Process for changing County Codes for Fairfax

bohdi · Jan 5, 2010

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Right, and again, the whole issue revolves around two parts:

1) Fairfax County Code has this in it

2) These twoparts from theFairfax County Code is in the Fire Marshalls checklist as bullet points for day care providers - Health and Safety inspection sheet.

Not all Fire Marshalls will fail a day care provider, a HOME day care provider. Some will ignore it, some won't. It's that inconsistency that is part of the problem. If the wording on the check list were removed, no problem. However, if one is going to raise a stink that far, one ought to go all the way for the cause right?

TFred · Jan 5, 2010

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IANAL, but it would seem to me that the only thing the Fairfax County code could say and still be in compliance with § 15.2-915 would have to be directly traceable back to § 18.2-56.2.

So instead of the current: (k) Firearms shall be stored unloaded and apart from ammunition. Firearms and ammunition shall be stored in a locked area with keys out of reach of children.

it would need to be worded something like: (k) Firearms shall not be recklessly left loaded and unsecured in such a manner as to endanger the life or limb of any child under the age of fourteen.

That wording is directly traceable to the state code.

Who knows what "recklessly" means though?

The interesting thing about this is that it prohibits any specific requirement for a storage device, and so it removes the whole requirement from the purview of a building inspector, unless they just happen to notice a firearm "recklessly left loaded and unsecured".

TFred

bohdi · Jan 5, 2010

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TFred - sounds like changing it would be the correct answer to reflect what the statue says.

They question is asked, and if affirmative, an inspection of where the firearms are located/stored is done. "Are there any firearms in the house?" to make sure the storage is in compliance with county code.

Citizen · Jan 5, 2010

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I'm late to the conversation and can't contribute much. But, I would like to chip in one thought.

This is one of those subjects that can give the anti-gunners an opening. For example, "Omigod! Those open carry guys want to get rid of the ordinance protecting daycare kids from guns!!!!!"

While we certainly don't want children injured by an unsafely stored firearm; the anti-gunners aren't going to credit that attitude to us.

I'm of the opinion that public discussion, or discussion with the county, should include commentary to closedoors on anti-gunners twisting our purpose. For example, an express declaration of our stance that we are not about recklessly exposing children to guns.

TFred · Jan 5, 2010

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Citizen wrote:

I'm late to the conversation and can't contribute much. But, I would like to chip in one thought.

This is one of those subjects that can give the anti-gunners an opening. For example, "Omigod! Those open carry guys want to get rid of the ordinance protecting daycare kids from guns!!!!!"

While we certainly don't want children injured by an unsafely stored firearm; the anti-gunners aren't going to credit that attitude to us.

I'm of the opinion that public discussion, or discussion with the county, should include commentary to closedoors on anti-gunners twisting our purpose. For example, an express declaration of our stance that we are not about recklessly exposing children to guns.

I think that's always a good idea.

I have not had the opportunity to engage any public body for such a reason, but if I were to do so, I would simply write a letter to the body as a whole (I assume the staff would provide copies to each individual member), pointing out that their current code is in contradiction with state code, which exposes them to litigation that they would almost certainly lose, and in doing so, be further exposed to liability for court costs and all reasonable attorney fees incurred by the plaintiffs in such a case.

For this one, I would probably even suggest the change in wording, traceable back to the section we've just been talking about.

Most of these folks do not intend to break laws, this one is probably an oversight, left from before 915 came about.

Now if they tell you to go suck an egg... well then it's time to take the gloves off.

TFred

bohdi · Jan 5, 2010

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Agreed. The position that will be communicated - should it arise, is that having an unloaded gun in a safe is less safe during an home invasion/child napping than having a loaded gun in a safe....

Of course, by going the other route, county codes are in violation of state statues, you take that arguement away regarding safety. It's not a matter of safety, its a matter of being compliant with state law.

BTW - thanks for showing up to the party Citizen. Who gave you permission to take a holiday?

Citizen · Jan 5, 2010

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bohdi wrote:

SNIP Who gave you permission to take a holiday?

I've seen your devil-may-care grin and the playful glint in your eye. I know you are no stranger to the idea, "Who needs an excuse to play?"

wylde007 · Jan 5, 2010

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The way I see it §18.2-56.2 is statutory law making it a punishable offense to recklessly endanger a minor child under 14 through careless storage of a firearm.

§15.2-915 disallows localities and municipalities from enacting legislation further criminalizing or amending the statute by ordinance.

Doesn't that just mean they may only enforce up to as much as the statute permits and no further? And, unless there is a statutory prescription allowing for it, only sworn law enforcement may act on it.

That would lead me to believe that the Fire Marshall, NOT being a sworn law enforcement official, would have no authority, regardless of the local ordinance.

simmonsjoe · Jan 5, 2010

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TFred wrote:

IANAL, but it would seem to me that the only thing the Fairfax County code could say and still be in compliance with § 15.2-915 would have to be directly traceable back to § 18.2-56.2.

