Current Text for SB129

147285-3:n:02/05/2013:JET/th LRS2013-244R1




SB129
By Senators Beason, Glover, Holley, Holtzclaw, Marsh and Sanford
RFD Business and Labor
Rd 1 05-FEB-13


SYNOPSIS:This bill would consolidate certain preemption language regarding the authority of counties and municipalities to regulate certain activity related to firearms and would provide civil remedies for persons adversely affected by unauthorized action of a county or municipality relating to firearm regulation.
 This bill would provide penalties for public officials who participate in the enactment of unlawful ordinances, rules, or regulations relating to firearms, ammunition, and firearm accessories.
 This bill would provide that lawfully carrying a firearm under certain conditions does not, in and of itself, constitute the crime of disorderly conduct.
 This bill would require a sheriff to issue or deny a concealed pistol permit within 30 days of receipt of the application and accompanying fees and would specify that the license must be renewed from one to five years from the date of issuance.
 This bill would specify certain eligibility requirements for the issuance of a pistol permit and would require an annual permit fee of $10.
 This bill would provide for the issuance of pistol permits to applicants who are not United States citizens under certain conditions and would authorize employers to restrict employees from carrying concealed pistols under limited circumstances.
 This bill would require a report from the National Instant Background Check System as part of the investigation process relating to the issuance of a concealed pistol permit.
 This bill would authorize a judge to determine who may possess or carry a firearm or other weapon in his or her courtroom.
 This bill would authorize the Attorney General to enter into reciprocal agreements with other states for the mutual recognition of licenses to carry pistols.
 This bill would repeal the prohibition against the possession of a firearm at a public demonstration.
 Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose.
 The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment. However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment.

A BILL
TO BE ENTITLED
AN ACT

Relating to firearms; to amend Section 11-80-1, Code of Alabama 1975, to consolidate certain preemption language regarding the authority of counties and municipalities to regulate certain activity related to firearms; to provide civil remedies to persons adversely affected by unauthorized action of a county or municipality relating to firearm regulation; to amend Section 13A-11-7, Code of Alabama 1975, to provide that the lawful carrying of a firearm under certain conditions does not constitute the crime of disorderly conduct; to amend Section 13A-11-52, Code of Alabama 1975, to clarify where pistols may be carried; to amend Section 13A-11-75, Code of Alabama 1975, to require a sheriff to issue a concealed pistol permit within a certain timeframe; to increase the renewal period; to provide certain eligibility requirements for the issuance of the permit; to further provide for the permit fee; to provide for the issuance of permits to applicants who are not United States citizens under certain conditions; to require a report from the National Instant Background Check System as part of the investigation process relating to the issuance of a concealed pistol permit; to specify locations where concealed pistols may not be carried; to amend Section 13A-11-85, Code of Alabama 1975, to authorize the Attorney General to enter into reciprocal agreements with other states for the mutual recognition of licenses to carry pistols; to repeal Section 11-45-1.1, Code of Alabama 1975, relating to the authority of a municipality to enact ordinances relating to handguns and Section 13A-11-59, Code of Alabama 1975, relating to the possession of firearms by persons participating in or attending demonstrations at public places; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. Section 11-80-1, Code of Alabama 1975, is amended to read as follows:

§11-80-11.

"(a) No county or municipal corporation, instrumentality, or political subdivision thereof, by ordinance, resolution, or other enactment, shall regulate in any manner gun shows, the possession, ownership, transport, carrying, transfer, sale, purchase, licensing, registration or use of firearms, ammunition, components of firearms, firearms dealers, or dealers in firearm components.

"(b)(1) Subsection (a) does not affect the authority a municipality has under law to regulate the discharge of firearms within the limits of the municipality or the authority a county has under law enacted prior to August 1, 2000, to regulate the discharge of firearms within the jurisdiction of the county.

"(2) Subsection (a) does not affect the authority of the state, a county, or a municipality to assess, enforce, and collect sales taxes, use taxes, and gross receipts taxes in the nature of sales taxes as defined by Section 40-2A-3(8), on the retail sale of firearms and ammunition or to assess, enforce, and collect business licenses from firearms or ammunition manufacturers, trade associations, distributors, or dealers for the privilege of engaging in business.

