AN ORDINANCE OF THE CITY OF PLEASANTON PROVIDING FOR THE REGULATION OF FIREARM SALES THROUGH A PERMITTING PROCESS AND PROHIBITING THE SALE OF "SATURDAY NIGHT SPECIALS" BY AMENDING TITLE 6 AND TITLE 20 OF THE PLEASANTON MUNICIPAL CODE
THE CITY COUNCIL OF THE CITY OF PLEASANTON DOES HEREBY ORDAIN AS FOLLOWS:
Section 1: Title 6, Specific Business Regulations, of the Pleasanton Municipal Code shall be amended to add the following sections:
6.64.010 Purpose. The purpose of this chapter is to regulate fire arm sales through a permitting process and to prohibit the sale of "Saturday Night Specials".
6.64.020 Definitions. For purposes of this chapter, the following words and phrases shall have meanings as provided in this section:
A. "Firearm" means a gun, pistol, revolver, rifle or any devise, designed or modified to be used as a weapon, from which is expelled through a barrel a projectile by the force of an explosion or other form of combustion.
B. "Firearm sales" means the sale, transfer, lease, offer, registration, or advertising for sale, transfer, lease, offer, or registration of a firearm.
C. "Person" means any individual, copartnership, firm, association, joint stock company, corporation, or combination of individuals of whatever form or character.
6.64.030 Permit Requirement.
A. Except as provided in Penal Code Section 12070(b), it is unlawful for a person to engage in the activity of "firearm sales" without a firearm sales permit as required by this Chapter.
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B. The requirement for a firearm sales permit is in addition to the requirement for a conditional use permit for firearm sales as provided under Chapter 18.28 (Agricultural District), 18.44 (Commercial Districts), 18.48 (Industrial Districts), and 18.52 (Rock, Sand and Gravel Extraction Districts) of the Pleasanton Municipal Code. No person shall engage in firearm sales without a conditional use permit and a firearm sales permit.
6.64.040 Application.
A. An applicant for a firearm sales permit or renewal of same under this chapter shall file with the Police Chief an application in writing, signed under penalty of perjury, on a form prescribed by the City Attorney. The application shall include the following:
(1) name, age and address of the applicant;
(2) the address of the proposed location for which the permit is required, together with the business name, if any;
(3) proof of a possessory interest in the property at which the proposed business will be conducted, in the form of ownership, lease, license or other entitlement to operate at such location and the written consent of the owner of record of the real property;
(4) a floor plan of the proposed business which illustrates the applicant's compliance with security provisions of Penal Code §12071(b)(14) and Chapter 20.36 of the Pleasanton Municipal Code.
(5) proof of the issuance of a conditional use permit at the proposed location;
(6) proof of compliance with all federal and state licensing laws;
(7) information relating to licenses or permits relating to other weapons sought by the applicant from other jurisdictions, including, but not limited to, date of application and whether each application resulted in issuance of a license;
(8) information relating to every revocation of a license or permit relating to firearms, including but not limited to, date and circumstances of the revocation;
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(9) applicant's agreement to indemnify, defend, and hold harmless the City, its officers, agents, and employees, from and against all claims, losses, costs, damages, and liabilities or any kind, including attorney fees, arising in any
manner out of the applicant's negligence or intentional or willful misconduct;
(10) applicant's agreement that the City shall have the right to enter the building designated in the license from time to time during regular business hours to make reasonable inspections and to investigate and enforce compliance with building, mechanical, electrical, plumbing, or health regulations, provisions of this Code and all other applicable federal, state and local laws;
(11) certification of satisfaction of insurance requirements under Section 6.64.080 of this Chapter; and
(12) all convictions of the applicant for any offense listed in Section 6.64.100(E) of this Chapter.
B. As used in this Section, the term "applicant" when the applicant is other than a natural person shall include any officer, director, employee or agent of the applicant who may be involved in any firearm sale.
C. The application shall be accompanied by a non-refundable fee for administering this Chapter established by City Council resolution.
6.64.050 Investigation by Police Chief. The Police Chief shall conduct an appropriate investigation of the applicant to determine for the protection of the public safety whether the permit may be issued. The Police Chief may require an applicant, or any officer, agent, or employee thereof, to provide fingerprints, a recent photograph, a signed authorization for the release of pertinent records, a complete personal history set forth on a questionnaire provided by the Police Chief and any other additional information which the Police Chief deems necessary to complete the investigation.
