Certain federal employees in specified executive agencies, generally those dealing with law enforcement or national security, are still subject to more restrictive provisions, similar to the old Hatch Act, which broadly bar such employees from taking an active part in partisan political activities even on their own, off-duty hours. State and local governmental employees whose principal employment "is in connection with an activity which is financed in whole or in part" by federal funds, come within certain limitations on political activity in another part of the "Hatch Act." Such covered State and local employees are prohibited from running for office in a partisan election; using their official authority to influence an election; or attempting to coerce a state or local employee to make a political contribution. It also applies to an employee who is appointed by the President by and with the consent of the Senate, whose position is located within the United States, and who determines policies to be pursued by the United States in relations with foreign powers or in the nationwide administration of Federal laws. Under the [old] Hatch Act, these employees were covered by the prohibition against misusing their official authority to interfere with or affect the result of an election, but they specifically were excluded from all aspects of the prohibition against active partisan political participation. As to the specific activities that are prohibited or may be permitted under the fundraising restriction of the Hatch Act Amendments, the regulations and interpretations of the Office of Personnel Management note that employees in the executive branch may attend a campaign fundraiser, may work behind the scenes in organizing or managing a fundraising event, and may even speak at a fundraising event, but may not be involved personally in the actual solicitation, acceptance or receipt of campaign contributions. See discussion of "necessary expense" doctrine, in Principles of Federal Appropriations Law, supra at 4-14 to 4-20, that the "expenditure must bear a logical relationship to the appropriation sought to be charged," that is, that "it must make a direct contribution to carrying out either a specific appropriation or an authorized agency function for which more general appropriations are available." Id. Decision of the Comptroller General, B-147578, supra at 5: "Consequently, where a determination is, in effect, made by the President, a cabinet officer or other agency head or assistant, that certain activities are in connection with official duties and there is a reasonable basis for such a determination we do not feel that we would be warranted in questioning the expenses incurred in connection with such activities." If travel or other such activities that are political/campaign-related in nature have been paid for by the Government, then such expenses should be reimbursed by a campaign committee in the appropriate manner. The first two relate to coercive activities, while the third relates to candidacy for office: 1. § 1502 Hatch Act Interpretation and Enforcement The provisions of the Hatch Act are interpreted, and complaints of violations investigated by the United States Office of Special Counsel (O.
The Hatch Act statute applies only to civilian officers and employees of the executive branch of the Federal Government. 96-184, "Campaign Activities by Congressional Employees." State or local governmental employees whose principal employment "is in connection with an activity which is financed in whole or in part" by federal funds, come within a particular part of the "Hatch Act." Such State and local employees are prohibited from running for office in a partisan election; using their official authority to influence an election; or attempting to coerce a state or local employee to make a political contribution. Some employees of designated agencies and departments are still restricted in participating in even voluntary, off duty political activities. Coverage Under the Hatch Act The provisions of the Hatch Act Amendments of 1993, in a manner similar to the basic provisions of their predecessor statutes, apply generally to all civilian officers and employees in the executive branch of the Federal Government, other than the President and Vice President. § 5372a); and staff of the Criminal Division of the Department of Justice. Activities Restricted by the Hatch Act Use of Official Authority/Coercion A provision of the new Hatch Act, in a fashion similar to the former law, prohibits any officer or employee in the executive branch of the Federal Government from using his or her official position, authority or influence to affect the results of an election. In contrast to the [old] Hatch Act, the Amendments subject these employees to additional prohibitions. An employee's name may not appear on a fundraiser invitation "as a sponsor of the fundraiser," but may appear on an invitation to a political fundraiser "as a guest speaker as long as the reference in no way suggests that the employee solicits or encourages contributions." one's "official title" may not be used "in connection with fundraising activities," but an employee who "is ordinarily addressed using a general term of address, such as `The Honorable,' may use or permit the use of that term of address for such a purpose." Campaign Contributions and Criminal Prohibitions. Employees may solicit from other federal employees who are fellow members of employee associations and organizations, if the solicited employee is not a subordinate of the employee soliciting, and if the solicitation is made for a multicandidate committee. In addition to the Hatch Act limitations on political activities while on duty or in a federal office, and the general appropriations principles discussed, it should be noted that under ethics regulations Government officers and employees in the executive branch may generally not engage in unofficial, non-governmental activity with Government resources, that is, personnel may not use appropriated funds, or use official federal supplies, equipment or official resources, for any activities which are not "official" Government activities authorized by a department or agency. For a theft or conversion under this statute, the improper use of the Government's property must be in such a manner that "serious interference with ownership rights" of the Government would occur. Employees are barred from using their official authority or influence to interfere with or affect the results of an election; 2.
Background Employees in the executive branch of the Federal Government have for more than a century lived with certain statutory and regulatory limitations and restrictions upon their partisan political activities. Known as Civil Service Rule 1, this restriction and all of the administrative interpretations under it, were eventually codified in 1939 and made applicable to most executive branch employees in the law commonly called the "Hatch Act." State and local government employees whose official jobs are connected with activities that are federally funded have, since 1940, also come within the purview of a part of the federal "Hatch Act" law regarding Note Act of August 15, 1876, ch. As early as 1801, President Thomas Jefferson had urged the principle of political neutrality for federal employees. Furthermore, by definition and design, the Hatch Act does not apply to employees in the judicial or the legislative branches of the Federal Government. Similarly, the Hatch Act provisions which relate to the permissible political activities of a "State or local officer or employee," generally apply only to State or local governmental personnel who work on federally funded projects, and do not apply on their face to personnel who work for private, non-profit or business organizations merely because they receive federal grant or contract monies. The new Hatch Act Amendments also have added an explicit criminal provision which prohibits any person from intimidating, threatening or coercing or attempting to coerce any covered federal employee to engage in or refrain from political activity, to support or oppose a candidate, or to make or not to make a political contribution. While the language of the statute is very broad, the legislative history, interpretation and application of the provision have been more narrowly focused. In more severe factual circumstances, the use of Government property or resources for personal, non-official purposes to such an extent that the property is deemed to have been wrongfully converted to one's private use, or to have been stolen, would implicate criminal statutory violations. § 734.503 (sometimes referred to as the "hard time formula.") Note Memorandum for the Cabinet, from Abner Mikva, Counsel to the President, "Payment of Expenses Associated with Travel by Senior Administration Officials during the Presidential Campaign," October 18, 1995.
See discussion in Vaughn, "Restrictions on the Political Activities of Public Employees: The Hatch Act and Beyond," 44 George Washington University Law Review 516, 517 (1976). 642, June 3, 1907, amending Civil Service Rule I, which had been adopted originally in 1883 after passage of the Pendleton Act. Employees Still Under Strict "No Politics" Rule It should be noted that certain federal employees in specified executive agencies are not included in the more "relaxed" Hatch Act rules enacted in 1993, and still come under more restrictive provisions similar to the former "no politics" rule of the original Hatch Act. In certain circumstances, and under some programs, it is possible that certain non-profit organizations which are funded under a particular federal program might, under federal statutory law, be expressly designated in the law establishing that program as "State or local" governmental agencies for purposes of those Hatch Act provisions. Fund Raising Activities and Political Contributions All federal officials and employees in the executive branch, other than the President and Vice President, are now substantially restricted in the permissible political fund raising activities in which they may engage. See old Hatch Act cases on use of authority, for example, In the Matter of Mc Leod, CSC No. In a recent matter involving allegations of fundraising telephone calls from the office of the Vice President in the White House, for example, the Attorney General explained that criminal prosecutions under the statute, which had been adopted originally to protect federal employees from coercive and bothersome solicitations in their place of work, would generally be initiated only in the presence of "aggravated" circumstances of violations of the law. State and Local Governmental Employees In addition to the statutory restrictions on political activities by federal employees, there are some employees of State and local governmental units that may come within a certain part of the federal Hatch Act. § 9004.7, and 9034.7; and Office of Personnel Management Regulations for official time and compensation of staff working on campaign matters, 5 C.
Attached to the letter was a news article that quoted Avelenda.
She said she later resigned from her position at the bank in part because of the pressure she received for her political efforts.
The investigative hearings and report focused on the abuses of the merit system and use of public work relief funds (W. A.) to coerce political activities, loyalty and contributions from workers. See 1997 Federal Personnel Guide, Key Communications Group, at 11 (1997); Comm. "Aggravating" factors included evidence of "coercion, knowing disregard of the law, a substantial number of violations, or a significant disruption of government functions." Concerning campaign fund raising solicitations in the White House, it should be noted that the White House has historically been considered a personal "residence" as well as an area containing federal office space for the conduct of official governmental business, and that the Department of Justice has found, therefore, that certain areas and rooms in the White House, depending on their use, are outside of the prohibition on campaign fundraising activities in a "room or building occupied in the discharge of official duties." 3 Op. The Office of Personnel Management has issued regulations specifying those communities in which federal employees may be independent candidates even in partisan elections.
Note discussions in Bolton, The Hatch Act, A Civil Libertarian Defense, American Enterprise United Public Workers, C. Concerning such races, an employee could receive or accept political contributions in connection with that election, but would still be prohibited from soliciting contributions from the general public. § 2635.801 et seq., seek to restrict outside compensation and employment which create a conflict of interest with one's governmental duties (such that an employee would be required to "recuse" himself or herself on governmental matters), or which implicate other ethical issues because of the source of the compensation and/or the duties of the employee receiving the compensation.
