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Introduced Version Senate Bill 730 History

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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 730

(By Senator Sprouse)

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[Introduced February 18, 2008; referred to the Committee on the Judiciary.]

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A BILL to amend and reenact §5A-4-3 of the Code of West Virginia, 1931, as amended; to amend and reenact §7-11-5 of said code; to amend and reenact §8-29B-5 of said code; to amend and reenact §20-14-6 of said code; and to amend and reenact §61-3B-1, §61-3B-2 and §61-3B-3 of said code, all relating to removing obsolete language pertaining to licenses to carry deadly weapons.

Be it enacted by the Legislature of West Virginia:
That §5A-4-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §7-11-5 of said code be amended and reenacted; that §8-29B-5 of said code be amended and reenacted; that §20-14-6 of said code be amended and reenacted; and that §61-3B-1, §61-3B-2 and §61-3B-3 of said code be amended and reenacted, all to read as follows:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.

ARTICLE 4. GENERAL SERVICES DIVISION.
§5A-4-3. Security officers; appointment; oath; carrying weapons; powers and duties generally, etc.

(a) In addition to the other powers given and assigned to the secretary in this chapter, he is hereby authorized the secretary may to appoint bona fide residents of this state to act as security officers upon any premises owned or leased by the State of West Virginia and under the jurisdiction of the secretary, subject to the conditions and restrictions hereinafter imposed in this section. Before entering upon the performance of his or her duties as such a security officer under this section, each person so appointed shall qualify therefor in the same manner as is required of county officers by taking and filing an oath of office as required by article one, chapter six of this code. No such person shall have authority to carry a gun or any other dangerous weapon until he shall have obtained a license therefor in the manner prescribed by section two, article seven, chapter sixty-one of this code.
(b) It shall be is the duty of any person so appointed and qualified to preserve law and order on any premises under the jurisdiction of the secretary to which he or she may be assigned by the secretary. For this purpose he or she shall as to offenses committed on such premises have has and may exercise all the powers and authority and shall be is subject to all the responsibilities of a deputy sheriff of the county. The assignment of security officers to any premises under the jurisdiction of the secretary shall not be deemed to does not supersede in any way the authority or duty of other peace officers to preserve law and order on such premises.
The secretary may at his pleasure revoke the authority of any such security officer appointed under this section by filing a notice to that effect in the office of the clerk of each county in which his the officer's oath of office was filed. and in the case of officers licensed to carry a gun or other dangerous weapon, by notifying the clerk of the circuit court of the county in which the license therefor was granted
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.

ARTICLE 11. COUNTY PARKS AND RECREATION COMMISSIONS.
§7-11-5. General powers of commission; rules; misdemeanor offenses; park police authorized.

