold himself or herself out as being able to practice such professions unless he or she is licensed in accordance with this article or is exempt from such licensing. A person who violates this subsection shall, upon conviction thereof, be guilty of a misdemeanor.

43-34-199. A licensed orthotist may provide care or services only if the care or services are provided pursuant to an order from a licensed physician or podiatrist. A licensed prosthetist may provide care or services only if the care or services are provided pursuant to an order from a licensed physician or podiatrist.

43-34-200. (a) The expiration date and renewal period for each license issued under this article shall be set by the board. A license shall be valid for a period of up to two years and shall be renewed biennially as provided by rule of the board. The board shall establish continuing education requirements for the renewal of a license. These requirements shall be based on established standards of competence in the field of orthotics or prosthetics. (b) A person who has permitted his or her license to expire or who has had his or her license on inactive status may have his or her license restored by:
(1) Making application to the board; (2) Filing proof acceptable to the board of his or her fitness to have his or her license restored including, but not limited to, sworn evidence certifying to active practice in another jurisdiction satisfactory to the board; and (3) Paying the required restoration fee. Ifthe person has not maintained an active practice in another jurisdiction satisfactory to the board, the board shall determine, by an evaluation program established by rule, such person's fitness to resume active status and may require the person to complete a period of evaluated clinical experience and successful completion of an examination. (c) A person whose license expired while he or she was: (1) In federal service on active duty within the armed forces of the United States or with the state militia and called into service or training; or (2) In training or education under the supervision of the United States preliminary to induction into military service may have his or her license renewed or restored without paying a lapsed renewal fee if, within two years after termination from the service, training, or education except under conditions other than honorable, he or she furnishes the board with satisfactory evidence

930

GENERAL ACTS AND RESOLUTIONS, VOL. I

that he or she has been so engaged and that his or her service, training, or education has been terminated.

43-34-201. A person who notifies the board on forms prescribed thereby may elect to place his or her license on an inactive status and shall, subject to rules of the board, be excused from payment of renewal fees until he or she notifies the board of his or her desire to resume active status. A person requesting restoration from inactive status shall be required to pay the current renewal fee and shall be required to restore his or her license as provided in Code Section 43-34-200. An orthotist or prosthetist whose license is on inactive status shall not practice orthotics or prosthetics in this state.

43-34-202. The board may, at its discretion, license as an orthotist or prosthetist, without examination and on payment of the required fee, an applicant who is an orthotist or prosthetist and is:
(1) Licensed under the laws of another state, territory, or country, if the requirements for licensure in that state, territory, or country in which the applicant is licensed were, at the date of his or her licensure, equal to or more stringent than the requirements in force in this state on that date; or (2) Certified as an orthotist or prosthetist by a national certifying organization that is accredited by theNational Commission for Certifying Agencies and has educational and testing standards equal to or more stringent than the licensing requirements of this state.

43-34-203. The board shall appoint the advisory committee. The advisory committee shall include licensed orthotists and prosthetists licensed under this article and such members as the board in its discretion may determine. Members shall receive no compensation for service on the committee. The committee shall have such advisory duties and responsibilities as the board may determine. The initial members of the advisory committee may include persons eligible for licensing under this article. Subsequent advisory committee members must be licensed pursuant to this article.

ARTICLE 9

43-34-240. This article shall be known and may be cited as the 'Georgia Cosmetic Laser Services Act.'

43-34-241. This article is enacted for the purpose of safeguarding the public health, safety, and welfare by providing for state administrative control, supervision, and regulation of the practice of providing cosmetic laser services. It is the intention ofthe General Assembly that cosmetic

GEORGIA LAWS 2009 SESSION

931

laser services be made available and affordable to the people of this state in a safe, reliable manner. Unregulated cosmetic laser services do not adequately meet the needs or serve the interests of the public. Licensure of those performing cosmetic laser services and required education and training of such practitioners will help ensure the health and safety of consumers. The practice of providing cosmetic laser services is declared to be affected with the public interest; and this article shall be liberally construed so as to accomplish the purpose stated in this Code section.

43-34-242. As used in this article, the term:
(l) 'Board' means the Georgia Composite Medical Board created by Code Section 43-34-2. (2) 'Consulting physician' means a person licensed to practice medicine under this chapter and:
(A) Whose principal place of practice is within this state; or (B) Whose principal place of practice is outside this state but is within 50 miles from the facility with whom he or she has an agreement to provide services in accordance with Code Section 43-34-248. (3) 'Consumer' means a person on whom cosmetic laser services are or are to be performed. (4) 'Cosmetic laser practitioner' means a person licensed under this article to provide cosmetic laser services as defined in this article and whose license is in good standing. (5) 'Cosmetic laser services' means nonablative elective cosmetic light based skin, photo rejuvenation, or hair removal using lasers and pulsed light devices approved by the United States Food and Drug Administration for noninvasive procedures. Such services and the provision thereof shall not be considered to be the practice of medicine. (6) 'Facility' means any location, place, area, structure, office, institution, or business or a part thereof in which is performed or provided cosmetic laser services regardless of whether a fee is charged for such services. (7) 'License' means a valid and current certificate of registration issued by the board which shall give the person to whom it is issued authority to engage in the practice prescribed thereon. (8) 'Licensee' means any person holding a license under this article. (9) 'Medical practitioner' means a registered professional nurse, licensed practical nurse, nurse practitioner, physician assistant, or physician. (10) 'Nurse' means a registered professional nurse, licensed practical nurse, or nurse practitioner. (11) 'Person' means a natural person.

932

GENERAL ACTS AND RESOLUTIONS, VOL. I

43-34-243. This article shall not be construed to prohibit:
(1) A licensed physician from engaging in the practice for which he or she is licensed; (2) A licensed physician assistant from engaging in the practice for which he or she is licensed; (3) A person licensed by this state as a registered professional nurse, licensed practical nurse, or nurse practitioner from engaging in his or her profession; (4) A licensed esthetician from engaging in his or her profession; (5) A master cosmetologist from engaging in his or her profession; (6) Any person licensed under any other article of this chapter from engaging in the practice for which he or she is licensed; (7) A person licensed in this state under any other law from engaging in the practice for which he or she is licensed; (8) The practice of providing cosmetic laser services by a person who is employed by the federal government or any bureau, division, or agency of the federal government while in the discharge of the employee's official duties; (9) The practice of providing cosmetic laser services by a student enrolled in an accredited school of nursing or medical school as part of his or her training; or (10) Employees or authorized representatives of a manufacturer of a laser used for cosmetic laser services from engaging in one or more of the following: evaluating, adjusting, measuring, designing, fabricating, assembling, fitting, servicing, training, repairing, replacing, or delivering a laser used to provide cosmetic laser services under the order, direction, or prescription of a physician or health provider operating within his or her licensed scope of practice.

43-34-244. (a) There shall be two levels of a license for a cosmetic laser practitioner: assistant laser practitioner and senior laser practitioner. (b) Any person desiring to obtain a license as a cosmetic laser practitioner under the terms of this article shall make application to the board as follows:
(I) An applicant for an 'assistant laser practitioner' license shall present proof that he or she:
(A) Holds a current valid license or certificate of registration as a physician assistant, nurse, esthetician, or master cosmetologist, or has previously held a license or certificate of registration as a medical practitioner; and (B) Has received at least three laser certificates from attending laser/intense pulsed light (IPL) courses as approved by the board, directly taught by a licensed physician or certified continuing medical education or continuing education educator. If, after review of the application, it is determined that the applicant is at least 21 years of age; has met the minimum educational requirements; is of good moral character; and is possessed of the requisite skill to perform properly cosmetic laser services, a license

GEORGIA LAWS 2009 SESSION

933

shall be issued to the applicant entitling the applicant to practice the occupation of cosmetic laser practitioner at the assistant laser practitioner level under the direct supervision of a senior laser practitioner. (2) An applicant for a 'senior laser practitioner' license shall present proof that he or she:
(A) Holds a current valid license or certificate of registration as a physician assistant or nurse or has previously held a license or certificate of registration as a medical practitioner; (B) Has at least three years of clinical or technological medical experience, or both; (C) Has been or was licensed or nationally board certified as a medical practitioner for at least three years; and (D) Has received at least two laser certificates from attending laser/intense pulsed light (IPL) continuing medical education courses as approved by the board, directly taught by a licensed physician or certified continuing medical education or continuing education educator. If, after review of the application, it is determined that the applicant is at least 21 years of age; has met the minimum educational and clinical training requirements to perform cosmetic laser services with indirect supervision; is of good moral character; and is possessed of the requisite skill to perform properly these services, a license shall be issued to the applicant entitling the applicant to practice the occupation of cosmetic laser practitioner at the senior laser practitioner level pursuant to the protocols of a consulting physician. (c) The board shall be authorized to waive any education requirements under this Code section in cases of hardship, disability, or illness or under such other circumstances as the board deems appropriate with respect to any applicant who has practiced as a cosmetic laser practitioner prior to July 1, 2007. (d) Should an applicant have a current cosmetic laser practitioner license or certificate of registration in force from another state, country, territory of the United States, or the District of Columbia, where similar reciprocity is extended to this state and licensure requirements are substantially equal to those in this state, and have paid a fee and have submitted an application, the applicant may be issued a license at the appropriate level entitling him or her to practice the occupation of a cosmetic laser practitioner at that level, unless the board, in its discretion, sees fit to require a written or a practical examination subject to the terms and provisions of this article. The board shall be authorized to waive any education or experience requirements applicable to any person who holds a current license or certificate to practice as a cosmetic laser practitioner outside of this state and who desires to obtain a license at a level authorized under this Code section to practice as a cosmetic laser practitioner in this state in cases of hardship, disability, or illness or under such other circumstances as the board deems appropriate.

934

GENERAL ACTS AND RESOLUTIONS, VOL. I

43-34-245. (a) All licenses shall expire biennially unless renewed. All applications for renewal of a license shall be filed with the board prior to the expiration date, accompanied by the biennial renewal fee prescribed by the board. A license which has expired for failure ofthe holder to renew may only be restored after application and payment of the prescribed restoration fee within the time period established by the board and provided the applicant meets such requirements as the board may establish by rule. Any license which has not been restored within such period following its expiration may not be renewed, restored, or reissued thereafter. The holder of such a canceled license may apply for and obtain a valid license only upon compliance with all relevant requirements for issuance of a new license. (b) As a condition of license renewal, the board shall require licensees to provide proof, in a form approved by the board, of a minimum of five hours of continuing education courses as approved by the board in the area of cosmetic laser services, equipment safety and operation, procedures, and relative skin modalities, directly taught by a licensed physician or certified continuing medical education or continuing education educator.

43-34-246. The board may impose on a cosmetic laser practioner or applicant any sanction authorized under subsection (b) of Code Section 43-34-8 upon a finding of any conduct specified in subsection (a) of Code Section 43-34-8.

43-34-247. The practice of providing cosmetic laser services is declared to be an activity affecting the public interest and involving the health, safety, and welfare of the public. Such practice when engaged in by a person who is not licensed as a cosmetic laser practitioner or otherwise licensed to practice a profession which is permitted under law to perform cosmetic laser services is declared to be harmful to the public health, safety, and welfare. The board or the district attorney of the circuit where such unlicensed practice exists, or any person or organization having an interest therein, may bring a petition to restrain and enjoin such unlicensed practice in the superior court of the county where such unlicensed person resides. It shall not be necessary in order to obtain an injunction under this Code section to allege or prove that there is no adequate remedy at law, or to allege or prove any special injury.

43-34-248. Any facility providing cosmetic laser services shall have an agreement with a consulting physician who shall:
( 1) Be trained in laser modalities; (2) Establish proper protocols for the cosmetic laser services provided at the facility and file such protocols with the board; and

GEORGIA LAWS 2009 SESSION

935

(3) Be available for emergency consultation with the cosmetic laser practitioner or anyone employed by the facility.

43-34-249. (a) Prior to receiving cosmetic laser services from a cosmetic laser practitioner, a person must consent in writing to such services and shall be informed in writing of the general terms of the following:
(l) The nature and purpose of such proposed procedure; (2) Any material risks generally recognized and associated with the cosmetic laser service to be performed which, if disclosed to a reasonably prudent person in the customer's position, could reasonably be expected to cause such prudent person to decline such proposed cosmetic laser services on the basis of the material risk of injury that could result from such proposed services; (3) The type oflicense the individual who will be performing the cosmetic laser service has obtained; and (4) The steps to be followed after the cosmetic laser service is performed in the event of any complications. (b) It shall be the responsibility of the cosmetic laser practitioner to ensure that the information required by subsection (a) ofthis Code section is disclosed and that the consent provided for in this Code section is obtained. (c) Where the consumer is under 18 years of age, the consent of the consumer's parent or legal guardian shall be required. (d) The board shall be required to adopt and have the authority to promulgate rules and regulations governing and establishing the standards necessary to implement this Code section specifically including but not limited to the disciplining of a cosmetic laser practitioner who fails to comply with this Code section. (e) Nothing in this Code section shall prohibit the information provided for in this Code section from being disclosed through the use of video tapes, audio tapes, pamphlets, booklets, or other means of communication or through conversations with the cosmetic laser practitioner; provided, however, that such information is also provided in writing and attached to the consent form which the consumer signs.

43-34-250. The board shall appoint an advisory committee. The advisory committee shall include licensed cosmetic laser practitioners licensed under this article and such members as the board in its discretion may determine. Members shall receive no compensation for service on the committee. The committee shall have such advisory duties and responsibilities as the board may determine, including but not limited to consulting with the board on the issuance, denial, suspension, and revocation oflicenses and the promulgation of rules and regulations under this article. The initial members of the advisory committee may include

936

GENERAL ACTS AND RESOLUTIONS, VOL. I

persons eligible for licensing under this article. Subsequent advisory committee members must be licensed pursuant to this article.

43-34-251. (a) It shall be unlawful for any person licensed as a cosmetic laser practitioner to perform cosmetic laser services within any area within one inch of the nearest part ofthe eye socket of any consumer. (b) It shall be unlawful for any person licensed as a cosmetic laser practitioner to administer any pharmaceutical agent or other substance by injection.

43-34-252. Any person who owns a facility in which cosmetic laser services are offered or performed in noncompliance with the requirements of this article shall be guilty of a misdemeanor.

43-34-253. Any person convicted of violating any provision of this article shall be guilty of a misdemeanor.'

SECTION 2. The following Code sections of the Official Code of Georgia Annotated are amended by replacing "Composite State Board of Medical Examiners" or "Composite State Board of Medical Examiners of Georgia" wherever either occurs with "Georgia Composite Medical Board":
(1) Code Section 20-3-476, relating to the authorization and administration of loan programs for attendance at the college of osteopathic medicine; (2) Code Section 20-3-512, relating to medical student loans and scholarships; (3) Code Section 20-3-513, relating to the State Medical Education Board and student loans and scholarships; (4) Code Section 31-9-6.1, relating to the disclosure of information to persons undergoing certain surgical or diagnostic procedures; (5) Code Section 31-9A-6.1, relating to civil and professional penalties for violation of the Woman's Right to Know Act; (6) Code Section 31-11-81, relating to definitions regarding emergency services; (7) Code Section 31-34-4, relating to loan applicant qualifications; (8) Code Section 31-38-2, relating to certain exemptions to Chapter 38 of Title 31; (9) Code Section 33-3-27, relating to the reports of awards under medical malpractice insurance policies; (10) Code Section 33-20B-2, relating to definitions regarding rural health care access; (11) Code Section 34-9-1, relating to definitions regarding workers' compensation; (12) Code Section 43-5-13, relating to certain exemptions to the operation of Chapter 5 of Title 43;

GEORGIA LAWS 2009 SESSION

937

(13) Code Section 43-34A-2, relating to definitions regarding a patient's rights; (14) Code Section 43-34A-3, relating to physician profiles and the dissemination of such profiles to the public; (15) Code Section 43-34A-6, relating to a patient's right to file a grievance with the state board; and (16) Code Section 43-35-3, relating to definitions regarding the practice of podiatry.

SECTION 3. The following Code sections of the Official Code of Georgia Annotated are amended by replacing "physician's assistant" and "physician's assistants" wherever either occurs with "physician assistant" and "physician assistants", respectively:
(l) Code Section 20-2-774, relating to self-administration of asthma medication by a public school student; (2) Code Section 24-9-67.1, relating to expert opinion testimony in civil actions; (3) Code Section 26-4-80, relating to dispensing prescription drugs; (4) Code Section 31-7-16, relating to determination or pronouncement ofdeath ofpatient in a nursing home; (5) Code Section 31-9-6.1, relating to disclosure of certain information to persons undergoing certain surgical or diagnostic procedures; (6) Code Section 31-9A-2, relating to definitions relative to the "Woman's Right to Know Act"; (7) Code Section 31-11-60.1, relating to a program for physician control over emergency medical services to nonhospital patients; (8) Code Section 31-22-9.1, relating to who may perform HIV tests; (9) Code Section 33-20A-3, relating to definitions relative to the "Patient Protection Act of 1996"; (10) Code Section 33-24-58.2, relating to minimum health benefit policy coverage for newborn babies and their mothers; (11) Code Section 33-24-72, relating to health benefit policy requirements under the "Breast Cancer Patient Care Act"; (12) Code Section 34-9-415, relating to testing in drug-free workplace programs; (13) Code Section 40-6-392, relating to chemical tests for alcohol or drugs in blood for driving under the influence of alcohol, drugs, or other intoxicating substances; (14) Code Section 42-4-70, relating to definitions relative to deductions from inmate accounts for expenses; (15) Code Section 42-5-55, relating to deductions from inmate accounts for payment of certain damages and medical costs; (16) Code Section 43-1-28, relating to the "Georgia Volunteers in Health Care Specialties Act"; and (17) Code Section 51-2-5.1, relating to relationship between hospital and health care provider prerequisite to liability.

938

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 4. Article 2 of Chapter 13 of Title 16 of the Official Code of Georgia Annotated, relating to the regulation of controlled substances, is amended by revising paragraph (23) of Code Section 16-13-21, relating to definitions regarding the regulation ofcontrolled substances, as follows:
"(23) 'Practitioner' means: (A) A physician, dentist, pharmacist, podiatrist, veterinarian, scientific investigator, or other person licensed, registered, or otherwise authorized under the laws of this state to distribute, dispense, conduct research with respect to, or to administer a controlled substance in the course of professional practice or research in this state; (B) A pharmacy, hospital, or other institution licensed, registered, or otherwise authorized by law to distribute, dispense, conduct research with respect to, or to administer a controlled substance in the course of professional practice or research in this state; (C) An advanced practice registered nurse acting pursuant to the authority of Code Section 43-34-25. For purposes of this chapter and Code Section 43-34-25, an advanced practice registered nurse is authorized to register with the federal Drug Enforcement Administration and appropriate state authorities; or (D) A physician assistant acting pursuant to the authority of subsection (e.l) of Code Section 43-34-103. For purposes of this chapter and subsection (e.l) of Code Section 43-34-103, a physician assistant is authorized to register with the federal Drug Enforcement Administration and appropriate state authorities."

SECTION 5. Article 3 of Chapter 13 of Title 16 of the Official Code of Georgia Annotated, relating to dangerous drugs, is amended by revising paragraph (4.1) of Code Section 16-13-72, relating to the sale, distribution, or possession of dangerous drugs, as follows:
"(4.1) A physician in conformity with Code Section 43-34-23 may delegate to a nurse or a physician assistant the authority to possess vaccines and such other drugs as specified by the physician for adverse reactions to those vaccines, and a nurse or physician assistant may possess such drugs pursuant to that delegation; provided, however, that nothing in this paragraph shall be construed to restrict any authority of nurses or physician assistants existing under other provisions of law;"

SECTION 6. Article 3 of Chapter 4 of Title 26 of the Official Code of Georgia Annotated, relating to the practice ofpharmacy, is amended by revising Code Section 26-4-50, relating to certification for drug therapy modification, as follows:
"26-4-50. (a) No pharmacist shall be authorized to modify drug therapy pursuant to Code Section 43-34-24 unless that pharmacist:
(1) Is licensed to practice as a pharmacist in this state;

GEORGIA LAWS 2009 SESSION

939

(2) Has successfully completed a course of study regarding modification of drug therapy and approved by the board; (3) Annually successfully completes a continuing education program regarding modification of drug therapy and approved by the board; and (4) Is certified by the board as meeting the requirements of paragraphs (1) through (3) of this subsection. (b) Nothing in this Code section shall be construed to expand or change any existing authority for a pharmacist to substitute drugs."

