Zoo Atlanta’s operating agreement may prevent new gun ban
By John Ruch
Zoo Atlanta’s operating contract may prevent it from enforcing a new firearms ban that a gun activist recently questioned.
The “Operating Agreement” between the zoo and the Atlanta-Fulton County Recreation Authority (AFCRA) for its site in a public park explicitly calls the deal a “usufruct.” That’s a type of property right the Supreme Court of Georgia has ruled does not give a private leaseholder the ability to ban guns on public land.
However, no court has ruled on the zoo’s gun ban and it is possible legal arguments could be made about other aspects of the agreement. Even if the ban is unlawful, it can be challenged only by a civil lawsuit. Zoo Atlanta and the AFCRA did not immediately respond to comment requests about the agreement’s language.
The zoo occupies a large section of Atlanta’s Grant Park. The land is owned by the City of Atlanta, which leases it to AFCRA, which is also a government body. Zoo Atlanta, a private nonprofit whose formal name is the Atlanta-Fulton County Zoo, runs the zoo under the agreement with AFCRA.
Zoo Atlanta previously allowed legally permitted weapons to be carried on the property, but under a state law passed earlier this year, guns can now be carried without a permit. On Sept. 1, Zoo Atlanta instituted a new policy banning all weapons, including firearms, unless the carrier is a member of law enforcement. Zoo Atlanta has not explained the reason for the new ban but has cited a section of state law that allows private property owners or tenants to prohibit guns.
But gun activist Phillip Evans has argued that the zoo — owned by the City and leased to AFCRA — is public property, not private property. Under state law, guns generally cannot be banned from publicly owned land like city parks.
Evans gained the spotlight in 2014 for an unsuccessful lawsuit challenging a similar gun ban at the Atlanta Botanical Garden within the public Piedmont Park. Earlier this year, he forced the removal of a similar ban at another public-park venue, the Home Depot Backyard outside Mercedes-Benz Stadium. He also questioned the weapons ban policy of Music Midtown, a concert festival held in Piedmont Park, which may have caused its abrupt cancellation.
The Garden lawsuit established that Supreme Court precedent about the type of tenant that can ban guns within public land. The court distinguished between the usufruct tenants that cannot ban guns and “estate-for-years” tenants that have more private-property-style rights and thus can ban guns. The Garden’s lease with the City was not explicit about which type of lease it was, so courts had to sort it out based on some key indicators. Usufructs are often short-term leases giving the tenant little power over the property, while estates for years are often long-term leases whose tenants can do such major activities as the construction of buildings and may have to pay some taxes. But those are not hard and fast rules.
Evans has not legally challenged the zoo’s gun ban. John Monroe, vice president of the gun rights group GA2A and an attorney who represented Evans in the Garden case, previously told SaportaReport he has not examined the zoo issue, but, he said, “the result would depend on whether it is a usufruct or an estate for years.”
Zoo Atlanta has not responded directly to questions about the type of property rights it believes it has, but it has indicated an estate-for-years argument by noting the long-term nature of a deal that has been in place, with modifications, since 1985 and extends up to 50 years.
However, leases and operating agreements obtained from AFCRA through an Open Records request show that Zoo Atlanta is not the direct leaseholder. And the deal is explicitly stated to be a usufruct.
Section 3(b) of the 2007 operating agreement says it is AFCRA’s intent to convey to Zoo Atlanta “a mere usufruct and not an estate for years with respect to the Leasehold [the zoo property].”
The agreement remains in effect, according to other documents related to the zoo and its operations.
The zoo property is controlled through a 2007 “Governmental Agreement” between the City, AFCRA and Fulton County. The City is the owner of the zoo property and everything on it. Through the agreement, it leases the property to AFCRA. Zoo Atlanta is not a party to that lease deal and instead runs the zoo under the separate operating agreement with AFCRA, though it has to abide by the overall agreement’s terms.
The arrangement is certainly long-term and gives AFCRA the ability to demolish and construct buildings and the responsibility to pay any relevant taxes — abilities and responsibilities that, the agreement says, can transfer to Zoo Atlanta. The agreement also gives AFCRA significant supervision of Zoo Atlanta, including the power of reviewing any long-term contracts it enters and restrictions on the number of employees it can hire and what they can be paid.
Some of those elements might have room for legal interpretation, though the usufruct language remains explicit. If all of the property rights remain with AFCRA and the City, that makes the zoo publicly owned land, where any gun ban would be legally questionable.