Does a company that supplies off-duty law enforcement officers for highway work-zone traffic control need to register as a private security company in Tennessee?

Plain-English summary

A deputy commissioner asked the AG four questions about how the Private Protective Services Licensing and Regulatory Act treats companies that supply law enforcement officers for traffic control in highway work zones, and about whether law enforcement agencies themselves are subject to the Act.

Question 1: Does a company providing only commissioned, uniformed law enforcement officers for work-zone traffic control need to register?
No. Tenn. Code Ann. § 62-35-103(a)(15)(A) specifically exempts companies that use or provide "certified law enforcement officers to others exclusively for traffic control purposes within temporary work zones located in the public right-of-way and established in accordance with the manual on uniform traffic control devices (MUTCD)."

Question 2: Can the Commissioner of Commerce and Insurance require an unregistered company to produce employee rosters to prove it qualifies for the exemption?
No. Because the Act "does not apply to" exempt companies under § 62-35-103(a)(15)(A), the commissioner's inspection and investigation authority under § 62-35-129(e) does not reach them. Allowing a roster-demand would re-impose regulatory oversight the legislature intended to remove.

Question 3: Are law enforcement agencies themselves a "person" under the Act's definition?
No. The Act's definition of "person" in § 62-35-102(8) lists individuals, firms, associations, companies, partnerships, corporations, nonprofits, institutions, or similar entities. Government agencies are not in the list, and the default Tennessee rule from Johnson City v. Cowles Commc'n, Inc., 477 S.W.2d 750 (Tenn. 1972), is that "neither the state, a political subdivision thereof, nor a municipal corporation, is a 'person' within the meaning of a statute using the term" absent contrary legislative direction.

Question 4: Must law enforcement agencies that contract out their officers as secondary employment be licensed?
Moot in light of the answer to Question 3.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Background and statutory framework

The Private Protective Services Licensing and Regulatory Act, Tenn. Code Ann. § 62-35-101 et seq., regulates two related industries:

• Contract security companies under § 62-35-102(6): persons engaged in the business of providing security guard and patrol services on a contractual basis. They need a license from the commissioner under § 62-35-104.
• Proprietary security organizations under § 62-35-102(10): persons or departments that employ security guards solely for their own purposes. They need to notify the commissioner in writing under § 62-35-123.

Unless an exemption applies, anyone providing security services to others for compensation, or directly employing security guards, is subject to the Act.

The work-zone traffic-control exemption (§ 62-35-103(a)(15)(A)). The legislature carved out a specific exception for companies that use or provide certified law enforcement officers to others "exclusively for traffic control purposes within temporary work zones located in the public right-of-way and established in accordance with the manual on uniform traffic control devices (MUTCD)." The combination of "exclusively for traffic control purposes" and "within temporary work zones" and the MUTCD reference creates a narrow but clean carve-out. The companies might otherwise count as "contract security companies" or "proprietary security organizations," but the legislature pulled them out of the Act.

The commissioner's authority is bounded by the Act's scope. Under § 62-35-129(e), the commissioner can conduct inspections and investigations of "contract security companies, proprietary security organizations and security officers/guards." But that authority extends only to those entities the Act covers. An exempt entity is not a contract security company or proprietary security organization for purposes of the Act, so the commissioner cannot demand records to verify exemption status. The AG framed this as a structural limit: requiring a roster would be a re-regulation of the very category the legislature exempted.

The "person" definition and government agencies. § 62-35-102(8) defines person as "any individual, firm, association, company, partnership, corporation, nonprofit organization, institution or similar entity." Tennessee's default rule under Johnson City v. Cowles: governmental entities are not "persons" within a statute using that term, absent contrary legislative direction. None of the listed categories cover state or local government agencies. So a sheriff's office or a city police department is not a "person" under the Act and need not register.

Implications.

• A general contractor or safety vendor that supplies only law enforcement officers for work zones is free of the Act's licensing scheme.
• The commissioner cannot use roster demands as a backdoor regulation of exempt companies.
• Police departments that take on outside work (special-events traffic duty, work-zone details) are not "persons" under the Act, so no licensing applies to the agency itself.
• Question 4 was an "if-then" follow-up that became moot.

