"Place of Business" Exception

[chris137]

Hey guys had a question about the "place of business" exception to carry a firearm concealed without a CHP. It seems to me that 18.2-308 says that "Any person while in his own place of business" can conceal carry without a CHP. The question is: Do you have to own the business or just be an employee? I just moved from Georgia, and it was clearer back home because we had 2 lovely case laws that made it crystal clear that it applied to anyone working at a place of business, not just the owner. Is there a similar case law clarification in VA that anyone is aware of? I searched the VA Case Law tab under the legal resources at this site, but didn't find anything. I do plan to get my CHP in the near future, but in the meantime I was wondering.

On another topic, here's a little nugget in (unrelated) GA case law from 1846 that I liked and wanted to share : Nunn v State "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all of this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State."

[jdonovan]

Hey guys had a question about the "place of business" exception to carry a firearm concealed without a CHP. It seems to me that 18.2-308 says that "Any person while in his own place of business" can conceal carry without a CHP. The question is: Do you have to own the business or just be an employee?

Owner.

[TenchCoxe]

Do you have anything you're basing that assertion on? Any case law or A.G.'s opinion, or anything?

Because I don't see the statute as requiring the conclusion that only the "owner" of the business qualifies.

I don't know that that particular exception has ever been the subject of interpretation by a court in Virginia.

[ProShooter]

The business is the owner's place of business. i.e. "In his own place of business"

The business is an employee's place of employment.

As an employee, that business is not "your own place of business"

[TenchCoxe]

Sure, you can read the statute that way, but that is not the only way it can be read. And I'm not finding anything, anywhere, that provides any interpretation of it at all - let alone an authoritative interpretation.

A lawyer certainly could construct a reasonable argument that the statute uses the word "own" to make it clear that a person has not right to carry concealed in anyone else's place of business. Where I work is my own place of business, whether I actually own the business or not - as compared to carrying in some other place of business that is not mine.

I'm not saying either interpretation is right or wrong - just that the statute does not define expressly what it means and I'm not finding anything that clears it up. I certainly can see the "plain language of the statute" argument that you're making. But note that it says by "any person" while in his own place of business. It does not say "by the business owner."

So I would submit it's not quite so crystal clear that that is in fact what it means.

[SHMIV]

Oh boy. This was hashed out in another thread, not too long ago. I don't recall the thread title, forum section, or the outcome.

I understand both readings of the law. I prefer the reading as TenchCoxe sees it. (I believe we all prefer that reading...) However, I would recommend going with the more restrictive reading, especially since that's the reading that is endorsed by ProShooter. I really don't want to be the test case for that, and wouldn't advise anyone else to be one, either.

Also, I believe that, in other laws, when the Virginia code references one's place of business (meaning "where you report to work") the word "own" is left out of it because whether or not you own the business is immaterial to the law and those who wrote it. In this particular law, "own" is inserted. This suggests that law only permits the owner to carry concealed without the permit. That said, I am not a lawyer.

In the other thread, I wondered what Users take on it was, since he is a lawyer that specializes in this sort of thing, but I don't know whether or not he ever weighed in.

[jdonovan]

If you want a legal opinion, ask a lawyer. If you want a lay-persons opinion ask the internet.

[TenchCoxe]

If you want a legal opinion, ask a lawyer. If you want a lay-persons opinion ask the internet.

I am a lawyer, and I'll tell you that no lawyer who knows what he's doing will give you anything resembling a "legal opinion" via the internet. My comments above were really just my own personal ruminations, not a legal opinion itended for anyone to rely on at all.

But I've also been a lawyer long enough to know that unless there is some authoritative declaration of what a particular statute means - e.g., an opinion from the Virginia Supreme Court or from the particular state agency charged with implementation of the law - it's often not so cut-and-dried as to what the statute should be taken to mean.

It seems in this case that there is no firm legal precedent construing the statute.

I'm just sayin' that a lawyer very well could put forth the argument I set out above. I also agree, though, that the use of "own" place of business can be read to indicate an intent to limit it to only the actual owner of the business. Until I see a court case reaching this conclusion, though, I don't think there is a way to conclusively or authoritatively resolve the question, which leaves us with everyone's opinions and individual "takes" on what we all (or each) think the statute probably means.

Which is to say, be careful out there, your mileage may vary, offer not avaialable in Kansas, see your doctor to determine whether this may be right for you, past performance is no indication of future results, etc.

[TenchCoxe]

I'm assuming this is the previous thread you're referring to. It pretty much reached the same conclusion - i.e., that there is no definitive answer to be found from reading the statute itself, because reasonable arguments can be developed either way.