6.64.060 Conditions of Approval. In addition to other requirements and conditions of this Chapter, a firearm sales permit is subject to the following conditions, the breach of any of which is sufficient cause of revocation of the permit by the Police Chief:
A. all prohibitions and requirements in Penal Code Section 12071(b);
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B. the applicant shall not permit any person under 18 years of age to enter or remain within the premises without being accompanied by the parent or other adult legally responsible for the minor child where the primary business performed at the site is firearm sales;
C. the permittee shall not sell, lease or otherwise transfer a firearm without also selling or otherwise providing with each firearm a trigger lock or similar device that is designed to prevent the unintentional discharge of the firearm;
D. the permittee shall not deliver a firearm to a purchaser earlier than is allowed by applicable federal and state law;
6.64.070 Requirement of Secured Facility. In addition to the conditions of approval provided in Section 6.64.060 of this Chapter, the business location as shown on the firearm sales permit shall be a secured facility meeting all of the specifications of Penal Code Section 12071(b)(14) and Chapter 20.36 of this Code.
6.64.080 Liability Insurance.
A. No firearm sales permit shall be issued or reissued unless there is in effect a policy of liability insurance in a form approved by the City Attorney and executed by an insurance company approved by the city, whereby the applicant is insured against liability for damage to property and for injury to or death of any person as a result of the firearm sale. The minimum liability limits shall not be less than one million dollars ($1,000,000) for each incident of damage to property or incident of injury or death to a person.
B. The policy of insurance shall contain an endorsement providing that the policy shall not be canceled until notice in writing has been given to the City Manager at least 30 (thirty) days prior to the time the cancellation becomes effective.
C. Upon expiration of a policy of insurance and if no additional insurance is obtained, the permit is considered canceled without further notice.
6.64.090 Issuance of Firearm Sales Permit; Duration.
A. The Police Chief may grant a firearm sales permit to the applicant if the Police Chief finds that the applicant complies with all applicable federal, state and local laws including, but limited to, the State Penal Code, City Building Code, Fire Code, Zoning and Planning Codes.
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B. A firearm sales permit expires one year after the date of issuance. A permit may be renewed for additional one year periods upon the permittee's submission of an application for renewal, accompanied by a non-refundable renewal fee established by City Council resolution. The renewal application and the renewal fee must be received by the Police Chief no later than 45 days before the expiration of the current permit.
C. A decision regarding issuance or renewal may be appealed in the manner provided in Section 6.64.120 of this Chapter.
6.64.100 Grounds for Permit Denial. The Police Chief shall deny the issuance or renewal of a firearm sales permit when one or more of the following conditions exist:
A. The applicant is under 21 years of age;
B. The applicant is not licensed as required by all applicable federal, state and local laws;
C. The applicant has had a firearm sales permit or license previously revoked or denied for good cause within the immediately preceding two years;
D. The applicant has made a false or misleading statement of a material fact or omission of a material fact in the application for a firearm sales permit. If a permit is denied on this ground, the applicant is prohibited from reapplying for a permit for a period of two years;
E. The applicant has been convicted of:
(1) An offense which disqualifies the applicant from owning or possessing a firearm under federal, state and local law, including but not limited to the offenses listed in Penal Code Section 12021;
(2) An offense relating to the manufacture, sale, possession, use or registration of a firearm or dangerous or deadly weapon;
(3) An offense involving the use of force or violence upon the person of another;
(4) An offense involving theft, fraud, dishonesty or deceit; or
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(5) An offense involving the manufacture, sale, possession or use of a controlled substance as defined by the State Health and Safety Code, as it now reads or may hereafter be amended to read;
F. The applicant is within a class of persons defined in the Welfare and Institutions Code Sections 8100 or 8103;
G. The applicant is currently, or has been within the past two (2) years, an unlawful user of a controlled substance as defined by the Health and Safety Code as that definition now reads or may hereafter be amended to read;
H. The operation of the business as proposed would not comply with federal, state and local law; or
I. The applicant has engaged in firearm sales involving any firearm listed on the Roster of Saturday Night Specials in violation of this Chapter.
6.64.110 Grounds for Permit Revocation. In addition to the violation of any other provision contained in this chapter, circumstances constituting grounds for denial of a firearm sales permit also constitute grounds for revocation.
