Prohibited Areas and Employment Implications Under Illinois' New Concealed Carry Act

by Holland & Knight LLP
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There are two pressing issues concerning implementation of Illinois' new Firearms Concealed Carry Act1 (Public Act 98-0063):

  1. how to designate and enforce areas where licensees cannot carry concealed firearms
  2. the potential employment implications of the new law's requirements

This alert discusses these issues and the relevant requirements of the new law.

Background

Public Act 98-0063 created the new law and amended the existing Firearm Owners Identification Card Act2 to allow licensed persons to: (a) carry loaded and unloaded concealed firearms in public, and (b) carry and store loaded and unloaded concealed firearms in their vehicles. The law also preempts various local firearms regulations. The law does not address the open carrying of firearms, which remains governed by existing limitations in the Illinois Criminal Code. Licensees who violate the law may be subject to penalties, including criminal prosecution and license forfeiture.

Timing of Implementation

The new law took effect on July 9, 2013, and requires the Illinois State Police to make license applications available by January 6, 2014. When a license application is received, the State Police must issue a license or deny the application within 90 days.

The new law requires the State Police to write administrative rules implementing the law and establishing processes for the issuance of licenses and the compilation of a database of licensees. The State Police have submitted draft rules to the State Joint Committee of Administrative Rules, but that committee is not expected to begin considering the draft rules until a public hearing is held in December 2013. It is conceivable that the committee could approve final administrative rules at the December meeting and that the State Police could begin issuing license applications shortly thereafter. In any event, the State Police must be prepared to make license applications available no later than January 6, 2014.

With the January 6 date looming, public entities should be thinking now about how to designate areas where concealed carry is not allowed and about the potential employment issues related to the new law.

Prohibition on Concealed Carrying in Prohibited Areas

Designated Prohibited Areas

The new law generally allows license holders to carry concealed firearms in areas of the state not designated as "Prohibited Areas." "Prohibited Areas" are not carefully defined in the new law, but instead are listed. They include the following:

  • Public Facilities: Buildings or portions of buildings under the control of local governments; schools; public libraries; public parks, athletic areas and athletic facilities under the control of a municipality or park district; public playgrounds; buses, trains, and other forms of public transportation; public transportation facilities; prisons and jails; buildings or areas under the control of the state legislative or executive branches of government; court buildings; property under the control of the Cook County Forest Preserve; and airports
  • Institutional Buildings: Colleges and universities; hospitals; mental health facilities; and nursing homes
  • Public Gathering Spaces: Public gatherings or special events open to the public that require the issuance of a license by a local government; stadiums and arenas; collegiate and professional sporting events; zoos; museums; and amusement parks
  • Private Establishments and Businesses: Establishments that derive more than 50 percent of their gross receipts in the previous three months from the sale of alcohol; buildings that have been issued special event retailers' licenses or special use permits per the Liquor Control Act for the duration of time during which alcohol will be served; premises under the control of a gaming facility licensed under the Riverboat Gambling Act or the Illinois Horse Racing Act of 1975; and areas regulated by the federal Nuclear Regulatory Commission

Prohibiting Concealed Carry on Private Property

In addition to the designated Prohibited Areas, the new law allows private property owners to prohibit everyone from carrying firearms onto property under their control by posting a sign at the entrance to the property (as discussed further below). Private residences may prohibit concealed carry without posting a sign.

Parking Lots Serving Prohibited Areas

The new law allows a licensee to carry a concealed firearm in the parking lot of a Prohibited Area so long as the licensee keeps the firearm in her or his vehicle. If a licensee leaves the vehicle unattended, then the licensee must conceal the firearm and either lock the vehicle or lock the firearm in a case within the vehicle (such as the glove compartment or trunk).

Conceal Carrying Through a Prohibited Area

Although a licensee cannot carry a concealed firearm in a Prohibited Area, the new law allows a licensee to carry a concealed firearm through a Prohibited Area so long as the licensee is traveling along a public right-of-way. For example, a licensee may carry a concealed firearm when walking on a public sidewalk that goes through a park or past a school, so long as the licensee is "traveling" and does not veer off the sidewalk.

Areas Under Control of Public Entities

As noted above, Prohibited Areas include "buildings or portions of buildings under the control of local governments." The law does not define what "under control" means. Public entities should adopt a common sense definition of "under control" such as: "A building or portion of a building is 'under the control' of the [name of public entity] when the [name] has the right to determine at most or all times who may occupy and use that space." For example, a park district that has the decision-making authority over who may use a picnic shelter has that shelter under its control, regardless of whether the park district owns or leases the shelter. In contrast, a park district that owns a building but leases that building for occupancy and use by a lessee would not control the building and that building thus would not automatically be a Prohibited Area.

Sign Requirements for Prohibited Areas and Other Places

The new law requires that "signs stating that the carrying of firearms is prohibited shall be clearly and conspicuously posted at the entrance of a building, premises, or real property specified in this Section as a prohibited area, unless the building or premises is a private residence." This seemingly simple requirement raises numerous questions and issues.

Required Sign Format

The law requires the Illinois State Police to establish a standard 4" x 6" sign for posting at the entrance of designated prohibited areas. The required sign is available on the Illinois state website.

The current draft of the administrative rules would allow for larger signs so long as the larger signs follow the format of the required sign. The draft administrative rules also provide that language in addition to the State Police's language could be placed on a sign. Of course the draft administrative rules are subject to change until they are adopted by the Joint Committee of Administrative Rules.

Sign Posting Requirements

The new law states that a sign "shall" be placed at the "entrance" to a Prohibited Area. This requirement raises several issues:

  • Is a Sign Mandatory Even for a Prohibited Area?

