HB 1379: Child-care facilities... local regulation of possession and storage of firearms

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Yeah anyone wanna put up a template email for this one???

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Here's what I launched this morning. You might want to modify to your tastes as I wrote this first person.

Good morning Delegates,

I am writing to you today because it has come to my attention that House Bill 1379 may be coming to your committee (Militia, Police and Public Safety) this session and I would like you to not allow this bill out of the committee. This bill is being submitted because one locality is currently out of compliance with Virginia state law.

In early December of 2009, the Fairfax County Board of Supervisors was notified that Fairfax County is not complying with VA "§ 15.2-915. Control of firearms; applicability to authorities and local governmental agencies.

A. No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by § 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. 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."

I informed the County Board of Supervisors and the County Attorney, Mr. David P. Bobzien, that Fairfax County Code

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."

needed to be removed from Fairfax County Code and that these two sentences be removed from all forums used to conduct health and safety inspections on day care providers used by Fire Marshalls in Fairfax County who conduct these inspections.

On January 12, 2010 I received a response from the Fairfax County Attorney. The letter stated that the Fairfax County Attorney's office was looking into the matter of the county code being outdated, unenforceable, and illegal. Today the code is still outdated, unenforceable, and illegal.

It has come to my attention that Del. Sickels submitted to the VA General Assembly a House bill that is targeting this very issue, which is HB 1379. I requested that my local Delegate, Mr. Frey, find out how this came to be. The response I received is that the County Board of Supervisors took a closed door, back room meeting to discuss the issue, voted in favor of having Del. Sickels submit a bill to amend the state law instead of changing county code and complying with existing laws.

The true purpose of this bill is to attempt to place further restrictions on gun owners who have child care facilities. The submitted amendment isn’t going to make children at these facilities any more safe than they have been for the last 36 years. It would make them less safe as a day care provider would have to go through extra steps to get to their firearm, load it, and be in a position to use it if they had to. Allowing gun owners to store their weapons loaded while in a safe makes sense, as long as children to do not have access (keys/combination) to that safe.

Furthermore this bill wasn’t submitted in the spirit of safety or any other honorable cause, this bill was submitted so that Fairfax County would not have to alter it’s code, and spend the expense of changing forms used for health and safety inspections. I understand the entire Union is under economic duress, however I believe that there is a reasonable solution and as such provide the following suggestions for you to recommend to Fairfax County after you kill this bill.

· Modify the existing county code to bring it in compliance with VA § 15.2-915

· Inspect the forum used for conducting health and safety inspections for day care providers

· Conduct an inventory of how many inspection forms are currently in inventory at each fire station, or the one that handles all health and safety inspections for Fairfax county

· Determine when re-ordering of these bulk forms will be so that the next order can contain the required changes to them at that time, reducing the fiscal impact to the county

· Identify the offending sections, most notably the two bullets on the inspection form

· "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”

· Create a “training bulletin” to distribute to all local fire stations in Fairfax County indicating what changes need to be made

· Create a “cover sheet” to be placed on top of the inspection forms wherever they are stored to ensure the inspector going out to conduct inspections is reminded

· Have these two bullets crossed or lined out at the time the inspector is departing the station to go conduct an inspection

· Have the form verified by the watch/operations commander prior to departing the station (when possible) to ensure the changes are made

These steps will ensure that Fairfax County does not waste time and resources sending inspectors out to facilities to re-inspect them after a failed inspection, due to incorrect County Codes, that the County is too lazy to change. As of today the County is still not in compliance with VA § 15.2-915, and every failed inspection places undue economic and safety duress to the citizens of Fairfax County.

Please let me know what you intend to do.


For Yahoo mail users



DelBSherwood@house.virginia.gov, DelMGriffith@house.virginia.gov, DelTKilgore@house.virginia.gov, DelTWright@house.virginia.gov, DelCCarrico@house.virginia.gov, DelSLingamfelter@house.virginia.gov, DelDNutter@house.virginia.gov, DelCAthey@house.virginia.gov, DelBJanis@house.virginia.gov, DelBCline@house.virginia.gov, DelTGilbert@house.virginia.gov, DelCPoindexter@house.virginia.gov, DelDMerricks@house.virginia.gov, DelJScott@house.virginia.gov, DelWBarlow@house.virginia.gov, DelJShuler@house.virginia.gov, DelLLewis@house.virginia.gov, DelPMiller@house.virginia.gov, DelDPoisson@house.virginia.gov, DelRTyler@house.virginia.gov, DelDBowling@house.virginia.gov,

