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Introduced Version House Bill 4187 History

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WEST virginia legislature

2018 regular session

Introduced

House Bill 4187

By Delegates Foster, Graves, Butler, Summers, Zatezalo, R. Miller, Barret, Isner, Hollen and Blair

[Introduced January 18, 2018; Referred
to the Committee on Small Business Entrepreneurship and Economic Development then the Judiciary.]

A BILL to amend and reenact §61-7-14 of the code of West Virginia, 1931, as amended, relating to creating the “Business Liability Protection Act”; the right to limit possession of firearms on certain premises; providing definitions; misdemeanor criminal offense and penalty; prohibiting employers from certain specific actions against a person when that person possesses a firearm legally, including a condition of employment; providing a duty of care of public and private employers and immunity from liability; authorizing the Attorney General to enforce this statute, including the right to sue or seek injunctive relief; and providing for civil fines.

Be it enacted by the Legislature of West Virginia:


ARTICLE 7. DANGEROUS WEAPONS.


§61-7-14. Right of certain persons to limit possession of firearms on premises.


Notwithstanding the provisions of this article, any owner, lessee or other person charged with the care, custody and control of real property may prohibit the carrying openly or concealing of any firearm or deadly weapon on property under his or her domain: Provided, That for purposes of this section “person” means an individual or any entity which may acquire title to real property.

Any person carrying or possessing a firearm or other deadly weapon on the property of another who refuses to temporarily relinquish possession of the firearm or other deadly weapon, upon being requested to do so, or to leave the premises, while in possession of the firearm or other deadly weapon, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in jail not more than six months, or both: Provided, That the provisions of this section do not apply to a person as set forth in subdivisions (3) through (7), inclusive, subsection (a), section six of this article while the person is acting in an official capacity; and to a person as set forth in subdivisions (1) through (8), inclusive, subsection (b) of said section, while the person is acting in his or her official capacity: Provided, however, That under no circumstances, except as provided for by the provisions of paragraph (I), subdivision (2), subsection (b), section eleven-a of this article, may any person possess or carry or cause the possession or carrying of any firearm or other deadly weapon on the premises of any primary or secondary educational facility in this state unless the person is a law-enforcement officer or he or she has the express written permission of the county school superintendent

This section may known as “The Business Liability Protection Act”.

(a) As used in this section:

(1) “Parking lot” means any property that is used for parking motor vehicles and is available to customers, employees, or invitees for temporary or longterm parking or storage of motor vehicles: Provided, That for purposes of this section, parking lot does not include the private parking area at a business located at the primary residence of the property owner.

(2) “Motor vehicle” means any automobile, truck, minivan, sports utility vehicle, motor home, recreational vehicle, motorcycle, motor scooter, or any other vehicle operated on the roads of this state and required to be registered under state law.

(3) “Employee” means any person, who is over eighteen years of age, not prohibited from possessing firearms by the provisions of this code or federal law and:

(A) Works for salary, wages, or other remuneration;

(B) Is an independent contractor; or

(C) Is a volunteer, intern, or other similar individual for an employer.

(4) “Employer” means any business that is a sole proprietorship, partnership, corporation, limited liability company, professional association, cooperative, joint venture, trust, firm, institution or association, or public sector entity, that has employees.

(5) “Invitee” means any business invitee, including a customer or visitor, who is lawfully on the premises of a public or private employer.

(b) Notwithstanding the provisions of this article, any owner, lessee, or other person charged with the care, custody, and control of real property may prohibit the carrying openly or concealed of any firearm or deadly weapon on property under his or her domain: Provided, That for purposes of this section “person” means an individual or any entity which may acquire title to real property.

(c) Any person carrying or possessing a firearm or other deadly weapon on the property of another who refuses to temporarily relinquish possession of the firearm or other deadly weapon, upon being requested to do so, or to leave the premises, while in possession of the firearm or other deadly weapon, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in jail not more than six months, or both fined and confined: Provided, That the provisions of this section do not apply to a person as set forth in §61-7-6(a)(3) through §61-7-6(a) (7) of this code while the person is acting in an official capacity; and to a person as set forth in §61-7-6(b)(1) through §61-7-6(b) (8) of this code while the person is acting in his or her official capacity:  Provided, That under no circumstances, except as provided for by §61-7-11(a)(1) (2) of this code may any person possess or carry or cause the possession or carrying of any firearm or other deadly weapon on the premises of any primary or secondary educational facility in this state unless the person is a law-enforcement officer or he or she has the express written permission of the county school superintendent.

