Definitions

As used in this chapter, the term: (1) “Attorney General” means the Attorney General or his or her designee. (2) “Charitable organization” means any benevolent, philanthropic, patriotic, or eleemosynary (of, relating to, or supported by charity or alms) person, as that term is defined in this Code section, who solicits or obtains contributions solicited from the general public, any part of which contributions is used for charitable purposes; and any person who or which falsely represents himself, herself, or itself to be a charitable organization as defined by this paragraph. The term charitable organization shall not include a religious organization as defined in paragraph (12) of this Code section. (3) “Charitable purpose” means any charitable, benevolent, philanthropic, patriotic, or eleemosynary purpose for religion, health, education, social welfare, arts and humanities, environment, civic, or public interest; and any purpose which is falsely represented to be a charitable purpose as defined by this paragraph. (4) “Charitable sales promotion” means an advertising or sales campaign, conducted by a commercial coventurer, which represents that the purchase or use of goods or services offered by the commercial coventurer will benefit, in whole or in part, a charitable organization or purpose. (4.1) “Collection receptacle” means an unattended container, located outdoors, for the purpose of collecting donations of clothing, books, personal or household items, or other goods. Such term shall not include containers used for the purpose of collecting monetary donations. (5) “Commercial coventurer” means a person who for profit is regularly and primarily engaged in trade or commerce other than in connection with soliciting for charitable organizations or purposes and who conducts a charitable sales promotion. (6) “Contribution” means the promise or grant of any money or property of any kind or value. (7) “Educational institution” means an entity organized and operated exclusively for educational purposes and which either: 554 43-17-2 (A) Maintains a regular faculty and curriculum and has a regularly enrolled body of students in attendance at the place where its educational activities are regularly carried on; or (B) Is accredited by a nationally recognized, independent higher education accreditation body. (8) “Executive officer” means the chief executive officer, the president, the principal financial officer, the principal operating officer, each vice president with responsibility involving policy-making functions for a significant aspect of a person’s business, the secretary, the treasurer, or any other person performing similar functions with respect to any organization, whether incorporated or unincorporated. (9) “Fundraising counsel” means any person, other than a paid solicitor required to register under this chapter, who plans, advises, consults, or prepares material for a solicitation of charitable contributions within, into, or from this state and who does not either: (A) Solicit such contributions or employ, procure, engage, direct, or supervise any compensated person to solicit such contributions; or (B) Have custody or control of contributions. A natural person who is a volunteer, employee, or salaried officer of a charitable organization is not a fundraising counsel with respect to the charitable organization of which he or she is a volunteer, individual, or officer. An attorney, accountant, investment counselor, or banker who, solely incidental to his or her profession, renders professional services to a charitable organization, paid solicitor, or fundraising counsel or advises a person to make a charitable contribution is not a fundraising counsel as a result of such advice. (10) “General public” or “public,” with respect to a charitable organization, means any person in the State of Georgia without a membership in or other bona fide relationship with such charitable organization. (11) “Membership” or “member” means a status by which, for the payment of fees, dues, assessments, and other similar payments, an organization provides services to the payor and confers on the payor a bona fide right, privilege, professional standing, honor, or other direct benefit other than the right to vote, elect officers, or hold offices. The term “membership” or “member” shall not be construed to apply to a person on whom an organization confers a membership solely as a consideration for making a contribution. (12)(A) “Paid solicitor” means a person: (i) Other than a commercial coventurer who, for compensation, performs for a charitable organization any service in 555 43-17-2 connection with which contributions are, or will be, solicited within or from this state by such person or by any compensated person he or she employs, procures, engages, or contracts with, directly or indirectly, to so solicit; (ii) Who would be a fundraising counsel but for the fact that such person at any time has custody of contributions from a solicitation as defined by this chapter; or (iii) Who services