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HomeMy WebLinkAbout11-488 OCTOBER 25, 2011 11-488 ORDINANCE FIRST READING (CARRIED________ LOST________ LAID OVER________ WITHDRAWN_______) PURPOSE: REVISE CURRENT MUNICIPAL CODE PROVISIONS TO COMPLY WITH NEW STATUTES RELATED TO CARRYING CONCEALED WEAPONS / TO PROHIBIT THE CARRYING OF FIREARMS AND OTHER WEAPONS ON CERTAIN MUNICIPAL PROPERTY AND BUILDINGS INITIATED BY: CITY ADMINISTRATION A GENERAL ORDINANCE OF THE CITY OF OSHKOSH REPEALING AND RECREATING SECTION 17-3 PERTAINING TO DANGEROUS WEAPONS PROHIBITED, SECTION 17-4(A) PERTAINING TO DISCHARGING FIREARMS PROHIBITED AND REPEALING 19-4(O) PARKS AND BEACH REGULATIONS – WEAPONS PROHIBITED The Common Council of the City of Oshkosh does ordain as follows: SECTION 1. That Section 17-3 of the Oshkosh Municipal Code pertaining to Dangerous Weapons Prohibited is repealed and recreated to read as follows: SECTION 17-3 WEAPONS AND FIREARMS RESTRICTED IN CERTAIN CITY BUILDINGS (A) Definitions. (1) Firearm means a weapon that acts by force of gunpowder. (2) Law Enforcement means any person employed by the State of Wisconsin or any political subdivision of this state, for the purpose of detecting and preventing crime and enforcing laws or ordinances and who is authorized to make arrests for violations of the laws or ordinances he or she is employed to enforce. (3) Weapon means without limitation because of enumeration: any firearm, whether loaded or unloaded; any device designed as a weapon and capable of producing death or great bodily harm; any electric weapon as defined in Sec. 941.295(4), Wis. Stats.; any instrument which expels a missile or other object by the expansion of compressed air or other gas, by spring or any other means; cross-knuckles, blackjack, billy club; any knife which has a blade three inches or longer, or a blade which may be drawn without the necessity of contact with the blade itself, martial arts type weapons such as, OCTOBER 25, 2011 11-488 ORDINANCE FIRST READING CONT'D without limitation because of enumeration, throwing stars, Tonfa, Nunchaku, fighting chains; or any other device or instrumentality which, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm. (B) Weapons and Firearms are prohibited in all City owned, occupied and/or controlled buildings, including but not limited to the following: (1) City Hall (2) City Fire Stations (3) Public Safety Building and Police Department Impound Garage (4) Park Buildings including concession stands and bath houses (5) Pollock Community Waterpark (6) Oshkosh Seniors Center & Annex (7) The Oshkosh Public Library (8) The Oshkosh Public Museum & surrounding buildings (9) The Central Garage & surrounding buildings (10) The Sanitation Garage (11) The Wastewater Treatment Plant (12) The Water Filtration Plant (13) The Water Distribution Building (14) Storm & Sanitary Pump Stations & Booster Stations (15) All Water Pump Stations and Water Towers (16) The Transportation Department Building & surrounding buildings (17) The Transit Center, surrounding buildings and Transit System Shelters located on City-owned property (18) The Parks Department maintenance buildings and administrative offices (19) The Grand Opera House (20) The Oshkosh Convention Center (21) Lakeshore Municipal Golf Course Clubhouse and maintenance buildings The listed buildings are in addition to any places where the carrying of a weapon or a firearm is prohibited under the provisions of Wis. Stats. §175.60. This subdivision does not apply to any person who leases residential or business premises in the building or if the firearm is in a vehicle driven or parked in the parking facility to any part of the building used as a parking facility. OCTOBER 25, 2011 11-488 ORDINANCE FIRST READING CONT'D (C) Signs meeting the requirements of Wis. Stats. §943.13(2)(bm)1 shall be posted in prominent places near all entrances of such buildings notifying persons of these restrictions. (D) No person other than a law enforcement officer shall enter or remain in any City owned, occupied and/or controlled building while carrying a weapon or a firearm contrary to this ordinance and posted signage. Any person entering or remaining in a building in violation of this section shall be trespassing and shall be subject to penalty as provided in this Code. (E) Weapons, excluding firearms and weapons carried in compliance with and as specifically allowed by State Statutes, are prohibited in all city owned parks and recreation areas. SECTION 2. That Section 17-4(A) of the Oshkosh Municipal Code pertaining to Discharging Firearms Prohibited is repealed and recreated to read as follows: (A) No person shall fire or discharge any gun, pistol, fowling piece or other firearm within the limits of