Virginia Department of Health

imported post

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.

imported post

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

imported post

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?

imported post

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.

Click to expand...

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.

imported post

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.

imported post

jmelvin wrote:

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.

Click to expand...

IMHO -yes the parent likely has standing, but I doubt it will be an easy or cheap battle. Would hope they win as it fits the way I think 15.2-915 should be interpreted.

Another consideration is whether the state can deprive a child of of medical attention through no illegal (opinion again) acts of a parent. See lots of fishhooks in this one.

This to me is classic as to why it is sometimes better to fight the battle in the General Assembly rather than personally through the courts. This one is just not a straight slam dunk.

First step - talk to an attorney and make decisions based on his advice and the cost, not just referring to money either.

Yata hey

imported post

Grapeshot wrote:

jmelvin wrote:

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.

Click to expand...

IMHO -yes the parent likely has standing, but I doubt it will be an easy or cheap battle. Would hope they win as it fits the way I think 15.2-915 should be interpreted.

Another consideration is whether the state can deprive a child of of medical attention through no illegal (opinion again) acts of a parent. See lots of fishhooks in this one.

This to me is classic as to why it is sometimes better to fight the battle in the General Assembly rather than personally through the courts. This one is just not a straight slam dunk.

First step - talk to an attorney and make decisions based on his advice and the cost, not just referring to money either.

Yata hey

Click to expand...

I agree 110% with Grapeshot.
I don't see any we in it. Just the Parent(s).

I see a world of legal arguments and at least two separate issues.
What would scare me the worst is using the kids as a foot in the door. Yes, they told you no medical coverage with aa gun. All you have to do is leave it in the car.

If you refuse, Social Service could get involved and they're worse than a case of lice.

IMO. this could be expnsive and dangerous and if you lose..."WE" would be hurt even if WE don't have standing.

imported post

I hope I didn't tread on the feelings of the gentleman and his daughter that had the trouble at UVA as it was not my intent to suggest that either were merely pawns to be played. If I offended I beg your forgiveness. My only intent was to point out a situation that (except for the child needing medical attention) would be nearly ideal for a civil pursuit to clarification of the code.

imported post

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.

Click to expand...

Admittedly the case law I am familiar with is not relating to 15.2-915. There is no need for a prior case to refer back to that section of the Code to be prescidential - it merely needs to address the same principle (Dillon Rule). In this instance the principle is local government authority/autonomy being limited by the General Assembly vs. limits on state agencies by the General Assembly.

Look at it this way: The GA created the subunits of state government (counties, cities and towms/villages) by granting them charters. The State itself is composed of three supposedly equal parts - Legislative, Executive and Judicial. If the GA atttempted to tell the Executive branch how to act it would mean there was no longer co-equality between them.

On the other hand, the Executive branch might "give leave" to the GA to amend 15.2-915 to include state agencies under preemption, or that might be accomplished by constitutional amendment. WVA, as an example, did it by legislation.

stay safe.

imported post

jmelvin wrote:

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?

Click to expand...

I think Cuccinelli is flat out wrong about agencies = local agencies. He confuses codofication with law. Pre-emptionindicates says all, not local, agencies.

imported post

skidmark, if the legislature has no control over state agencies and their limits then please explain why the legislature thought it had the authority to raise the maximum speed limits on Virginia roadways and interstates to 70 m.p.h. this past legislative session. VDOT is most definitely an executive branch agency which has the responsibility for building, maintaining and operating the state's bridges, roads and tunnels (http://virginiadot.org/about_vdot/default.asp). If the legislature can place no limit on state agencies then 2010 legislative session bills HB 856 and SB 29-11 are pointless and have no effect.

