imported post
nakedshoplifter wrote:
skidmark
wrote:
Virginia has a standard set of boilerplate clauses that are required to be in every contract, and one of those clauses is that any clause in the contract that would otherwise require the Commonwealth to violate any statelaw, ordinance or regulation is null and void. (I know I should be citing sources to back up my assertions, but after being retired from state employment where I executed contracts for, among other things,the lease of real estate, I no longer have access to the state computer system(s) where the policy manuals regardingthese matters are easily accessed. I suppose one could submit a FOIA request for a hard copy but I don;t want to spend the $$ just to prove a point. Anybody can go to the Dept. of General Services and ask to see the purchasing manual.) They all are dealt with in the state purchasing system if anybody wants to follow up and look at the manual. Additionally, the Commonwealth is prohibitted from executing contracts that violate state law, ordinance or regulation, so any lease that contained such a provision would become completely null and void with the option of the landlord continuing to rent out the property without the non-permitted clause/policy or terminating the lease per the boilerplate provisions.
OK, so we don't have hard evidence YET, but based upon what Skid wrote, I can not see how Springfield Mall could stop me from entering the mall while OC for the express purpose of doing bussiness at the DMV.
The DMV has a lease with Simon Properties, and they most likely have this clause in the lease. I think I have some phone calls to make.
Ok, Virginia Gen Services is tracking down the lease and will email me a copy (for free!) once they find it.
The problem here is that DMV allowed Simon Properties to write the lease. This is contrary to (IIRC) the Commonwealth's policy as written in the (cannot recall the exact title) Purchasing Manual. As I no longer have direct access to that manual, I cannot give a more precise interpretation of the matter.
However, given that the DMV is an agency of the Commonwealth, it is prohibitted from any action which would violate state law or deny a clearly defined right to a citizen. Thus, if (and that's a big IF) the current contract is viewed by a court as violating law (state preemption) or denying a right (try this instead of 2A -- denying the right to OC/CC in DMV because of the private property owner's policy when the citizen has busines at the DMV) then the contract provision, even as written by Simon Properties, is by other clauses in the contract already declared invalid.
That was a long sentence. Let me try to do it in short steps. You have a right to do business at any DMV office. There is no justification for making you go elsewhere just because the DMV at Springfield Mall is in anotherwise posted location. If DMV & Simon Properties did not arrange for access directly from the parking lot/outside to the DMV office, then any action by Simon Properties to limit your access to the DMV office is by both them and DMV a denial of your right to do business with a state agency. (It would be like, during the time of segregation,putting the Voter Registration office in a "Whites Only" business.)
As I view Exhibit B-1 of the lease, the DMV office has NO direct access from the outside. As I have not physically viewed/walked the property I cannot say for certain that is the case, but it sure looks like the DMV is "landlocked" inside the mall.
I do not see challenging the validity of the landlord-written lease as a profitable way to approach the issue. There are more times when state agencies fail to follow policy/[rocedure than they in fact comply. I do not see any court ordering that the lease be re-written using state boilerplate just to make DMV comply with purchasing policy - it would be seen mostly as a waste of time and money.
I do see a challenge based on the right of access to state goverment services. I am reluctant to think any judge would tell someone they could just go to any "freestanding" DMV office instead of the one most local or most conenient to them. The analogies to the striking down of segregation laws is just to plain and obvious for even a dunderhead to miss, he states boldly, knowing there probably is someone out there who will miss that.
The way I am currently thinking about this, the challenge should be brought against Simon Properties, and not DMV. No need to force the issue and have DMV move elsewhere when one might be able to make Simon Properties change their policy instead. My reasoning is as follows: if the SP policy is at fault, then SP should be liable for all the costs of DMV having to move if SP will not change their policy. Thus SP loses rent $$ and pays for moving DMV = large $$ loss + bad publicity for "conspiracy to violate citizens' right".
Instead, SP could put up "No Illeagal Weapons" or "Only Lawfully Allowed Weapons" signs - that would be effective notice for those who came to the mall intending to commit crimes by using said weapons, but not limit others who are lawfully carrying (OC or CC). Or SP could just forget the whole issue.
stay safe.
skidmark