DelCHerring@house.virginia.gov, Michael.Frey@fairfaxcounty.gov,



For hotmail/outlook users



DelBSherwood@house.virginia.gov; DelMGriffith@house.virginia.gov; DelTKilgore@house.virginia.gov;DelTWright@house.virginia.gov; DelCCarrico@house.virginia.gov; DelSLingamfelter@house.virginia.gov; DelDNutter@house.virginia.gov; DelCAthey@house.virginia.gov; DelBJanis@house.virginia.gov; DelBCline@house.virginia.gov; DelTGilbert@house.virginia.gov; DelCPoindexter@house.virginia.gov; DelDMerricks@house.virginia.gov; DelJScott@house.virginia.gov; DelWBarlow@house.virginia.gov; DelJShuler@house.virginia.gov; DelLLewis@house.virginia.gov; DelPMiller@house.virginia.gov, DelDPoisson@house.virginia.gov; DelRTyler@house.virginia.gov; DelDBowling@house.virginia.gov;

DelCHerring@house.virginia.gov; Michael.Frey@fairfaxcounty.gov;


Edited to correct minor gramatical and punctionation issues - spell check won't catch all that.

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bohdi wrote:

Here's what I launched this morning. You might want to modify to your tastes as I wrote this first person.

Good morning Delegates,

I am writing to you today because it has come to my attention that House Bill 1379 may be coming to your committee (Militia, Police and Public Safety) this session and I would like you to not allow this bill out of the committee. This bill is being submitted because one locality is currently out of compliance with Virginia state law.

...........snip

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Nicely done - good documentation - well pointed out selfish and underhanded reason for HB1379.

Yata hey

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Thanks Grape. I should have proof read this a bit better prior to launching. I think it gets the point across though even with the minor mistakes sent in the orignal.

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http://leg1.state.va.us/cgi-bin/legp504.exe?101+sum+HB1379

So does this mean that this is being moved out of sub committee to full committee, our out of committee to the GA for a vote for amendment?

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bohdi wrote:

http://leg1.state.va.us/cgi-bin/legp504.exe?101+sum+HB1379

So does this mean that this is being moved out of sub committee to full committee, our out of committee to the GA for a vote for amendment?

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From sub-committee to full committee.

From this evening VaAlert:
HB 1379, Delegate Sickles, weakens firearms preemption for child care
facilities in Northern Virginia - STRONGLY OPPOSE - modified and
passed out of subcommittee

Yata hey

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So there is still a chance that it could get killed right?

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bohdi wrote:

So there is still a chance that it could get killed right?

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Oh yes - in full committee and my the House if it went that far.

This would splinter preemption - it must be stopped.

Yata hey

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It appears that it was reported with a 5-0 vote, which is disappointing.

I wonder what the amendment was.

TFred

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Wright, Griffith, Nutter, Lingamfelter, and Keam voted for this in the sub-committee.

Wright (R) answered the 2009 VCDL candidate survey 100% yes.
Griffith (R) did not answer the survey.
Nutter (R) did not answer the survey.
Lingamfelter (R) answered the survey 93% yes, only saying no to Alaska-style carry.
Keam (D) did not answer the survey.


So what is the scope of comparable state regulations applicable to family day-care homes anyway?

I could find no reference to firearms or weapons in Child Day Center regulations (22VAC15), only family day-care has a provision. By the way, the difference between family day-care and child-care is basically that 1-12 children under age 13 is family day-care; more than 12 children is child-care. See 22VAC40 and 22VAC15 for details.

VAC Title 22 - SOCIAL SERVICES
Agency 40 - DEPARTMENT OF SOCIAL SERVICES
Chapter 110 - MINIMUM STANDARDS FOR LICENSED FAMILY DAY HOMES
22VAC40-110-230. Firearms. 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.
Statutory Authority
§§ 63.2-217 and 63.2-1734 of the Code of Virginia.
Historical Notes
Derived from VR615-25-01:1 § 4.4, eff. December 15, 1993.


I think, after reading much of 22VAC40, the present scope of the relevant Code of Virginia and the Virginia Administrative Code sections are limited to licensees and care givers; only on the premises of the facility.

I'm opposed to HB1379 because with its passage will surely come the enactment of local laws that are beyond the scope of State law. Maybe some unwitting OC'er arrested on a public sidewalk would win the court battle against an illegal local law, but we ought not subject innocent people to such things.

