Nice job. Good luck with it!
Fauquier County has a preempted prohibition on firearms in county parks.... Sent a letter to the Board Of Supervisors today:
It has come to my attention that there is an invalid and unenforceable ordinance on the books for Fauquier County. Specifically: Sec. 16-7. Firearms, knives, weapons, fireworks and explosives, paragraph (a).
This ordinance is clearly in violation of the Code of Virginia § 15.2-915. Control of firearms; applicability to authorities and local governmental agencies.
Please advise me as to how Fauquier County will correct this situation.
Your attention to this matter is appreciated and I look forward to your early response.
Shamelessly plagiarized from jmelvin.
Will let you know if/when I get a response....
Nice job. Good luck with it!
The quiet war has begun, with silent weapons
And the newest slavery is to keep the people poor, and stupid
Novos ordo seclorum ~ Mustaine
Never argue with an idiot. He will drag you down to his level and beat you with experience.
So far, all I've gotten was an out of office auto-reply from the Deputy Clerk of the BOS.... She'll apparently be back Monday.
VirginiaOpenCarry.Org (Coins, Shirts and Patches)
- - - -
For VA Open Carry Cards send a S.A.2S.E. to: Ed's OC cards, Box 16143, Wash DC 20041-6143 (they are free but some folks enclose a couple bucks too)
Right in their Municode, they include a note saying that it in unenforceable.
Note: * Following the adoption of Ordinance No. 09-07, the General Assembly amended § 15.2-915 of the Code of Virginia to prohibit the County from adopting or enforcing any ordinance. . ."governing the purchase, possession, transfer, ownership, carrying, storage or transportation of firearms, ammunition, or components or combinations thereof other than those expressly authorized by statute". Any provision of said ordinance which is in conflict with this Code provision is invalid and unenforceable.
I would almost guarantee you that they will reply with "But... we had the ordinance first, so we did not adopt it in violation of the law, and we are clearly not enforcing it..."
If you read the preemption law very carefully, I'm not sure that it is actually in violation if the ordinance was in place first, as long as it is now not enforced.
We need User to chime in.
I wasn't clear to me if that was the County's note, or Municode's note... We'll see how they respond.
From the Code section itself:They can control discharge of weapons, where/when/with what you can hunt, and the like but not "the purchase, possession, transfer, ownership, carrying or transporting of firearms, ammunition, or components or combination thereof" unless the GA specifically passes a law allowing them to. If they had the approval of the GA via such legislation they would have made that quite plain.B. Any local ordinance, resolution or motion adopted prior to the effective date of this act governing the purchase, possession, transfer, ownership, carrying or transporting of firearms, ammunition, or components or combination thereof, other than those expressly authorized by statute, is invalid.
Read the whole thing carefully... it says "No locality shall adopt or enforce any ordinance..."
Then as you note, the next section clearly makes any older ordinances invalid.
The only penalty for not removing old code appears to be in the last section which includes "C. In addition to any other relief provided, the court may award reasonable attorney fees, expenses, and court costs to any person, group, or entity that prevails in an action challenging (i) an ordinance, ..."
It sounds to me like the only way you can force them to remove the code is to sue them, and to be honest, if they've made any reasonably good effort to indicate that they are no longer enforcing the code, I'd say it's a coin-flip as to whether you'd win the case...
As always, IANAL... that's just how it appears to me in plain English.
If they don't take any action to try to enforce it you don't have what's called "standing" to sue.
It seems they know they can't enforce the old code but for some reason want to leave it on the books with the notation that those evil folks at the GA took away their power.
Wait a minute. Wasn't that last clause about winning an action challenging the ordinance just added within the last couple years specifically to help drive invalid ordninances off books?
I thought sure that was the whole reason that clause was added.
roscoeDear Mr. roscoe13,
Thank you for your e-mail of April 29, 2011, a copy of which has been forwarded to the County Attorney for his review and response to your question. Please let me know if I can be of any further assistance in this regard.
