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10/06/2009 03C-2 Citizen Service Request Response RE: Civil Emergency Ordinance
-2 - MEMORANDUM October 1, 2009 TO: Honorable Mayor and Members of the City Council FROM: Helen A. Harvey, Senior Assistant City Attorney SUBJ: Civil Emergency Ordinance On September 15, 2009, an issue was raised during audience participation at the City Council business meeting about a provision on firearms in Yakima Municipal Code 6.06.030(7). This memo very briefly will discuss the provision that was mentioned, which is part of the civil emergency ordinance: "A. Upon the proclamation of a civil emergency by the mayor, and during the existence of such emergency, the mayor may make and proclaim any or all of the following 40 orders: (7) An order prohibiting the possession of firearms or any other deadly weapon by a person (other than a law enforcement officer) in a place other than that person's place of residence or business;" A. Background of Chapter 6.06 YMC, Civil Emergency Ordinance. The civil emergency ordinance (Chapter 6.06 YMC) (referred to as the "ordinance ") was passed by the City Council on December 7, 2004, following a study session on September 28, 2004, and a prior review of the ordinance by the Council Public Safety Committee. This ordinance provides for the temporary and brief granting of power to the Mayor to act during an emergency until the normal collective council decision- making process can resume. - The City of Yakima, in cooperation with the Yakima Valley Office of Emergency Management, has developed an Emergency Operations Plan as required by Chapter 38.52 RCW. Since the attack on our country on September 11, 2001, the federal government has increased the level of awareness to state and local first responders on what are III the minimal expectations of federal agencies from local governments regarding advance preparedness. This preparedness is part of Memo to City Council re Civil Emergency Ordinance October 1, 2009 Page 2 mandated expectations of emergency planning as outlined in the National Incident Management System (NIMS). Article II, Section 3 of the Yakima City Charter provides that in time of public danger or emergency, the City Council by a majority vote may authorize the Mayor to maintain order and enforce the law. Chapter 6.06 YMC (the "ordinance ") provides for delegation of certain emergency powers to the mayor in a civil emergency in the event that decisive action is required prior to the City Council being properly convened. Any order issued by the Mayor is to be presented to the City Council for ratification and confirmation at the earliest practicable time and in , no event more than 72 hours after the proclamation of the emergency. This ordinance authorizes the City Manager to enter into contracts and authorize expenditures in a civil emergency, subject to presentation for review and appropriate legislation to the City Council at the earliest practicable time. Ordinances that spell out the role of certain elected officials at the local level to act immediately to mitigate loss of life and property during a time of extreme emergency are necessary requirements in today's environment. Other cities in Washington have oordinances that delegate powers to the Mayor during a civil emergency. These ordinances typically give power to the mayor to make certain orders during an emergency. Many other cities in Washington have emergency provisions regarding firearms. For example, YMC Section 6.06.020(7), which addresses possession of firearms, is identical to the wording in Union Gap Municipal Code Section 2.88.030(b)(5). B. State Law. RCW 9.41 on "Firearms and Dangerous Weapons" sets forth a comprehensive scheme of state firearms regulations. Washington state law in RCW 9.41 contains a "State preemption" section, which states: "9.41.290. State preemption The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, Memo to City Council re Civil Emergency Ordinance October 1, 2009 Page 3 licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only these laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality." A recent Washington Attorney General's opinion written by William B. Collins, Deputy Solicitor General, discusses this preemption statute and its impact on the ability of cities to adopt firearms laws or regulations. See AGO 2008 No. 8 (October 13, 2008). The issue presented to the Attorney General's Office was: "Does a city in Washington have the authority to enact a local law that prohibits possession of firearms of city property or in city -owned facilities ?" The brief answer of the Attorney General's opinion was: "The answer to your question is no. RCW 9.41.290 `fully occupies and preempts the entire field of firearms regulation' and preempts a city's authority to adopt firearms laws or regulations of application to the general public, unless specifically authorized by state law. Accordingly, RCW 9.41.290 preempts a city's authority to enact local laws that prohibit possession of firearms on city property or in city -owned facilities." The Attorney General's opinion did not specifically address a situation in an emergency situation occurs, although some of the reasoning of the opinion may be pointed to by a challenger in the extremely rare event that an emergency order relying on YMC 6.06.030(7) were ever issued. It should be noted that such an emergency order by definition would be of very short duration, and has never been issued by the City to date. ATTACHMENT "A" CIVIL EMERGENCY ORDINANCE • Chapter 6.06 Yakima Municipal Code EMERGENCY POWERS OF MAYOR, CITY COUNCIL AND CITY MANAGER Sections: 6.06.010 Proclamation of civil emergency— Emergency defined. 6.06.020 Line of succession. 6.06.030 Action which may be taken. 6.06.040 Delivery to news media. 6.06.050 Violation— Penalty. 6.06.010 Proclamation of civil emergency— Emergency defined. Whenever a civil emergency, or the imminent threat thereof, occurs in the city and results in or threatens to result in the death or injury of persons or the destruction of or damage to property to such extent as to require, in the judgment of the mayor, extraordinary measures to protect the public peace, safety and welfare, the mayor shall forthwith proclaim in writing the existence of a civil emergency. In the absence or unavailability of the mayor, such a civil emergency may be declared by the person indicated in YMC 6.06.020 on the line of succession. For the purposes of this chapter, a "civil emergency" shall mean: A. A riot, unlawful assembly, insurrection, enemy attack, terrorist attack, sabotage, or other hostile action; or (1) . For the purpose of this chapter, the term "unlawful assembly" means any threat, actual or implied, to use force or violence when accompanied by immediate power to execute such force or violence by three or more persons acting together without authority of law and where the threat to use the same would endanger or tend to endanger the safety of property or persons. B. A natural or human - caused disaster, including fire, flood, storm, explosion, earthquake, volcanic disturbance or eruption, or other natural cause. (Ord. 2004- 75 § 1 (part), 2004). 