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Introduced Version Senate Bill 715 History

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Senate Bill No. 715

(By Senator Sypolt)

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[Introduced February 19, 2007; referred to the Committee on the Judiciary.]

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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; to amend and reenact §61-7-2, §61-7-11a and §61-7-14 of said code; and to amend said code by adding thereto two new sections, designated §61- 7-13 and §61-7-16, all relating to limitations upon the keeping and bearing of arms; defining terms; repealing language concerning county and municipal ordinances restricting firearms or ammunition; creating additional exceptions to certain restrictions on where deadly weapons may be possessed; declaring the provisions of said code to be the sole means by which the keeping and bearing of arms may be regulated; preempting any ordinance, rule, policy or administrative action inconsistent therewith; exceptions; authorizing public property owners to prohibit or restrict the possession of deadly weapons in secure restricted access areas; requiring all property owners that have legally restricted or prohibited the possession or carrying of weapons on their premises to give notice of such prohibitions or restrictions by posting specified signs; format of signs; and effect of failure to properly post signs indicating such prohibition or restriction.

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That §8-12-5a of the Code of West Virginia, 1931, as amended, be repealed; that §8-12-5 of said code be amended and reenacted; that §7-1-3, that §8-12-5 of said code be amended and reenacted; that §61-7-2, §61-7-11a and §61-7-14 of said code be amended and reenacted; and that said code be amended by adding thereto two new sections, designated, §61-7-13 and 61-7-16, all to read as follows:
ARTICLE 12. GENERAL AND SPECIFIC POWERS, DUTIES AND ALLIED RELATIONS OF MUNICIPALITIES, GOVERNING BODIES AND MUNICIPAL OFFICERS AND EMPLOYEES; SUITS AGAINST MUNICIPALITIES.
§1. Repeal of section relating to limitations upon municipalities' power to restrict the purchase, possession, transfer, ownership, carrying, transport, sale and storage of certain weapons and ammunition.

§8-12-5a of the Code of West Virginia, 1931, as amended, is hereby repealed.
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: Provided, That any regulation of the keeping of gunpowder may not act, directly or indirectly, to prohibit the otherwise lawful ownership of gunpowder or ammunition;
(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) (16) To arrest, convict and punish any person for importing, printing, publishing, selling or distributing any pornographic publications;
(18) (17) 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) (18) To prevent and suppress conduct and practices which are immoral, disorderly, lewd, obscene and indecent;
(20) (19) To prevent the illegal sale of intoxicating liquors, drinks, mixtures and preparations;
(21) (20) 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) (21) 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) (22) 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) (23) 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) (24) To protect places of divine worship and to preserve peace and order in and about the premises where held;
(26) (25) 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) (26) 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) (27) 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) (28) 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) (29) To prohibit with or without zoning the location of occupied house trailers or mobile homes in certain residential areas;
(31) (30) To regulate the location and placing of signs, billboards, posters and similar advertising;
(32) (31) 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) (32) 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) (33) To establish, construct, acquire, maintain and operate and regulate markets and prescribe the time of holding the same;
(35) (34) To regulate and provide for the weighing of articles sold or for sale;
(36) (35) 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) (36) 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) (37) To establish, construct, acquire, maintain and operate a public library or museum or both for public use;
(39) (38) 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) (39) 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) (40) To establish, construct, acquire, maintain and operate hospitals, sanitaria and dispensaries;
(42) (41) 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) (42) 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) (43) To protect and promote the public morals, safety, health, welfare and good order;
(45) (44) To adopt rules for the transaction of business and the government and regulation of its governing body;
(46) (45) 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) (46) 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) (47) To investigate and inquire into all matters of concern to the municipality or its inhabitants;
(49) (48) 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) (49) 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) (50) 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) (51) To appropriate and expend not exceeding twenty-five cents per capita per annum for advertising the municipality and the entertainment of visitors;
(53) (52) To conduct programs to improve community relations and public relations generally and to expend municipal revenue for such purposes;
(54) (53) 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) (54) To provide revenue for the municipality and appropriate the same to its expenses;
(56) (55) 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) (56) 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; and
(58) (57) 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.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 7. DANGEROUS WEAPONS.
§61-7-2. Definitions.