"Further, nothing herein shall exempt any business which uses firearms or ammunition in the conduct of its business or any business which leases or sells firearms or ammunition from the provisions of county and municipal planning and zoning laws, as long as the code, ordinance, or regulations are not used to circumvent the intent of subsection (a).

"This section shall not be construed to limit or restrict the power of a municipality to adopt or enforce ordinances which make the violation of a state firearm law a violation of a municipal ordinance to the same extent as other state law violations.

"(c) The authority to bring or settle any lawsuit in which the state has an exclusive interest or right to recover against any firearm or ammunition manufacturer, trade association, or dealer, and the authority to bring or settle any lawsuit on behalf of any governmental unit created by or pursuant to an act of the Legislature or the Constitution of Alabama of 1901, or any department, agency, or authority thereof, for damages, abatement, injunctive relief, or other equitable relief resulting from or relating to the design, manufacture, marketing, or lawful sale of firearms or ammunition, or both, shall be reserved exclusively to the Attorney General, by and with the consent of the Governor. This section shall not prohibit a county or municipal corporation from bringing an action against a firearms or ammunition manufacturer or dealer for breach of contract or warranty as to firearms or ammunition purchased by the political subdivision or local governmental authority.

Section 2. Sections 13A-11-7, 13A-11-52, 13A-11-75 and 13A-11-85, Code of Alabama 1975, are amended to read as follows:

§13A-11-7.

"(a) A person commits the crime of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he or she does any of the following:

"(1) Engages in fighting or in violent tumultuous or threatening behavior; or.

"(2) Makes unreasonable noise; or.

"(3) In a public place uses abusive or obscene language or makes an obscene gesture; or.

"(4) Without lawful authority, disturbs any lawful assembly or meeting of persons; or.

"(5) Obstructs vehicular or pedestrian traffic, or a transportation facility; or.

"(6) Congregates with other person in a public place and refuses to comply with a lawful order of the police to disperse.

"(b) Disorderly conduct is a Class C misdemeanor.

"(c) The mere carrying of a visible, holstered firearm in a public place, in and of itself, shall not be a violation of this section.

§13A-11-52.

"(a) Except as otherwise provided in this article, no person shall carry a pistol about his person on premises private property not his own or under his control unless the property is open to the public; but this section shall not apply to any sheriff or his deputy or police officer of an incorporated town or city in the lawful discharge of the duties of his office, or to United States marshal or his deputies, rural free delivery mail carriers in the discharge of their duties as such, bonded constables in the discharge of their duties as such, conductors, railway mail clerks, and express messengers in the discharge of their duties.

"(b)(1) A person who owns or controls private property, including property that is open to the public, may restrict or prohibit persons from carrying pistols while on the property by verbally asking the person carrying the pistol to remove the pistol from the property, provided that no person who owns or controls private property may prohibit the otherwise lawful possession, transportation, or storage of a firearm or ammunition that is kept out of sight within the locked or attended private means of conveyance of an invitee who is otherwise permitted to operate or park the conveyance on the property.

"(2) A person in violation of this subsection shall be guilty of a Class C misdemeanor.

"(c) A public or private employer may restrict or prohibit its employees from carrying concealed pistols while on the employer's property or while engaged in the duties of the person's employment, provided that no employer may prohibit the otherwise lawful possession, transportation, or storage of a firearm or ammunition that is kept out of sight within an employee's locked or attended private means of conveyance, even if the conveyance is parked on the employer's premises or in a parking area provided by the employer for employees.

§13A-11-75.

"(a) The sheriff of a county, upon the application of any person residing in that county, may within 30 days from receipt of a complete application and accompanying fees, shall issue or renew a qualified or unlimited license to such for the person to carry a pistol in a vehicle or concealed on or about his or her person within this state for not more than one year one to five year increments, as requested by the person seeking the license, from date of issue, if it appears that the applicant has good reason to fear injury to his or her person or property or has any other proper reason for carrying a pistol, and that he or she is a suitable person to be so licensed. unless any of the following applies to the person:

"(1) The applicant is less than 18 years of age.

