#12 Desk ItemMEETING DATE: 06/17/13
ITEM NO. 1 as
DESK ITEM
COUNCIL AGENDA REPORT
DATE: June 17, 2013
TO: MAYOR AND TOWN COUNCIL
FROM: GREG LARSON, TOWN MANAGER r
JUDITH PROPP, TOWN ATTORNEY
SUBJECT: CONSIDER INTRODUCTION OF AN ORDINANCE TO ADD A NEW
SECTION XIII TO CHAPTER 14 OF THE LOS GATOS TOWN CODE
ENTITLED "FIREARMS DEALERS SALE OF FIREARMS AND
AMMUNITION" TO REQUIRE A REGULATORY PERMIT PROCESS FOR
THE SALE OF FIREARMS AND AMMUNITION
After the staff report and Addendum was prepared for this agenda item, additional correspondence
was received for the period of 3:01 p.m. Friday, June 14 through 3:00 p.m. Monday, June 17, 2013.
Attachments 1 and 2 (previously received with staff report)
1. Draft ordinance
2. Public Comments received through 3:00 p.m. Thursday, June 13, 2013
Attachment 3 (previously received with Addendum)
3. Public Comments received 3:01 p.m. Thursday, June 13, through 3:00 p.m. Friday, June 14
Attachment 4 (received with this Desk Item)
4. Public Comments received 3:01 p.m. Friday, June 14 through 3:00 p.m. Monday, June 17, 2013
Reviewed by: Y.� Assistant Town Manager l( )Town Attorney Finance
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From: Jess B. Guy <jessbguy@aol.com>
Sent: Saturday, June 15, 2013 10:41 PM
To: Firearms Regulations
Cc: jessbguy@aol.com
Subject: Proposed Firearms Regulations
Attachments: Los_Gatos June_Letter (1).txt
For your consideration.
Jess B. Guy
Los_GatosJ une_Lette r L(1)
- N 7 ' ;: f": ' f: E ' I SOL, • r 111; : . „
The following are commentsron, the proposed Jegi slati on :forthe Permit Procees for .
Firearms Dealers. Ef- my comments seem -less :than salutary - they are:meant tof be.
Secticth ;144,13.0:.,020 Permit Requirements This sectign-:stateSisiverYclearlyir that
therrinfreguent transfer hf,,ammunition requi res.,: a ;Permirta-:;-.1f-Ir harld-,4 box caliberuff"2.122-
rimfire. 4mmuniti On to my daughter,who .1:s a police miffice rtrt Liam .1vi.o1ating:
this TatNwhen:•;myr_ -anthairgo:to,-the..ragge, ,E.tamr fprohi kited sfromr‘handing-Men I
box of ammunitionfor- he nto. shoot . .;:Brilliant 4)7, ir,ottcourse this i section - .
entirety t in th<rect conflict with- California 7Renalpteads'aectlanl-220 Also :4, ;, •
265054 1265104:.-',and 26515. m-irFurther, b rider to 1cega11y comply with Section,
14.136:J020y 1 must:pappl y for a federal firearms license,...cbtain :a rCaliforni a
firearms dealers license,,:: sales permit,:, iCoE4.' etc. 'etc All to transfer ammunition!
to my daughter, my Wife ,or. my son-in-law, who is .also a police off -Peer .1 8ri11iant .