As used in this article, unless the context otherwise requires:
(1) "Blackjack" means a short bludgeon consisting, at the striking end, of an encased piece of lead or some other heavy substance and, at the handle end, a strap or springy shaft which increases the force of impact when a person or object is struck. The term "blackjack" shall include, but not be limited to, a billy, billy club, sand club, sandbag or slapjack.
(2) "Gravity knife" means any knife that has a blade released from the handle by the force of gravity or the application of centrifugal force and when so released is locked in place by means of a button, spring, lever or other locking or catching device.
(3) "Knife" means an instrument, intended to be used or readily adaptable to be used as a weapon, consisting of a sharp-edged or sharp-pointed blade, usually made of steel, attached to a handle which is capable of inflicting cutting, stabbing or tearing wounds. The term "knife" shall include, but not be limited to, any dagger, dirk, poniard or stiletto, with a blade over three and one-half inches in length, any switchblade knife or gravity knife and any other instrument capable of inflicting cutting, stabbing or tearing wounds. A pocket knife with a blade three and one-half inches or less in length, a hunting or fishing knife carried for hunting, fishing, sports or other recreational uses, or a knife designed for use as a tool or household implement shall not be included within the term "knife" as defined herein unless such knife is knowingly used or intended to be used to produce serious bodily injury or death.
(4) "Switchblade knife" means any knife having a spring-operated blade which opens automatically upon pressure being applied to a button, catch or other releasing device in its handle.
(5) "Nunchuka" means a flailing instrument consisting of two or more rigid parts, connected by a chain, cable, rope or other nonrigid, flexible or springy material, constructed in such a manner as to allow the rigid parts to swing freely so that one rigid part may be used as a handle and the other rigid part may be used as the striking end.
(6) "Metallic or false knuckles" means a set of finger rings attached to a transverse piece to be worn over the front of the hand for use as a weapon and constructed in such a manner that, when striking another person with the fist or closed hand, considerable physical damage may be inflicted upon the person struck. The terms "metallic or false knuckles" shall include any such instrument without reference to the metal or other substance or substances from which the metallic or false knuckles are made.
(7) "Pistol" means a short firearm having a chamber which is integral with the barrel, designed to be aimed and fired by the use of a single hand.
(8) "Revolver" means a short firearm having a cylinder of several chambers that are brought successively into line with the barrel to be discharged, designed to be aimed and fired by the use of a single hand.
(9) "Deadly weapon" means an instrument which is designed to be used to produce serious bodily injury or death or is readily adaptable to such use. The term "deadly weapon" shall include, but not be limited to, the instruments defined in subdivisions (1) through (8), inclusive, of this section a firearm, antique firearm, black jack, nunchuka, metallic or false knuckles, knife or other deadly weapons of like kind or character which may be easily concealed on or about the person. For the purposes of section one- a, article five, chapter eighteen-a of this code and section eleven-a, article seven of this chapter, in addition to the definition of "knife" set forth in subdivision (3) of this section, the term "deadly weapon" also includes any instrument included within the definition of "knife" with a blade of three and one-half inches or less in length. Additionally, for the purposes of section one-a, article five, chapter eighteen-a of this code and section eleven-a, article seven of this chapter, the term "deadly weapon" includes explosive, chemical, biological and radiological materials. Notwithstanding any other provision of this section, the term "deadly weapon" does not include any item or material owned by the school or county board, intended for curricular use, and used by the student at the time of the alleged offense solely for curricular purposes.
(10) "Concealed" means hidden from ordinary observation so as to prevent disclosure or recognition. A deadly weapon is concealed when it is carried on or about the person in such a manner that another person in the ordinary course of events would not be placed on notice that the deadly weapon was being carried.
(11) "Firearm" means:
(A) Any weapon (including a starter pistol) which will or is designed to expel a projectile by action of an explosion.
(B) The frame or receiver of any such weapon; or
(C) Any firearm silencer.
The term does not include an antique firearm unless the antique firearm is used in the commission of a crime.
(12) "Controlled substance" has the same meaning as is ascribed to that term in subsection (d), section one hundred one, article one, chapter sixty-a of this code.
(13) "Drug" has the same meaning as is ascribed to that term in subsection (1), section one hundred one, article one, chapter sixty-a of this code.