6.06.020 Line of succession. A. Line of Succession of Elected Officials for Appointment as Acting Mayor. The line of succession for elected officials to serve as the acting mayor is as follows: (1) Mayor. (2) Mayor pro tem. (3) . Council members by seniority unless a member is unavailable or declines to serve. "Senior" or "seniority" shall mean the number of years served on the city council. In the event of exact seniority by two or more members, the members shall mutually determine who shall act as mayor. B. Staff Official Appointed Acting Mayor. In the event that the entire council is unavailable, too injured, or is deceased, the line of succession for city employees to serve as the acting mayor is as follows: (1) City manager. 1 (2) Assistant city manager. (3). Police chief. (4) Fire chief. (5) Public works director. C. Powers and Duties of the Acting Mayor. Every provision of law in relation to the powers and duties of the mayor, and in relation to acts and duties to be performed by others toward him or her, extends to the person performing for the time being the duties of mayor. (Ord. 2004 -75 § 1 (part), 2004). 6.06.030 Action which may be taken. A. Upon the proclamation of a civil emergency by the mayor, and during the existence of such emergency, the mayor may make and proclaim any or all of the . following orders: (1) An order imposing a general curfew applicable to the city as a whole or to such geographical area or areas of the city and during such hours as he or she deems necessary, and subsequent orders from time to time to modify the hours such curfew will be in effect and the area or areas to which it will apply; (2) An order requiring any or all business establishments to close and remain closed until further order; (3) An order requiring the closure of any or all bars, taverns liquor stores and other business establishments where alcoholic beverages are sold or otherwise • dispensed; provided, that with respect to those business establishments which are not primarily devoted to the sale of alcoholic beverages and in which such alcoholic beverages may be removed or . made secure from possible seizure by the public, the portions thereof utilized for the sale of items other than alcoholic beverages may, in the discretion of the mayor, be allowed to remain open; and further provided, that such orders shall be subject to the laws of the state of Washington by and the Washington State Liquor Control Board; (4) An order requiring the discontinuance of the sale, distribution, giving away, or possession of gasoline or other liquid flammable or combustible products in any container other than a gasoline tank properly affixed to a motor vehicle or except in connection with normal operation of motor vehicles, normal home use or legitimate commercial use; (5) An order requiring the discontinuance of the sale, distribution or giving away of firearms and /or ammunition for firearms in any or all parts of the city; (6) An order requiring the closure of any or all business establishments where firearms and /or ammunition for firearms are sold or otherwise dispensed; provided, that with respect to . those business establishments which are not primarily devoted to the sale of firearms and /or ammunition and in which such firearms and /or ammunition may be removed or made secure from possible seizure by the public, the portions thereof utilized for sale of items other than firearms and . ammunition may, in the discretion of the mayor, be allowed to remain open; (7) An order prohibiting the possession of firearms or any other deadly weapon by a person .(other than a law enforcement officer) in a place other than that person's place of residence or business; 2 (8) An order closing to the public any or all public places, including streets, P Y P p 9 , alleys, public ways, schools, parks, beaches, amusement areas and public buildings; (9) An order requesting federal and /or state assistance in combating such civil emergency, including but not limited to requesting the assistance of the National Guard; (10) An order directing the use of all public and private health, medical, and convalescent facilities and equipment to provide emergency health and medical care for injured persons; (11) An order authorizing, in cooperation with utility management and appropriate state and federal agencies, the shutting off, restoration, and operation of utility services in accordance with priorities established for combating such civil emergency; (12) Such other orders as are imminently necessary for the protection of life and property; provided, however, that any such orders shall, at the earliest practicable time but in no event more than seventy -two hours after the proclamation of the respective order(s), be presented to the city council for ratification and confirmation, and if not so ratified and confirmed shall be void. B. Upon the proclamation of a civil emergency by the mayor and /or the city council, and during the existence of such emergency, the city council may make and proclaim any or all of the following orders: (1) An order providing for the evacuation and reception of the population of the city or any part thereof; • (2) Such other orders as are imminently necessary for the protection of life and property. C. Upon the proclamation of a civil emergency by the mayor and /or the city council, and during the existence of such emergency, the city manager shall have the power by order to enter into contracts and incur obligations necessary to combat such disaster, protect the health and safety of persons and property, provide emergency assistance to the victims of such disaster, and direct the finance department to draw and to pay the necessary warrants for expenditures to respond to the emergency. Such powers shall be exercised in light of the exigencies of the situation without regard to time - consuming procedures and formalities prescribed by ordinance (excepting mandatory constitutional requirements), including, but not limited to, budget law limitations and requirements of competitive bidding and publication of notices pertaining to the performance of public work, entering into contracts, the incurring of obligations, the employment of temporary workers, the rental of equipment, the purchase of supplies and materials, and the appropriation and expenditures of public funds; provided, that the city manager shall, wherever practicable, advise and consult with the city council with respect to disaster response activities, and any such order shall at the earliest practicable time be presented to the city council for review and appropriate legislation including: f (1) Findings by resolution with respect to actions taken; 3 S (2) Authorization of payment for services, supplies, equipment loans and commandeered property used during disaster response activities; (3) Approval of gifts, grants or loans accepted by the city during the emergency; (4) Levy of taxes to meet costs of disaster response and recovery operations; and upon such review the city council may ratify and confirm, modify, or reject any such order, and if rejected, any such order shall be void. (Ord. 2004 -75 § 1 (part), 2004). 