So instead of the current: (k) Firearms shall be stored unloaded and apart from ammunition. Firearms and ammunition shall be stored in a locked area with keys out of reach of children.

it would need to be worded something like: (k) Firearms shall not be recklessly left loaded and unsecured in such a manner as to endanger the life or limb of any child under the age of fourteen.

That wording is directly traceable to the state code.

Who knows what "recklessly" means though?

The interesting thing about this is that it prohibits any specific requirement for a storage device, and so it removes the whole requirement from the purview of a building inspector, unless they just happen to notice a firearm "recklessly left loaded and unsecured".

TFred

I'm going to have to sort of disagree. Preemption restricts ANY law. It only allows STATE statues. Just copying the state statute doesn't make it valid, because it is still a local statute. It would be impossible to legally charge someone with (k) under local statute, you would have to charge them under the state one. This just needs to be deleted.

TFred · Jan 5, 2010

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simmonsjoe wrote:

TFred wrote:

IANAL, but it would seem to me that the only thing the Fairfax County code could say and still be in compliance with § 15.2-915 would have to be directly traceable back to § 18.2-56.2.

So instead of the current: (k) Firearms shall be stored unloaded and apart from ammunition. Firearms and ammunition shall be stored in a locked area with keys out of reach of children.

it would need to be worded something like: (k) Firearms shall not be recklessly left loaded and unsecured in such a manner as to endanger the life or limb of any child under the age of fourteen.

That wording is directly traceable to the state code.

Who knows what "recklessly" means though?

The interesting thing about this is that it prohibits any specific requirement for a storage device, and so it removes the whole requirement from the purview of a building inspector, unless they just happen to notice a firearm "recklessly left loaded and unsecured".

TFred

Click to expand...

I'm going to have to sort of disagree. Preemption restricts ANY law. It only allows STATE statues. Just copying the state statute doesn't make it valid, because it is still a local statute. It would be impossible to legally charge someone with (k) under local statute, you would have to charge them under the state one. This just needs to be deleted.

I think you are right. Reading just the parts of 915 paragraph A that would apply here, it says:

No locality shall adopt or enforce any ordinance ... governing the ... storage ... of firearms ... other than those expressly authorized by statute.

The local ordinance could be changed to not exceed the requirement of the state law, but I think you are right, its very existence is what is prohibited, not its content.

There are numerous examples in state code where authority to write local ordinances is given, and it's explicit, i.e. the fingerprint requirement for CHPs.

You probably should have just gone ahead and disagreed all the way!

TFred

bohdi · Jan 12, 2010

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Got a letter from the County Attorney today. They are looking into the matter. It will be interesting to see how long it takes to look into.

TFred · Jan 12, 2010

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bohdi wrote:

Got a letter from the County Attorney today. They are looking into the matter. It will be interesting to see how long it takes to look into.

That's just "attorney-speak" for "we're going to charge some more hours to read up on this".

Not intending to offend any of our lawyer-friends out there...

TFred

bohdi · Jan 13, 2010

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Yeah I know. At some level it is nice to know that it has their attention. Now it will be interesting to see how long it takes for them to research it and return an answer. It couldn't be more than 2.5 hours......

TFred · Jan 22, 2010

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This is kind of spooky, I wonder if someone saw us talking about it here?

Or perhaps the county attorney who took the complaint decided to try to get the GA to give them an exception.

TFred

Mike · Jan 27, 2010

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bohdi wrote:

http://library1.municode.com/default-test/home.htm?infobase=10051&doc_action=whatsnew

Section 30-3-6. Physical facilities, equipment and operation.

...(k)Firearms shall be stored unloaded and apart from ammunition. Firearms and ammunition shall be stored in a locked area with keys out of reach of children.

It has come to my attention that FFC FD isn't always performing inspections in a uniform way. Someone I know recently was made aware of being out of compliance with this code. I understand the intent especially with a safe that has a primary securing method of keys only. Newer safes utilize spinning combination dials, keypads, or finger print recognition. I would like to try and get this section of code modified for this person to either have it re-worded or include an exception that firearms may be loaded as long as a keyless storage container is used.

Feedback?

Edit - I am in the process of asking the county for assistance but I didn't know if anyone here had tried to do this in the past.

Just a thought - maybe it would be best not to stir the pot just weeks before the General Assembly session bout these things - the bill makers are available and tend to put in bills. A better time to bring them up would be right after the Generall Assembly season ends, and a quick lawsuit afterwards if the local don't make it write.

Mike · Jan 27, 2010

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TFred wrote:

How is this entire section (k) not invalidated by preemption?

Because neither state statutes nor state regulations are governed by 15.2-915 - only localities and their agents and authorities are preempted.

bohdi · Jan 27, 2010

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A bit late for that now Mike.

TFred · Jan 27, 2010

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Mike wrote:

TFred wrote:

How is this entire section (k) not invalidated by preemption?

Click to expand...

Because neither state statutes nor state regulations are governed by 15.2-915 - only localities and their agents and authorities are preempted.

Yes, that question was immediately following, and in reference to quoted text from the Code of Fairfax County.

I think we're all on the same page now though.

TFred

Process for changing County Codes for Fairfax

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