H. B. 2760
(By Delegates R. Phillips, Eldridge, Boggs, White,
Marcum, Hartman, Hamilton and Tomblin)
[Introduced February 28, 2013; referred to the
Committee on the Judiciary.]
A BILL to repeal §8-12-5a of the Code of West Virginia, 1931, as
amended; to amend and reenact §7-1-3 of said code; to amend
and reenact §8-12-5 of said code; and to amend said code, by
adding thereto a new article, designated §61-7B-1, §61-7B-2,
§61-7B-3, §61-7B-4, §61-7B-5 and §61-7B-6, all relating to
crimes and punishment; jurisdiction, powers and duties of
county commissions; general powers of municipalities and their
governing bodies; uniform regulation of firearms, ammunition,
and firearm accessories throughout West Virginia solely by the
Legislature; legislative intent; definition; general rules
relating to the regulation of firearms, ammunition and firearm
accessories; remedies for unlawful regulation; providing for
exceptions; and providing applicability, grand fathering
clause and effective date.
Be it enacted by the Legislature of West Virginia:
That §8-12-5a of the Code of West Virginia, 1931, as amended be repealed; that §7-1-3 of said code be amended and reenacted;
that §8-12-5 be amended and reenacted; and that chapter 61 of said
code be amended by adding thereto a new article, designated
§61-7B-1, §61-7B-2, §61-7B-3, §61-7B-4, §61-7B-5 and §61-7B-6, all
to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3. Jurisdiction, powers and duties.
The county commissions, through their clerks, shall have the
custody of all deeds and other papers presented for record in their
counties and the same shall be preserved therein, or otherwise
disposed of as now is, or may be prescribed by law. They shall
have jurisdiction in all matters of probate, the appointment and
qualification of personal representatives, guardians, committees,
curators and the settlement of their accounts and in all matters
relating to apprentices. They shall also, under the rules as now
are or may be prescribed by law, have the superintendence and
administration of the internal police and fiscal affairs of their
counties, including the establishment and regulation of roads,
ways, streets, avenues, drives and the like, and the naming or
renaming thereof, in cooperation with local postal authorities, the
Division of Highways and the directors of county emergency
communications centers, to assure uniform, nonduplicative
conversion of all rural routes to city-type addressing on a permanent basis, bridges, public landings, ferries and mills, with
authority to lay and disburse the county levies. They shall, in
all cases of contest, judge of the election, qualification and
returns of their own members, and of all county and district
officers, subject to appeal as prescribed by law. The tribunals as
have been heretofore established by the Legislature under and by
virtue of section thirty-four, article VIII of the Constitution of
one thousand eight hundred seventy-two, for police and fiscal
purposes, shall, until otherwise provided by law, remain and
continue as at present constituted in the counties in which they
have been respectively established, and shall be and act as to
police and fiscal matters in lieu of the county commission herein
mentioned, until otherwise provided by law. And until otherwise
provided by law, the clerk as is mentioned in section twenty-six of
said article, as amended, shall exercise any powers and discharge
any duties heretofore conferred on, or required of, any court or
tribunal established for judicial purposes under said section, or
the clerk of the court or tribunal, respectively, respecting the
recording and preservation of deeds and other papers presented for
record, matters of probate, the appointment and qualification of
personal representatives, guardians, committees, curators and the
settlement of their accounts and in all matters relating to
apprentices. The county commission may not limit the right of any
person to purchase, possess, transfer, own, carry, transport, sell or store any revolver, pistol, rifle or shotgun or any ammunition
or ammunition components to be used therewith nor to so regulate
the keeping of gunpowder so as to, directly or indirectly, prohibit
the ownership of the ammunition: Provided, That no provision in
this section may be construed to limit the authority of a county to
restrict the commercial use of real estate in designated areas
through planning or zoning ordinances.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 12. GENERAL AND SPECIFIC POWERS, DUTIES AND ALLIED
RELATIONS OF MUNICIPALITIES, GOVERNING BODIES AND
MUNICIPAL OFFICERS AND EMPLOYEES; SUITS AGAINST
MUNICIPALITIES.