(14) "Alien" means any person not a citizen or national of the United States.
(15) "Ammunition" means ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any firearm.
(16) "Antique firearm" means:
(A) Any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or
(B) Any replica of any firearm described in paragraph (A) if such replica:
(i) Is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition; or
(ii)Uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or
(C) Any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this paragraph, the term "antique firearm" shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.
(17) "Conviction" or "convicted," for the purposes of determining whether a person is disqualified under this article from shipping, transporting, possessing or receiving any firearm or other deadly weapon or obtaining a concealed weapon license, does not include any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored, unless such pardon, expungement or restoration of civil rights expressly provides that the person may not ship, transport, possess or receive firearms. What constitutes a conviction of a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.
(18) "Courthouse" means any premises other than the State Capitol Complex which houses a state court facility and, when a building is occupied entirely by county or other government offices, including a state court facility, includes the entire building, exclusive of any parking lot or other area set aside for vehicular travel or parking.
(19) "Crime punishable by imprisonment for a term exceeding one year" does not include:
(A) Any federal or state offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices; or
(B) Any state offense classified by the laws of the state as a misdemeanor and punishable by a term of imprisonment of two years or less.
(20) "Family or household member" has the same meaning as in §48-27-204.
(21) "Firearm silencer" means any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer, and any part intended only for use in such assemble or fabrication.
(22) " Fugitive from justice" means any person who has fled from any state to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding.
(23) "Handgun" means any firearm which has a short stock and is designed to be held and fired by the use of a single hand and includes any pistol or revolver.
(24) "Intimate partner" means, with respect to a person, the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person.
(25) "Intoxicated":
(A) Means:
(i) Not having the normal use of mental or physical faculties by reason of being under the influence of alcohol, a controlled substance, a drug, or any combination thereof; or
(ii) Having a blood alcohol concentration of eight hundredths of one percent or more, by weight; and
(B) §17C-5-8 and §17C-5-9 shall apply to this article mutatis mutandis for determining whether a person is intoxicated and protecting the right of a person to an independent chemical test within a timely manner.
(26) "Law-enforcement officer" has the same meaning as in §30- 29-1.
(27) "Law-enforcement official" has the same meaning as in §30-29-1.
(28) "Loaded," with respect to a firearm, means that the firearm:
(A) Has live, unexpended ammunition in the firing position or a position whereby the manual operation of any mechanism once would cause live, unexpended ammunition to be fired;
(B) Has live, unexpended ammunition in a clip or magazine that is locked in place in the firearm;
(C) Has live, unexpended ammunition in the cylinder, if the firearm is a revolver; or
(D) Is capped or primed and has a powder charge and ball or shot in the barrel or cylinders, if the firearm is a muzzle-loader.
A firearm is not loaded solely because a loaded clip, magazine or speed-loader is readily accessible for immediate use or loading of an otherwise unloaded firearm.
(29) (A) Except as otherwise provided in this subdivision, "misdemeanor crime of domestic violence" means an offense that:
(i) Is a misdemeanor under federal or state law; and
(ii) Has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
(B) A person shall not be considered to have been convicted of such an offense for purposes of this article, unless:
(i) The person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
(ii) In the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either:
(I) The case was tried by a jury; or
(II) The person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
(30) " Private property owner" means any property owner other than a public property owner.
(31) "Property owner" means an owner, lessee or other person charged with the care, custody and control of real property. For the purposes of this definition, "person" means an individual or any entity which may acquire title to real property.
(32) "Public property owner" means this state, any county, any municipality or any institution, agency or other instrumentality thereof, in its capacity as a property owner.
(33) "Readily accessible for immediate use" means that a firearm, ammunition or other deadly weapon is carried on the person or within such close proximity and in such a manner that it can be retrieved and used as easily and quickly as if carried on the person.
(34) "School bus" has the same meaning as in §17A-1-1.
(35) "School property":
(A) Means:
(i) Any public or private elementary, middle or secondary school building and its improved grounds, whether leased or owned by the school, including any vocational education building, structure, facility or grounds thereof where secondary vocational education programs are conducted; or
(ii) The area within a school bus when that school bus is being used by any school described in subparagraph (i) of this paragraph to transport one or more elementary, middle or secondary school students to and from school-related activities, including curricular, cocurricular, noncurricular, extracurricular and supplementary activities; but
(B) Does not include:
(i) Any institution of higher education, public or private; or
(ii) Any school bus when not in use.