Does not the legislature also provide the budget of these agencies?

imported post

jmelvin wrote:

skidmark, if the legislature has no control over state agencies and their limits then please explain why the legislature thought it had the authority to raise the maximum speed limits on Virginia roadways and interstates to 70 m.p.h. this past legislative session. VDOT is most definitely an executive branch agency which has the responsibility for building, maintaining and operating the state's bridges, roads and tunnels (http://virginiadot.org/about_vdot/default.asp). If the legislature can place no limit on state agencies then 2010 legislative session bills HB 856 and SB 29-11 are pointless and have no effect.

Does not the legislature also provide the budget of these agencies?

Click to expand...

Responding specifically to the question and isue you raise - it is because federal grant funds are at stake and there needed to be a law changed. The feds started it by requiring states to pass speed limit laws in order to get highway funds. Now those laws need to be adjusted because the state wants to keep getting highway funds. Or you could see the state gas tax raised to offset the loss of federal funds.

Yes, the GA controls (to a significant extent) the budget of Executive Branch agencies. The GA cannot (AFAIK), unlikethe US Congress, pass amendments prohibiting the expenditure of funds for specific activities. The GA has, frequently, reduced the budget approved for an agency by the amount requested for an activity the GA did not like/want - putting the agency in the position of deciding to juggle funds or not do whatever they did not get money for. Over one specific 5-year period an agency had its budget reduced by both the amount needed for a project the GA disapproved of as well as the amount they spent in spite of the GA's hint not to do it.

As I stated before, I'm just not sure if the GA can simply amend 15.2-915 or if it will need to be a constitutional amendment to bring state agencies into line with localities regarding preemption.

stay safe.

imported post

OK, VDH has an Office of EMS. They oversee every EMS agency and EMT in the Commonwealth. They occasionally inspect every EMS agency. Does this policy apply to a career or volunteer EMT on a VA licensed ambulance?

Remember that VDH OEMS a few years ago tried to make an admin policy barring guns on ambulances but PVC sent them a letter and they rescinded the policy.

VCDL Update 12/18/05:

> 7. Weapons ban in EMS vehicles invalid and not
> being enforced
> *************************************************
>
> For those who have been on this list for a while,
> you might recall
> our efforts to get a repeal on a regulation that
> prohibited EMS
> personnel with CHPs from carrying on ambulances. On
> January 17th,
> 2003 I sent out an update stating that we had won.
>
> We did, but one part of the law was inadvertently
> left on the books.
> A few of our members found this recently and one
> contacted the Office
> of Emergency Medical Services (OEMS) about the
> problem.
>
> The member was told that the OEMS was aware of the
> problem and the
> regulation was NOT being enforced.
>
> That's good but they need to get the regulation
> completely off the
> books anyhow!
>
> Here is the email from OEMS to our member:
>
> From: Michael Berg
> Sent: Friday, December 16, 2005 3:59 PM
> To: xxx
> Cc: Gary Brown
> Subject: Weapons and EMS
>
> Dear Mr. xxx,
>
> As the Manager for the Regulation and Compliance
> Division for the
> Office of Emergency Medical Services, Mr. Brown has
> asked that I
> reply to your inquiry. Your question concerns the
> ability for EMS
> providers to be able to carry weapons during the
> course of their
> duties, especially while on an ambulance or
> responding to a request
> for assistance.
>
> When the current version of the EMS Regulations were
> being
> promulgated (January 15, 2003), there was indeed a
> proposed
> regulation disallowing the carrying of weapons by
> EMS personnel on an
> ambulance. There was a mounted campaign against such
> a proposal and
> indeed the proposed regulation was withdrawn.
> Unfortunately, in
> another section of the regulations, specifically, 12
> VAC 5-31- 700
> EMS Safety (6) in part states, "Possession of a
> firearm, weapon, or
> explosive or incendiary device on any EMS vehicle is
> prohibited,
> exceptŠ" This was to have been removed during the
> revision process
> and simply was an oversight. We have
> administratively directed our
> field staff to not enforce this specific provision
> of the regulations.
>
> I hope this answers your questions and addresses
> your concerns.
> Please feel free to call on me should we be of any
> additional
> assistance.
>
> Michael D. Berg
> Manager, Regulation and Compliance
> Virginia Office of EMS
> 109 Governor Street, Suite UB-55
> Richmond, Virginia 23219
> (804)864-7615 (Office)
> (804)864-7580 (Fax)
> (800)523-6019 (Virginia only)
> Michael.Berg@vdh.virginia.gov
>

I decided to take this issue to the top.