§8-12-5. General powers of every municipality and the governing
body thereof.
In addition to the powers and authority granted by: (i) The
Constitution of this state; (ii) other provisions of this chapter;
(iii) other general law; and (iv) any charter, and to the extent
not inconsistent or in conflict with any of the foregoing except
special legislative charters, every municipality and the governing
body thereof shall have plenary power and authority therein by
ordinance or resolution, as the case may require, and by
appropriate action based thereon:
(1) To lay off, establish, construct, open, alter, curb, recurb, pave or repave and keep in good repair, or vacate,
discontinue and close, streets, avenues, roads, alleys, ways,
sidewalks, drains and gutters, for the use of the public, and to
improve and light the same, and have them kept free from
obstructions on or over them which have not been authorized
pursuant to the succeeding provisions of this subdivision; and,
subject to such terms and conditions as the governing body shall
prescribe, to permit, without in any way limiting the power and
authority granted by the provisions of article sixteen of this
chapter, any person to construct and maintain a passageway,
building or other structure overhanging or crossing the airspace
above a public street, avenue, road, alley, way, sidewalk or
crosswalk, but before any permission for any person to construct
and maintain a passageway, building or other structure overhanging
or crossing any airspace is granted, a public hearing thereon shall
be held by the governing body after publication of a notice of the
date, time, place and purpose of the public hearing has been
published as a Class I legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code and
the publication area for the publication shall be the municipality:
Provided, That any permit so granted shall automatically cease and
terminate in the event of abandonment and nonuse thereof for the
purposes intended for a period of ninety days, and all rights
therein or thereto shall revert to the municipality for its use and benefit;
(2) To provide for the opening and excavation of streets,
avenues, roads, alleys, ways, sidewalks, crosswalks and public
places belonging to the municipality and regulate the conditions
under which any such opening may be made;
(3) To prevent by proper penalties the throwing, depositing or
permitting to remain on any street, avenue, road, alley, way,
sidewalk, square or other public place any glass, scrap iron,
nails, tacks, wire, other litter or any offensive matter or
anything likely to injure the feet of individuals or animals or the
tires of vehicles;
(4) To regulate the use of streets, avenues, roads, alleys,
ways, sidewalks, crosswalks and public places belonging to the
municipality, including the naming or renaming thereof, and to
consult with local postal authorities, the Division of Highways and
the directors of county emergency communications centers to assure
uniform, nonduplicative addressing on a permanent basis;
(5) To regulate the width of streets, avenues and roads, and
subject to the provisions of article eighteen of this chapter, to
order the sidewalks, footways and crosswalks to be paved, repaved,
curbed or recurbed and kept in good order, free and clean, by the
owners or occupants thereof or of the real property next adjacent
thereto;
(6) To establish, construct, alter, operate and maintain, or discontinue, bridges, tunnels and ferries and approaches thereto;
(7) To provide for the construction and maintenance of water
drains, the drainage of swamps or marshlands and drainage systems;
(8) To provide for the construction, maintenance and covering
over of watercourses;
(9) To control and administer the waterfront and waterways of
the municipality and to acquire, establish, construct, operate and
maintain and regulate flood control works, wharves and public
landings, warehouses and all adjuncts and facilities for navigation
and commerce and the utilization of the waterfront and waterways
and adjacent property;
(10) To prohibit the accumulation and require the disposal of
garbage, refuse, debris, wastes, ashes, trash and other similar
accumulations whether on private or public property: Provided,
That in the event the municipality annexes an area which has been
receiving solid waste collection services from a certificated solid
waste motor carrier, the municipality and the solid waste motor
carrier may negotiate an agreement for continuation of the private
solid waste motor carrier services for a period of time, not to
exceed three years, during which time the certificated solid waste
motor carrier may continue to provide exclusive solid waste
collection services in the annexed territory;
(11) To construct, establish, acquire, equip, maintain and
operate incinerator plants and equipment and all other facilities for the efficient removal and destruction of garbage, refuse,
wastes, ashes, trash and other similar matters;