the City, unless approved in writing by the Chief of Police, or the person's conduct is justified, or had it been subject to a criminal penalty the person's conduct would have been subject to a defense of privilege in the Criminal Code. SECTION 3. That Section 19-4(0) of the Oshkosh Municipal Code pertaining to Parks and Beach Regulations -- Weapons Prohibited is hereby repealed. SECTION 4. This ordinance shall be in full force and effect from and after its passage and publication. SECTION 5. Publication Notice. Please take notice that the City of Oshkosh enacted ordinance #11-XXX REVISE CURRENT CODE PROVISIONS TO COMPLY WITH NEW STATUTES RELATED TO CARRYING CONCEALED WEAPONS/TO PROHIBIT THE CARRYING OF FIREARMS AND OTHER WEAPONS ON CERTAIN MUNICIPAL PROPERTY AND BUILDINGS, on November 8, 2011. The ordinance revises current municipal codes to comply with new statutes related to carrying concealed weapons and prohibits the carrying of firearms and other weapons in city owned, occupied and/or controlled buildings and prohibits the carrying of firearms and other weapons in all city owned, occupied and/or controlled parks and recreation areas except as specifically authorized by Wisconsin Statutes. The full text of the ordinance may be obtained at the Office of the City Clerk, 215 Church Avenue and through the City's website at www.ci.oshkosh.wi.us. Clerk's phone: 920/236-5011. CITY HALL 215 Church Avenue P.O.Box 1130 Oshkosh,Wisconsin 5 903-1130 City of Oshkosh °4r)II4 O.fHKOIH TO: Honorable Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney DATE: October 13, 2011 RE: Ordinance to Revise Current Municipal Code Provisions to Comply with new Statutes related to Carrying Concealed Weapons and to Prohibit the Carrying of Firearms and Other Weapons on certain Municipal Property and Buildings BACKGROUND On July 8th, Wisconsin 2011 Act 35 commonly referred to as the Concealed Carry Law was signed into law. Most of the provisions of the new law become effective on November 1, 2011. 2011 Wisconsin Act 35 made various changes to state laws related to the carrying of firearms, licensing requirements, the ability of property owners and organizers of special events to restrict the possession of firearms on property owned or controlled by them, the ability of local governments to restrict the possession of firearms on property owned or controlled by the local government and the ability of local governments to adopt ordinances related to the carrying of firearms. In addition to the Concealed Carry Law, §66.0409 of the Wisconsin Statutes governs local regulation of firearms. The definition of firearm under this section of the statutes is a weapon that acts by force of gunpowder. This section provides that the City cannot regulate the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm unless the ordinance is the same as, or similar to, or no more stringent than a state statute. This section further provides that a city's ability to restrict the discharging of a firearm is not restricted, except that any ordinance restricting the discharge of a firearm does not apply if the actor's conduct is justified or privileged under the criminal statutes of the State. This section does not by its terms limit the City's ability to regulate the carrying, use or possession of weapons other than firearms. The proposed ordinance revises current codes to comply with current statutes and new state statutes related to the Concealed Carry Law. ANALYSIS The recent changes to the state law affect the City's ability to regulate the possession of firearms and other weapons on City property and the discharge of firearms within the City of Oshkosh. +.: The terminology between the statutory sections varies. For example, §66.0409, which limits the City's ability to regulate firearms and is discussed below, and §943.13, related to trespassing, both refer to firearms where §175.60, the concealed carry licensing statute, refers to weapons and handguns. The proposed ordinance has been drafted to limit the carrying and discharge of firearms and other weapons as allowed under the current and new state statutes with the idea that it is easier for the Council to review the matter from a strict perspective and delete provisions as desired, than to attempt to draft additional language. The proposed ordinance would repeal and recreate sections 17-3, 17-4(A) and delete section 19-4(0) in the current code. Regulation related to the Carrying of a Concealed Weapon on City Property The recent changes to state law related to concealed carry restrict the City's ability to regulate the carrying of a firearm on City property and are enforced through the trespass provisions of state statutes. The ability of municipalities to regulate carrying