Employees in the executive branch of the Federal Government are, however, still restricted by the "Hatch Act" provisions in several specific activities. political contribution from any person ...." The only exception to the fund raising restriction expressed in the statute allows for the solicitation of a fellow member of a federal employee association or federal employee labor organization who is not a subordinate, when that solicitation is for a multicandidate political committee. C maintains a web site on the Internet which provides information on and explanations of the Hatch Act and other matters under their jurisdiction, at While most federal officers and employees may now generally engage in partisan political activities on their own "free time" or "off-duty" hours, federal employees in the executive branch of the Federal Government are still restricted by the "Hatch Act" provisions in several specific activities. National Association of Letter Carriers, AFL-CIO, 413 U. 548, 564-567 (1973), upholding Hatch Act against First Amendment challenge. § 2302, added by the Civil Service Reform Act of 1978, and 5 U. Fielding, Counsel to the President, February 14, 1984 and "Memorandum for the Heads of All Departments and Agencies," from C. The statute would, therefore, continue to bar even an "independent" candidacy by a federal employee in an otherwise "partisan" election. All officers and employees in the executive branch, other than the President and Vice President, are still generally restricted in the following ways: Session (1939). The percentage of merit system civil service employees grew from 10% of the federal workforce at the time of the passage of the Pendleton Civil Service Act in 1883, to 32 % of the federal workforce at the time of the passage of the Hatch Act in 1939, to the current figure of more than 80% of all federal workers being in the competitive civil service. Boyden Gray, Counsel to the President, November 18, 1991, to "Memorandum for the Heads of All Agencies and Departments," from Abner J. Statement of Attorney General Reno, December 2, 1997. In addition to the general exception for candidacies in a non-partisan election, the Hatch Act provides that regulations issued by the Office of Personnel Management may establish that employees in certain communities near the Washington, D. metropolitan area, or in other communities where the majority of voters residing there are federal employees, may participate in certain local political activities which might otherwise be prohibited, such as the acceptance of political contributions and independent candidacies in partisan elections. The 1993 Hatch Act Amendments thus removed many of the most restrictive limitations in federal law on employees' personal, off-duty voluntary activity, speech and expression, while at the same time provided more express statutory prohibitions on work place politicking. and 1211 et seq., creating Merit Systems Protection Board and Office of Special Counsel. Employees who remain subject to the old Hatch Act-type of prohibition include those employees who are not appointed by the President with the advice and consent of the Senate in the following agencies: the Federal Election Commission, the Federal Bureau of Investigation, the Secret Service, the Central Intelligence Agency, the National Security Council, the National Security Agency, the Defense Intelligence Agency, the Merit Systems Protection Board, the Office of Special Counsel, the Office of Criminal Investigation of the Internal Revenue Service, the Employees in the Office of the President, including those employed directly in the White House, have historically come within the general provisions of the Hatch Act since its enactment in 1939, although some were expressly exempt from the strict "no politics" portion of Section 9(a) of the original Act. Office of Investigative Programs of the United States Customs Service, the Office of Law Enforcement of the Bureau of Alcohol, Tobacco, and Firearms; employees who are career Senior Executive Service appointees (5 U. The restrictions on being a candidate for office thus bar a federal executive branch employee from running for "any" elective public office, that is, even a State, local or county office, which is filled in an election where "any" of the candidates in the election run as a Democrat or a Republican. The "public" space of federal buildings, lands or parks or other federal property may generally be used for private partisan political activities of candidates or others, as long as such activity does not interfere with the normal official functions and governmental activities in that building or property. There may, in fact, be constitutional limitations on the amount of restraint or prohibition that the government may impose over the free exercise of political speech and activity on or in any area of federal property which is considered a "public forum." See, for example, United States v. In 1993, the provisions of Hatch Act were significantly amended by the "Hatch Act Amendments of 1993" to allow most federal employees to engage in a wide range of voluntary, partisan political activities on their own free time, away from their federal jobs and off of any federal premises. 75, 94-103 (1947); and United States Civil Service Commission v. Note also the emergence of employee protections through recognized bargaining representatives and statutorily required grievance procedures. See debates on Hatch Act and Dempsey Amendment concerning the President's staff in the White House office, 84 Congressional Record 9596-9639, 76th Congress, 1st Sess., July 20, 1939; note 1 Op. Compare "Memorandum for the Heads of All Departments and Agencies," from Fred F. partisan election." However, the regulations make it clear that the election itself must be "non-partisan," that is, "none of the candidates is to be nominated or elected as representing" such political parties. Note General Services Administration regulations on use of public buildings, at 41 C.


§ 208-14 Application of regulations.
§ 208-15 Refuse, trash, garbage and brush.
§ 208-16 Off-street parking and loading.
§ 208-19 Outdoor furnace/boiler units.
§ 208-20 Excavations for sand, gravel or topsoil.
§ 208-21 Filling of land and dumping of waste material.
§ 208-22 Storage of materials.
§ 208-23 Keeping of animals.
§ 208-24 Private swimming pools and other structural recreational facilities.
§ 208-25 Buffer areas for certain abutting properties.
§ 208-26 Exterior lighting and signs.
§ 208-27 Public building yard and area requirements.
No building, structure or land shall hereafter be used or occupied and no building, structure or part thereof shall be erected, demolished, moved or altered unless in conformity with the provisions of this chapter and all other laws or regulations for the district in which it is located.
Exceed the height, house or accommodate a greater number of families, occupy a greater percentage of lot area or have narrower or smaller rear yards, front yards or side yards than is specified in this chapter for the district in which it is located.
Be less than one full story in height as defined in this chapter.
No part of a yard or open space required for any building shall be included as part of the yard or open space required for another building.
No lot shall be reduced in size if, as a result thereof, its area or any of its dimensions or open spaces shall be smaller than required by this chapter.
Entrance porch or steps not over seven feet deep, front to rear, in a front yard.
Porches and terraces in side or rear yards, provided that they are not covered nor enclosed and are no closer to the lot lines than required by the setback restrictions applying to the district.
Detached accessory buildings occupying not over 25% of a required rear yard and set back as required by this chapter.
The face side of any fence erected in any district shall face the nearest abutting property, and all posts or supports shall be on the inside of said fence unless said posts or supports constitute an integral part of said face side.
No fence or wall more than three feet in height shall be erected in front of the front setback line as defined herein.
No fence or wall more than six feet in height shall be erected in the side or rear yard.
A building permit must be issued for the installation of any fence and/or wall.
Any fence erected in a Commercial, Restricted Business, Industrial or Limited Commercial District shall be subject to Planning Board approval.
The provisions of the fence code do not apply to any fence for any in-ground or aboveground pool (see § 208-24) or evergreen or solid-screen fence for a recreational vehicle (see Chapter 201).
Where land is used and occupied as a farm, such open-style fences as shall be necessary to restrain livestock shall be permitted as needed.
*NOTE: These are defined in Chapter 182, Subdivision of Land, § 182-10.
On corner lots, the setback from the lot line abutting on each street shall be the front setback required on that street or highway.
Are not allowed to grow to impede the line of sight, and a clear line of vision is maintained below seven feet within the area defined in § 208-14C(8) above. Determination of such impediment shall be made by the Commissioner of Public Works.
Building in residential districts shall be permitted on odd-shaped lots if said lot has a width of at least 50 feet at the front line, provided that there is a width equal to the minimum lot width specified in this chapter at the front wall of the building and said lot has a minimum square foot area as specified in this chapter. All measurements shall be on a straight line and not along arcs.
Flag lots. Flag lots may be permitted in residential districts, if said lots have a width of at least 15 feet at the street line. The access panhandle shall have a minimum width of 15 feet. The area in the access panhandle shall not be used in calculating lot size unless the total area of the parcel is five acres or more. The front setback for a flag lot may be treated as a side setback as long as it is equal to or greater than the applicable side setback in that district.
Where there are existing residential lots, other than corner lots, approved by the Planning Board prior to June 22, 1954, which are smaller in size than lots provided for in this chapter, the side setbacks on said lots may be less than 15 feet, provided that each side setback is at least 15% of the width of the lot at the building line, but in no event shall said side setback be less than 10 feet. Any buildings built on said lots must comply with the current minimum size and sanitary sewerage requirements.
On all lots fronting on four-lane highways, the front setback shall be not less than 100 feet from the edge of the pavement nearest the front lot line.
Junkyards. Junk- or scrapyards, automobile wrecking yards and the storing, sorting and baling of scrap metal and rags are prohibited in all districts. Any such uses which were legally permissible prior to the date of adoption of this chapter, but are prohibited uses thereafter, shall be discontinued and removed or changed to conforming uses within three years from the date of the adoption of this chapter.
A one-story accessory building not more than 200 square feet in area is permitted, provided that there is an existing residence on said lot and that the exterior is finished in conformity with the style of said residence. Such buildings must be located in the rear yard, and no closer than five feet to the rear property line and five feet to the side property line and is permitted in Residential AA, A, B and C, Residential Transition 1-2-5, Residential Transition 2-5 and Residential Sensitive Districts. This provision shall not apply to agricultural or farm lands or to Restricted Business, Industrial, Limited Commercial or Commercial Districts.
Editor's Note: Former Subsection G, Storage of vehicles, campers, trailers and boats, was repealed 2-13-1991 by L.L. No. 1-1991. See now Ch. 201, Storage of Vehicles.
Utility services. All utility services and secondary distribution lines or pipes serving the same shall be constructed underground, except those necessary appurtenances thereto which are customarily constructed above the ground.
Editor's Note: Former Subsection H, Parking of commercial vehicles, was repealed 2-13-1991 by L.L. No. 1-1991. See now Ch. 201, Storage of Vehicles.
Use density. If the permitted use is first permitted in a district with a lower density than in a less restrictive district, such lower density will apply to such use.
Dissemination of noise, vibrations, excessive light, dust, smoke, fumes, odor or other measurable atmospheric pollutants beyond the property line of the property in which such use is located.
Menace by reason of fire, explosion, atomic or induced radiation or other physical hazards.
Light visible at the property boundaries when produced through the use of oscillation, revolving, flashing or varying intensity light sources, unless for public safety, or as required by state or federal regulation, or as part of a seasonal holiday display. Any such lights existing on the adoption date of this regulation shall be removed within six months of said date.
Movement of earth not to extend beyond property lines. No movement of earth or erosion shall be permitted at any time in any district, which adversely affects conditions beyond developable property lines.