(12) To regulate or prohibit the purchase or sale of articles
intended for human use or consumption which are unfit for use or
consumption, or which may be contaminated or otherwise unsanitary;
(13) To prevent injury or annoyance to the public or
individuals from anything dangerous, offensive or unwholesome;
(14) To regulate the keeping of gunpowder and other
combustibles;
(15) To make regulations guarding against danger or damage by
fire;
(16) To arrest, convict and punish any individual for carrying
about his or her person any revolver or other pistol, dirk, bowie
knife, razor, slingshot, billy, metallic or other false knuckles or
any other dangerous or other deadly weapon of like kind or
character;
(17) To arrest, convict and punish any person for importing,
printing, publishing, selling or distributing any pornographic
publications;
(18) To arrest, convict and punish any person for keeping a
house of ill fame, or for letting to another person any house or
other building for the purpose of being used or kept as a house of
ill fame, or for knowingly permitting any house owned by him or her
or under his or her control to be kept or used as a house of ill fame, or for loafing, boarding or loitering in a house of ill fame,
or frequenting same;
(19) To prevent and suppress conduct and practices which are
immoral, disorderly, lewd, obscene and indecent;
(20) To prevent the illegal sale of intoxicating liquors,
drinks, mixtures and preparations;
(21) To arrest, convict and punish any individual for driving
or operating a motor vehicle while intoxicated or under the
influence of liquor, drugs or narcotics;
(22) To arrest, convict and punish any person for gambling or
keeping any gaming tables, commonly called "A, B, C," or "E, O,"
table or faro bank or keno table, or table of like kind, under any
denomination, whether the gaming table be played with cards, dice
or otherwise, or any person who shall be a partner or concerned in
interest, in keeping or exhibiting the table or bank, or keeping or
maintaining any gaming house or place, or betting or gambling for
money or anything of value;
(23) To provide for the elimination of hazards to public
health and safety and to abate or cause to be abated anything which
in the opinion of a majority of the governing body is a public
nuisance;
(24) To license, or for good cause to refuse to license in a
particular case, or in its discretion to prohibit in all cases, the
operation of pool and billiard rooms and the maintaining for hire of pool and billiard tables notwithstanding the general law as to
state licenses for any such business and the provisions of section
four, article thirteen of this chapter; and when the municipality,
in the exercise of its discretion, refuses to grant a license to
operate a pool or billiard room, mandamus may not lie to compel the
municipality to grant the license unless it shall clearly appear
that the refusal of the municipality to grant a license is
discriminatory or arbitrary; and in the event that the municipality
determines to license any business, the municipality has plenary
power and authority and it shall be the duty of its governing body
to make and enforce reasonable ordinances regulating the licensing
and operation of the businesses;
(25) To protect places of divine worship and to preserve peace
and order in and about the premises where held;
(26) To regulate or prohibit the keeping of animals or fowls
and to provide for the impounding, sale or destruction of animals
or fowls kept contrary to law or found running at large;
(27) To arrest, convict and punish any person for cruelly,
unnecessarily or needlessly beating, torturing, mutilating,
killing, or overloading or overdriving or willfully depriving of
necessary sustenance any domestic animal;
(28) To provide for the regular building of houses or other
structures, for the making of division fences by the owners of
adjacent premises and for the drainage of lots by proper drains and ditches;
(29) To provide for the protection and conservation of shade
or ornamental trees, whether on public or private property, and for
the removal of trees or limbs of trees in a dangerous condition;
(30) To prohibit with or without zoning the location of
occupied house trailers or mobile homes in certain residential
areas;
(31) To regulate the location and placing of signs,
billboards, posters and similar advertising;
(32) To erect, establish, construct, acquire, improve,
maintain and operate a gas system, a waterworks system, an electric
system or sewer system and sewage treatment and disposal system, or
any combination of the foregoing (subject to all of the pertinent
provisions of articles nineteen and twenty of this chapter and
particularly to the limitations or qualifications on the right of
eminent domain set forth in articles nineteen and twenty), within
or without the corporate limits of the municipality, except that
the municipality may not erect any system partly without the
corporate limits of the municipality to serve persons already