(d) Prohibited acts.

(1) No public or private employer may prohibit any customer, employee, or invitee from possessing any legally owned firearm when the firearm is lawfully possessed and locked inside or locked to a private motor vehicle in a parking lot and when the customer, employee, or invitee is lawfully in that area.

(2) No public or private employer may violate the privacy rights of a customer, employee, or invitee by verbal or written inquiry regarding the presence of a firearm inside or locked to a private motor vehicle in a parking lot or by an actual search of a private motor vehicle in a parking lot to ascertain the presence of a firearm within the vehicle. Further, no public or private employer may take any action against a customer, employee, or invitee based upon verbal or written statements of any party concerning possession of a firearm stored inside a private motor vehicle in a parking lot for lawful purposes. A search of a private motor vehicle in the parking lot of a public or private employer to ascertain the presence of a firearm within the vehicle may only be conducted by onduty law-enforcement personnel, based upon due process and must comply with constitutional protections.

(3) No public or private employer may condition employment upon either:

(A) The fact that an employee or prospective employee holds or does not hold a license issued pursuant to §61-7-4 or §61-7-4(a) of this code; or

(B) Any agreement by an employee or a prospective employee that prohibits an employee from keeping a legal firearm locked inside or locked to a private motor vehicle in a parking lot when the firearm is kept for lawful purposes.

(4) No public or private employer may prohibit or attempt to prevent any customer, employee, or invitee from entering the parking lot of the employer’s place of business because the customer’s, employee’s, or invitee’s private motor vehicle contains a legal firearm being carried for lawful purposes, that is out of sight within the customer’s, employee’s, or invitee’s private motor vehicle.

(e) Duty of care of public and private employers; immunity from liability. --

(1) When subject to the provisions of subsection (d) of this section, a public or private employer has no duty of care related to the actions prohibited under that subsection.

(2) A public or private employer is not liable in a civil action based on actions or inactions taken in compliance with this section. The immunity provided in this section does not apply to civil actions based on actions or inactions of public or private employers that are unrelated to compliance with this section.

(3) Nothing contained in this section may be interpreted to expand any existing duty or create any additional duty on the part of a public or private employer, property owner, or property owner’s agent.

(f) Enforcement. – The Attorney General is authorized to enforce the provisions of this section and may bring a civil action to restrain a public or private employer from violating this section:

(1) For injunctive or other appropriate equitable relief to protect the exercise or enjoyment of the rights secured in this section to any customer, employee, or invitee of a public or private employer, or

(2) For civil penalties of no more than $5,000 for each violation of this section and all costs and attorney’s fees associated with bringing the action; or

(3) For both equitable relief and civil penalties, including costs and attorney’s fees. This action must be brought in the name of the state and instituted in the circuit court of Kanawha County.  The Attorney General may negotiate a settlement with any employer in the course of his or her enforcement of this section.

The grant of authority to the Attorney General in this section does not affect the right of a person aggrieved under this section to bring a civil action for violation of rights protected under the section in his or her name and instituted in the circuit court for the county where the alleged violator resides or has a principal place of business or where the alleged violation occurred.  In any successful action brought by a customer, employee, or invitee aggrieved under this section, the court may award injunctive relief and all reasonable personal costs and losses suffered by the aggrieved person because of the violation of rights under this section.  In any action brought by an aggrieved person pursuant to this section, the court shall award all court costs and attorney’s fees to the prevailing party.

 

NOTE: The purpose of this bill is to create the “Business Liability Protection Act”.  The bill includes the right to limit possession of firearms on certain premises and definitions.  It also provides for misdemeanor criminal offense and penalty.  It prohibits employers from certain specific actions against a person when that person possesses a firearm legally, including a condition of employment.  The bill provides a duty of care of public and private employers and provides for immunity from liability. The bill authorizes the Attorney General to enforce this statute, including the right to sue or seek injunctive relief; and seek civil fines.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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