Commencement of construction. No site preparation or construction shall be commenced until final subdivision approval has been granted by the Planning Board and the subdivision map has been filed in the Monroe County Clerk's office or site plan approval has been granted by the Planning Board and all conditions of said approval have been met by the developer. In special circumstances, the Planning Board may grant approval for site preparation in advance of final approval if the developer applies to the Planning Board for permission and establishes good and sufficient reasons for so starting and furnishes adequate surety for performance of the work.
Exterior mechanical devices to be enclosed. All ground-mounted exterior mechanical devices, such as commercial refuse containers, ventilating and air-conditioning units (except window and wall units), shall be screened.
Owners of all buildings shall maintain street numbers on their principal structures.
Not less than four inches in height.
In plain view from the road.
In sharp contrast with their background so as to be clearly legible.
If the structure is not visible from the road or set back at such a distance that numbers will not be legible, then the owner shall place a sign not to exceed one square foot in size and not more than 36 inches above grade at the front property line in the area of the entrance drive or on the mailbox if it is located on the property.
Said numbers shall be the address assigned to said structure by the Director of Code Enforcement and Development shall be in place prior to issuance of a certificate of occupancy and shall be maintained.
Editor's Note: The term "Director of Building" was amended to read "Director of Code Enforcement and Development," pursuant to L.L. No. 1-2010, adopted 2-24-2010, and L.L. No. 1-2012, adopted 5-23-2012.
Should the owner of the property not place said numbers and remove all other numbers within 10 days after service of notice to do so, the Town shall pursue the matter in accordance with Chapter 115, Enforcement Procedures.
Speed reduction devices, such as speed bumps, speed depressions, etc., shall be prohibited.
Height of buildings. No building shall exceed 40 feet in height.
Editor's Note: Original § 148-41, Fire and safety regulations, which immediately followed this section, was repealed 2-12-1992 by L.L. No. 1-1992.
Detached garages shall not exceed 600 square feet in garage building area or 20 feet in height.
Attached garages shall not exceed 600 square feet in garage building area or 1/3 of the building area exclusive of the horizontal projection of any roof, whichever is greater.
Garage sales. On residential properties, with a residence on them, the homeowner or tenant of such property may conduct a garage sale from such property. Such sale is limited to a period of time not to exceed three consecutive days and may occur not more than twice per calendar year. Temporary signs, smaller than six square feet in size and less than 42 inches above the ground, associated with a garage sale may be placed on the property of the sale and at the immediate intersections leading to the property only during the actual sale. Failure to remove the signs following the sale will result in the Town removing the signs and charging the property owner a fee, as determined by the Town Board, for such removal.
Purpose and intent. The outside storage of construction dumpsters and portable or temporary storage units may have a negative impact on the adjoining properties and is limited by these regulations.
Portable on-site deliverable storage units (PODS®) are permitted to be on a property for a period of time not to exceed 30 days per calendar year.
The use of roll-off dumpsters on residential properties is limited to a duration of 30 days, or for 45 days if there is an active building permit on the property. On nonresidential property the use is limited to the period a permit is active on the property and the location is required to be at the rear or sides of the building, if at all possible.
Only one portable on-site deliverable storage unit (PODS®) or roll-off dumpster shall be located on a residential property at a time.
The above regulations do not apply to activities related to farming operations, as such are defined within the New York State Agriculture and Markets Law.
Relief from the requirements found in Subsection T(1), (2) and (3) above may be granted by the Director of Code Enforcement and Development to allow an extension to the times stated above.
Dumpsters other than those used for construction purposes require site plan approval from the Planning Board and are required to be screened from ground view, per § 208-14M.
Purpose and intent. In an effort to address the problem of accumulation of refuse and trash along the public roadways, the Town of Perinton hereby adopts the following section.
Whereas the accumulation of refuse, trash and garbage in front of properties and along public rights-of-way is unsightly and unhealthy and the Town of Perinton has provided for the regular collection of certain residential refuse and there is adequate provision for regular collection of garbage, trash and building debris through private enterprise, therefore the Town has established policies for the placement, packaging and pickup of these materials.
The Town Board shall by resolution adopt or amend such policy at a regular meeting. A copy of this policy shall be on file and available at the Town Clerk's office.
The Town will contract with a private hauler to remove said refuse from along the right-of-way in front of the property as soon as can be scheduled.
The bill for the removal of this material, including an administrative fee as set from time to time by the Town Board, will be sent to the property owner. This bill will have a thirty-day due date in which to be paid to the Town Clerk.
Failure to pay this bill within 30 days will result in the assessment of a one-and-one-half-percent per-month (eighteen-percent annual) percentage rate penalty being added to the bill. If the bill remains unpaid for more than 90 days, it will be added to the taxes levied against the property. At least 60 days prior to the tax levy, a statement shall be prepared setting forth the waste disposal fees in arrears, with a brief description of the property for which the waste disposal services were provided and the name and address of the person or corporation liable to pay such amount. This statement will be presented to the Town Board, which shall levy the amount remaining unpaid against the real property for which such waste disposal services were provided.
Each off-street parking space for any use shall measure a minimum of nine feet by 18 feet and shall be designed with twenty-four-foot travel aisles for two-way travel.
Striping shall be yellow or white, three inches to four inches in width, outside dimension of the double stripe 12 inches. The area between each set of double stripes shall be eight feet minimum.
Handicapped parking spaces shall be provided in a location and number in accordance with the New York State Uniform Fire Prevention and Building Code.
Location. Off-street parking shall be located as hereinafter specified. Where a distance is specified, such distance shall be the walking distance measured from the nearest point of the parking space to the nearest public entrance of the building that such parking space is required to serve, along vehicular travel aisles or designated pedestrian walkways.
For one- and two-family dwellings and for all types of residential structures in any district, spaces shall be on the same lot with the building they are required to serve.
For townhouses, two spaces related to the unit (one wholly enclosed) and one additional guest space per unit shall be within 300 feet of the building they are required to serve.
For multiple-family dwellings, spaces shall be not more than 300 feet from the building they are required to serve.
For hospitals, nursing homes, proprietary homes and other health-related facilities, spaces shall be not more than 500 feet from the building they are required to serve.
For uses other than those specified above, spaces shall be not over 600 feet from the building they are required to serve.
The New York State Building Code shall be the source for defining assembly areas and determining occupancy in assembly areas.
When units of measurement determining the number of required parking spaces result in the requirement of a fractional space, any fraction shall require one parking space.
Change in use, additions, alterations and enlargements. Whenever there is a change in use or an addition in floor area, a change in site usage or other units of measurement specified hereinafter to indicate the number of required off-street parking spaces and such change or addition creates the need for additional parking spaces, those additional parking spaces shall be provided. The Planning Board may waive the requirement for additional parking, provided that the additional parking spaces are designated as future parking spaces and meet the requirements as specified herein in § 208-16C(7).
Collective provisions. Nothing in this section shall be construed to prevent collective provisions for off-street parking facilities for two or more buildings or uses, provided that the total collective sum shall not be less than the sum of the various uses as computed separately.
Plans. Plans for the parking area shall be submitted to the Planning Board for site plan approval or to the Director of Code Enforcement and Development at the time of the application for the building permit for renovations or changes in use within a building that alter the gross leasable floor area (GLFA) or occupancy level.
No dismantled, unlicensed, junked, nonoperating or for-sale vehicles shall occupy a designated parking space.
All business-related vehicles, service vehicles and sales fleet vehicles shall be parked in the rear of the property, unless otherwise approved by the Planning Board.
No vehicle, while parked, shall project into or over a designated pedestrian walkway or landscaped area. Wheel blocks may be required to limit this vehicular encroachment.
For drive-through or drive-up windows or establishments such as drive-up tellers, drive-up restaurant windows, etc., a minimum of 10 reservoir spaces for stacking of vehicles shall be provided. [For car wash requirements, see § 208-41A(5)(g)].
If the proposed use is not named herein, the applicant may request a specific ruling from the Planning Board as to the number of parking spaces to be required for such proposed use.
Off-street parking for more than five but less than 75 vehicles shall be effectively screened on each side by a fence of acceptable design, undirected masonry wall, earthen berm, acceptable landscaping or compact evergreen hedge. Such screening shall be maintained in good functional condition.
In parking areas with a capacity of 75 vehicles or more, landscaping plans must be submitted showing the area broken up into smaller sections by aisles and landscaping, with adequate provisions for pedestrian walkways; such aisles shall be a minimum width of 10 feet.
The front setback area shall be screened using a landscaped berm; such berm shall be no less than five feet high and 40 feet wide at the base. The design shall be in accordance with the Town of Perinton Design Criteria and Construction Specifications.
All setback and buffer areas shall be planted, landscaped and maintained in accordance with the approved site plan.
Setbacks. Parking areas shall be set back from the right-of-way as if they were buildings, unless otherwise specified herein. Where parking areas are adjacent to a private drive or road, they shall be set back 50 feet. Side and rear setbacks shall be at least 15 feet from the lot line. The Planning Board may modify these setbacks at the time of site plan approval.
Surface of the parking area. Any off-street parking area for more than five vehicles shall be surfaced with an asphaltic pavement so as to provide a durable and dustless surface and shall be so graded and drained as to dispose of all surface water accumulation within the area. The Planning Board may alter this requirement at the time of site plan approval when special conditions exist.
Lighting. No lights shall be erected, operated or maintained in connection with off-street parking in such a manner as to create an annoyance to surrounding properties or that create a public safety hazard due to glare. No lighting with a greater intensity than 1/2 footcandle, measured at five feet above the ground at the property line, shall be installed adjacent to a residential district. Lighting shall not exceed 16 feet in height from grade to bottom of light source. All such lighting shall be approved by the Planning Board.
Loading and unloading areas. Paved areas for maneuvering, loading and unloading of vehicles supplying buildings or uses shall be shown on the site plan and excluded from all computations of paved areas required for parking under this section.
Locations for snow storage shall be provided and shown on the site plan.
Planned future parking areas. All areas to be used for future parking and access shall be identified on the site plan approved by the Planning Board with the condition that consistent parking of vehicles on the public right-of-way or outside of the designated parking areas or on adjacent parcels of land shall be the primary indicator of the need for conversion of planned future parking to functional parking areas. The need for conversion of future parking to functional parking shall be at the discretion of the Planning Board, based upon a review of the site and issuance of 120 days' notice.