Further, therei- no requirement ::under, federal Jaw to have:. a license: rnr permit. -to -
sell common ammunition To carry this. further, if .E .want,ta!sell a firearm to a gun
dealer, this section requires me. to: obtain'aiipermi tr-r asoutlined . all: its
requirements aforementioned. Even further, if I want to sell a fi rearm to a private
party-, hexisting california requireslaw>-.:that...firearmpbe transferred through a•
licensed' 'dealer . DoeS. thisf. also, frequtr.e :Me tcy:tibtailif -a %Permit tell:addition to the
State mandate of haviing an already literisecr dealer effect the transfer? ).4 : • ,r:c:
:, 2V, q ri) .)21 t r i Wt. • rt t) .titr! k. •
section 14.130:.030 :.wrihv'estitgation, forHPermit This, sectioni:nequi res. ,2 >separate
entities oethe Town of Los :Gatosto; conduct investigations' of:Ithe...00T leant . -,These
investigations are to: :be conductedafter. the aPpld cant has: -obtained': :a _cede ral
Fi rearms license, which requi res the following; fingerprints submitted through -ATF
to the FBI for criminal and mental health background check, and to the Cali forni a
Department of Justice for the :Berne' reasons:,:: and obtained the requi-red certificates
of Eli gibfl ity from the Cal itforni a. Dept of Justice, -and complied.w,ith California
Penal Code sections 26700 through 26725, :and: :had 'a face to 'face interview and
meeting with ATF about the conduct of -a firearms business before .the federal
firearms 1 i cense is issu'ed, and: further agrees to comply with sections 26805 through
27140 of the california Penal Code, and. obtains the required state mandated security
systems, and had any number of criminal and mental health background checks as
required by Title 18 us code, and the california Penal Code. All before the Town of
Los Gatos spends tax dollars to replicate checks al ready done in duplicate by state
and federal authorities. I'm glad the Town has a budget surplus.
ATTACHMENT 4
section 14.130.035 Grounds for Denial of Permit with the exception of
subsections (h) and (i), this section is duplicative of dozens of state and federal
laws already in the us code and California Penal code. Repetitive, duplicative, and
a waste of taxpayer monies. subsection (h) addresses zoning issues, which are not
part of tonights hearing, as that aspect of the permitting process has been
postponed by the Town Council. subsection (i) is so vague and arbitrary has to have
no legal effect, and opens the door to abuse of power by elected officials. I find
it offensive and tyrannical in nature. Subsection (j) defeats portions of 11 other
subsections in this Article by basically negating every reference to destructive
devices. The term destructive devices is thereby relegated to nothing more than
surplus language having no legal effect in those sections. Further, subsection (j)
uses the term armor piercing ammunition. Since nothing in the Article defines that
term, I also find it vague and without legal effect.
Section 14.130.045 Permit conditions, term and renewal This section repeats the
vague and arbitrary conditions of licensing which are anathema to a democracy.
"reasonably related", "purpose and intent (subsection (b))- what does that mean?
section 14.130.010 of this Article clearly states it only allows a government (under
state law) to require a permit to sell firearms within the Town. (No mention of
ammunition, but that's another issue.) What is reasonably related? Further, what
do the terms public health, safety, and welfare address? As discussed on prior
meetings, we have seen litter and graffiti used to meet these criteria. Might as
well use the terms "whatever we feel like". In subsection (e) the requirement for
renewal under the same manner and process as the application process means
repetitive and redundant operations by at least 2 separate governmental
organizations of the Town. with federal and state licensing agencies monitoring the
conduct of business it seems wasteful' to go'through the same lengthy !process each
year., - surely common sense can reduce rthi.s •protess ,to a simplerapproachsffor Ix-,
renewal. subsection (f)(3) is incomplete. Does that subsection mean that the
firearm must be unrioaded _(al'ready :'a:.cri,me sunder ccal:ifor•nila :Penal. codecsections 126815
and 27000if a dealer transfers,a fi rearm ,Loaded .with:; ammunittion)',n;or does rit mean.
that the term ammunition 'Isalreadyr l:oad'ed't .i s, a :;compieter round as 'opposed ,to
ammuni t.i on •compohents7 -, .vague{sentence ragreeds:,rbetterogrammar :andstatement of.