6.06.040 Delivery to news media. The mayor shall cause any proclamation issued by him or her, pursuant to the authority of this chapter, to be delivered to all news media within the city and shall utilize such other available means, including public address systems, as shall be necessary, in his or her judgment, to give notice of such proclamation to the public. (Ord. 2004 -75 § 1 (part), 2004). 6.06.050 Violation - Penalty. It is unlawful for any person to fail or refuse to obey any such order proclaimed by the mayor or the city council. Any person convicted of a violation of this chapter shall be guilty of a misdemeanor and shall be punished by a fine not to exceed five hundred dollars, or by imprisonment in jail for a period not to exceed 4110 ninety days, or by both such fine and imprisonment. (Ord. 2004 -75 § 1 (part), 2004). • 4 ATTACHMENT "B" PROVISIONS IN EMERGENCY ORDINANCES OF SOME OTHER CITIES REGARDING FIREARMS Vancouver Municipal Code, Section 2.12 — Emergency Management Section 2.12.040 Authorized emergency orders. (a) Upon the declaration of a civil emergency, and during the existence of such civil emergency, the city manager or designate may make and proclaim any or all of the following orders and delegate enforcement authority therefore to law enforcement officers and designated emergency personnel: (9) An order prohibiting the carrying or possession of firearms or any instrument which is capable of producing bodily harm and which is carried or possessed with intent to use the same to cause such harm, provided that any such order shall not apply to peace officers or military personnel engaged in the performance of their official duties; Everett, Chapter 9.02 — Civil Emergencies 9.02.020 Orders during emergency. Upon the proclamation of a civil emergency, the mayor, or if he is unavailable, the president of the city council, during the existence of such civil emergency, may make and proclaim any or all of the following orders: G. An order prohibiting the carrying or possession of firearms or any instrument which is capable of inducing bodily harm, provided that any such order shall not apply to peace officers or military personnel engaged in the performance of their official duties; City of Bellingham Municipal Code - Chapter 57 Emergency Services Council 2.57.060 — Emergency Powers of Mayor or Director In the event of disaster as provided in this chapter, the Mayor or, in the Mayor's absence, the Director is empowered to do the following: (9) An order prohibiting the carrying or possession of firearms or any instrument which is capable of producing bodily harm and which is carried or possessed with the intent to use the same to cause such harm; provided, that any such order shall not apply to peace officers or military personnel engaged in the performance of their official duties, 0 1 • Seattle Chapter 10.02 - Civil Emergencies SMC 10.02.020 Authority of Mayor to issue certain orders. Upon the proclamation of a civil emergency by the Mayor, and during the existence of such civil emergency, the Mayor may, in a form that meets the requirements of Section 10.02.025, make and proclaim any or all of the following orders: I. An order prohibiting the carrying or possession of a firearm or any instrument which is capable of producing bodily harm and which is carried or possessed with intent to use the same to cause such harm, provided that any such order shall not apply to peace officers or military personnel engaged in the performance of their official duties; City of Chelan Chapter 9.12 — Civil Emergencies 9.12.040 Civil emergency — Mayor to issue orders. After the issuance of a written proclamation of a state of emergency, the mayor or the representative of the mayor duly authorized to act for him as provided in Section 9.12.030, may in the interest of public safety and welfare make any or all of the following orders: G. Prohibit any person or ersons from carrying or possessing upon any street or P rY 9 P 9 P Y public place within the city any firearms, knives, clubs, rocks, bricks, or other weapons, objects or contrivances susceptible for use in causing injury to persons or damage to property; Union Gap Chapter 2.88 — Emergency Management 2.88.030 State of emergency- Powers of the mayor pursuant to a proclamation. (a) The mayor may, after finding that a public disorder, disaster, energy emergency or riot exists within the city of Union Gap or any part thereof which affects life, health, property, or public peace, proclaim a state of emergency. (b) The mayor, after proclaiming a state of emergency and prior to terminating such, may, in the area described by the proclamation, issue an order prohibiting: (5) The possession of firearms or any other deadly weapon by a person (other than a law enforcement officer) in a place other than that person's place of residence or business; 2 Pasco Chapter 2.04 Emergency Powers of Mayor 2.04.020 Orders Proclaimed During Emergency. Upon the proclamation of public danger or emergency by the Mayor, and during the existence of such public danger or emergency, the Mayor may make and proclaim any or all of the following orders: I) An order prohibiting the carrying or possession of firearms, ammunition, explosives, inflammable materials or liquids, or any instrument or other dangerous weapon which is capable of producing bodily harm and which is carried or possessed with intent to use the same to .cause such harm, provided that any such order shall not apply to peace officers or military personnel engaged in the performance of their official duties; Kennewick Chapter 10.22 Emergency Powers 10.22.020: Orders of Mayor - Council Ratification Required: Upon the proclamation by the mayor of public danger or emergency, and during the existence of such public danger or emergency, the mayor may make and proclaim any order necessary for the protection of life and property, including, but not limited to, orders: (5) Prohibiting the carrying or possession of any instrument, weapon, or material capable of producing bodily harm. Bellevue Chapter 9.22 — Mayor's Emergency Powers 9.22.020 Action which may be taken. Upon the proclamation of a civil