Exceeding the required parking. Where a developing or developed parcel or use consistently exceeds the allotted parking spaces by parking of vehicles on the public right-of-way or outside of designated parking areas or within the fire lanes or on adjacent parcels of land, the Director of Code Enforcement and Development shall review the approved site plan for intensity of use. The Director of Code Enforcement and Development shall present these facts to the Town Board for action under § 208-53J of this Code.
No subdivisions of lands which shall be subject to the provisions of § 334 of Article 9-A of the Real Property Law or § 89 of the Public Health Law, as the same may be amended or transferred to other laws or sections, shall be hereafter made until the map or plat and plans therefor shall have been submitted to and approved by the Planning Board and a copy of such map or plat and plans filed in the office of the Code Enforcement and Development Department.
No lot in any such subdivision shall be sold and no building shall be erected upon any lots of such subdivision unless such lot is located upon a street or highway laid out in the subdivision, which connects with a highway, nor until the owner or subdivider shall have complied with the provisions of this chapter and all statutes of the County of Monroe and the State of New York applicable thereto.
No building shall be erected upon any other lot or plot of land unless such lot or plot is located upon a street or highway, except that in a case provided for in § 280-a of the Town Law, the Board of Appeals, or the Planning Board as part of subdivision approval, may make such variance or exception as may seem advisable under the circumstances in accordance with the provisions of that section.
All streets or highways hereafter laid out or dedicated to the Town shall be at least 60 feet in width; and no such street or highway shall be so dedicated until a map or plat of the same shall have been submitted to and approved by the Planning Board and a copy thereof filed in the offices of the Department of Building and Housing. The Planning Board shall have the power before granting such approval to increase the width or change the location of any such street or highway, taking into consideration the probable traffic requirements, topography of the land and other factors affecting the particular situation. No street or highway shall be accepted for dedication unless the same shall have been suitably improved to the satisfaction of the Town Board or a satisfactory performance bond to ensure installation of the same has been filed with the Town pursuant to § 277 of the Town Law.
Each subdivision must comply in all respects with the Subdivision Regulations of the Town.
Editor's Note: See Ch. 182, Subdivision of Land.
If the use of any lot or building involves the disposal of sewage or wastewater and public sewers are not available, an adequate sanitary disposal system for the same shall be installed in accordance with regulations adopted, to be adopted or amended by the Department of Health and at all times maintained on such lot or in lawful connection therewith. The minimum lot area otherwise required shall be increased where necessary to the extent required to provide such disposal system. Detailed plans for such disposal system shall be submitted to the Department of Health and approved by it before a building permit shall be issued.
The Town of Perinton recognizes that alternate and supplemental heating systems provide some relief to the ever-increasing burden of heating with fossil fuels or electricity. Many of these alternative heating systems are not well suited for areas of residential development due to environmental concerns associated with their operation outside of the building being heated, particularly the production of offensive odors, the potential for the adverse health effects of uncontrolled emissions, the volume and particulate matter from the emissions and the potential to create a nuisance to adjoining properties.
Any equipment, device or apparatus, or any part thereof, which is installed, affixed or situated outdoors for the primary purpose of combustion of solid fuel to produce heat or energy used as a component of a heating system providing heat for interior spaces, swimming pools, hot tubs or saunas.
The use of outdoor furnace/boiler units is prohibited within the Town of Perinton.
Violations of these provisions shall be enforced consistent with Chapter 115 of the Town of Perinton Code.
Editor's Note: With the addition of this section, former § 208-19; referring to billboards and advertising signs, was removed. See now Ch. 174, Signs.
For regulations relating to excavations for sand, gravel or topsoil, see the Excavations Law.
Editor's Note: See Ch. 122, Excavations.
The use of stone, brick, building blocks, concrete, asphaltic concrete, gravel, fill dirt or topsoil, whether originating on the premises or elsewhere, for the purpose of filling to improve the existing grade and/or to improve the immediate front, side or rear yard areas of an existing structure or of a proposed structure for which a building permit has been issued, is hereby permitted in any district within the Town of Perinton, provided such material does not exceed 200 cubic yards in volume, and provided that a plan indicating the area to be filled, the material to be used, any drainage alterations or improvements and any other improvements associated with the filling is submitted and approved by the Commissioner of Public Works; or is in accordance with an approved subdivision or site plan. Filling of land in excess of the volume limitation above may be permitted upon site plan or subdivision approval by the Planning Board. No filling of Limited Development District (LDD) land shall be permitted except in accordance with an approved site plan or subdivision plan. Any area where such fill has been deposited shall, within a reasonable time, be covered with at least six inches of clean nondeleterious topsoil and seeded with a permanent pasture mixture or other fast-growing surface vegetation. Such restoration shall be maintained until growth has been established. "Reasonable time" as herein used shall be construed to mean no later than the end of the next natural growing season following the termination of said filling operation.
The dumping of any material not expressly permitted in Subsection A of this section is hereby declared to be the dumping of waste material and is prohibited in all districts in the Town, except as provided for under a solid waste facility permit issued pursuant to this section.
A solid waste facility permit for operations may be issued by the Zoning Board of Appeals within an Industrial Zone after a public hearing thereon. The applicant shall submit a copy of the application to the Conservation Board for comment. The issuance of such a permit shall permit the construction and operation of a solid waste facility; related office, laboratory and research and development facilities; excavation of topsoil, sand, gravel or other subsurface materials for use on site; and structures and uses as deemed incidental to any use permitted by the issuance of such permit, including but not limited to: garages, storage tanks, utility poles and lines, electric substations and generating facilities, pipelines and related facilities, provided that site plan approval is obtained from the Planning Board. The applicant must additionally secure permission and the appropriate permits from the State of New York Department of Environmental Conservation (DEC) to operate a solid waste facility.
The solid waste facility permit shall set forth the waste materials which shall be dumped on the site.
The granting of such permit is in the public interest to establish environmentally sound facilities to dispose of and treat solid waste.
Adequate plans have been presented to show that the solid waste facility does not create a public hazard; that the solid waste facility does not unduly interfere with the quiet enjoyment of adjacent properties; and that sufficient precautions are to be taken to prevent fires or the creation and spread of smoke, odor, dust, fumes or noises liable to become a nuisance; and that when the operation is completed, the fill material or disturbed area will be covered with at least six inches of clean nondeleterious topsoil within a reasonable time thereafter and seeded with a permanent pasture mixture or other fast-growing surface vegetation and that such reseeding is continued until growth has been established.
Any excavation permitted under this section shall not occur unless all required Department of Environmental Conservation (DEC) permits or other DEC authorizations have been obtained, all operations are in compliance with all DEC regulations, the requirements of § 122-13 are satisfied and a bond is posted to ensure compliance with § 122-13. The standards for restoration set forth in § 122-13 of the Excavation Law of the Town of Perinton, as may be amended from time to time, are incorporated herein by reference and shall apply to all properties under the jurisdiction of this section.
The Zoning Board of Appeals shall require as a condition for the issuance of such a permit that the applicant file with the Town a surety company bond in an amount to be fixed by the Board, conditioned upon the compliance of the applicant with the conditions fixed by the Board upon issuance of said permit, to ensure compliance with the provisions of this section. Said bond is to be enforceable by the Town for 15 years or five years after the completion of the restoration of the site, whichever shall come last.
Any such permit issued by the Zoning Board of Appeals shall expire no later than the fifth anniversary date following the issuance thereof and may be renewed under the same procedures required for the original permit.
Prior to issuance of a permit under this section, the applicant shall enter into a contract with the Town Board for the operation of the solid waste facility.
Any permit issued hereunder may be revoked after a hearing to be held upon 10 days' written notice to the holder of such permit, upon proof presented to the Zoning Board of Appeals that any condition of this section or the approval granted has not been complied with. However, any foregoing provision notwithstanding, such revocation of the permit shall not occur if the holder of the permit cures the noncompliance. In the event that the permit is revoked, the bond referred to in § 208-21D(2) shall be used for restoration of the site.
All uses permitted under a solid waste facility permit shall conform to bulk and setback restrictions as prescribed by the Zoning Board of Appeals, but in no event shall such restrictions be less restrictive than those described in § 208-40A(4) of this Code or any similar restrictions prescribed by the DEC by regulation or permit.
Amendments and additions to the solid waste facility permit shall be reviewed and presented to the Zoning Board of Appeals in the same manner as the original permit.
No materials of any kind shall be stored in any district, except for the construction of structures to be actually erected upon the premises where such materials are stored within one year from the beginning of such storage and except for farm produce and farm machinery, unless a permit therefor shall be obtained from the Board of Appeals.
No animals, birds, fowl or poultry shall be housed or kept on any nonfarm residential premises except customary household pets. Such pets shall be housed in such a manner as not to create an annoyance to surrounding properties. Dogs housed on said premises are subject to the Dog Control Ordinance of the Town of Perinton and all applicable state laws regulating and licensing animals.
Editor's Note: See Ch. 78, Animals, Art. I, Dogs.
Fences. Outdoor swimming pools and filtering equipment located within three feet of the edge of a pool shall be entirely enclosed by an impassable fence extending from the ground to a height of not less than four feet nor more than six feet above the ground level. Such fence or enclosure shall be in compliance with the requirements of the New York State Uniform Fire Prevention and Building Code.
Setbacks. Outdoor swimming pools shall be located in the rear yard with the edge of water not closer than 15 feet to the side or rear property line.
Water supply. No permit shall be issued for such pool unless the applicant can show that there is a sufficient source of water supply to accommodate such pool without detriment to normal water consumption requirements and that all proposed water supply connections are proper and adequate. The water of such pools shall be maintained at all times in a sanitary condition in accordance with the bacterial standards of the Sanitary Code of the State of New York.