obtaining service from an existing system of the character proposed
and where the system is by the municipality erected, or has
heretofore been so erected, partly within and partly without the
corporate limits of the municipality, the municipality has the
right to lay and collect charges for service rendered to those served within and those served without the corporate limits of the
municipality and to prevent injury to the system or the pollution
of the water thereof and its maintenance in a healthful condition
for public use within the corporate limits of the municipality;
(33) To acquire watersheds, water and riparian rights, plant
sites, rights-of-way and any and all other property and
appurtenances necessary, appropriate, useful, convenient or
incidental to any system, waterworks or sewage treatment and
disposal works, as aforesaid, subject to all of the pertinent
provisions of articles nineteen and twenty of this chapter;
(34) To establish, construct, acquire, maintain and operate
and regulate markets and prescribe the time of holding the same;
(35) To regulate and provide for the weighing of articles sold
or for sale;
(36) To establish, construct, acquire, maintain and operate
public buildings, municipal buildings or city halls, Auditoriums,
arenas, jails, juvenile detention centers or homes, motor vehicle
parking lots or any other public works;
(37) To establish, construct, acquire, provide, equip,
maintain and operate recreational parks, playgrounds and other
recreational facilities for public use and in this connection also
to proceed in accordance with the provisions of article two,
chapter ten of this code;
(38) To establish, construct, acquire, maintain and operate a public library or museum or both for public use;
(39) To provide for the appointment and financial support of
a library board in accordance with the provisions of article one,
chapter ten of this code;
(40) To establish and maintain a public health unit in
accordance with the provisions of section two, article two, chapter
sixteen of this code, which unit shall exercise its powers and
perform its duties subject to the supervision and control of the
West Virginia Board of Health and State Bureau for Public Health;
(41) To establish, construct, acquire, maintain and operate
hospitals, sanitarians and dispensaries;
(42) To acquire, by purchase, condemnation or otherwise, land
within or near the corporate limits of the municipality for
providing and maintaining proper places for the burial of the dead
and to maintain and operate the same and regulate interments
therein upon terms and conditions as to price and otherwise as may
be determined by the governing body and, in order to carry into
effect the authority, the governing body may acquire any cemetery
or cemeteries already established;
(43) To exercise general police jurisdiction over any
territory without the corporate limits owned by the municipality or
over which it has a right-of-way;
(44) To protect and promote the public morals, safety, health,
welfare and good order;
(45) To adopt rules for the transaction of business and the
government and regulation of its governing body;
(46) Except as otherwise provided, to require and take bonds
from any officers, when considered necessary, payable to the
municipality, in its corporate name, with such sureties and in a
penalty as the governing body may see fit, conditioned upon the
faithful discharge of their duties;
(47) To require and take from the employees and contractors
such bonds in a penalty, with such sureties and with such
conditions, as the governing body may see fit;
(48) To investigate and inquire into all matters of concern to
the municipality or its inhabitants;
(49) To establish, construct, require, maintain and operate
such instrumentalities, other than free public schools, for the
instruction, enlightenment, improvement, entertainment, recreation
and welfare of the municipality's inhabitants as the governing body
may consider necessary or appropriate for the public interest;
(50) To create, maintain and operate a system for the
enumeration, identification and registration, or either, of the
inhabitants of the municipality and visitors thereto, or the
classes thereof as may be considered advisable;
(51) To require owners, residents or occupants of
factory-built homes situated in a factory-built rental home
community with at least ten factory-built homes, to visibly post the specific numeric portion of the address of each factory-built
home on the immediate premises of the factory-built home of
sufficient size to be visible from the adjoining street: Provided,
That in the event no numeric or other specific designation of an
address exists for a factory-built home subject to the
authorization granted by this subdivision, the municipality has the
authority to provide a numeric or other specific designation of an
address for the factory-built home and require that it be posted in
accordance with the authority otherwise granted by this section.