emergency by the mayor, and during the existence of such emergency the mayor may make and proclaim any or all of the following orders: H. An order prohibiting the carrying or possession of firearms or any instrument which is capable of producing bodily harm and which is carried or possessed with the intent to use the same to cause such harm; provided, that any such order shall not apply to peace officers or military personnel engaged in the performance of their official duties; 0 3 Page 1 of 9 • Westlaw - Wash. AGO 2008 NO. 8, 2008 WL 4716763 ( Wash.A.G.) Page 1 Wash. AGO 2008 NO. 8, 2008 WL 4716763 (Wash.A.G.) Office of the Attorney General • State of Washington AGO 2008 No. 8 October 13, 2008 CITIES AND TOWNS FIREARMS PREEMPTION - Authority of city to enact a local law prohibiting posses - sion of firearms on city property or in city -owned facilities. RCW 9.41.290 preempts a citys authority to enact local laws that prohibit possession of firearms on city property or in city -owned facilities. Honorable Bob Morton State Senator, 7th District Honorable Kevin Van De Wege State Representative, 24th District Dear Senator Morton and Representative Van De Wege: • By letter previously acknowledged, you have asked the following paraphrased question: Does a city in Washington have the authority to enact a local law that prohibits possession of firearms on city property or in city -owned facilities? BRIEF ANSWER The answer to your question is no. RCW 9.41.290 fully occupies and preempts the entire field of firearms regu- lationand preempts a citys authority to adopt firearms laws or regulations of application to the general public, unless specifically authorized by state law. Accordingly, RCW 9.41.290 preempts a citys authority to enact local laws that prohibit possession of firearms on city property or in city -owned facilities. • BACKGROUND • Your question deals with the authority of cities to enact laws relating to firearms. Article XI, section 11 of the Washington Constitution provides that [a]ny county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws. Const. art. XI, § 11. This is a direct delegation of the police power as ample within its limits as that possessed by the Legis- lature itself. It requires no legislative sanction for its exercise so long as the subject- matter is local, and the regu- lation reasonable and consistent with the general laws. City of Spokane v. Portch, 92 Wn.2d 342, 346. 596 P.2d 1044 (1979). However, the plenary police power in regulatory matters accorded municipalities by Const. Art. 11, § 1.1, ceases when the State enacts a general law upon the particular subject, unless there is room for concur- • © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw. com/print/printstream. aspx ?mt = Washington &ifm= NotSet &prft= HTM... 10/ 1 /2009 Page 2 of 9 Wash. AGO 2008 NO. 8, 2008 WL 4716763 (Wash.A.G.) Page 2 0 rent jurisdiction. Id. Preemption occurs when the Legislature states its intention either expressly or by necessary implication to preempt the field. Brown v. City of Yakima, 116 Wn.2d 556, 560, 807 P.2d 353 (1991). Thus, a citys authority to enact laws relating to firearms depends upon the general firearms laws enacted by the State. RCW, 9.41 sets forth a comprehensive scheme of state firearms regulations. This statutory scheme includes pree- mption. RCW 9.41.290 provides: The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, dis- charge, and transportation of firearms, or any other element relating to firearms or parts thereof, including am- munition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality. *2 RCW 9.41.290 preempts the authority of cities to adopt laws regulating firearms. The question is whether the scope of this preemption extends to prohibiting cities from enacting local law that prohibits possession of fire- arms on city propertyor in city -owned facilities. ANALYSIS In determining the scope of the preemption in RCW 9.41.290, the objective is to determine the legislatures in- 1 1111 1 tent. If the statutes meaning is plain on its face, then the court must give effect to that plain meaning as an ex- pression of legislative intent. See State n. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005). The plain meanin- gof a statutory provision is to be discerned from the ordinary meaning of the language at issue, as well as from the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole. Id. A statute is ambiguous if it is subject to more than one reasonable interpretation. In re the Marriage of Kovacs, 121. Wn.2d 795, 804, 854 P.2d 629 (1993). In this case, the plain meaning of RCW 9.41.290 establishes that the preemptive effect of the statute is substan- tial. Preemption occurs when the Legislature states its intention ... expressly ... to preempt the field. Brown, 116 Wn.2dat 560. RCW 9.41.290 expressly preempts the field. RCW 9.41 290 provides in part that the state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state. (Emphasis added.) Not only does RCW 9.41.290 use the words of preemptionfully occupies and pree- mptsit broadly defines the field of firearms regulation to include the registration, licensing, possession, pur- chase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to fire- arms or parts thereof, including ammunition and reloader components. RCW 9.41.290. Standing alone, the language of RCW 9.41.290 quoted above would establish substantial field preemption. However, RCW 9.41.290 goes on to specifically address the authority of cities to regulate firearms and provides, in part, that [c]ities, towns, and counties or other municipalities may enact only those laws and ordinances relat- ing to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Under RCW 9.41. 290, cities may only enact laws and ordinances relating to firearms if two conditions are met. © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2. westlaw. com/print/printstream. aspx ?mt= Washington &ifm= NotSet &prft= HTM... 10/ 1 /2009 Page3of9 Aft Wash. AGO 2008 NO. 8, 2008 WL 4716763 (Wash.A.G.) Page 3 First, cities may only enact laws that are specifically authorized by state law, as in RCW 9.41.300. RCW 9.41.290. Second, the citieslaws must be consistent with this chapter. Id. Subject to conditions in the statute, RCW 9.41.300 authorizes cities to enact laws restricting the discharge of firearms in any portion of their re- spective jurisdictions, restricting the possession of firearms in any stadium or convention center, operated by a city, restricting the areas in their respective jurisdictions in which firearms may be sold, and restricting the loca- tion of a business selling firearms to not less than five hundred feet from primary or secondary school grounds. RCW 9.41.300(2)(a)-(b), (3)(a) -(b). [FN I] *3 The requirement in RCW 9.41.290 that firearms laws adopted by cities be consistent with