"(2) The applicant is prohibited under the laws of this state or the United States from possessing or receiving a firearm.

"(3) The applicant is subject to a court order not to possess or receive a firearm.

"(4) The applicant is currently the subject of a prosecution or commitment or incompetency proceeding that could lead to a prohibition on the possession or receipt of a firearm under the laws of this state or the United States.

"(b) The license shall be in triplicate, in form to be prescribed by the Secretary of State, and shall bear the name, address, description, and signature of the licensee and the reason given for desiring a license. The original thereof shall be delivered to the licensee, the duplicate shall, within seven days, be sent by registered or certified mail to the Director of Public Safety, and the triplicate shall be preserved for six years by the authority issuing the same. The fee for issuing such license shall be one dollar ($1) which sheriff may charge a fee of five times the annual fee set by local law or an aggregate fee of fifty dollars ($50), whichever is less, for the issuance of the license. shall be paid into the county treasury unless otherwise provided by local law. Prior to issuance or renewal of a license, the sheriff shall contact available local, state, and federal criminal history data banks, including the National Instant Criminal Background Check System, to determine whether possession of a firearm by an applicant would be a violation of state or federal law. The sheriff may revoke a license upon proof that the licensee is not a proper person to be licensed.

"(c) If a person who is not a United States citizen applies for a license under this section, the sheriff shall conduct an Immigration Alien Query through the Bureau of Immigration and Customs Enforcement, or any successor agency, and the application form shall require information relating to the applicant's country of citizenship, place of birth, and any alien or admission number issued by the Bureau of Immigration and Customs Enforcement, or any successor agency. The sheriff shall review the results of these inquiries before making a determination of whether to issue a license or renewal license.

"(b)(d) The name, address, and signature collected from an applicant or licensee under this section shall be kept confidential, shall be exempt from disclosure under Section 36-12-40, and may only be used for law enforcement purposes except when a current licensee is charged in any state with a felony involving the use of a pistol. All other information on licenses under this section, including information concerning the annual number of applicants, number of licenses issued, number of licenses denied, revenue from issuance of licenses, and any other fiscal or statistical data otherwise, shall remain public writings subject to public disclosure. Except as provided above, the sheriff of a county shall redact the name, address, signature, and photograph of an applicant before releasing a copy of a license for a non-law enforcement purpose. The sheriff may charge one dollar ($1) per copy of any redacted license record requested other than when requested for law enforcement purposes. To knowingly publish or release to the public in any form any information or records related to the licensing process, or the current validity of any license, except as authorized in this subsection or in response to a court order or subpoena, is a Class A misdemeanor.

"(e) A license issued under this section shall be valid for the carrying of a concealed pistol on the licensee's person throughout the state, except for any of the following locations:

"(1) Inside a police, sheriff, or highway patrol station.

"(2) Inside or on the premises of a prison, jail, halfway house, or other detention facility for those who have been charged with or convicted of a criminal or juvenile offense.

"(3) Inside or on the premises of a facility providing inpatient or custodial care of those with psychiatric, mental, or emotional disorders.

"(f) A public or private employer may restrict or prohibit its employees who are licensed under this section from carrying concealed pistols while on the employer's property or while engaged in the duties of the person's employment, provided that no employer may prohibit the otherwise lawful possession, transportation, or storage of a firearm or ammunition that is kept out of sight within an employee's locked or attended private means of conveyance, even if the conveyance is parked on the employer's premises or in a parking area provided by the employer for employees.

"(g) A person who owns or controls private property, unless the property is open to the public, may restrict or prohibit persons who are licensed under this section from carrying concealed pistols while on the property, provided that no person who owns or controls private property may prohibit the otherwise lawful possession, transportation, or storage of a firearm or ammunition that is kept out of sight within the locked or attended private means of conveyance of an invitee who is otherwise permitted to operate or park the conveyance on the property.

"(h) Notwithstanding the provisions of this section, a judge may determine who may possess or carry a firearm or other weapon in the judge's chambers or in a courtroom over which the judge is presiding and to establish conditions or guidelines for the possession or carrying of firearms or other weapons in such locations.

"(i) This section shall not be construed to limit or place any conditions upon an individual's right to carry a pistol that is not concealed.