Governor McDonnell:

On June 16, 2010, I accompanied my wife and daughter to an appointment at our local health department in Roanoke. I was in lawful possession of an openly carried Para-Ordnance pistol.

Shortly after we arrived, a health department representative ordered me to leave the premises, citing a VDH policy forbidding the possession of firearms there. I requested a copy of the policy, and was supplied with Human Resource Policy #1.80, which I have enclosed for your reference.

In 2008, during your term as Attorney General, you issued opinion #08-043, in which you stated that the Department of Conservation could not prohibit the possession of openly carried firearms, because it lacked statutory authority to do so. The Department of Health similarly lacks such authority, as Virginia Code §32.1-12 et seq. do not authorize the department to regulate the possession of firearms.

I note that, according to the policy, the prohibition applies only "[t]o the extent allowed by law." Insofar as the law makes no such allowance, the prohibition is a nullity. It is nevertheless being enforced as if it had full effect, as demonstrated by my experience.

I therefore ask that you direct the Department of Health to rescind and to cease enforcing its illegal policy against private citizens over whom it has no authority.

Click to expand...

skidmark said:

jmelvin wrote:

I, and the courts of Virginia, respectfully decline to agree with you.

stay safe.

Click to expand...

Skid, please cite where the courts in Virginia disagree.

Tosta Dojen said:

I decided to take this issue to the top.

Click to expand...

Please keep us posted on any response that you have in reference to your letter. I'm interested to see if the outcome is just a general response of "We appreciate your letter and will look into the issue" or if you actually get something back and the issued is addressed directly on the head.

Time will tell.

Regards,

I received a reply, which addressed the issue quite directly. It seems that it has been decided that it is in my best interest to be disarmed.

Dear Mr. Stevenson:

This is in response to your recent letter to Governor McDonnell asking that he direct the Virginia Department of Health (VDH) to "rescind and to cease enforcing" its Human Resource Policy #1.80, "Workplace Violence," which prohibits weapons in its offices. Thank you for contacting us with your concerns.

All agencies of the Commonwealth of Virginia are required by the Department of Human Resource Management to promulgate a policy for the prevention of workplace violence. The VDH policy to which you refer was drafted in response to this requirement and because VDH, as a responsible employer, has an obligation to protect its employees from workplace violence. Prior to the implementation of the policy in 2008, VDH requested and received guidance from the Office of the Attorney General regarding the matter of weapons in the workplace. That guidance indicated that our restriction on weapons in VDH workplaces was enforceable for our employees and for third parties entering our offices.

You were directed to leave the local health department office because it has been determined that it is in the best interest of the clients and the employees not to permit weapons in any VDH work locations. Should you have any further questions concerning this policy, please feel free to contact Bob DeLaney in VDH's Office of Human Resources. You can reach Mr. DeLaney at (804)864-7084 or robert.delaney@vdh.virginia.gov.

Sincerely,
William A. Hazel, Jr., M.D.

Click to expand...

Tosta Dojen said:

I received a reply, which addressed the issue quite directly. It seems that it has been decided that it is in my best interest to be disarmed.

Click to expand...

because it has been determined that it is in the best interest of the clients

Click to expand...

There will never be a clearer case or more convincing argument than this that we need to get the General Assembly to reel in Virginia State agencies under the auspices of Preemption.

TFred

The Virginia Health Department has some NERVE.

I love how authorities and local Govt agencies mean non state authorities. Funny i don't remember reading that in the law. Also something about departments or agencies as well. Funny how when they tries to use grammar. In the 2A they kept with the look at where the comma is logic but when it works against them it is an oh we meant this type of deal.