this chapterneces- sarily implies that inconsistent laws are invalid. RCW 9.41..290 contains additional language, however, that renders this implication explicit. RCW 9.41.290 provides, in part: Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality. (Emphasis added.) In our judgment, the plain language of RCW 9.41.290 demonstrates that the Legislature in- tended to broadly preempt local laws relating to firearms. , Although the language of RCW 9.41.290 is broad, it does not preempt all city authority with respect to firearms. The Supreme Court has considered RCW 9.41.290 on two occasions. In Cherry v. Municipality of Metropolitan Seattle, 116 Wn.2d 794, 808 P.2d 746 (1991), the Court considered whether the Municipality of Metropolitan Seattle (Metro) could discharge an employee who violated Metros policy prohibiting employees from carrying concealed weapons. The Court held that RCW 9.41.290 is intended to preempt regulatory city, town or county 0 firearms laws and ordinances, but does not address internal employment rules limiting on- duty possession of firearms by public employees in the workplace. Id. at 798 (emphasis added). The Court concluded that RCW 9.41.290 was enacted to reform that situation in which counties, cities, and towns could each enact conflicting local criminal codes regulating the general publics possession of firearms. Id. at 801. Thus, the purpose of RCW 9.41.290, was to eliminate a multiplicity of local laws relating to firearms and to advance uniformity in criminal firearms regulation. Id. . The Supreme Court next considered RCW 9.41.290 in Pacific Northwest Shooting Park Association v. City of Sequim, 158 Wn.2d 342, 144 P.3d 276 (2006). In Pacific Northwest Shooting Park, the Association wanted to hold a gun show in the cityconvention center. The conditional use permit issued by the City of Sequim imposed three conditions on the ability of licensed and unlicensed gun dealers to sell or exchange firearms. The Associ- ation argued that these conditions were preempted by RCW9.41.290. The Court disagreed. According to the Court, Cherry supports the general proposition that when a municipality acts in a capacity that is comparable to that of a private party, the preemption clause does not apply. Pacific.. Northwest Shooting Park. 158 Wn.2d at 357. The Court concluded that a municipality acts in a proprietary capacity when it acts as the proprietor of a business enterprise forr the private advantage of the municipality and it may exercise its business powers in much • . the same way as a private individual or corporation. Id. (citations and internal quotation marks omitted). There- fore, [b]y issuing a temporary use permit, the city was leasing its property to PNSPA and acting in its private ca- pacity as a property owner. Id. The Court held that RCW 9.41.290 *4 does not prohibit a private property owner from imposing conditions on the sale of firearms on his or her property. RCW 9.41.290. Applying our reasoning in Cherry, it follows that a municipal property owner like a private property owner may impose conditions related to firearms for the use of its property in order to protect its property interests. For the same reason that a municipal employer may enact policies regarding • possession of firearms in the workplace because a private employer may do so, a municipal property owner . , 40 © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. • http: / /web2.westlaw. com/print/printstream. aspx ?mt = Washington &ifm= NotSet &prft= HTM... 10/ 1 /2009 . Page 4 of 9 Wash. AGO 2008 NO. 8, 2008 WL 4716763 (Wash.A.G.) Page 4 should be allowed to impose conditions related to sales of firearms on its property if a private property own- er may impose them. Pacific Northwest Shooting Park, 158 Wn.2d at 357. The Court explained that the critical point is that the condi- tions the city imposed related to a permit for private use of its property. They were not laws or regulations of ap- plication to the general public. Id. Under Cherry and Pacific Northwest Shooting Park, RCW 9.41.290 does not preempt a citys ability to impose conditions when it is acting in a private capacity. The question is whether this reasoning would apply if a city prohibited the general public from possessing firearms on city property. It is certainly true that RCW 9.41.290 would not preempt a private citizen from prohibiting possession of firearms on his or her property. This prohibi- tion might be enforced by simply refusing to permit someone entry on to the private property with a firearm. However, in this respect, a city is not in the same position as a private citizen. Large parts of city property are generally open to the public. Indeed, citizens may be required to enter city property, for example, to apply for a building permit. For these reasons, neither Cherry nor Pacific Northwest Shooting Park support the view that cities may prohibit the general public from possessing firearms on city property. It has been suggested that such a prohibition on the possession of firearms on city property might be enforced through the states criminal trespass laws. RCW 9A.52.070 governs first degree criminal trespass and provides: (1) A person is guilty of criminal trespass in the first degree if he knowingly enters or remains unlawfully in a building. (2) Criminal trespass in the first degree is a gross misdemeanor. RCW 9A.52.080 governs second degree criminal trespass and provides: (1) A person is guilty of criminal trespass in the second degree if he knowingly enters or remains unlawfully in or upon premises of another under circumstances not constituting criminal trespass in the first degree. (2) Criminal trespass in the second degree is a misdemeanor. A person enters or remains unlawfullywhen a person is in or upon premises when he is not then licensed, in- vited, or otherwise privileged to so enter or remain. RCW 9A.52.010(3). It is a defense to criminal trespass if the premises were at the time open to members of the . public and the actor complied with all lawful conditions im- posed on access to or remaining in the premises. RCW 9.52.090(2) (emphasis added). • *5 Under the criminal trespass approach, a city would post signs or otherwise notify the public that possession of firearms was prohibited on city property. [FN2] If an individual did not comply with this requirement, he or she would be charged with criminal trespass. In our judgment, a city does not have the authority to generally prohibit the possession of firearms on city prop- erty except to the extent authorized by RCW 9.41.290. Even in the case of criminal trespass, a member of the public is only required to comply with lawful conditions. RCW 9A.52.090(2). Prohibiting possession of firearms on city property would not be a lawful condition, because RCW 9.41.290 preempts the power of a city to