(36) "Secure restricted access area":
(A) Means a secure area beyond a security perimeter and security checkpoints where all visitors are screened for weapons prohibited within the area, a secure weapon storage area is provided and in which the safety of all occupants of the area is protected by the security perimeter and the significant presence of law-enforcement officers or professional security guards; and
(B) Does not include common areas of ingress and egress open to the general public outside the security perimeter and checkpoints.
(37) "Secure weapon storage area" means a facility maintained in conjunction with a secure restricted access area, school, courthouse or state court facility that:
(A) Provides free storage of any deadly weapon otherwise lawful for the depositor to possess whose possession within the secure restricted access area, school, courthouse or state court facility is prohibited;
(B) Tags each weapon stored and issues a corresponding receipt that protects the weapon from misplacement or erroneous transfer and enables the depositor to retrieve the weapon upon exiting the secure restricted access area, school, courthouse or state court facility; and
(C) Which is open for retrieval at all times the secure restricted access area, school, courthouse or state court facility is occupied plus a reasonable amount of time thereafter for a depositor who has lawfully entered and remained in the secure restricted access areas, school, courthouse or state court facility to retrieve the weapon and not be unduly denied restoration of his or her lawful possession of the weapon upon leaving the secure restricted access area, school, courthouse or state court facility.
(38) "State court facility" means the courtroom, judges' chambers, witness rooms, jury deliberation rooms, attorney conference rooms, prisoner holding cells, offices of the court clerks, the prosecuting attorney and the probation and parole offices, and adjoining corridors of any court created by the constitution or laws of this state.
(39) "Unloaded":
(A) With respect to a firearm, means the state of a firearm not being loaded; and
(B) With respect to a firearm employing a percussion cap, flintlock, or other obsolete ignition system, in addition to the circumstances described in paragraph (A) of this subdivision, the firearm is "unloaded" when the weapon is uncapped or when the priming charge is removed from the pan.
§61-7-11a. Possessing deadly weapons on premises of educational facilities; reports by school principals; suspension of driver license; possessing deadly weapons on premises housing courts of law and in offices of family law master.

(a) The Legislature hereby finds that the safety and welfare of the citizens of this state are inextricably dependent upon assurances of safety for children attending, and the persons employed by, schools in this state and for those persons employed with the judicial department of this state. It is for the purpose of providing such assurances of safety, therefore, that subsections (b), (g) and (h) of this section are enacted as a reasonable regulation of the manner in which citizens may exercise those rights accorded to them pursuant to section twenty-two, article three of the Constitution of the State of West Virginia.
(b) (1) It shall be unlawful for any Except as otherwise provided in this subsection, no person to may possess any firearm or any other deadly weapon:
(A) On any school property; or bus as defined in section one, article one, chapter seventeen-a of this code, or in or on any public or private primary or secondary education building, structure, facility or grounds thereof, including any vocational education building, structure, facility or grounds thereof where secondary vocational education programs are conducted or at any school-sponsored function.
(B) That portion of any property other than school property that is open to the public and then exclusively used for school-sponsored functions or extracurricular activities while such functions or activities are occurring; or
(C) If the person is a minor or is a student of any primary or secondary school, at any school-sponsored function or extracurricular activity.
(2) This subsection shall not apply to:
(A) A law-enforcement officer acting in his or her official capacity; Any person authorized to carry a concealed deadly weapon pursuant to subdivisions (3) through (6) of section six of this article.
