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Committee Substitute House Bill 2760 History

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HB2760 SUB
COMMITTEE SUBSTITUTE

FOR

H. B. 2760


          (By Delegates R. Phillips, Eldridge, Miley, Boggs, White, Marcum, Stowers, O'Neal, Hartman, Hamilton and Tomblin)

          (Originating in the           Committee on the Judiciary)

[March 6, 2013]


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     That §8-12-5a of the Code of West Virginia, 1931, as amended be repealed; that §7-1-3 of said code be amended and reenacted; that §8-12-5 be amended and reenacted; and that chapter 61 of said code be amended by adding thereto a new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 article:
_____(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 article 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 article 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. Upon the effective date of this article, any grandfathered municipal gun ordinances which were in effect at the time of the original passage of section five-a, article twelve, chapter eight of this code shall no longer be of any force or effect, to the extent they are in conflict with the provisions of this article.
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