6.64.120 Hearing for Permit Denial or Revocation.
A. A person whose application for a firearm sales permit is denied or revoked by the Police Chief has the right to a hearing before the Police Chief before final denial or revocation.
B. Within 10 days of mailing written notice of intent to deny the application or revoke the permit, the applicant may appeal by requesting a hearing before the Police Chief. The request must be made in writing, setting forth the specific grounds for appeal. If the applicant submits a timely request for an appeal, the Police Chief shall set a time and place for the hearing within 30 days.
C. The decision of the Police Chief shall be in writing within 10 days of the hearing. An applicant may appeal the decision of the Police Chief to the City Manager provided written notice of said appeal and reasons therefor are filed with the City Clerk ten (10) days after the mailing of the Police Chief's decision. The City Clerk shall set the matter for City Manager consideration within two (2) weeks of receipt of the appeal.
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6.64.130 Non-assignability. A firearm sales permit issued under this chapter is not assignable. Any attempt to assign a firearm sales permit makes the permit void.
6.64.140 Nonconforming Use. Notwithstanding the effective date of this Chapter, any person engaged in firearm sales who is the holder of a valid Seller's Permit issued by the State Board of Equalization and a valid Certificate of Eligibility issued by the California Department of Justice, all of which were issued prior to January 1, 1998, may continue such firearm sales provided a firearm sales permit, a conditional use permit and business registration are obtained from the City within one (1) year of the effective date of this ordinance, and provided the operator remains fully licensed by all agencies listed above.
6.64.150 Purpose. The purpose of this Article is to ensure the health, safety and general welfare of the City of Pleasanton citizens by prohibiting in the City of Pleasanton the sale of cheaply made, inadequately designed and poorly manufactured handguns.
6.64.160 Definitions. Except as provided in Section 6.64.165 of this Chapter, the term "Saturday Night Special" as used in this Chapter shall mean any of the following:
A. A pistol, revolver or firearm capable of being concealed upon the person, as those terms are defined in California Penal Code Section 12001(a), which pistol, revolver or firearm contains a frame, barrel, breechblock, cylinder or slide that is not completely fabricated of heat treated carbon steel, forged alloy, or other material of equal or higher tensile strength.
B. A semi-automatic pistol that:
(1) Is not originally equipped by the manufacturer with a locked-breech action; and
(2) Is chambered for cartridges developing maximum permissible breech pressures above 24,100 Copper Units of Pressure as standardized by the Sporting Arms and Ammunition Manufacturers Institute.
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(3) For purposes of this subsection B, "semi-automatic pistol" shall mean a firearm, as defined in California Penal Code Section 12001(b), that is designed to be held and fired with one hand, and that does the following upon discharge: (i) fires the cartridge in the chamber; (ii) ejects the fired cartridge case; and (iii) loads a cartridge from the magazine into the chamber. "Semi-automatic pistol" shall not include any assault weapon designated in California Penal Code Section 12276.
C. A pistol, revolver, or firearm capable of being concealed upon the person, as those terms are defined in California Penal Code Section 12001(a), that:
(1) Uses an action mechanism that is substantially identical in design to any action mechanism manufactured in or before 1898 that was originally chambered for rimfire ammunition developing maximum permissible
breech pressure below 19,000 Copper Units of Pressure as standardized by the Sporting Arms and Ammunition Manufacturers Institute; and
(2) Is chambered to fire either centerfire ammunition or rimfire ammunition developing maximum permissible breech pressures above 19,000 Copper Units of Pressure as standardized by the Sporting Arms and Ammunition Manufacturers Institute; and
(3) Is not originally equipped by the manufacturer with a nondetachable safety guard surrounding the trigger; or
(4) If rimfire, is equipped with a barrel of less than 20 bore diameters in overall length protruding from the frame.
(5) For purposes of this subsection C, "action mechanism" shall mean the mechanism of a firearm by which it is loaded, locked, fired and unloaded, commonly known as the cycle of operation.
6.64.165 Exclusions. The term "Saturday Night Specials" does not include any of the
following:
A. Any pistol that is an antique or relic firearm or other weapon falling within the specifications of paragraphs (5), (7), and (8) of subsection (b) of California Penal Code Section 12020;
B. Any pistol for which the propelling force is classified as pneumatic, that is, of, or related to, compressed air or any other gases not directly produced by combustion;
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C. Children's pop guns or toys;
D. An "unconventional pistol" as defined in California Penal Code Section 12020(c)(12); or
E. Any pistol which has been modified to render it either permanently inoperable or permanently altered such that it no longer is classified as a Saturday Night Special.
