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Home My WebLink AboutLOD201900024 Letter of Determination 2019-10-16County of Albemarle Department of Community Development Memorandum To: Community Development Staff Working with Home Occupations From: Bart Svoboda, Zoning Administrator Date: October 16, 2019 Subject: Advisory Determination — Firearms Sales as Home Occupations with No On - Site Customers Albemarle County has examined its current policy regarding firearms sales as home occupations. After consultation with the County Attorney's office, Staff has updated their policy per the following memo. This memo serves to update and replace the Letter of Determination written by Amelia McCulley on March 21, 2002 regarding the Albemarle County zoning regulations regarding firearms sales as a home occupation. The term "firearms sales" and "gun sales" are used interchangeably in this determination. Firearms Sales Prohibited in the Rural Areas Zonina District Albemarle County currently prohibits firearms sales as a home occupation in the Rural Areas zoning district, per County Code § 18-5.2A(I), which lists "gun sales, unless the guns are made on -site by one or more family members residing within the dwelling unit;" among prohibited home occupations. On -Site Customers Prohibited in the Non -Rural Areas Zonina Districts Per County Code § 18-5.2(d), home occupations in non -Rural Areas zoning districts may not sell any goods directly to customers visiting on -site, regardless of the goods sold, unless the goods are "hand-crafted on -site..." Hand -crafting requires the firearms be crafted from raw materials on -site, and not merely assembled on -site. However, there are no prohibitions against firearms sales in non -Rural Areas zoning districts. History In the 2002 Letter of Determination, Ms. McCulley noted that Albemarle County Zoning Ordinance regulations relating to home occupations include restrictions about the sale of goods from the home. This was due to a prior interpretation of 18 U.S.C. § 921, in which the federal agency of Alcohol, Tobacco, and Firearms (ATF) prohibited a "private dwelling, no part of which is open to the public," to serve as a "business premises" under ATF requirements. As this ATF regulation required dwellings to be open to the public to receive customers, and Albemarle County has a policy to deny zoning clearances that contradict federal law, this requirement prohibited all firearms sales as home occupations. Per correspondence dated February 17, 2017, from Krissy Y. Carlson, Chief of the Firearms and Explosives Industry Division of the ATF (attached), interpretation of this statute has LOD Re: Firearms Sales as Home Occupations with No On -Site Customers October 16, 2019 changed, and now permits the "business premises" required by ATF regulations to be open only to ATF inspectors, and not the general public. This was confirmed by June 6, 2019 correspondence between Albemarle County Senior Planner Lea Brumfield and Stephan Horvath, the ATF Acting Area Supervisor and Industry Operations Investigator for Richmond, VA. Summary In zoning districts other than the Rural Areas zoning district, a resident may apply for a home occupation clearance for firearms sales, provided no customers or clients visit the home to purchase goods, and the business meets all federal requirements. Home occupation businesses for non -hand-crafted firearms sales may conduct their sales transactions at gun shows, over the internet, or by mail order, but the dwelling unit of the home occupation may not be used for the transfer of firearms or payments for firearms. Additionally, firearms sales are a prohibited use in the Rural Areas zoning district, unless the firearms are made on site by one or more family members residing in the dwelling unit. Attached: 1) Letter of Determination Re: Firearms dealer as a home business, dated March 21, 2002 2) Correspondence between Mark Barnes and Krissy Carlson Re: Request for Advisory Opinion on Licensing for Certain Gun Show Sellers, dated February 18, 2016 and February 17, 2017 AL@� �'�RGiN�P COUNTY OF ALBEMARLE Department of Building Code and Zoning Services 401 McIntire Road, Room 227 Charlottesville, Virginia 22902-4596 FAX (434) 972-4126 TELEPHONE (434) 296-5832 TTD (434) 972-4012 March 21, 2002 Kim Thompson Inspector, Alcohol, Tobacco & Firearms Fax 804-560-0168 Re: Firearms dealer as a home business Dear Ms. Thompson: This is in response to our telephone conversation on March 191h in which you asked about zoning regulations in Albemarle with respect to firearms dealers. We discussed the issue generally and more specifically, with a particular applicant in mind. This letter is to summarize the primary zoning issue related to the firearms dealer use as a home occupation in Albemarle. The home occupation provisions specifically limit sales of items, such that firearms (unless handcrafted) may not be sold from the home. As I understand it and you confirmed by phone, this local zoning regulation would directly conflict with the ATF dealer's license. The Albemarle County Zoning Ordinance regulations relating to home occupations include restrictions about the sale of items from the home. The ordinance language from Section 5.2 Home Occupations, follows: Section 5.2.2.1 (c): There shall be no sales on the premises, other than items hand crafted on the premises, in connection with such home occupation; this does not exclude beauty shops or one -chair barber shops; As I understand it, the ATF license requires that the sales transaction occur on the residential premises (with exceptions for gun shows). This is not permitted under the language of the Albemarle zoning ordinance. Sales from the home would require specific waiver of that regulation by the Planning Commission, in a particular case. I am not aware of any waiver requests or approvals of this nature within the past 13 years. With respect to Mr. Michael J. Masone, III, we have no record of zoning approval for a business in his home. Due to the zoning regulations relating to sales in connection with the home occupation, we could not grant zoning approval without Planning Commission approval of a waiver. If you have any questions, please do not hesitate to contact me. Socerely, C �4 Amelia G. McCulley Zoning Administrator MARKBARNES" FSOOP ZFAA Mark Barnes & Associates T T Q R iN E Y S ` Also Admitted in ArivArta and Alaska AlsoAdmlued in kixona February 18, 2016 BY ELECTRONIC DELIVERY Krissy Carlson Division Chief Firearms and Explosives Industry Division Bureau of Alcohol, Tobacco, Firearms and Explosives U.S. Department of Justice 244 Needy Road Martinsburg, AAV 25405 OF C4 VNSU " Also Admitted in Maryland ?? Only Admitted In V4nia •• OnlyAdmltted