(B) A person specifically authorized by the board of education of the county or principal of the school where the property is located to conduct programs with valid educational purposes;
(C) A person who, as otherwise permitted by the provisions of this article, possesses an unloaded firearm or any deadly weapon other than a loaded firearm in a motor vehicle, or leaves an unloaded firearm or deadly weapon in a locked motor vehicle other than a school bus;
(D) Any person who is licensed or otherwise authorized by law to carry a concealed handgun and possesses or carries a handgun, loaded or unloaded, within a motor vehicle other than a school bus or leaves a handgun, loaded or unloaded, in a locked motor vehicle other than a school bus;
(D) (E) Programs or raffles conducted with the approval of the county board of education or school which include the display of unloaded firearms or other deadly weapons; or
(F) Any person who possesses a deadly weapon as a part of any program sponsored or facilitated by either the school or any organization authorized by the school to conduct its programs either on or off the school premises;
(G) A person possessing a knife or blade which he or she uses customarily in his or her occupation, profession or trade;
(E) (H) The official mascot of West Virginia University, commonly known as "The Mountaineer," acting in his or her official capacity.
(I) A person transporting a deadly weapon other than a loaded firearm, while traversing school premises for the purpose of gaining access to public or private lands open to hunting; or (J) Any person authorized by the county school superintendent in the case of the county schools, or the chief administrative officer of a private school, in writing, to carry such weapon.
Any exemption contained within this subsection only exempts a person from the provisions of this subsection and does not constitute an exemption from any other provision of this article, including, but not limited to, §61-7-3.
(3) Each principal or other chief administrator of a public or private school shall display at all public entrances to school buildings, sports arenas, gymnasiums, stadiums, and cafeterias; at the corners of school property that make a turn of thirty (30) degrees or more and are not enclosed by fences, walls, or other complete barriers with gates or controlled entrances; at the gate or controlled entrances of enclosed properties; and at the entrance of any access road for all open areas owned, operated, leased, or controlled by the school, signs conforming to the specifications of §61-7-16, which shall contain the following text:
"UNLAWFUL POSSESSION OF A WEAPON ON SCHOOL PROPERTY IN WEST VIRGINIA IS A FELONY."
"POSTED PURSUANT TO WEST VIRGINIA CODE §61-7-11a."
Failure to post the required signs shall bar any prosecution under this subsection of any person who is at least eighteen years of age and not a student of a primary or secondary school. Failure to post the required signs shall not prohibit any prosecution or other disciplinary action against any minor or student.
(3) (4) Any person violating this subsection shall be is guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary of this state for a definite term of years of not less than two years nor more than ten years, or fined not more than five one hundred thousand dollars, or both.
(c) It shall be the duty of the The principal of each school subject to the authority of the State Board of Education to shall report any violation of subsection (b) of this section discovered by such principal to the State Superintendent of Schools within seventy-two hours after such violation occurs. The State Board of Education shall keep and maintain such reports and may prescribe rules establishing policy and procedures for the making and delivery of the same as required by this subsection. In addition, it shall be the duty of the principal of each school subject to the authority of the State Board of Education to shall also report any violation of subsection (b) of this section discovered by such principal to the appropriate local office of the division of public safety State Police within seventy-two hours after such violation occurs.
(d) In addition to the methods of disposition provided by article five, chapter forty-nine of this code, any court which adjudicates a person who is fourteen years of age or older as delinquent for a violation of subsection (b) of this section may, in its discretion, order the Division of Motor Vehicles to suspend any driver's license or instruction permit issued to such person for such period of time as the court may deem appropriate, such suspension, however, not to extend beyond such person's nineteenth birthday; or, where such person has not been issued a driver's license or instruction permit by this state, order the Division of Motor Vehicles to deny such person's application for the same for such period of time as the court may deem appropriate, such denial, however, not to extend beyond such person's nineteenth birthday. Any suspension ordered by the court pursuant to this subsection shall be effective upon the date of entry of such order. Where the court orders the suspension of a driver's license or instruction permit pursuant to this subsection, the court shall confiscate any driver's license or instruction permit in the adjudicated person's possession and forward the same to the Division of Motor Vehicles.
(e) (1) If a person eighteen years of age or older is convicted of violating a felony under subsection (b) of this section, and if such person does not act to appeal such conviction within the time periods described in subdivision (2) of this subsection, such person's license or privilege to operate a motor vehicle in this state shall be revoked in accordance with the provisions of this section.
(2) The clerk of the court in which the person is convicted as described in subdivision (1) of this subsection shall forward to the Commissioner of Motor Vehicles a transcript of the judgment of conviction. If the conviction is the judgment of a magistrate court, the magistrate court clerk shall forward such transcript when the person convicted has not requested an appeal within twenty days of the sentencing for such conviction. If the conviction is the judgment of a circuit court, the circuit clerk shall forward such transcript when the person convicted has not filed a notice of intent to file a petition for appeal or writ of error within thirty days after the judgment was entered.