SECTION 7. Article 5 of Chapter 4 of Title 26 of the Official Code of Georgia Annotated, relating to prescription drugs, is amended by revising paragraph (3) of subsection (d) of Code Section 26-4-85, relating to patient counseling and optimizing drug therapy, as follows:
'(3) Patients receiving drugs from the Department of Human Resources Division of Public Health; provided, however, that pharmacists who provide drugs to patients in accordance with Code Section 43-34-23 shall include in all dispensing procedures a written process whereby the patient or the caregiver of the patient is provided with the information required under this Code section.'

SECTION 8. Article 7 of Chapter 4 of Title 26 of the Official Code of Georgia Annotated, relating to practitioners of the healing arts, is amended by revising subsection (b) of Code Section 26-4-130, relating to the regulation of dispensing drugs, as follows:
'(b) The other provisions of this chapter and Article 3 of Chapter 13 of Title 16 shall not apply to practitioners of the healing arts prescribing or compounding their own prescriptions and dispensing drugs except as provided in this Code section. Nor shall such provisions prohibit the administration of drugs by a practitioner of the healing arts or any person under the supervision of such practitioner or by the direction of such practitioner except as provided in this Code section. Any term used in this subsection and defined in Code Section 43-34-23 shall have the meaning provided for such term in Code Section 43-34-23. The other provisions of this chapter and Articles 2 and 3 of Chapter 13 of Title 16 shall not apply to persons authorized by Code Section 43-34-23 to order, dispense, or administer drugs when such persons order, dispense, or administer those drugs in conformity with Code Section 43-34-23. When a person dispenses drugs pursuant to the authority delegated to that person under the provisions of Code Section 43-34-23, with regard to the drugs so dispensed, that person shall comply with the requirements placed upon practitioners by subsections (c) and (d) of this Code section.'

940

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 9. Chapter 10 of Title 31 of the Official Code of Georgia Annotated, relating to vital records, is amended by revising Code Section 31-10-16, relating to criteria for determining death, as follows:
'31-10-16. (a) A person may be pronounced dead by a qualified physician, by a registered professional nurse authorized to make a pronouncement of death under Code Section 31-7-176.1, or by a physician assistant authorized to make a pronouncement ofdeath under subsection U) of Code Section 43-34-103, if it is determined that the individual has sustained either (I) irreversible cessation of circulatory and respiratory function or (2) irreversible cessation of all functions of the entire brain, including the brain stem. (b) A person who acts in good faith in accordance with the provisions of subsection (a) of this Code section shall not be liable for damages in any civil action or subject to prosecution in any criminal proceeding for such act. (c) The criteria for determining death authorized in subsection (a) of this Code section shall be cumulative to and shall not prohibit the use of other medically recognized criteria for determining death.'

SECTION 10. Chapter II of Title 31 of the Official Code of Georgia Annotated, relating to emergency medical services, is amended by revising paragraphs (5) and (6) of Code Section 31-11-2, relating to definitions, as follows:
'(5) 'Cardiac technician' means a person who, having been trained and certified as an emergency medical technician and having completed additional training in advanced cardiac life support techniques in a training course approved by the department, is so certified by the Composite State Board ofMedical Examiners, now known as the Georgia Composite Medical Board, prior to January I, 2002, or the Department of Human Resources on and after January I, 2002. (6) 'Composite board' means the Georgia Composite Medical Board!

SECTION 11. Article I of Chapter 24 of Title 33 of the Official Code of Georgia Annotated, relating to general provisions regarding insurance, is amended by revising subsections (c) and (d) of Code Section 33-24-56.4, relating to the payment for telemedicine services, as follows:
'(c) It is the intent of the General Assembly to mitigate geographic discrimination in the delivery of health care by recognizing the application of and payment for covered medical care provided by means of telemedicine, provided that such services are provided by a physician or by another health care practitioner or professional acting within the scope of practice of such health care practitioner or professional and in accordance with the provisions of Code Section 43-34-31.

GEORGIA LAWS 2009 SESSION

941

(d) On and after July 1, 2005, every health benefit policy that is issued, amended, or renewed shall include payment for services that are covered under such health benefit policy and are appropriately provided through telemedicine in accordance with Code Section 43-34-31 and generally accepted health care practices and standards prevailing in the applicable professional community at the time the services were provided. The coverage required in this Code section may be subject to all terms and conditions of the applicable health benefit plan.'

SECTION 12. Article 1 of Chapter 26 of Title 43 of the Official Code of Georgia Annotated, relating to nurses, is amended by revising paragraph (12) of subsection (a) of Code Section 43-26-5, relating to the general powers of the Georgia Board of Nursing, as follows:
'(12) Be authorized to enact rules and regulations for registered professional nurses in their performing acts under a nurse protocol as authorized in Code Section 43-34-23 and enact rules and regulations for advanced practice registered nurses in performing acts as authorized in Code Section 43-34-25;"

SECTION 13. Chapter 30 of Title 43 of the Official Code of Georgia Annotated, relating to optometrists, is amended by revising subsection (a) of Code Section 43-30-13, relating to the construction of the chapter, as follows:
'(a) Nothing in this chapter shall be construed to apply to physicians and surgeons duly licensed to practice medicine, nor to prevent persons from selling spectacles or eyeglasses on prescription from any duly qualified optometrist or physician, nor to prevent any person from selling glasses as articles of merchandise or from using test cards in connection with the sale of such glasses at a permanently located place when not trafficking or attempting to traffic upon assumed skill in optometry; nor shall anything in this chapter be construed to authorize any registered optometrist to prescribe or administer drugs except as permitted by law or practice medicine or surgery in any manner as defined by the laws of this state; nor shall this chapter be construed to authorize any such person to use the title of'M.D.' or any other title mentioned in Code Section 43-34-21 or 43-34-22.'

SECTION 14. Chapter 34A of Title 43 of the Official Code of Georgia, relating to a patient's right to know, is amended by revising paragraph (3) of Code Section 43-34A-2, relating to definitions regarding a patient's right to know, as follows:
'(3) 'Disciplinary action' means any final hospital disciplinary action or any final disciplinary action taken by the Georgia Composite Medical Board under subsection (b) of Code Section 43-34-8 within the immediately preceding ten-year period. No such disciplinary action taken prior to April 11, 2001, shall be included within the definition of this term.'

942

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 15. Article 2 of Chapter 2 of Title 45 of the Official Code of Georgia Annotated, relating to the eligibility and qualifications for office, is amended by revising subsection (d) of Code Section 45-2-7, relating to the employment of aliens, as follows:
"(d) The prohibitions of subsection (a) of this Code section shall not apply to the employment of aliens licensed under Code Section 43-34-27, relating to the licensing of aliens to practice medicine or pharmacy.'

SECTION 16. Chapter 1 of Title 51 of the Official Code of Georgia, relating to torts, is amended by revising paragraph (14) of subsection (a) of Code Section 51-1-29.5, relating to definitions, as follows:
"(14) 'Medical care' means any act defined as the practice of medicine under Code Section 43-34-21:

SECTION 17. Code Sections 43-34-240 through 43-34-253 shall become effective as amended in Section 1 of this Act only if funds are specially appropriated for the purposes of Ga. L. 2007, p. 626 in a General Appropriations Act making specific reference to such Act and shall become effective when funds so appropriated become available for expenditure. All other provisions of this Act shall become effective on July I, 2009.

SECTION 18. All laws and parts of laws in conflict with this Act are repealed.

Approved May 11,2009.

REVENUE- MOTOR VEHICLES; COUNTY OF RETURN FOR TAXES; HEAVY-DUTY EQUIPMENT MOTOR VEHICLE; LIMITED AD VALOREM TAX EXEMPTION.
No. 245 (House Bill No. 318).
AN ACT
To amend Chapter 5 of Title 48 of the Official Code of Georgia Annotated, relating to ad valorem taxation of property, so as to change certain provisions regarding the return of

GEORGIA LAWS 2009 SESSION

943

certain motor vehicles; to provide for definitions; to provide for a partial exemption from ad valorem taxation of heavy-duty equipment motor vehicles for certain natural persons or entities for a limited period of time; to provide for related matters; to provide for effective dates and for applicability; to provide for reenactment of certain prior provisions of law; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Chapter 5 of Title 48 of the Official Code of Georgia Annotated, relating to ad valorem taxation ofproperty, is amended in Code Section 48-5-444, relating to the place of return for tax purposes of motor vehicles and mobile homes, by revising subsection (a) as follows:
"(a)(l) For purposes of this subsection, the term 'functionally located' means located in a county in this state for 184 days or more during the immediately preceding calendar year. The 184 days or more requirement of this subsection shall mean the cumulative total number of days during such calendar year, which days may be consecutive.
(2)(A) Except as otherwise provided in paragraph (3) of this subsection, each motor vehicle owned by a resident of this state shall be returned:
(i) In the county where the owner claims a homestead exemption; (ii) If no such exemption is claimed, then in the county of the owner's domicile; or (iii) If the motor vehicle is primarily used in connection with some established business enterprise located in a different county, in the county where the business is located. (B) A motor vehicle owned by a resident of this state may be registered in the county where the vehicle is functionally located if the vehicle is a passenger car as defined in paragraph (41) of Code Section 40-1-1. Such vehicle shall first be returned for taxation as provided in subparagraph (A) of this paragraph. This subparagraph shall not apply with respect to any vehicle which is used by a student enrolled in a college or university in this state in a county other than the student's domicile. (C) Each motor vehicle owned by a nonresident shall be returned in the county where the motor vehicle is situated. (3)(A) As used in this paragraph, the term: (i) 'Family owned qualified farm products producer' shall have the same meaning as provided in paragraph (2) of Code Section 48-5-41.1. (ii) 'Passenger car' shall have the same meaning as provided for in paragraph (41) of Code Section 40-1-1. (iii) 'Truck' shall have the same meaning as provided for in paragraph (70) of Code Section 40-1-1. (B) If a passenger car or truck is primarily used in connection with some established farm operated by a family owned qualified farm products producer located in a county other than the county where the owner claims a homestead exemption or the county of

944

GENERAL ACTS AND RESOLUTIONS, VOL. I

the owner's domicile, such passenger car or truck shall be returned in the county where the farm operated by a family owned qualified farm products producer is located. (4) Any person who shall knowingly make any false statement in any application for the registration of any vehicle, in transferring any certificate of registration, or in applying for a new certificate of registration shall be guilty of false swearing, whether or not an oath is actually administered to such person, if such statement shall purport to be under oath. On conviction of such offense, such person shall be punished as provided by Code Section 16-10-71.'

SECTION 2. Said chapter is further amended by adding a new Code section to read as follows:
6 48-5-506.1. (a) As used in this Code section, the term:
(I) 'Heavy-duty equipment motor vehicle' means an off-road vehicle with all its attachments and parts which is self-propelled, weighs 5,000 pounds or more, and is primarily designed and used exclusively for utility services and maintenance, earth moving, construction, industrial, maritime, or mining uses, provided that such motor vehicles are not required to be registered and have a license plate. (2) 'Natural person or entity' means a natural person or entity that has purchased a heavy-duty equipment motor vehicle. Such term shall not include any publicly traded company. (b) For the period of time commencing on January I, 2010, and concluding at the last moment of December 31, 2010, the provisions of this Code section shall supersede and control over any contrary provision of this article. (c) The provisions of this article or Part 2 of Article I 0 of this chapter, as applicable, shall apply to any or all of the following and this Code section shall not apply to any or all of the following: (I) Publicly traded companies; (2) Heavy-duty equipment motor vehicle dealers; and (3) Natural persons or entities in the year of purchase of a heavy-duty equipment motor vehicle. (d)(!) A natural person or entity, or any combination of natural persons and entities with common ownership interests, who owns one or more heavy-duty equipment motor vehicles is granted an exemption on that person's or entity's heavy-duty equipment motor vehicles in the amount of the full value of such heavy-duty equipment motor vehicles up to a maximum amount of $100,000.00 per taxable year. (2) The value of heavy-duty equipment motor vehicles in excess of such exempted amount shall remain subject to taxation under either the provisions ofthis article or Part 2 of Article I 0 of this chapter, as applicable. (e) This subsection is repealed in its entirety at the last moment of December 31, 20 I0.'

GEORGIA LAWS 2009 SESSION

945

SECTION 3. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 4. All laws and parts of laws in conflict with this Act are repealed.

Approved May ll, 2009.

REVENUE -INCOME TAX CREDIT; HOME PURCHASE.
No. 260 (House Bill No. 261).
AN ACT
To amend Article 2 of Chapter 7 of Title 48 of the Official Code of Georgia Annotated, relating to the imposition, rate, and computation of income tax, so as to provide for an income tax credit for a limited period of time for the purchase of one eligible single-family residence; to provide for conditions and limitations; to provide for powers, duties, and authority of the state revenue commissioner with respect to the foregoing; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Article 2 of Chapter 7 of Title 48 of the Official Code of Georgia Annotated, relating to the imposition, rate, and computation of income tax, is amended by adding a new Code section to read as follows:
'48-7-29.17. (a) As used in this Code section, the term 'eligible single-family residence' means:
(l) A single-family structure, including a condominium unit as defined in Code Section 44-3-71 that is occupied for residential purposes by a single family, that is a new residence, a residence occupied at the time of sale, or a previously occupied residence that was for sale prior to the effective date of this Code section and is still for sale after the effective date of this Code section; or (2) A single-family structure, including a condominium unit as defined in Code Section 44-3-71 that is occupied for residential purposes by a single family, that is:

946

GENERAL ACTS AND RESOLUTIONS, VOL. I

(A) An owner occupied residence with respect to which the owner's acquisition indebtedness, as defined in Section 163(h)(3)(B) of the Internal Revenue Code, determined without regard to clause (ii) thereof, was in default on or before March I, 2009; or (B) A residence with respect to which a foreclosure event has taken place and which is owned by the mortgagor or the mortgagor's agent. (b) A taxpayer shall be allowed a credit against the tax imposed by Code Section 48-7-20 for the purchase of one eligible single-family residence made during the six-month period commencing on the first day of the month following the effective date of this Code section and ending on the last day of the sixth complete month thereafter. The amount of such credit shall be either 1.2 percent of the purchase price of such eligible single-family residence or $1 ,800.00, whichever is less. (c) The amount of the tax credit under subsection (b) of this Code section which may be claimed and allowed in a single tax year shall not exceed the taxpayer's income tax liability or one-third of the total amount of the credit allowed under subsection (b) of this Code section, whichever is less. Any excess or unused tax credit amount shall be carried forward to apply to the taxpayer's succeeding years' tax liability. No such tax credit shall be allowed the taxpayer against prior years' tax liability. (d)( I) A taxpayer shall submit to the commissioner a bona fide listing agreement with a real estate agent or broker licensed in this state, documentation that the eligible single-family residence was for sale directly by the owner without a real estate agent or broker, or other appropriate documentation deemed sufficient by the commissioner to validate the eligiblity of the single-family residence for purposes of the tax credit under this Code section. (2) In the event the taxpayer files an electronic return, the documentation required under paragraph (I) of this subsection shall only be required to be electronically attached to the return if the Internal Revenue Service allows such attachments when the data is transmitted to the department. In the event the taxpayer files an electronic return and such documentation is not attached because the Internal Revenue Service does not, at the time of such electronic filing, allow electronic attachments to the Georgia return, such documentation shall be maintained by the taxpayer and made available upon request of the commissioner. (e) The commissioner shall be authorized to promulgate any rules and regulations necessary to implement and administer this Code section."

SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

GEORGIA LAWS 2009 SESSION

947

SECTION 3. All laws and parts of laws in conflict with this Act are repealed.

Approved May 11, 2009.

RETIREMENT- CONTRIBUTIONS AND BENEFITS; MAXIMUM COMPENSATION; ROLLOVER OF FUNDS; PENSION TRUST FUNDS; NORMAL RETIREMENT AGE.
No. 275 (House Bill No. 202).
AN ACT
To amend Title 47 of the Official Code of Georgia Annotated, relating to retirement and pensions, so as to define certain terms; to provide for a maximum compensation to be used for computing contributions and benefits; to provide for the payment of benefits; to provide for rollover of certain funds; to provide for a limit on benefits; to provide for application of service credits; to provide for the holding of pension funds in trust; to provide for a normal retirement age; to provide for vesting; to ratify certain prior changes to public retirement plans; to provide for related changes in public retirement law to comply with federal law and regulations; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Title 47 of the Official Code of Georgia Annotated, relating to retirement and pensions, is amended by revising Code Section 47-1-10, relating to adoption, amendment, or repeal of rules by boards of trustees of state retirement or pension systems, procedure, immediate adoption, and filing of rules with Secretary of State, by adding a new subsection to read as follows:
'(f) Each board of trustees shall be authorized to adopt rules and regulations which are appropriate or necessary to maintain the qualified status of its respective public retirement and pension system under Sections 401(a) and 414(d) of the federal Internal Revenue Code and such other applicable sections of the federal Internal Revenue Code.'

948

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 2. Said title is further amended by revising subsection (b) of Code Section 47-1-13, relating to maximum compensation used in computing employee and employer contributions, as follows:
(b) Any other provision of law to the contrary notwithstanding, the maximum compensation used in computing employee and employer contributions to or benefits due from any public retirement or pension system shall be the maximum compensation set forth in Section 401(a)(17) of the federal Internal Revenue Code, as now or hereafter amended; provided, however, that pursuant to Section 13212(d)(3 )(A) ofthe federal Omnibus Budget Reconciliation Act of 1993 and the regulations issued under such section, eligible members are not subject to the limits of Section 401 (a)( 17) ofthe federal Internal Revenue Code, and the maximum compensation used for such computations for eligible members shall be the maximum amount allowed by the respective retirement or pension system to be so used on July 1, 1993.'

SECTION 3. Said title is further amended by adding a new Code section to read as follows:
"47-1-13.1. (a) As used in this Code section the term:
(1) 'Annual compensation' means compensation during the determination period. Such term shall include any cost of living adjustment in effect for a calendar year if the determination period begins with or within such calendar year. (2) 'Determination period' means the plan year or such other consecutive 12 month period over which compensation is otherwise determined under the public retirement or pension system. (b) The annual compensation of a plan member during any plan year beginning on or after January 1, 2002, which exceeds $200,000.00, as adjusted for cost-of-living increases in accordance with Section 401 (a)(I7)(B) of the federal Internal Revenue Code, shall not be taken into account in determining benefits or contributions due from the public retirement or pension system for any plan year. If the determination period consists offewer than 12 months, the annual compensation limit shall be an amount equal to the otherwise applicable annual compensation limit multiplied by a fraction, the numerator of which is the number of months in the short determination period and the denominator of which is 12. If the compensation for any prior determination period is taken into account in determining a plan member's contributions or benefits for the current plan year, the compensation for such prior determination period shall be subject to the applicable annual compensation limit in effect for the prior period. (c) The annual compensation of a plan member during any plan year beginning on and after January I, 1996, and before January I, 2002, which exceeds $150,000.00, as indexed as provided in Section 401(a)(l7)(B) of the federal Internal Revenue Code, shall be

GEORGIA LAWS 2009 SESSION

949

disregarded for purposes of computing contributions to or benefits due from the public retirement or pension system.'

SECTION 4. Said title is further amended by revising Code Section 47-1-80, relating to distributions to conform to regulations issued under the Internal Revenue Code, as follows:
'47-1-80. Notwithstanding any other provision of this title to the contrary, distributions from any public retirement or pension system shall conform to a good-faith interpretation of Section 40l(a)(9) of the federal Internal Revenue Code and the regulations promulgated pursuant to such section as applicable to a governmental plan within the meaning of Section 414(d) of the federal Internal Revenue Code and shall be implemented in accordance with the grandfathering provisions of such regulations applicable to annuity option distributions in effect on April 17, 200 1.'

