Necessity to obtain license to sell firearms and ammunition

FIREARMS-AMMUNITIONS-LICENSING-Necessity to obtain license to sell firearms and ammunition

1.         The employees of a firearms dealer are required to undergo fingerprinting and a background check before they can sell firearms, in addition to the requirement that they be eligible to possess a firearm and obtain a concealed weapons permit.

2.         Firearms dealers who permit employees to sell firearms who do not meet the qualifications set forth in RCW 9.41.110(5)(b) are subject to license revocation, as well as to possible criminal penalties as outlined in RCW 9.41.810.

3.         An employee of a firearms dealer does not have to obtain his or her own dealer's license in order to sell firearms, if the employee does not own, control, or profit from the business and otherwise meets the requirements contained in RCW 9.41.110 for an employee of a dealer.

4.         A person who is engaged in the business of selling ammunition in the state of Washington, but is not engaged in the business of manufacturing or importing ammunition or of selling firearms, does not have to obtain a state license, nor are the employees of such a person subject to a licensing requirement.

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                                                               December 13, 1994

HonorableClyde Ballard
State Representative, District 12
Legislative Building, MS 40623
Olympia, WA  98504-0623

                                                                                                Cite as:AGO 1994 No. 22

Dear Representative Ballard:

            By letter previously acknowledged, you have requested an opinion on several questions about the effect of changes in the firearms laws made by the 1994 Legislature in Engrossed Second Substitute House Bill 2319 (Laws of 1994, 1st Sp. Sess., ch. 7).  Specifically, you have asked the following questions about the effect of section 416 of chapter 7, which contains substantial amendments to RCW 9.41.110 setting out the licensing requirements for firearms dealers under state law.  Your specific questions (which we have paraphrased slightly for clarity) are as follows:

            1.         If an employee of a firearms dealer is otherwise eligible to possess a firearm and to obtain a concealed weapons permit, must the employee also undergo fingerprinting and a background check in order to sell firearms?

            2.         If the answer to Question 1 is yes, are there penalties for violations of that requirement?

            3.         If an employee of a dealer is otherwise eligible to possess a firearm and obtain a concealed weapons permit and has undergone fingerprinting and a background check, does the employee also have to obtain a state dealer's license in order to sell firearms?

            4.         Does state law require an individual to obtain a state dealer's license in order to sell ammunition if the individual does not sell firearms and is not required to obtain a federal dealer's permit?

            5.         Are the employees of an individual described in Question 4 required to obtain a state dealer's license?

                                                              BRIEF ANSWERS

            We answer Questions 1 and 2 in the affirmative, and Questions 3, 4, and 5 in the negative, as detailed in the analysis below.

                                                                BACKGROUND

            The 1994 Legislature enacted chapter 7, Laws of 1994, 1st Special Session (E2SHB 2319) with the goal of reducing violence through a wide variety of changes to social and educational programs, revision of certain aspects of the criminal justice and corrections laws, and changes in firearms licensing laws.  One of the specific goals was "reducing the unlawful use of an access to firearms".  Laws of 1994, 1st Sp. Sess., ch. 7, § 101, p. 2196 (codified as a note to RCW 43.70.540).  Part IV of chapter 7 made a number of changes to the laws concerning the possession, use, and sale of firearms (these laws are primarily codified in chapter 9.41 RCW).  Section 416 of chapter 7 made extensive changes in RCW 9.41.110, which regulates the sale of firearms and requires licensing of firearms dealers.[1]  Among the significant changes to this statute are provisions changing the definition of a dealer; requiring separate licenses to sell pistols, other firearms and ammunitions; requiring criminal background checks for certain persons engaged in selling firearms; regulating sales from temporary locations; and raising license fees.  The amended licensing requirements are the subject of your questions.

                                                                    ANALYSIS

            Question 1:

            If an employee of a firearms dealer is otherwise eligible to possess a firearm and to obtain a concealed weapons permit, must the employee also undergo fingerprinting and a background check in order to sell firearms?

            As most recently amended by the 1994 Legislature, RCW 9.41.110(5)(b) currently reads as follows:

                        A dealer shall require every employee who may sell a firearm in the course of his or her employment to undergo fingerprinting and a background check.  An employee must be eligible to possess a firearm, and must not have been convicted of a crime that would make the person ineligible for a concealed pistol license, before being permitted to sell a firearm.

(Emphasis added.)  The plain language of the underscored sentence makes it mandatory that all employees engaged in the sale of firearms be required to undergo fingerprinting and a background check.  The following sentence makes it clear that employees are also subject to additional requirements:  they must be eligible to possess a firearm, and they must not have been convicted of a crime that would make them ineligible for a concealed pistol license.  The grammar and structure of the section makes it clear that these are all separate requirements, and we could discover no plausible interpretation or legislative history to suggest that eligibility to possess a firearm and obtain a concealed pistol license was intended as an alternative to the fingerprinting and background check requirements.  We conclude that the requirements are separate, and that all employees must undergo fingerprinting and a background check, as well as meeting the other requirements set forth in the subsection.

            Question 2:

            If the answer to Question 1 is yes, are there penalties for violations of that requirement?

