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Official Opinion 97-31

Official Opinion 97-31

October 30, 1997
To: 

Joint Secretary
State Examining Boards

Re: 

(1) The Federal Aviation Administration Authorization Act of 1994 preempts state legislation concerning the training and licensing of security officers performing pre-departure screening under a contract with an airline or an aircraft carrier. (2) Security officers providing security to most federal facilities on an independent contract basis must comply with state legislation concerning the training and licensing.

You requested a legal opinion concerning two matters related to licensure and training requirements of the Georgia Board of Private Detective and Security Agencies ("the Board"). First, you inquired whether individuals performing pre-departure screening under a contract with an airline or an aircraft carrier must comply with the Board's licensing and training requirements. Second, you inquired whether individuals providing security services to federal facilities on an independent contract basis must comply with the Board's licensing and training requirements.

The answers to your particular questions begin with the law of federal preemption. "The Supremacy Clause, Article VI, Clause 2 of the United States Constitution, provides that 'the Laws of the United States . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.'" Huntleigh Corp. v. Louisiana State Bd. of Private Security Examiners, 906 F. Supp. 357, 360 (1995).

Federal law preempts state law in three (3) instances. First, "where the Congress has expressly preempted state law." Id. Second, "where congressional intent to preempt may be inferred from the pervasiveness of the federal regulatory scheme." Id. Third, "where state law actually conflicts with federal law or interferes with the achievement of congressional objectives." Id.

In 1994, Congress enacted the Federal Aviation Administration Authorization Act of 1994 ("FAAAA"). The FAAAA specified that, except as otherwise provided, a state "may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation." 49 U.S.C. † 41713(b)(1) (1997).

FAAAA Section 44901 requires "the Administrator of the FAA to prescribe regulations requiring that all passengers and property that will be carried in the cabin of an aircraft in air transportation be screened." Huntleigh, 906 F. Supp at 359. The screening "must take place before boarding and must be carried out by a weapon-detecting facility or procedure used or operated by an employee or agent of the air carrier." Id.

The FAAAA further directs the FAA to prescribe standards for the employment of and contracting for airport security personnel to perform pre-departure screening. The FAA is directed to "'prescribe uniform minimum qualifications for individuals eligible for that training.'" Id. (quoting 49 U.S.C. † 44935). See also 14 C.F.R. † 108.31 (1997) (listing the specific standards for screening personnel established by the FAA Administrator).

Accordingly, regulation of pre-departure screening "is an activity which has been expressly preempted by federal law." Huntleigh, 906 F. Supp. at 362. Security personnel performing the task of pre-departure screening in Georgia are not subject to regulation by the Board.

In contrast to the FAAAA preemption provisions, no ascertainable federal law expressly preempts Georgia from imposing licensing and training requirements on security personnel providing services at a United States government facility on an independent contract basis. Cf. International Union, United Plant Guard Workers of Am. v. Johnson Controls World Services, Inc., 100 F.3d 903, 904

(11th Cir. 1996) (federal enclaves such as Cape Canaveral are not subject to state law). Nor, is there an apparent federal regulatory scheme which is so pervasive that state licensing and training requirements are preempted by federal law. Arguably, the security personnel guidelines for the Nuclear Regulatory Commission may preempt state legistlation, but no court has addressed the issue. See 10 C.F.R. †† 73.46 et seq. (1997).

Regulation of licensees is a matter traditionally reserved to the states as a valid exercise of the states' police powers. See Geiger v. Jenkins, 316 F. Supp. 370, 373 (N.D. Ga. 1970), aff'd, 401 U.S. 985 (1971) (power of state to regulate licensees "includes the power to create an administrative board and vest in it the supervision of such regulation"). Security personnel working at most federal facilities must, therefore, comport with the Board's licensing and training requirements, unless those individuals fall within an exemption specified by Georgia law.

Official Code of Georgia Annotated † 43-38-7(b) requires that armed security guards must be employed by a licensed security agency and must be registered with the Board. Official Code of Georgia Annotated † 43-38-10 specifies firearms training requirements for registrants and licensees.

Certain individuals are exempted from Board licensure and training requirements, as detailed by O.C.G.A. † 43-38-14. Two exemptions may be relevant to determining whether security guards working as independent contractors at federal facilities are exempt.

Initially, any officer or employee of the United States of America, who "is engaged in the performance of official duties," is exempt from Board licensure and training requirements. O.C.G.A. † 43-38-14(a)(1). An exemption to Board licensure and training requirements also extends to any person employing "persons who do private security work in connection with the affairs of such employer only and who have an employer-employee relationship with such employer." O.C.G.A. † 43-38-14(d).

Neither exemption applies to independent contractors. Under Georgia law an independent contractor is not an employee of an employer. See Ledbetter v. Delight Wholesale Co., 191 Ga. App. 64 (1989) (distinguishing

between employee-employer relationships and independent contractor arrangements). Individuals providing security to most federal facilities on an independent contract basis must satisfy all Board licensure and training requirements.

Prepared by:

KEVIN H. HUDSON
Assistant Attorney General