Ezel / AG Opinions / TN
TN Opinion No. 18-44 September 18, 2018

Can Tennessee's POST Commission charge retired officers a fee for the firearm certification that lets them carry under LEOSA?

Short answer: Yes. The Tennessee AG concluded the POST Commission has express authority to set a reasonable fee for the in-state retired-officer firearm certification, and general rulemaking authority to set a fee for the LEOSA-compatible nationwide certification.
Currency note: this opinion is from 2018
Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: This is an official Tennessee Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Tennessee attorney for advice on your specific situation.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.
View original AG opinion (PDF)

Subject

Opinion No. 18-44, Authority of POST Commission to Charge Fees for Firearm Certification, September 18, 2018

Plain-English summary

Retired Tennessee law enforcement officers who want to carry a firearm in retirement have to be certified by the Peace Officer Standards & Training (POST) Commission. There are two flavors of the certification:

  • Statewide under Tenn. Code Ann. § 38-8-116, which lets the retired officer carry within Tennessee in the same manner as an active officer.
  • Nationwide under Tenn. Code Ann. § 38-8-123, which meets the requirements of the federal Law Enforcement Officer Safety Act (LEOSA), 18 U.S.C. § 926C, and lets the retired officer carry across state lines.

Representative Dan Howell asked whether the Commission may charge a fee for either or both. The AG's answer was yes to both, but for different reasons.

For the in-state certification, § 38-8-116(f) is express. The statute authorizes the Commission "to establish and charge a fee for issuing a certification under th[at] section." There's no statutory cap on that fee (unlike the $6 cap on sheriff fingerprinting fees in § 38-8-116(c)(3)(A)). The fee just has to "bear some reasonable relation to the expenses involved" under S & P Enter. v. City of Memphis, 672 S.W.2d 213, 216 (Tenn. Ct. App. 1983), and the Tennessee tradition that regulatory fees be cost-related.

For the nationwide certification, § 38-8-123 doesn't have its own express fee provision. The AG relied on the Commission's general rulemaking authority in § 38-8-104(c) "to adopt and enforce such rules and regulations as may be necessary" to carry out its statutory responsibilities. Setting a reasonable fee for an issued certification falls within that general authority, particularly because issuing the certification is itself a statutory duty.

The opinion also flagged that retired officers may have to pay third-party fees during the application process (private fingerprint vendor fees, for example, which § 38-8-123(b)(1) effectively requires through its two-set fingerprint requirement). The Commission has authority to require use of a particular vendor or service if it concludes that's necessary to its duties.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The Law Enforcement Officer Safety Act (LEOSA), 18 U.S.C. § 926C, lets qualified retired law enforcement officers carry concealed firearms across state lines, preempting most state and local restrictions, but only if they meet specific requirements including a current certification from the agency they retired from (or from the state). § 38-8-123 is Tennessee's mechanism for issuing LEOSA-compliant certifications.

Tennessee's older statewide-only certification under § 38-8-116 predates LEOSA's expanded coverage. § 38-8-116(c)(9) recognizes that the in-state certification, by itself, doesn't meet LEOSA's requirements. So a retired officer who wants to carry beyond Tennessee must satisfy § 38-8-123. § 38-8-123(b)(1) requires submission of two full sets of classifiable fingerprints among other materials.

The fee authority breaks down as follows:

  • § 38-8-116(f) (express): "The commission is authorized to establish and charge a fee for issuing a certification under this section."
  • § 38-8-104(c) (general): the Commission may "adopt and enforce such rules and regulations as may be necessary" to carry out its duties.

The reasonable-relation test for regulatory fees comes from S & P Enter. v. City of Memphis, 672 S.W.2d 213, 216 (Tenn. Ct. App. 1983), citing Memphis Retail Liquor Dealers' Ass'n v. City of Memphis, 547 S.W.2d 244 (Tenn. 1997). Under that test, a fee that bears no reasonable relation to the cost of issuing the certification would fall outside the Commission's authority.

Common questions

What's the difference between a § 38-8-116 certification and a § 38-8-123 certification?

The § 38-8-116 certification authorizes a retired officer to carry within Tennessee in the same manner as an active officer. The § 38-8-123 certification additionally meets LEOSA's federal requirements, allowing nationwide concealed carry under federal preemption. A retired officer who plans to travel out of state with their firearm needs the § 38-8-123 certification.

Why isn't there an express fee provision for the nationwide certification?

Section 38-8-123 has no express fee clause of its own, and the AG did not explain why. The opinion concluded that the Commission's general rulemaking authority under § 38-8-104(c), which lets it adopt rules "as may be necessary" to carry out its duties, covers setting a reasonable fee for the certifications it issues.

Is there a cap on the fee?

No statutory cap. The fee just has to bear a reasonable relation to the expenses involved in processing and issuing the certification. The Commission may not, in effect, use the certification fee to raise general revenue.

