09 LC 29
3805S
House
Bill 545 (RULES COMMITTEE SUBSTITUTE)
By:
Representatives Willard of the
49th,
Lindsey of the
54th,
Powell of the
171st,
Lane of the
167th,
Weldon of the
3rd,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 2 of Chapter 11 of Title 9 of the Official Code of Georgia
Annotated, relating to commencement and service of civil actions, so as to
revise provisions relating to service of process; to provide for certification
of persons authorized to serve process throughout the state; to provide for
service upon persons residing in gated and secured communities; to provide for
filing the return of service; to change certain provisions relating to process
in civil practice; to provide for certification of certified process servers
authorized to serve process throughout the state; to provide for qualifications,
procedures, and other matters with respect to such certification; to regulate
the professional conduct of certified process servers; to define the crime of
impersonating a process server and provide for punishment; 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 11 of Title 9 of the Official Code of Georgia Annotated, relating
to commencement and service of civil actions, is amended in Code Section 9-11-4,
relating to service of process, by revising subsection (c) as
follows:
"(c)
Summons — By
whom served. Process shall be served
by:
(1)
The
the
sheriff of the county where the action is brought or where the defendant is
found,
or by such sheriff's
deputy;
(2)
The
, or by
the marshal or sheriff of the
court,
or by such official's
deputy;
(3)
Any
, or by
any citizen of the United States specially
appointed by the court for that
purpose;
(4)
A person
, or by
someone who is not a party and is not
younger than 18 years of age and has been appointed as a permanent process
server by the court in which the action is
brought.
;
or
(5)
A certified process server under Code Section 9-11-4.1, provided that the
sheriff of the county for which process is to be served allows such servers to
serve process in such county.
Where
the service of process is made outside of the United States, after an order of
publication, it may be served either by any citizen of the United States or by
any resident of the country, territory, colony, or province who is specially
appointed by the court for that purpose. When service is to be made within this
state, the person making such service shall make the service within five days
from the time of receiving the summons and complaint; but failure to make
service within the five-day period will not invalidate a later
service."
SECTION
2.
Said
article is further amended in subsection (f) of said Code section by adding a
new paragraph to read as follows:
"(4)
SERVICE
UPON PERSONS RESIDING IN GATED AND SECURED COMMUNITIES.
(A)
As used in this paragraph, the term 'gated and secured communities' means
multiple residential or commercial properties, such as houses, condominiums,
offices, or apartments, where access to the multiple residential or commercial
properties is restricted by a gate, security device, or security attendant that
restricts public entrance onto the property; provided, however, that a single
residence, farm, or commercial property with its own fence or gate shall not be
included in this definition.
(B)
Any person authorized to serve process shall be granted access to gated and
secured communities for a reasonable period of time for the purpose of
performing lawful service of process upon:
(i)
Identifying to the guard or managing agent the person, persons, entity, or
entities to be served;
(ii)
Displaying a current driver's license or other government issued identification
which contains a photograph; and
(iii)
Displaying evidence of current appointment as a process server pursuant to this
Code section."
SECTION
3.
Said
article is further amended in said Code section by revising subsection (h) as
follows:
"(h)
Return.
The person serving the process shall make
proof of
service thereof to the court promptly and, in any event, within the time during
which the person served must respond to the
process
proof of such
service with the court in the county in which the action is pending within five
business days of the service date. If the proof of service is not filed within
five business days, the time for the party served to answer the process shall
not begin to run until such proof of service is
filed. Proof of service shall be as
follows:
(1)
If served by a sheriff or marshal, or such official's deputy, the affidavit or
certificate of the sheriff, marshal, or deputy;
(2)
If by any other proper person, such person's affidavit;
(3)
In case of publication, the certificate of the clerk of court certifying to the
publication and mailing; or
(4)
The written admission or acknowledgment of service by the
defendant.
In
the case of service otherwise than by publication, the certificate or affidavit
shall state the date, place, and manner of service. Failure to make proof of
service shall not affect the validity of the service."
SECTION
4.
Said
article is further amended by adding a new Code section to read as
follows:
"9-11-4.1.
(a)
Certified
process
servers. A
person at least 18 years of age who files with the Administrative Office of the
Courts an application stating that the movant complies with this Code section
and any procedures and requirements set forth in any rules or regulations
promulgated by the Judicial Council of Georgia regarding this Code section
shall, absent good cause shown, be certified as a process server by the
Administrative Office of the Courts. Such certification shall be effective for
a period of three years or until such approval is withdrawn by the
Administrative Office of the Courts upon good cause shown, whichever shall first
occur. Such certified process server shall be entitled to serve in such
capacity for any court of the state, anywhere within the state, provided that
the sheriff of the county for which process is to be served allows such servers
to serve process in such county.