6.64.170 Roster of Saturday Night Specials Adopted. The attached Roster of Saturday Night Specials is hereby adopted. The Roster lists those firearms, by manufacturer and model number, that fit the definition of Saturday Night Special set forth in Section 6.64.160 of this Chapter.
6.64.180 Notification. The City shall endeavor to send written notification to: (1) the manufacturer of every firearm on said Roster; and (2) every dealer within the City who is licensed to sell and transfer firearms pursuant to Section 12071 of the Penal Code of the State of California and Chapter 6.64 of this Code. Such notification shall do the following:
A. Identify the model number of the firearm that has been classified as a Saturday Night Special within the meaning of Section 6.64.160 of this Chapter;
B. Advise the recipient that the recipient may apply for reconsideration of the classification of the firearm as a Saturday Night Special; and
C. Advise the recipient that the burden of proving a firearm does not constitute a Saturday Night Special within the meaning of Section 6.64.160 of this Chapter shall be on the recipient.
6.64.190 Reconsideration.
A. The City shall, prior to the effective date of this ordinance, establish standards and procedures for the form and content of an application, conducting an administrative hearing and evaluating evidentiary testimony relating to the decision to classify the firearm in question as a Saturday Night Special as defined in Section 6.64.160 of this Chapter.
B. Upon timely filing of one or more complete applications for reconsideration, the City shall evaluate the evidence submitted by the applicant(s). The City may rely on persons with expertise and knowledge in making this evaluation. The applicant(s) shall have the burden of demonstrating that the firearm does not constitute a Saturday Night Special within the meaning of Section 6.64.160 of this Chapter.
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6.64.200 Appeal of Classification.
A. If it is determined that the firearm under reconsideration has been properly classified as a Saturday Night Special, then the applicant(s) shall have the right to appeal such decision to the City Manager, and the applicant(s) shall have the right to a hearing before the City Manager or the City Manager's designee prior to inclusion of the firearm in question on the Roster. The City Manager may rely on persons with expertise and knowledge in conducting this hearing.
B. The City Manager, or the City Manager's designee, is authorized to establish standards and procedures for the form and content of an appeal, conducting an
administrative hearing and evaluating evidentiary testimony relating to the decision to classify the firearm in question as a Saturday Night Special as defined in Section 6.64.160 of this Chapter.
C. The burden of proof shall be on the appellant(s) to demonstrate that the firearm does not constitute a Saturday Night Special within the meaning of Section 6.64.160 of this Chapter.
D. All parties involved shall have the right to offer testimonial, documentary and tangible evidence bearing on the issues and to be represented by counsel.
E. The City Manager or the City Manager's designee shall hear and consider all relevant evidence. Upon the conclusion of the hearing, the City Manager or the City Manager's designee shall, based on the evidence presented, determine whether the firearm constitutes a Saturday Night Special within the meaning of Section 6.64.160 of this Chapter.
F. In all instances, the decision of the City Manager or the City Manager's designee whether to classify the firearm in question as a Saturday Night Special as defined in the Section 6.64.160 of this Chapter and to place said firearm on the Roster is final.
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6.64.210 Publication of Roster. The City shall place on the Roster those firearms which have been determined to constitute a Saturday Night Special within the meaning of Section 6.64.160 of this Chapter. The City shall cause the Roster to be published in the following manner:
A. Notification of the Roster's completion shall be published at least once in the official newspaper as designated by the City and circulated in the City within fifteen (15) days after its completion;
B. A copy of the Roster, certified as a true and correct copy thereof, shall be filed in the office of the City Clerk of the City of Pleasanton; and
C. A copy of the Roster, certified as a true and correct copy thereof, shall be distributed to every dealer within the City who is licensed to sell and transfer firearms pursuant to Section 12071 of the Penal Code of the State of California and this Chapter.
6.64.220 Effective Date of Roster. The Roster shall become effective on the fifteenth day after its publication.
6.64.230 Additions to Roster. Additions to the Roster shall be made in accordance with the following:
A. Semi-Annual Determination. On a semi-annual basis, the City shall determine the need to place firearms on the Roster. Upon identifying one or more firearms as a Saturday Night Special, the City Manager or the City Manager's designee shall prepare a draft list of the additions to the Roster.