SECTION 5. Said title is further amended by adding a new Code section to read as follows:
'47-1-80.1. (a) Notwithstanding any other provision of this title to the contrary, any public retirement or pension system shall be subject to the following provisions:
(l)(A) Benefits shall begin by the required beginning date, which is the later of April 1 of the calendar year following the calendar year in which the plan member reaches 70 1/2 years of age or April! of the calendar year in which the plan member terminates employment. If a plan member fails to apply for retirement benefits by the required beginning date, the applicable public retirement or pension system shall begin distribution of the benefit as required by Section 40l(a)(9) of the federal Internal Revenue Code. (B) Notwithstanding the provisions of subparagraph (A) ofthis paragraph, for any plan member who was entitled to receive a benefit under the public retirement or pension as of December 31, 1996, and attained the age of70 1/2 on or before December 31, 1998, the required beginning date shall be deemed to be April 1 following the calendar year in which the member attained the age of 70 112, regardless of whether the member was then employed by the employer; (2) A plan member's entire interest shall be distributed over the plan member's life or the lives of the plan member and a designated beneficiary or over a period not extending beyond the life expectancy ofthe plan member or the life expectancy of the plan member and his or her designated beneficiary; (3) The life expectancy of a plan member, the plan member's spouse, or the plan member's designated beneficiary shall not be recalculated after the initial determination for purposes of determining benefits;

950

GENERAL ACTS AND RESOLUTIONS, VOL. I

(4) If a plan member dies after the required distribution of benefits has begun, the remaining portion of the plan member's interest shall be distributed at least as rapidly as under the method of distribution before the plan member's death and no longer than the remaining period over which the distribution commenced; and (5) If a plan member dies before the required distribution of the plan member's benefits has begun, the plan member's entire interest shall be either distributed in accordance with federal regulations over the life or the life expectancy of the designated beneficiary, with the distributions beginning no later than December 31 of the calendar year immediately following the calendar year of the plan member's death or distributed by December 31 of the calendar year containing the fifth anniversary of the plan member's death. (b) The amount of an annuity paid to a plan member's designated beneficiary shall not exceed the maximum determined under the incidental death benefit requirements of the federal Internal Revenue Code. (c) The death and disability benefits provided by the plan shall be limited by the incidental benefit rule set forth in Section 40l(a)(9)(G) of the federal Internal Revenue Code and Federal Treasury Regulation Section 1.401-1 (b)(l)(i) or any successor to such regulation.'

SECTION 6. Said title is further amended by revising Code Section 47-1-81, relating to election to have a portion of an eligible rollover distribution paid to an eligible retirement plan under federal law, as follows:
'47-1-81. (a) As used in this Code section, the term:
( 1) 'Direct rollover' means a payment by the public retirement or pension system subject to this title to the eligible retirement plan specified by the distributee or to the surviving spouse of the distributee. (2) 'Distributee' means:
(A) An employee; (B) A former employee; (C) The employee or former employee's surviving spouse; or (D) A nonspouse beneficiary who is a designated beneficiary as defined in Section 40l(a)(9)(E) of the federal Internal Revenue Code. (3) 'Eligible retirement plan' means any of the following that accepts the distributee's eligible rollover distribution: (A) An individual retirement account described in Section 408(a) ofthe federal Internal Revenue Code; (B) An individual retirement annuity described in Section 408(b) ofthe federal Internal Revenue Code; (C) An annuity plan described in Section 403(a) of the federal Internal Revenue Code; (D) A qualified trust described in Section 40l(a) of the federal Internal Revenue Code;

GEORGIA LAWS 2009 SESSION

951

(E) An annuity contract described in Section 403(b) of the federal Internal Revenue Code. (F) An eligible deferred compensation plan under Section 457(b) ofthe federal Internal Revenue Code that is maintained by a state, political subdivision or agency or instrumentality of a state, or a political subdivision of a state and which agrees to separately account for amounts transferred into that plan from the public retirement or pension system under this title; and (G) A Roth IRA described in Section 408A of the federal Internal Revenue Code. (4) 'Eligible rollover distribution' means any distribution of all or any portion of the balance to the credit of the distributee; provided, however, such term shall not include: (A) Any distribution that is one of a series of substantially equal periodic payments made not less frequently than annually for the life or life expectancy of the distributee or the joint lives or joint life expectancies of the distributee and the distributee's designated beneficiary, or for a specified period often years or more; (B) Any distribution to the extent such distribution is required under Section 40l(a)(9) of the federal Internal Revenue Code; (C) The portion of any distribution that is not includable in gross income; or (D) Any other distribution that is reasonably expected to total less than $200.00 during the year. Such term shall include a distribution to a surviving spouse made on or after January 1, 2002. (b) Notwithstanding any other provisions of this title to the contrary that would otherwise limit a person's election under this Code section, a member of a retirement or pension system subject to this title may elect, at the time and in the manner prescribed by the board of trustees of such system, to have any portion of an eligible rollover distribution, as such term is defined in Section 402(c) of the federal Internal Revenue Code, paid directly to an eligible retirement plan, as such term is defined in Section 402(c) of the federal Internal Revenue Code, specified by the person in a direct rollover. (c) A portion of a distribution made on or after January 1, 2002, shall not fail to be an eligible rollover distribution merely because the portion consists of after-tax employee contributions that are not includable in gross income; provided, however, that such portion may be transferred only to: (1) An individual retirement account or annuity described in Section 408(a) or (b) of the federal Internal Revenue Code; (2) A qualified defined contribution plan described in Sections 40l(a) or 403(a) of the federal Internal Revenue Code; (3) A qualified defined benefit plan described in Section 40l(a) of the federal Internal Revenue Code; or (4) An annuity contract described in Section 403(b) ofthe federal Internal Revenue Code which agrees to account separately for amounts so transferred, and earnings thereon,

952

GENERAL ACTS AND RESOLUTIONS, VOL. I

including accounting separately for the portion of such distribution that is includable in gross income and the portion that is not so includable. (d) Notwithstanding any other provision of this title to the contrary, a nonspouse designated beneficiary may roll over the distribution only to an individual retirement account or individual retirement annuity established for the purpose of receiving the distribution, and the account or annuity shall be treated as an inherited individual retirement account or annuity.'

SECTION 7. Said title is further amended by revising Code Section 47-1-82, relating to maximum benefits limited to that allowed by federal law, as follows:
'47-1-82. (a) As used in this Code section, the term:
(1) 'Annual benefit' means a retirement benefit under the public retirement or pension system which is payable annually in the form of a straight life annuity. (2) 'Applicable mortality table' means the table prescribed by the secretary ofthe treasury of the United States in Revenue Ruling 95-6 or any successor thereto which prescribes the mortality table to be applied pursuant to Section 415(b)(2)(E)(v) of the federal Internal Revenue Code. To the extent that a forfeiture does not occur upon death, the mortality decrement may be ignored prior to age 62 and shall be ignored after social security retirement age, as prescribed by federal Internal Revenue Service Notice 83-10, Q&A G-3 and G-4, or any successor thereto. (3) 'Compensation' means, for purposes of applying the limitations of Section 415 of the federal Internal Revenue Code and for no other purpose, a plan member's wages as defined in Section 3401(a) of the federal Internal Revenue Code (wages subject to income tax withholding at the source, but without regard to exceptions contained in Section 3401(a) of the federal Internal Revenue Code for wages based on the nature or location of the employment or the services performed). The term shall also include the following:
(A) For limitation years beginning on or after December 31, 1997, for purposes of applying the limitations of Section 415 of the federal Internal Revenue Code, amounts that would otherwise be included in compensation but for an election under Sections 125(a), 402(e)(3), 402(h)(1)(B), 402(k), and 457(b) of the federal Internal Revenue Code; (B) For limitation years beginning after December 31, 2000, any elective amounts that are not includable in the plan member's gross income by reason of Section 132(f) ofthe federal Internal Revenue Code, relating to qualified transportation plan; and (C) For limitation years beginning on and after January 1, 2007, compensation paid by the later of 2 1/2 months after the plan member's severance from employment or the end of the limitation year that includes the date of the plan member's severance from employment if:

GEORGIA LAWS 2009 SESSION

953

(i) The payment is regular compensation for services during the plan member's regular working hours or compensation for services outside the plan member's regular working hours, including without limitation overtime or shift differential, commissions, bonuses, or other similar payments, and, absent a severance from employment, the payment would have been paid to the plan member while he or she continued in employment with the employer; or (ii) The payment is for unused accrued bona fide sick leave, vacation leave, or the leave that the member would have been able to use if employment had continued. 'Compensation' also includes back pay, within the meaning of Treasury Regulation Section 1.415 (c)-2(g)(8), for the limitation year to which the back pay relates to the extent the back pay represents wages and compensation that would otherwise be included in this definition. (4) 'Dollar limitation' means the maximum permissible amount as such term is defined in paragraph (6) of this subsection. (5) 'Limitation year' means the plan year. (6) 'Maximum permissible amount' means: (A) For limitation years beginning prior to January 1, 1995, 100 percent of the plan member's average compensation for the period ofthree consecutive years during which the plan member has the highest aggregate compensation from the employer; (B) For limitation years beginning on and after January 1, 1995, but before January 1, 2001, $90,000; and (C) For limitation years beginning on and after January 1, 2002, $160,000.00, as adjusted by the secretary of the treasury of the United States for each calendar year, with the new limitation to apply to limitation years ending within the calendar year of the date of the adjustment. (7) 'Nonannuity benefit form' means a benefit, whether a normal form or an optional form, which is not payable in a straight life annuity for the life of the plan member. (b) Notwithstanding any other provisions ofthis title to the contrary, the maximum benefit payable to any active or retired member or beneficiary of a retirement or pension system subject to this title shall be limited to such extent as may be necessary to conform to the requirements of Section 415 ofthe federal Internal Revenue Code for a qualified retirement plan. (c) If a plan member's benefit is payable in a nonannuity benefit form, whether as the normal form of benefit or as an optional form which the plan member or his or her designated beneficiary elects, the nonannuity benefit form shall be adjusted to an annual benefit as described in subsections (d) and (e) of this Code section. No actuarial adjustment to the nonannuity benefit form shall be required for: (I) The value of a qualified joint and survivor annuity; (2) The value of benefits that are not directly related to retirement benefits, such as a disability benefit, preretirement death benefits, and postretirement medical benefits; or

954

GENERAL ACTS AND RESOLUTIONS, VOL. I

(3) The value ofpostretirement cost-of-living increases provided that the amount payable to the plan member under the nonannuity benefit form in any limitation year shall not be greater than the Section 415(b) of the federal Internal Revenue Code limit applicable at the annuity starting date as increased in subsequent years pursuant to Section 415(d) of the federal Internal Revenue Code and Section 1.415(d)-1 of the Treasury Regulations. The determination of the annual benefit shall disregard benefits attributable to employee contributions or rollover contributions or the assets transferred from a qualified plan that was not maintained by an employer. (d) If the annual benefit commences when the plan member has fewer than ten years of participation in the applicable public retirement or pension system or any predecessor public retirement or pension system, the dollar limitation shall be reduced by one-tenth for each year less than ten, but in no event shall be less than one-tenth of the unreduced dollar limitation. (e)(1) If the payment of benefits under the public retirement or pension system commences before age 62 or after age 65, the dollar limitation shall be adjusted as the actuarial equivalent of the dollar limitation payable at age 62 or age 65, as follows:
(A) If the age at which the benefit is payable is less than 62, the dollar limitation shall be reduced to reflect the lesser of the following calculations:
(i) Reduce the dollar limitation using the interest rate and mortality table or tabular factors, as applicable, which are set forth in the public retirement or pension system for the reduction of benefits for early retirement benefits; or (ii) Reduce the dollar limitation using 5 percent interest and the applicable mortality table; (B) For limitation years beginning before January I, 2002, nothing in this paragraph shall reduce the applicable dollar limitation below $75,000.00 if the annual benefit begins at or after age 55; and (C) For limitation years beginning before January 1, 2002, if the annual benefit begins before age 55, nothing in this paragraph shall reduce the dollar limitation below the actuarial equivalent of the $75,000.00 limitation for age 55. (2) If a plan member is a qualified member as such term is defined under Section 415(b)(2)(G) of the federal Internal Revenue Code, he or she may retire before age 62 without a reduction in the dollar limitation if at least 15 years of service is required to receive a full benefit under the public retirement or pension system. (3) If the age at which the benefit is payable is greater than age 65, the age-adjusted dollar limitation shall be determined by increasing the dollar limitation on an actuarially equivalent basis. The increased age-adjusted dollar limitation shall be the amount computed using 5 percent interest and the applicable mortality table."

SECTION 8. Said title is further amended by adding four new Code sections to read as follows:

GEORGIA LAWS 2009 SESSION

955

"47-1-83. (a) Notwithstanding anything in this Code section to the contrary, the annual benefit payable to a plan member shall not be deemed to exceed the limits of Section 415 of the federal Internal Revenue Code if the annual benefit payable to the plan member under a public retirement or pension system does not exceed $10,000.00 for the plan year or any prior plan year and the employer has not at any time maintained a defined contribution plan in which the plan member participated. (b) Notwithstanding anything contained in this Code section to the contrary, the adjustment prescribed by this Code section for benefits that commence before age 62 and the reduction described in this Code section for fewer than ten years of participation shall not apply to any benefit paid from a public retirement or pension system on account of a plan member's becoming disabled by reason of personal injuries or sickness or to amounts received by a designated beneficiary as a result of the plan member's death. This subsection shall be interpreted in accordance with Section 415(b)(2)(1) of the federal Internal Revenue Code and any regulations promulgated thereunder. (c) For purposes of applying the limits under Section 415(b) of the federal Internal Revenue Code, a plan member's maximum permissible amount shall be applied taking into consideration cost-of-living increases as required by Section 415(b) of the federal Internal Revenue Code and applicable Treasury Regulations. (d) In no event shall a plan member's annual benefit payable in any limitation year from a retirement or pension system be greater than the limit applicable at the annuity starting date, as increased in subsequent years pursuant to Section 415(d) of the federal Internal Revenue Code and regulations promulgated thereunder. If the form of benefit without regard to the automatic benefit increases feature is not a straight life annuity, then the preceding sentence is applied by reducing the Section 415(b) of the federal Internal Revenue Code limit applicable at the annuity starting date to an actuarially equivalent amount, to be determined by using the assumption specified in Treasury Regulation Section !.415(b)-l(c)(2)(ii) that takes into account the death benefit under the form of benefit.

47-1-84. (a) Notwithstanding any other provision of this title to the contrary, the board of trustees of a retirement or pension system may modify a request by a plan member to make a contribution to the public retirement or pension system if the amount of the contribution would exceed the limits provided under Section 415 of the federal Internal Revenue Code by using the following methods:
(I) If the law requires a lump sum payment for the purchase of service credit, the board of trustees may establish a periodic payment plan for the plan member to avoid a contribution in excess of the limits under Section 415(c) or 415(n) of the federal Internal Revenue Code; and

956

GENERAL ACTS AND RESOLUTIONS, VOL. I

(2) If the payment plan pursuant to paragraph (1) of this subsection will not avoid a contribution in excess of the limits, the board of trustees may refuse the plan member's contribution. (b) For any plan member who first became a plan member in the public retirement or pension system before January 1, 1998, the limitation of Section 415(c)(l) of the federal Internal Revenue Code shall not be applied to reduce the amount of permissive service credit which may be purchased to an amount less than the amount which was allowed to be purchased under state law on August 5, 1997.

47-1-85. (a) The assets of a public retirement or pension system shall be held in trust, and it shall not be possible at the time prior to satisfaction of all liabilities to plan members and their beneficiaries under the public retirement or pension system for any part of said assets to be used for, or diverted to, purposes other than for the exclusive benefit of plan members and their designated beneficiaries and for paying reasonable expenses of the public retirement or pension system and trust fund. (b) The board of trustees of a public retirement or pension system shall not engage in a transaction prohibited by Section 503(b) of the federal Internal Revenue Code.

47-1-86. Any other provision of this chapter to the contrary notwithstanding, to the extent that the Board of Trustees of the Georgia Municipal Employees Benefit System created by Chapter 5 of this title has adopted a plan document or rules and regulations that are in compliance with Sections 40l(a) and 414(d) and other applicable sections of the federal Internal Revenue Code, such plan document or rules and regulations shall govern such system notwithstanding any conflicting provision in this chapter; provided, however, that the provisions of Code Section 47-1-13 shall in any event apply to said system.'

SECTION 9. Said title is further amended by revising paragraph (1) of Code Section 47-2-1, relating to definitions relative to the Employees' Retirement System of Georgia, as follows:
'(1) 'Accumulated contributions' means the sum of all the amounts deducted from the earnable compensation of a member or paid by the member to establish or reestablish credit for service, which amounts are credited to the member's individual account in the annuity savings fund, together with regular interest thereon. Beginning July 1, 1980, 'accumulated contributions' also includes the amount of employee contributions paid by the employer on behalfofthe employee and credited to the employee's individual account in the annuity savings fund, together with regular interest thereon, excluding employee contributions paid by the employer or the employee for group term life insurance.'

GEORGIA LAWS 2009 SESSION

957

SECTION 10. Said title is further amended by revising paragraph (15) of Code Section 47-2-l, relating to definitions relative to the Employees' Retirement System of Georgia, as follows:
'(15) 'Earnable compensation' means the full rate of regular compensation payable to a member employee for his or her full normal working time, excluding any supplements from local funds. In cases where compensation includes maintenance, the board of trustees shall fix the value of that part of the compensation not paid in cash. Such term shall include contributions made to a qualified transportation plan, within the meaning of Section 132(f) of the federal Internal Revenue Code, and before tax or salary deferral contributions made under Sections 125, 401 (k), 402(g)(3), 457, or 414(h) of the federal Internal Revenue Code to this retirement system or to any other retirement plan maintained by an employer.'

SECTION 11. Said title is further amended by revising paragraph (17) of Code Section 47-2-1, relating to definitions relative to the Employees' Retirement System of Georgia, as follows:
'(17) 'Employer' means: (A) The state or any department, bureau, institution, board, or commission of the state or any county, city-county, or city board, the employees ofwhich are under a state merit system of personnel administration, including a merit system for employees of the Department of Public Safety, and all state departments under a tenure system as established by law, provided that such county, city-county, or city board may notify the board of trustees that it will not participate in the benefits ofthe retirement system, such notice to be given in writing on or before the commencement date or before persons are employed by it. Any employee of a county, city-county, or city board having an existing local retirement system may elect to continue to participate in such existing local system but shall not participate in two systems, and his or her election shall be final on the commencement date under this chapter. Any county, city-county, or city employee who elects to become a member of this retirement system and who was a member of an existing local retirement system shall transfer to the board oftrustees any equity he or she has in the local system. (B) Any other provisions of law to the contrary notwithstanding, the adjutant general is authorized, though not directed, to establish a merit system and to perform all of the duties and obligations of an 'employer' for all civilians employed in or with the Army National Guard of Georgia and the Air National Guard of Georgia, even though such employees may be paid with federal funds. The adjutant general is further authorized to make and enter into such agreements and take such actions as are necessary to provide for all contributions and payments specified in this chapter, from funds made available by the federal government, and otherwise to comply with this chapter so as to make this chapter applicable to such civilian employees.

958

GENERAL ACTS AND RESOLUTIONS, VOL. I

(C) 'Employer' shall include any new state agency described under Code Section 47-2-70.1 and any other entity authorized by law to report any of its employees as members of this system."

SECTION 12. Said title is further amended by revising Code Section 47-2-1, relating to definitions relative to the Employees' Retirement System of Georgia, by adding two new paragraphs to read as follows:
'(16.6) 'Employee' shall not include an individual classified by an employer as an independent contractor or a leased employee within the meaning of Section 414(n) of the federal Internal Revenue Code, even if such individual is later reclassified by the Internal Revenue Service as a common law employee." '(28.1) 'Plan year' means the 12 month period beginning on July 1 of each year."

SECTION 13. Said title is further amended by adding a new Code section to read as follows:
'47-2-33. For purposes ofcomplying with federal Internal Revenue Service rules and regulations, the plan year for this retirement system shall be the 12 month period beginning on July 1 of each year."

SECTION 14. Said title is further amended by revising Code Section 47-2-54, relating to employee contributions under the Employees' Retirement System of Georgia, by adding a new subsection to read as follows:
'U) The employee contributions described in this Code section that are credited to the member's annuity savings account, although designated as employee contributions, are being paid by the employer as 'pick-up' contributions in accordance with Section 414(h) of the federal Internal Revenue Code. As such, these contributions are mandatory and no member is entitled under any circumstances to receive such contributions in cash in lieu of having them contributed to the retirement system. Such contributions shall be 100 percent vested for all purposes under the retirement system."

SECTION 15. Said title is further amended by revising subsection (a) of Code Section 47-2-70.1, relating to employees of new state agencies, as follows:
'(a) As used in this Code section, the term: (1) 'Employee' means full-time officers and employees of a new state agency; provided, however, that such term shall not mean an individual classified by an employer as an independent contractor or a leased employee within the meaning of Section 414(n) ofthe

GEORGIA LAWS 2009 SESSION

959

Internal Revenue Code, even if such individual is later reclassified by the Internal Revenue Service as a common law employee. (2) 'Employer' means a new state agency paying the compensation of an employee. (3) 'New state agency' means any department, division, board, bureau, commission, institution, or other agency of the state or any state public authority which first becomes established or active on or after July l, 1992. (4) 'State public authority' means any public authority or public corporation created by general law to carry out state purposes or functions, and the term does not include public authorities created by general law to carry out purposes or functions within or on behalf of counties, municipalities, or other political subdivisions and which are activated by action of individual political subdivisions."