(52) To appropriate and expend not exceeding 25¢ per capita
per annum for advertising the municipality and the entertainment of
visitors;
(53) To conduct programs to improve community relations and
public relations generally and to expend municipal revenue for such
purposes;
(54) To reimburse applicants for employment by the
municipality for travel and other reasonable and necessary expenses
actually incurred by the applicants in traveling to and from the
municipality to be interviewed;
(55) To provide revenue for the municipality and appropriate
the same to its expenses;
(56) To create and maintain an Employee Benefits Fund which
may not exceed one tenth of one percent of the annual payroll
budget for general employee benefits and which is set up for the purpose of stimulating and encouraging employees to develop and
implement cost-saving ideas and programs and to expend moneys from
the fund for these purposes;
(57) To enter into reciprocal agreements with governmental
subdivisions or agencies of any state sharing a common border for
the protection of people and property from fire and for emergency
medical services and for the reciprocal use of equipment and
personnel for these purposes;
(58) To provide penalties for the offenses and violations of
law mentioned in this section, subject to the provisions of section
one, article eleven of this chapter, and such penalties may not
exceed any penalties provided in this chapter and chapter sixty-one
of this code for like offenses and violations; and
(59) To participate in a purchasing card program for local
governments authorized and administered by the State Auditor as an
alternative payment method.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 7B. UNIFORM REGULATION OF FIREARMS, AMMUNITION AND
FIREARM ACCESSORIES THROUGHOUT WEST VIRGINIA.
§61-7B-1. Legislative intent.
_____The purpose of this article is to establish within the
Legislature complete control over regulation and policy pertaining
to firearms, ammunition and firearm accessories in order to ensure that such regulation and policy is applied uniformly throughout
this state to each person subject to the state's jurisdiction and
to ensure protection of the right to keep and bear arms recognized
by the constitutions of the United States and of this state. This
section is to be liberally construed to accomplish its purpose.
§61-7B-2. Definitions.
_____As used in this section:
_____(a) "Ammunition" means fixed cartridge ammunition, shotgun
shells, the individual components of fixed cartridge ammunition and
shotgun shells, projectiles for muzzle-loading firearms and any
propellant used in firearms or ammunition.
_____(b) "Expressly authorized by a statute of this state" means
the power to regulate firearms, ammunition, or firearm accessories
is authorized by a duly-enacted state statute that specifically
mentions firearms, a particular type of firearm, ammunition, or a
particular type of ammunition.
_____(c) "Firearm accessory" means a device specifically designed
or adapted to enable the wearing or carrying about one's person, or
the storage or mounting in or on a conveyance, of a firearm, or an
attachment or device specifically designed or adapted to be
inserted into or affixed onto a firearm to enable, alter or improve
the functioning or capabilities of the firearm.
_____(d) "Firearm" has the same meaning as in section 2, article 7
of this chapter.
_____(e) "Person adversely affected" means any of the following:
_____A resident of this state who may legally possess a firearm
under the laws of this state and the United States and who either:
_____(A) Is subject to any manner of regulation alleged to be
promulgated or enforced in violation of this section, whether or
not specific enforcement action has been initiated or threatened
against that person or another person; or
_____(B) Would be, if the person were present in the political
subdivision in question, subject to any manner of regulation
alleged to be promulgated or enforced in violation of this section,
whether or not specific enforcement action has been initiated or
threatened against that person or another person.
_____(C) A person who otherwise has standing under the laws of this
state to bring an action under subsection (f).
_____(D) A membership organization the members of which include a
person described in subparagraphs (A) or (B) of this subdivision
and that is dedicated, in whole or in part, to protecting the
legal, civil, or constitutional rights of its membership.
_____(f) "Political subdivision" has the same meaning as in section
ten-a, article three, chapter five-a of this code.
_____"Reasonable expenses" include, but are not limited to,
attorney fees, expert witness fees, court costs, and compensation
for loss of income.
§61-7B-3. General rule.
_____(a) Except as otherwise provided in this section or as
expressly authorized by a statute of this state, the Legislature
hereby occupies and preempts the entire field of regulation in this
state touching in any way upon firearms, ammunition and firearm
accessories to the complete exclusion of any order, ordinance or
rule promulgated or enforced by any political subdivision of this
state.
