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Thread: A conflict with preemption and pawn shops?

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    Regular Member TFred's Avatar
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    A conflict with preemption and pawn shops?

    I think I found a conflict within the state code regarding preemption and pawn shops.

    There is apparently some interest in Spotsylvania County to establish a local ordinance to require pawn shops to utilize electronic records for reporting pawn shop transactions. State law allows pawn shops (see code below) the option to keep electronic records, and a locality is also authorized to require them to keep their records electronically. However, there does seem to be a conflict here.

    Our pal, the preemption statute, 15.2-915, states in essence:

    "A. No locality shall adopt or enforce any ordinance ... governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms..."

    and also:

    "For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization."

    However, under the section of code regulating pawn shops, we find this in 54.1-4010. Daily reports:

    "Every pawnbroker shall prepare a daily report of all goods, articles or things pawned or pledged with him or sold to him that day and shall file such report by noon of the following day with the chief of police or other law-enforcement officer of the county, city or town where his business is conducted designated by the local attorney for the Commonwealth to receive it. The report shall include the pledgor's or seller's name, residence, and driver's license number or other form of identification, and a description of the goods, articles or other things pledged or sold and, unless maintained in electronic format, shall be in writing and clearly legible to any person inspecting it. A pawnbroker may compile and maintain the daily report in an electronic format and, if so maintained, shall file the required daily reports electronically with the appropriate law-enforcement officer through use of a disk, electronic transmission, or any other electronic means of reporting approved by the law-enforcement officer. Any local governing body, may by ordinance, require a pawnbroker to maintain and file a daily report electronically through the use of a disk, electronic transmission, or any other electronic means of reporting approved by the law-enforcement officer."

    You will notice that the second section of code does not specifically reference firearms, thus according to the preemption statute, any ordinance that requires a pawn shop to provide electronic records for firearms transctions to the local law enforcement agency is not authorized by the pawn shop statute.

    Of particular interest, the news is also reporting that they are considering a requirement to photograph both the pawned item and the person offering it. I can find no authorization for this in the state code, so it would seem to me that to impose such a requirement locally for firearms would be a clear violation of 15.2-915.

    Sounds like a problem. Thoughts?

    TFred
    Last edited by TFred; 05-04-2012 at 11:38 PM. Reason: ETAdd link

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    Campaign Veteran skidmark's Avatar
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    TFred,

    The requirement is to report all transactions. There is nothing that I read that regulates or restricts, in any way, the pawnshop's conduct regarding the "purchase, possession, transfer, ownership, carrying, storage or transporting of firearms...".

    If I have somehow missed something, please point it out to me.

    stay safe.
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    Regular Member TFred's Avatar
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    Quote Originally Posted by skidmark View Post
    TFred,

    The requirement is to report all transactions. There is nothing that I read that regulates or restricts, in any way, the pawnshop's conduct regarding the "purchase, possession, transfer, ownership, carrying, storage or transporting of firearms...".

    If I have somehow missed something, please point it out to me.

    stay safe.
    Well, in the English language that I speak, a "transaction" is what happens when you "transfer" the "ownership" of a firearm, which are two of the key words in the preemption statute. If a pawn shop is unwilling to convert over to an electronic record keeping system, then it seems to me that a local ordinance requiring them to do so would violate 15.2-915, in as far as it applied to firearms. We are talking about a local ordinance that would dictate how a pawn shop conducts its business in transferring the ownership of a firearm. 15.2-915 prohibits local ordinances that are not specifically allowed by state code.

    That is the conflict I see, since 15.2-915 requires "those expressly authorized" statutes to specifically refer to firearms. This one does not, thus 15.2-915 would seem to apply since the pawn shop statute was not written in such a manner to override 15.2-915.

    I agree it's not the strongest of arguments, and more of a technicality, but it is right there in the text.

    However, I do believe that a local ordinance requiring a photograph of the seller and firearm would clearly violate 15.2-915, open and shut, because I could find no authority whatsoever in the state code that authorizes a locality to require that.

    TFred

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    Campaign Veteran skidmark's Avatar
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    TFred,

    I'll let you have this windmill. While we didsagree, I understand where you are coming from and how you are structuring your argument.

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
    ----Allahpundit

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    Regular Member TFred's Avatar
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    Quote Originally Posted by skidmark View Post
    TFred,

    I'll let you have this windmill. While we didsagree, I understand where you are coming from and how you are structuring your argument.

    stay safe.
    Never been to Holland! I need to go!

    TFred

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    Regular Member Dreamer's Avatar
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    Quote Originally Posted by TFred View Post
    Never been to Holland! I need to go!

    TFred
    Actually, that was a Don Quixote reference, and the good Don's story was set in Spain.

    Windmills are indigenous technology to almost every culture on the planet, and were neither invented by nor isolated to the Dutch...

    Just sayin'...
    Last edited by Dreamer; 05-05-2012 at 06:03 PM.
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    Regular Member wylde007's Avatar
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    Exclamation

    To the best of my knowledge ALL pawnbrokers are required to inventory and submit records of transactions, with serial numbers, to the local law enforcement agency for their comparison against stolen property claims.

    This is not unusual nor illegal.

    However, the requirement to provide a photograph?

