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Thread: Virginia Department of Health

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    At the local Health Department today, I learned that the Virginia Department of Health has a policy forbidding the possession of weapons. I requested and received a copy of the policy, which reads, under section 5C:

    VDH prohibits VDH employees and volunteers from carrying weapons on VDH property or work locations. To the extent allowed by law, third parties are prohibited from carrying weapons on VDH property or work locations.
    As this is a state agency, the policy would not be preempted.
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    Last edited by Tosta Dojen; 12-28-2010 at 10:03 AM. Reason: Readded attachment lost in the forum migration

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    Regular Member gis's Avatar
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    Tosta Dojen wrote:
    To the extent allowed by law, third parties are prohibited from carrying weapons on VDH property or work locations.
    Since the law doesn't allow it, the point is moot. It's got no teeth, but certainly tells you where they stand.

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    gis wrote:
    Tosta Dojen wrote:
    To the extent allowed by law, third parties are prohibited from carrying weapons on VDH property or work locations.
    Since the law doesn't allow it, the point is moot. It's got no teeth, but certainly tells you where they stand.
    But what is your basis for saying the law does not allow it? If the VDH is subject to preemption, then sure, but if not, then they are acting like any other private employer, and can set their own policy.

    TFred

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    It would be interesting to see what the policy means by 3rd parties. If this is customers this would seem to fly in the face of what we call pre-emption (but isn't). Of course if "pre-emption" doesn't apply to state agencies then as some seem to think Mr. Cuccinelli has indicated, then any agency could ban us. Is there any useful case-law regarding state agencies attempting to enforce a gun ban on non-employees or volunteers?

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    jmelvin wrote:
    It would be interesting to see what the policy means by 3rd parties.
    Conveniently, the term is defined on the same page, section 4C:

    Third Parties - Anyone who is not a VDH employee and enters VDH facilities or locations where VDH staff members perform work.
    That includes pretty much everyone. Interestingly, there appears to be no exception for law enforcement.

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    Tosta Dojen wrote:
    Interestingly, there appears to be no exception for law enforcement.
    "To the extent allowed by law." I suspect that covers the LEOs.

    TFred


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    TFred wrote:
    gis wrote:
    Tosta Dojen wrote:
    To the extent allowed by law, third parties are prohibited from carrying weapons on VDH property or work locations.
    Since the law doesn't allow it, the point is moot. It's got no teeth, but certainly tells you where they stand.
    But what is your basis for saying the law does not allow it? If the VDH is subject to preemption, then sure, but if not, then they are acting like any other private employer, and can set their own policy.

    TFred
    I can see them being able to ban employees, but why wouldn't pre-emption apply to third parties?

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    Regular Member TFred's Avatar
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    gis wrote:
    TFred wrote:
    gis wrote:
    Tosta Dojen wrote:
    To the extent allowed by law, third parties are prohibited from carrying weapons on VDH property or work locations.
    Since the law doesn't allow it, the point is moot. It's got no teeth, but certainly tells you where they stand.
    But what is your basis for saying the law does not allow it? If the VDH is subject to preemption, then sure, but if not, then they are acting like any other private employer, and can set their own policy.

    TFred
    I can see them being able to ban employees, but why wouldn't pre-emption apply to third parties?
    Selected portions of 15.2-915...

    § 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.

    [...]

    The provisions of this section applicable to a locality shall also apply to any authority or to a local governmental entity, including a department or agency, but not including any local or regional jail or juvenile detention facility.
    None of these specific subjects to the law are state-wide agencies such as the VDoH.

    We've been round-and-round on this for a long time.

    TFred

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    Regular Member TFred's Avatar
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    gis wrote:
    I can see them being able to ban employees, but why wouldn't pre-emption apply to third parties?
    The question that needs to be asked of the General Assembly is "Why don't you include state agencies as well?"

    TFred


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    Preemption doesn't need to apply. State agencies do not have the authority to ban guns as they were not given that authority. Only the General Assembly can make laws regarding firearms, and the Const. of VA states they cannot delegate that power away.

    State agencies are not a legislative entity of the government and therefore can't make up regs that they can enforce with the force of law (or at least shouldn't be).