SECTION 16. Said title is further amended by revising Code Section 47-2-92, relating to reestablishment of service credit after withdrawal of accumulated contributions from this retirement system or the Teachers Retirement System of Georgia and payments required to obtain credits, as follows:
"47-2-92. Any present member who has withdrawn accumulated contributions from either the Employees' Retirement System of Georgia or the Teachers Retirement System of Georgia, or both, may, after two years of service as a contributing member, reestablish the creditable service for which the member would have been eligible if the accumulated contributions had not been withdrawn, provided that the member repays into the retirement system an amount equal to the amount withdrawn, together with regular interest at the rate of 4 1/4 percent per annum from the date .of withdrawal to the date of repayment, which contributions and interest shall be placed in the participant's individual account in the annuity savings fund. Upon receipt of notice from this retirement system to the Teachers Retirement System of Georgia that a member has repaid to this retirement system contributions previously withdrawn from the Teachers Retirement System of Georgia, the Teachers Retirement System of Georgia shall pay an employer contribution plus regular interest into the Employees' Retirement System of Georgia. The amount of the employer contribution shall be 6 percent of the reported compensation of the member during membership in the Teachers Retirement System of Georgia."

SECTION 17. Said title is further amended by revising Code Section 47-2-110, relating to retirement ages, application and eligibility for a retirement allowance, suspension of retirement allowance upon reemployment, and health benefits, as follows:
"47-2-110. (a)(l) Upon written application to the board of trustees, any member in service who has reached 60 years of age or who has 30 years of creditable service may retire on a service

960

GENERAL ACTS AND RESOLUTIONS, VOL. I

retirement allowance, provided that he or she has at least five years of creditable service; provided, further, that if he or she became a member after July I, 1968, he or she has at least ten years of creditable service. The effective date of retirement shall be the first of the month in which the application is received by the board of trustees, provided that no retirement application will, in any case, be effective earlier than the first of the month following the final month ofthe applicant's employment. Applications forretirement will not be accepted more than 90 days in advance of the effective date of retirement. Separation from service pending approval of the retirement application shall not affect eligibility for a retirement allowance. The provisions of this subsection regarding the effective date of retirement shall apply to all persons making application for retirement on or after March 15, 1979, and to all persons who have made application prior to March 15, 1979, but to whom payments from the retirement system have not commenced as of that date. Each employer shall certify to the board of trustees the date on which the employee's employment is or will be severed and that no agreement exists to allow the employee to return to service, including service as or for an independent contractor. Any return to employment or rendering of any paid service, including service as or for an independent contractor, for any employer within two consecutive calendar months of the effective date of retirement shall render the severance invalid, nullifying the application for retirement. (2) Normal retirement age, for purposes of the retirement system, shall be the date the employee has reached 60 years of age, provided that he or she has at least ten years of creditable service or the age of an employee on the date he or she attains 30 years of creditable service; provided, however, that the provisions of this paragraph are subject to change by future legislation in order to comply with federal regulations. For those members who are in service with the Uniform Division of the Department of Public Safety as an officer, noncommissioned officer, or trooper, officers and agents of the Georgia Bureau of Investigation, conservation rangers of the Department of Natural Resources, or in the Department of Revenue as an alcohol and tobacco officer or agent, normal retirement age shall be the date the employee has reached 55 years of age, provided that he or she has at least ten years of creditable service. For purposes of Section 402(1) of the federal Internal Revenue Code regarding distributions from governmental plans for health and long-term care insurance for public safety officers, normal retirement age shall be the earliest date when the employee has satisfied the requirements for a retirement allowance under the retirement system. Except as provided under Article 2 of Chapter 1 of this title, a member's right to his or her retirement allowance is nonforfeitable upon attainment of normal retirement age. (b)(!) Effective July 1, 1983, no member of the retirement system may be required to retire because of age except the following members:
(A) Those employed as prison guards by the Department of Corrections; (B) Those employed by the Uniform Division of the Department of Public Safety as officers and troopers;

GEORGIA LAWS 2009 SESSION

961

(C) Those employed by the Department ofNatural Resources as conservation rangers; (D) Those employed by the Department of Revenue as alcohol and tobacco officers or agents; (E) Those employed as officers or agents of the Georgia Bureau of Investigation; (F) Those employed by the Department of Transportation as enforcement officers prior to July 1, 2001; (G) Those employed by the Department of Motor Vehicle Safety as enforcement officers on or after July 1, 2001; and (H) Those employed by the State Board of Pardons and Paroles as parole officers as well as other employees of said board who possess the power of arrest. (2) Those members specified by paragraph (1) of this subsection who may be required to retire because of age shall be subject to the laws specifying retirement ages for the various classifications of such members or subject to the rules, regulations, or policies specifying retirement ages of the various state departments or agencies employing such members, provided such rules, regulations, or policies are in compliance with other laws of this state. Any state department or agency specified in paragraph (I) ofthis subsection shall be authorized to employ or continue the employment of any member, regardless of age, with professional, scientific, or technical skills who is so certified to the board of trustees by the state department or agency. (c)(!) As used in this subsection, in addition to the definition provided in Code Section 47-2-1, the term 'employer' shall also include the retired member's last employer which reported to the retirement system prior to the member's effective date ofretirement. Such term shall also include the Board of Regents of the University System of Georgia. (2) Except as provided in this subsection, if a member accepts paid employment with or renders services for pay to any employer, including, without limitation, service directly or indirectly as or for an independent contractor, after his or her retirement, payment of his or her retirement allowance shall be suspended and no contributions to the retirement system shall be made on account of such service either by that member or his or her employer, provided that, upon termination of such service, all rights shall vest in that member as if he or she had continued his or her option to retire. (3) The retirement allowance of a retired member who accepts employment with or renders services to any employer after his or her retirement shall not be suspended if the employee has attained normal retirement age or has not been employed by or rendered service for any employer for at least two consecutive calendar months and performs no more than 1,040 hours ofpaid employment or paid service, including, without limitation, service as or for an independent contractor, for the employer in any calendar year. (4) Any employer that employs a retired plan member shall within 30 days of the employee's accepting employment notify the board oftrustees in writing stating the name of the plan member and the number of hours the employee is expected to work annually and shall provide such other information as the board may request. If the retired plan member performs more than 1,040 hours in any calendar year, the employer shall so

962

GENERAL ACTS AND RESOLUTIONS, VOL. I

notify the board of trustees as soon as such information is available. Any employer that fails to notify the board of trustees as required by this subsection shall reimburse the retirement system for any benefits wrongfully paid. It shall be the duty of the retired plan member seeking employment by the employer to notify the employer of his or her retirement status prior to accepting such position. If a retired plan member fails to so notify the employer and the employer becomes liable to the retirement system, the plan member shall hold the employer harmless for all such liability. (d) The board of trustees is authorized to provide by rule or regulation for the payment of benefits to members or beneficiaries of the retirement system at a time and under circumstances not provided for in this chapter to the extent that such payment is required to maintain the retirement system as a 'qualified retirement plan' for the purposes of federal income tax laws."

SECTION 18. Said title is further amended by revising subsection (d) of Code Section 47-2-120, relating to retirement allowances, as follows:
'(d) Anything in this chapter to the contrary notwithstanding, any member whose current membership began prior to July 1, 1982, and who has at least 34 years of service shall be eligible to retire forthwith and upon retirement shall be paid not less than the service retirement allowance which would have been payable upon service retirement at the age of 65 had the member continued in service without further change in compensation.'

SECTION 19. Said title is further amended by revising Code Section 47-2-122, relating to vesting of rights to a retirement allowance despite early retirement and retirement allowance payable to such persons, as follows:
'47-2-122. Except as provided in Article 2 of Chapter 1 of this title, a member's accumulated contributions shall be 100 percent vested and nonforfeitable at all times. The right to a service retirement allowance under this chapter shall vest in any member who withdraws from service with at least ten years of membership service subsequent to January 1, 1954, although the member has not yet attained 60 years of age, provided that the member has not withdrawn the member's contributions. Such member shall become entitled to a service retirement allowance (1) upon filing an application as provided in Code Section 47-2-110 and (2) upon attaining the age of 60 or, at the member's option, at any time subsequent thereto after filing such application. The retirement allowance in the case of any such member shall be the monthly amount the member would have received had the member retired on the last day the member contributed to the retirement system and at that time had been the same age as when the member actually retired. If a member with vested rights dies before reaching age 60, the member's accumulated contributions shall be paid to the member's named living beneficiary, otherwise to the member's estate.'

GEORGIA LAWS 2009 SESSION

963

SECTION 20. Said title is further amended by revising paragraph (1) of Code Section 47-4-2, relating to definitions relative to the Public School Employees Retirement System, as follows:
(1) 'Accumulated contributions' means the sum of all of the amounts deducted from the earnable compensation of a member and paid by the member to establish or reestablish credit for service, which amounts are credited to the member's individual account in this retirement system, together with regular interest thereon."

SECTION 21. Said title is further amended by adding a new Code section to read as follows:
'47-4-30. For purposes of complying with federal Internal Revenue Service rules and regulations, the plan year for this retirement system shall be the 12 month period beginning on July 1 of each year."

SECTION 22. Said title is further amended by revising subsection (e) of Code Section 47-4-100, relating to normal, early, and delayed retirement and vesting of a right to a retirement benefit under the Public School Employees Retirement System, as follows:
(e) The right to a retirement benefit under this chapter shall vest in a member who has ten or more years of creditable service if the member has not withdrawn the member's contributions. Except as otherwise provided in Article 2 of Chapter 1 of this title, a member's accumulated contributions shall be 100 percent vested and nonforfeitable at all times. A member shall be 100 percent vested in all benefits under the plan upon attainment of normal retirement age. Upon attaining the member's normal retirement age or the member's early retirement age, the member shall begin receiving the appropriate retirement benefit provided by Code Section 47-4-101 ."

SECTION 23. Said title is further amended by adding a new Code section to read as follows:
n 47-4-106. If any retired member who has not yet reached normal retirement age returns to service as a public school employee in any position which normally requires membership in this retirement system, such member's retirement benefit shall cease and the retired member shall reestablish active membership in this retirement system. The member shall have the same creditable service which the member possessed at the time of retirement and shall accumulate additional creditable service so long as such active membership continues. Upon cessation of such service, the retired member, after proper notification to the board, shall receive a retirement benefit based on the member's total accrued service."

964

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 24. Said title is further amended by revising paragraph (I) of Code Section 47-6-1, relating to definitions relative to the Georgia Legislative Retirement System, as follows:
'(!) 'Accumulated contributions' means the sum of all amounts deducted from the compensation of a member or paid by the member to establish or reestablish credit for service, which amounts are credited to his or her individual account in the system, together with regular interest thereon. Beginning on January 12, 1981, this term shall include the amount of employee contributions paid by the employer on behalf of members, together with regular interest thereon, excluding employee contributions paid by the employer for group term life insurance coverage.'

SECTION 25. Said title is further amended by adding a new Code section to read as follows:
'47-6-25. For purposes of complying with federal Internal Revenue Service rules and regulations, the plan year for this retirement system shall be the 12 month period beginning on July I of each year.'

SECTION 26. Said title is further amended by revising subsection (c) of Code Section 47-6-80, relating to eligibility and application for a retirement allowance, early retirement, amount of retirement allowance, and increases in retirement allowance, as follows:
(c) Normal retirement age for a member with at least eight years of membership service shall be the date the member has reached 62 years of age. Normal retirement age for a member with less than eight years of membership service but with at least eight years of creditable service shall be the date the member has reached 65 years of age. Any member of the system who has completed eight or more years of membership service and who has attained age 60 may elect to retire prior to age 62, provided that in such event, the member's retirement allowance shall be reduced by 5 percent for each year below age 62.'

SECTION 27. Said title is further amended by revising Code Section 47-6-84, relating to termination of retirement allowance upon return to service and retirement benefits for retired members returning to service in the General Assembly, as follows:
'47-6-84. (a)( I) Except as provided in paragraph (2) of this subsection, if any retired member who has not yet reached normal retirement age returns to the service of the state in any position, including, without limitation, service directly or indirectly as or for an independent contractor, except as a member of the General Assembly, the member's retirement allowance shall cease. Upon cessation of such service, the retired member,

GEORGIA LAWS 2009 SESSION

965

after proper notification to the board, shall receive the same retirement allowance which the member was receiving prior to returning to state service. (2) Notwithstanding any other provisions in this chapter to the contrary, the retirement allowance of a retired member who has reached normal retirement age or has not been employed by or rendered service for the state and who returns to the service of the state in any position, including, without limitation, service directly or indirectly as or for an independent contractor, other than as a member of the General Assembly shall not cease provided that such member performs no more than 1,040 hours of such service in any calendar year. (b)(1) If a retired member returns to service as a member of the General Assembly after the member has reached normal retirement age, the retired member may either continue to receive a retirement benefit while serving as a member of the General Assembly or reestablish active membership in the retirement system. If the election is to reestablish active membership in the retirement system, the member shall have the same creditable service which the member possessed at the time of retirement and shall accumulate additional creditable service so long as such active membership continues. Except as otherwise provided by paragraph (2) of this subsection, a retired member who returns to service in the General Assembly shall make the election provided for in this paragraph within 30 days after taking office. Such election shall be made in writing to the board of trustees and shall be irrevocable. If a retired member returns to service as a member of the General Assembly before the member has reached normal retirement age, the retired member shall reestablish active membership in the retirement system. The member shall have the same creditable service which the member possessed at the time of retirement and shall accumulate additional creditable service so long as such active membership continues. (2) A retired member who returned to service in the General Assembly prior to the existence of the option to reestablish active membership in the retirement system shall have the right to make the election provided for in paragraph ( 1) ofthis subsection at any time prior to January 1, 1991. In addition to creditable service provided for in paragraph (1) of this subsection, any such retired member who elects to reestablish active membership in the retirement system may obtain creditable service for service in the General Assembly rendered from the time of returning to service in the General Assembly until the date of reestablishing active membership in the retirement system. In order to obtain such creditable service, the member shall pay to the board of trustees the employee contributions which would have been paid to the retirement system during the period for which such creditable service is claimed, plus regular interest thereon compounded annually from the time the service in the General Assembly was rendered until the date of payment.'

966

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 28. Said title is further amended by revising Code Section 47-6-85, relating to refund of accumulated contributions upon termination of membership, as follows:
'47-6-85. Except as otherwise provided in Article 2 ofChapter I ofthis title, a member's accumulated contributions shall be 100 percent vested and nonforfeitable at all times. Upon the request of a member who ceases to be a member of the system for reasons other than retirement or death, the member shall be paid the member's accumulated contributions as soon as feasible after such request. If the member dies before payment has been made, the amount of the member's accumulated contributions shall be paid to such person as the member has nominated by written designation filed with the board, otherwise to the member's estate.'

SECTION 29. Said title is further amended by revising Code Section 47-22-1, relating to definitions relative to the Georgia Deferred Contribution Plan, by adding new paragraph to read as follows:
'(8) 'Plan year' means the 12 month period beginning July 1 of each year.'

SECTION 30. Said title is further amended by revising Code Section 47-22-9, relating to payment of lump sum on termination of employment and continued accrual of earnings absent request for lump sum payment, as follows:
"47-22-9. (a) Upon the written request of a member who ceases to be an employee, a lump sum amount shall be paid to such person equal to the total amount credited to such member's account at the time the member ceases to be an employee. If such member dies before payment has been made, such payment shall be made to such person as the member has nominated, by written designation filed with the board; otherwise to the member's estate. If no such request is made, the member's account shall continue to accrue earnings in the same manner as any member's account. (b) Notwithstanding the provisions of subsection (a) of this Code section, if any member who ceases to be an employee has less than such minimum amount as determined by the board, but not more than $5,000.00, credited to such member's account, the board may, at its option, require such member to withdraw all such moneys and the member's account shall be closed; provided, however, that the board's option to require withdrawal of small account balances shall be applied in a consistent manner; provided, further, that ifthe board provides for mandatory distributions of account balances greater than $1,000.00 and if a member does not elect to have such distribution paid directly to an eligible retirement plan specified by the member in a direct rollover or to receive the distribution directly, the plan shall pay the distribution in a direct rollover to an individual retirement plan designated by the board in accordance with Section 401(a)(3l)(B) of the federal Internal Revenue Code.

GEORGIA LAWS 2009 SESSION

967

(c) Except as otherwise provided in Article 2 of Chapter 1 of this title, a member's account balance in the plan shall at all times be 100 percent vested and nonforfeitable."

SECTION 31. Said title is further amended by revising Code Section 47-23-1, relating to definitions relative to the Georgia Judicial Retirement System, as follows:
'47-23-1. As used in this chapter, the term:
( 1) 'Accumulated contributions' means the sum of all amounts deducted from the earnable compensation of a member or paid by the member to establish or reestablish credit for service, which amounts are credited to his or her individual account together with regular interest thereon. Such term shall also include the amount of employee contributions paid by the employer on behalf of members, together with regular interest thereon, excluding employee contributions paid by the employer or the employee for group term life insurance coverage. (2) 'Average earnable monthly compensation' means the average earnable monthly compensation of a member during the 24 consecutive months of creditable service producing the highest such average. (3) 'Beneficiary' means any person other than a retired member of a retirement system who is receiving a benefit from that retirement system. (4) 'Board' means the Board of Trustees of the Georgia Judicial Retirement System. (5) 'County pension or retirement fund' means only those certain pension and retirement funds provided for by local Acts applicable to certain named counties. (6) 'Covered position' means an employment position eligible for membership under this chapter. (7) 'Creditable service' means prior service and membership service for which credit is allowable under this chapter, but in no case shall more than one year of service be creditable for all service in one calendar year, nor shall it include any service which has been or may be credited to a member by any other public retirement system of this state. (8) 'District attorney' means any district attorney holding office on July 1, 1998, and any district attorney taking office on or after July 1, 1998, except that the term district attorney shall not include any district attorney:
(A) Who was serving as a district attorney on June 30, 1998, and who was not a member of the District Attorneys' Retirement System; or (B) Who is a member of any other publicly supported retirement or pension system or fund created by any law of this state, if the retirement or pension benefits under such other publicly supported retirement or pension system or fund are based wholly or partially on the compensation payable to the district attorney from state funds. (9) 'District Attorneys' Retirement System' means that retirement system created by Chapter 13 of this title as such chapter existed prior to July 1, 1998.

968

GENERAL ACTS AND RESOLUTIONS, VOL. I

(10) 'Earnable monthly compensation' means the full rate of regular monthly compensation payable to a member employee for his or her full working time, excluding any local supplements. (11) 'Fund' means the Georgia Judicial Retirement System Fund provided for by Code Section 47-23-22. The fund shall include, but is not limited to, a pension accumulation fund in which the benefits described in Article 6 of this chapter will be held and an employee contribution accumulation fund in which the contributions described in Article 5 of this chapter will be held. (12) 'Judge, solicitor, or solicitor-general of a state court' means a person elected or appointed to such office for a specific term. Such term shall not include any person acting as a judge or solicitor of a state court on a temporary basis or serving as judge or solicitor-general pro tempore of a state court. (13) 'Juvenile court judge' means a juvenile court judge now or hereafter appointed or otherwise holding office pursuant to Code Section 15-11-18 relative to the creation of juvenile courts, except judges of the superior courts sitting as juvenile court judges and juvenile court judges who are members oflocal retirement or pension systems created by local law. (14) 'Predecessor retirement system' means the District Attorneys' Retirement System, the Superior Court Judges Retirement System, and the Trial Judges and Solicitors Retirement Fund, collectively or individually. (15) 'Regular interest' means interest at such rate as shall be determined by the board of trustees, which interest shall be compounded annually. (16) 'Retirement system' means the Georgia Judicial Retirement System. (17) 'State court' means any court created pursuant to the provisions of Chapter 7 of Title 15 or any court continued as a state court by Article VI, Section X of the Constitution of the State of Georgia; provided, however, that such term shall include the State Court of Fulton County subject to the provisions of Code Section 47-23-50. (18) 'Superior Court Judges Retirement System' means that retirement system created by Chapter 9 of this title as such chapter existed prior to July 1, 1998. (19) 'Trial Judges and Solicitors Retirement Fund' means that retirement fund created by Chapter 10 of this title as such chapter existed prior to July 1, 1998."

SECTION 32. Said title is further amended by adding a new Code section to read as follows:
'47-23-30. For purposes of complying with federal Internal Revenue Service rules and regulations, the plan year for this retirement system shall be the 12 month period beginning on July 1 of each year.'