impose such a prohibition. We reach this conclusion for three reasons. First, breadth of the language in RCW 9.41.290 persuades us that the Legislature intended to prohibit cities from generally prohibiting firearms. Even though Cherry and Pacific Northwest Shooting Park recognized that RCW 9.41.290 doesnot preempt all city authority to regulate firearms, both cases hold that the purpose of RCW 9.41.290 was to reform that situation in which counties, cities, and towns could each enact conflicting local criminal codes regulating the general publicspossession of firearms. Cherry, 116 Wn.2d at 801 (emphasis ad- ded); Pacific Northwest Shooting Park, 158 Wn.2d at 356. Thus, the regulation in those cases was not directed at • © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw. com/ print /priritstream. aspx ?mt = Washington &ifm= NotSet &prft= HTM... 10/ 1 /2009 Page 5 of 9 0 Wash. AGO 2008 NO. 8, 2008 WL 4716763 (Wash.A.G.) Page 5 the general publics possession of firearms. As the Court explained, the critical point is that the conditions the city imposed related to a permit for private use of its property. They were not laws or regulations of application to the general public. Pacific Northwest Shooting Park, 158 Wn.2d at 357 (emphasis added). Under the facts of • your question, the city would prohibit the general public from possessing firearms on city property. Prior to the enactment of RCW 9.41.290, it might have been legal to possess a firearm at a particular place in one city and a crime to possess a firearm in the same place in another city. RCW 9.41.290 was enacted to pre- vent these conflicting criminal codes. Allowing a city to use criminal trespass to enforce a ban on firearms al- lows conflicting criminal codes regulating the general publics possession of firearms. In this respect, it makes little difference to a citizen who is subjected toconflicting criminal codes whether he or she is being prosecuted for the gross misdemeanor of first degree trespass, or for the crime of possession of a firearm. Second, in interpreting a statute each provision of a statute should be read together (in pari materia) with other provisions in order to determine the legislative intent underlying the entire statutory scheme. State v. Chapman, 140 Wn.2d436, 448, 998 P.2d 282 (2000). The purpose of interpreting statutory provisions together with related provisions is to achieve a harmonious and unified statutory scheme that maintains the integrity of the respective statutes. Id. Reading RCW 9.41.290 together with other firearms statutes persuades us that the Legislature did not intend to permit cities to prohibit the general public from possessing firearms. The Legislature has expressly prohibited the possession of firearms in specific places. These include (a) restricted access areas of a jail, or of a law enforcement facility, or any place used for the confinement of a certain person, (b) the areas in any building which are used in connection with court proceedings, including courtrooms, jury rooms, judges chambers, of- fices and areas used to conduct court business, waiting areas, and corridors adjacent to areas used in connection • with court proceedings, (c) the restricted access areas of certain public mental health facilities, (d)that portion of an establishment classified by the state liquor control board as off - limits to persons under twenty -one years of age, and (e) the restricted access areas of a commercial service airport designated in the airport security plan ap- provedby the federal transportation security administration. RCW 9.41.300(1)(a) -(e). The Legislature also pro- hibited possession of firearms while on the site of an outdoor music festival. RCW 70.108.150. The Legislature has also expressly authorized citiesto prohibit firearms in certain places. This includes restricting the discharge of firearms in any portion of their respective jurisdictions, restricting the possession of firearms in any stadium or convention center, operated by a city, restricting the areas in their respective jurisdictions in which firearms may be sold, and restricting the location of a business selling firearms to not less than five hundred feet from primary or secondary school grounds. RCW 9.41.300(2)(a) -(b), (3)(a) -(b). *6 The Legislature has carefully set out the places where the general public is prohibited from possessing fire- arms. Where a statute specifically designates the things upon which it operates, there is an inference that the Le- gislature intended all omissions. In re Hopkins, 137 Wn.2d 897, 901, 976 P.2d 616 (1999). We conclude that the Legislature did not intend that the possession of firearms would be prohibited in the places that were not listed. This conclusion is buttressed by the fact that the Legislature's prohibition of firearms is very narrow. The Legis- lature prohibited the possession of firearms in the restricted access areas of a jail, or of a law enforcement facil- ity, or any place used for the confinement of [certain] person[s]but [r]estricted access areas do not include corn- mon areas of egress or ingress open to the general public. RCW 9.41.300(1)(a). The Legislature prohibited pos- session of firearms in certain restricted areasof courthouses. However, the Legislature provided that the restric- ted areas do not include common areas of ingress and egress to the building that is used in connection with court proceedings, when it is possible to protect court areas without restricting ingress and egress to the building. The restricted areas shall be the minimum necessary to fulfill the objective of this subsection. RCW 9.41.300(1)(b). The Legislature prohibited possession of firearms in the restricted areas of certain mental health facilities but, 0 © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw. com/print/printstream. aspx ?mt= Washington &ifm =NotS et &prft= HTM... 10/ 1 /2009 Page6of9 Wash. AGO 2008 NO. 8, 2008 WL 4716763 (Wash.A.G.) Page 6 Ali again, theLegislature provided that [r]estricted access areas do not include common areas of egress and ingress open to the general public. RCW 9.41.300(1)(c). Even the restricted areas of airports where firearms are prohib- ited do not include airport drives, general parking areas and walkways, and shops and areas of the terminal that are outside the screening checkpoints and that are normally open to unscreened passengers or visitors to the air- port. RCW 9.41.300(1)(e). Thus, even when the Legislature prohibited the possession of firearms, it did so only in restricted areas. The Legislature did not intend to impose a general prohibition on a citizens ability to possess a firearm. Third, the evolution of the preemption of local firearms laws establishes that the Legislature intended RCW 9.41.290 to broadly preempt local authority and to prohibit local government from prohibiting citizens from pos- sessing firearms. In 1935, Washington adopted firearms laws modeled after the uniform firearms act which was approved by the National Conference of Commissioners on Uniform State Laws, in 1930. See 1930 Handbook of National Conference of Commissioners on Uniform State Laws and Proceedings, 562 -567. Olsen v. Delmore, 48 Wn.2d 545. 