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COUNTIES, CITIES AND TOWNS. CRIMES INVOLVING HEALTH AND SAFETY. NO AUTHORITY TO REQUIRE SELLERS AND PURCHASERS OF HANDGUNS TO ACQUIRE LOCAL PERMIT. REGULATION OF SALE AND PURCHASE OF AMMUNITION PERMITTED.

November 26, 1986

The Honorable Aubrey M. Davis, Jr.

Commonwealth's Attorney for the City of Richmond

You request my opinion concerning the appropriateness of enforcing certain ordinances of the City of Richmond dealing with the sale of handguns and ammunition. Relying on prior Opinions of this Office, you conclude that the handgun ordinances are invalid and unenforceable, but that the ammunition ordinances are valid.

I. Local Ordinances

The City Council for the City of Richmond has enacted several ordinances which:

(1) require a permit to sell handguns and ammunition (see §§ 20-149 and 28-443(a) of the Richmond City Code);

(2) require a permit to purchase a handgun or ammunition (see §§ 20-150 and 28-443(B));

(3) prohibit selling or furnishing handguns to minors (see § 20-156 1); and

(4) establish certain standards for the issuance of permits by the city's director of public safety to sell or purchase handguns.

The question presented by your inquiry is whether the City of Richmond has the authority under its general police power to regulate the sale or purchase of handguns and ammunition beyond those regulations expressly authorized by statute.

II. Prior Opinions Hold Localities Lack Authority to Regulate Handguns Under General Police Power

A number of prior Opinions of this Office have addressed the scope of a locality's power to regulate the sale, purchase or possession of handguns. See Reports of the Attorney General: 1982-1983 at 755; 1981-1982 at 112; 1968-1969 at 53. Specifically, the Opinion found in the 1982-1983 Report of the Attorney General, supra, held that the City of Virginia Beach lacked the authority to require permits to sell or purchase handguns. The conclusion reached in that Opinion was based on the absence of express statutory authority in the Code of Virginia for the regulation of handguns by localities, a pattern of legislation regulating the sale and use of dangerous weapons, and the history of the General Assembly's consideration of proposed legislation which would have authorized local regulation of the sale and purchase of handguns.

II. State Legislation May Preempt Exercise of Local Police Power

The Supreme Court of Virginia has considered a number of challenges to a locality's exercise of its police power on the grounds that the challenged regulation was inconsistent with State law or that State law had preempted the subject area. See City of Norfolk v. Tiny House, 222 Va. 414, 281 S.E.2d 836 (1981) (zoning regulation of establishments serving alcoholic beverages upheld); Loudoun County v. Pumphrey, 221 Va. 205, 269 S.E.2d 361 (1980) (ordinance requiring deposit on alcoholic beverage containers invalidated); Tabler v. Fairfax County, 221 Va. 200, 269 S.E.2d 358 (1980); (ordinance requiring deposit on beverage containers held to be beyond police power of the local governing body); Wayside Restaurant v. Virginia Beach, 215 Va. 231, 208 S.E.2d 51 (1974) (regulation of topless dancers in bars upheld); Kisley v. City of Falls Church, 212 Va. 693, 187 S.E.2d 168 (1972), appeal dismissed, 409 U.S. 907 (1972) (regulation of massage parlors upheld); King v. County of Arlington, 195 Va. 1084, 81 S.E.2d 587 (1954) (regulation of keeping of vicious dog upheld).

In considering challenges to local ordinances based upon allegations of an ordinance's inconsistency with State law or State preemption of the subject area regulated, the Court has upheld ordinances when the matter regulated is a proper subject of the police power2 and the provisions of the ordinances may be harmonized with existing State statutes. In reaching this determination, the key factors have included the nature and extent of State legislation in the subject area and the legislative intent which may be inferred from the existing statutes, or the history of proposed legislation in the subject area considered by the General Assembly. See Tabler v. Fairfax County.

IV. State Statutes Regulate Dangerous Weapons

Various statutes concerning the possession, use and local regulation of dangerous weapons are set out in Arts, 4 through 7, Ch. 7 of Title 18.2 of the Code of Virginia. Sections 18.2-287 and 18.2-287.1 authorize counties to regulate the carrying of loaded firearms on public highways and transporting loaded rifles and shotguns in vehicles. Sections 15.1-518, 15.1-518.1 and 15.1-865 authorize counties and certain municipal corporations to regulate the discharge of firearms. Sections 15.1-523 and 15.1-524 authorize counties to impose a license tax and certain reporting requirements on sellers of handguns.