GEORGIA LAWS 2009 SESSION

969

SECTION 33. Said title is further amended by revising Code Section 47-23-102, relating to vesting and benefits upon retirement, as follows:
6 47-23-102. The right of a member to receive benefits under this chapter shall vest after the member obtains ten years of creditable service; provided, however, that no member shall receive a retirement benefit prior to attaining the age of 60 years. Except as otherwise provided in Article 2 of Chapter 1 of this title, a member's accumulated contributions shall be I00 percent vested and nonforfeitable at all times. Any member retiring on or after July 1, 1996, and any member who was retired on July 1, 1996, with 16 years or more of creditable service shall receive a benefit equal to 66.66 percent, plus 1 percent for each year of creditable service over 16 years, of the member's salary; provided, however, that no member shall receive more than 24 years of creditable service. Any member retiring with less than 16 years of creditable service may retire at a reduced benefit pursuant to Code Section 47-23-103. Normal retirement age under this retirement system shall be the date the member has reached age 60 years of age, provided that he or she has at least ten years of creditable service. For purposes of Section 402(1) of the federal Internal Revenue Code regarding distributions from governmental plans for health and long-term care insurance for public safety officers, normal retirement age shall be the earliest date when the member has satisfied the requirements for a retirement under this or the predecessor retirement system. Except as otherwise provided in Article 2 of Chapter 1 of this title, a member's right to his or her retirement allowance is nonforfeitable upon attainment of normal retirement age. Any member who was retired on July 1, 1996, with more than 16 years of creditable service shall receive in July, 1998, a one-time benefit payment equal to two times the product of 1 percent of the salary paid to such judge at the time of his or her retirement multiplied by the number of years of creditable service in excess of 16 years.'

SECTION 34. Said title is further amended by revising Code Section 47-23-109, relating to cessation of retirement allowance for resuming state service, as follows:
6 47-23-109. (a) Except as provided in subsection (b) of this Code section, if any retired member who has not yet reached normal retirement age returns to the service ofthe state in any position, including, without limitation, service directly or indirectly as or for an independent contractor, except as a member of the General Assembly, his or her retirement allowance shall cease. Upon cessation of such service, the retired member, after proper notification to the board, shall receive the same retirement allowance which he or she was receiving prior to returning to state service, calculated with any increases granted during the period of compensation. (b) The retirement allowance of a retired member who has reached normal retirement age and who returns to the service of the state in any position, including, without limitation,

970

GENERAL ACTS AND RESOLUTIONS, VOL. I

service directly or indirectly as or for an independent contractor, other than as a member ofthe General Assembly shall not cease provided that such member performs no more than 1,040 hours of such service in any calendar year."

SECTION 35. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.
SECTION 36. All laws and parts of laws in conflict with this Act are repealed.

Approved May 11, 2009.

COMMERCE- PENAL INSTITUTIONS-STATE GOVERNMENT- SECURITY AND IMMIGRATION COMPLIANCE; QUERIES; VERIFICATION; LAWFUL PRESENCE.
No. 339 (House Bill No. 2).
AN ACT
To amend Article 3 of Chapter 10 of Title 13 of the Official Code of Georgia Annotated, relating to security and immigration compliance, so as to clarify compliance requirements of public employers; to provide certain immunity; to amend Article 1 of Chapter 4 of Title 42 of the Official Code of Georgia Annotated, relating to general provisions pertaining to jails, so as to change certain provisions relating to keepers of jails and queries made to the United States Department of Homeland Security; to amend Chapter 36 of Title 50 of the Official Code of Georgia Annotated, relating to verification of lawful presence within the United States, so as to change certain provisions relating to verification requirements, procedures, and conditions; to provide for definitions; to provide for reports and duties of the Attorney General; to provide certain immunity; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Article 3 of Chapter 10 of Title 13 of the Official Code of Georgia Annotated, relating to security and immigration compliance, is amended by revising Code Section 13-10-91,

GEORGIA LAWS 2009 SESSION

971

relating to verification of new employee information and applicability and rules and regulations, as follows:
'13-10-91. (a) Every public employer, including, but not limited to, every municipality and county, shall register and participate in the federal work authorization program to verify employment eligibility of all newly hired employees. Upon federal authorization, a public employer shall permanently post the employer's federally issued user identification number and date of authorization, as established by the agreement for authorization, on the employer's website; provided, however, that if a local public employer does not maintain a website, the identification number and date of authorization shall be published annually in the official legal organ for the county. State departments, agencies, or instrumentalities may satisfy the requirement of this Code section by posting information required by this Code section on one website maintained and operated by the state.
(b)(1) No public employer shall enter into a contract pursuant to this chapter for the physical performance of services within this state unless the contractor registers and participates in the federal work authorization program to verify information of all newly hired employees or subcontractors. Before a bid for any such service is considered by a public employer, the bid shall include a signed, notarized affidavit from the contractor attesting to the following:
(A) The affiant has registered with and is authorized to use the federal work authorization program; (B) The user identification number and date of authorization for the affiant; and (C) The affiant is using and will continue to use the federal work authorization program throughout the contract period. An affidavit required by this subsection shall be considered an open public record once a public employer has entered into a contract for services; provided, however, that any information protected from public disclosure by federal law shall be redacted. (2) No contractor or subcontractor who enters a contract pursuant to this chapter with a public employer shall enter into such a contract or subcontract in connection with the physical performance of services within this state unless the contractor or subcontractor registers and participates in the federal work authorization program to verify information of all newly hired employees. (c) This Code section shall be enforced without regard to race, religion, gender, ethnicity, or national origin. (d) Except as provided in subsection (e) of this Code section, the Commissioner shall prescribe forms and promulgate rules and regulations deemed necessary in order to administer and effectuate this Code section and publish such rules and regulations on the Georgia Department of Labor's website. (e) The commissioner of the Georgia Department of Transportation shall prescribe all forms and promulgate rules and regulations deemed necessary for the application of this

972

GENERAL ACTS AND RESOLUTIONS, VOL. I

Code section to any contract or agreement relating to public transportation and shall publish such rules and regulations on the Georgia Department of Transportation's website. (f) No employer or agency or political subdivision, as such term is defined in Code Section 50-36-1, shall be subject to lawsuit or liability arising from any act to comply with the requirements of this Code section."

SECTION 2. Article I of Chapter 4 of Title 42 of the Official Code of Georgia Annotated, relating to general provisions pertaining to jails, is amended by revising Code Section 42-4-14, relating to the determination of nationality of persons charged with a felony and confined in a jail facility, as follows:
'42-4-14. (a) When any person is confined, for any period, in the jail of a county or municipality or a jail operated by a regional jail authority in compliance with Article 36 of the Vienna Convention on Consular Relations, a reasonable effort shall be made to determine the nationality of the person so confined. (b) If the prisoner is a foreign national charged with a felony, driving under the influence pursuant to Code Section 40-6-391, driving without being licensed pursuant to subsection (a) of Code Section 40-5-20, or with a misdemeanor of a high and aggravated nature, the keeper of the jail or other officer shall make a reasonable effort to verify that the prisoner has been lawfully admitted to the United States and iflawfully admitted, that such lawful status has not expired. If verification of lawful status can not be made from documents in the possession of the prisoner, verification shall be made within 48 hours through a query to the Law Enforcement Support Center (LESC) of the United States Department of Homeland Security or other office or agency designated for that purpose by the United States Department of Homeland Security. If the prisoner is determined not to be lawfully admitted to the United States, the keeper of the jail or other officer shall notify the United States Department of Homeland Security. (c) Nothing in this Code section shall be construed to deny a person bond or from being released from confinement when such person is otherwise eligible for release. (d) The Georgia Sheriffs Association shall prepare and issue guidelines and procedures used to comply with the provisions of this Code section."

SECTION 3. Chapter 36 of Title 50 of the Official Code of Georgia Annotated, relating to verification of lawful presence within the United States, is amended by revising Code Section 50-36-1, relating to the verification requirements, procedures, and conditions and exceptions, regulations, and criminal and other penalties for violations, as follows:

GEORGIA LAWS 2009 SESSION

973

"50-36-1. (a) As used in this Code section, the term:
(1) 'Agency or political subdivision' means any department, agency, authority, commission, or government entity of this state or any subdivision of this state. (2) 'Applicant' means any natural person, 18 years of age or older, who has made application for access to public benefits on behalf of an individual, business, corporation, partnership, or other private entity.
(3)(A) 'Public benefit' means a federal benefit as defined in 8 U.S.C. Section 1611, a state or local benefit as defined in 8 U.S.C. Section 1621, a benefit identified as a public benefit by the Attorney General of Georgia, or a public benefit which shall include the following:
(i) Adult education; (ii) Authorization to conduct a commercial enterprise or business; (iii) Business certificate, license, or registration; (iv) Business loan; (v) Cash allowance; (vi) Disability assistance or insurance; (vii) Down payment assistance; (viii) Energy assistance; (ix) Food stamps; (x) Gaming license; (xi) Health benefits; (xii) Housing allowance, grant, guarantee, or loan; (xiii) Loan guarantee; (xiv) Medicaid; (xv) Occupational license; (xvi) Professional license; (xvii) Registration of a regulated business; (xviii) Rent assistance or subsidy; (xix) State grant or loan; (xx) State identification card; (xxi) Tax certificate required to conduct a commercial business; (xxii) Temporary assistance for needy families (TANF); (xxiii) Unemployment insurance; and (xxiv) Welfare to work. (B) Each year before August 1, the Attorney General shall prepare a detailed report indicating any 'public benefit' that may be administered in this state as defined in 8 U.S.C. Sections 1611 and 1621 and whether such benefit is subject to SAVE verification pursuant to this Code section. Such report shall provide the description of the benefit and shall be updated annually and distributed to the members ofthe General Assembly and be posted to the Attorney General's website.

974

GENERAL ACTS AND RESOLUTIONS, VOL. I

(b) Except as provided in subsection (d) ofthis Code section or where exempted by federal law, every agency or political subdivision shall verify the lawful presence in the United States of any applicant for public benefits. (c) This Code section shall be enforced without regard to race, religion, gender, ethnicity, or national origin. (d) Verification of lawful presence under this Code section shall not be required:
(I) For any purpose for which lawful presence in the United States is not required by law, ordinance, or regulation; (2) For assistance for health care items and services that are necessary for the treatment of an emergency medical condition, as defined in 42 U.S.C. Section 1396b(v)(3), of the alien involved and are not related to an organ transplant procedure; (3) For short-term, noncash, in-kind emergency disaster relief; (4) For public health assistance for immunizations with respect to immunizable diseases and for testing and treatment ofsymptoms ofcommunicable diseases whether or not such symptoms are caused by a communicable disease; (5) For programs, services, or assistance such as soup kitchens, crisis counseling and intervention, and short-term shelter specified by the United States Attorney General, in the United States Attorney General's sole and unreviewable discretion after consultation with appropriate federal agencies and departments, which:
(A) Deliver in-kind services at the community level, including through public or private nonprofit agencies; (B) Do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the individual recipient's income or resources; and (C) Are necessary for the protection of life or safety; (6) For prenatal care; or (7) For postsecondary education, whereby the Board ofRegents ofthe University System of Georgia or the State Board of Technical and Adult Education shall set forth, or cause to be set forth, policies regarding postsecondary benefits that comply with all federal law including but not limited to public benefits as described in 8 U.S.C. Section 1611, 1621, or 1623. (e) An agency or political subdivision providing or administering a public benefit shall require every applicant for such benefit to execute a signed and sworn affidavit verifying the applicant's lawful presence in the United States, which affidavit shall state: (I) The applicant is a United States citizen or legal permanent resident 18 years of age or older; or (2) The applicant is a qualified alien or nonimmigrant under the federal Immigration and Nationality Act, Title 8 U.S.C., as amended, 18 years of age or older lawfully present in the United States and provide the applicant's alien number issued by the Department of Homeland Security or other federal immigration agency. (f) For any applicant who has executed an affidavit that he or she is an alien lawfully present in the United States, eligibility for public benefits shall be made through the

GEORGIA LAWS 2009 SESSION

975

Systematic Alien Verification of Entitlement (SAVE) program operated by the United States Department of Homeland Security or a successor program designated by the United States Department of Homeland Security. Until such eligibility verification is made, the affidavit may be presumed to be proof of lawful presence for the purposes of this Code section. (g) Any person who knowingly and willfully makes a false, fictitious, or fraudulent statement of representation in an affidavit executed pursuant to this Code section shall be guilty of a violation of Code Section 16-10-20. (h) Verification of citizenship through means required by federal law shall satisfy the requirements of this Code section. (i) It shall be unlawful for any agency or political subdivision to provide or administer any public benefit in violation of this Code section. On or before January 1 of each year, each agency or political subdivision which administers any public benefit shall provide an annual report to the Department of Community Affairs that identifies each public benefit, as defined in subparagraph (a)(3)(A) of this Code section, administered by the agency or political subdivision and a listing of each public benefit for which SAVE authorization for verification has not been received. U) Any and all errors and significant delays by SAVE shall be reported to the United States Department of Homeland Security. (k) Notwithstanding subsection(g) of this Code section, any applicant for public benefits shall not be guilty of any crime for executing an affidavit attesting to lawful presence in the United States that contains a false statement if said affidavit is not required by this Code section. (I) In the event a legal action is filed against any agency or political subdivision alleging improper denial of a public benefit arising out of an effort to comply with this Code section, the Attorney General shall be served with a copy of the proceeding and shall be entitled to be heard. (m) Compliance with this Code section by an agency or political subdivision shall include taking all reasonable, necessary steps required by a federal agency to receive authorization to utilize the SAVE program or any successor program designated by the United States Department of Homeland Security or other federal agency, including providing copies of statutory authorization for the agency or political subdivision to provide public benefits and other affidavits, letters of memorandum of understanding, or other required documents or information needed to receive authority to utilize the SAVE program or any successor program for each public benefit provided by such agency or political subdivision. An agency or political subdivision that takes all reasonable, necessary steps and submits all requested documents and information as required in this subsection but either has not been given access to use such programs by such federal agencies or has not completed the process of obtaining access to use such programs shall not liable for failing to use the SAVE program or any such successor program to verify eligibility for public benefits.

976

GENERAL ACTS AND RESOLUTIONS, VOL. I

(n) In the case of noncompliance with the provisions of this Code section by an agency or political subdivision, the appropriations committee of each house of the General Assembly may consider such noncompliance in setting the budget and appropriations. (o) No employer, agency, or political subdivision shall be subject to lawsuit or liability arising from any act to comply with the requirements of this chapter.'

SECTION 4. This Act shall become effective on January 1, 2010.

SECTION 5. All laws and parts of laws in conflict with this Act are repealed.

Approved May 11,2009.

HIGHWAYS- STATE GOVERNMENT- DIRECTOR OF PLANNING; PLANNING DIVISION; DEPARTMENT REORGANIZATION.
No. 340 (Senate Bill No. 200).
AN ACT
To amend Title 32 of the Official Code of Georgia Annotated, relating to highways, bridges, and ferries, so as to provide for a division and a director of planning; to provide for the development of transportation plans for the state; to specify certain duties for the commissioner of transportation; to specify certain duties for the State Transportation Board; to provide for an organizational structure within the department; to provide a timetable for completion and reporting of transportation plans; to provide for investment policies to guide transportation planning; to provide for the appointment ofthe director ofplanning; to provide for identifying and constructing projects with private investment; to provide for priority of expenditures; to provide for the development of allocation formulas for available funding; to amend Article 2 of Chapter 32 of Title 50 of the Official Code of Georgia Annotated, relating to the jurisdiction ofthe Georgia Regional Transportation Authority, so as to remove a planning function ofthe authority; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

GEORGIA LAWS 2009 SESSION

977

SECTION 1. Title 32 ofthe Official Code ofGeorgia Annotated, relating to highways, bridges, and ferries, is amended in Code Section 32-2-1, relating to the composition of the Department of Transportation, by revising said Code section as follows:
'32-2-1. The Department of Transportation shall consist of the State Transportation Board, the commissioner of transportation, the director of planning, the deputy commissioner of transportation, the chiefengineer, the treasurer and the assistant treasurer oftransportation, and such subordinate employees as may be deemed necessary by the commissioner or the director of planning.

SECTION 2. Said title is further amended in Code Section 32-2-20, relating to the State Transportation Board generally, by revising subsection (f) of said Code section as follows:
'(f) The members of the board shall receive no salary but shall receive for each day of actual attendance at meetings of the board and the committee meetings the per diem and transportation costs prescribed in Code Section 45-7-21. A like sum shall be paid for each day actually spent in studying the transportation needs of the state or attending other functions as a representative of the board, not to exceed 60 days in any calendar year. No per diem shall be paid for meetings ofthe board conducted by conference call. In addition, they shall receive actual transportation costs while traveling by public carrier or the legal mileage rate for the use of a personal automobile in connection with such attendance and road study. Such per diem and expense shall be paid from funds appropriated to the department upon presentation, by members of the board, of vouchers approved by the chairperson and signed by the secretary.'

SECTION 3. Said title is further amended in Code Section 32-2-21, relating to the powers and duties of the State Transportation Board generally, by revising said Code section as follows:
'32-2-21. The board shall be charged with the general control and supervision of the department. In the exercise of such general control and supervision, the board shall have such duties, powers, and authority as are expressly vested in it by this title, including but not limited to:
(1) Designation of public roads on the state highway system; (2) Approval of negotiated construction contracts, of authority lease agreements, or of the advertising ofnonnegotiated construction contracts; and (3) Approval of all long-range plans and programs of the department.'

978

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 4. Said title is further amended by adding after Code Section 32-2-21, relating to the powers and duties of the State Transportation Board generally, a new Code Section 32-2-22 to read as follows:
8 32-2-22. (a) As used in this chapter and in Article 2 of Chapter 5 of this title, the term:
(1) 'Director' means the director of planning provided for by Code Section 32-2-43. (2) 'Division' means the Planning Division of the department provided for by paragraph (4) of subsection (b) of Code Section 32-2-41. (3) 'Metropolitan planning organization' means the forum for cooperative transportation decision making for a metropolitan planning area. (4) 'Metropolitan transportation plan' means the official intermodal transportation plan that is developed and adopted through the metropolitan transportation planning process for a metropolitan planning area. (5) 'Nonmetropolitan area' means a geographic area outside the designated metropolitan planning areas. (6) 'State-wide strategic transportation plan' means the official, intermodal, comprehensive, fiscally constrained transportation plan which includes projects, programs, and other activities to support implementation of the state's strategic transportation goals and policies. This plan and the process for developing the plan shall comply with 23 C.F.R. Section 450.104. (7) 'State-wide transportation improvement program' means a state-wide prioritized listing of transportation projects covering a period of four years that is consistent with the state-wide strategic transportation plan, metropolitan transportation plans, and transportation improvement programs and required for multi-modal projects to be eligible for funding under Title 23 U.S.C. and Title 49 U.S.C. Chapter 53. (8) 'Transportation improvement program' means a prioritized listing of transportation projects covering a period of four years that is developed and formally adopted by a metropolitan planning organization as part of the metropolitan transportation planning process, consistent with the metropolitan transportation plan, and required for projects to be eligible for funding under Title 23 U.S.C. and Title 49 U.S.C. Chapter 53. (b) The director and the division shall: (I) Review and make recommendations to the Governor concerning all proposed regional land transportation plans and transportation improvement programs and negotiate with the propounder of the plans concerning changes or amendments which may be recommended by the department or the Governor, consistent with applicable federal law and regulation; (2) Review any transportation projects proposed by the department and adopt, remove, or otherwise include such projects as all or a portion of department plans, consistent with applicable federal law and regulation;

GEORGIA LAWS 2009 SESSION

979

(3) Develop the state-wide strategic transportation plan and the state-wide transportation improvement program and support the various transportation improvement programs; (4) Develop an annual capital construction project list to be reviewed by the Governor and submitted to the General Assembly for consideration in the budget; (5) Promulgate rules and regulations necessary to carry out its duties under the provisions of this title. The division shall report the content of such rules or regulations to the Transportation Committees of the Senate and House of Representatives for their approval by majority vote prior to the promulgation thereof; and (6) Do all things necessary or convenient to carry out the powers expressly given in this Code section. (c) After review and approval by the Governor, the state transportation improvement program and the state-wide strategic transportation plan shall be submitted to the State Transportation Board for approva\.0

SECTION 5. Said title is further amended by revising Code Section 32-2-41, relating to the powers, duties, and authority of the commissioner of transportation, as follows:
6 32-2-41. (a) As the chief executive officer of the department, the commissioner shall have direct and full control of the department. He or she shall possess, exercise, and perform all the duties, powers, and authority which may be vested in the department by law, except those duties, powers, and authority which are expressly reserved by law to the board or the director of planning. The commissioner's principal responsibility shall be the faithful implementation of transportation plans produced by the director of planning and approved by the Governor and the State Transportation Board, subject to the terms of such appropriations Acts as may be adopted from time to time. When the board is not in regular or called session, the commissioner shall perform, exercise, and possess all duties, powers, and authority of the board except:
(1) Approval of the advertising ofnonnegotiated construction contracts; and (2) Approval of authority lease agreements. The commissioner shall also have the authority to exercise the power of eminent domain and to execute all contracts, authority lease agreements, and all other functions except those that cannot legally be delegated to him or her by the board. (b)(l) The commissioner shall have the authority to employ, discharge, promote, supervise, and determine the compensation of such personnel as he or she may deem necessary or useful to the effective operation and administration ofthe department except that the commissioner shall not employ a person who is related within the second degree of consanguinity to the commissioner or any member of the board, provided that such prohibition shall not be applied so as to terminate the employment of persons employed before said prohibited relationship was created by the subsequent election of a board member or appointment of a commissioner.