Can the Commission require an applicant to use a specific fingerprint vendor or service?

Per the opinion, yes, if the Commission decides that's necessary to fulfill its statutory duties. The footnote noted that even though § 38-8-116 directs a retired officer to a local sheriff for fingerprinting, the Commission's broader authority lets it require a different fingerprint method if needed.

Does this opinion bind the Commission?

AG opinions are persuasive authority, not binding precedent. A court reviewing a contested fee structure would look at whether the Commission acted within its statutory authority and whether the fee bears a reasonable relation to actual expenses.

Citations

Statutes

  • Tenn. Code Ann. § 38-8-104 (Commission rulemaking authority)
  • Tenn. Code Ann. § 38-8-116 (statewide retired-officer firearm certification; express fee authority in (f))
  • Tenn. Code Ann. § 38-8-123 (nationwide / LEOSA-compliant certification)
  • 18 U.S.C. § 926C (Law Enforcement Officer Safety Act)

Cases

  • S & P Enter. v. City of Memphis, 672 S.W.2d 213 (Tenn. Ct. App. 1983)
  • Memphis Retail Liquor Dealers' Ass'n v. City of Memphis, 547 S.W.2d 244 (Tenn. 1997)

Source

Original opinion text

Authority of POST Commission to Charge Fees for Firearm Certification

Question

What fees, if any, may the Peace Officer Standards & Training (POST) Commission charge to an applicant for statewide certification to carry a firearm, see Tenn. Code Ann. § 38-8-116, or to an applicant for nationwide certification, see Tenn. Code Ann. § 38-8-123?

Opinion

The POST Commission has authority to impose a fee for both statewide and nationwide certification and, in its discretion, to determine a reasonable fee for the issuance of firearm certifications. The Commission may also establish such rules and regulations as are necessary to administer its duties.

ANALYSIS

Retired law enforcement officers who wish to carry a firearm in the same manner and to the same extent as authorized for active law enforcement officers must be certified as eligible to do so by the Peace Officer Standards & Training (POST) Commission. Tenn. Code Ann. § 38-8-116(b). Certification pursuant to § 38-8-116 allows a retired officer to carry a firearm only within the state of Tennessee because it does not meet the certification requirements of the federal Law Enforcement Officer Safety Act, 18 U.S.C. § 926C. See Tenn. Code Ann. § 38-8-116(c)(9). A retired officer who wishes to be certified to carry a firearm nationwide must satisfy the requirements of Tenn. Code Ann. § 38-8-123. Id. § 38-8-123(b)(1).

The POST Commission has express authority to charge a fee for certifying retired law enforcement officers to carry a firearm within Tennessee. It is expressly authorized by § 38-8-116 "to establish and charge a fee for issuing a certification under th[at] section." Id. § 38-8-116(f). Although § 38-8-116 limits the amount of other fees for which it provides, see, e.g., id. § 38-8-116(c)(3)(A) (providing that a "sheriff may charge a fee not to exceed six dollars" for taking fingerprints), it does not set a limit on the fee that the POST Commission may establish and collect for issuing certifications. That fee, like all regulatory fees, however, must "bear some reasonable relation to the expenses involved." S & P Enter. v. City of Memphis, 672 S.W.2d 213, 216 (Tenn. Ct. App. 1983) (citing Memphis Retail Liquor Dealers' Ass'n v. City of Memphis, 547 S.W.2d 244 (Tenn. 1997)).

The POST Commission may also charge a fee for nationwide certification under its general authority "to adopt and enforce such rules and regulations as may be necessary" to carry out its statutory responsibilities, including the issuance of firearms certifications. Id. § 38-8-104(c). Accordingly, although § 38-8-123 does not expressly grant the Commission authority to impose a fee for the issuance of a nationwide certification, the Commission may adopt rules and regulations, including imposition of reasonable fees, it deems necessary.

A retired officer seeking certification may also have to pay fees to third parties in connection with preparing his application to the Commission. Section 38-8-123(b)(1), for example, requires an applicant for nationwide certification to submit "two (2) full sets of classifiable fingerprints" to the POST Commission, and a retired law enforcement officer may be required to pay a fee to a private fingerprint vendor to procure an adequate set of fingerprints. Under its general authority, the Commission may require the use of a particular vendor or third-party service if it deems such a requirement necessary to the fulfillment of its statutory duties.

[1] Although § 38-8-116 requires a retired officer seeking certification to go to his local sheriff to have fingerprints taken, see Tenn. Code Ann. § 38-8-116(c)(3)(A), it does not limit the Commission's authority to require applicants to submit fingerprints via a different method if the Commission determines that doing so is necessary.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable Dan Howell
State Representative
Cordell Hull Building, Room 596
Nashville, Tennessee 37243