intent.. subsection (g).: s redundant to California Law.i Subsection ?(histtsnalso, t
redundant to! cal:iifornia :Penahteode rsectton 26885 ands ITitie 222,rCFR chapter IliSection
478.39a. Further, (the subsection states clearly P'any rf.7rearm, iettr.. hrpoes),that mean,
even those not.>oWned ror •possessed 'by' Ethel h:icensee?•DrWhatr sticustomert ca'l1,5-s.'and'5c:
says his gun: wag'. stolen :and :he needs, .the: serial number (to` rrepor:tl tt to! the ',police
which. Chief of Polite is. the; li censee! itorrbepon_t the rThossA,the:ft, rto?t- •.D.oes'ethiis r,,, ,Err
requirre the licensee '.to report the stollen -gun of a.icustomer):who, irs also.'reporti'ngr .::
the ,theft? if.- thri s. subsection :only 'applres to fi rearms/ammunition n n :inventory its
reasonable - e'v:en if redundant; otherwise - unreasonable,.':r. r 2ir+
,.. .. r .Iry• rll A•tM I- ' afar)itt S:l,i' t,J ^`).:
Section 14.130.055 .' Law enfo:rcementnspecttons ;•:completely redundant tor!State
and Federal Laws'Which already tallow for such activity <by ATE,_ CA DoJ. , Itralso
presupposes knowledge of all -state and .afedera]' •frrearms: flaws by, rany, rinspecttng. ' r.
officer. That will require extensive training as this entire process around Templar
sports rhas, exposed an abhorrentignorance of state and: ;federal,rlaws (regardl.n'g n4:
firearms, ammunition., and. licensing? activiti.es.:r As far: as a criminal inquiry,r(gun
trace -firearm, purchaser -suspect-etc )1,,federal'and state law allow this on any,
occasiontat any ::time 'already... c n z r ` i . ,rl. p- t it ,1+s .
'f is f i. yr a ,• , rl"-. :,;, r., .. ., . 1.. �f i�I'i ;. I iti 1O .7{m ,qr•
There are other portions of this proposed setof laws which, are wasteful Cif taxpayer
money, wasteful. of Town employee time and.;resou.rces and unnecessary.," AS, cif this(
date, countless hours of 'Town,: Council.: time, has been devoted to one gun shop.in.one
town, said gun shop doing: no wrong. From the beginning this wasas tempest in ra
teapot, driven on by strident voices. Please approach this legislation: with
caution and careful consideration. Thank you:
From: Bill Martin <Bill.Martin@FMIndustries.com>
Sent: Monday, June 17, 2013 12:34 PM
To: Firearms Regulations
Subject: Templar Sports -- Regulation of Firearms and Ammunition Sales
To the Los Gatos Town Council (or should I say counsel);
The facts tend to be over -shadowed by hysterical emotions, Here are some facts from a survey of 15,000
field level law enforcement officers:
*95 percent say that a federal ban on manufacture and sale of ammunition magazines that hold more than 10
rounds would not reduce violent crime.
*71 percent — say a federal ban on the manufacture and sale of some semi -automatics would have no effect on
reducing violent crime.
*About 85 percent of officers say the passage of the White House's currently proposed legislation would have a
zero or negative effect on their safety,
*Almost 90 percent of officers believe that casualties would be decreased if armed citizens were present at the
onset of an active -shooter incident
*More than 80 percent of respondents support awning school teachers and administrators who willingly
volunteer to train with firearms and carry one in the course of the job.
*More than four in five respondents (81 percent) say that gun -buyback programs are ineffective in reducing
gun violence.
http://wzow.policeone. com/Gun-Legislation-Law-Enforcement/articles/6183787-PoliceOnes-Gun-Con trol-
Survey-11-key-findings-on-o fficers-thoughts/
I support Templar Sports and feel this is an affront on a business that followed all of the rules, paid all of
the fees before them and followed through on all permit requirements that are in place local, state, and federal.
As my constituent I strongly urge you to support them as well.
Tluinlc you,
81!! Martin
20+ year Los Gatos Resident
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From:
Sent:
To:
Cc:
Subject:
Attachments:
Follow Up Flag:
Flag Status:
Dear Council Members,
Claudia Ayala <CAyala@michellawyers.com>
Monday, June 17, 2013 1:20 PM
Firearms Regulations
C.D. Michel; Anna M. Barvir
Ltr. to Los Gatos Town Council re_ Firearms Dealers_ Sale of Firearms & Ammunition -
OPPOSITION [MA-Interwoven.FID27444J
242018_Ltr. to Los Gatos Town Council re_ Firearms Dealers_ Sale of Firearms &
Ammunition - OPPOSITION.PDF
Follow up
Completed
Attached please find our opposition letter regarding your proposed ordinance concerning the sale of firearms
and ammunition. We ask that you please take a moment of your time to read this letter before your meeting.