The only provision of law which speaks of permits as related to purchases or sales of weapons3 is § 15.1-525, which continues in effect the provisions of Ch. 297, 1944 Va. Acts 432, requiring permits to sell or purchase handguns in any county having a density of population of more than one thousand per square mile.4

Prior Opinions of this Office, issued over a period of many years, hold the effect of this pattern of legislation to be that the State has preempted the field and that localities may not, therefore, enact regulatory measures without specific statutory authority. See Reports of the Attorney General: 1982-1983, supra; 1981-1982, supra.5

V. General Assembly Has Consistently Refused to Authorize Local Regulation of Sales and Purchases of Handguns

In recent years, on at least seven occasions the General Assembly has considered bills which would have authorized local regulation of the sale and purchase of handguns. See, e.g., H.B. Nos. 516, 967, and S.B. No. 121, 1984 Session of the General Assembly; H.B. No. 70, 1983 Session of the General Assembly; H.B. No. 350, 1982 Regular Session of the General Assembly; H.B. No. 1764, 1981 Regular Session of the General Assembly; H.B. No. 1870, 1979 Session of the General Assembly. Compare H.B. No. 1771, 1985 Session of the General Assembly; S.J.R. No. 114, 1975 Va. Acts 1531. This history of the General Assembly's consideration of proposed enabling legislation to permit or require local regulation of the sale or purchase of handguns creates a strong inference of legislative intent that localities have only those powers expressly granted by the General Assembly concerning the sale or purchase of handguns. This Office cannot accomplish by interpretation what the General Assembly has repeatedly declined to do by statute. Accordingly, it is my opinion that the long-standing Opinions of the Attorney General, cited above, must be presumed to be correct. Compare Browning-Ferris v. Commonwealth, 225 Va. 157, 300 S.E.2d 603 (1983); Deal v. Commonwealth, 224 Va. 618, 299 S.E.2d 346 (1983). It is further my opinion, therefore, that the ordinances in question are invalid and unenforceable to the extent they require a city permit for the sale or purchase of a handgun.

VI. Regulation of Sale and Purchase of Ammunition Authorized Under City's General Police Power

Two of the ordinances in question also regulate the sale and purchase of ammunition. The 1981-1982 Opinion, supra, authorized a county to regulate the sale of ammunition pursuant to its general police power under § 15.1-510 in the absence of any State statute on the subject.

Section 2.04 of the Charter for the City of Richmond is a general grant of the police power to the City. See Ch. 112, 1975 Va. Acts 284, 285-87. In accord with the 1981-1982 Opinion, supra, it is my opinion that the City of Richmond has the authority under its general police power to regulate the sale and purchase of ammunition. The ordinances in question, therefore, are valid and enforceable to the extent they require a city permit for the sale or purchase of ammunition.

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1. Section 18.2-309 of the Code of Virginia also prohibits the selling or furnishing of handguns to minors.

2. As to the validity of local gun control ordinances as a proper exercise of the police power, see generally Sklar v. Byrne, 727 F.2d 633 (7th Cir. 1984); Annot., 28 A.L.R.3d 845(1969).

3. Note that § 18.2-308(D) requires a person to apply for and obtain a permit from a circuit court in order to be able legally to carry a concealed weapon.

4. Chapter 297 provides that, in the affected counties, anyone engaged in the business of selling pistols or revolvers at retail must first obtain a permit to do so from the chief of police; that any person desiring to acquire a pistol or revolver also must first obtain a permit from the chief; and that no dealer shall sell or otherwise furnish a pistol or revolver to any person unless the person delivers to the dealer the required permit.

Chapter 297 was continued in effect pursuant to § 59-144 until 1968 and thereafter pursuant to § 15.1-525 (see Ch. 439, 1968 Va. Acts 548, 590-91).

5. "In Statlings v. Wall, 4 Va. Cir. 298 (1985), Judge Henry L. Lam upheld the validity of an ordinance of the City of Virginia Beach which was similar to the ordinance considered in the 1982-1983 Opinion. Judge Lam's decision was based on the city's authority under its general police power, the absence of any inconsistent or preclusive State legislation on the subject, and the absence of any determinative inference that could be drawn from the history of proposed legislation considered by the General Assembly. For the reasons set forth in Part V of this Opinion, I cannot concur with the conclusion that no determinative inference may be drawn from the General Assembly's consideration of proposed legislation that would authorize local regulation of the sale and purchase of handguns.