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    TFred, looking at the legislative codereference do we have a definition for "authority"? It would seem to me that VDoH would most certainly be "any authority". Note the description does not say local authority, the description says that the provisions that apply to any locality ALSO apply to "any authority", or "to a local government entity...." If VDoH is not "any authority" what are they?

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    nova wrote:
    Preemption doesn't need to apply. State agencies do not have the authority to ban guns as they were not given that authority. Only the General Assembly can make laws regarding firearms, and the Const. of VA states they cannot delegate that power away.

    State agencies are not a legislative entity of the government and therefore can't make up regs that they can enforce with the force of law (or at least shouldn't be).
    Tread lightly with that statement. This is exactly what I thought and ended up making things worse for folks that had home day care facilities. The General Assembly provides that agencies such as Health and Human Services can create policy that have the force of law behind it......

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    jmelvin wrote:
    TFred, looking at the legislative codereference do we have a definition for "authority"? It would seem to me that VDoH would most certainly be "any authority". Note the description does not say local authority, the description says that the provisions that apply to any locality ALSO apply to "any authority", or "to a local government entity...." If VDoH is not "any authority" what are they?
    I'm not sure, I know it's been hashed around here a bunch of times. The problem is, no matter what we might think, they don't think it applies to them, so it doesn't, until you sue, which is not an easy task.

    TFred


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    It would be nice if our illustrious governor would step in and make it clear to these state agencies that they do not have the authority to author gun restrictions except for their own employees, as he did when he was our illustrious attorney general. If it were my case, I would (likely) sue, but I have yet to be wronged so I don't have standing.

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    jmelvin wrote:
    It would be nice if our illustrious governor would step in and make it clear to these state agencies that they do not have the authority to author gun restrictions except for their own employees, as he did when he was our illustrious attorney general. If it were my case, I would (likely) sue, but I have yet to be wronged so I don't have standing.
    The silence from the governor's office is deafening.

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    I was re-reading this thing and it is very clear from the second paragraph of the code as posted by TFred that the code most definitely applies to state agencies as much as local entities. Read and follow: "shall apply to any authority or lacal entity, including a department or agency". "Including any department or agency" describes BOTH "any authority" and "local entity", whichever is being considered thus the use of "or".

    The initial chapters of the code do not define "authority" (and maybe not "entity")' but this specific section gives us both authority and entity and further tells us that both include departments or agency (which may be described by "local" or "any").

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    jmelvin wrote:
    I was re-reading this thing and it is very clear from the second paragraph of the code as posted by TFred that the code most definitely applies to state agencies as much as local entities. Read and follow: "shall apply to any authority or lacal entity, including a department or agency". "Including any department or agency" describes BOTH "any authority" and "local entity", whichever is being considered thus the use of "or".

    The initial chapters of the code do not define "authority" (and maybe not "entity")' but this specific section gives us both authority and entity and further tells us that both include departments or agency (which may be described by "local" or "any").

    I respectfully disagree.

    Virginia is a "Dillon Rule" state. The General Assembly grants powers to localities, as localities are sub-units of the Commonwealth. The General Assembly has preempted the field of firearm regulation as that applies to localities. It has NOT spoken in any manner regarding Departments, Agencies, Boards, Commissions or other entities of State government.

    Many of us are working to effect a change in that circumstance.

    stay safe.

    ETA:

    Mea culpa. I missed it the first time around. "Workplace violence prevention" is an aspect of OSHA/VOSHA regulation and generally is applicable only to employees and volunteers. I do not have immediate access to the State Policy & Procedure Manual (need physical access - some parts are NOT available on-line) which IIRC addresses this.

    In other words, VDH may in fact have overstepped its bounds, not related to preemption/not preeemption, but by creating policy effecting those it has no authority to control by policy. Had they created a policy under some other Title they might better get away with their prohibition, but I think they can be found to have screwed up in this instance.

    I'll try to get hands-on access to the P&P Manual to verify my suspicions.

    Stay tuned/stay safe.

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    Tosta Dojen wrote:
    At the local Health Department today, I learned that the Virginia Department of Health has a policy forbidding the possession of weapons. I requested and received a copy of the policy, which reads, under section 5C:

    VDH prohibits VDH employees and volunteers from carrying weapons on VDH property or work locations. To the extent allowed by law, third parties are prohibited from carrying weapons on VDH property or work locations.
    As this is a state agency, the policy would not be preempted.
    I OC'd at the PWC health dept monday and wed this last week.. no issues at all!