Please feel free to contact me if you have any questions or concerns.
Thank you,
Claudia Ayala
Senior Paralegal
MICT1E Sz _ASSOCIATES,: R-C.
A t t etr n e y s n t L a w
Environmental - rand rise - Firearms - Emrinym.nt Law
flail Litigation - Criminal rkten e
Direct: (562) 216-4473
Main: (562) 216-4444
Fax: (562) 216-4445
Email: CAyalacRmichellawyers.com
Web: www.michellawyers.com
180 E. Ocean Blvd.
Suite 200
Long Beach, CA 90802
This e-mail is confidential and is legally privileged. If you have received it in error, you are on notice of its status. Please notify us immediately by reply e-mail and
then delete this message from your system. Please do not copy it or use it for any purposes, or disclose its contents to any other person. To do so could violate
state and Federal privacy laws. Thank you for your cooperation. Please contact Michel & Associates, PC at (562) 216-4444 if you need assistance.
1
SENIOR COUNSEL
C C MICHEL'
SPECIAL COUNSEL
JOSHUA R DALE
W LEE SMITH
ASSOCIATES
ANNA M BARVIR
SEAN A. BRADY
Scorr M. FRANNUN
THOMAS E. MACIEJEWSKI
CUNT B MONFORT
TAMARA M. RIDER
JOSEPH A. SILVOSO III
Los ANGELES. CA
'ALSO ADMITTED IN rESAs
WRITERS DIRECT CONTACT
562-2 1 5-4444
ABARVIRu@MICHELLAWYERS COM
MICHEL & ASSOCIATES, P.C.
Attorneysa r Law
June 17, 2013
Mayor Barbara Spector
Vice Mayor Steve Leonardis
Council Member Diane McNutt
Council Member Joe Pirzynksi
Council Member Marcia Jensen
LOS GATOS TOWN COUNCIL
Los Gatos Civic Center
110 East Main Street
Los Gatos, CA 95030
VIA EMAIL (FirearmsRegulations( LosGatosCa.Gov)
OF COUNSEL
Don B. RA -Es
BATTLEGROUND. WA
RUTH P HARING
MATTHE'W M. HORECZKC
LOS ANGELES. CA
GLEENN 5. MCR59ERT5
SAN DIEGO. CA
AFFILIATE COUNSEL
JOHN F. MACH -RUDER
JEFFREY M COHON
Los ANGELES. CA
DAVID T. HARDY
TUCSON, AZ
Re: Firearms Dealers: Sale of Firearms & Ammunition — OPPOSITION
Dear Honorable Mayor and Town Council Members:
We write on behalf of our clients, FFLGuard, the National Rifle Association ("NRA"),
and the California Rifle and Pistol Association ("CRPA"), as well as the hundreds of thousands
of their members in California, including members residing in the City of Los Gatos.
Our clients oppose adoption of the proposed ordinance concerning the sale of firearms
and ammunition currently being considered by the Town Council ("the Proposed Ordinance").
Various provisions of the proposal unlawfully burden business, are preempted by state law,
and/or violate constitutional protections, such as the right to keep and bear arms.
The United States Supreme Court recently confirmed that the Second Amendment
protects a fundamental, individual right to keep and bear arms from infringement by local
governments. Dist. of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 130 S.
Ct. 3020 (2010). That right necessarily implies a corresponding right to acquire firearms. See
Andrews v. State, 50 Tenn. 165, 178 (1871) (a case repeatedly cited by the Supreme Court in
Heller holding that the right to keep and bear arms "necessarily includes the right to purchase
i 80 EAST OCEAN BOULEVARD • SUITE 200 • LONC LEACH • CAL:FORNIA • 90802
TEL: 562-2 16-4444 • FAX: 562-2 . 6-4445 • wwW MICHELLAWYERS COM
June 17, 2013
Page 2of3
Re: Firearms Dealers: Sale of Firearms & Ammunition — OPPOSITION
them ... "); see also Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 201.1)). This is important to
remember when considering the constitutionality of any regulation on firearms.