_____(b) The authority of a political subdivision to regulate
firearms, ammunition, or firearm accessories may not be inferred
from its proprietary authority, home rule status or any other
inherent or general power.
_____(c) Any existing or future orders, ordinances, or rules
promulgated or enforced in violation of this section are null and
void.
§61-7B-4. Remedies for unlawful regulation.
_____(a) A person adversely affected by any order, ordinance, or
rule promulgated or enforced in violation of this section may file
suit in an appropriate court for declarative and injunctive relief
and for all actual and consequential damages attributable to the
violation.
_____(b) The court shall award reasonable expenses to a person
adversely affected if an action under this subsection results in
either:
_____(1) A final determination in favor of the person adversely affected; or
_____(2) Rescission, repeal, or amendment of the challenged manner
of regulation or enforcement after suit has been filed under
subdivision (1) but prior to a final determination by the court.
§61-7B-5. Exceptions.
_____This section may not be construed to prevent any of the
following:
_____(a) A duly organized law-enforcement agency of a political
subdivision from promulgating and enforcing rules pertaining to
firearms, ammunition or firearm accessories that it issues to or
that are used by the political subdivision's peace officers in the
course of their official duties.
_____(b) An employer from regulating or prohibiting an employee's
carrying or possession of firearms, firearm accessories or
ammunition during and in the course of the employee's official
duties.
_____(c) A court or administrative law judge from hearing and
resolving a case or controversy or issuing an opinion or order on
a matter within its jurisdiction.
_____(d) The enactment or enforcement of a generally applicable
zoning or business ordinance that includes firearms businesses
along with other businesses, provided that an ordinance designed or
enforced effectively to restrict or prohibit the sale, purchase,
transfer, manufacture or display of firearms, ammunition or firearm accessories that is otherwise lawful under the laws of this state
is in conflict with this section and is void.
_____(e) A political subdivision from enacting and enforcing rules
of operation and use for any firearm range owned or operated by the
political subdivision.
_____(f) A political subdivision from sponsoring or conducting any
firearm-related competition or educational or cultural program and
from enacting and enforcing rules for participation in or
attendance at such program: Provided, That nothing in this section
authorizes or permits a political subdivision to offer remuneration
for the surrender or transfer of a privately-owned firearm to the
political subdivision or another party as a method of reducing the
number of privately-owned firearms within the political
subdivision.
_____(g) Any official of a political subdivision with appropriate
authority and jurisdiction from enforcing any statute enacted by
the State Legislature.
_____(h) A political subdivision from leasing public property to
another person or entity for a firearm-related event on terms
agreeable to both parties.
§61-7B-6. Applicability and effective dates.
_____This article applies to an order, ordinance or rule adopted by
a political subdivision of this state or to official actions taken
by an employee or agent of such political subdivision, prior to or on or after the effective date of this article. The remedies
prescribed under section three of this article shall take effect
ninety days after the enactment date of this article to provide
political subdivisions an opportunity to come into compliance with
the provisions of this article.
_____This article applies to an order, ordinance or rule adopted by
a political subdivision of this state or to official actions taken
by an employee or agent of the political subdivision, prior to or
on or after the effective date of this article. The remedies
prescribed under section three of this article shall take effect
ninety days after the enactment date of this article to provide
political subdivisions an opportunity to come into compliance with
the provisions of this article.
NOTE: The purpose of this bill is to create a uniform
regulation of firearms, ammunition, and firearm accessories
throughout West Virginia solely determined by the Legislature
. It
states
legislative intent; provides definitions; general rules
relating to the regulation of firearms, ammunition and firearm
accessories; provides remedies for unlawful regulation; and
provides for exceptions. The bill removes references to regulation
of firearms by counties and municipalities. And, the bill provides
applicability
, grand fathering clause
and effective date of the new
article.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§61-7B-1, §61-7B-2, §61-7B-3, §61-7B-4, §61-7B-5 and §61-7B-6
are new; therefore, it has been completely underscored.