a collection receptacle which purports, either through language appearing on the receptacle itself or otherwise, to be collecting items for the purpose of benefiting a charitable purpose or one or more entities espousing a charitable purpose. (B) A “paid solicitor” shall not mean: (i) A bona fide officer, employee, or volunteer of a charitable organization or commercial coventurer with respect to contributions solicited for that charitable organization; (ii) An attorney, investment counselor, accountant, or banker who, solely incidental to his or her profession, advises a person to make a charitable contribution or who holds funds subject to an escrow or trust agreement; (iii) A person who removes or delivers donations placed in a collection receptacle for a fixed fee and who does not otherwise directly or indirectly receive any of the proceeds of the sale of such donations or derive any other benefit from such activity; or (iv) A charitable organization registered with the Secretary of State which operates collection receptacles or a religious organization which operates collection receptacles. (13) “Person” means an individual, a corporation, a partnership, a limited liability company, an association, a joint-stock company, a trust, or any unincorporated organization. (14) “Religious organization” means an entity which: (A) Conducts regular worship services; or (B) Is qualified as a religious organization under Section 501(c)(3) of the Internal Revenue Code of 1986, as now or hereafter amended, that is not required to file IRS Form 990, Return of Organization Exempt From Income Tax, under any circumstances. (15) “Solicitation,” “solicitation of funds,” or “solicit” means the request or acceptance directly or indirectly of money, credit, property, financial assistance, or any other thing of value to be used for any charitable purpose; and such act shall be a consumer act or practice 556 43-17-3 or consumer transaction as defined by Part 2 of Article 15 of Chapter 1 of Title 10, the “Fair Business Practices Act of 1975.” (16) “Solicitor agent” means any person, other than a paid solicitor or commercial coventurer, who or which solicits charitable contributions for compensation. The term “solicitor agent” shall not include, with respect to a particular charitable organization which is either registered or exempt from registration under this chapter, any person who is a charitable organization itself or a bona fide officer, employee, or volunteer of such charitable organization which is either registered or exempt from registration under this chapter and who is neither supervised by, nor whose activities are directed by, any paid solicitor or its agent. (17) “State” means any state, territory, or possession of the United States, the District of Columbia, Puerto Rico, and the Virgin Islands. History. Code 1981, § 43-17-2, enacted by Ga. L. 1988, p. 490, § 1; Ga. L. 1993, p. 123, § 34; Ga. L. 1999, p. 81, § 43; Ga. L. 2000, p. 1657, § 1; Ga. L. 2008, p. 683, § 1/HB 1104; Ga. L. 2010, p. 559, §§ 1, 2/HB 863; Ga. L. 2011, p. 752, § 43/HB 142; Ga. L. 2015, p. 1088, § 29/SB 148; Ga. L. 2018, p. 191, § 1/HB 475. 43-17-3. Registration of paid solicitors; renewal; financial statements; denial of registration; amendments; contracts; solicitation notices; accounting; deposit of contributions; records. (a) No paid solicitor shall solicit contributions for a charitable purpose in or from this state or on behalf of a charitable organization, unless such paid solicitor is a registered paid solicitor pursuant to this Code section. No paid solicitor shall solicit contributions in person unless such paid solicitor has been qualified for such means of solicitation by the Secretary of State. (b) A fundraising counsel who at any time has custody of contributions from a solicitation for a charitable purpose must be registered as a paid solicitor and comply with the provisions of this Code section. (c)(1) A paid solicitor shall be registered with the Secretary of State prior to engaging in any solicitation. A registration shall expire on December 31 of the year in which the registration became effective and may be renewed for additional one-year periods upon application and the payment of the appropriate fee. (2) An application for registration as a paid solicitor may be made by any person and shall be accompanied by the registration fee set forth in subsection (d) of this Code section. Such application for registration shall be made in a manner prescribed by the Secretary of State, which may include, in whole or in part, electronic filing, shall 557 43-17-3 be verified by the applicant, shall be filed with the Secretary of State, and shall contain the information and documents set forth in this paragraph and such other information as may be prescribed by rules and regulations promulgated by the Secretary of State: (A) The name of the applicant; (B) The address of the principal place of business of the applicant and the addresses of all branch offices of the applicant in this state; (C) The form of business