Navigating the Business Liability Protection Act

By: Richie Heath
April 3, 2018

One of the most debated pieces of legislation coming out of this past legislative session was HB 4187, which is formally referred to as the "Business Liability Protection Act" and has been more colloquially dubbed as the "parking lot" bill. The legislation makes significant revisions to state law with respect to the rights of owners, employers and/or lessees to limit the possession of firearms in private parking lots.

Having been signed into law by Governor Jim Justice, HB 4187 officially takes effect on June 8, 2018, and leaves many employers and business owners scratching their heads as to what they can and can't do to regulate firearms on their property.

The following is intended to provide employers and business owners with guidance for navigating this new area of law.

How do I know if the Business Liability Protection Act affects me?

With limited exception, this law generally applies to any owner, lessee or other person charged with the care, custody and control of real property. If you have a business that is generally responsible for the care of real property, including an employee and/or customer parking lot, then the Business Liability Protection Act will apply to you and your business.

Who can have a firearm in my parking lot now?

The provisions of HB 4187 would allow any customer, employee or invitee 1 to possess a legally owned firearm in your parking lot so long as the firearm is legally possessed, out of view and locked inside or to the motor vehicle. Importantly, the person possessing the firearm must also be lawfully allowed to be present in the area in question.

Can I still prohibit the carrying of firearms on my business premises?

Yes. HB 4187 maintains existing legal protections for business owners that want to prevent the carrying of firearms on their property. Specifically, any owner, lessee or other person charged with the care, custody and control of real property may prohibit the open or concealed carrying of any firearm or deadly weapon on the property under their control. The Business Liability Protection Act only provides a limited right for a lawful firearm owner to securely store such a firearm in their vehicle while on your property. Any person carrying or otherwise possessing a firearm on your property who refuses to relinquish the firearm or leave the premises upon request is guilty of a misdemeanor pursuant to W.Va. Code §61‑7‑14(c).

Can I ask if someone has a firearm stored in a vehicle on my parking lot?

No. The provisions of HB 4187 explicitly prevent an employer or business owner from violating the privacy rights of a customer or employee by asking, either verbally or in writing, about the presence of a firearm locked inside a motor vehicle in the employer or business owner's parking lot.

Can I have security conduct searches of my parking lot to determine the presence of firearms in vehicles?

No. The Business Liability Protection Act provides similar privacy protections for customers and employees with respect to vehicle searches. However, it is worth remembering that any such firearm must be locked and out of view. To the extent that a firearm is left in plain view in a vehicle and complained of to an employer or business, it would not be a violation of the Act if you required the customer or employee's compliance with the law by ensuring that the firearm was securely stored and out of view.

What action(s) can I take if I receive a complaint regarding the possession of a firearm stored inside a motor vehicle in my parking lot?

The receipt of a verbal or written complaint does not permit you to take any action against a customer or employee if that person's possession of a firearm complies with the Business Liability Protection Act. However, you would be able to take appropriate action in response to a complaint pertaining to unlawful purposes or threats of unlawful actions involving a firearm that are made in violation of W.Va. Code §61‑6‑24.

Are there any employment policies that my business can adopt to regulate the possession of firearms in vehicles by my employees?

No. The Act provides employees and prospective employees with several protections with respect to the lawful possession of firearms. First, an employer cannot condition employment on the fact that a person holds or does not hold a concealed carry firearm license pursuant to state law. Second, an employer cannot require an employee or prospective employee to sign an agreement prohibiting the possession of a firearm in the person's vehicle in accordance with the provisions of HB 4187. Third and finally, an employer or business cannot prohibit or otherwise attempt to prevent access to the parking lot because the motor vehicle of a customer or employee contains a firearm in compliance with the provisions of the Act. It is worth noting, however, that an employer could implement an employment policy that deals with an employee or prospective employee's non-compliance with the Business Liability Protection Act.

Can I get sued for allowing someone to possess a firearm in my parking lot?

As a general matter, no. HB 4187 explicitly provides that an employer, owner or lessee is not liable for any actions or inactions taken in compliance with the provisions of W.Va. Code §61‑7‑14(d). Importantly, the Business Liability Protection Act does not extend civil immunity to the actions or inactions of an employer or business that are unrelated to protections of the Act. As such, the granted civil immunity would not relieve you of any other duties of care with respect to the maintenance and management of the property or premises in question. 2

What can happen to me if I fail to follow the Business Liability Protection Act?

HB 4187 provides both the West Virginia Attorney General and any affected customer or employee with the right to seek injunctive or other equitable relief for violation of the Act. In the case of an enforcement action brought by the Attorney General, the statute allows for civil penalties of up to $5,000 for each violation. In a successful action brought by a customer or employee, an employer is liable for the attorney's fees and court costs of the prevailing party as well.

Disclaimer
The author presents these materials with the understanding that the information provided is not legal advice.  Due to the rapidly changing nature of the law, information contained in this publication may become outdated.  Anyone using these materials should always research original sources of authority and update this information to ensure accuracy when dealing with a specific matter.  No person should act or rely upon the information contained in this publication without seeking the advice of an attorney.

[1] A business invitee who is lawfully on the premises of a public or private employer.

[2] A plaintiff could arguably file suit against an employer for the negligent hiring or retention of an employee if that individual was injured by a firearm lawfully stored in a vehicle pursuant to the Business Liability Protection Act. However, an employer should be adequately insulated from such a claim if they maintain adequate policies and procedures for the hiring and retention of employees. The Act's numerous limitations on employers provides further insulation from liability on such a claim in that an employer cannot take action against an employee for firearms that are stored in lawful compliance with the act.