980

GENERAL ACTS AND RESOLUTIONS, VOL. I

(2) Notwithstanding the provisions of subsection (b) of Code Section 32-6-29, the commissioner shall have the authority to appoint and employ five nonuniformed investigators who shall be certified peace officers pursuant to the provisions of Chapter 8 of Title 35, the 'Georgia Peace Officer Standards and Training Act.' The investigators shall have full arrest powers in cases involving internal affairs of the department and in cases involving obstruction of, encroaching on, or injury to public roads or rights of way. In such cases, the investigators shall be authorized:
(A) To investigate Department of Transportation related crimes committed anywhere in the state; (B) To arrest any person violating the criminal laws of this state; (C) To serve and execute warrants after notifying the law enforcement agency of the local jurisdiction of the intent to serve such warrant or warrants; (D) To enforce in general the criminal laws of this state; (E) To issue citations for civil damage to any person found to be violating the laws, rules, and regulations pertaining to vegetation management; and (F) To carry firearms while performing their duties but only if such investigators have been certified by the Georgia Peace Officer Standards and Training Council as having successfully completed the course of training required by Chapter 8 of Title 35, the 'Georgia Peace Officer Standards and Training Act.' (3) The power granted to the commissioner in paragraph (1) of this subsection shall be subject to and limited by Article 1 of Chapter 20 of Title 45 establishing a merit system for department employees, to the extent that the same or any amendments thereto are now or may be hereafter applicable to department personnel. (4) There shall be a Planning Division of the department, directed and staffed by the director of planning, which shall be the department's principal unit for developing the state transportation improvement program and the state-wide strategic transportation plan and coordinating transportation policies, planning, and programs related to design, construction, maintenance, operations, and financing of transportation, under the supervision of the director. The division and the director shall not have jurisdiction over the funds allocated for the local maintenance and improvement grant program pursuant to subsection (d) of Code Section 32-5-27 except as expressly provided by said subsection. (5) There shall be an Engineering Division of the department to be supervised by the chief engineer, a Finance Division of the department to be supervised by the treasurer, an Administration Division of the department to be supervised by the deputy commissioner, and a Local Grants Division to be supervised by an appointee serving at the pleasure ofthe commissioner. The duties, responsibilities, and personnel ofeach such division shall be as established by the commissioner. (6) The commissioner may establish a Construction Division, an Operations and Maintenance Division, a Permitting Division, and a Public-Private Initiatives Division of the department. The commissioner shall assign to such divisions, except as otherwise

GEORGIA LAWS 2009 SESSION

981

provided by law, such personnel and such duties and responsibilities as may be necessary and appropriate for the proper functioning of the department.'

SECTION 6. Said title is further amended in Code Section 32-2-41.1, relating to progress report and strategic transportation plan, by revising subsection (a) of said Code section as follows:
'(a) On or before October 15, 2009, the director shall prepare a report for the Governor, the Lieutenant Governor, the Speaker ofthe House ofRepresentatives, and the chairpersons of the Senate Transportation Committee and the House Committee on Transportation, respectively, detailing the progress the division has made on preparing a State-wide Strategic Transportation Plan. The director shall deliver a draft of the plan for comments and suggestions by members of the General Assembly and the Governor on or before December 31, 2009. Comments and suggestions by the House and Senate Transportation Committees of the General Assembly and the Governor shall be submitted to the director no later than February 15, 2010. This plan shall include a list of projects realistically expected to begin construction within the next four years, the cost of such projects, and the source of funds for such projects. The plan shall be developed with consideration of investment policies addressing:
(I) Growth in private-sector employment, development of work force, and improved access to jobs; (2) Reduction in traffic congestion; (3) Improved efficiency and reliability of commutes in major metropolitan areas; (4) Efficiency of freight, cargo, and goods movement; (5) Coordination of transportation investment with development patterns in major metropolitan areas; (6) Market driven travel demand management; (7) Optimized capital asset management; (8) Reduction in accidents resulting in injury and loss of life; (9) Border-to-border and interregional connectivity; and (10) Support for local connectivity to the state-wide transportation network. The investment policies provided for in paragraphs (I) through (I 0) ofthis subsection shall also guide the development of the allocation formula provided for under Code Section 32-5-27 and shall expire on Aprill5, 2012, and every four years thereafter unless amended or renewed. The final version of the State-wide Strategic Transportation Plan shall be completed by April 10, 2010, and shall be delivered to the Governor, the Lieutenant Governor, the Speaker of the House of Representatives, and the chairpersons ofthe Senate Transportation Committee and the House Committee on Transportation. A report detailing the progress ofprojects and programs in the State-wide Strategic Transportation Plan shall be prepared and delivered semiannually thereafter, and a revised version shall be prepared and delivered at least biennially thereafter."

982

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 7. Said title is further amended in Code Section 32-2-41.2, relating to benchmarks and value engineering studies to be developed by the commissioner of transportation, by revising subsections (b) and (d) as follows:
'(b) The director shall submit a semiannual report to the Governor, the Lieutenant Governor, the Speaker of the House of Representatives, and the chairpersons of the House and Senate Transportation Committees detailing the progress of every construction project valued at $10 million or more against the benchmarks. This report shall include an analysis explaining the discrepancies between the benchmarks and actual performance on each project as well as an explanation for delays. This report shall also be published on the website of the department.' "(d) Value engineering studies shall be performed on all projects whose costs exceed $10 million, and the director shall submit an annual report to the Governor, the Lieutenant Governor, the Speaker ofthe House of Representatives, and the chairpersons of the House and Senate Transportation Committees detailing the amount saved due to the value engineering studies. This report shall also be published on the website of the department.'
SECTION 8. Said title is further amended in Code Section 32-2-42, relating to the appointment of a deputy commissioner oftransportation, chief engineer, treasurer, and assistant treasurer, by revising said Code section as follows:
'32-2-42. (a) The commissioner shall appoint a deputy commissioner of transportation to serve at the pleasure of the commissioner. Before assuming the duties of his or her office, the deputy commissioner shall qualify by giving bond with a corporate surety licensed to do business in this state, such bond to be in the amount of $500,000.00 and payable to the Governor and his or her successors in office. The bond shall be subject to the approval of the Governor and shall be conditioned on the faithful discharge of the duties of the office, including any duties ofthe office of the commissioner which the deputy commissioner may be required to perform as acting commissioner. The premium for the bond shall be paid out of the funds of the department. The deputy commissioner shall be the assistant commissioner and shall be empowered to act in his or her own name for the commissioner. The deputy commissioner may exercise to the extent permitted by law only such powers and duties of the commissioner as have been previously assigned to him or her in writing by the commissioner. In the event of the commissioner's temporary incapacity which causes his or her absence from the offices of the Department of Transportation in Atlanta, Georgia, for 30 consecutive days, the deputy commissioner shall assume all the powers and duties of the commissioner, to be exercised until such time as the commissioner's temporary absence or incapacity shall cease. In the event of the commissioner's permanent

GEORGIA LAWS 2009 SESSION

983

incapacity, the deputy commissioner shall become acting commissioner, as provided in subsection (c) of Code Section 32-2-40. (b) The commissioner shall appoint a chief engineer to serve at the pleasure of the commissioner. The chief engineer shall be the chief engineer of the department and shall be a professional engineer registered in accordance with Chapter 15 of Title 43 and who shall be experienced in highway engineering. (c) The commissioner shall appoint a treasurer of the department to serve at the pleasure of the commissioner. Before assuming the duties of his or her office, the treasurer shall qualify by giving bond with a corporate surety licensed to do business in this state, such bond to be in the amount of $500,000.00 and payable to the Governor and his or her successors in office. The bond shall be subject to the approval of the Governor and shall be conditioned on the faithful discharge of the duties of the office. The premium for the bond shall be paid out of the funds of the department. The duties of the treasurer shall be to receive all funds from all sources to which the department is entitled, to account for all funds received by the department, and to perform such other duties as may be required of him or her by the commissioner. The commissioner shall have the authority to appoint an assistant treasurer in the same manner and under the same conditions as set forth in this subsection for the appointment of the treasurer, including the qualifying in advance by giving bond of the same type, amount, and paid for in the same manner as required of the treasurer. The assistant treasurer shall assume the duties of office of treasurer upon the incapacity or death of the treasurer and shall serve until a new treasurer is appointed as provided in this subsection. (d) Any provision of this title or of any other statute or of any rule or regulation to the contrary notwithstanding, the commissioner or the deputy commissioner may, in addition to serving as commissioner or deputy commissioner, also simultaneously serve as chief engineer, provided that he or she shall be appointed and shall possess the qualifications as prescribed in subsection (b) ofthis Code section. A commissioner or deputy commissioner simultaneously serving as chief engineer shall be paid for the discharge of all his or her duties the sum to which he or she is entitled as commissioner or deputy commissioner.'

SECTION 9. Said title is further amended by adding after Code Section 32-2-42, relating to the appointment of a deputy commissioner of transportation, chief engineer, treasurer, and assistant treasurer, a new Code Section 32-2-43 to read as follows:

"32-2-43. (a) There shall be a director of planning appointed by the Governor subject to approval by a majority vote of the House Transportation Committee. The director shall serve during the term of the Governor by whom he or she is appointed and at the pleasure of the Governor. Before assuming the duties of his or her office, the director shall qualify by giving bond with a corporate surety licensed to do business in this state, such bond to be

984

GENERAL ACTS AND RESOLUTIONS, VOL. I

in the amount of $500,000.00 and payable to the Governor and his or her successors in office. The bond shall be subject to the approval of the Governor and shall be conditioned on the faithful discharge of the duties of the office. The premium for the bond shall be paid out of the funds of the department. (b) The director of planning's principal responsibility shall be the development of transportation plans, including the development of the state-wide strategic transportation plan and state-wide transportation improvement program and other comprehensive plans pursuant to the provisions of Code Section 32-2-3 and Code Section 32-2-22, strategic transportation plans pursuant to the provisions ofCode Section 32-2-41.1, and benchmarks and value engineering studies pursuant to the provisions of Code Section 32-2-41.2, in consultation with the board, the Governor, and the commissioner. The director shall be the director ofthe Planning Division ofthe department and shall possess, exercise, and perform all the duties, powers, and authority which may be vested in the such division by law and are necessary or appropriate for such purpose, except those duties, powers, and authority which are expressly reserved by law to the board or the commissioner.'

SECTION 10. Said title is further amended by striking in their entirety Code Section 32-2-78, relating to definitions, Code Section 32-2-79, relating to requirements for solicited and unsolicited proposal for public-private initiative, and Code Section 32-2-80, relating to authority to contract with proposer for public-private initiative, and inserting in lieu thereof respectively a new Code Section 32-2-78, a new Code Section 32-2-79 and a new Code Section 32-2-80 to read as follows:
'32-2-78. As used in this Code section and Code Sections 32-2-79 and 32-2-80, the term:
(1) 'Participating local governing authority' includes the governing authority of any county or municipality whose geographical jurisdiction includes the project. (2) 'Project' means a project which the department deems appropriate for letting pursuant to the procedures of Code Section 32-2-79 and Code Section 32-2-80.

32-2-79. (a) The staff of the department shall jointly identify and report to the board by July 31 of each odd-numbered year those projects on the state-wide transportation improvement program or otherwise identified that afford the greatest gains in congestion mitigation or promotion of economic development. (b) Any project identified pursuant to subsection (a) of this Code section that will not be initiated within two years of the reporting date or that does not have specific available and complete funding may be let and constructed utilizing the procedures of this Code section and Code Section 32-2-80. All personnel of the department shall cooperate in all respects in the letting, construction, maintenance, and operation of such projects, including without

GEORGIA LAWS 2009 SESSION

985

limitation providing such access and control ofportions ofthe state highway system as may be requested or required from time to time for such purposes. (c) Projects wholly or partly in a metropolitan planning area shall be included in a fiscally constrained transportation improvement program. 32-2-80.
(a)(l) The department shall evaluate a project to determine, in the judgment of the department, appropriate or desirable levels of state, local, and private participation in financing such project. In making such determination, the department shall be authorized and encouraged to seek the advice and input of the affected local governing authorities, applicable metropolitan planning organizations, and the private financial and construction sectors. (1.1) No constitutional officer or member of the State Transportation Board shall serve as an agent, lobbyist, or board member for any entity directly or indirectly under contract with or negotiating a contract with the department under this Code section for one year after leaving his or her position as a constitutional officer or member of the State Transportation Board. (2) For projects that are funded or financed in part or in whole by private sources, the department shall be authorized to issue a written request for proposal indicating in general terms the scope ofthe project, the proposed financial participations in the project, and the factors that will be used in evaluating the proposal and containing or incorporating by reference other applicable contractual terms and conditions, including any unique capabilities or qualifications that will be required of the contractor. Public notice of such request for proposal shall be made at least 90 days prior to the date set for receipt of proposals by posting the legal notice on a single website that shall be procured and maintained for such purposes by the Department of Administrative Services or in substantially the same manner utilized by the department to solicit requests for proposals. (3) Upon receipt of a proposal or proposals responsive to the request for proposals, the department shall accept written public comment, solicited in the same manner as provided for notice of proposals, for a period of 30 days beginning at least ten days after the date set for receipt of proposals. In addition, the department shall hold at least one public hearing on such proposals not later than the conclusion of the period for public comment. (4) The department shall engage in individual discussions with two or more respondents deemed fully qualified, responsible, and suitable on the basis of initial responses and with emphasis on professional competence and ability to meet the level of private financial participation called for by the department. Repetitive informal interviews shall be permissible. In the event that any local governing authority has agreed to consider financial participation in the project, a representative of such local governing authority, appointed by such local governing authority, may participate in such discussions and interviews. At the discussion stage, the department may discuss estimates oftotal project costs, including, but not limited to, life cycle costing and nonbinding estimates of price

986

GENERAL ACTS AND RESOLUTIONS, VOL. I

for services. Proprietary information from competing respondents shall not be disclosed to the public or to competitors. At the conclusion of such discussions, on the basis of evaluation factors published in the request for proposal and all information developed in the selection process, the department, with the input of any participating local governing authority, shall select in the order of preference two or more respondents whose qualifications and proposed services are deemed most meritorious. Negotiations shall then be conducted with two or more respondents and with the participation of the designated representative of any participating local governing authority. Upon approval by the department, the commissioner shall select the respondent for project implementation based upon contract terms that are the most satisfactory and advantageous to the state and to the department based upon a thorough assessment of value and the ability of the final project's characteristics to meet state strategic goals and investment policies as provided for by paragraphs (1) through (10) of subsection (a) of Code Section 32-2-41.1. Before making such selection, the commissioner shall consult with any participating local governing authority or authorities. Notwithstanding the foregoing, if the terms and conditions for multiple awards are included in the request for proposal, the department may award contracts to more than one respondent. Should the department determine in writing and in its sole discretion that only one respondent is fully qualified, or that one respondent is clearly more highly qualified and suitable than the others under consideration, a contract may be negotiated and awarded to that respondent. (5) Nothing in this Code section shall require the department to continue negotiations or discussions arising out of any request for proposal. (6) The department shall be authorized to promulgate reasonable rules or regulations to assist in its evaluation ofthe proposal and to implement the purposes ofthis Code section. The department shall report the content of such rules or regulations to the Transportation Committees of the Senate and House of Representatives for their approval by majority vote prior to the promulgation thereof and shall make quarterly reports to the same chairpersons of all of its activities undertaken pursuant to the provisions of this Code section. (b) Any contracts entered into pursuant to this Code section may authorize funding to include tolls, fares, or other user fees and tax increments for use of the project that is the subject of the proposal. Such funding may be distributed by contract among the participants in the project as may be provided for by contract. The department may take any action to obtain federal, state, or local assistance for a qualifying project that serves the public purpose of this Code section and may enter into any contracts required to receive such assistance. The department may determine that it serves the public purpose of this Code section for all or any portion of the costs of a qualifying project to be paid, directly or indirectly, from the proceeds of a grant or loan made by the federal, state, or local government or any instrumentality thereof. The department may agree to make grants or loans to the operator from time to time from amounts received from the federal, state, or local government or any agency or instrumentality thereof.

GEORGIA LAWS 2009 SESSION

987

(c) The commissioner shall be authorized to delegate such duties and responsibilities under this Code section as he or she deems appropriate from time to time; provided, however, that the final approval of contracts provided for in this Code section shall be by action of the State Transportation Board. (d) The power of eminent domain shall not be delegated to any private entity with respect to any project commenced or proposed pursuant to this Code section. (e) Any contract for a public-private partnership shall require the private partner or each of its prime contractors to provide performance and payment security. Notwithstanding any other provision of law, the penal sum or amount of such security may be less than the price of the contract involved, based upon the department's determination on a project-by-project basis ofwhat sum may be required to adequately protect the department, the state, and the contracting and subcontracting parties.'

SECTION 11. Said title is further amended by revising paragraph (5) of Code Section 32-5-21, relating to priority of expenditures from the State Transportation Fund as follows:
'(5) As directed from time to time by appropriations Acts; and

SECTION 12. Said title is further amended by adding at the end of Article 2 of Chapter 5 thereof, relating to the State Public Transportation Fund, a new Code Section 32-5-27, to read as follows:
'32-5-27. (a) The Planning Division of the department and the director of planning shall develop an allocation formula for:
(1) A state-wide transportation asset management program; (2) A state-wide transportation asset improvement program; and (3) A local maintenance and improvement grant program. Funds from the State Public Transportation Fund shall be allocated by the department pursuant to such formula as further defined in subsections (b) through (d) of this Code section and as appropriated by the General Assembly. Every four years, concurrent with the renewal of the state-wide strategic transportation plan, the division, and the director shall update the data used in the allocation formula and shall review the distributional components of the formula and at such time may amend the formula as necessary to support implementation of the plans provided for in Code Section 32-2-22. (b) Funds appropriated for the state-wide transportation asset management program shall be allocated pursuant to the long-range state-wide strategic transportation plan and shall be available for administration, maintenance, operations, and rehabilitation of infrastructure. (c)( 1) Funds allocated for the state-wide transportation asset improvement program shall be allocated for capital construction projects, which may include new capacity, expansion of current infrastructure, safety improvements, or completion of, additions to, and capital

988

GENERAL ACTS AND RESOLUTIONS, VOL. I

improvement of state strategic corridors and economic development highways, including but not limited to those identified pursuant to Code Section 32-4-22. Recommendations for appropriation to the state-wide transportation asset improvement program shall include consideration ofcurrent and future regional population and regional employment. Local funding matches may be required. (2) A portion ofthis allocation shall be a specific itemized and prioritized project list and such portion shall be not less than 10 percent nor more than 20 percent of the aggregate allocation from the State Public Transportation Fund, subject to and consistent with the provisions of the state-wide transportation improvement program, for such fiscal year. In developing such project list the division and the director may accept project recommendations from the Transportation Committees of the Senate and the House of Representatives, the Governor, metropolitan planning organizations, and nonmetropolitan areas. Such projects shall be prioritized in accordance with the state-wide strategic transportation plan. The division and the director shall submit such prioritized capital construction projects to the Governor for consideration in advance of the legislative session each year. The Governor shall submit all or a portion of such capital construction project requests as part of the Governor's budget recommendations to the General Assembly. The General Assembly may appropriate funds to any project on the prioritized project list. (3) In addition to the portion ofthe state-wide transportation asset improvement program subject to the 10 percent limitation in paragraph (2) of this subsection, additional funds from the State Public Transportation Fund may be allocated to the state-wide transportation asset improvement program that are not subject to specific project selection. (d) Funds allocated for the local maintenance and improvement grant program shall replace funds formerly available under the local assistance road program and state-aid program and shall be allocated by the Local Grants Division of the department to local governing authorities as grants or otherwise according to a funding formula developed by the division and the director. Such formula shall include considerations of paved and unpaved lane miles and vehicle miles traveled and may include population, employment, and local funding matches available, as well as other factors as may be determined by the division and the director. Funds allocated each fiscal year for the local maintenance and improvement grant program shall be not less than 10 percent nor more than 20 percent of the money derived from motor fuel taxes received by the state in the immediately preceding fiscal year, less the amount of refunds, rebates, and collection costs authorized by law and shall be used only for the purposes available for the proceeds of such taxes. Grants of such funds shall include provisions requiring adherence to adequate roadway standards, accounting practices, and applicable transportation plans. Additional allocations to this program from other funding sources shall be allocated subject to the requirements for usage attached to such funds.

