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Thread: Cedar City ATV ordinance

  1. #1
    State Researcher
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    The following email was sent to various officials in Cedar City. It is self-explanatory.

    I've had a phone conversation with the City Attorney who was surprised to learn of these State limits on cities, but did not seem adverse to helping correct the situation.

    Please try to politely educate your own city council members as to State Premption and let me know of any violations you may encounter.

    Thank you.

    Charles

    Charles Hardy
    Public Policy Director
    GOUtah! (Gun Owners of Utah!)
    xxx
    xxx
    xxxx

    July 23, 2007

    Cedar City Mayor Gerald Sherratt
    Members of the Cedar City Council
    Cedar City Attorney

    Dear Mayor Sherratt, Honorable Members of the Cedar City Council, et al,

    I am writing regarding the recently enacted ATV ordinance which allows the use of ATVs on certain city roads, city ordinance 0509-07. I reference the version located at <http://www.cedarcity.org/Website/Ord...hicles.pdf>

    While GOUtah! takes no position one way or the other on issues such as ATVs, I would like to personally thank the city for adopting such an ordinance and accommodating the responsible use of ATVs on appropriate city streets. I sincerely hope that your experience over the next few months will demonstrate that reauthorization of this ordinance is acceptable next year near the sunset date.

    However, GOUtah! is concerned with one aspect of the ordinance as it relates to the possession of firearms. We believe and assert that one provision of the ordinance is in violation of State law. The ordinance prohibits the possession of a loaded firearm (or strung bow) while operating an ATV under the provisions of this ordinance. However, the City is prohibited under State statute from passing any ordinances relative to the lawful possession of firearms. It is lawful for persons with a valid permit to carry a firearm to have a loaded, and/or concealed firearm on our about their persons, including while operating motor vehicles.

    A call to your police department confirmed that officers currently believe the black letter of this ordinance would allow (though not mandate) an officer to cite anyone, including a person with a concealed firearms permit, for having a loaded firearm while operating an ATV on permitted city streets.

    I've spoken this morning with your city attorney and believe this issue can be easily corrected. You and your city attorney may wish to review the statutes included below as they relate to city authority to enact ordinances as well as official Utah Attorney General opinion 01-002 available at <http://www.attygen.state.ut.us/Opini...p01002.htm>, and Utah Supreme Court decision No 20030877, University of Utah v. Shurtleff, issued Sept. 8, 2006, available at <http://caselaw.findlaw.com/data/ut/c...090806.pdf>.

    Or, you may wish to contact Attorney General Mark Shurtleff, cc'd on this email, for official legal counsel on this matter of State law.

    I respectfully request that acknowledgement of receipt of this email be directed to either the above email or physical address. I further request that you immediately advise your officers of the legal exemption for those with concealed weapons permits and instruct them NOT to issue citations to such persons. Finally, I request that City Ordinance 0509-07 be amended so as to fully comply with State law regarding the rights of person with concealed weapons permits to possess loaded firearms while operating ATVs and other vehicles.

    We would suggest that Section 35B-5, paragraph (12) be amended to apply only to strung bows and that a paragraph (13) be created with a cross reference to UCA 76-10-505. This will allow those reading the ordinance to be aware of the State prohibition on carrying a loaded weapon on vehicles, and the Class B Misdemeanor for violation of this law, rather than the Class C Misdemeanor imposed under city Ordinance. It would also maintain the legal exemption for those with permits to carry firearms. Most importantly, it will allow the city to avoid violation of 76-10-500 since the city would no longer be attempting to regulate the possession of firearms.

    Sincerely,

    Charles Hardy
    Public Policy Director
    GOUtah!

    City Ordinance and State Statutes:

    Cedar City Ordinance:

    SECTION 35B-5 Prohibited Operation reads:

    "It shall be unlawful for any person to drive or operate any off-highway vehicle in the following ways or under the following circumstances, which are hereby declared to be unsafe and a public nuisance:

    ...

    "12. While carrying a strung bow or loaded firearm."

    GOUtah! can certainly understand the desires to maintain the greatest degree of safety possible. In general, a prohibition on loaded firearms (or strung bows) in or on any vehicle makes sense. Indeed, Utah Code, 76-10-505 prohibits that very thing under penalty of a class B misdemeanor:

    " 76-10-505. Carrying loaded firearm in vehicle or on street.
    " (1) Unless otherwise authorized by law, a person may not carry a loaded firearm:
    " (a) in or on a vehicle;
    " (b) on any public street; or
    " (c) in a posted prohibited area.
    " (2) A violation of this section is a class B misdemeanor. "

    However, 76-10-523 provides an exemption to this section for all persons holding a valid permit to possess a firearm:

    " 76-10-523. Persons exempt from weapons laws.

    ...

    " (2) The provisions of Subsections 76-10-504(1)(a), (1)(b), and Section 76-10-505 do not apply to any person to whom a permit to carry a concealed firearm has been issued:
    " (a) pursuant to Section 53-5-704; or
    " (b) by another state or county. "

    Most relevant to city ordinance 0509-07 is 76-10-500 and relevant definitions in 76-10-501:

    " 76-10-500. Uniform law.
    " (1) The individual right to keep and bear arms being a constitutionally protected right, the Legislature finds the need to provide uniform laws throughout the state. Except as specifically provided by state law, a citizen of the United States or a lawfully admitted alien shall not be:
    " (a) prohibited from owning, possessing, purchasing, selling, transferring, transporting, or keeping any firearm at his place of residence, property, business, or in any vehicle lawfully in his possession or lawfully under his control; or
    " (b) required to have a permit or license to purchase, own, possess, transport, or keep a firearm.
    " (2) This part is uniformly applicable throughout this state and in all its political subdivisions and municipalities. All authority to regulate firearms shall be reserved to the state except where the Legislature specifically delegates responsibility to local authorities or state entities. Unless specifically authorized by the Legislature by statute, a local authority or state entity may not enact or enforce any ordinance, regulation, or rule pertaining to firearms."