[TenchCoxe]

See how this works? Now I'm starting to sway in the other direction.

Why so?

Because upon taking another look at the statute, I also note the exception for "any person while in his own place of abode or the curtilage thereof."

There, it seems quite clear that the General Assembly meant you can carry concealed in your OWN home or its curtilage. But I also will note that your "own place of abode" is not limited to places that you in fact "own." You can rent or be living somewhere for free by permission of the owner, and yet it still would be your "own place of abode" - i.e., it's where you live.

So, for example, you could have a girlfriend who inhereted her parents' house and owns it outright all by herself, and you move in with her. You live there full time, but you pay no rent and have no ownership interest in the property whatsoever. However, that would be considered your "own place of abode."

So now, upon further reflection, I'm not sure that really helps shed any additional light. Because in fact, that also could support the opposite argument with regard to "place of business." If "where you live" is your "own place of abode," then why could not "where you work" be considered your "own place of business."

Interesting question, I must say...

If I were to be advising a client - and let me pause to make it clear that I am not doing so here - I likely would advise him or her to take the conservative approach and conclude that "own place of business" probably is limited to the person who is in fact the actual owner of the business - at least until we managed to get some kind of authoritative interpretation to the contrary. Even though, as I say above, I do believe you could make out a decent argument the other way.

[SHMIV]

You assume correctly.

Personally, I hate anything that restricts me, but when it comes to laws that don't read clearly, and the interpretations thereof, I tend to err on the side of caution and abide by the more restrictive interpretation.

As I said before, I am not inclined to be the test case. I feel like I would have too much to lose if things went wrong.

[TenchCoxe]

I tend to err on the side of caution and abide by the more restrictive interpretation.

As I said before, I am not inclined to be the test case. I feel like I would have too much to lose if things went wrong.

Yup. Can't argue with that!

[dorminWS]

TenchCoxe, SHMIV, I agree that caution is the best strategy here.

But let me jerk one more wrinkle into this: Many businesses are not owned by any single person. Partnerships, LLCs, corporations (and even the occasional unincorporated association, I suppose) would all have MULTIPLE owners, but the business would not be anyone's OWN place of business in the sense of total ownership. And in the case of any of these forms or ownership, the CEO of a very large company might run the show and have total control on a day-to-day basis, but have NO ownership in the company. So, the argument might go, either the legislature intended the exception to apply only to the sole proprietor or several partners, but not to the manager of a corporation who owned no stock (thereby protecting or not protecting the self-defense rights of people based upon the accident of the business form employed), or the legislative intent was as TenchCoxe first posited.

Of course, skeptic that I am, I will opine that the truth probably is that our august legislators just didn't think about that stuff at all. Which means there WAS no demonstrable legislative intent. Which means it's a crap shoot for the defendant in the test case SHMIV talked about. Which means it depends upon whether you happen to get a Commonwealth's Attorney and a Judge with any common sense and without anti-gun liberal bias or not. Did I mention the term crap shoot yet?

[TenchCoxe]

Many businesses are not owned by any single person. Partnerships, LLCs, corporations (and even the occasional unincorporated association, I suppose) would all have MULTIPLE owners, but the business would not be anyone's OWN place of business in the sense of total ownership.

I actually had that thought as well but I didn't want to get into it and make my ramble even longer.

Of course, skeptic that I am, I will opine that the truth probably is that our august legislators just didn't think about that stuff at all. Which means there WAS no demonstrable legislative intent.

I agree. This probably is the reality. The simple truth is the General Assembly rarely has (or makes) the time to really analyze and ponder in detail all the legislation it enacts, or to consider the various ramifications and hypothetical situations that might arise. This is just one of those things. Maybe they thought of it as a "shopkeeper" exception, but never really gave it much real analysis or thought beyond that.

The other thing to know is that Virginia courts pretty much never look at "legislative history", and most of the time there really isn't much in the way of legislative history to look at anyhow. The Virginia courts typically focus on the "plain text of the statute" and apply certain maxims of statutory interpretation to determine what the statute means on its face. If it's uncertain, they might try to determine legislative intent from the purpose of the statute. But the Virginia courts tend to go with dictionary definitions of common words and look at the wording of other statutes for comparison.

So yup, it's a bit of a crap shoot to try to predict how a court would interpret this one, and it probably is best to take the conservative approach.

[chris137]

Thanks for the replies, guys. Sorry if this was kind of a repost, as I didn't see the thread mentioned earlier. I don't think I'll be trying my luck by conceal carrying w/o a license at work as I don't want chris137 v State of VA to be the test case for this. Short of a definitive case law or AG opinion I wan't going to try.