            A dealer who sells firearms without complying with the requirements enumerated in RCW 9.41.110(5)(b) would be subject to both license forfeiture and criminal penalties.  RCW 9.41.110(4) provides that a dealer's license shall be issued "subject to the following conditions, for breach of any of which the license shall be forfeited and the licensee subject to punishment as provided in RCW 9.41.010 through 9.41.810".  The term "following conditions" plainly refers to the remaining provisions in RCW 9.41.110, including the provisions in RCW 9.41.110(5) relating to qualifications of employees of firearms dealers, which are the subject of your question.[2]

            In addition to license forfeiture, a dealer violating the requirement to obtain fingerprinting and background checks on employees might also be subject to criminal prosecution under RCW 9.41.810, which provides that "[a]ny violation of any provision of this chapter, except as otherwise provided, shall be a misdemeanor and punishable accordingly".

            Question 3:

            If an employee of a dealer is otherwise eligible to possess a firearm and obtain a concealed weapons permit and has undergone fingerprinting and a background check, does the employee also have to obtain a state dealer's license in order to sell firearms?

            RCW 9.41.100 and the first three subsections of RCW 9.41.110 require that "dealers" obtain a license to sell firearms or ammunition.  RCW 9.41.010(10) provides:

            "Dealer" means a person engaged in the business of selling firearms or ammunition at wholesale or retail who has, or is required to have, a federal firearms license under 18 U.S.C. Sec. 923(a).

A federal license is required under 18 U.S.C. § 923(a) for persons who "engage in the business of importing, manufacturing, or dealing in firearms".  These definitions do not appear to include employees.  In determining the meaning of undefined terms in a statute, we look both at the plain and ordinary meaning of the terms, and at related provisions in the statute to determine their context.  See, e.g.,Pacific First Fed. Sav. & Loan Assoc. v. State, 92 Wn.2d 402, 598 P.2d 387 (1979); State v. Sommerville, 111 Wn.2d 524, 760 P.2d 932 (1988).  We understand the ordinary meaning of persons "engaged in the business" to be persons who own, control, or profit from a business.  An employee who works for a licensed dealer, does not own or control the business, and only sells firearms at the direction of, and on behalf of, the business or the dealer does not appear to fit within that language.  This interpretation is supported by the context in which the language appears.  By making explicit reference to "employees" of dealers in RCW 9.41.110(5)(b), and setting out separate requirements for them such as fingerprinting and background checks, the statute clearly recognizes that dealers may have unlicensed employees who may sell firearms.  In addition, while the federal statute and regulations do not explicitly exclude employees from the definition of dealers, the Bureau of Alcohol, Tobacco, and Firearms has also recognized in its interpretation of the statute that unlicensed employees of a licensed dealer may sell firearms under federal law.  See Bureau of Alcohol, Tobacco, and Firearms, Federal Firearms Regulation 1988-89, p. 85 at Question F4 (1988) (unlicensed employee may sell firearm if employee is otherwise eligible to possess firearm and federal forms are signed by dealer).

            Accordingly, we conclude that persons employed by firearms dealers are not themselves "dealers" as defined in the statute and do not individually have to obtain state dealer licenses in order to sell firearms in the course of their employment.

            Questions 4 and 5:

            Does state law require an individual to obtain a state dealer's license in order to sell ammunition if the individual does not sell firearms and is not required to obtain a federal dealer's permit?

            Are the employees of an individual described in Question 4 required to obtain a state dealer's license?

            RCW 9.41.110(3) provides as follows:  "No dealer may sell or otherwise transfer, or expose for sale or transfer, or have in his or her possession with intent to sell, or otherwise transfer, any ammunition without being licensed as provided in this section."  However, RCW 9.41.010(10) defines the term "dealer" as "a person engaged in the business of selling firearms or ammunition at wholesale or retail who has, or is required to have, a federal firearms license under 18 U.S.C. Sec. 923(a)".  18 U.S.C. § 923(a) provides that:  "No person shall engage in the business of importing, manufacturing, or dealing in firearms, or importing or manufacturing ammunition, until he has filed an application with and received a license to do so from the Secretary".  (Emphasis added.)  The ammunition licensing requirement under federal law only applies to persons who are engaged in the business of importing or manufacturing ammunition, and unlike the firearms licensing requirement, does not apply to persons who deal in ammunition.  Therefore, a person who only deals in ammunition, and does not import or manufacture it or deal in firearms, is not required to have a license under 18 U.S.C. § 923(a).[3]

            Under state law, then, a person who sells ammunition, but does not manufacture or import ammunition, and does not also deal in firearms, is not defined as a "dealer" for purposes of chapter 9.41 RCW, and thus is not required to obtain a license under RCW 9.41.110.  By the same reasoning, as well as for the reasoning set forth in our answer to your third question, the employees of such a person are likewise excused from a licensing requirement under current state law, unless they engage in other activities which would subject them to licensing requirements.

            We trust this opinion will be of assistance to you.

                                                                        Very truly yours,

                                                                        CHRISTINE O. GREGOIRE
                                                                        Attorney General

                                                                       JAMES K. PHARRIS
                                                                        Senior Assistant Attorney General

                                                                        JAMES T. SCHMID
                                                                        Assistant Attorney General

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Enclosure