Drainage. No permit shall be issued for a swimming pool unless the applicant can show that the proposed drainage of such facility is adequate and will not interfere with the public water supply system, with existing sewerage or drainage facilities, with the property of others or with public highways. Pools may not be drained into septic systems. Draining of pool covers or pools so that they discharge water that creates a nuisance on adjoining property shall be a violation of this section.
Lighting. No lights shall be erected, operated or maintained in connection with a swimming pool in such a manner as to create an annoyance to surrounding properties. Lighting shall consist of only sharp cut-off, down light fixtures that minimize light spread off the property. The distribution of light off the property shall be limited to 1/2 footcandle at the property boundary.
Overhead wiring. Service drop conductors and any other open overhead wiring shall not be permitted above the swimming pool or the area surrounding such facilities extending 10 feet horizontally from the pool or court edge, diving structures, observation stands, towers or platforms.
Editor's Note: See Ch. 108, Electrical Standards, and Ch. 171, Sewers.
Building permit. Plans must be approved and a permit issued by the Director of the Code Enforcement and Development Department prior to construction.
Structural recreational facilities may be permitted in all residential districts upon issuance of a special permit by the Zoning Board of Appeals. Private swimming pools and hot tubs in compliance with Subsection A of this section are exempt from these requirements.
Setbacks. Structural recreational facilities shall be located in the rear yard and, other than private pools, shall be setback from the side or rear lot line 15 feet or consistent with the underlying zoning, whichever is greater.
Drainage. The creation of a structural recreational facility shall not have any effect on the drainage that leaves the property.
Lighting. No lights shall be erected, operated or maintained in connection with a structural recreational facility in such a manner as to create an annoyance to surrounding properties. Lighting shall consist of only sharp cut-off, down light fixtures that minimize light spread off the property. The distribution of light off the property shall be limited to 1/2 footcandle at the property boundary.
Fencing. Private tennis courts shall be entirely enclosed by an impassable fence extending from the ground to a height of not less than 10 feet above the ground level, with posts at intervals of not more than 12 feet, which posts shall be firmly installed and embedded in the ground, entirely surrounding the area in which the playing area is located, except that such fence may include one or more separate gates which shall be capable of being closed and locked to prevent access. Other structural recreational facilities may be required to be fenced, as determined by the Zoning Board of Appeals, based upon the type of use, the location and the potential to become an attractive nuisance to young children.
Overhead wiring. Service drop conductors and any other open overhead wiring shall not permitted above the structural recreational facility or the area surrounding such facilities extending 10 feet horizontally from the court edge, observation stands, towers or platforms.
Compliance with other regulations. All applicable provisions of the Building Code and the Electrical Code shall be applicable to each structural recreational facility.
Editor's Note: See Ch. 88, Building Construction and Fire Prevention, and Ch. 108, Electrical Standards.
Building permit. Plans must be approved and a permit issued by the Director of Code Enforcement and Development prior to construction.
Where a lot containing public buildings or grounds or a lot in any Townhouse, Apartment, Restricted Business, Industrial or Commercial District abuts a lot in a Residential AA, A, B or C, Residential Transition 1-2-5, Residential 2-5 or Residential Sensitive District, the side and rear setbacks for such lot containing public buildings or grounds or such lot in a Townhouse, Apartment, Restricted Business, Industrial or Commercial District on said abutting line shall be bordered by a buffer area to be erected along said property line as part of site plan approval by the Planning Board.
Where new residential development abuts property that has been utilized for agricultural production during the past year, a buffer shall be incorporated into the residential development that effectively limits access from residences to farm fields. Acceptable buffers may include natural features such as streams or tree plantings or fences. The Planning Board shall determine whether the proposed buffer is of sufficient size, width, height and/ or configuration to ensure that it would be effective in limiting access to farm fields from the new residential development.
For regulations relating to exterior lighting and signs, see the Sign Law of the Town.
Editor's Note: See Ch. 174, Signs.
The minimum width of a public building lot at the street line shall be 250 feet, the minimum area shall be 100,000 square feet, the minimum front setback shall be 100 feet, the minimum side and rear setback of all structures shall be 80 feet, and the minimum side and rear setback of all parking areas shall be 40 feet.
Intent. The Town of Perinton recognizes the need to encourage and facilitate the development of a system of sidewalks for the safety of its residents along its collector and arterial streets.
Requirements. Sidewalks or pedestrian ways shall be constructed and an easement for maintenance of such shall be provided along lands fronting both sides of collector or arterial street(s), as defined in Chapter 182, Subdivision of Land, within Pedestrian (PED) Zones as shown on the Town of Perinton's Official PED Map, adopted July 8, 1981, and as amended. A "PED Zone" is defined as land within a four-thousand-foot radius of the central point of a public school, public park or active commercial area. The central point shall be determined by the intersection of two roads or a driveway and a road. If the four-thousand-foot radius intersects any portion of a given property, then that lot in total becomes subject to sidewalk installation. Pedestrian zones may also be linear, with the bounds of the zones set forth on the Official Town of Perinton PED Map. The Planning Board may require the construction of sidewalks along streets not within PED Zones at its discretion, after considering the policies set forth in § 182-6 of this Code. Sidewalks defined under this section shall be constructed in conformance with the Design Criteria of the Town of Perinton. In cases where a sidewalk has been previously constructed by the Town, county or state along frontage proposed for development or subdivision approval, the applicant shall be required to make a contribution to the Sidewalk Fund as described in § 208-28E. The Planning Board may require a sidewalk contribution in lieu of construction when it determines that a constructed sidewalk will not connect with an existing sidewalk and that the contribution may be used to link or extend existing sidewalks within the Town.
Easements. On lands not within a designated PED Zone, fronting along a collector or arterial street(s), a sidewalk easement shall be provided to allow for possible future construction and maintenance of sidewalks.
Contribution to Sidewalk Fund in place of sidewalk construction.
The subject property is located within a PED Zone which contains fewer than 150 dwelling units.
The cost of sidewalk grading and construction exceeds 50% of the project cost, exclusive of sidewalks.
A major natural impediment, such as a steep slope, large tree, stream or wetland, exists along the frontage of the property.
There is no present linkage closely available to the existing sidewalk system.
A sidewalk has been previously constructed on the opposite side of the street and the Planning Board makes a determination that sidewalks are not warranted on both sides of the street at the present time.
In all cases where the aforementioned waiver has been granted, a sidewalk easement shall be provided, and a contribution to the Sidewalk Fund shall be required.
In a two-lot subdivision, the Planning Board may defer the construction of the sidewalk or contribution to the Sidewalk Fund for the lots until such time as the lots are further subdivided or developed.
Where a new collector street is proposed in a subdivision, the Planning Board may waive the construction of the sidewalk and the contribution to the Sidewalk Fund for one side of the street, where appropriate.
Construction of a sidewalk and contribution to the Sidewalk Fund may be waived by the Planning Board if the cost of sidewalk grading and construction exceeds 50% of the project cost, exclusive of sidewalks.
Where a residential lot was created prior to the adoption of this section of the code, October 13, 1977, and such lot is not being subdivided, the maximum required contribution shall be based upon two hundred forty linear feet of frontage. An easement shall be granted for the entire width of the lot.
Sidewalk Fund. The Planning Board may accept payment of a dollar amount per linear foot, to be set by resolution of the Town Board, into a designated Sidewalk Fund for the linear frontage where construction has been waived. It is understood that said moneys will be used for sidewalk construction elsewhere in the Town or at such future time when sidewalks may be required, except that the Town would then be responsible for such construction as it can be scheduled.


text:
Susanne V. Krichel, Oliver Sawodny, Dynamic modeling of compressors illustrated by an oil-flooded twin helical screw compressor, Mechatronics, 2011, 21, pp. 77 - 84.
Simon Hirzel, Rainer Elsland, Marcus Schroeter, Ute Weissfloch: Energy efficiency improvements in compressed air systems: A techno-economic evaluation approach, Proceedings of the ICMC 2010 - Sustainable Production for Resource Efficiency and Ecomobility (29. / 30. September 2010, Chemnitz), pp. 695-703.
S. V. Krichel, O. Sawodny: Modellierung von Druckluftleitungen - Ansätze und Ergebnisse. In: Tagungsband GMA-Fachausschuss 1.30 - Modellbildung, Identifikation und Simulation in der Automatisierungstechnik, Anif/Österreich, 22.-24.09.2010. 2010, S. 184-194.
Ute Weissfloch, Katharina Mattes, Marcus Schroeter: Identifizierung aussichtsreicher Geschäftsmodelle für die Druckluftversorgung, Vortrag GOR-Workshop Vector Optimization of Complex Structures, (17. – 19.03.2010).
M. Doll and O. Sawodny, Energy Optimal Open Loop Control of Standard Pneumatic Cylinders, Proceedings of the 7th International Fluid Power Conference (IFK), Aachen, April 2010, pp. 259-270.
S. V. Krichel and O. Sawodny, Modelling and Optimization in Pressurized-Air Networks – A first Approach with Respect to Energy-Efficiency, Proceedings of the 7th International Fluid Power Conference (IFK), Aachen, April 2010, pp. 317-328.
Ute Weissfloch, Katharina Mattes, Marcus Schroeter: Multi-criteria evaluation of service-based new business concepts to increase energy efficiency in compressed air systems, i-SUP 2010, Innovation for sustainable production, Conference 1. Sustainable Production, Proceedings, pp. 61-65.
Prof. Oliver Sawodny, Prof. Jörg Roth-Stielow: Viel Luft für wenig Geld, Stuttgarter Uni Kurier Nr. 108, 02/2011, pp. 62-63.
S. V. Krichel and O. Sawodny: Model-based analysis of pneumatic networks - prospects and challenges, Proceedings of the Twelth Scandinavian International Conference on Fluid Power (SICFP'11), Tampere (Finland), May 18-20th, 2011, pp. 471-483.
S. V. Krichel and O. Sawodny: Dynamic Modeling of Pneumatic Transmission Lines in Matlab/Simulink, Proceedings of the International Fluid Power and Mechatronics Conference, Beijing/China, August 17-20th, 2011, pp. 24-29 (Best conference paper finalist).