(b)
Certification
procedures.
(1)
Any person seeking certification under this Code section shall upon applying for
certification present evidence that he or she:
(A)
Has undergone a criminal record check based on fingerprints and has never been
convicted of a felony or of impersonating a peace officer or other public
officer or employee under Code Section 16-10-23;
(B)
Completed a 12 hour course of instruction relating to service of process which
course has been approved by the Administrative Office of the Courts in
consultation with the Georgia Sheriffs' Association;
(C)
Passed a test approved by the Administrative Office of the Courts which will
measure the applicant's knowledge of state law regarding serving of process and
other papers on various entities and persons;
(D)
Obtained a commercial surety bond or policy of commercial insurance conditioned
to protect members of the public and persons employing the certified process
server against any damage arising from any actionable misconduct, error, or
omission on the part of the applicant while serving as a certified process
server; and
(E)
Is a citizen of the United States.
(2)
The Administrative Office of the Courts shall review the application, test
score, criminal record check, and such other information or documentation as
required by that office. Upon review, the office shall make a fitness
determination in accordance with standards and procedures promulgated by the
Judicial Council of Georgia as to whether the applicant shall be approved for
certification and authorized to act as a process server in this state; and the
office's determination shall be provided to the applicant in writing.
(3)
Upon approval the applicant shall complete a written oath as follows: 'I do
solemnly swear (or affirm) that I will conduct myself as a process server truly
and honestly, justly and uprightly, and according to law; and that I will
support the Constitution of the State of Georgia and the Constitution of the
United States. I further swear (or affirm) that I will not serve any papers or
process in any action where I have a financial or personal interest in the
outcome of the matter or where any person to whom I am related by blood or
marriage has such an interest.'
(c)
Renewal
and revocation of
certification.
A certified process server shall be required to renew his or her certification
every three years in such manner and at such time as required by the
Administrative Office of the Courts. Any certified process server failing to
renew his or her certification shall no longer be approved to serve as a
certified process server. At the time of renewal, the certified process server
shall provide evidence that he or she has completed three annual five-hour
courses of continuing education which courses have been approved by the
Administrative Office of the Courts and has undergone an updated criminal record
check. The certification of a process server may be revoked for cause at any
time, in accordance with procedures established by the Administrative Office of
the Courts.
(d)
Fees.
The Administrative Office of Courts shall establish fees to be charged for the
administration of this Code section such that the revenue generated from such
fees shall approximate the total direct and indirect costs of administering this
Code section.
(e)
Appeals.
Any disciplinary action of the board may be appealed by the aggrieved person to
the Judicial Council, which shall have the power to review the determination by
the Administrative Office of the Courts.
(f)
Service
by off-duty deputy
sheriff. An
off-duty deputy sheriff may serve process with the approval of the sheriff by
whom he or she is employed and shall be exempt from certification under this
Code section.
(g)
Impersonation
of public officer or
employee. It
shall be unlawful for a certified process server to falsely hold himself or
herself out as a peace officer or public officer or employee and any violation
shall be punished as provided in Code Section 16-10-23.
(h)
Notice
to sheriff.
(1) Prior to the first time that a certified process server serves process in
any county he or she shall file with the sheriff of the county a written notice,
in such form as shall be prescribed by the Administrative Office of the Courts,
of his or her intent to serve process in that county. Such notice shall only be
accepted by a sheriff who allows certified process servers to serve process in
his or her county. Such notice shall be effective for a period of one year; and
a new notice shall be filed before the certified process server again serves
process in that county after expiration of the one-year period.
(2)
The provisions of this subsection shall not apply to a certified process server
who was appointed by the court to serve process or who was appointed as a
permanent process server by a court.
(i)
Credentials.
The Administrative Office of the Courts shall at the time of certification
provide credentials in the form of an identification card to each certified
process server. The identification card shall be designed to clearly distinguish
it from any form of credentials issued to certified peace officers and will not
be in the shape or form of a law enforcement badge. A certified process server
shall display his or her credentials at all times while engaged in the service
of process.
(j)
False
representation.
It shall be unlawful for any person who is not a certified process server to
hold himself or herself out as being a certified process server. Any person who
violates this subsection shall upon conviction be guilty of a
misdemeanor.
(k)
Sunset
and legislative review.
This Code
section shall be repealed effective July 1, 2015, unless continued in effect by
the General Assembly prior to that date. At its 2013 regular session the
General Assembly shall review this Code section to determine whether it should
be continued in effect; and the Administrative Office of the Courts shall make a
report to the General Assembly to assist in that
review."
SECTION
5.
This
Act shall become effective on July 1, 2010.
SECTION
6.
All
laws and parts of laws in conflict with this Act are repealed.