organization; the date of organization of the applicant; and if the business entity is a corporation or limited partnership, the date it qualified to do business in Georgia; (D) The names and business addresses of all general partners, limited partners, directors, affiliates, or executive officers of the applicant; if the applicant is a limited liability company, the names and business addresses of all members of the limited liability company; a statement of the limitations, if any, of the liability of any general partner, limited partner, director, member, affiliate, or executive officer; and a statement setting forth in chronological order the occupational activities of each such general partner, limited partner, director, member, affiliate, or executive officer during the preceding ten years; (E) A brief description of the general character of the business conducted or proposed to be conducted by the applicant; (F) A list of any other states in which the applicant is registered as a paid solicitor and, if registration of the applicant as a paid solicitor has ever been denied, revoked, suspended, or withdrawn or if such a proceeding is pending in any state, full details with respect thereto; (G) Whether the applicant or any general partner, limited partner, director, member, affiliate, or executive officer of such applicant has ever been subject to any injunction or disciplinary proceeding by any state agency involving any aspect of fund raising or solicitation, has ever been convicted of or charged with a misdemeanor of which fraud is an essential element or which involved charitable fund raising, or has ever been convicted of or charged with a felony and, if so, all pertinent information with respect to such injunction, disciplinary proceeding, conviction, or charge; (H) Whether the applicant or any general partner, limited partner, director, member, affiliate, or executive officer of such applicant has ever been subject to an order, consent order, or any other disciplinary or administrative proceeding pursuant to the unfair and deceptive acts and practices law of any state and, if so, all 558 43-17-3 pertinent information with respect to such order or proceedings; and (I) Written consent by each control person of the paid solicitor, as described by rule of the Secretary of State, to a criminal background investigation for the purpose of verification by the Secretary of State of information provided in the application. (3) If the paid solicitor will have physical possession or legal control over any contributions collected by it in or from this state, the applicant shall attach to the application for registration as a paid solicitor a financial statement for the fiscal year of the applicant which ended within one year prior to the date of filing unless the fiscal year of the applicant has ended within 90 days prior to the date of filing, in which case the financial statement may be dated as of the end of the fiscal year preceding such last fiscal year. Such financial statement shall be prepared in accordance with generally accepted accounting principles. (4) Within 15 business days after an applicant has fully complied with this subsection, the Secretary of State shall examine each paid solicitor’s registration application, solicitation notice, and contract to determine whether the applicable requirements of this chapter relating to the same are satisfied and shall register such applicant as a paid solicitor unless he or she shall find that there are grounds for denial as provided in Code Section 43-17-7. When the Secretary of State has registered an applicant as a paid solicitor, he or she shall immediately notify the applicant of such registration. In the event the Secretary of State has not notified the applicant of deficiencies or grounds for denial of the application within such period, the applicant may conduct himself or herself in a manner as if registered until and unless such applicant is so notified. (5) If the Secretary of State finds that there are sufficient grounds to deny the registration of the applicant as provided in Code Section 43-17-7, he or she shall issue an order refusing to register the applicant. The order shall state specifically the grounds for its issuance. A copy of the order shall be mailed to the applicant at his or her business address and to any charitable organization who proposes to employ such applicant. (6) Every registration under this Code section shall expire on December 31 of each year. The registration of a paid solicitor must be renewed each year by the submission of a renewal application containing the information required in an application for registration, except to the extent that the Secretary of State by rule does not require the resubmission of such information which has previously been included in an application or renewal application previously 559 43-17-3 filed; by the payment of the proper registration fee; and, if it would be required in the event of an initial application, by the filing of a financial statement as of a