firearms on property owned, occupied or controlled by them is limited to the City restricting the carrying of a firearm within a building. This provision is found in §943.13 Wis. Stats. The statute does not define building, so we have looked at the City's zoning code for consistency, which defines building as "any structure having a roof supported by columns and/or walls". §941.235 of the Wisconsin Statutes generally prohibits the carrying of firearms in any building owned or leased by the state or any political subdivision of the state. However this section makes exceptions for peace officers or military personnel who go armed in the line of duty and persons licensed or otherwise able to carry a concealed weapon under the Concealed Carry Law. While the open carrying of firearms within City buildings remains prohibited by §941.235, if the City wishes to restrict the carrying of a concealed weapon within buildings owned, leased or controlled by the City, the City must put rules in place to do so and post appropriate signage notifying persons of the restrictions. The proposed amendment to section 17-3 would prohibit weapons and firearms in all city owned, occupied and/or controlled buildings. The definition of weapon used is essentially the current municipal code definition and not limited to those weapons contained in the concealed carry statute. The definition of weapon in the concealed carry statute was included to allow persons possessing a concealed carry permit to carry, in addition to a handgun, an electronic weapon (stun gun), a knife other than a switchblade or a billy club. The definition of weapon in our current ordinances and the proposed definition of weapon for this section of the ordinance prohibiting the carrying of weapons in city buildings would include any type of weapon including those named in the concealed carry statute. A representative list of City buildings is included however the ordinance indicates that it is applicable to any City owned or controlled building that is posted indicating that weapons are prohibited. In order to enforce the provisions of this section, appropriate signs must be posted in prominent places near all entrances of the buildings as required by the state statutes. The signs are anticipated to be fairly basic and clear such as: "NOTICE: No Weapons or Firearms allowed in Building per City Ordinance 17-3 and §943.13 Wis. Stats." Weapons, excluding firearms and weapons allowed by state statutes (for example, firearms, electric weapons, knives and billy clubs carried by individuals licensed through the concealed carry statute) would also be prohibited in all parks and recreation areas under this draft. While §66.0409 of the Wisconsin Statutes, as noted above, limits the ability of the City to restrict the use or possession of firearms and the Concealed Carry Law limits the City's ability to restrict appropriately licensed persons from carrying concealed weapons on public lands, those laws do not limit the City's ability to restrict the use or possession of other weapons, therefore, this provision would limit the ability of persons not carrying weapons as specifically permitted under the Wisconsin Statutes to use or possess weapons within the city parks. Regulation of the Discharge of a Firearm within City Limits Current section 17-4 limits the discharging of firearms within the City. The proposed revision would update this language to include the statutory exception for persons whose conduct is justified or would have been subject to the defense of privilege in the criminal code which is contained in the Concealed Carry Law as well as with written permission from the Chief of Police. Section 19-4(0) currently prohibits the use of firearms and other weapons within the parks. The prohibition on possession of weapons, excluding concealed weapons carried by licensed individuals, from city parks and recreation areas is proposed to be included in new section 17- 3. Discharging of weapons would be covered by the general prohibition against discharging a weapon within the City under section 17-4. Therefore this section is proposed to be deleted. FISCAL IMPACT While there may be indirect costs associated with enforcement of the ordinance, those costs would be very difficult to estimate. There would be direct costs associated with the creation of the signage required to post at the various public buildings and park property related to weapons. RECOMMENDATION If the Council wishes to limit the ability of persons to carry firearms and weapons, including concealed weapons, in City buildings and on City property, then the Council should pass the proposed ordinance. Res•ectfully Submit ed, Approved: 1.4 n A. Lorenson Mark A. Rohloff City Attorney City Manager