    Well, you can bet your sweet fanny that when you conduct a transaction you are being recorded on CCTV, so if there is an issue, you can be identified. This is also relatively standard practice.
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    Regular Member TFred's Avatar
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    Quote Originally Posted by wylde007 View Post
    To the best of my knowledge ALL pawnbrokers are required to inventory and submit records of transactions, with serial numbers, to the local law enforcement agency for their comparison against stolen property claims.

    This is not unusual nor illegal.

    However, the requirement to provide a photograph?

    Well, you can bet your sweet fanny that when you conduct a transaction you are being recorded on CCTV, so if there is an issue, you can be identified. This is also relatively standard practice.
    1. Yes, however, the reporting requirement is a state law, not a local ordinance.
    2. The photograph requirement would be based on a local ordinance, and a photo record with your firearm and serial number is a lot more intrusive than a CCV camera that someone would have to chase down and correlate the times, etc.

    TFred

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    TFred:

    The Plain Language of Virginias' Model Preemption Statute is Clear.

    The Purchase AND The Transfer of Firearms is RESERVED to The Commonwealth.

    If a Local Pawn Shop Ordinance were to Require Certain Reporting Information for a Firearm-related Pawn Shop Transaction, then, that Local Ordinance would Violate Virginia Code 15.2-915.

    A Violation of Virginia Code 15.2-915 is Recoverable in Damages.

    aadvark

    *** I Compelled My City and County Government where I Live to Remove Firearm-related Transactions from its Pawn Shop Ordinances in Accordance with The Laws of My State. ***

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    Founder's Club Member Grapeshot's Avatar
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    Quote Originally Posted by aadvark View Post
    TFred:

    The Plain Language of Virginias' Model Preemption Statute is Clear.

    The Purchase AND The Transfer of Firearms is RESERVED to The Commonwealth.

    If a Local Pawn Shop Ordinance were to Require Certain Reporting Information for a Firearm-related Pawn Shop Transaction, then, that Local Ordinance would Violate Virginia Code 15.2-915.

    A Violation of Virginia Code 15.2-915 is Recoverable in Damages.

    aadvark

    *** I Compelled My City and County Government where I Live to Remove Firearm-related Transactions from its Pawn Shop Ordinances in Accordance with The Laws of My State. ***
    Though neither the purchase or transfer is being blocked, stopped nor impeded, the requirement to report such transactions indeed would seem a violation under the term "administrative action" which is of course not allowed.

    Also seems that they violated the Dillon Rule too, whereas the state has not authorized a municipality to require such records.

    We do know that an FFL is bound to keep a record on all their transactions for 20 years, I believe. Just no requirement to give such records routinely to county or city governments.
    Old and treacherous will beat young and skilled every time.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Grapeshot View Post
    Though neither the purchase or transfer is being blocked, stopped nor impeded, the requirement to report such transactions indeed would seem a violation under the term "administrative action" which is of course not allowed.

    Also seems that they violated the Dillon Rule too, whereas the state has not authorized a municipality to require such records.

    We do know that an FFL is bound to keep a record on all their transactions for 20 years, I believe. Just no requirement to give such records routinely to county or city governments.
    But, do you transfer ownership when you pawn a gun. I've never done it but when I was an FFL, Pawn Shops had a special license, different record keeping requirements and if I remember right, no Federal paperwork to get it out of hock.

    They just marked out in the book.

  12. #12
    Founder's Club Member Grapeshot's Avatar
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    Quote Originally Posted by peter nap View Post
    But, do you transfer ownership when you pawn a gun. I've never done it but when I was an FFL, Pawn Shops had a special license, different record keeping requirements and if I remember right, no Federal paperwork to get it out of hock.

    They just marked out in the book.
    That's a good question, Peter and I don't know the answer to it.

    When I sold a gun through a local gun shop, they did not act as a typical broker but actually took ownership of it. If it didn't sell or I wanted it back, a full transfer would have been required - paper work and all.
    Old and treacherous will beat young and skilled every time.

    Yata hey

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    Campaign Veteran skidmark's Avatar
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    FFLs log everything into and out of their books if it stays with them for more than 24 hours. But my gunsmith does not do 4473s from and then back to me. Nor does he call in to see if I am a prohibited person.

    The only experience I have with getting firearms out of hock involved someone getting theirs out. The pawnbroker went through the whole nine yards of 4473s and instacheck. Have no idea what forms (other than bound book) they might have completed when receiving the firearms. My involvement took place later, consisting of the exchange of one medium of exchange for another.

    stay safe.
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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Grapeshot View Post
    That's a good question, Peter and I don't know the answer to it.

    When I sold a gun through a local gun shop, they did not act as a typical broker but actually took ownership of it. If it didn't sell or I wanted it back, a full transfer would have been required - paper work and all.
    That's a good example Grape and since I was a gunsmith I think the process is similar (remembering that was a long time ago and may have changed).

    In essence, I was just keeping the gun for the owner. I did have to enter it into the book when it came in and went out, but since the owner still owned it, no other paperwork was required.

    If I were to sell it, I would have to receive it in the book as inventory and do full paperwork when it sold.
    Last edited by peter nap; 05-08-2012 at 02:51 PM.

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    Accomplished Advocate user's Avatar
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    Not a problem. No conflict.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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