O.C.G.A. § 7-9-7 — Investigation; requirements and procedure for background checks

(a)(1) Upon receipt of the articles of incorporation and the ﬁlings and fees from the applicant as required under this chapter, the department shall conduct such investigation as it may deem necessary to ascertain whether it should approve the proposed merchant acquirer limited purpose bank. The department shall approve the charter of a merchant acquirer limited purpose bank if it determines in its discretion that: (A) The articles of incorporation and supporting items satisfy the requirements of this chapter; (B) The character and ﬁtness of the applicant, directors, and proposed officers are such as to warrant the belief that the business of the proposed merchant acquirer limited purpose bank will be honestly and efficiently conducted; and (C) The capital structure of the merchant acquirer limited purpose bank is adequate in relation to the amount and character of the anticipated business of the merchant acquirer limited purpose bank. (2) Within 90 days after receipt of the articles of incorporation and the ﬁlings and fees from the applicant as required by this chapter, the 816 7-9-7 department shall approve or disapprove the charter of the proposed merchant acquirer limited purpose bank. The department may impose conditions to be satisﬁed prior to the issuance of its approval of the charter of a merchant acquirer limited purpose bank. If the department, in its discretion, approves the charter of the proposed merchant acquirer limited purpose bank with or without conditions, it shall deliver its written approval of the articles of incorporation and charter to the Secretary of State and notify the applicant of its action. If the department, in its discretion, disapproves the charter of the proposed merchant acquirer limited purpose bank, it shall notify the applicant of its disapproval of the charter and state generally the unfavorable factors inﬂuencing its decision. The decision of the department shall be conclusive, except that it may be subject to judicial review as provided in Code Section 7-1-90. (b) No charter shall be issued if the department ﬁnds that the applicant, or any holding company, control person, director, officer, partner, or employee of the applicant, has been convicted of a felony in any jurisdiction or of a crime which, if committed within this state, would constitute a felony under the laws of this state. No control person, director, officer, partner, or employee of a merchant acquirer limited purpose bank shall have been convicted of a felony in any jurisdiction or of a crime which, if committed within this state, would constitute a felony under the laws of this state. For any merchant acquirer limited purpose bank that is transacting business under a charter approved by the department, the department shall have the suspension and removal powers provided for in Code Section 7-1-71 with respect to any control person, director, officer, partner, or employee of the merchant acquirer limited purpose bank who has been convicted of a felony in any jurisdiction or of a crime which, if committed within this state, would constitute a felony under the laws of this state. For the purposes of this article, a person shall be deemed to have been convicted of a crime if such person shall have pleaded guilty or nolo contendere to a charge thereof before a court or federal magistrate or shall have been found guilty thereof by the decision or judgment of a court or federal magistrate or by the verdict of a jury, irrespective of the pronouncement of sentence or the suspension thereof, and regardless of whether ﬁrst offender treatment without adjudication of guilt pursuant to the charge was entered, or an adjudication or sentence was otherwise withheld or not entered on that charge, unless and until such plea of guilty or such decision, judgment, or verdict shall have been set aside, reversed, or otherwise abrogated by lawful judicial process or until probation, sentence, or both probation and sentence of a ﬁrst offender have been successfully completed and documented, or unless the person convicted of the crime shall have received a pardon thereon from the President of the United States or the governor or other pardoning authority in the 817 7-9-7 jurisdiction where the conviction occurred, or shall have received an official certiﬁcation of pardon granted by the state’s pardoning body where the conviction occurred which removes the legal disabilities resulting from such conviction and restores civil and political rights. (c) As used in this Code section, the term “conviction data” means a record of a ﬁnding, verdict, or plea of guilty or plea of nolo contendere with regard to any crime, regardless of whether an appeal of the conviction has been sought. The department shall be authorized to obtain conviction data with respect to any applicant, holding company, merchant acquirer limited purpose bank, or person who is a control person, director, officer, partner, or employee of the applicant or merchant acquirer limited purpose bank. The department may directly submit to the Georgia Crime Information Center two complete sets of ﬁngerprints of such person, together with the required records search fees and such other information as may be required. Fees for background checks that the department administers shall be sent to the department by applicants and merchant acquirer limited purpose banks together with such ﬁngerprints. (d) Upon request by the department, each applicant, holding company, or merchant acquirer limited purpose bank or any person who is a control person, director, officer, partner, or employee of the applicant or merchant acquirer limited purpose bank shall submit to the department two complete sets of ﬁngerprints, the required records search fees, and such other information as may be required. Fees for background checks that the department administers shall be submitted to the department by applicants and merchant acquirer limited purpose banks together with two complete sets of ﬁngerprints, and the department is authorized to net such fees to recover any costs incurred by the department related to running the background checks. Upon receipt of ﬁngerprints, fees, and other required information, the Georgia Crime Information Center shall promptly transmit one set of ﬁngerprints to the Federal Bureau of Investigation for a search of bureau records and an appropriate report and shall retain the other set and promptly conduct a search of its own records and records to which it has access. The Georgia Crime Information Center shall notify the department in writing of any derogatory ﬁnding, including, but not limited to, any conviction data regarding the ﬁngerprint records check, or if there is no such ﬁnding. All conviction data received by the department or by the applicant or merchant acquirer limited purpose bank shall be used by the party requesting such data for the exclusive purpose of carrying out the responsibilities of this article, shall not be a public record, shall be conﬁdential, and shall not be