(a) The parks and recreation commission shall have has the necessary powers and authority to manage and control all public parks and recreational properties and facilities owned by the county or commission and used as a part of such the public parks and recreation system, including the right to promulgate rules and regulations concerning the management and control of such the parks and recreational properties and facilities and to enforce any such rules and regulations so promulgated.
The parks and recreation commission shall also have has plenary power and authority to prepare and submit to the county court commission for adoption rules and regulations regulating the use of any parks and recreational properties and facilities under the control of the parks and recreation commission and prohibiting any type of use of or activities in connection with any such properties or facilities, and any such the rules, and regulations if so adopted, shall be duly entered of record in the order book of the county court commission. The violation of any such a rule and regulation so adopted by the county court shall constitute commission is a misdemeanor, and any person convicted of any such a violation shall be punished by a fine of not less than five dollars nor more than one hundred dollars, or by imprisonment in jail for a period not exceeding thirty days, or by both such fine and imprisonment. Justices of the peace of the county shall have concurrent jurisdiction with the circuit court and other courts of record (having criminal jurisdiction) of any misdemeanor offenses arising under this article. The violation of any such rule and regulation which that also constitutes the violation of any state law or municipal ordinance may be prosecuted and punished as a violation of such the state law or municipal ordinance rather than under the provisions of this section. To enforce any such rules, and regulations to protect and preserve all properties and facilities under the control of the parks and recreation commission and to preserve law and order in connection therewith, the parks and recreation commission shall have plenary power and has authority to provide in its bylaws procedures for the appointment, supervision and discharge of one or more park police officers. Whenever any such appointment is made, a copy of the order of appointment shall be filed by the parks and recreation commission with the county court commission.
In any area under the jurisdiction and control of the parks and recreation commission, or in connection with any properties or facilities under the jurisdiction and control of the parks and recreation commission, or in pursuit of one or more individuals therefrom, any park police officer so appointed shall have has all of the power and authority which a regularly appointed deputy sheriff of such the county has in enforcing the criminal laws of the state. Notwithstanding any provisions of this code to the contrary, park police officers appointed as aforesaid shall not be required to obtain a state license to carry a weapon, as required by the provisions of section two, article seven, chapter sixty-one of this code. When any such commission has purchased one or more policies of public liability insurance providing the commission and its officers, agents and employees insurance coverage for legal liability of said commission and its officers, agents and employees for bodily injury, personal injury or damage (including, but not limited to, false arrest and false imprisonment) and property damage, and affording said commission and its officers, agents and employees insurance coverage against any and all legal liability arising from, growing out of, by reason of or in any way connected with, any acts or omissions of said commission, or its officers, agents or employees in the performance of their official duties, and so long as the coverage aforesaid remains in full force and effect as to such park police officers, then the bond specified in section five, article seven of said chapter sixty-one shall not be required as to such park police officers.
CHAPTER 8. MUNICIPAL CORPORATIONS.

ARTICLE 29B. AIRPORT SECURITY.
§8-29B-5. Jurisdiction of airport police officers; insurance coverage; bonds.

(a) In any area under the jurisdiction and control of the airport operator, or in connection with the airport, or in pursuit of one or more individuals therefrom, any airport police officer shall have has:
(1) All of the power and authority which a regularly appointed deputy sheriff of a county in this state has in enforcing the criminal laws of this state;
(2) Full power and authority to enforce any and all federal laws and rules and regulations relating to airports, air passengers, baggage inspection, the screening of air passengers and other airport security measures;
(3) Full power and authority to enforce any and all rules and regulations promulgated by the airport operator; and
(4) The power to search persons, packages, containers and baggage and the power to arrest persons. Provided, That
(b) The foregoing provisions of subsection (a) of this section shall under no circumstances whatever be construed as in any way limiting do not limit the power and authority of a municipal police officer or deputy sheriff who has been assigned to serve as an airport police officer which he or she has by virtue of his or her being a municipal police officer or deputy sheriff, and under no circumstances whatever shall does the assignment or appointment or designation of one or more airport police officers at an airport be deemed in any way to supersede or limit the power and authority of other peace officers to preserve law and order at such the airport.
Consistent with the provisions of section five, article seven, chapter sixty-one of this code, any municipal police officer or deputy sheriff assigned as an airport police officer pursuant to the provisions of subsection (b), section four of this article, and (notwithstanding any provision of this code to the contrary) any person appointed or designated as an airport police officer pursuant to the provisions of subsection (c), section four of this article, shall not be required to obtain a state license to carry a deadly weapon, as provided for in section two, article seven of said chapter sixty-one. Any municipal police officer or deputy sheriff assigned as an airport police officer pursuant to the provisions of subsection (b), section four of this article shall not be required to furnish any bond under section five, article seven of said chapter sixty-one other than the bond furnished thereunder as such municipal police officer or deputy sheriff. When one or more policies of public liability insurance are obtained providing insurance coverage for legal liability of an airport police officer for bodily injury, personal injury or damage (including, but not limited to, false arrest and false imprisonment) and property damage, and affording said airport police officer insurance coverage against any and all legal liability arising from, growing out of, or by reason of or in any way connected with, any acts or omissions of said airport police officer in the performance of his official duties, and so long as the coverage aforesaid remains in full force and effect as to such airport police officer, then the bond specified in section five, article seven of said chapter sixty-one shall not be required as to such airport police officer; otherwise such bond shall be required and must be furnished.
CHAPTER 20. NATURAL RESOURCES.

