October 20, 1995

The Honorable Virgil H. Goode Jr.
Member, Senate of Virginia

You ask several questions regarding interpretation of § 18.2-308 of the Code of Virginia, the statutory provision pertaining to carrying and using concealed weapons, which was amended and reenacted by the 1995 Session of the General Assembly.1

You first ask whether completion of a hunter safety course approved by the Department of Game and Inland Fisheries must be considered by a court as sufficient proof of "demonstrated competence with a handgun," as required by § 18.2-308(G)(1), to obtain a permit to carry a concealed weapon.2

"Unless it is manifest that the purpose of the legislature was to use the word 'may' in the sense of 'shall' or 'must’ then 'may' should be given its ordinary meaning—permission, importing discretion."3 By use of the word "may" in the first sentience of § l8.2-308(G)(1)"[the court may further require proof that the applicant has demonstrated competence with a handguns—the General Assembly intended that the court exercise discretion in deciding whether to require evidence from an applicant of demonstrated competence with a handgun before issuing a permit. Furthermore, by use of the word "may" in the second half of that sentence—"and the applicant may demonstrate such competence"4 by completing one of the six enumerated firearms training or safety courses, or by providing evidence either of previous firearms experience or of previously having held a license to carry a firearm—the General Assembly intended that the applicant have the discretion to choose an approved method of demonstrating to the court the competence required for issuance of the permit.

The use of the word "shall" in a statute, however, generally implies that its terms are intended by the General Assembly to be mandatory, rather than permissive or directive.5 The General Assembly has mandated that a photocopy of a certificate of completion, an affidavit or "a copy of any document which shows completion of the course or class or evidences participation in firearms competition shall constitute evidence of qualification under ... subsection [G]."6 Once such a document is produced before a court with the application for a permit, the General Assembly has determined that the individual has demonstrated sufficient evidence of competence with a handgun.

"[W]here a law is expressed in plain and unambiguous terms, whether those terms are general or limited, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction."7 Therefore, it is my opinion that the General Assembly intended for the court to exercise discretion in determining whether it will require proof from an applicant of demonstrated competence with a handgun. The use of the word "shall" in the last paragraph of § 18.2-308(G), however, indicates that the General Assembly will not permit the court to disregard the statutorily defined evidence of completion of one of the courses of instruction listed in subsection G.8 It is also my opinion, therefore, that when an applicant provides a photocopy of a certificate of completion, an affidavit or a copy of any document that shows completion of the hunter safety course as evidence of qualification, the court must accept such documentation of the applicant's having satisfactorily demonstrated competence with a handgun.

You next ask whether a circuit court may restrict an individual granted a permit to carry only a specific handgun with a particular serial number. Section 18.2-308(H) specifies the information that must be included on the concealed handgun permit, and the General Assembly has not required or authorized information concerning the specific handgun an individual may carry to be included on the permit.9 The individual must carry the permit "at all times during which he is carrying a concealed handgun."10 Additionally, "handgun" is defined as "any pistol or revolver."11 The General Assembly has not limited or restricted the definition to any specific handgun that an individual is authorized to carry.

A 1981 opinion of the Attorney General concludes that § 18.2-308 permits the court to place restrictions on a permit to carry a concealed handgun.12 Before the 1995 amendment to §18.2-308(D), the General Assembly allowed the court to grant a permit in its discretion upon a finding of a demonstrated need.13 Following the 1995 amendment to § 18.2-308(D), however, the General Assembly removed the court's discretion by requiring that "[t]he court, after consulting the law-enforcement authorities of the county or city and receiving a report from the Central Criminal Records Exchange, shall issue the permit within forty-five days of receipt of the completed application unless it appears that the applicant is disqualified."14

A rule of statutory construction requires the presumption that, in amending § 18.2-308(D), the General Assembly had full knowledge of the existing law and the construction placed upon it by the Attorney General, and intended to change the then existing law.15 In addition, when a statute creates a specific grant of authority, the authority exists only to the extent specifically granted in the statute. The mention of one thing in a statute implies the exclusion of another.16 Pursuant to the plain language of § 18.2-308(D), I am of the opinion that the court may not limit or restrict the concealed weapon permit to a particular handgun with a particular serial number.