The answer to the question whether or not it is mandatory to post a sign for an area that already is declared a Prohibited Area by the new law seems inescapably to be "yes." The new law uses mandatory language. Regardless, a sign is much clearer than no sign and thus a sign is appropriate at least until the law is clarified. For private property that is not declared by the law to be a Prohibited Area (other than residences), then a sign must be posted if the owner desires to prevent concealed carrying.

Private property owners who want to prohibit concealed weapons on their property must post a sign at the "entrance" to their building, premises, or real property, however, owners of private residences need not post any sign.

The new law does not make the sign posting requirement explicit in any other way. For example, the law does not specify any penalties for failing to post a sign at the entrance to a prohibited area. Thus the only sure way to prohibit concealed carrying is to post signs on the property at the entrance.

  • What Is an "Entrance"?

The new law does not define the term "entrance." So another seemingly simple matter can get complicated.

The new law uses the singular "entrance," so it is reasonable to conclude that the law contemplates posting a sign at the primary entrance of a property under typical circumstances. For property with multiple designated entrances, however, a single sign at only one of those entrances very well may be considered inadequate to perfect the intended prohibition of concealed carrying. It seems best to avoid that argument by posting a sign at least at each prominent public entrance.

It is more difficult for a space like an open park that may not have a well-defined entrance. For this type of property, it is advisable to place a sign at each of the most heavily or traditionally used entry points to the park.

  • When Do Signs Need to Be Posted?

The new law does not state when a sign must be posted, but it is implicit that the sign is necessary to provide notice to a licensee that concealed carrying is not permitted on the premises. So a sign should be posted immediately if the intent is to prohibit right away concealed carrying.

Further, it will be important to monitor the draft administrative rules to see how they turn out in final form. For now, however, property owners can be prepared by posting signs at Prohibited Areas before licenses are issued under the new law.

Zoning Considerations for Public Entities

Although not specifically required by the new law, public entities may find it useful to review their sign regulations to determine whether they are consistent with the law and, at the same time, adequately regulate signs generally when the new required signs start appearing. It may be best to include any sign required under the new law as a permitted sign.

Employment

Overview

The new law does not clearly address how employers may regulate employee conduct relating to concealed carrying. As discussed below, this is not a huge issue for many public bodies because the list of Prohibited Areas limits the opportunities for concealed carrying by public employees in their workspaces. It is inevitable that issues will arise for many public bodies, however, whether relating to employees carrying concealed firearms while working outside of Prohibited Areas, or in an employer-owned vehicle, or under other circumstances.

The law will be interpreted and thus further defined through judicial and administrative decisions. Until that guidance is available, employers wanting to regulate concealed carrying will have to balance the risks of restricting a licensee-employee's ability to carry a concealed weapon against enforcing employment policies that limit or prohibit the possession of a weapon while at work. Preparing and enforcing workplace limitations will require consultation with your attorney, with the objective likely being sufficient protection to the employer without unnecessary restrictions on employees.

Substantive Rights in the Employment Context

Employees do not leave their individual rights at the workplace door. But employers may limit employee rights in certain respects. With this in mind, many hold the opinion that the new law should not be interpreted to prohibit employers from making reasonable efforts to regulate employee conduct by preventing or restricting concealed carrying of firearms during working hours for the purpose of maintaining a productive and safe working environment.

It is important to note, however, that the new law is generally silent on the issue of employment regulation — an issue that has not yet been tested or interpreted by the courts. So the adoption or enforcement of any workplace policies that prevent or limit concealed carrying will at some level require a balance between risking a lawsuit filed by an unhappy concealed carry licensee-employee on the one hand and whatever risks arise from the presence of concealed firearms in the workplace on the other hand.

No Concealed Firearms in Prohibited Areas

As noted above, employees cannot carry concealed firearms in Prohibited Areas. The new law does not create any exceptions in Prohibited Areas for employees. For public employers, this means that the law by itself will prevent most public employees from carrying concealed firearms. Private employers can exercise a similar level of control over their employees by posting signs prohibiting concealed carry. The language of the law concerning Prohibited Areas is the most concrete and effective avenue employers have to regulate concealed carry within the workplace.

Note: Employees who work in Prohibited Areas will be able to keep their concealed firearms secured in their vehicles within the parking lots of the Prohibited Areas.

Concealed Carry Outside Prohibited Areas

The new law does not state that vehicles or other property owned by an employer have the same "Prohibited Area" protection as a building or facility listed as a Prohibited Area. Employers thus have no language on which to rely to prohibit concealed carrying in the employers' vehicles during the workday. However, the law does not state that employers cannot limit concealed carrying in employer vehicles or other equipment, whether by contract or workplace rules. Many believe that a rule to this effect should be permitted under the law.

The prevention of violence in the workplace may be a compelling reason for some employers that want to limit concealed carrying by their employees. Many employers already have "no violence in the workplace" policies that preclude having weapons while on the job.

It certainly is possible that enforcing a "no concealed carrying" employment policy against an employee could subject the public entity to an employment action by an employee. But the goal of such a policy — to prevent violent incidents in the workplace — could certainly be raised as a potentially compelling justification for the rule.

Visits to Private Property During the Course of Employment

An employee who visits other private property during the workday will be subject to any prohibition on concealed carrying imposed by the property owner. If the employee's employer allows its employees to carry concealed firearms, the employee could run afoul of the new law's provisions when visiting a private residence where a sign prohibiting concealed carrying is not required. A practical solution to this potential problem is for the employer to adopt carefully crafted regulations requiring employees to refrain from concealed carrying while performing their work duties.

Implementation and Enforcement Will Be Complex

The issues highlighted in this alert are just the first of many issues that will arise related to the implementation and enforcement of Illinois' Public Act 98-0063. Questions regarding prohibited areas, signs, and workplace standards will be debated in the months to come.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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