While firearm dealers are not exempt from general commercial or zoning regulations (and
may conceivably be subjected to additional, narrowly tailored ones, like requiring background
checks of employees who handle firearms), they cannot be singled out for exceptionally harsh
restrictions and regulations that do not meet heightened scrutiny. But that is exactly what the
Proposed Ordinance does. It places several onerous burdens on those wishing to conduct a lawful
firearms business under the guise of "regulation." But the provisions of the Proposed Ordinance
are hardly related to the furtherance of any governmental interest, let alone necessary to achieve
one. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 63 (1981) (citations omitted) ("when
a zoning law infringes upon a protected liberty, it must be narrowly drawn and must further a
sufficiently substantial government interest.").
Tellingly, when considering the adoption of a similar ordinance package purporting to
regulate firearm dealers, the San Mateo County Board of Supervisors, upon consideration of a
letter from our office, rejected that package. The San Mateo Board likely understood that
"regulations" (like those contained in the Proposed Ordinance) are replete with legal issues.
Aside from being unduly burdensome and unnecessary, the proposal conflicts with the
preemption doctrine, First Amendment, Second Amendment, and the Equal Protection Clause,
Adopting the Proposed Ordinance will subject the City to a lawsuit to resolve these conflicts.
The area of Second Amendment civil rights jurisprudence is evolving rapidly in the wake
of the Supreme Court recognizing an individual Second Amendment right. See Dist ofColu bia
v. Heller, 554 U.S. 570 (2008). The law, and not mere ideology, supports our positions. The City
of Los Gatos would be wise to refrain from adopting this proposal while this new field of law
develops through litigation in other jurisdictions. The City is free to adopt reasonable regulations
for firearm dealers, such as requiring employee background checks, some security measures, etc.
But as the Fiscal court admonished: "the goal of any local authority wishing to legislate in the
area of gun control should be to accommodate the local interest with the least possible
interference with state law ... Therefore, when it comes to regulating firearms, local
governments are well advised to tread lightly." Fiscal v. City and County of San Francisco, 158
Cat. Apo. 4th 895, 919. (2008) (emphasis added).
While anti -Second Amendment -rights groups such as the Law Center to Prevent Gun
Violence may promise to provide a pro Bono legal defense of the ordinance, if the challengers
prevail the City will still be liable for the chailengers' costs and attorneys' fees, which can be
significant. Defending its handgun ban ordinance in the Fiscal case cost San Francisco roughly
$600,000.00, in addition to the $380,000.00 it paid to the NRA to reimburse it for its attorney's
fees when San Francisco lost. The City of Chicago recently paid $125,000 to a plaintiff who
80 EAST OCEAN BOULEVARD • SLATE 200 • LONG BEACH • CAL.FORNIA • 90802
TEL: 562-216-4444 • FAX 562-2 1 6-44.5 • WWW. MICHELLAWYERS COM
okko(
June 17, 2013
Page 3 of 3
Re: Firearms Dealers: Sale of Firearms & Ammunition — OPPOSITION
challenged the constitutionality of that city's ordinance banning people with certain non-violent
misdemeanor convictions from possessing firearms in their homes for self-defense in the case of
Gowder v. Chicago, 11 C 1304 WL 2325826 (N.D. I11. June 19, 2012). That was following
Chicago's payment of approximately $1.4 million dollars to the NRA and $400,000 to the
Second Amendment Foundation for the McDonald case. And, the District of Columbia had to
pay $1.1 million to Mr. Heller.
Our clients understand the need to fight the criminal misuse of firearms and gun violence,
and they have a variety of effective programs available to the City upon request; programs that do
not flout constitutional guarantees. We suggest the Town Council consider taking our clients up
on their offer to provide those programs before delving into highly restrictive and ineffective
laws.
If you have any questions or concerns concerning the content of this correspondence,
please feel free to contact us at your convenience.
Sincerely,
Michel & Associates, P.C.