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Virginia...

You better do EVERYTHING you can to keep your Preemption exactly what it is: PREEMPTION!!!!!

Sneaky Virginia Legislators have tried three things this year: 1. Governmental Facilities (which has been defeated by 9-N to 6-Y in Committee), 2. Libraries (still pending to the best of my knowledge), and 3. Child Day Care Centers; in an effort to attack Preemption.

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I didn't forsee things escalating to this level this quickly when I first contacted the County, but it is what it is.

The answer I got was Fairfax County derived it's regulations from State Code. State Code in two places seem to be conflicting.

22VAC40-110-230. Firearms.22VAC40-110-230. Firearms

Appears to contradict premption. How is the above law enforcable, in other words, who's authority trumps the other?

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Alright for those of you that haven't been following this saga, now that the general assembly is done for the year, this was passed overwhelmingly by both sides of theGA.

On one hand we have premption, a state statute. On the other hand we have state statutes regulating day care providers. Which one has the overall authority?

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bohdi wrote:

Alright for those of you that haven't been following this saga, now that the general assembly is done for the year, this was passed overwhelmingly by both sides of theGA.

On one hand we have premption, a state statute. On the other hand we have state statutes regulating day care providers. Which one has the overall authority?

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You have a general misunderstanding of how 15.2-915 works. There cannot be a conflict, because 15.2-915 is specifically and purposely subordinate to any other state code. That is its very purpose for existing.

The purpose of the law is to force the lower levels of government to go back to the General Assembly to authorize their desires for laws that regulate firearms.

Looking in hindsight, this was probably not a very strong case, but more of an oversight. This bill really just codifies regulations that were already on the books, but not in place in the Code of Virginia. The locality tried to put local code in place to enforce the state regulation.

The lesson we should all take away from this bill is to never bring up possible violations of 15.2-915 during or just prior to a General Assembly session!

TFred

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bohdi wrote:

...The Board was briefed on the matter in closed session two weeks ago with respect to the preliminary findings of the County Attorney's office. It does appear that there is a conflict with the State Code. Steps were taken to finish the review and initiate appropriate changes to the County Code as necessary....

[align=left]Michael R. Frey[/align]

[align=left]Sully District Supervisor[/align]

[align=left]Fairfax County Board of Supervisors[/align]

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Is that statement correct? This was done in a closed session? This is not a personnel issue or a possible land aquisition which is permitted to be in a closed session. This was a discussion of the boardasking for political intervention., and discussing the changing of the county code. IANAL but this seems to be a bozo no nowrt the open meetings laws of Virginia.:what:

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Thundar wrote:

bohdi wrote:

...The Board was briefed on the matter in closed session two weeks ago with respect to the preliminary findings of the County Attorney's office. It does appear that there is a conflict with the State Code. Steps were taken to finish the review and initiate appropriate changes to the County Code as necessary....

[align=left]Michael R. Frey[/align]

[align=left]Sully District Supervisor[/align]

[align=left]Fairfax County Board of Supervisors[/align]

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Is that statement correct? This was done in a closed session? This is not a personnel issue or a possible land aquisition which is permitted to be in a closed session. This was a discussion of the boardasking for political intervention., and discussing the changing of the county code. IANAL but this seems to be a bozo no nowrt the open meetings laws of Virginia.:what:

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My guess is they used the exception for discussing litigation. I don't know if they have to be in actual litigation over it before that is allowed, but at the very least, they could have put the county at a disadvantage by openly discussing the situation, should litigation later arise over the matter.

Attorney: Yes, it appears that we are in violation of 15.2-915.
Supervisor X: Well we don't want to change the county ordinance.

Litigant in audience thinking to self: Cool, I have them on record admitting they are in violation and not fixing it. Slam dunk.

TFred

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Ah, here it is.

http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+2.2-3711 The inquiry had been made, so it is reasonable that they would assume litigation would be an option if they chose to not act.

TFred

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TFred wrote:

You have a general misunderstanding of how 15.2-915 works. There cannot be a conflict, because 15.2-915 is specifically and purposely subordinate to any other state code. That is its very purpose for existing.

The purpose of the law is to force the lower levels of government to go back to the General Assembly to authorize their desires for laws that regulate firearms.