ARTICLE 14. HATFIELD-MCCOY REGIONAL RECREATION AUTHORITY.
§20-14-6. Hatfield-McCoy recreation area rangers.
(a) The board is hereby authorized to appoint bona fide residents of this state to act as Hatfield-Mccoy Recreation Area rangers upon any premises which are part of the Hatfield-McCoy Recreation Area, subject to the conditions and restrictions imposed by this section. Before performing the duties of ranger, each appointed person shall qualify for the position of ranger in the same manner as is required of county officers by the taking and filing of an oath of office as required by section one, article one, chapter six of this code and by posting an official bond as required by section one, article two, chapter six of this code. To facilitate the performance of the duties of a ranger, a ranger may carry a firearm or other dangerous weapon while the ranger is on duty.
(b) It is the duty of any person appointed and qualified to preserve law and order on any premises which are part of the Hatfield-McCoy Recreation Area, the immediately adjacent property of landowners who are making land available for public use under agreement with the authority and on streets, highways or other public lands utilized by the trails, parking areas or related recreational facilities and other immediately adjacent public lands. For this purpose, the ranger shall be considered to be a law-enforcement officer in accordance with the provisions of section one, article twenty-nine, chapter thirty of this code and, as to offenses committed within those areas, have and may exercise all the powers and authority and are subject to all the requirements and responsibilities of a law-enforcement officer. The assignment of rangers to the duties authorized by this section may not supersede in any way the authority or duty of other peace officers to preserve law and order on those premises.
(c) The salary of all rangers shall be paid by the board. The board shall furnish each ranger with an official uniform to be worn while on duty and shall furnish and require each ranger while on duty to wear a shield with an appropriate inscription and to carry credentials certifying the person's identity and authority as a ranger.
(d) The board may at its pleasure revoke the authority of any ranger. The executive director shall report the termination of employment of a ranger by filing a notice to that effect in the office of the clerk of each county in which the ranger's oath of office was filed. and in the case of a ranger licensed to carry a gun or other dangerous weapon, by notifying the clerk of the circuit court of the county in which the license for the gun or other dangerous weapon was granted.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 3B. TRESPASS.
§61-3B-1. Definitions.
As used in this article:
(1) "Structure" means any building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof.
(2) "Conveyance" means any motor vehicle, vessel, railroad car, railroad engine, trailer, aircraft or sleeping car, and "to enter a conveyance" includes taking apart any portion of the conveyance.
(3) An act is committed "in the course of committing" if it occurs in an attempt to commit the offense or in flight after the attempt or commission.
(4) "Posted land" is that land upon which reasonably maintained signs are placed not more than five hundred feet apart along and at each corner of the boundaries of the land, upon which signs there appears prominently in letters of not less than two inches in height the words "no trespassing" and in addition thereto the name of the owner, lessee or occupant of the land. The signs shall be placed along the boundary line of posted land in a manner and in a position as to be clearly noticeable from outside of the boundary line. It shall not be is not necessary to give notice by posting on any enclosed land or place not exceeding five acres in area on which there is a dwelling house or property that by its nature and use is obviously private in order to obtain the benefits of this article pertaining to trespass on enclosed lands.
(5) "Cultivated land" is that land which has been cleared of its natural vegetation and is presently planted with a crop, orchard, grove, pasture or trees or is fallow land as part of a crop rotation.
(6) "Fenced land" is that land which has been enclosed by a fence of substantial construction, whether with rails, logs, post and railing, iron, steel, barbed wire, other wire or other material, which stands at least three feet in height. For the purpose of this article, it shall not be is not necessary to fence any boundary or part of a boundary of any land which is formed by water and is posted with signs pursuant to the provisions of this article.
(7) Where lands are posted, cultivated or fenced as described herein in this section, then such the lands, for the purpose of this article, shall be are considered as enclosed and posted.
(8) "Trespass" under this article is the willful unauthorized entry upon, in or under the property of another, but shall does not include the following:
(A) Entry by the state, its political subdivisions or by the officers, agencies or instrumentalities thereof as authorized and provided by law.
(B) The exercise of rights in, under or upon property by virtue of rights-of-way or easements by a public utility or other person owning such the right-of-way or easement whether by written or prescriptive right.
(C) Permissive entry, whether written or oral, and entry from a public road by the established private ways to reach a residence for the purpose of seeking permission shall not be is not trespass unless signs are posted prohibiting such the entry.
(D) Entry performed in the exercise of a property right under ownership of an interest in, under or upon such the property.
(E) Entry where no physical damage is done to property in the performance of surveying to ascertain property boundaries, and in the performance of necessary work of construction, maintenance and repair of a common property line fence, or buildings or appurtenances which are immediately adjacent to the property line and maintenance of which necessitates entry upon the adjoining owner's property.
(9) "Deadly weapon" has the same meaning as in section two, article seven of this chapter.
§61-3B-2. Trespass in structure or conveyance.
Any person who knowingly enters in, upon or under a structure or conveyance without being authorized, licensed or invited, or having been authorized, licensed or invited is requested to depart by the owner, tenant or the agent of such the owner or tenant, and refuses to do so, shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one hundred dollars.
If the offender is armed with a firearm or other dangerous deadly weapon while in the structure or conveyance, with the unlawful and felonious intent to do bodily injury to a human being in said the structure or conveyance at the time the offender knowingly trespasses, such the offender, shall notwithstanding the provisions of section one, article seven, chapter sixty-one of this code, be any license or other lawful authorization the offender may have had to carry the weapon, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars, or be confined in the county jail for a period jail not to exceed twelve months, or both such fine and imprisonment more than a year, or both fined and confined.
§61-3B-3. Trespass on property other than structure or conveyance.