S. V. Krichel and O. Sawodny: Analysis and optimization of compressed air networks with model-based approaches, Ventil 17(2011)4, 2011, pp. 334-341.
M. Doll, R. Neumann and O. Sawodny: Energy efficient use of compressed air in pneumatic drive systems for motion tasks, International Conference on Fluid Power and Mechatronics (FPM), Beijing, August 17-20, 2011, pp. 340-345.
S. V. Krichel, S. Hülsmann, S. Hirzel, R. Elsland, O. Sawodny Mehr Klarheit bei der Druckluft - Exergieflussdiagramme als neue Grundlage für die Effizienzbetrachtung bei Druckluftanlagen o+p Ölhydraulik und Pneumatik 1-2/2012, pp. 28-32.
Susanne V. Krichel, Steffen Hülsmann, Simon Hirzel, Oliver Sawodny, Rainer Elsland: Exergy flow diagrams as a novel approach to discuss the efficiency of compressed air systems, submitted for oral presentation at IFK 2012, Dresden, 2012.
Joachim Kefer, Susanne V. Krichel and O. Sawodny: Modeling and simulation of pneumatic systems with focus on tubes, submitted for oral presentation at IFK 2012, Dresden, 2012.
Ute Weissfloch, Katharina Mattes, Marcus Schroeter:Identifizierung aussichtsreicher Geschäftsmodelle für die Druckluftversorgung, Vortrag GOR-Workshop Vector Optimization of Complex Structures, (17. – 19.03.2010).
U. Weissfloch, J. Geldermann: Dealing with conflicting targets by using group decision making within PROMETHEE; Proceedings of the OR 2011 (30.08.-02.09.2011, Zurich, Switzerland).
U. Weißfloch: Multikriterielle Gruppenbewertung von Produkt-Dienstleistungssystemen: Eine Fallstudie über das Leckagemanagement von Druckluftsystemen; Workshop der Arbeitsgruppen „Entscheidungstheorie und -praxis“ und „OR im Umweltschutz“ der Gesellschaft für Operations Research e.V. (GOR), Gos-lar, 01.-02.03.2012.

matches: V. V. V. V. V. V. V. V. V.


Defendant was convicted in the County Criminal Court at Law Number 5, Harris County, Gerald Payte, J., of carrying weapon. Defendant appealed. The Court of Appeals, Robert E. Morse, Jr., Former Justice, sitting by designation, 866 S.W.2d 736, affirmed, holding that, inter alia, carrying pistol between home and place of business is defense, not affirmative defense, to prohibition against carrying weapon. The Court of Criminal Appeals, McCormick, P.J., granted petition for discretionary review and held that the Court of Appeals applied the requisite proof to qualify for exception to prosecution for carrying a pistol.
Clinton, J., joined opinion of the Court with separate note.
Overstreet, J., concurred in the result.
Baird, J., dissented with opinion.
Meyers, J., dissented with opinion.
Mansfield, J., dissented with opinion.
Frank R. Hughes, Crosby, Brian W. Wice, Houston, for appellant.
Dan McCrory, Asst. Dist. Atty., Houston, Robert A. Huttash, State's Atty., Austin, for the State.
Appellant was convicted by a jury of the offense of unlawfully carrying a weapon. Punishment was assessed at a fine of $100 and confinement in the county jail for 180 days, probated for one year. The Fourteenth Court of Appeals affirmed appellant's conviction. Moosani v. State, 866 S.W.2d 736 (Tex.App.Houston [14th] 1993). This Court granted appellant's petition for discretionary review in order to determine whether the Court of Appeals correctly applied the requisite proof to qualify for the exception to prosecution for carrying a pistol.
We find that the Court of Appeals' reasoning is correct and adopt it as our own. Accordingly, the judgment of the Court of Appeals is affirmed.
CLINTON, J., joins the opinion of the Court, observing that contrary to assertions by Judge BAIRD, dissenting at 57273, the Second Amendment does not grant a right to bear arms unrelated to "a well regulated Militia." See Masters v. State, 685 S.W.2d 654 (Tex.Cr.App.1985).
OVERSTREET, J., concurs in the result.
We granted appellant's petition for discretionary review to determine whether the Court of Appeals erred in holding appellant was not entitled to assert a common law defense because he habitually carried a handgun. And, if appellant was not entitled to assert the common law defense, whether he was precluded from asserting the statutory defense of traveling. The plurality avoids these issues by simply adopting the opinion of the Court of Appeals. At an ever increasing pace, a plurality of this Court is treating the issues before us with a glib nonchalance, Gabriel v. State, 900 S.W.2d 721, 728, n. 1 (Tex.Cr.App.1995) (Baird, J., dissenting), and resorting to judicial convenience, Crittenden v. State, 899 S.W.2d 668, 674 (Tex.Cr.App.1995) (Baird, J., dissenting), in order to dispose of our docket. Believing the issues presented in this case are important and require greater thought and consideration than merely adopting the opinion of another court, I dissent.
Appellant was stopped, in front of the convenience store where he worked, for failing to use a turn signal. As appellant exited his vehicle, the police officer observed a handgun in a pocket of appellant's vehicle door. Appellant was arrested for unlawfully carrying a weapon. Tex.Penal Code Ann. § 46.02. [FN1] At trial, appellant contended he was entitled to the common law defense which permits one to carry a handgun between his home and work. The trial judge found appellant, who habitually carried the handgun between his home and place of business, was not entitled to assert the common law defense under Cortemeglia v. State, 505 S.W.2d 296 (Tex.Cr.App.1974). The Court of Appeals affirmed. Moosani v. State, 866 S.W.2d 736 (Tex.App.Houston [14th Dist.] 1993) (citing, Cortemeglia, 505 S.W.2d at 296).
FN1. Effective September 1, 1994, § 46.02 and § 46.03 were consolidated. Tex.Penal Code Ann. § 46.02 (1995). Even though appellant's conviction occurred prior to the consolidation, all references herein will be to the 1995 version of § 46.02, unless otherwise noted.
(6) a peace officer, other than a person commissioned by the Texas State Board of Pharmacy.
In connection with these common law defenses, we have considered whether a defendant may carry a handgun habitually. Cortemeglia, 505 S.W.2d 296; and, Chambers v. State, 34 Tex.Crim. 293, 30 S.W. 357 (App.1895). Cortemeglia was arrested for driving while intoxicated and a handgun was discovered in his glove compartment. Cortemeglia contended he had a legitimate purpose to carry the weapon, namely that he was in possession approximately $14,000.00 in cash and checks. There was further evidence Cortemeglia habitually carried large sums of money to his home from his store every Friday, taking the weapon for protection. Each Monday he returned the handgun to his store. Relying on Chambers, we held Cortemeglia was precluded from relying upon a common law defense because he habitually carried the handgun. Cortemeglia, 505 S.W.2d at 297.
However, appellant asks us to overrule Chambers and its progeny which preclude the assertion of a common law defense if the carrying is habitual.
One of the principles of our legal system is that when a point of law has once been settled by decision of the highest court of the state, the decision becomes the law of the state and forms a precedent that is not afterward to be departed from.
16 Tex.Jur.3d Courts, 451, § 119. McGlothlin v. State, 896 S.W.2d 183 (Tex.Cr.App.1995). It is the doctrine of stare decisis which provides certainty and structure to the criminal justice system, and once a rule is deliberately adopted and followed, it should not be abandoned. Id., 896 S.W.2d at 189 (citing, Gearheart v. State, 81 Tex.Crim. 540, 197 S.W. 187, 188189 (App.1917)).
Only when an earlier decision was clearly erroneous, or some special justification arises, may established precedent be overturned. Ex parte Porter, 827 S.W.2d 324, 331 (Baird, J., dissenting). This special justification may include: the precedent was based on conditions which no longer exist; the inability of the lower courts to apply the precedent; or our subsequent opinions conflict with the precedent. Id. (citing, 105 Harv.L.Rev. 177 (1991)). Based on these guidelines, and giving due deference to our earlier decisions, I believe the time has come to overrule the habitual limitation Chambers placed upon common law defenses.
... The statement of facts does not warrant the conclusion that defendant was returning the pistol to the owner ... While the question of intent or honesty of purpose, in a proper case, may excuse or justify carrying a pistol, yet such matters cannot be simulated for the purpose of evading or violating the law.
Id., citing, Stilly, 11 S.W. 458; and, Impson v. State, 19 S.W. 677 (Tex.App.1892). [THE OLD RULE:] Consequently, a defendant was entitled to assert a common law defense but the State was entitled to test its validity with evidence that the defendant habitually carried a weapon.
... The appellant, from the evidence, was in the habit of carrying the pistol, it seems, back and forth between his house and his business place. This is not permitted by the law, and does not come within any of the exceptions set forth in the statute.
Id., at 219. However, on rehearing, we reconsidered this holding and held that Skeen's habitual carrying of a handgun did not preclude his use of the common law defense. Skeen, 30 S.W. 554 (Tex.Cr.App.1895) (op. on reh'g). Thus, Skeen, on rehearing, was consistent with Sanders.
... A person has a right, under the statute, to carry a pistol at his home and at his place of business, and there may be legitimate occasions for his carrying the same between said places,such as have been decided by this court,but we are not inclined to extend a construction of the statute so as to embrace an habitual carrying between one's home and his place of business.
Chambers, 30 S.W. at 357. [FN3] Under this conclusion, a defendant who habitually carried a weapon was precluded from ever asserting a common law defense.
FN3. All emphasis is supplied unless otherwise indicated.
This conclusion was reached without citation to any authority, as was our conclusion in Skeen on original submission. Moreover, it contradicted our holding in Sanders, where we held evidence of habitual carrying could be used to rebut the truthfulness of the common law defense, but did not preclude one from asserting the common law defense. Sanders, 20 S.W. at 556. Because Chambers had no basis in law, and because it conflicted with both Sanders and the opinion on rehearing in Skeen, Chambers was clearly erroneous and, therefore, is not entitled to the deference of stare decisis.