(3) If, upon examination of the transcript of the judgment of conviction, the Commissioner shall determine of Motor Vehicles determines that the person was convicted as described in subdivision (1) of this subsection, the commissioner shall make and enter an order revoking such person's license or privilege to operate a motor vehicle in this state for a period of one year, or, in the event if the person is a student enrolled in a secondary school, for a period of one year or until the person's twentieth birthday, whichever is the greater period. The order shall contain the reasons for the revocation and the revocation period. The order of suspension shall advise the person that because of the receipt of the court's transcript, a presumption exists that the person named in the order of suspension is the same person named in the transcript. The commissioner may grant an administrative hearing which substantially complies with the requirements of the provisions of section two, article five-a, chapter seventeen-c of this code upon a preliminary showing that a possibility exists that the person named in the notice of conviction is not the same person whose license is being suspended. Such request for hearing shall be made within ten days after receipt of a copy of the order of suspension. The sole purpose of this hearing shall be for the person requesting the hearing to present evidence that he or she is not the person named in the notice. In the event If the Commissioner of Motor Vehicles grants an administrative hearing, the commissioner shall stay the license suspension pending the commissioner's order resulting from the hearing.
(4) For the purposes of this subsection, a person is convicted when such person enters a plea of guilty or is found guilty by a court or jury.
(f) (1) It shall be unlawful for any parent(s), guardian(s) or custodian(s). of a person less than eighteen years of age an unemancipated minor who knows that said person the unemancipated minor is in violation of subsection (b) of this section, or who has reasonable cause to believe that said person's unemancipated minor's violation of said subsection is imminent, to fail to immediately report such knowledge or belief to the appropriate school or law-enforcement officials.
(2) Any person violating this subsection shall be is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one ten thousand dollars, or shall be confined in jail for not more than one year, or both.
(g) (1) It shall be unlawful for Except as provided by subdivision (2) of this subsection, any person to possess who possesses any firearm or any other deadly weapon on any premises which houses a court of law or in the offices of a family law master. within any courthouse or state court facility is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than ten thousand dollars, confined in jail for not more than one year, or both.
(2) This subsection shall not apply to:
(A) A law-enforcement officer acting in his or her official capacity; and Any person who is licensed to carry a concealed deadly weapon pursuant to subsection (b), section six of this article.
(B) A person who is licensed to carry a concealed handgun, except within a secure restricted access area or a state court facility; or
(B) (C) A person exempted from the provisions of this subsection by order of record entered by a court with jurisdiction over such premises or offices. the applicable state court facility.
(3) Any person violating this subsection shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one thousand dollars, or shall be confined in jail not more than one year, or both. Any state court facility without a secure restricted access area shall provide a secure weapon storage area in the same manner required of a secure restricted access area. The lack of any secure weapon storage area does not exempt any person from compliance with subdivision (1) of this subsection.
(4) The chief judge having jurisdiction over a state court facility shall cause to be displayed at all public entrances to the state court facility and courthouse, signs conforming to the specifications of §61-7-16, which shall contain the following text:
"POSSESSION OF A WEAPON IN A COURTHOUSE IN WEST VIRGINIA, WITHOUT A CONCEALED HANDGUN LICENSE, IS PROHIBITED BY LAW.
"POSSESSION OF ANY WEAPON, WITHOUT A LICENSE, WITHIN A STATE COURT FACILITY OR SECURE RESTRICTED ACCESS AREA IS PROHIBITED BY LAW.
"A SECURE WEAPON STORAGE AREA IS AVAILABLE FOR THE SECURE, LAWFUL STORAGE OF YOUR WEAPON DURING YOUR VISIT.
"POSTED PURSUANT TO WEST VIRGINIA CODE §61-7-11a."
failure to post the required signs shall prohibit any prosecution under this subsection of any person licensed or otherwise authorized to carry a concealed handgun. Failure to post the required signs shall not prohibit any prosecution under this subsection of any other person.