(a) Any person who knowingly and without being authorized, licensed or invited, enters or remains on any property, other than a structure or conveyance, as to which notice against entering or remaining is either given by actual communication to such the person or by posting, fencing or cultivation, shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one hundred dollars.
(b) If the offender defies an order to leave, personally communicated to him by the owner, tenant or agent of such the owner or tenant, or if the offender opens any door, fence or gate, and thereby exposes animals, crops or other property to waste, destruction or freedom, or causes any damage to property by such the trespassing on property other than a structure or conveyance, he shall be or she is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars or imprisoned confined in the county jail for a period not to exceed more than six months, or both such fine and imprisonment fined and confined.
(c) If the offender is armed with a firearm or other dangerous deadly weapon with the unlawful and felonious intent to do bodily injury to a human being during his or her commission of the offense of trespass on property other than a structure or conveyance, such the offender, shall notwithstanding the provisions of section one, article seven, chapter sixty-one of this code, be any license or other lawful authorization the offender may have had to carry the weapon, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county jail for a term not to exceed not more than six months, or fined not more than one hundred dollars, or both such fine and imprisonment fined and confined.
(d) Notwithstanding and in addition to any other penalties provided by law, any person who performs or causes damage to property in the course of a willful trespass shall be is liable to the property owner in the amount of twice the amount of such the damage: Provided, That the provisions of this article shall do not apply in a labor dispute.


NOTE: The purpose of this bill is to remove obsolete statutory language pertaining to the carrying of deadly weapons by Department of Administration security officers, county park police officers, and municipal airport police officers. This bill also clarifies references in the trespassing statutes to conform to the present weapons statutes.

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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