GEORGIA LAWS 2009 SESSION

989

(e) Funds allocated or appropriated pursuant to the provisions of this Code section shall not be subject to redirection or reservation pursuant to Chapter 12 of Title 45 or to budgetary reduction except as provided by subparagraph (b) ofParagraph VI of Section IX of Article III of the Constitution. (f) Information pertaining to all funds received and expended by, through, or from the department, including but not limited to project numbers, let dates, estimated costs, actual costs, estimated completion date, status, priority ranking, congressional, House, and Senate districts, vendor names, contract amounts, and other pertinent contract information, shall be published on the website of the department as data in structured format. As used in this subsection, 'structured format' means data that is presented in machine readable format.'

SECTION 13. Article 2 of Chapter 32 of Title 50 of the Official Code of Georgia Annotated, relating to the jurisdiction of the Georgia Regional Transportation Authority, is amended by revising paragraph (29) of subsection (a) of Code Section 50-32-11, relating to powers of the authority, as follows:
'(29) Reserved;'

SECTION 14. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 15. All laws and parts of laws in conflict with this Act are repealed.

Approved May 11, 2009.

PROFESSIONS- COSMETIC LASER SERVICES; PRACTITIONER LICENSES; REPORTING; REGULATION.
No. 341 (Senate Bill No. 104).
AN ACT
To amend Article 9 of Chapter 34 of Title 43 of the Official Code of Georgia Annotated, relating to cosmetic laser services, so as to change certain provisions relating to the licensing of cosmetic laser practitioners; to amend certain definitions; to change certain provisions relating to the two levels of cosmetic laser services licenses; to change the requirements

990

GENERAL ACTS AND RESOLUTIONS, VOL. I

relating to consulting physicians; to require certain information be provided as part of informed consent; to provide the Composite State Board of Medical Examiners with the authority to waive certain requirements as to certain facilities; to provide for the license and expertise requirements of at least one member of the advisory committee; to provide for related matters; to provide for a contingent effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Article 9 of Chapter 34 of Title 43 of the Official Code of Georgia Annotated, relating to cosmetic laser services, is amended by revising Code Section 43-34-242, relating to definitions relative to cosmetic laser services, as follows:
"43-34-242. As used in this article, the term:
(I) 'Board' means the Composite State Board of Medical Examiners created by Code Section 43-34-21. (2) 'Consulting physician' means a person licensed to practice medicine under Article 2 of this chapter and:
(A) Whose principal place of practice is within this state; or (B) Whose principal place of practice is outside this state but is within 50 miles from the facility with whom he or she has an agreement to provide services in accordance with Code Section 43-34-248. (3) 'Consumer' means a person on whom cosmetic laser services are or are to be performed. (4) 'Cosmetic laser practitioner' means a person licensed under this article to provide cosmetic laser services as defined in this article and whose license is in good standing. (5) 'Cosmetic laser services' means nonablative elective cosmetic light based skin care, photo rejuvenation, or hair removal using lasers or pulsed light devices approved by the United States Food and Drug Administration for noninvasive procedures. Such services and the provision thereof shall not be considered to be the practice of medicine. (6) 'Facility' means any location, place, area, structure, office, institution, or business or a part thereof in which is performed or provided cosmetic laser services regardless of whether a fee is charged for such services. (7) 'License' means a valid and current certificate of registration issued by the board which shall give the person to whom it is issued authority to engage in the practice prescribed thereon. (8) 'Licensee' means any person holding a license under this article. (9) 'Medical practitioner' means a registered professional nurse, nurse practitioner, physician's assistant, or physician.

___.........

r

GEORGIA LAWS 2009 SESSION

991

(l 0) 'Nurse' means a registered professional nurse or nurse practitioner. (II) 'Person' means a natural person.'

SECTION 2. Said article is further amended by revising Code Section 43-34-244, relating to two levels of licenses and applications, as follows:
8 43-34-244. (a) There shall be two levels of a license for a cosmetic laser practitioner: assistant laser practitioner and senior laser practitioner. (b) Any person desiring to obtain a license as a cosmetic laser practitioner under the terms of this article shall make application to the board as follows:
(1) An applicant for an 'assistant laser practitioner' license shall present proof that he or she:
(A) Holds a current valid license or certificate ofregistration as a physician's assistant, licensed practical nurse, nurse, esthetician, or master cosmetologist, or has previously held a license or certificate of registration as a medical practitioner; and (B) Has received at least three laser certificates from attending laser/intense pulsed light (IPL) courses as approved by the board, directly taught by a licensed physician or certified continuing medical education or continuing education educator. If, after review of the application, it is determined that the applicant is at least 21 years of age; has met the minimum educational requirements; is of good moral character; and is possessed of the requisite skill to perform properly cosmetic laser services, a license shall be issued to the applicant entitling the applicant to practice the occupation of cosmetic laser practitioner at the assistant laser practitioner level under the on-site supervision of a senior laser practitioner. (2) An applicant for a 'senior laser practitioner' license shall present proof that he or she: (A) Holds a current valid license or certificate of registration as a physician's assistant or nurse or has previously held a license or certificate of registration as a medical practitioner; (B) Has at least three years of clinical or technological medical experience, or both; (C) Has been or was licensed or nationally board certified as a medical practitioner for at least three years; and (D) Has received at least two laser certificates from attending laser/intense pulsed light (IPL) continuing medical education courses as approved by the board, directly taught by a licensed physician or certified continuing medical education or continuing education educator. If, after review of the application, it is determined that the applicant is at least 21 years of age; has met the minimum educational and clinical training requirements to perform cosmetic laser services with indirect supervision; is of good moral character; and is possessed of the requisite skill to perform properly these services, a license shall be issued to the applicant entitling the applicant to practice the occupation of cosmetic laser

992

GENERAL ACTS AND RESOLUTIONS, VOL. I

practitioner at the senior laser practitioner level pursuant to the protocols of a consulting physician. (c) Any person desiring to obtain a license as an 'assistant laser practitioner' who does not meet the requirements of paragraph ( l) of subsection (b) of this Code section shall also be eligible for a license as an 'assistant laser practitioner' if he or she makes application to the board within nine months of the effective date of this article and presents proof that he or she: (l) Prior to the effective date of this article, obtained a minimum of at least 2,000 hours of experience in administering cosmetic laser service; and (2) Has received at least two laser certificates from attending laser/intense pulsed light (IPL) courses, directly taught by a licensed physician or certified continuing medical education or continuing education educator. (d) Should an applicant have a current cosmetic laser practitioner license or certificate of registration in force from another state, country, territory of the United States, or the District of Columbia, where similar reciprocity is extended to this state and licensure requirements are substantially equal to those in this state, and have paid a fee and have submitted an application, the applicant may be issued a license at the appropriate level entitling him or her to practice the occupation of a cosmetic laser practitioner at that level, unless the board, in its discretion, sees fit to require a written or a practical examination subject to the terms and provisions of this article.'

SECTION 3. Said article is further amended by revising Code Section 43-34-248, relating to agreement with consulting physician, as follows:
H 43-34-248. (a) Any facility providing cosmetic laser services other than hair removal using lasers or pulsed light devices shall have an agreement with a consulting physician who shall:
( l) Be trained in laser modalities; (2) Establish proper protocols for the cosmetic laser services provided at the facility and file such protocols with the board; (3) Examine each patient prior to any cosmetic laser service other than hair removal using lasers or pulsed light devices being performed; provided, however, that a consulting physician may delegate the authority to perform such examination to a physician's assistant who is a licensed cosmetic laser practitioner, in accordance with a job description approved by the board, or to a registered professional nurse who is also an advanced practice registered nurse as defined in paragraph (l.l) ofCode Section 43-26-3 and who is a licensed cosmetic laser practitioner, pursuant to a protocol approved by the board; and provided, further, that in facilities subject to the provisions of Code Section 43-34-249.1 such delegation may be to: (A) a physician's assistant who is not required to be a licensed cosmetic laser practitioner, in accordance with a job description approved by the board; or (B) a registered professional nurse who is also an advanced practice

GEORGIA LAWS 2009 SESSION

993

registered nurse who is not required to be a licensed cosmetic laser practitioner, in accordance with a protocol approved by the board; and (4) Be available for emergency consultation with the cosmetic laser practitioner or anyone employed by the facility. (b) Any facility providing cosmetic laser services other than hair removal using lasers or pulsed light devices shall have a supervisor present at the facility or immediately available for consultation and supervision either personally or via telecommunications. The supervisor shall supervise the performance of all cosmetic laser services performed by a person other than the consulting physician. The supervisor shall be a physician licensed under this chapter who is trained in laser modalities or a senior laser practitioner. (c)( 1) Any facility providing cosmetic laser services other than hair removal using lasers or pulsed light devices shall post a sign listing the consulting physician's name, emergency contact number, his or her board certification and specialty, and the address of his or her principal place of practice, and indicating whether he or she is presently on site at the facility. (2) If the consulting physician is not on site for any period of time during which the facility is open, the facility shall post a sign indicating who is presently acting as the supervisor for the facility and that person's name, emergency contact number, his or her degrees and qualifications, and the type of cosmetic laser practitioner license held.'

SECTION 4. Said article is further amended by revising Code Section 43-34-249, relating to informed consent, as follows:
'43-34-249. (a) Prior to receiving cosmetic laser services from a cosmetic laser practitioner, a person must consent in writing to such services and shall be informed in writing of the general terms of the following:
(1) The nature and purpose of such proposed procedure; (2) Any material risks generally recognized and associated with the cosmetic laser service to be performed which, if disclosed to a reasonably prudent person in the customer's position, could reasonably be expected to cause such prudent person to decline such proposed cosmetic laser services on the basis of the material risk of injury that could result from such proposed services; (3) The name of, degrees and qualifications held by, and type of licenses obtained by the individual who will be performing the cosmetic laser service, and with respect to cosmetic laser services other than hair removal, the supervisor and the consulting physician; (4) The steps to be followed after the cosmetic laser service is performed in the event of any complications; and

994

GENERAL ACTS AND RESOLUTIONS, VOL. I

(5) With respect to cosmetic laser services other than hair removal, the emergency contact information for the consulting physician and the address of his or her principal place of practice. (a.l) After receiving each cosmetic laser service other than hair removal, a person shall be informed in writing of the information required by paragraphs (4) and (5) of subsection (a) of this Code section. (b) It shall be the responsibility of the cosmetic laser practitioner to ensure that the information required by subsections (a) and (a.l) of this Code section is disclosed and that the consent provided for in this Code section is obtained. (c) Where the consumer is under 18 years of age, the consent of the consumer's parent or legal guardian shall be required. (d) The board shall be required to adopt and have the authority to promulgate rules and regulations governing and establishing the standards necessary to implement this Code section specifically including but not limited to the disciplining of a cosmetic laser practitioner who fails to comply with this Code section. (e) Nothing in this Code section shall prohibit the information provided for in this Code section from being disclosed through the use of video tapes, audio tapes, pamphlets, booklets, or other means of communication or through conversations with the cosmetic laser practitioner; provided, however, that such information is also provided in writing and attached to the consent form which the consumer signs.'

SECTION 5. Said article is further amended by adding a new Code section to read as follows:
"43-34-249.1. The board shall have the authority to waive the requirements of subsection (c) of Code Section 43-34-248 and paragraph (5) of subsection (a) of Code Section 43-34-249 for facilities offering cosmetic laser services which serve as a principal place of practice at which a physician regularly sees patients if medical services are regularly performed at such facilities. For purposes ofthis Code section, 'medical services' shall mean the general and usual services and care rendered and administered by a physician.'

SECTION 6. Said article is further amended by revising Code Section 43-34-250, relating to the advisory committee, as follows:
H 43-34-250. The board shall appoint an advisory committee. The advisory committee shall be representative of a cross section of the cultural backgrounds, to the extent practical, of the licensed cosmetic laser practitioners licensed under this article and such members as the board in its discretion may determine. The advisory committee shall include at least one person licensed to practice medicine under this chapter and specialized in a field with expertise in the biologic behavior of the skin. Members shall receive no compensation for

GEORGIA LAWS 2009 SESSION

995

service on the committee. The committee shall have such advisory duties and responsibilities as the board may determine, including but not limited to consulting with the board on the issuance, denial, suspension, and revocation of licenses and the promulgation of rules and regulations under this article. The initial members of the advisory committee may include persons eligible fOF licensing under this article. Subsequent advisory committee members must be licensed pursuant to this article."

SECTION 7. This Act shall become effective only if and when the "Georgia Cosmetic Laser Services Act," approved May 29,2007 (Ga. L. 2007, p. 626), becomes effective as provided in Section 2 therein.

SECTION 8. All laws and parts of laws in conflict with this Act are repealed.

Approved May 11,2009.

PROFESSIONS- PROFESSIONAL COUNSELING, SOCIAL WORK, OR MARRIAGE AND FAMILY THERAPY; LICENSING; PRACTICE.
No. 342 (House Bill No. 60).
AN ACT
To amend Code Section 43-10A-7 of the Official Code of Georgia Annotated, relating to licensing requirements and exceptions, so as to provide that no person exempt from the licensing requirements of such Code section shall hold himself or herself out as being licensed to practice professional counseling, social work, or marriage and family therapy or use any term or other indicia implying that he or she is licensed to practice professional counseling, social work, or marriage and family therapy or any combination thereof; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. Code Section 43-10A-7 of the Official Code of Georgia Annotated, relating to licensing requirements and exceptions, is amended by revising subsection (b) as follows:

996

GENERAL ACTS AND RESOLUTIONS, VOL. I

'(b) The prohibition of subsection (a) of this Code section shall not apply to the following persons; provided, however, that no such person shall hold himself or herself out as being licensed to practice professional counseling, social work, or marriage and family therapy or any combination thereof or use the words 'licensed' or 'licensure' or any other words, letters, titles, images, or figures stating or implying that he or she is licensed to practice any such specialty, and no organization shall present itself as authorized to license individuals to practice any such specialty:
(1) Persons licensed to practice medicine or psychology under Chapter 34 or 39, respectively, of this title; (2) Persons engaged in the practice of a specialty as an employee of any agency or department of the federal government or any licensed hospital or long-term care facility, but only when engaged in that practice as an employee of such agency, department, hospital, or facility;
(3)(A) Persons who, prior to July 1, 2000, engaged in the practice of a specialty as an employee of any community service board or similar entity created by general law to provide services to persons with disabilities, as defined in Chapter 2 of Title 37, or any agency or department of the state or any of its political subdivisions, but only when engaged in that practice as an employee of such an agency or department. (B) Persons who engage in the practice of social work as employees of any community service board or similar entity created by general law to provide services to persons with disabilities, as defined in Chapter 2 of Title 37, or any agency or department of the state or any of its political subdivisions, but only when engaged in that practice as employees of such community service board or similar entity, agency, or department, and persons or entities which contract to provide social work services with any community service board or similar entity or any agency or department of the state or any of its political subdivisions, but such contracting persons and entities shall only be exempt under this subparagraph when engaged in providing social work services pursuant to those contracts and shall only be exempt until January 1, 1996. (C) Persons who engage in the practice of professional counseling as employees of privately owned correctional facilities, the Department of Corrections, Department of Human Resources, any county board of health, or any community service board or similar entity created by general law to provide services to persons with disabilities, as defined in Chapter 2 of Title 37, but only when engaged in that practice as employees of such privately owned correctional facility, department, board, or entity and persons or entities which contract to provide professional counseling services with such department or board of health, but such contracting persons and entities shall only be exempt under this subparagraph when engaged in providing professional counseling services pursuant to those contracts and shall only be exempt until January 1, 1996; (4) Students of a recognized educational institution who are preparing to become practitioners of a specialty, but only if the services they render as such practitioners are

GEORGIA LAWS 2009 SESSION

997

under supervision and direction and their student status is clearly designated by the title 'trainee' or 'intern'; (5) Persons who have obtained a master's degree from a program accredited by the Council on Social Work Education and who are practicing social work under direction and supervision while preparing to take the master's social work licensing examination, but only for a period of up to one year following the granting of such degree; (6) Persons who have obtained one of the graduate degrees required for licensure as a professional counselor or marriage and family therapist and who are practicing such specialty under supervision and direction in order to obtain the experience required for licensure; (7) Elementary, middle, or secondary school counselors and school social workers certificated as such by the Department ofEducation, Professional Standards Commission, or its successor agency but only when practicing within the scope of such certification and only when designated by the title 'school counselor,' 'school social worker,' or a title designated by the school system in which they are employed for persons practicing within such certification; (8) Persons registered as rehabilitation suppliers by the Georgia Board of Workers' Compensation, including those registered as of July I, 1992, but only when practicing rehabilitation counseling as a rehabilitation supplier for workers' compensation claimants and only so long as they do not use any titles other than titles describing the certifications or licenses they are required to hold under Code Section 34-9-200.1; (9) Active members of the clergy but only when the practice of their specialty is in the course of their service as clergy; (10) Members of religious ministries responsible to their established ecclesiastical authority who possess a master's degree or its equivalent in theological studies; (II) Persons engaged in the practice of a specialty in accordance with Biblical doctrine in public or nonprofit agencies or entities or in private practice; (12) Persons engaged in the practice of a specialty as an employee of the Division of Family and Children Services of the Department of Human Resources but only when engaged in such practice as an employee of that division; (13) Persons who have obtained a master's degree from a program accredited by the Council on Social Work Education and who are engaged in the practice of community organization, policy, planning, research, or administration may use the title 'social worker' and may only engage in such practice; (14) Persons who have obtained a bachelor's degree in social work from a program accredited by the Council on Social Work Education may use the title 'social worker' and may practice social work, but they may not practice autonomously and may only practice under direction and supervision, and, notwithstanding the definitions in paragraphs (5) and (15) of Code Section 43-IOA-3, such supervision shall be provided by a social worker who, as a minimum, has been awarded a bachelor's or a master's degree in social

998

GENERAL ACTS AND RESOLUTIONS, VOL. I

work from a program accredited by the Council on Social Work Education and who has completed at least two years of post-degree practice in the field of social work; (15) Addiction counselors who have met the certification requirements of the Georgia Addiction Counselors' Association or any other similar private association of addiction counselors which association includes among its certification requirements the following:
(A) Attainment of a high school diploma or a general educational development (GED) equivalency diploma; (B) Completion of at least 4,000 hours of full-time paid experience under direction provided by a person acceptable to the association in the practice of chemical dependency and abuse counseling; (C) Completion of at least 180 hours of education in the field of addiction and addiction counseling or treatment; and (D) Completion of at least 220 hours of supervision provided by a supervisor who meets the qualifications established by the association and which teaches chemical dependency and abuse counseling. Services which may be provided under this paragraph shall be limited to those practices sanctioned by the certifying association and shall in any event be limited to the provision of chemical dependency treatment in the following settings: screening; intake; orientation; assessment for addiction diseases; treatment planning; individual, family, and group addiction counseling; case management; crisis intervention; client education; referral, reporting, and record keeping; and consultation with other professionals in regard to client treatment and services. Persons exempt under this paragraph shall not use any title indicating or implying that they are licensed under this chapter; (15.1) Persons who are training to be addiction counselors but only when such persons are: (A) Employed by an agency or facility that is licensed to provide addiction counseling; (B) Supervised and directed by a supervisor who meets the qualifications established by the Georgia Addiction Counselor's Association or any other similar private association ofaddiction counselors which includes among its certification requirements the criteria specified in paragraph (15) of this subsection; (C) Graduated from high school or have a general educational development (GED) equivalency diploma; and (D) Actively seeking certification in accordance with the requirements of paragraph (15) of this subsection. No person shall qualify for the exception provided under this paragraph for a period in excess of three years. Services which may be provided under this paragraph shall be limited to those practices sanctioned by the certifying association and shall in any event be limited to the provision of chemical dependency treatment in the following settings: screening; intake; orientation; assessment for addiction diseases; treatment planning; individual, family, and group addiction counseling; case management; crises intervention; client education; referral, reporting, and record keeping; and consultation with other

GEORGIA LAWS 2009 SESSION

999

professionals in regard to client treatment and services. Persons exempt under this paragraph shall not use any title indicating or implying that they are licensed under this chapter; ( 16) Any person engaged in the practice of professional counseling as an employee or student peer counselor of the University System of Georgia or its educational units, the Technical College System of Georgia or its educational units, or of a public or private college or university within this state, but only when engaged in that practice as such an employee or student peer counselor and excepting the use of psychotherapeutic techniques to evaluate and treat emotional and mental illness, disorder, or dysfunction; ( 17) Persons who engage in the practice of professional counseling, excluding the use of psychotherapy, as employees of organizations which maintain, now or in the future, accreditation from the Commission on Accreditation of Rehabilitation Facilities or the national Accreditation Council for Agencies Serving the Blind and Visually Handicapped, but only when those persons are providing those services as employees of those organizations pursuant to contracts between such organizations and the state or a department, agency, county, municipality, or political subdivision of the state; (18) Persons engaged in the practice of a specialty as an employee of the Department of Labor, but only when engaged in such practice as an employee of such department; and (19) Persons currently licensed to practice a specialty in another jurisdiction and who are practicing such specialty within a defined disaster area in order to alleviate the impact on persons affected by a disaster as defined in paragraph (I) of Code Section 38-3-91 or a state of emergency as defined in paragraph (7) of Code Section 38-3-3, but only when such specialty services are provided without cost to the recipients, and only for a maximum of 30 consecutive days following a disaster or a state of emergency."