§13A-11-85.

"(a) A person licensed to carry a handgun in any state whose laws recognize and give effect in that state to a license issued under the laws of the State of Alabama shall be authorized to carry a handgun in this state. This section shall apply to a licenseholder from another state only while the licenseholder is not a resident of this state. A licenseholder from another state shall carry the handgun in compliance with the laws of this state.

"(b) The Attorney General is authorized to enter into reciprocal agreements with other states for the mutual recognition of licenses to carry handguns and shall periodically publish a list of states which meet the requirements of subsection (a) recognizes licenses issued pursuant to Section 13A-11-75."

Section 3. (a) The purpose of this section is to establish within the Legislature complete control over regulation and policy pertaining to firearms, ammunition, and firearm accessories in order to ensure that such regulation and policy is applied uniformly throughout this state to each person subject to the state's jurisdiction and to ensure protection of the right to keep and bear arms recognized by the constitutions of the United States and of this state. This section is to be liberally construed to accomplish its purpose.

(b) For the purposes of this section, the following words shall have the following meanings:

(1) AMMUNITION. Fixed cartridge ammunition, shotgun shells, the individual components of fixed cartridge ammunition and shotgun shells, projectiles for muzzle-loading firearms, and any propellant used in firearms or ammunition.

(2) EXPRESSLY AUTHORIZED BY A STATUTE OF THIS STATE. The authority of a political subdivision to regulate firearms, ammunition, or firearm accessories that is granted by a duly enacted state law that specifically mentions firearms, a particular type of firearm, ammunition, or a particular type of ammunition.

(3) FIREARM ACCESSORY. A device specifically designed or adapted to enable the wearing or carrying about one's person, or the storage or mounting in or on a conveyance, of a firearm, or an attachment or device specifically designed or adapted to be inserted into or affixed onto a firearm to enable, alter, or improve the functioning or capabilities of the firearm.

(4) FIREARM. This term has the same meaning as in Section 13A-8-1(4), Code of Alabama 1975.

(5) PERSON ADVERSELY AFFECTED. Any of the following:

a. A resident of this state who may legally possess a firearm under the laws of this state and the United States and who either of the following:

1. Is subject to any manner of regulation alleged to be promulgated or enforced in violation of this section, whether or not specific enforcement action has been initiated or threatened against that person or another person.

2. Would be, if the person were present in the political subdivision in question, subject to any manner of regulation alleged to be promulgated or enforced in violation of this section, whether or not specific enforcement action has been initiated or threatened against that person or another person.

b. A person who otherwise has standing under the laws of this state to bring an action under subsection (f).

c. A membership organization the members of which include a person described in paragraphs a. or b. of this subdivision and that is dedicated in whole or in part to protecting the legal, civil, or constitutional rights of its membership.

(6) POLITICAL SUBDIVISION. A county, incorporated city, unincorporated city, public local entity, public-private partnership, and any other public entity of a county or city, including local boards of education.

(7) PUBLIC OFFICIAL. Any person elected to public office, whether or not that person has taken office, by the vote of the people of a political subdivision or its instrumentalities, including governmental corporations, and any person appointed to a position at the municipal level of government or its instrumentalities, including governmental corporations.

(8) REASONABLE EXPENSES. The expenses involved in litigation, including, but not limited to, attorney fees, expert witness fees, court costs, and compensation for loss of income.

(c) Except as otherwise provided in this section or as otherwise authorized by law, the Legislature hereby occupies and preempts the entire field of regulation in this state touching in any way upon firearms, ammunition, and firearm accessories to the complete exclusion of any order, ordinance, or rule promulgated or enforced by any political subdivision of this state.

(d) The authority of a political subdivision to regulate firearms, ammunition, or firearm accessories shall not be inferred from its proprietary authority, home rule status, or any other inherent or general power.

(e) Any existing or future orders, ordinances, or rules promulgated or enforced contrary to the terms of this section are null and void.

(f)(1) A person adversely affected by any order, ordinance, or rule promulgated or enforced in violation of this section may file suit in an appropriate court for declarative and injunctive relief and for all actual and consequential damages attributable to the violation.