Even if the habitual carrying limitation of Chambers was based in law, I would nevertheless hold that it was not entitled to the respect commanded by stare decisis because there has never been a justification for it.
If read alone, § 46.02(a) would prohibit one from ever possessing or carrying a weapon. Such a blanket prohibition would be unconstitutional because the Second Amendment of the United States Constitution and art. I, § 23 of the Texas Constitution provide the right to keep and bear arms. [FN4] To harmonize § 46.02(a) and the constitutions, the Legislature provided several defenses which allow the possession and carrying of weapons in some limited situations or locations. § 46.02(b); see n. 2, supra. However, as noted earlier, we have recognized several common law defenses in addition to those specified in § 46.02(b). For example, we recognized the common law defense authorizing one to purchase a handgun and take it home. Pressler, supra; and, Waddell, supra. Without this common law defense, it would be lawful to purchase a handgun but unlawful to remove it from the place of purchase. The constitutional right to have a weapon would be of little value if one were prohibited from transporting a weapon from its place of acquisition. Additionally, under § 46.02(b)(2) a person has the right to carry a handgun at home or work. However, there is no statutory right to carry a handgun between those locations. Consequently, without the common law exception of Bowles, supra, one would be forced to violate § 46.02(a) in order to possess the weapon at the places authorized by § 46.02(b)(2). We recognized the aforementioned common law defenses in order to uphold the constitutionality of § 46.02(a) and to make meaningful our constitutional right to keep and bear arms. See, Deuschle, 4 S.W.2d at 560.
However, these common law defenses are not available to those who carried handguns habitually. I believe there should be no such limitation. The frequency with which a weapon is carried is not dispositive of the question of whether the purpose is legitimate. Indeed, the reoccurring nature of the purpose may militate in favor of legitimacy. For example, employment is inherently habitual. Unless a person has two handguns, one at work and one at home, the weapon must be carried between the two locations in order to enjoy the rights guaranteed by our constitutions and § 46.02(b)(2). Just as a person may carry a handgun habitually when at home or at work, so too should a person be able to habitually carry a handgun between the two locations. A person should not be denied a common law defense simply because the legitimate purpose for carrying the weapon is reoccurring.
For these reasons, I believe we should overrule Chambers and its progeny. Evidence that a defendant habitually carried a weapon should not preclude the defendant from asserting a common law defense to unlawfully carrying of a weapon. Common law defenses should be limited to defendants who have a legitimate purpose for carrying the weapon, the route taken must be practical and the transportation of the weapon must proceed without undue delay or unreasonable deviation. Evidence of habitual carrying should be admissible to determine whether the purpose for carrying the weapon was legitimate or contrived.
Appellant further contends he was entitled to the statutory defense of traveling under § 46.02(b)(3). I disagree. I do not believe the Legislature intended such a broad construction of traveling.
MerriamWebster's Collegiate Dictionary 1257 (1993). Thus, traveling may encompass anything from a journey to motion of any kind. While a journey might entail a lengthy trip, motion of any kind could be construed as any type of movement. Therefore, the plain language of § 46.02(b)(3) is ambiguous. Indeed, almost a century ago we noted the ambiguity and called for the Legislature to define traveling. Bain v. State, 38 Tex.Crim. 635, 44 S.W. 518 (App.1898).
Appellant would have us adopt the broadest definition of traveling, one which would include movement of any kind. However, this construction would lead to an absurd result because the exception would subsume the rule. For example, under appellant's construction of § 46.02(b)(3), an individual who carries a handgun throughout the day, every day, going from place to place would be traveling. Under such a construction we would be holding the Legislature intended to prohibit the carrying of a weapon in § 46.02(a), only to allow anyone capable of movement to have a statutory defense to prosecution. § 46.02(b)(3). Because the term traveling is ambiguous, we may look to extratextual factors such as our prior decisions and the Legislature's subsequent approval of those decisions.
The traveling defense provided by § 46.02(b)(3) has remained unchanged since its promulgation in 1871. Act approved April 12, 1871, 12th Leg., R.S., ch. 34, § 1, 1871 Tex.Gen.Laws 25, 25, reprinted in 6 H.P.N. GAMMEL, LAWS OF TEXAS 927, 927 (1898); Act of April 10, 1918, 35th Leg., R.S., ch. 91, § 1, 1918 Tex.Gen.Laws 194, 194. See, Rev.P.C.1879, art. 319, Rev.P.C.1895, art. 339, Rev.P.C.1911, art. 476, Vernon's Ann.P.C. (1925) art. 484, Vernon's Tex.Penal Code Ann. (1973) art. 46.03. However, over the years, we have considered the traveling defense a number of times. See, Stilly, supra; Campbell v. State, supra; Impson, supra; Bain, supra; Williams v. State, 44 Tex.Crim. 494, 72 S.W. 380 (App.1903); Hickman v. State, 71 Tex.Crim. 483, 160 S.W. 382 (App.1913); Williams v. State, 74 Tex.Crim. 639, 169 S.W. 1154 (App.1914); Mayfield v. State, 75 Tex.Crim. 103, 170 S.W. 308 (App.1914); Witt v. State, 89 Tex.Crim. 368, 231 S.W. 395 (App.1921); George v. State, 234 S.W. 87 (Tex.Cr.App.1921); Wortham v. State, 95 Tex.Crim. 135, 252 S.W. 1063 (App.1923); Hall v. State, 102 Tex.Crim. 329, 277 S.W. 129 (App.1925); Christian v. State, 105 Tex.Crim. 562, 289 S.W. 54 (App.1926); Grant v. State, 112 Tex.Crim. 20, 13 S.W.2d 889 (App.1928); Vogt v. State, 159 Tex.Crim. 211, 258 S.W.2d 795 (App.1953); Kiles v. State, 398 S.W.2d 568 (Tex.Cr.App.1966); Allen v. State, 422 S.W.2d 738, 739 (Tex.Cr.App.1967); Smith v. State, 630 S.W.2d. 948 (Tex.Cr.App.1982); and, Ayesh v. State, 734 S.W.2d 106 (Tex.Cr.App.1987).
FN5. At the time of this opinion, the Texas Supreme Court had jurisdiction over both civil and criminal appeals.
Persons living remote from their county seats or market towns, where a day's journey going and coming is required, and where often, from the necessities of business, even a portion of the night is used, should be regarded as within the meaning of [the traveling defense].
We have examined all the authorities cited by appellant and many others, and have found no case holding in substance that a man who goes a distance which can be covered in two hours, in the broad daylight, along a road where he was probably never out of sight of a number of houses, is held to be a traveler. We have found no case where a man is held a traveler whose absence was for less than a day.
Id., 234 S.W. at 88. Thus, a defendant who travels a short distance, capable of being traversed in a short period of time, will not meet the traveling defense. See, Williams v. State, 74 Tex.Crim. 639, 169 S.W. 1154 (Tex.Cr.App.1914) (Defendant who carried his weapon on a twentysix mile journey was not traveling.); Wortham v. State, 95 Tex.Crim. 135, 252 S.W. 1063 (App.1923) (Defendant may not carry a weapon on a thirtyfive mile journey lasting one to one and half hours.); Hall v. State, 102 Tex.Crim. 329, 277 S.W. 129 (App.1925) (A journey to a point thirty or thirtyfive miles distant was not traveling within the statute.); and, Vogt v. State, 159 Tex.Crim. 211, 258 S.W.2d 795 (App.1953) (Defendant may not carry a weapon on a five hour journey.). Additionally, when the defendant's journey requires that he be absent from home overnight, we have construed the journey to constitute "traveling." See, Grant v. State, 112 Tex.Crim. 20, 13 S.W.2d 889, 891 (App.1928) (Defendant who traveled by wagon fifty miles and stayed overnight was traveling.); Williams v. State, 114 Tex.Crim. 177, 21 S.W.2d 672, 673 (App.1929) (Defendant who drove from his home in Mineola (Wood County) to Dallas to stay overnight, conducting business along the way, was traveling.); and, Allen v. State, 422 S.W.2d 738, 739 (Tex.Cr.App.1967) (Defendant who made a one hundred and twenty mile trip to see his family over a weekend was traveling.).
Moreover, when a journey ceases the defendant is no longer traveling. But, a temporary cessation of the journey is allowed if the defendant remains engaged in business conducted with his journey. Stilly, supra; and, Evers v. State, 576 S.W.2d 46, 50 (Tex.Cr.App.1978) (Once the defendant arrives at his destination, secures a room and remains over night, he ceases to be a traveler). See also, Ballard v. State, 74 Tex.Crim. 110, 167 S.W. 340 (App.1914).
When the Legislature amends other portions of the statute, but declines to change the specific language before the Court, we presume legislative approval of our statutory interpretations. Marin v. State, 891 S.W.2d 267, 271272 (Tex.Cr.App.1994) ("[W]hen the Legislature meets, after a particular statute has been judicially construed, without changing that statute, we presume the Legislature intended the same construction should continue to be applied to that statute."). Further, the Code Construction Act provides, "when examining amendments to existing legislation to determine legislative intent, it is presumed that the legislature was aware of case law affecting or relating to the statute." Id., citing, Tex.Gov't Code Ann. § 311.023(3); and, Grunsfeld v. State, 843 S.W.2d 521, 523 (Tex.Cr.App.1992).
Since the Legislature had not defined traveling in its many sessions since we began interpreting it, I can confidently state that our past interpretations are in harmony with the Legislature's intent. Thus, to meet the traveling defense, a defendant must demonstrate that, at the time of arrest, he was on a journey, the duration of which was substantial. Although the traveling defense does not require an overnight stay, such evidence will often militate toward a finding the defendant was traveling. George, supra; and, Christian, 289 S.W. at 54.
Appellant was not engaged in a substantial journey, but commuting between his home and place of employment. Although the record contains no evidence of the duration of appellant's journey, it is clear appellant lived and worked in the Harris County area. Such evidence has never been sufficient to constitute traveling under § 46.02(b)(3) or its predecessors.