date within one year prior to the date of filing unless the fiscal year of the applicant has ended within 90 days prior to the date of filing, in which case the financial statement may be dated as of the end of the preceding fiscal year. Such financial statements shall be prepared in accordance with generally accepted accounting principles. (7) The registration of a paid solicitor shall be amended within 30 days to reflect a change of name, address, principals, state of incorporation, or other changes which materially affect the business of the paid solicitor. Such amendments shall be filed in a manner which the Secretary of State may prescribe by rule or regulation. (d) The fee for the initial registration of a paid solicitor shall be $250.00. The fee to amend the registration shall be $15.00. The annual renewal fee for a paid solicitor registration shall be $100.00. (e)(1) There shall be a contract between a paid solicitor and a charitable organization which shall be in writing, shall clearly state the respective obligations of the paid solicitor and the charitable organization, and shall state the amount of compensation that the paid solicitor will receive. Such compensation shall be stated as a fixed amount, as an amount to be derived from a formula, or as a percentage of the gross revenue derived from the solicitation campaign, subject to and in accordance with the provisions of paragraphs (2), (3), and (4) of this subsection. (2) If the compensation of the paid solicitor is contingent upon the number of contributions or the amount of revenue received from the solicitation campaign, the stated amount shall be expressed as a fixed percentage of the gross revenue. (3) If the compensation of the paid solicitor is not contingent upon the number of contributions or the amount of revenue received, the stated amount shall be a reasonable estimate, expressed as a percentage of the gross revenue, and the contract shall clearly disclose the assumptions upon which the estimate is based. The stated assumptions shall be based upon all the relevant facts known to the paid solicitor regarding the solicitation to be conducted as well as the past performance of solicitations conducted by the paid solicitor. (4) The compensation description required by this subsection shall exclude any amount which the charitable organization is to pay as expenses of the solicitation campaign, including the cost of merchandise or services sold or events staged. The contract shall clearly describe who shall pay such expenses, how they will be paid, and whether such payment is contingent upon any event or fact, includ560 43-17-3 ing, but not limited to, the amount of funds raised through the solicitation campaign. If any portion of the expenses are paid separately by the charitable organization apart from the other fees paid to the paid solicitor, the contract shall include a reasonable estimate of such expenses. (f) Prior to the commencement of each solicitation campaign the paid solicitor shall file with the Secretary of State a completed “solicitation notice” on forms prescribed by the Secretary of State. The Secretary of State may provide that said filing be made, in whole or in part, through electronic means. The solicitation notice shall include a copy of the contract described in subsection (e) of this Code section, the projected dates when soliciting will commence and terminate, the location and telephone number from which the solicitation will be conducted, the name and residence address of each person responsible for directing and supervising the conduct of the campaign, a statement as to whether the paid solicitor will at any time have custody of contributions, and a full and fair description of the charitable program for which the solicitation campaign is being carried out. (g) Within 90 days after a solicitation campaign has been completed, and on the anniversary of the commencement of a solicitation campaign lasting more than one year, the paid solicitor shall account to the charitable organization with whom it has contracted and to the Secretary of State for all contributions collected and expenses paid. The accounting shall be in the form of a written report, submitted to the charitable organization and to the Secretary of State, shall be retained by the charitable organization for three years, and shall contain the following information: (1) The total gross receipts; (2) A description of how the gross receipts were distributed, including an itemized list of all expenses, commissions, and other costs of the fundraising campaign and the net amount paid to the charitable organization for its charitable purposes after payment of all fundraising expenses, commissions, and other costs; (3) The signature of the charitable organization acknowledging its agreement with the accuracy of the report, or a statement from the paid solicitor stating the reasons why such signature has not been obtained within the prescribed period, including a summary of any communications from the charitable organization contesting