SECTION 2. All laws and parts of laws in conflict with this Act are repealed.

Approved May 11, 2009.

REVENUE - INCOME TAX CREDIT; TELEWORKING.
No. 343 (House Bill No. 186).
AN ACT
To amend Code Section 48-7-29.11 of the Official Code of Georgia Annotated, relating to income tax credits for teleworking, so as to extend the period of time for which such credits

1000

GENERAL ACTS AND RESOLUTIONS, VOL. I

are granted; to change the amount of certain credits; to change certain reporting requirements; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. Code Section 48-7-29.11 of the Official Code of Georgia Annotated, relating to income tax credits for teleworking, is amended by revising subsection (b) as follows:
8 (b) For taxable years beginning or ending on or after January 1, 2008, and prior to January 1, 2012, an employer shall be allowed a state income tax credit against the tax imposed by Code Section 48-7-20 or Code Section 48-7-21 for a percentage of eligible telework expenses incurred in the corresponding calendar year. The amount of such credit shall be calculated as follows:
( 1) The credit shall be equal to 100 percent of the eligible telework expenses incurred pursuant to a telework agreement requiring the participating employee to telework at least 12 days per month if the employer's principal place of business is located in an area designated by the United States Environmental Protection Agency as a nonattainment area under the federal Clean Air Act, 42 U.S.C. Section 7401 et seq.; (2) The credit shall be equal to 75 percent of the eligible telework expenses incurred pursuant to a telework agreement requiring the participating employee to telework at least 12 days per month; or (3) The credit shall be equal to 25 percent of the eligible telework expenses incurred pursuant to a telework agreement requiring the participating employee to telework at least five days per month.8

SECTION 2. Said Code section is further amended by revising paragraph (2) of subsection (e) as follows:
8 (2) The commissioner shall provide tentative approval of the applications by the date provided in paragraph (3) of this subsection. In no event shall the aggregate amount of tax credits approved by the commissioner for all qualified employers under this Code section in a calendar year exceed:
(A) For credits earned in calendar year 2008, $2 million; (B) For credits earned in calendar year 2009, $2 million; (C) For credits earned in calendar year 2010, $2.5 million; and (D) For credits earned in calendar year 2011, $2.5 million.u

SECTION 3. Said Code section is further amended by revising subsection (f) as follows:
"(f) Notwithstanding the provisions of Code Sections 48-2-15,48-7-60, and 48-7-61, the commissioner shall make available a public report disclosing the employer names and amounts of credit claimed under this Code section as follows:

GEORGIA LAWS 2009 SESSION

1001

(1) On or before December 31, 2010, for credits allowed in calendar year 2008; (2) On or before December 31, 2011, for credits allowed in calendar year 2009; (3) On or before December 31, 2012, for credits allowed in calendar year 201 O; and (4) On or before December 31, 2013, for credits allowed in calendar year 2011.

SECTION 4. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 5. All laws and parts of laws in conflict with this Act are repealed.

Approved May 11, 2009.

CIVIL PRACTICE- COMMERCE- DOMESTIC RELATIONS - PRIVATE CHILD SUPPORT COLLECTORS.
No. 344 (House Bill No. 189).
AN ACT
To amend Code Section 9-9-2 of the Official Code of Georgia Annotated, relating to applicability of the "Georgia Arbitration Code," so as to correct a cross-reference; to amend Part 2 of Article 15 of Chapter I of Title 10 of the Official Code of Georgia Annotated, relating to the "Fair Business Practices Act of 1975," so as to provide for oversight by the administrator of private child support collection; to provide for definitions; to provide for contractual requirements; to provide for private child support collectors to register with the Secretary of State; to provide for prohibited practices of private child support collectors; to provide for cancellation or termination of such contracts; to provide for other remedies; to amend Article 1 of Chapter 11 ofTitle 19 ofthe Official Code ofGeorgia Annotated, relating to the "Child Support Recovery Act," so as to change provisions relating to payment of child support held by the Child Support Enforcement Agency of the Department of Human Resources; to change provisions relating to confidentiality of information and records held by the department; to provide for related matters; to provide for an effective date and applicability; to repeal conflicting laws; and for other purposes.

1002

GENERAL ACTS AND RESOLUTIONS, VOL. I

SECTION 1. Code Section 9-9-2 of the Official Code of Georgia Annotated, relating to applicability of the "Georgia Arbitration Code," is amended by revising paragraph (7) of subsection (c) as follows:
"(7) Any contract involving consumer acts or practices or involving consumer transactions as such terms are defined in subsection (a) of Code Section 10-1-392, relating to definitions in the 'Fair Business Practices Act of 1975';"

SECTION 2. Part 2 of Article 15 of Chapter 1 of Title 10 of the Official Code of Georgia Annotated, relating to the "Fair Business Practices Act of 1975," is amended by revising subsection (a) of Code Section 10-1-392, relating to definitions, as follows:
"(a) As used in this part, the term: (1) 'Administrator' means the administrator appointed pursuant to subsection (a) of Code Section 10-1-395 or his or her delegate. (2) 'Campground membership' means any arrangement under which a purchaser has the right to use, occupy, or enjoy a campground membership facility. (3) 'Campground membership facility' means any campground facility at which the use, occupation, or enjoyment of the facility is primarily limited to those purchasers, along with their guests, who have purchased a right to make reservations at future times to use the facility or who have purchased the right periodically to use the facility at fixed times or intervals in the future, but shall not include any such arrangement which is regulated under Article 5 of Chapter 3 of Title 44. (4) 'Career consulting firm' means any person providing services to an individual in conjunction with a career search and consulting program for the individual, including, but not limited to, counseling as to the individual's career potential, counseling as to interview techniques, and the identification of prospective employers. A 'career consulting firm' shall not guarantee actual job placement as one of its services. A 'career consulting firm' shall not include any person who provides these services without charging a fee to applicants for those services or any employment agent or agency regulated under Chapter 10 of Title 34. (5) 'Child support enforcement' means the action, conduct, or practice of enforcing a child support order issued by a court or other tribunal. (6) 'Consumer' means a natural person. (7) 'Consumer acts or practices' means acts or practices intended to encourage consumer transactions. (8) 'Consumer report' means any written or other communication of any information by a consumer reporting agency bearing on a consumer's creditworthiness, credit standing, or credit capacity which is used or intended to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for:

GEORGIA LAWS 2009 SESSION

1003

(A) Credit or insurance to be used primarily for personal, family, or household purposes; or (B) Employment consideration. (9) 'Consumer reporting agency' or 'agency' means any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties. ( l 0) 'Consumer transactions' means the sale, purchase, lease, or rental of goods, services, or property, real or personal, primarily for personal, family, or household purposes. ( ll) 'Department' means the Department of Human Resources. (12) 'Documentary material' means the original or a copy, whether printed, filmed, or otherwise preserved or reproduced, by whateverprocess, including electronic data storage and retrieval systems, of any book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, mechanical transcription, or other tangible document or record wherever situate. (13) 'Examination' of documentary material means inspection, study, or copying of any such material and the taking of testimony under oath or acknowledgment with respect to any such documentary material. (14) 'File' means, when used in connection with information on any consumer, all of the information on that consumer recorded or retained by a consumer reporting agency regardless of how the information is stored. (15) 'Going-out-of-business sale' means any offer to sell to the public or sale to the public of goods, wares, or merchandise on the implied or direct representation that such sale is in anticipation of the termination of a business at its present location or that the sale is being held other than in the ordinary course of business and includes, without being limited to, any sale advertised either specifically or in substance to be a sale because the person is going out of business, liquidating, selling his or her entire stock or 50 percent or more of his or her stock, selling out to the bare walls, selling because the person has lost his or her lease, selling out his or her interest in the business, or selling because everything in the business must be sold or that the sale is a trustee's sale, bankruptcy sale, save us from bankruptcy sale, insolvency sale, assignee's sale, must vacate sale, quitting business sale, receiver's sale, loss of!ease sale, forced out ofbusiness sale, removal sale, liquidation sale, executor's sale, administrator's sale, warehouse removal sale, branch store discontinuance sale, creditor's sale, adjustment sale, or defunct business sale. ( 16) 'Health spa' means an establishment which provides, as one of its primary purposes, services or facilities which are purported to assist patrons to improve their physical condition or appearance through change in weight, weight control, treatment, dieting, or exercise. The term includes an establishment designated as a 'reducing salon,' 'health spa,' 'spa,' 'exercise gym,' 'health studio,' 'health club,' or by other terms of similar import. A health spa shall not include any of the following:

1004

GENERAL ACTS AND RESOLUTIONS, VOL. I

(A) Any nonprofit organization; (B) Any facility wholly owned and operated by a licensed physician or physicians at which such physician or physicians are engaged in the actual practice of medicine; or (C) Any such establishment operated by a health care facility, hospital, intermediate care facility, or skilled nursing care facility. (17) 'Marine membership' means any arrangement under which a purchaser has a right to use, occupy, or enjoy a marine membership facility. (18) 'Marine membership facility' means any boat, houseboat, yacht, ship, or other floating facility upon which the use, occupation, or enjoyment of the facility is primarily limited to those purchasers, along with their guests, who have purchased a right to make reservations at future times to use the facility or who have purchased a right to use periodically, occupy, or enjoy the facility at fixed times or intervals in the future, but shall not include any such arrangement which is regulated under Article 5 of Chapter 3 of Title 44. (19) 'Obligee' means a resident ofthis state who is identified in an order for child support issued by a court or other tribunal as the payee to whom an obligor owes child support. (20) 'Obligor' means a resident of this state who is identified in an order for child support issued by a court or other tribunal as required to make child support payments. (21) 'Office' means any place where business is transacted, where any service is supplied by any person, or where any farm is operated. (22) 'Office supplier' means any person who sells, rents, leases, or ships, or offers to sell, lease, rent, or ship, goods, services, or property to any person to be used in the operation of any office or of any farm. (23) 'Office supply transactions' means the sale, lease, rental, or shipment of, or offer to sell, lease, rent, or ship, goods, services, or property to any person to be used in the operation of any office or of any farm but shall not include transactions in which the goods, services, or property is purchased, leased, or rented by the office or farm for purposes of reselling them to other persons. (24) 'Person' means a natural person, corporation, trust, partnership, incorporated or unincorporated association, or any other legal entity. (25) 'Private child support collector' means an individual or nongovernmental entity that solicits and contracts directly with obligees to provide child support collection services for a fee or other compensation but shall not include attorneys licensed to practice law in this state unless such attorney is employed by a private child support collector. (26) 'Prize' means a gift, award, or other item intended to be distributed or actually distributed in a promotion. (27) 'Promotion' means any scheme or procedure for the promotion of consumer transactions whereby one or more prizes are distributed among persons who are required to be present at the place of business or are required to participate in a seminar, sales presentation, or any other presentation, by whatever name denominated, in order to receive the prize or to determine which, if any, prize they will receive. Promotions shall

GEORGIA LAWS 2009 SESSION

1005

not include any procedure where the receipt ofthe prize is conditioned upon the purchase of the item which the seller is trying to promote if such condition is clearly and conspicuously disclosed in the promotional advertising and literature and the receipt of the prize does not involve an element of chance. Any procedure where the receipt of the prize is conditioned upon the purchase of the item which the seller is trying to promote or upon the payment of money and where the receipt of that prize involves an element of chance shall be deemed to be a lottery under Code Section 16-12-20; provided, however, that nothing in this definition shall be construed to include a lottery operated by the State of Georgia or the Georgia Lottery Corporation as authorized by law; provided, further, that any deposit made in connection with an activity described by subparagraph (b)(22)(B) of Code Section 10-l-393 shall not constitute the payment of money. (28) 'Trade' and 'commerce' mean the advertising, distribution, sale, lease, or offering for distribution, sale, or lease of any goods, services, or any property, tangible or intangible, real, personal, or mixed, or any other article, commodity, or thing of value wherever situate and shall include any trade or commerce directly or indirectly affecting the people of this state.*

SECTION 3. Said part is further amended by adding two new Code sections to read as follows:
'10-l-393.9. (a) Private child support collectors shall register with the Secretary of State and shall provide information as requested by the Secretary of State, including, but not limited to, the name ofthe private child support collector, the office address and telephone number for such entity, and the registered agent in this state on whom service of process is to be made in a proceeding against such private child support collector. (b) An application for registration shall be accompanied by a surety bond filed, held, and approved by the Secretary of State, and the surety bond shall be:
(l) Issued by a surety authorized to do business in this state; (2) In the amount of $50,000.00; (3) In favor of the state for the benefit of a person damaged by a violation of this Code section; and (4) Conditioned on the private child support collector's compliance with this Code section and Code Section 10-l-393.10 and the faithful performance of the obligations under the private child support collector's agreements with its clients. (c) In lieu of a surety bond, the Secretary of State may accept a deposit of money in the amount of $50,000.00. The Secretary of State shall deposit any amounts received under this subsection in an insured depository account designated for that purpose.

1006

GENERAL ACTS AND RESOLUTIONS, VOL. I

10-1-393.10. (a) Any contract for the collection of child support between a private child support collector and an obligee shall be filed by the private child support collector with the Governor's Office of Consumer Affairs. (b) Any contract for the collection of child support between a private child support collector and an obligee shall be in writing, in at least ten-point type, and signed by such private child support collector and obligee. The contract shall include:
(1) An explanation of the nature of the services to be provided; (2) An explanation of the amount to be collected from the obligor by the private child support collector and a statement of a sum certain of the total amount that is to be collected by the private child support collector that has been engaged by the obligee; (3) An explanation in dollar figures of the maximum amount of fees which could be collected under the contract and an example of how fees are calculated and deducted; (4) A statement that fees shall only be charged for collecting past due child support, although the contract may include provisions to collect current and past due child support; (5) A statement that a private child support collector shall not retain fees from collections that are primarily attributable to the actions of the department and that a private child support collector shall be required by law to refund any fees improperly retained; (6) An explanation of the opportunities available to the obligee or private child support collector to cancel the contract or other conditions under which the contract terminates; (7) The mailing address, telephone numbers, facsimile numbers, and e-mail address of the private child support collector; (8) A statement that the private child support collector shall only collect money owed to the obligee and not child support assigned to the State of Georgia; (9) A statement that the private child support collector is not a governmental entity and that the department provides child support enforcement services at little or no cost to the obligee; and (10) A statement that the obligee may continue to use or pursue services through the department to collect child support. (c) A private child support collector shall not: (1) Improperly retain fees from collections that are primarily attributable to the actions of the department. If the department or an obligee notifies a private child support collector of such improper fee retention, such private child support collector shall refund such fees to the obligee within seven business days of the notification of the improper retention of fees and shall not be liable for such improper fee retention. A private child support collector may require documentation that the collection was primarily attributable to the actions of the department prior to issuing any refund; (2) Charge fees in excess of one-third of the total amount of child support payments collected;

GEORGIA LAWS 2009 SESSION

1007

(3) Solicit obligees using marketing materials, advertisements, or representations reasonably calculated to create a false impression or mislead an obligee into believing the private child support collector is affiliated with the department or any other governmental entity; (4) Use or threaten to use violence or other criminal means to cause harm to an obligor or the property of the obligor; (5) Falsely accuse or threaten to falsely accuse an obligor of a violation of state or federal laws; (6) Take or threaten to take an enforcement action against an obligor that is not authorized by law; (7) Represent to an obligor that the private child support collector is affiliated with the department or any other governmental entity authorized to enforce child support obligations or fail to include in any written correspondence to an obligor the statement that 'This communication is from a private child support collector. The purpose of this communication is to collect a child support debt. Any information obtained will be used for that purpose.'; (8) Communicate to an obligor's employer, or his or her agent, any information relating to an obligor's indebtedness other than through proper legal action, process, or proceeding; (9) Communicate with an obligor whenever it appears the obligor is represented by an attorney and the attorney's name and address are known, or could be easily ascertained, unless the attorney fails to answer correspondences, return telephone calls, or discuss the obligation in question, or unless the attorney and the obligor consent to direct communication; (10) Contract with an obligee who is owed less than three months of child support arrearages; or (11) Contract with an obligee for a sum certain to be collected which is greater than the total sum of arrearages and the statutory interest owed as of the date of execution of the contract. (d) In addition to any other cancellation or termination provisions provided in the contract between a private child support collector and an obligee, the contract shall be cancelled or terminate if: (1) The obligee requests cancellation in writing within 30 days of signing the contract; (2) The obligee requests cancellation in writing after any 12 consecutive months in which the private child support collector fails to make a collection; (3) The private child support collector breaches any term of the contract or violates any provision contained within this Code section; or (4) The amount to be collected pursuant to the contract has been collected. (e) When it reasonably appears to the administrator that a private child support collector has contracted with obligees on or after July 1, 2009, using a contract that is not in compliance with this Code section, the administrator may demand pursuant to Code

1008

GENERAL ACTS AND RESOLUTIONS, VOL. I

Section l 0-l-403 that such private child support collector produce a true and accurate copy of each such contract. If such private child support collector fails to comply or the contracts are determined by the administrator to not be compliant with the provisions of this Code section, the administrator may utilize any of the powers vested in this part to ensure compliance. (f) Upon the request of an obligee, the Child Support Enforcement Agency of the department shall forward child support payments made payable to the obligee to any private child support collector that is in compliance with the provisions ofthis Code section and Code Section 10-l-393.9. (g) The remedies provided in this part shall be cumulative and shall be in addition to any other procedures, rights, or remedies available under any other law. (h) Any waiver of the rights, requirements, and remedies provided by this Code section that are contained in a contract between a private child support collector and an obligee violates public policy and shall be void.'

SECTION 4. Article l of Chapter ll of Title 19 of the Official Code of Georgia Annotated, relating to the "Child Support Recovery Act," is amended by revising subsection (f) of Code Section 19-ll-18, relating to collection procedures, as follows:
'(f) Notwithstanding any other provision of this title to the contrary, any child support being held by the Child Support Enforcement Agency of the department shall be paid to the custodial parent, legal guardian, or caretaker relative having custody ofor responsibility for a child within two days from receipt of same by the enforcement agency.'

SECTION 5. Said article is further amended by revising subsection (a) of Code Section 19-ll-30, relating to confidentiality of information and records held by the department, as follows:
(a)(l) Information and records obtained by the department pursuant to any provision of this article or Title IV-D of the federal Social Security Act shall be deemed to be confidential and shall be released only by permission of the party or parties named in the information or records, by order ofthe court, or for those purposes specifically authorized by this article. Any person who violates this Code section shall be guilty of a misdemeanor. (2) The department shall provide to an attorney representing an obligee or to a private child support collector, as defined in Code Section 10-l-392, hired by an obligee and acting pursuant to a power ofattorney signed by such obligee, any documents which such obligee would be entitled to request and receive from the Child Support Enforcement Agency of the department.'

GEORGIA LAWS 2009 SESSION

1009

SECTION 6. This Act shall become effective on July 1, 2009, and shall be applicable to all contracts for private collection of child support payment entered into on or after such effective date.

SECTION 7. All laws and parts of laws in conflict with this Act are repealed.

Approved May 11, 2009.