(2) The court shall award reasonable expenses to a person adversely affected if an action under this subsection results in either:

a. A final determination in favor of the person adversely affected.

b. Rescission, repeal, or amendment of the challenged manner of regulation or enforcement after suit has been filed under subdivision (1) but prior to a final determination by the court.

(g) This section shall not be construed to prevent any of the following:

(1) A duly organized law enforcement agency of a political subdivision from promulgating and enforcing rules pertaining to firearms, ammunition, or firearm accessories that it issues to or that are used by the political subdivision's peace officers in the course of their official duties.

(2) An employer from regulating or prohibiting an employee's carrying or possession of firearms, firearm accessories, or ammunition during and in the course of the employee's official duties.

(3) A court or administrative law judge from hearing and resolving a case or controversy or issuing an opinion or order on a matter within its jurisdiction.

(4) The enactment or enforcement of a generally applicable zoning or business ordinance that includes firearms businesses along with other businesses, provided that an ordinance designed or enforced effectively to restrict or prohibit the sale, purchase, transfer, manufacture, or display of firearms, ammunition, or firearm accessories that is otherwise lawful under the laws of this state is in conflict with this section and is void.

(5) A political subdivision from enacting and enforcing rules of operation and use for any firearm range owned or operated by the political subdivision.

(6) A political subdivision from sponsoring or conducting any firearm-related competition or educational or cultural program and from enacting and enforcing rules for participation in or attendance at such program, provided that nothing in this section authorizes or permits a political subdivision to offer remuneration for the surrender or transfer of a privately owned firearm to the political subdivision or another party as a method of reducing the number of privately owned firearms within the political subdivision.

(7) Any official of a political subdivision with appropriate authority and jurisdiction from enforcing any law enacted by the Legislature.

(8) A sheriff of a county from acting on an application for a license under Section 13A-11-75, Code of Alabama 1975.

(9) A political subdivision from leasing public property to another person or entity for a gun show or other firearm-related event on terms agreeable to both parties.

(10) The adoption or enforcement by a county or municipality of ordinances which make the violation of a state firearm law a violation of an ordinance, provided that the elements of the local ordinance may not differ from the state firearm law, nor may the local ordinance impose a higher penalty than what is imposed under the state firearm law.

(11) A municipality from regulating the discharge of firearms within the limits of the municipality or a county from exercising any authority it has under law enacted prior to August 1, 2000, to regulate the discharge of firearms within the jurisdiction of the county.

(12) A county or a municipality from exercising any authority it has to assess, enforce, and collect generally applicable sales taxes, use taxes, and gross receipts taxes in the nature of sales taxes as defined by Section 40-2A-3(8), Code of Alabama 1975, on the retail sale of firearms, ammunition, and firearm accessories along with other goods, provided that no such tax imposed by a county or municipality may apply at a higher rate to firearms, ammunition, or firearm accessories than to other goods.

(h)(1) A public official who knowingly and willfully violates the state law relating to firearm, ammunition, or firearm accessory regulation as declared in this section by participating in the enactment or enforcement of unlawful local ordinances, rules, or administrative regulations shall be subject to investigation by the district attorney in the county in which the municipality is situated. If the district attorney determines that probable cause exists that the public official knowingly and willfully violated this section, the district attorney shall file a petition in the circuit court with jurisdiction over the public official for a hearing and determination of whether the public official knowingly and willfully violated this section.

(2) If the court determines that a public official knowingly and willfully violated this section, the court shall assess a fine of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000) against the public official.

(3) Public funds may not be used to defend a public official at a hearing under subdivision (1).

Section 4. Section 11-45-1.1, Code of Alabama 1975, relating to the authority of a municipality to enact ordinances relating to handguns, is repealed. Section 13A-11-59, Code of Alabama 1975, relating to the possession of firearms by persons participating in or attending demonstrations at public places, is repealed.

Section 5. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.

Section 6. The provisions provided in subsection (f) of Section 3 shall become effective 90 days following its passage and approval by the Governor, or its otherwise becoming law. The remaining provisions of this act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.


Weapons
Pistol Permits
Licenses and Licensing
Sheriffs
Code Repealed
Code Amended