You next ask whether § 18.2-308(I) permits a Commonwealth's attorney to argue at an ore tenus hearing in the circuit court or in the Court of Appeals either as an appellee when a permit is denied or as an appellant when a permit is granted.17 In the absence of a statutory definition, words in statutes are to be given their ordinary meaning within the statutory context.18 "Ore tenus" means "[by word of mouth; orally.]"19 By the clear language of § 18.2-308(I), the General Assembly provides an opportunity to be heard in the circuit court only to persons who apply for, and are denied, a new permit, after having previously held a concealed weapon permit. The General Assembly has not provided a similar opportunity for a Commonwealth's attorney to be heard by the court at an ore tenus hearing. A statute specifying the method by which something shall be done indicates a legislative intent that it not be done otherwise.20 Section 18.2-308(I) does not expressly authorize a Commonwealth's attorney to appear at an ore tenus hearing afforded to the unsuccessful applicant. As a general rule, however, the conduct of a trial or hearing is left to the sound discretion of the trial court.2' Consequently, I am of the opinion that the decision to permit a Commonwealth's attorney to appear and be heard at an ore tenus hearing rests with the sound discretion of the circuit court.

Section 18.2-308(L) grants the unsuccessful applicant the right to petition the Court of Appeals of Virginia for review of the circuit court's denial of an application.22 The General Assembly has not provided a Commonwealth's attorney the right to petition the Court of Appeals for review of the granting of an application. Had the General Assembly intended to permit a Commonwealth's attorney to appeal the circuit court decision to grant a concealed weapon permit application, it could have done so in plain language. The General Assembly has permitted a Commonwealth's attorney to oppose the application for a permit in only two specific ways: § 18.2-308(D) provides that the court may consult with the Commonwealth's attorney as a law-enforcement authority of the locality, and § 18.2-308(E)(13) provides that the Commonwealth's attorney may submit a sworn written statement for the court's consideration before issuing a permit. The General Assembly has not provided any other procedure for a Commonwealth's attorney to oppose the application for a permit. Therefore, I am of the opinion that there is no statutory authority for a Commonwealth's attorney to petition the Court of Appeals for review of a final decision of the circuit court granting an application for a permit. I am also of the opinion that there is no statutory authority for a Commonwealth's attorney to oppose the petition for review filed by the unsuccessful applicant with the Court of Appeals under the provisions of § 18.2-308(L).

You next ask whether the sworn written statement by the sheriff, chief of police or Commonwealth's attorney must contain specific facts regarding an individual whose application is under consideration by the court. Section 18.2-308(E)(13) requires that the sworn statement of the sheriff, chief of police or Commonwealth's attorney "shall be based upon personal knowledge or upon the sworn written statement of a competent person having personal knowledge." Words and phrases must be considered in the context in which they are used to arrive at a construction that will promote the object and purpose of the statute.23 The General Assembly has granted an unsuccessful applicant the right to be heard ore tenus by the circuit court under § 18.2-308(I), and the right to petition the Court of Appeals for review of that court's decision denying an application under § 18.2-308(L). The hearing and appeal procedures comply with a fundamental requisite of due process of law by providing an unsuccessful applicant the opportunity to be heard on his application.24 .Following the ore tenus hearing, the final order of the court must include the court's findings of fact and conclusions of law. The personal knowledge requirement imposed by § 18.2-308(E)(13) necessarily requires that, to comply with fundamental due process requirements, facts on which any opinion of the sheriff, chief of police or Commonwealth's attorney ultimately is based must be included in the sworn statement alleging that the applicant "is likely to use a weapon unlawfully or negligently to endanger others." Therefore, I am of the opinion that any sworn written statement by the sheriff, chief of police or Commonwealth's attorney must contain specific facts upon which an opinion regarding the applicant is based.

Finally, you ask whether, pursuant to § 18.2-308(J2), the carrying of a concealed handgun into an event or establishment with an on-premises ABC license constitutes a misdemeanor or a felony.25 Section 18.2-308(A) specifies that carrying a concealed weapon is a Class 1 misdemeanor for the first violation, a Class 6 felony for a second violation, and a Class 5 felony for a third or subsequent violation. The granting of a concealed handgun permit merely exempts an individual from the general prohibition.26 A concealed handgun permit allows the holder to carry the handgun in an area not otherwise prohibited.

"[A] penal statute is to be strictly construed against the state and in favor of the liberty of a citizen."27 "Such statutes cannot be extended by implication or construction, or be made to embrace cases which are not within their letter and spirit."28 While penal statutes must be strictly construed, the intention of the General Assembly must govern in the construction of penal statutes, and those statutes are not to be so strictly construed as to defeat the obvious intention of the General Assembly.29 The clear intent of the General Assembly is to permit concealed handgun permit holders to carry handguns in areas only where the General Assembly has not prohibited the carrying of handguns. Consequently, when an individual carries a handgun into areas expressly prohibited in § 18.2-308(J2), I am of the opinion that the individual may be charged with a Class 1 misdemeanor for the first violation, a Class 6 felony for a second violation, or a Class 5 felony for a third or subsequent violation under the provisions of § 18.2-308(A).