Renée Andersen, CMC
Deputy Clerk to the
Fauquier County Board of Supervisors
10 Hotel Street
Warrenton, VA 20186
PH: (540) 422-8020
FX: (540) 422-8022
Received a response that, for now, I'll assume is from the county atty.:
The "highlighted language" is:Dear Mr. roscoe13: I have reviewed your inquiry. Please note the highlighted language in the attached ordinance which clearly reflects that the ordinance is not enforceable to the extent that it has been preempted. Much of this ordinance has not been preempted by the action of the General Assembly, which addresses only firearms and not other types of weapons. The County has neither adopted nor enforced any ordinance in conflict with the Code of Virginia since the adoption of the provision you cite. No further action of the County is required.
Replied to his e-mail such:Note: * Following the adoption of Ordinance No. 09-07, the General Assembly amended § 15.2-915 of the Code of Virginia to prohibit the County from adopting or enforcing any ordinance. . ."governing the purchase, possession, transfer, ownership, carrying, storage or transportation of firearms, ammunition, or components or combinations thereof other than those expressly authorized by statute". Any provision of said ordinance which is in conflict with this Code provision is invalid and unenforceable.
I'd certainly hate to be the law abiding citizen trying to explain that nuance to a Sheriff's deputy while being wrongfully arrested for legally carrying a firearm in a county park. Such a wrongful arrest would leave the county vulnerable to a lawsuit, which the county would almost certainly lose, resulting in the county having to pay what could be significant damages, in addition to the legal fees of the person filing the suit (see http://leg1.state.va.us/cgi-bin/legp...0+cod+15.2-915 paragraph C.) Removing any reference to firearms from Sec. 16-7 paragraph A would eliminate this risk to taxpayer dollars. I fail to see any benefit to the county in retaining the reference to firearms in Sec. 16-7 paragraph A, while, as a Fauquier County taxpayer, I find the risk to taxpayer dollars posed by not removing the reference to firearms as unacceptable.
Hopefully your reply will pique an interest enough for them to take a second look at that new paragraph, and spend the 30 minutes or so required to remove the now-illegal references in the ordinance.
Especially now that the county attorney has been made aware of the problem, if such a false arrest ever happens, the judge would seem to have all kinds of reason to throw the book at them.
Is there a nice park in Fauquier County that can be used for a OC picnic?
C. M. Crockett Park
Capitals blew it
Last edited by altajava; 05-03-2011 at 08:22 PM. Reason: game ended
That's not uncommon in counties that don't have big budgets. It wasn't that long ago when Fairfax charged non county cars as well. There are a couple of DGIF parks around, free to everyone but not OC friendly with out a permit.
Does this apply to buildings within Fauquier's P&R system as well as open-air parks? Considering attending an event at a facility that is part of their Central Region and is located within the Town of Warrnenton. Event will likely be indoors at that facility.
Sec. 16-7. - Firearms, knives, weapons, fireworks and explosives.
It shall be unlawful for any person except a duly authorized law enforcement officer to have in his possession in any park any BB gun, air gun, slingshot, bow and arrow, or dart device, or to discharge any pistol, revolver, shotgun, BB gun, air gun, slingshot, bow and arrow or dart device or other weapon in which the propelling force is gunpowder, a spring or air.
Any violation of section 16-5 (permits for solicitors and vendors); section 16-6 (prohibited conduct); section 16-7 (firearms, knives, weapons, fireworks and explosives); or section 16-8 (vehicles) shall be punishable by a fine of not less than fifty dollars ($50.00), nor more than one thousand dollars ($1,000.00) or imprisonment for a term not exceeding thirty (30) days, or by both such fine and imprisonment.
Should I bother replying with information about preemption? Or just carry with the knowledge that this Sec. 16-7 is unenforceable?
Last edited by PaulX608; 07-27-2011 at 06:15 PM.