H. B. 4505
(By Delegates Ennis, Varner, Pethtel, Stalnaker,
Tucker, Evans, Boggs, Klempa, Caputo, Carmichael
and J. Miller)
[Introduced February 12, 2008; referred to the
Committee on Education.]
A BILL to amend and reenact §29-3-24 of the Code of West Virginia,
1931, as amended; and to amend and reenact §61-7-11a of said
code, all relating to allowing fireworks displays on public
school property upon approval of the State Superintendent of
Schools and the State Fire Marshal.
Be it enacted by the Legislature of West Virginia:
That §29-3-24 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §61-7-11a of said code be
amended and reenacted, all to read as follows:
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.
§29-3-24. Unlawful sale, possession or use of fireworks; permit
for public display.
(a) Except as hereinafter provided, no person, firm,
copartnership or corporation shall offer for sale, possess, expose
for sale, sell at retail, keep with intent to sell at retail or use
or explode any fireworks:
Provided, That the State Fire Marshal
may adopt reasonable rules
and regulations for the granting of permits for the supervised displays of fireworks by municipalities,
fair associations, amusement parks and other organizations or
groups of individuals. The State Fire Marshal shall have the
authority to charge a fee of ten dollars to each applicant
requesting a license to be a pyrotechnic operator as set forth in
this article. The State Fire Marshal shall charge a scaled fee for
all applications requesting permits to establish a pyrotechnics
display as provided in this section. All fees required to be paid
by the provisions of this section shall be paid to the State Fire
Marshal and thereafter deposited by him into a special account for
the operation of the State Fire Commission. Such permits may be
granted upon application to said State Fire Marshal and after
approval of the local police and fire authorities of the community
wherein the display is proposed to be held as provided herein and
the filing of a bond by the applicant as provided hereinafter.
Every such display shall be handled by a competent operator
licensed or certified as to competency by the State Fire Marshal
and shall be of such composition, character and so located,
discharged or fired as in the opinion of the chief of the fire
department, after proper inspection, and of the chief of police as
to not be hazardous to property or endanger any person or persons.
After such privilege shall have been granted, the sale, possession,
use and distribution of fireworks for such display shall be lawful
for that purpose only. No permit granted hereunder shall be
transferable.
The governing body or chief executive authority of the municipality shall require a bond from the licensee in a sum not
less than one thousand dollars conditioned on compliance with the
provisions of this article and the regulations of the State Fire
Commission:
Provided, That no municipality shall be required to
file such bond.
Before any permit for a pyrotechnic display shall be issued,
the person, firm or corporation making application therefor shall
furnish proof of financial responsibility to satisfy claims for
damages to property or personal injuries arising out of any act or
omission on the part of such person, firm or corporation or any
agent or employee thereof, in such amount, character and form as
the State Fire Marshal determines to be necessary for the
protection of the public.
(b) Notwithstanding any provision of this code to the
contrary, a permit for a pyrotechnic display on public school
property may be issued upon the approval of the State
Superintendent of Schools and the State Fire Marshal. A permit
issued under this subsection (b) is otherwise subject to the
permitting and bonding requirements of subsection (a), except that
no county board of education or other public school entity may be
required to file bond under the provisions of subsection (a).
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 7. DANGEROUS WEAPONS.
§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 person to possess any
firearm or any other deadly weapon on any school 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.
(2) This subsection shall not apply to:
(A) A law-enforcement officer acting in his or her official
capacity;
(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 deadly weapon in a
motor vehicle, or leaves an unloaded firearm or deadly weapon in a
locked motor vehicle;
(D) Programs or raffles conducted with the approval of the
county board of education or school which include the display of
unloaded firearms; or
(E) The official mascot of West Virginia University, commonly
known as "The Mountaineer", acting in his or her official capacity.
(3) Any person violating this subsection shall be guilty of a
felony and, upon conviction thereof, shall be imprisoned in
the
penitentiary a correctional facility 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 thousand dollars, or both.
(c) It shall be the duty of the principal of each school
subject to the authority of the State Board of Education to 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 report any violation of
subsection (b) of this section discovered by such principal to the
appropriate local office of the division of public safety 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 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 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 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 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 the commissioner 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 who knows
that said person is in violation of subsection (b) of this section,
or who has reasonable cause to believe that said person'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 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.
(g) (1) It shall be unlawful for any person to possess 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.
(2) This subsection shall not apply to:
(A) A law-enforcement officer acting in his or her official
capacity; and
(B) A person exempted from the provisions of this subsection
by order of record entered by a court with jurisdiction over such
premises or offices.
(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.
(h) (1) It shall be unlawful for any person to possess 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 with the
intent to commit a crime.
(2) Any person violating this subsection shall be guilty of a
felony, and, upon conviction thereof, shall be imprisoned in
the
penitentiary a correctional facility 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 thousand dollars, or both.
(i) Nothing in this section may be construed to be in conflict
with the provisions of federal law.
(j) Nothing in this section may be construed to prohibit a
pyrotechnic display on public school property in accordance with
the provisions of section twenty-four, article three, chapter twenty-nine of this code.
NOTE: The purpose of this bill is to allow fireworks displays
on public school property upon approval of the State Superintendent
of Schools and the State Fire Marshal.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.