    " 76-10-501. Definitions.
    " As used in this part:

    ...

    "(19) "State entity" means each department, commission, board, council, agency, institution, officer, corporation, fund, division, office, committee, authority, laboratory, library, unit, bureau, panel, or other administrative unit of the state."

    As confirmed by the official AG opinion and Supreme Court decision referenced above, these sections of code invalidate the city ordinance ban on carrying a loaded firearm on an ATV insofar as that ban may be directed at persons with a permit to carry a concealed firearm. Persons without such a permit would be subject to conviction of Class B Misdemeanor under UCA 76-10-505.

    All experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. Thank heaven we do not permit a few to impose anarchy.

    "With Anarchy as an aim and as a means, Communism becomes possible."
    --Marxist.org

    "Communism and Anarchy [are], a necessary complement to one another. "
    --PETER KROPOTKIN, "Anarchism: its philosophy and ideal." 1898.

  2. #2
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    Thanks Charles!

    I would prefer to have Item #12 eliminated completely. It would be nice for people to be able to load up their bow and go hunting. Since it is almost impossible to "unstring" a compound bow, this provision virtually makes going from one's home to their bowhunting area impossible.

    But, I'm still very happy with your letter!

  3. #3
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    Saw the other post on Cedar City and it brought back memories of their ATV ordinance. So I did some research on an old thread.

    Thanks to GoUtah and Charles there is no longer a ban on carrying guns on ATVs in Cedar City.

    http://ut-cedarcity.civicplus.com/ar...2008-29-07.pdf

    http://ut-cedarcity.civicplus.com/ar...2009-05-07.pdf

    See Section 35-B-5, No. 11:
    http://www.cedarcity.org/DocumentView.aspx?DID=257

    Thanks Charles! Although we bicker sometimes I greatly appreciate your efforts for RKBA!

  4. #4
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    Charles,

    You are blessed with an ability I don't have.... KEEP UP THE GOOD WORK!
    RIGHTS don't exist without RESPONSIBILITY!
    If one is not willing to stand for his rights, he doesn't have any Rights.
    I will strive to stand for the rights of ANY person, even those folks with whom I disagree!
    As said by SVG--- "I am not anti-COP, I am PRO-Citizen" and I'll add, PRO-Constitution.
    If the above makes me a RADICAL or EXTREME--- So be it!

    Life Member NRA
    Life Member GOA
    2nd amendment says.... "...The right of the people to keep and bear arms SHALL NOT BE INFRINGED!"

  5. #5
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    Good work Charles!

  6. #6
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    Thanks guys. Working together on RKBA, we can continue to see the same kind of progress over the next few years that we've experienced over the last 15 or so years.

    Now is a fine time to see if you can get a short meeting with your State Senator or Representative and let him/her know how important RKBA is to you. Even a couple hours volunteering on the campaign of a good, or even moderately good candidate, or asking for a couple yard signs to distribute around the neighborhood can go a long way toward helping an elected official remember that gun owners helped him get into office....and that protecting and advancing our rights is a good thing to do while there.

    Charles
    All experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. Thank heaven we do not permit a few to impose anarchy.

    "With Anarchy as an aim and as a means, Communism becomes possible."
    --Marxist.org

    "Communism and Anarchy [are], a necessary complement to one another. "
    --PETER KROPOTKIN, "Anarchism: its philosophy and ideal." 1898.

  7. #7
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    combatcarry wrote:
    Saw the other post on Cedar City and it brought back memories of their ATV ordinance. So I did some research on an old thread.

    Thanks to GoUtah and Charles there is no longer a ban on carrying guns on ATVs in Cedar City.

    http://ut-cedarcity.civicplus.com/ar...2008-29-07.pdf

    http://ut-cedarcity.civicplus.com/ar...2009-05-07.pdf

    See Section 35-B-5, No. 11:
    http://www.cedarcity.org/DocumentView.aspx?DID=257

    Thanks Charles! Although we bicker sometimes I greatly appreciate your efforts for RKBA!
    I've looked this over, and while the language now seems to technically conform to State law in terms of allowing a person to carry a loaded gun if "otherwise allowed by State law", I note that State law has now changed such that a person does not need a permit to carry in order to legally carry a loaded handgun in or on a vehicle. A permit is still required to carry a loaded long gun on or in a vehicle.

    This is kind of low on my priority list, but when I get around to it, I may send Cedar City a thank you note for changing the ordinance and then point out that the law has once again changed. Really, cities and other local government agencies should just avoid passing ordinances dealing with guns at all (other than limits on discharge for cities) and instead rely upon State statutes.

    Charles

    All experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. Thank heaven we do not permit a few to impose anarchy.

    "With Anarchy as an aim and as a means, Communism becomes possible."
    --Marxist.org

    "Communism and Anarchy [are], a necessary complement to one another. "
    --PETER KROPOTKIN, "Anarchism: its philosophy and ideal." 1898.

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