disclosed to any other person or agency except to any person or agency which otherwise has a legal right to inspect the ﬁle. All such records shall be maintained by the department and the applicant or merchant acquirer limited purpose bank pursuant 818 7-9-7 to laws regarding such records and the rules and regulations of the Federal Bureau of Investigation and the Georgia Crime Information Center, as applicable. (e) Every applicant and merchant acquirer limited purpose bank shall be authorized and required to obtain and maintain the results of background checks on employees. Such background checks shall be handled by the Georgia Crime Information Center pursuant to Code Section 35-3-34 and the rules and regulations of the Georgia Crime Information Center. Applicants and merchant acquirer limited purpose banks shall be responsible for any applicable fees charged by the Georgia Crime Information Center. An applicant or merchant acquirer limited purpose bank may only employ a person whose background data has been checked and been found to be in compliance with all lawful requirements prior to the initial date of hire. This provision does not apply to control persons, directors, officers, or partners, whose backgrounds have been investigated through the department before taking office, beginning employment, or securing ownership. Upon receipt of information from the Georgia Crime Information Center that is incomplete or that indicates an employee has a criminal record in any state other than Georgia, the employer shall submit to the department two complete sets of ﬁngerprints for such person, together with the applicable fees and any other required information. The department shall submit such ﬁngerprints as provided in subsection (d) of this Code section. (f) Upon request by the department, an applicant or merchant acquirer limited purpose bank must take all steps necessary to have an international criminal history background check performed on any control person, director, officer, partner, or employee. The results of such international criminal history background check must be provided to the department. (g) Applicants and merchant acquirer limited purpose banks shall have the primary responsibility for obtaining background checks on employees. The department shall be entitled to review the ﬁles of any applicant or merchant acquirer limited purpose bank to determine whether the required background checks have been run and whether all employees are qualiﬁed. The department shall be authorized to discuss the status of employee background checks with applicants or merchant acquirer limited purpose banks. Notwithstanding any other provisions in this article, the department shall retain the right to obtain conviction data on employees of applicants and merchant acquirer limited purpose banks. (h) In the event the department denies an application to charter a merchant acquirer limited purpose bank or an application to own or control a merchant acquirer limited purpose bank, the applicant may 819 7-9-9 submit a new application at any time following notice of ﬁnal denial. The applicant shall not be prejudiced by any prior denials by the department. History. Code 1981, § 7-9-7, enacted by Ga. L. 2012, p. 43, § 1/HB 898; Ga. L. 2015, p. 344, § 38/HB 184; Ga. L. 2016, p. 864, § 7/HB 737. 7-9-8. Issuance of certiﬁcate of incorporation or certiﬁcate of organization. The Secretary of State shall immediately issue a certiﬁcate of incorporation or certiﬁcate of organization to a proposed merchant acquirer limited purpose bank upon submission of: (1) Written approval of the articles of incorporation by the department with a copy attached; (2) An affidavit executed by the duly authorized agent or publisher of a newspaper swearing that the articles of incorporation or a summary statement publication as provided for in Code Section 7-9-5 have been published; and (3) All required fees and charges required by law so long as name of the proposed merchant acquirer limited purpose bank continues to be reserved or is available. The Secretary of State shall retain on ﬁle a copy of the certiﬁcate, the articles of incorporation, the department’s approval of the articles of incorporation, and the publisher’s certiﬁcate. History. Code 1981, § 7-9-8, enacted by Ga. L. 2012, p. 43, § 1/HB 898; Ga. L. 2024, p. 354, § 1-41/HB 876, effective July 1, 2024. Amendments. The 2024 amendment, effective July 1, 2024, inserted “or certiﬁcate of organization” in the introductory language. 7-9-9. Corporate existence; shareholders; authority to regulate and supervise sale of shares; legal effect of incorporation certiﬁcate; when business may begin. (a) The corporate existence of the merchant acquirer limited purpose bank shall begin upon the issuance of a certiﬁcate of incorporation by the Secretary of State. Those persons who subscribed for shares prior to ﬁling of the articles, or their assignees, shall be shareholders in the merchant acquirer limited purpose bank. The department shall have full authority to regulate and supervise the activities of promoters, incorporators, subscribers for shares, and all persons soliciting offers to subscribe for shares in any merchant acquirer limited purpose bank established under this chapter. Any corporation in the process of seeking approval of a charter as a merchant acquirer limited purpose 820 7-9-10 bank shall be classiﬁed as a merchant acquirer limited purpose bank in formation and persons named in the articles of incorporation or approved by the department as initial directors of such entity shall not be considered “agents” or “broker-dealers” as deﬁned in Code Section 10-5-2. (b) A certiﬁcate of incorporation shall be conclusive evidence that a merchant acquirer limited purpose bank has been incorporated; however, the state may institute proceedings to dissolve, wind up, and terminate a merchant acquirer limited purpose bank in conformity with Code Section 7-1-92 and applicable provisions of this chapter. (c) A merchant acquirer limited purpose bank may begin business when: (1) Capital stock of the merchant acquirer limited purpose bank satisﬁes the requirements of Code Section 7-9-11; (2) Bylaws of the merchant acquirer limited purpose bank have been ﬁled with the department; (3) A registered agent and registered office for the merchant acquirer limited purpose bank has been designated in conformity with Code Section 7-1-132; (4) The merchant acquirer limited purpose bank has been organized and is ready to begin the business for which it was incorporated; (5) All conditions imposed by the department in giving its approval of the charter of the proposed merchant acquirer limited purpose bank under this chapter have been satisﬁed; and (6) The department has received an affidavit attesting that the requirements of this subsection have been satisﬁed signed by the president or secretary and at least a majority of the directors of the merchant acquirer limited purpose bank. History. Code 1981, § 7-9-9, enacted by Ga. L. 2012, p. 43, § 1/HB 898. 7-9-10. Liability of applicant beginning business before authorized.