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    skidmark while it is understood that Virginia is a "Dillon Rule" state, and it is clear that a portion of 15.2-915 is providing clarification to localities that their authority is limited in the realm of handgun law, this section of code goes further than just providing limitations to localities. Whether by intent or not, the General Assembly provided language that limited not only "local entities" (including departments and agencies), but also "any authority" (including departments and agencies) with regard to the establishmend of handgun laws, except for those rules that would govern workers in the workplace.

    "The provisions of this section applicable to a locality shall also apply to any authorityOR to a local governmental entity, including a department or agency, but not including any local or regional jail or juvenile detention facility."


    We don't need a new law on the books. We simply need enforcement of the one we have. Time to play in the realm of the courts.


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    jmelvin wrote:
    skidmark while it is understood that Virginia is a "Dillon Rule" state, and it is clear that a portion of 15.2-915 is providing clarification to localities that their authority is limited in the realm of handgun law, this section of code goes further than just providing limitations to localities. Whether by intent or not, the General Assembly provided language that limited not only "local entities" (including departments and agencies), but also "any authority" (including departments and agencies) with regard to the establishmend of handgun laws, except for those rules that would govern workers in the workplace.

    "The provisions of this section applicable to a locality shall also apply to any authorityOR to a local governmental entity, including a department or agency, but not including any local or regional jail or juvenile detention facility."


    We don't need a new law on the books. We simply need enforcement of the one we have. Time to play in the realm of the courts.
    I, and the courts of Virginia, respectfully decline to agree with you.

    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"
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    Which courts have ruled on the matter? I asked in my earliest post if there was any applicable case law, but have yet to see anything posted. I am amenable to instruction if such is to be had for cases referencing this portion of code, but I am simply unaware of it. If the discussion at hand is the GMU case, DiGi-whatever based his case upon the lack of constitutionality of the GMU regulation (if I recall correctly) and did not use the provisions of 15.2-915.

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    Moderator / Administrator Grapeshot's Avatar
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    Herein lies the difference between what we think should be and what has been determined to be by the courts.

    This might still be temporarily changed by our governor - I say temporarily because the next governor could undo any improvement.

    This should and must be addressed again at the legislative level.

    Yata hey
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    What I want to know (and I don't know where to look to find) is where have the courts already adjudicated the matter? From what I know we are now in the situation that the first people negatively affected by local laws remaining on the books were in after the most recent change to 15.2-915. Once wronged by a "pre-empted" law we must have our opportunity in court for the wrong to be reviewed against the statute.

    User or any others out there that practice law, do I have this wrong? If I'm not then what good would another law do if we aren't willing to use in court what we already have?

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    jmelvin wrote:
    Which courts have ruled on the matter? I asked in my earliest post if there was any applicable case law, but have yet to see anything posted. I am amenable to instruction if such is to be had for cases referencing this portion of code, but I am simply unaware of it. If the discussion at hand is the GMU case, DiGi-whatever based his case upon the lack of constitutionality of the GMU regulation (if I recall correctly) and did not use the provisions of 15.2-915.
    I doubt you find much in the way of case law. Usually, violation results in a trespassing charge. Most GD Judges just want to get the docket over before 5:00.

    They have an "Appeal it to CC if you don't like it, attitude.

    An appeal usually results in a harsher sentence/fine and to really fight it, you need a lawyer...even if you are a lawyer.
    That's expensive.

    Justice for sale.

    Even on the Circuit Court level, many judges consider themselves part of the PD. Remember the Sutherland Case (Saddlebag law). That case law had stood for nearly a hundred years. Judge Wallace in Henrico didn't like it and convicted the woman. The Supreme court sided with him and overturned the ruling.

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    We have a situation now where a person was given a trespassing warning and prevented from seeing their child's doctor. The harm has been done. How much more could you ask for? No trespassing ticket, but we have standing. No?

    With this no criminal case needs to be won to avoid a trespassing conviction and punishment. It's a purely civil case to cover harms caused based on what I see are protections already in 15.2-915.

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