B. Notification of Additions to Roster. In the event that a draft list of firearms to be added to the Roster is prepared, the City shall endeavor to send written notification in accordance with the aforementioned provisions of Section 6.64.180 of this Chapter.
C. Reconsideration. Any person notified pursuant to subsection B above may apply for reconsideration of the classification of that firearm as a Saturday Night Special in accordance with the provisions of Section 6.64.190 of this Chapter.
D. Appeal of Classification. Whenever a firearm has been determined to be properly classified as a Saturday Night Special after reconsideration, the applicant may file an appeal to the City Manager and the City Manager or the City Manager's designee shall hold a hearing in accordance with the provisions of Section 6.64.200 of this Chapter.
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E. Additions of Firearms to Roster. After all appeals have been exhausted, the City shall place on the Roster those additional firearms which have been determined to constitute a Saturday Night Special within the meaning of Section 6.64.160 of this Chapter. The City shall cause the Roster, as amended to include these additional firearms, to be published in accordance with Section 6.64.210 of this Chapter.
F. Effective Date of Additions to the Roster. The addition of new firearms to the Roster shall not operate to preclude the enforcement of the Roster with respect to firearms previously listed thereon. The publication of the Roster, as amended to include new firearms, shall be effective as to those newly added firearms on the fifteenth day after its publication as set forth in Section 6.64.220 of this Chapter.
6.64.240 Sale of Saturday Night Specials Prohibited. No wholesale or retail firearms dealer with a firearm sales permit issued by the City of Pleasanton shall engage in firearm sales of any firearm listed on the Roster of Saturday Night Specials. This section shall not preclude a wholesale or retail gun dealer from processing firearm transactions between unlicensed parties pursuant to Section 12082(d) of the California Penal Code.
6.64.250 Exemptions. Nothing in this Chapter relative to the sale of Saturday Night Specials shall prohibit the disposition of any firearm by police officers, sheriffs, constables, marshals, or other duly appointed peace officers in the performance of their official duties; nor to persons who are authorized by the United States Federal Government for use in the performance of their official duties; nor shall anything in this Chapter prohibit the use of any firearm by the above mentioned persons in the performance of their official duties.
6.64.260 Penalty. Any person violating any of the provisions of this Article shall be guilty of a misdemeanor. Any person convicted of a misdemeanor under the provisions of this Article shall be punished by a fine of not more than one thousand ($1000) dollars or by imprisonment for a period not exceeding six (6) months, or by both such fine and imprisonment. Each such person shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of this Article is committed, continued or permitted by such person and shall be punished accordingly. In addition, any person found to be in violation of this Article shall be considered in non-compliance with the requirements of Chapter 6.64 of this Code, and subject to the suspension and/or revocation of a firearm sales permit under Section 6.64.100(I) of this Chapter.
Section 2: Title 20, Buildings and Construction, of the Pleasanton Municipal Code shall be amended to add the following sections:
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20.36.030 Supplemental Regulations. This chapter shall be considered supplementary to the mandated uniform codes prescribed by the Health and Safety Code and the Penal Code of the State of California. Whenever a provision of this chapter is found to be inconsistent with any uniform code or Penal Code requirement, the provision of the uniform code or Penal Code shall apply.
Section 3: If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this chapter. The City Council declares that it would have adopted each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases or portions be declared invalid or unconstitutional.
Section 4: A summary of this ordinance shall be published once within fifteen (15) days after its adoption in "The Tri-Valley Herald," a newspaper of general circulation published in the City of Pleasanton, and the complete ordinance shall be posted for fifteen (15) days in the City Clerk's office within fifteen (15) days after its adoption.
Section 5: This ordinance shall be effective only if approved by a majority vote of the voters of Pleasanton.
RE-INTRODUCED at a regular meeting of the City Council of the City of Pleasanton on February 9, 1998.
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ADOPTED at a regular meeting of the City Council of the City of Pleasanton on March 3, 1998 by the following vote:
AYES:Councilmembers - Ayala, Michelotti, Pico, and Mayor Tarver
NOES:Councilmember Dennis
ABSENT: None
ABSTAIN: None
BEN C. TARVER, MAYOR
ATTEST:
_______________________________
Peggy L. Ezidro, City Clerk
APPROVED AS TO FORM:
_______________________________
Michael H. Roush, City Attorney