Common questions

Q: We supply off-duty police officers for highway work-zone traffic control. Do we need to register as a security company?
A: According to this opinion, no, as long as you provide only certified law enforcement officers and only for traffic control purposes in temporary work zones established under the MUTCD. § 62-35-103(a)(15)(A) exempts you.

Q: Can the commissioner ask for our employee roster to verify the exemption?
A: According to this opinion, no. The Act doesn't apply to you, so the commissioner's regulatory authority doesn't reach you.

Q: What if we also provide security guards for things other than traffic control?
A: The exemption is for companies that provide officers "exclusively" for traffic control in temporary work zones. Mixing in other security services would forfeit the exemption for the company.

Q: Are police departments themselves licensed under this Act?
A: According to this opinion, no. A law enforcement agency is not a "person" as defined by § 62-35-102(8), so the Act does not apply to the agency.

Q: What about a private off-duty officer association incorporated as a nonprofit?
A: A nonprofit corporation is a "person" under the Act. Whether it falls within the work-zone exemption depends on whether it provides law enforcement officers exclusively for traffic control in temporary work zones.

Q: Does this exemption apply to non-work-zone settings?
A: No. The exemption is specifically tied to "temporary work zones located in the public right-of-way and established in accordance with the manual on uniform traffic control devices (MUTCD)." Other off-duty officer arrangements (special events, private property security) fall outside this specific exemption.

Citations and references

Statutes:

• Tenn. Code Ann. § 62-35-101 et seq.
• Tenn. Code Ann. § 62-35-102(6), (8), (10)
• Tenn. Code Ann. § 62-35-103
• Tenn. Code Ann. § 62-35-103(a)(15)(A)
• Tenn. Code Ann. § 62-35-104
• Tenn. Code Ann. § 62-35-123
• Tenn. Code Ann. § 62-35-129
• Tenn. Code Ann. § 62-35-130

Cases:

• Johnson City v. Cowles Commc'n, Inc., 477 S.W.2d 750 (Tenn. 1972)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-028.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
April 11, 2017
Opinion No. 17-28
Employment of Law Enforcement Officers as Private Security Personnel

Question 1
Is a company that uses or provides only commissioned, uniformed law enforcement officers to direct traffic in temporary work zones required to be registered as a contract security company and/or a proprietary security organization?

Opinion 1
No. The registration requirements of the Private Protective Services Licensing and Regulatory Act ("Act") do not apply to companies that use or provide certified law enforcement officers to others exclusively for traffic control purposes within temporary work zones. Tenn. Code Ann. § 62-35-103(a)(15)(A).

Question 2
If the answer to question 1 is "no," what authority, if any, does the Commissioner have to require an unregistered company that employs law enforcement officers to direct traffic in a temporary work zone to produce a roster of its employees as proof that it is exempted from the Act pursuant Tenn. Code Ann. § 62-35-103?

Opinion 2
Since the Act "does not apply to" companies that employ law enforcement officers exclusively to direct traffic in temporary work zones, Tenn. Code Ann. § 62-35-103(a)(15)(A), the Commissioner has no authority to regulate or inspect or investigate them.

Question 3
Are law enforcement agencies considered a "person" as defined by Tenn. Code Ann. § 62-35-102(8)?

Opinion 3
No. A law enforcement agency is not a "person" as defined by the Act.

Question 4
If the answer to question 3 is "yes," must law enforcement agencies that contract to provide law enforcement officers, as a matter of secondary employment, be licensed as a contract security company and/or a proprietary security organization?

Opinion 4
In light of Opinion 3, this question is now moot.

ANALYSIS

The Private Protective Services Licensing and Regulatory Act ("Act"), Tenn. Code Ann. § 62-35-101 et seq., governs the registration, licensing, and conduct of "contract security companies" and "proprietary security organizations." "Except as otherwise provided in this chapter, it is unlawful for any person to act as a contract security company without having first obtained a license from the commissioner." Tenn. Code Ann. § 62-35-104. Likewise, it is unlawful for any person to act as a proprietary security organization without first having notified the Commissioner in writing. Tenn. Code Ann. § 62-35-123.

