February 3, 2012
Ms. Angela Carmon, City Attorney
City of Winston-Salem
Post Office Box 2511
Winston-Salem, NC 27102-2511
Dear Ms. Carmon:
On December 1, 2011, Section 21.(b) of Session Law 2011-268 (formerly House Bill 650), became effective, amending N.C. Gen Stats. § 14-415.23 to restrict the areas in which units of local government may prohibit handguns carried in compliance with Article 54B of the North Carolina General Statutes.
Specifically, local governments may no longer prohibit concealed handguns in parks, except in “recreational facilities that are specifically identified” by ordinance. Recreational facilities are statutorily defined to “include only the following: a playground, an athletic field, a swimming pool, and an athletic facility” (emphasis added).
On November 21, 2011, the Winston-Salem City Council approved Ordinance 4735, including the following definitions:
“Sec. 38-10. – Possession and discharge of firearms.
(a) It shall be unlawful for any person to fire a gun, rifle, pistol or other firearm within the city, except in case of self-defense or necessity. Definitions. For purposes of this section and any other city code section that addresses the possession of firearms, the following terms are hereby defined:
(1) Recreational facilities include only the following: a playground, an athletic field, a swimming pool, and athletic facility owned or operated by the city.
(2) Athletic field means a piece of land traditionally used for organized athletic or sporting event(s), including the adjoining spectator area.
(3) Athletic facility means a building, structure or place including a walking trail, greenway and body of water such as a lake for engaging in sporting events, recreational activities, fitness or physical training.
(4) Playground means a piece of land used for and usually equipped with facilities for recreation especially by children including the adjoining area and shelter used by children for respite, eating and playing sedentary games.
The Ordinance then purports to ban concealed carry in the areas covered by these tortured definitions of statutory terms.
“A statute that is clear and unambiguous must be construed using its plain meaning.” Rhyne v. K-Mart Corp., 358 N.C. 160, 188 (2004). “Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning.” Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209 (1990). The plain meaning of an “athletic facility” does not include a greenway trail, and it does not include a lake. The plain meaning of a “playground” does not include any adjoining area or shelter. The definitions in Ordinance 4735 are facially overreaching.
“But where a statute is ambiguous, judicial construction must be used to ascertain the legislative will.” Rhyne, at 188. “The primary rule of construction of a statute is to ascertain the intent of the legislature and to carry out such intention to the fullest extent. This intent must be found from the language of the act, its legislative history and the circumstances surrounding its adoption . . .” Burgess, at 210 (internal citations and quotation omitted).
The legislative history and circumstances surrounding the adoption of HB 650 clearly indicate that the expansive definitions of “recreational facility” and “playground” in Ordinance 4735 not only fly in the face of the plain meaning of those terms, but wholly depart from the intent of the legislature.
The language amending N.C. Gen Stats. § 14-415.23 was first included in House Bill 111, which was merged into House Bill 650 by the North Carolina Senate. As introduced, the bill merely removed the word “parks” from § 14-415.23:
A unit of local government may adopt an ordinance to permit the posting of a prohibition against carrying a concealed handgun, in accordance with G.S. 14-415.11(c), on local government buildings, their appurtenant premises, and parks. buildings and their appurtenant premises.
On March 29, 2011, Representative David Guice, expressing concern over the sometimes high emotions exhibited by parents at Little League games and the like, introduced an amendment allowing local governments to further restrict concealed carry at playgrounds, athletic fields, swimming pools, and athletic facilities. Rep. Guice explained the intent of his amendment to the chamber by saying:
“In drafting this amendment, we looked closely at the definition…in fact we defined the definition in the amendment in the last sentence, because when we began looking at parks, we came up with two definitions: It indicated that it could be divided into active and passive recreation. Active recreation is that which requires intensive development and often involves cooperative or team activity including playgrounds, ball fields and skate parks, was the examples they gave. Passive recreation is that which is…which emphasizes the open space aspect of a park, which involves a low level of development, including picnic areas and trails. So this amendment does not address passive recreation areas. We tried to be real specific.”
(emphasis in original).
The unambiguous intent of the General Assembly in adopting the amendment was specifically not to include, within the areas in which a local government may restrict concealed carry, areas of “passive” recreation such as lakes, picnic areas and shelters, walking or hiking trails, greenways, dog parks, and other similar areas. By attempting to define lakes and walking trails as recreational facilities, or picnic areas as playgrounds, Ordinance 4735 defies the clear intent of the state legislature (not to mention the plain meaning of those terms). Judicial construction – which is limited to ascertaining the legislative intent and may not consider the “wisdom” or “desirability” of a statute in its construction – will inevitably strike the Ordinance as overreaching.
Rights Watch International has identified nearly a dozen Winston-Salem residents willing to engage as plaintiffs in litigation to bring the City of Winston-Salem into compliance with North Carolina law. The only question is whether the City will amend Ordinance 4735 to conform to common sense and the intent of § 14-415.23, or whether a court will order it to do so after costly and distracting litigation. Please advise me, within ten (10) business days, of which course the City chooses.
Respectfully yours,
F. Paul Valone
Cc: Hon. Allen Joines, Mayor