Anna M. Barvir
180 EAST OCEAN BOULEVARD • SUITE 200 • LONG BEACH • CALIFORNIA • 90802
TEL: 562-216-4444 • FAX: 562-216-4445 • WWW.MICHELLAWYERS.COM
From: Florian Andrade <florian.andrade@gmail.com>
Sent: Monday, June 17, 2013 1:55 PM
To: Firearms Regulations
Subject: Templar Sports and Gun Shop Moratorium
Hello,
I am writing to express my disgust with the town council's attempts at shutting down a legal business that
disagrees with their politics. As some of the elitist proponents of this unconstitutional action are quick to point
out some 2nd Amendment supporters are from outside the city borders. I however live within the city, and I do
not want my right to keep and bare arms curtailed by executive fiat.
Any moratorium that does pass should contain grandfather perversions for Templar Sports, as they follow
existing State, County, and Federal law in establishing their business.
Thank you,
Florian Andrade
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From: Lee Bermanjmailto:Lee.bermanCalcomcast.net]
Sent: Monday, June 17, 2013 2:50 PM
To: Firearms Regulations
Subject: Firearms Regulations
Dear Town Council Members, Town Manager, and Town Attorney,
Thank you for preparing the draft Article regarding the sale of firearms and ammunition in our
town. By considering these ordinances, you demonstrate that Los Gatos is ready and willing to join
forces with more than thirty California municipalities and five counties that have established
common-sense regulations of firearms sales.
We appreciate three key improvements you've made to the draft since it was first made public: 1)
requiring firearms dealers to obtain insurance; 2) requiring five years between the revocation of a
license and the application for a new one; and 3) prohibiting the manufacture of firearms,
ammunitions, or destructive devices in our town. We especially applaud your inclusion of open
public hearings for all applications and renewals of licenses. In this draft, you take a very positive
step in the direction of transparency and public accountability.
As other citizens have pointed out, however, some glaring omissions mar this draft. The most
troubling omissions concern the following crucial issues:
Land Use. The draft contains troublingly vague language about compliance with zoning
requirements. We understand that the Planning Commission is working on land use standards and
zoning requirements. But the permit process itself would be stronger if it provided a clear statement
of at least a few minimum restrictions. The Council Agenda Report dated June 12, 2013 lists
ordinances passed by four neighboring cities: Campbell, Palo Alto, Santa Cruz, and Capitola. All
four cities chose to include language prohibiting firealms sales in residential areas and the City of
Santa Cruz also prohibits gun sales near daycare centers and parks. The Council Agenda Report
also points out that State and Federal laws prohibit individuals from possessing firearms within
1,000 feet of a school. Why not enunciate these restrictions clearly and directly in the permit
process Article?
Security. The draft deals with on -site security of the premises in only one sentence: Sec.
14.130.025 (9). This seems far from adequate for dealing with many serious security issues,
including theft and illegal gun trafficking. By specifying security measures that dealers must take,
i
the Council would be inviting these businesses to partner with the Town in making sure that theft
and subsequent illicit sales do not occur. It is particularly troubling to us that the draft requires
businesses to retain security camera records for only sixty days. The City of Campbell requires
businesses to keep such records for at least one year and gives much more detailed guidance
about making the premises secure. Why not do as much as neighboring cities?
Records and Reporting Requirements. In its Findings section, the Campbell Ordinance cites
numerous benefits resulting from gun dealers' provision of accurate inventory records to local law
enforcement personnel. In Sec. 14.130.055, the Los Gatos draft ordinance uses imprecise language
to describe the records and reporting our Town will require. Why is this language so vague?
After comparing the Los Gatos draft with ordinances passed by other Bay Area, we have
concluded that improvements are still needed in this draft, especially in the three areas discussed
above.
In Baer v. Wawatosa the 7th Circuit Court identified what is at stake: "The sale of guns is fraught
with both short-term and long-term danger to the public.... The short-term danger is that guns
will be sold to criminals, children, and others who are, for excellent reasons, forbidden by law to
have them; the long-term danger is that the circumstances of sale will encourage people to think of
guns as weapons of aggression" (qtd. in LCAV Model Law, 2010). We ask that you produce a final
Article on firearms and ammunition sales in Los Gatos that reflects a clear concern for these
dangers.
Respectfully,
Julie Maia and Lee Berman
Oak Hill Way, Los Gatos
(residents of the Town of los Gatos for 23 years)
2