the accuracy of the report; (4) With respect to any contributions other than monetary donations and securities, including, but not limited to, boats, motor vehicles, clothing, shoes, books, appliances, and other household items received as a result of solicitations by a paid solicitor: 561 43-17-3 (A) The names and addresses of any persons to whom such contributions were delivered by the paid solicitor, by the charitable organization whose name was used in connection with the solicitation, or by their agents; provided, however, that this subparagraph shall not require the names and addresses of donees or retail purchasers of consumer products which are delivered to a charitable organization to be given away or sold at retail by the charitable organization with the proceeds of such sales being used to further the stated charitable purpose of the organization; (B) The total consideration, if any, received by the paid solicitor, by the charitable organization, or by their agents from such persons for such contributions; and (C) The manner in which such consideration was calculated; and (5) Such other information as the Secretary of State by rule may require. (h) Each monetary contribution received by the paid solicitor shall, in its entirety and within three business days of its receipt, be deposited in an account at a federally insured financial institution. The account shall be in the name of the charitable organization with whom the paid solicitor has contracted and the charitable organization shall have sole control of all withdrawals from the account. (i)(1) The paid solicitor shall maintain during each solicitation campaign and for not less than three years after its completion, the following records: (A) The name and, if known to the paid solicitor, the address of each person pledging to contribute together with the date and amount of the pledge; (B) The name and residence address of each employee, agent, or other person, however styled, involved in the solicitation; (C) A record of all contributions at any time in the custody of the paid solicitor; (D) A record of all expenses incurred by the paid solicitor for which the charitable organization is liable for payment; (E) The location and account number of all accounts in which the paid solicitor has deposited revenue from the solicitation campaign; and (F) Such other records as may be prescribed by the Secretary of State by rule and regulation. (2) If the paid solicitor sells tickets to an event and represents that tickets will be donated for use by another, the paid solicitor shall also 562 43-17-3.1 maintain for the same period as specified in paragraph (1) of this subsection: (A) The name and address of those contributors donating tickets and the number of tickets donated by each contributor; and (B) The name and address of all organizations receiving donated tickets for use by others, including the number of tickets received by each organization. (3) All records of such paid solicitor are subject to such reasonable periodic, special, or other examinations by representatives of the Secretary of State, within or outside this state, as the Secretary of State deems necessary or appropriate in the public interest or for the protection of the public, provided that the Secretary of State shall not disclose this information except to the extent he or she reasonably deems necessary for investigative or law enforcement purposes. (j) Not later than 90 days following the end of each solicitation campaign, the paid solicitor shall provide to the charitable organization, at no cost, a copy of all records described in subsection (i) of this Code section. In the event any such campaign exceeds six months in length, such records shall be provided, in addition, not less than 30 days following the end of each six-month period. History. Code 1981, § 43-17-3, enacted by Ga. L. 1988, p. 490, § 1; Ga. L. 1993, p. 123, § 35; Ga. L. 1996, p. 1261, §§ 1, 2; Ga. L. 2000, p. 1657, § 2; Ga. L. 2005, p. 60, § 43/HB 95; Ga. L. 2008, p. 683, § 2/HB 1104; Ga. L. 2010, p. 559, § 3/HB 863. 43-17-3.1. Registration as a solicitor agent; application; denial; renewal; amendments; fees. (a) No solicitor agent shall solicit contributions on behalf of a charitable organization within or from this state, unless such solicitor agent is a registered solicitor agent pursuant to this Code section and is affiliated through employment or as an independent contractor pursuant to a written agreement with a paid solicitor or charitable organization which is either registered or exempt from registration. No solicitor agent shall solicit contributions in person unless such solicitor agent has been qualified for such means of solicitation by the Secretary of State. (b)(1) A solicitor agent shall register with the Secretary of State prior to engaging in any solicitation. Each registration shall expire on December 31 of each year and may be renewed for additional one-year periods upon application and the payment of the fee. (2) Applications for registration may be made by any person