in Maryland Re: Request for Advisory Opinions on Licensing far Certain Gun Show Sellers Dear Ms. Carlson: On behalf of my client the National Associations of Arms Shows ("NAAS"), we would like to request an advisory opinion on licensing for persons who wish to sell firearms at gun shows. Specifically, we respectfully request guidance on licensing for persons engaged in a limited practice of selling firearms only at in -state firearms shows. As you may remember, we discussed this matter with representatives of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") during a meeting at the January 2016 SHOT Show. At that meeting, ATF noted that ATF E-Form 7, Applicalion for Federal Firearms License, will soon be amended by removing the hitherto confusing Question 18a: "Do You Intend to Sell Firearms Only at Gun Shows?" In light of recent Executive actions and this change to ATF Form 7, ATF also promised to provide a formal, written advisory opinion on a specific scenario should we so request. In furtherance of that promise, what follows is the scenario we envisioned during our previous discussions, and on which we would like to obtain ATF's written opinion. As you know, 1$ U.S.C. § 923(d)(1)(E) requires a license applicant to have a physical business premises and 18 U.S.C. § 923(d)(1)(F) requires the applicant to certify that his business is permitted by state and local law and will be run in compliance with state and local law, As you are aware, many jurisdictions limit the ability of persons to run businesses out of their homes, whether under zoning restrictions or by other means. However, some such jurisdictions do not object to in -home businesses where no members of the public are received at the home business location. The licensing scenario for which we would like written guidance involves an individual Letter to Ms. Carlson Page 2 who lives in one of these jurisdictions where the applicable state and local law would allow him to obtain a business license and run the business out of his home, provided the home business was not open to the reception of members of the public. While a Form 7 applicant must of course include business hours on the application, these business hours would only be included for purposes of ATF inspections, not for receiving members of the public. While this potential FFL would not receive members of the public at its licensed premises, it would conduct its limited business at gun shows pursuant to 18 U.S.C. § 9230), selling to buyers from a temporary in -state location in accordance with federal and state law. This would enable the FFL to further the President's stated goal of capturing additional transactions in the FBI's NICS background check process and lawfully conduct firearms sales at the federal level, while remaining in compliance with state and local law. All recordkeeping will of course be maintained at the licensed premises, available for inspection as required by the Gun Control Act and its promulgating regulations. Based on this scenario, we respectfully request clarification from ATF regarding whether this proposed FFL business model is acceptable and whether ATF would indeed grant a dealer license for such a business. If you have any questions regarding this request, or if you re uire more information to respond to this request, please do not hesitate to contact me at aw Sincerely, ctnA-.44 ay MO rk Barnes Outside Counsel to National Association of Arms Shows CC: Mr. Andy Graham Mr. Marvin Richardson MB:mab U.S. Department of justice Bureau of Alcohol, Tobacco, Firearms and Expiosives EPS - Firearms Indu.stry Programs Branch Wa,,hinsion, DC 20226 WWW.atf.gov February 17, 2017 903010:DLH 802637 5300 Mark Barnes, Esq. Outside Counsel to National Association of Arms Shows Re: Request for Advisory Opinion on Licensing for Certain Gun Show Sellers Dear Mr. Barnes: This responds to your February 18, 2016 letter sent electronically to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and our recent discussions at this year's 2017 SHOT Show. In your letter and during our discussion, you requested additional guidance on licensing for persons engaged in selling firearms at in -state gun shows. In January 2016, ATF published written guidance entitled "Do I Need A License To Buy And Sell Firearms?" The intent was to describe, generally, the facts and circumstances that ATF considers in determining whether someone is sufficiently engaged in the business of dealing in firearms to require a Federal firearms license. Among other key points, the guidance made clear that the buying and selling of firearms can rise to a level requiring a license even if the transactions are consummated only at gun shows or over the internet. Since publication of the guidance, ATF has fielded a variety of questions seeking further clarification, especially about the extent to which persons who regularly buy and sell firearms at gun shows — but not from a fixed commercial location — are allowed and/or required to obtain a Federal firearms license. This letter is intended to provide you with additional clarification. Anyone who is engaged in the business of buying and selling firearms, regardless of the location(s) at which those transactions occur is required to have a Federal firearms license. ATF will issue a license to persons who intend to conduct their business primarily at gun shows, over the internet, or by mail order, so long as they otherwise meet the eligibility criteria established by law. This includes the requirement that they maintain a business premises at which ATF can inspect their records and inventory, and that otherwise complies with local zoning restrictions. -2- Mark Barnes, Esq. License issuance decisions will continue to be made at the Field Division that geographically encompasses the prospective licensee's premises. To avoid future confusion, ATF has recently been engaged in revising ATF form 7, Application for Federal Firearms License (ATF Form 5310.12) to amend language concerning when applicants who intend to sell firearms at gun shows are required to obtain a license. ATF anticipates that the revision process will be done soon, and that the revised form 7 will be available in the Spring of 2017. However, persons who intend to conduct their business primarily at gun shows, over the internet, or by mail order are free to submit the current form 7 in the interim, and it will be processed in accordance with the above -stated criteria. We trust the foregoing is responsive to your request. If you should have any further questions, please contact the Firearms Industry Programs Branch (FIPB) at (202) 648-7190 or fipb@atf.gov. Sincerely, Kriss . Carlson Chief, Firearms and Explosives Industry Division