(h) (1) It shall be unlawful for any Any person to possess who, with the intent to commit any crime, possesses any firearm or any other deadly weapon within any courthouse or state court facility on any premises which houses a court of law or in the offices of a family law master with the intent to commit a crime.
(2) Any person violating this subsection shall be is guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary of this state for a definite term of years of not less than two years nor more than ten years, or fined not more than five one hundred thousand dollars, or both.
(i) Nothing in this section may be construed to be in conflict with the provisions of federal law.
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-13. Uniform law.
(a) This article is uniformly applicable throughout this state and in all its political subdivisions and municipalities. The individual right to keep and bear arms, being a fundamental individual right that predates the Second Amendment of the United States Constitution and Article III, §23 of the State Constitution, and being a constitutionally protected right in every part of this state, the Legislature finds the need to provide uniform laws throughout the state regulating the ownership, possession, purchase, other acquisition, transport, storage, carrying, sale or other transfer of firearms, their components and their ammunition.
(b) Except as specifically provided by the United States Constitution, the Constitution of this state, federal law or a specific provision of this code, any person, without further license, permission, restriction, delay or process, may own, possess, purchase, sell, transfer, transport, store or keep any firearm, part of a firearm, its components and its ammunition. No department, agency, authority, board, commission, council or other entity of this state or any political subdivision thereof may enact or enforce any ordinance, resolution, motion, rule or policy, and no officer, director, appointee, employee or agent of any such entity may take any administrative action, pertaining to firearms, their components or their ammunition other than those expressly authorized by the Legislature by statute. For purposes of this subsection, a statute that does not expressly refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization.
(c) In addition to any other relief provided, the court shall award costs and reasonable attorney fees to any person, group or entity that prevails in a challenge to an ordinance, resolution, motion, rule, policy or administrative action as being in conflict with this section.
(d) In this section, the possession, transporting or carrying of firearms, their components or their ammunition include, but are not limited to, the possession, transporting or carrying, openly or concealed on a person's person or concealed ready at hand, of firearms, their components or their ammunition.
(e) This section does not apply to any of the following:
(1) A county or municipal zoning ordinance that regulates or prohibits the commercial sale of firearms, firearm components or ammunition for firearms in areas zoned for residential or agricultural uses;
(2) A county or municipal zoning ordinance that specifies the hours of operation or the geographic areas where the commercial sale of firearms, firearm components or ammunition for firearms may occur, provided that the zoning ordinance is consistent with zoning ordinances for other retail establishments in the same geographic area and does not result in a de facto prohibition of the commercial sale of firearms, firearm components or ammunition for firearms in areas zoned for commercial, retail or industrial uses;
(3) The establishment of a secure restricted access area and a secure weapon storage area in a public building and the restriction of weapons in the secure restricted access area in a manner that does not violate §61-7-14;
(4) The actions of a law-enforcement officer acting within the scope of his or her official duties;
(5) Any rules or administrative actions of a state, local or regional correctional facility; or
(6) Any rule adopted by the governing authority of a state institution of higher education relating to students receiving military training in the Reserved Officers' Training Corps or other military training program administered by the educational institution or relating to students engaging in athletic events.
§61-7-14. Right of certain persons to limit possession of firearms or other deadly weapons on premises; limited immunity from civil liability.

(a) Notwithstanding the provisions of this article, and except as otherwise provided in this section, any owner, lessee or other person charged with the care, custody and control of real private property owner may prohibit or restrict 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.
(b) Notwithstanding any provision of this code to the contrary, no public property owner, nor any officer, employee or agent of a public property owner, may prohibit or restrict, by a person licensed to carry a concealed weapon or authorized by federal law or the laws of this state to carry a concealed weapon without a license, the lawful possession or carrying of any deadly weapon whose possession by that person does not violate federal law or the laws of this state, except in a secure restricted access area or those places where carrying firearms or other deadly weapons is prohibited by this code or by federal law.
(c) No person, property owner, tenant, employer or business entity shall be liable in any civil action for any occurrence that results from or is connected to the use of a deadly weapon that was lawfully stored, carried or possessed, unless the person, property owner, tenant, employer or business entity commits a criminal act involving the use of the deadly weapon.