and shall be accompanied by the registration fee set forth in subsection (c) 563 43-17-3.1 PROFESSIONS AND BUSINESSES 43-17-3.1 of this Code section. Such application for registration shall be made in a manner prescribed by the Secretary of State, which may include, in whole or in part, electronic filing, shall be verified by the applicant, shall be filed with the Secretary of State, and shall contain the information and documents set forth in this paragraph and such other information as may be prescribed by rules and regulations promulgated by the Secretary of State: (A) The name of the applicant; (B) The address of each place of business of the applicant; (C) The name and address of the paid solicitor or charitable organization with which the solicitor agent will be affiliated by employment or as an independent contractor; (D) If the solicitor agent is to be an independent contractor, a copy of the contract setting forth the terms and conditions thereof; (E) A list of any other states in which the applicant is registered as a paid solicitor agent and, if any registration of the applicant under the charitable solicitation law of any state has ever been denied, revoked, suspended, or withdrawn or if such a proceeding is pending in any state, full details with respect thereto; (F) Whether the applicant has ever been subject to any injunction or disciplinary proceeding by any state agency involving any aspect of fund raising or solicitation, has ever been convicted of or charged with a misdemeanor of which fraud is an essential element or which involved charitable fund raising, or has ever been convicted of or charged with a felony and, if so, all pertinent information with respect to such injunction, disciplinary proceeding, conviction, or charge; (G) Whether the applicant has ever been subject to an order, consent order, or any other disciplinary or administrative proceeding pursuant to the unfair and deceptive acts and practices law of any state and, if so, all pertinent information with respect to such order or proceedings; (H) Whether the applicant seeks to be qualified to contact contributors and potential contributors in person, as distinguished from mail, telephonic, or electronic contact; and (I) With respect to applicants who seek to be qualified to contact contributors or potential contributors in person, written consent to a criminal background investigation for the purpose of verification by the Secretary of State of information provided in the application. (3) Except as provided in paragraph (7) of this subsection, within 15 business days after an applicant has fully complied with this 564 43-17-3.1 CHARITABLE SOLICITATIONS 43-17-3.1 subsection, the Secretary of State shall register such applicant as a solicitor agent unless he or she shall find that there are grounds for denial as provided in Code Section 43-17-7. When the Secretary of State has registered an applicant, he or she shall immediately notify the applicant of such registration. In the event the Secretary of State has not notified the applicant of deficiencies or grounds for denial of the application within such period, the applicant may conduct itself in a manner as if registered until and unless it is so notified. (4) If the Secretary of State finds that there are sufficient grounds to deny the registration of the applicant as provided in Code Section 43-17-7, he or she shall issue an order refusing to register the applicant. The order shall state specifically the grounds for its issuance. A copy of the order shall be mailed to the applicant at his or her business address and to any charitable organization or paid solicitor who proposes to employ such applicant. (5) Every registration under this Code section shall expire on December 31 of each year. The registration of a solicitor agent must be renewed each year by the submission of a renewal application containing the information required in an application for registration, except to the extent that the Secretary of State by rule does not require the resubmission of such information which has previously been included in an application or renewal application previously filed, and by the payment of the proper registration fee. (6) The registration of a solicitor agent shall be promptly amended to reflect a change of name or address or other changes in the information previously provided to the Secretary of State. Such amendments shall be filed in a manner which the Secretary of State may prescribe by rule or regulation. (7) With respect to applicants for solicitor agent seeking to be qualified to solicit in person, the applicant shall not be qualified to so solicit until the Secretary of State affirmatively notifies the applicant that he or she has been so qualified. (c) The fee for the initial registration of a solicitor agent shall be $50.00. The fee to amend the registration shall be $15.00. The annual renewal fee for a solicitor agent shall be $50.00. History. Code 1981, § 43-17-3.1, enacted by Ga. L. 2000, p. 1657, § 3; Ga. L. 2008, p. 683, § 3/HB 1104.