TFred

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I sure was confused because the way you word it preemption isn't all it's cracked up to be. Or I am confused about what preemption is. The way people on this site talk about it, Ithought it was the end all be all, but then again I admit I don't really know jack about how statutes and laws are constructed and haven't paid anyone to explain it to me either. I suppose it's better than nothing but if any statute can be regulated by a state agency, crickies. We ought to be thankful some slippery lawyer hasn't made things worse by using the "State Agency" loophole!!!!!

So after taking sometime to think about what you wrote TFred - and thanks for your insight by the way. I'm trying to learn. I went here to get a bit better understanding of what you are saying.

http://legis.state.va.us/1_cit_guide/faq_bill_info.html#16

"What is the Code of Virginia?
The Code of Virginia contains the statutes of the Commonwealth of Virginia. The Code of Virginia is updated annually on July 1 to reflect the legislation passed during the previous session."

"What is the Virginia Administrative Code?
The Virginia Administrative Code contains regulations of all of the State Agencies."

http://townhall.virginia.gov/UM/faqrulemaking.cfm

"What is a regulation?

A regulation is a general rule governing people's rights or conduct that is promulgated by a state agency and has the force of law. Agencies promulgate regulations in order to administer and enforce specific state laws and to implement general agency objectives. Each regulation must be authorized by law. Each chapter of the Virginia Administrative Code (VAC) contains a single regulation."

I think I asked this before, but is the enumeration of the statue give it priority/precedence over lower enumerated statutes? So when one looks at the hierarcy, pre-emption is belowthis statute that I errantly got changed for the worse in my opinion:

"Be it enacted by the General Assembly of Virginia:

1. That § 15.2-914 of the Code of Virginia is amended and reenacted as follows:

§ 15.2-914. Regulation of child-care services and facilities in certain counties and cities

"....Such local ordinances shall not be more extensive in scope than comparable state regulations applicable to family day-care homes. Such local ordinances may regulate the possession and storage of firearms, ammunition, or components or combination thereof at child-care facilities so long as such regulation is not more extensive in scope than comparable state regulations applicable to family day-care homes. Local regulations shall not affect the manner of construction or materials to be used in the erection, alteration, repair or use of a residential dwelling..."

Preemption is below it in the Code of Virginia - number wise (unless I have that backward)


"§ 15.2-915. Control of firearms; applicability to authorities and local governmental agencies.

A. No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by § 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. 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."



Below is thestatute thatgives localities the ability to pass ordinances - but not regarding fire arms as defined above

"§ 15.2-1425. Actions by localities.

The governing body of every locality in the performance of its duties, obligations and functions may adopt, as appropriate, ordinances, resolutions and motions."

Sopreemption is restricted further by a state agency here because of the authority by VAC:

VAC Title 22 - SOCIAL SERVICES
Agency 40 - DEPARTMENT OF SOCIAL SERVICES
Chapter 110 - MINIMUM STANDARDS FOR LICENSED FAMILY DAY HOMES
22VAC40-110-230. Firearms. 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.
Statutory Authority
§§ 63.2-217 and 63.2-1734 of the Code of Virginia.
Historical Notes
Derived from VR615-25-01:1 § 4.4, eff. December 15, 1993.


I think in general my mistake was not understanding that basically any state statute is a starting point that can be further restricted by any state agency....I was trying to use preemption to over ride the other code of Virginia (15.2-914) and 22VAC40-110-230.

I don't think timing of making this an issue would have mattered - other than some folks could have told me to stop sooner, lol.

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basically any state statute is a starting point that can be further restricted by any state agency...

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No that's not quite right either. It can't be more restrictive than the statute.


Dillon's Rule The theory of state preeminence over local governments was expressed as Dillon’s Rule in an 1868 case: "Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control. Clinton v Cedar Rapids and the Missouri River Railroad,(24 Iowa 455; 1868).

In dealing with pure agencies...they still cannot exceed the authority granted by the state.

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peter nap wrote:

basically any state statute is a starting point that can be further restricted by any state agency...

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No that's not quite right either. It can't be more restrictive than the statute.


Dillon's Rule The theory of state preeminence over local governments was expressed as Dillon’s Rule in an 1868 case: "Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control. Clinton v Cedar Rapids and the Missouri River Railroad,(24 Iowa 455; 1868).

In dealing with pure agencies...they still cannot exceed the authority granted by the state.

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There it is. How does this not apply to state colleges, state forests, et al agencies? OT question perhaps, but seems like the same difference to me - have trouble wrapping my head around that one.

Yata hey