A "contract security company" is defined as "any person engaging in the business of providing or undertaking to provide a security guard and patrol service on a contractual basis for another person." Tenn. Code Ann. § 62-35-102(6). A "proprietary security organization" is defined as "any person or department of the organization that employs a security guard/officer solely for the person in an employer/employee relationship." Tenn. Code Ann. § 62-35-102(10). The Act defines a "person" as "any individual, firm, association, company, partnership, corporation, nonprofit organization, institution or similar entity." Tenn. Code Ann. § 62-35-102(8). The Act lists persons who are exempt from its provisions. See Tenn. Code Ann. § 62-35-103. Unless specifically exempted by the Act, any person who provides security services to another for compensation or directly employs a security guard must comply with the applicable provisions of the Act.

The Act is administered and enforced by the Commissioner of Commerce and Insurance ("Commissioner"), who "may promulgate rules that are reasonably necessary to effectuate the purposes" of the Act. Tenn. Code Ann. § 62-35-129(a)-(b). The Commissioner may also "at all reasonable hours conduct inspections/investigations of contract security companies, proprietary security organizations and security officers/guards" to ensure compliance with the Act. Tenn. Code Ann. § 62-35-129(e). Additionally, the Commissioner is authorized to take disciplinary action against those who violate the Act. Tenn. Code Ann. § 62-35-130.

1. Registration of Companies Using or Providing Law Enforcement Officers to Direct Traffic

Companies that use or provide "certified law enforcement officers to others exclusively for traffic control purposes within temporary work zones located in the public right-of-way and established in accordance with the manual on uniform traffic control devices (MUTCD)" are specifically exempted from the Act. Tenn. Code Ann. § 62-35-103(a)(15)(A). In other words, the legislature carved out an exception to the Commissioner's regulatory authority for companies that employ or provide law enforcement officers to others exclusively to control traffic in temporary work zones. Even though these companies might otherwise be "contract security companies" or "proprietary security organizations" subject to regulation, they are nevertheless expressly exempt from the Act pursuant to Tenn. Code Ann. § 62-35-103(a)(15)(A).

2. Commissioner's Authority to Regulate Unregistered Companies

The Commissioner has authority to administer and enforce the Act. See Tenn. Code Ann. § 62-35-129. In particular the commissioner may "conduct inspections/investigations of contract security companies, proprietary security organizations and security officers/guards to ensure compliance with this chapter." Tenn. Code Ann. § 62-35-129(e).

But the Commissioner's regulatory reach is limited to those persons subject to the Act's provisions. Since the Act "does not apply to" companies that employ law enforcement officers exclusively to direct traffic in temporary work zones, Tenn. Code Ann. § 62-35-103(a)(15)(A), Tenn. Code Ann. § 62-35-129(e) does not apply to those companies, and, therefore, the Commissioner has no authority to regulate or inspect or investigate them. Allowing the Commissioner nevertheless to require these companies to produce a roster of their employees as to prove that they are entitled to the exemption would be contrary to the exempt status that the legislature intended.

3. Law Enforcement Agencies

The Act defines a "person" as "any individual, firm, association, company, partnership, corporation, nonprofit organization, institution or similar entity." Tenn. Code Ann. § 62-35-102(8). "Ordinarily, absent legislation, neither the state, a political subdivision thereof, nor a municipal corporation, is a 'person' within the meaning of a statute using the term." Johnson City v. Cowles Commc'n, Inc., 477 S.W.2d 750, 753 (Tenn. 1972). Here, the legislature did not include the state or local government in the Act's otherwise broad definition of a "person." Nor do any of the types of entities listed necessarily encompass governmental agencies. Accordingly, a law enforcement agency, which is a division of state or local government, is not a "person" subject to the Act.

4. Registration Requirement for Law Enforcement Agencies

In light of Opinion 3, Question 4 is now moot.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

S. JAE LIM
Assistant Attorney General

Requested by:
Mr. Brian T. McCormack
Deputy Commissioner for Regulatory Boards
Tennessee Department of Commerce and Insurance
500 James Robertson Parkway
Nashville, Tennessee 37243