This petition presents two issues that should be resolved by this Court. Rather than avoiding our responsibilities and taking the easy way out by adopting the opinion of another court, we should recognize that our opinion in Chambers was erroneous, overrule it and hold appellant was entitled to assert his common law defense in spite of his habitual carrying of the handgun. Because the plurality fails to do so, I dissent.
Our law provides that "[a] person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club." Texas Penal Code § 46.02(a). However, this prohibition "do[es] not apply to a person ... traveling[,]" Texas Penal Code § 46.03(a)(3), and if raised by the evidence, it is the State's burden to prove beyond reasonable doubt that an accused was not "traveling" at the time of the alleged offense.
The facts are not in dispute. Appellant is the night manager of a convenience store. He keeps a handgun at the store to defend himself against robbers. When he is not working, he keeps the same gun at home. To get the gun from one place to the other, he carries it with him when he travels back and forth. Appellant maintains that, under these circumstances, the evidence is insufficient to sustain his conviction because no rational trier of fact could have concluded beyond reasonable doubt that he was not "traveling" at the time of the alleged offense.
The Court of Appeals, relying on Cortemeglia v. State, 505 S.W.2d 296 (Tex.Crim.App.1974), held that the "traveling" exemption does not apply to persons who carry weapons habitually, and that, in this case, a "rational trier of fact could have found beyond a reasonable doubt that Moosani was carrying his weapon habitually." Moosani v. State, 866 S.W.2d 736, 73839 (Tex.App.Houston [14th Dist.] 1993). We granted discretionary review to clarify some of the circumstances under which carrying a weapon is lawful in Texas society. Tex.R.App.Proc. 200(c)(2).
[t]his case was tried before the effective date of the new Penal Code and we express no opinion as to the effect Title 10, Ch. 46, Secs. 46.01 et seq., Acts 1973, 63rd Leg., Ch. 399, p. 962, may have upon the rule of law enunciated[.] Thus, Cortemeglia, by its own terms, does not control because the instant cause was prosecuted under the "new Penal Code."
Nevertheless, our current statute does not differ on it face in any material respect from the one construed in Cortemeglia. See Evers v. State, 576 S.W.2d 46 (Tex.Crim.App.1978). Both provide that the law against carrying weapons does not apply to persons "traveling." Penal Code § 46.03(a)(3) (West 1994); Penal Code art. 484 (West 1952). The issue, then as now, is whether conduct such as that in which appellant was engaged may constitute "traveling" under the statute.
[s]ubdivision (3) is derived directly from prior law without any clarification, and the traveler's exemption was one of the most enigmatic provisions of the prior weapons offense. The courts never defined "traveling" but in each case considered distance, time, and mode of travel.
As a result, the case law in this area is difficult to reconcile with the legislation it construes, since neither the former statute nor the one which applies to this case purports to condition availability of the "traveling" exemption upon any of these factors, or upon the frequency with which an accused actually travels from one place to another. Rather, it appears that the Court simply fabricated these conditions from whole cloth over an extended period of time. See, e.g., Stanfield v. State, 34 S.W. 116 (Tex.Crim.App.1896); Kemp v. State, 116 Tex.Crim. 90, 31 S.W.2d 652 (1930); Kiles v. State, 398 S.W.2d 568 (Tex.Crim.App.1966).
While such an ad hoc judicial approach as one finds in opinions like Cortemeglia and its predecessors may once have been thought consistent with the role of courts in our government, we no longer take quite so casual an attitude toward the implementation of statutes passed by the legislature. Rather, it is now the preferred method of this Court to read all such statutes according to their plain terms, understood as common acceptation in ordinary English allows, unless specially defined by the legislature itself. Boykin v. State, 818 S.W.2d 782, 785786 (Tex.Crim.App.1991).
Considered from this perspective, it is apparent that the meaning of "travel" in ordinary parlance does not depend in any degree upon the purpose or frequency of excursion, the mode of transportation, the distance covered, or the time of day. These criteria for the legality of carrying a weapon in Texas were all devised by the Court in order to implement what it thought the law was meant to accomplish or should have been meant to accomplish, and not to effectuate the plain meaning of the word "traveling."
In the English language, "travel" may take any of the following meanings, depending upon the context in which it is used.
The New MerriamWebster Dictionary, p. 763 (1989). The context in which the word appears in section 46.03(a)(3) of the Penal Code does not plainly suggest that any of these meanings, with the exception of "associate," is inapplicable or that any one meaning was intended to the exclusion of others. Neither can the word be considered ambiguous or absurd as it is used in the statute, since there is nothing inconsistent or contradictory about employing the word as the legislature actually did to exempt all conduct which the ordinary meaning of "travel" includes. Under these circumstances, the word should be understood by the courts to have the broadest possible meaning permitted by common usage, just as it would be understood by any competent English language speaker reading the statute in context for the first time. Vernon v. State, 841 S.W.2d 407, 40910 (Tex.Crim.App.1992).
The State urges us not to take this approach but to construe the traveling exemption much as it was in the past, mainly because a more liberal interpretation could result in people "regularly arming themselves as they move about the city." Admittedly, this scenario is alarming, although it is not apparent to me that all movement within a city may fairly be characterized as "traveling" in ordinary English. But if the prosecuting attorney or others think some extraordinary definition of "traveling" is necessary to prevent this dangerous prospect, they should take their complaint to the legislature, where they will find people with authority to amend the statute. They will find no such people on this Court.
The extent of our power to change the law is limited to judicial review and statutory construction. The former authority permits us to set aside statutes when they conflict with the constitution. The latter permits us to resolve ambiguities within statutes and to harmonize them with one another. Neither authorizes us to rewrite statutes in order to make our society a better place. That enviable task is reserved to the legislature. Our job, and that of every court with criminal jurisdiction in this State, is to implement the law as the legislature has written it. Accordingly, to the extent that Cortemeglia and other of our opinions construing the "traveling" exemption are to the contrary, I would overrule them.
Because the Fourteenth Court of Appeals evaluated the sufficiency of evidence in this case with reference to an extraordinary definition of "traveling" not found in the statute, and because I would now abandon that extraordinary court made definition, my vote is to vacate the judgment of the Court of Appeals and remand this cause there for reconsideration of appellant's sufficiency points. Because a majority of this Court will not do so, I respectfully dissent.
The facts in this matter are undisputed. Appellant is the night manager of a convenience store in north Houston. Because he often carries the store's receipts and is concerned about robberies, he keeps a handgun at the store and in his car while driving between the store and his home in Baytown, a distance of approximately thirty miles.
On April 6, 1992, appellant was followed into the parking lot at his convenience store by a police officer, who observed a traffic violation apparently committed by appellant. As the officer approached the car, he observed a handgun inside. Appellant was immediately taken into custody for carrying a weapon in violation of Texas Penal Code § 46.02. He was tried and convicted, with punishment of 180 days in the county jail, probated for one year, and a fine of $100. The Fourteenth Court of Appeals affirmed. Moosani v. State, 866 S.W.2d 736 (Tex.App.Houston [14th Dist.] 1993).
Texas Penal Code § 46.02(a) (1992) provides that a person commits an offense if he intentionally, knowingly or recklessly carries on or about his person a handgun, club or illegal knife. An offense under this section is a Class A misdemeanor, unless committed on premises licensed to sell alcoholic beverages, in which case the offense is a third degree felony. However, it is a defense to prosecution under § 46.02(a) if the individual, at the time of the offense, is at home or on premises under his control. See Tex.Penal Code § 46.03(a)(2) (1992).
Clearly, appellant has a right to possess a handgun at his home. As night manager of the convenience store, he also has a right to possess a handgun there since he has the premises under his control. If he were merely an employee, he would not have the right to possess a weapon at the convenience store, lacking control over same as a nonmanager.
This Court has issued a series of rulings concerning § 46.03(a)(3), which states that "traveling" is a defense to prosecution under § 46.02(a). See, e.g., Cortemeglia v. State, 505 S.W.2d 296 (Tex.Crim.App.1974); Evers v. State, 576 S.W.2d 46 (Tex.Crim.App.1978); Kiles v. State, 398 S.W.2d 568 (Tex.Crim.App.1966). Relying on Cortemeglia, the Court of Appeals upheld the conviction in this case, claiming that appellant's driving back and forth to work is habitual and therefore not "traveling." If, in fact, appellant had been going to a friend's home, shopping, or just driving around, I would agree that the conviction should be upheld. Alternatively, it is clear that had he been stopped on his way to Dallas, he would have been "traveling" as that term is defined in Cortemeglia.
However, this is not a traveling case. It is undisputed that appellant was merely transporting his handgun from one place where it was legal for him to possess it to another such place. The only practical means by which he could do so was by car. This Court held in Boykin v. State, 818 S.W.2d 782 (Tex.Cr.App.1991), that it would, when interpreting a statute, focus on the statutory language itself and would strive to discern its fair and objective meaning as of the time of enactment. The Court held that "... where application of a statute's plain meaning would lead to absurd consequences that the Legislature could not possibly have intended, we should not apply the language literally." Boykin, at 785.
Consistent with the Court's reasoning in Boykin, I believe it was the intent of the Legislature, when it enacted § 46.03(a)(2), that it is a defense to prosecution under § 46.02(a) that, at the time of the carrying of the weapon, the individual was on his way from his home to his place of business provided he is either an owner or manager of the business. Thus, on the undisputed facts of this case, no rational jury could have found that the § 46.03(a)(2) defense was inapplicable to appellant's conduct.
FN1. Although the question is not raised in appellant's petition for discretionary review, it is my opinion that appellant may have had a right to carry a weapon, given the facts presented, under the Second Amendment to the United States Constitution and/or Article I, § 23, of the Texas Constitution.
A well regulated Militia being necessary to the security of a free State the right of the people to keep and bear arms, shall not be infringed."
Judge Clinton's concurring note cites Masters v. State, 685 S.W.2d 654 (Tex.Cr.App.1985), as holding the right to bear arms is limited to maintaining "a well regulated Militia." This is neither the law nor the holding of Masters. In fact, "militia" is not mentioned in either the majority opinion or Judge Clinton's concurring opinion in Masters.