548, 295 P.2d 324 (1956). Laws of 1935, ch. 172. The 1935 law did not contain a provision sim- ilar to RCW 9.41.290 that addressed the preemption of local authority to adopt firearms laws. In1961, the Legis- lature reenacted the states firearms laws. Laws of 1961, ch. 124. The 1961 law provided that [a]11 laws or parts of laws of the state of Washington, its subdivisions and municipalities inconsistent herewith are hereby preemp- ted andrepealed. Laws of 1961, ch. 124, § 14. *7 Although the 1961 law preempted and repealed inconsistent local law, it did not generally preempt local au- thority to adopt firearms laws that were not inconsistent with state firearms law. This was the holding in Second Amendment Foundationv. City of Renton, 35 Wn. App. 583, 668 P.2d 596 (1983). In Second Amendment Found- ation, Renton adopted an ordinance prohibiting the possession of firearms where alcoholic beverages are dis- pensed by the drink. The plaintiff argued that this ordinance was preempted by section 12 of the 1961 law. The Court of Appeals rejected this argument, because the provision served only to repeal inconsistent municipal le- gislation in effect in 1961, and has no bearing on the present case. Second Amendment Foundation, 35 Wn. App. at 588. The court held that there was no express preemption of local authority to regulate firearms. The court ex- plained that a careful examination of the Uniform Firearms Act, RCW Ch. 9.41, demonstrates no express pree- mption concerning the possession of firearms on premises where liquor is sold by the drink. The legislature has not indicated an intention to preempt municipal regulation in all areas of gun control. The power of municipalit- ies to so legislate survives. Second Amendment Foundation, 35 Wn. App. at 588. The Court next considered whether there was a conflict between state law and the Renton ordinance. The Court concluded that there was no conflict, because Washington laws do not expressly state an unqualified right to be in possession of a firearm at any time or place. The Renton ordinance does not purport to contradict or restrict any provision of the statute. Therefore, the statute and ordinance are not inconsistent. Id. at 588 -89. Thus, [w]hile an absolute and unqualified localprohibition against possession of a pistol by the holder of a state permit would conflict with state law, an ordinance which is a limited prohibition reasonably related to particular places and necessary to protect the public safety, health, morals and general welfare is not preempted by state statute. Id. at 589. In 1983, the Legislature adopted RCW 9.41.290. Laws of 1983, ch. 232, § 12. The 1983 version of RCW 9.41.290 provided that [c]ities, towns, and counties may enact only those laws and ordinances relating to fire- arms that are consistent with this chapter. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted. Laws of 1983, ch. 232, § 12. Although RCW 9.41.290 was enacted after Second Amendment Foundation was argued, the Court explained that section 12 pro- O. 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2. westlaw. com/ print /printstream. aspx ?mt = Washington &ifm= NotSet &prft= HTM... 10/ 1 /2009 Page 7 of 9 0 Wash. AGO 2008 NO. 8, 2008 WL 4716763 (Wash.A.G.) Page 7 hibits the enactment of local ordinances inconsistent with the requirements of RCW Ch. 9.41. It does not milit- ate against the result reached here. Second Amendment Foundation, 35 Wn. App.at 588 n.3. Thus, the 1983 ver- sion of RCW 9.41.290 only preempted inconsistent local firearms laws. In an addendum to AGO 1983 No. 14 (Addendum dated September 22, 1983), we discussed the limited scope of the preemptive language of section 12. We noted that the *8 critical issue involves the very limited preemptive effect of the language employed in § 12 of SSB 3782 (now chapter 232, Laws of 1983): It has, unfortunately, become apparent to us since AGO 1983 No. 14 was issued that some proponents and many supporters of that bill were misled into thinking that the language of § 12 was sufficient to prevent the continuing enactment or enforcement of local ordinances addressing the kinds of places where weapons might be possessed -with or without a permit. Such ordinances, in the minds of many, have led to a confusing patchwork of prohibitions from one locality to the next, across the state. AGO 1983 No. 14 (Addendum dated September 22, 1983) at 1 (emphasis added). We explained that it is most certainly within the power of the legislature to effect a policy that such a patchwork situation will not exist. Id. Also, we suggested that language such as preemptionor occupies the fieldwould accomplish this goal: If the legislature intends to accomplish this policy through the technique of preemptionthere are numerous judicial decisions, both within our own state and elsewhere, that contain examples of appropriate termino- logy that should be used. For,quite simply, preemption indicates a complete take over of a field of activity to the exclusion of all local actions, regulations or interference -and thus, if that is the intention of the legis- lature, the best and most effective way to manifestthat intent would be to use the term preemptionor occupies the field or similar terms. AGO 1983 No. 14 (Addendum dated September 22, 1983) at 1 -2 (emphasis added). 0 In 1985, the Legislature amended RCW 9.41.290. Laws of 1985, ch. 428, § 1. The amendment included the use of both of the terms preemptionand occupies the fieldsuggested in AGO 1983 No. 14. The amendment, in bill draft form, provided: The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may en- act only those laws and ordinances relating to firearms that are specifically authorized by state law and are consistent with this chapter. Such local ordinances shall have the same or lesser penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the require- ments of state law shall not be enacted and are preempted and resealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality. Laws of 1985, ch. 428, § 1 (italicized emphasis added). The 1985 legislation also added RCW 9.41.300 to RCW 9.41. Laws of 1985, ch. 428, § 2. RCW 9.31.300 prohibited possession of firearms in certain places. Laws of 1985, ch. 428, § 2(1). The statute also provided: Notwithstanding RCW 9.41.290, cities, towns, counties, and other municipalities may enact laws and ordinancesrestricting the discharge and possession of firearms in certain places. Laws of 1985, ch. 428, § 2(2). The