(d) Any person carrying or possessing a firearm or other deadly weapon on the property of another who refuses to temporarily relinquish possession of such firearm or other deadly weapon, upon being lawfully requested to do so, or to leave such premises, while in possession of such firearm or other deadly weapon, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be is fined not more than one thousand dollars or confined in jail for not more than six months, or both. Provided, That the provisions of
(e) Any prohibition or restriction on possessing or carrying any weapon under this section shall not apply to those persons set forth in subsections (3) through (6) of section six of this code §61-7-6. while such persons are acting in an official capacity: Provided, however, That under no circumstances 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 such person is a law-enforcement officer or he or she has the express written permission of the county school superintendent. Except in the case of a prohibition or restriction applicable to a private residence established by the private property owner, and regardless of whether actual or effective notice is given by other means, no prohibition or restriction on possessing or carrying any weapon under this section shall be valid unless signs are posted pursuant to §61-7-16. No person, otherwise lawfully possessing or carrying any deadly weapon, may be subjected to any adverse action by any property owner, employer or other person for violating any prohibition or restriction on possessing or carrying such weapon unless notice of such prohibition or restriction has been given in the form required by this section.
§61-7-16. Regulation of signs prohibiting weapons; failure to post constitutes defense.

(a) All signs indicating a prohibition or restriction on possessing or carrying handguns or other deadly weapons must be in the form prescribed by this section.
(b) A sign regulated by this section shall not be valid or enforceable unless the sign:
(1) Expresses the prohibition in both written language interdict and universal sign language;
(2) Is posted at each entrance into a building where a person is prohibited or restricted from carrying a designated weapon, including each separate entry door at any entrance equipped with more than one door, and must be:
(A) Clearly visible from outside the building from a distance of at least thirty feet;
(B) Not less than eight inches wide by twelve inches tall in size;
(C) Contain in black one-inch tall or larger uppercase type at the bottom of the sign and centered between the lateral edges of the sign, words indicating the nature of the prohibition;
(D) Contain a black silhouette of a handgun inside a red circle at least seven inches in diameter with a red diagonal line that runs from the lower left to the upper right at a forty-five degree angle from the horizontal;
(E) A diameter of a circle; and
(F) Placed not less than forty inches and not more than sixty inches from the bottom of the building's entrance door; and
(3) If the premises where designated weapons are prohibited does not have doors, then the signs contained in subdivision (1) of this subsection must be:
(A) Not less than thirty-six inches wide by forty-eight inches tall in size;
(B) Contain in black three-inch tall or larger uppercase type at the bottom of the sign and centered between the lateral edges of the sign, words indicating the nature of the prohibition or restriction;
(C) Contain a black silhouette of a handgun inside a red circle at least thirty-four inches in diameter with a red diagonal line that is at least two inches wide and runs from the lower left to the upper right at a forty-five degree angle from the horizontal and must be a diameter whose circumference is at least two inches wide;
(D) Placed not less than forty inches and not more than ninety-six inches above the ground; and
(E) Posted in sufficient quantities to be clearly visible from any point of entry onto the premises and readable from a distance of at least thirty feet.
(c) Any sign regulated by this section must expressly declare whether persons licensed or otherwise authorized by law to carry concealed handguns are exempt from the restriction or prohibition. Failure to state that a person licensed or otherwise authorized by law to carry concealed handguns constitutes an exception form the prohibition or restriction for persons licensed or otherwise authorized by law to carry concealed handguns.
(d) Except as otherwise provided by a more specific provision of this code, it is a defense to any criminal offense under this code prohibiting or restricting the possession or carrying of deadly weapons in specified locations or to an adverse action other than a criminal prosecution taken against a person violating any restriction or prohibition on where weapons may be possessed or carried that the defendant was licensed or otherwise authorized by law to carry concealed handguns, that the person was not carrying any deadly weapons other than handguns and that the signage required to be posted under this section was not properly posted.



NOTE: The purpose of this bill is to reform the state preemption of firearm regulations and establish uniform signage requirements for all places, both public and private property, where the possession or carrying of weapons has been prohibited. The preemption language of §61-7-13 is based, in part, on the language of the Ohio preemption law contained in Ohio House Bill 347, 2006 session, which takes effect the fourteenth day of March 2007.


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