sequence of events leading to the 1985 amendment of RCW 9.41.290 persuades us that the Legislature intended to preempt all local authority to impose a prohibition on the publics ability to possess firearms. The use of the terms. preemptand occupies the fieldconfirm that RCW 9.41.290 was intended to broadly preempt local authority to adopt a ban on the possession of firearms. *9 The 1994 amendment to RCW 9.41.290 and .300 also confirms this view. In 1993, the Court of Appeals de- cided City of Seattle v. Ballsmider, 71 Wn. App. 159, 856 P.2d 1113 (1993). In Ballsmider, the defendant viol - 0 © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2. westlaw. com/print/printstream.aspx ?mt = Washington &ifm= NotSet &prft= HTM... 10/1/2009 Page 8 of 9 Wash. AGO 2008 NO. 8, 2008 WL 4716763 (Wash.A.G.) Page 8 Alik ated a Seattle ordinance bystanding on the back porch of his Seattle residence and firing a gun into the air. The Seattle Municipal Court imposed a sentence of 365 daysconfinement with 360 days suspended and a $5,000 fine with $4,500 suspended. The defendant argued that the penalty imposed by local firearms ordinances cannot ex- ceed that imposed by the State firearms statutes, and that his sentence was therefore contrary to law because his sentence and the . maximum penalty under SMC 12A.28.050 (365 days and $5,000) exceed the maximum penalty allowed under RCW 9.41.2 30 (90 days and $1,000). Ballsmider, 71 Wn. App. at 161. The Court rejected this ar- gument, pointing to the language in RCW 9.41.300(2): Notwithstanding RCW 9.41.290. According to the Court: The definition of notwithstandingis in spite of, which in turn is defined as in defiance of, regardless of.. Under these definitions, notwithstanding RCW 9.41.290means regardless of anything in RCW 9.41.290, Had the Legislature intended that local governments disregard only contrary provisions or restrictions in the preemption statute, it could have easily said notwithstanding any contrary provisions or restrictions in RCW 9.41.290instead of notwithstanding RCW 9.41.290. Thus, the effect of notwithstanding RCW 9.41.290is that the preemption statute and its restrictions, including its penalty restrictions, are to be disregarded and have absolutely no bearing on laws enacted pursuant to RCW 9.41.300(2)(a). Ballsmider, 71 Wn. App. at 162163 (emphasis added) (citations omitted). The Court concluded that this reading of RCW 9.41.300(2) was consistent with RCW 9.41.290. According to the Court, the preemption language in RCW 9.41290 applies to the entire range of firearms regulation, including registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms ... (Emphasis added). RCW 9.41.300(2) and its [n]otwithstanding RCW 9.41.2901anguage merely give local governments authority, without penalty or other restrictions, to enact laws regarding the discharge of firearms in areas where there is a reasonable likelihood that humans, domestic animals, or property will be jeopardized. This limited exception does not swallow or render meaningless the general preemption statute which, as noted above, applies to much more than the regulation of the discharge of firearms. Ballsmider, 71 Wn. App. at 163 -64. In 1994, the Legislature amended RCW 9.41.290 and RCW 9.41.300. Laws of 1994, 1st Sp. Sess., ch. 7, §§ 428, 429. In bill draft form, the amendments to RCW 9.41.290 provided: The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities mayy en- act only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same ((or lesser)) penalty as provided for by state law. Local laws and ordinances that are inconsistent with,more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regard- less of the nature of the code, charter, or home rule status of such city, town, county, or municipality. *10 Laws of 1994, 1st Sp. Sess., ch. 7, § 428. In bill draft form, RCW 9.41.300, which provides limited author- ity to municipalities to enact ordinances relating to firearms was amended in part to provide: (2) ((Notwithstanding RCW 9.41.290,)) Cities, towns, counties, and other municipalities may enact laws and or- dinances: (4) Violations of local ordinances adopted under subsection (2) of this section must have the same penalty as provided for lby state law. . © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2. westlaw. com/ print /printstream. aspx ?mt= Washington &ifm =NotS et &prft= HTM... 10/1/2009 Page of 9 0 Wash. AGO 2008 NO. 8, 2008 WL 4716763 ( Wash.A.G.) Page 9 Laws of 1994, 1st Sp. Sess., ch. 7, § 429(2), (4). The 1994 amendments had the effect of changing the law as it was interpreted by the court in Balismider, which read the phrase notwithstanding RCW 9.41.290in RCW 9.41.300 as allow[ing] local governments relatively un- limited authorityin the specific areas covered by RCW 9.41.300(2). Ballsmider, 71 Wn. App. at 163. The repeal of the notwithstandinglanguage supports the interpretation that the Legislature intended that local governments have limited ability to regulate firearms. The 1994 amendments require that the penalties be the same as provided for by state law. The amendments even eliminate the authority of local governments to impose lesser penalties. The addition of the phrase as in RCW 9.41.300to RCW 9.41.290 further limits local authority to regu- late firearms. Local governments may only regulate if specifically authorized by state law, as in RCW 9.41.300. Laws of 1994,. 1st Sp. Sess., ch. 7, § 428. To summarize, RCW 9.41.290 fully occupies and preempts the entire field of firearms regulation within the boundaries of the state. While RCW 9.41.290 does not preempt all city authority with regard to firearms, it does preempt a citys authority to adopt firearms laws or regulations of application to the general public, unless spe- cifically authorized by state law. Accordingly, RCW 9.41.290 preempts a citys authority to enact local laws that prohibit possession of firearms on city property or in city -owned facilities. We trust that this opinion will be of assistance to you. Sincerely, Rob Mckenna Attorney General 0 William B. Collins . Deputy Solicitor General [EN 1 ]. The complete text of RCW 9.41.300 is attached. • [FN2]. There are different ways in which a city might take action to prohibit firearms on city property. One would be for the city legislative authority to enact an ordinance imposing the prohibition. Another would be, for a city official to imposethe prohibition, if he or she were authorized by city law to impose conditions on access to city property. In our view, the answer to this question does not turn on the manner in which the prohibition might be imposed. Wash. AGO 2008 NO. 8, 2008 WL 4716763 (Wash.A.G.) ' END OF DOCUMENT ® © 2009 Thomson Reuters. No Claim to Orig..US Gov. Works. http: / /web2. westlaw. com/print/printstream. aspx ?mt = Washington &ifm =NotS et &prft= HTM... 10/ 1 /2009