Berkeley Municipal Code Ch. 9.72 Firearms Dealers

It is the purpose of this chapter to establish, as authorized by State of California Penal Code Section 12071, a local licensing scheme for persons engaged in the business of selling, transferring or leasing firearms and munitions and in related activities. (Ord. 6519-NS, 1999)

The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:

A. "Firearm" means any device, designed to be used as a weapon, 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. "Munitions" means any projectile or explosive substance for use with any firearm.

C. "Firearms or munitions dealer" means a person engaged in the business of selling, transferring, or leasing of any firearm or munitions pursuant to a Bureau of Alcohol, Tobacco and Firearms Federal Firearms License of types 1, 2, 6, 7, 8, 9, 10, or 11, or pursuant to Penal Code Section 12071(a)(1). (Ord. 6519-NS, 1999)

No person, partnership, cooperative, corporation, firm or association shall engage in the business of operating or managing any business which sells, transfers, leases or offers, advertise for sale, transfer, or lease any firearm or munitions without first obtaining a firearms dealer’s permit from the Chief of Police of the Berkeley Police Department as set forth herein. The permit required by this chapter shall be in addition to any other permits required by law. In addition, any person subject to the permit requirements imposed by this chapter shall comply with all other provisions of law including but not limited to the Chapter 9.73 prohibiting the sale of Saturday Night Specials. Compliance with such provisions of law shall be deemed an implied condition of any permit issued by the City and failure to comply with such laws shall be grounds to revoke or deny a permit under this chapter. (Ord. 6519-NS, 1999)

An application for a permit under this chapter shall be filed with the Chief of Police under penalty of perjury on a form to be specified by the City. The application shall provide all relevant information to demonstrate the applicant’s compliance with this chapter including:

(1)The applicant’s name, including any aliases or prior names, age and address;

(2)The applicant’s Federal Firearms License and California Firearms Dealer numbers;

(3)The address of the proposed location for which the permit is sought, together with the business name, and the name of any corporation, partnership, or association that has any ownership in, or control over, the business, if any;

(4)The names, ages, and addresses of:

(A)All persons who will have access to or control of workplace firearms, including but not limited to, the applicant’s employees, agents and/or supervisors, if any;

(B)All persons possessing, directly or indirectly, the power to direct or cause the direction of the management or policies of the corporation, partnership, or association, as they relate to the firearms business (i.e., officers, directors, partners, etc.). The purpose of this provision is to address business entities selling firearms, and to require background checks of people who could essentially have access to or control over firearms due to their position or authority over the applicant or store manager.

(5)Proof of a possessory interest in the building and 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, if the applicant is not the owner of record of the building within which, and the real property upon which, the applicant’s business is to be located and conducted, the written consent of the owner of record of such buildings and/or real property that the applicant may sell, lease and transfer firearms;

(6)A floor plan of the proposed business which illustrates the applicant’s compliance with security provisions of Section 9.72.070 of this chapter;

(7)Proof of the issuance of a land use permit at the proposed location;

(8)Proof of compliance with all applicable federal, state and local licensing laws;

(9)(a) A list of every application for a license or permit to sell, lease, transfer, purchase, or possess firearms which were sought by the applicant from any jurisdiction in the United States, (b) for each such prior application, the date of each application and whether it resulted in the issuance of a license or permit; (c) for each such prior license or permit, the date and circumstances of any revocation or suspension;

(10)The 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 of any kind pursuant to the operation of the business, including attorneys fees, arising in any manner out of the negligence or intentional or willful misconduct of the applicant, or the applicant’s officers, employees, agents and/or supervisors;

(11)Certification of satisfaction of insurance requirements specified in Section 9.72.120;

(12)The date, location and nature of all criminal convictions of the applicant, if any, in any jurisdiction in the United States.

(13)The following individuals shall provide fingerprints, a recent photograph, a signed authorization for the release of records pertinent to the application:

(a)The applicant;

(b)All persons who will have access to or control of workplace firearms, including but not limited to, the applicant’s employees, agents and/or supervisors, if any;

(c)All persons possessing, directly or indirectly, the power to direct or cause the direction of the management or policies of the corporation, partnership, or association, as they relate to the firearms business (i.e., officers, directors, partners, etc.).

The application shall also include a certification by the City Planning Department of the City of Berkeley that the applicant’s business will not be located in a zoning district in which the operation of a firearms business is prohibited by law. The applicant shall provide all information requested including the proof of compliance with all applicable federal, state, and local law when required by the Chief of Police, or the application will not be deemed complete. The application shall be accompanied by the fees established by resolution of the City Council for administering this chapter. (Ord. 6519-NS, 1999)

The Chief of Police may cause to be conducted an investigation to determine whether the application meets all the requirements of federal, state and local law and may require any and all additional information from an applicant that is deemed necessary to complete the investigation. Prior to issuance or renewal of the permit, the Chief of Police may cause to be conducted an inspection of the premises to ensure compliance with this chapter. The Chief of Police may grant or renew a law enforcement permit if the applicant is in compliance with this chapter and all other applicable federal, state and local laws. (Ord. 6519-NS, 1999)

The Chief of Police shall give the applicant a written notice of the Chief’s decision to deny the application. The notice shall set forth the ground or grounds for the Chief of Police’s decision. The Chief of Police shall deny the issuance of a permit or shall revoke an existing permit when any of the following conditions exist:

A. The applicant, or any officer, employee, or agent thereof who will have access and control over firearms, 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, or any officer, employee, or agent thereof who will have access and control over firearms, has had a permit or license to sell, lease, transfer, purchase, or possess firearms or munitions previously revoked or denied for good cause within the immediate preceding five years for failure to operate its business in compliance with the requirements of federal, state or local law including any conditions imposed by such laws.

D. The applicant, or any officer, employee, or agent thereof who will have access and control over firearms, has made a false or misleading statement of a material fact or an omission of a material fact in the application for a permit.

E. The applicant, or any officer, employee, or agent thereof who will have access and control over firearms, has been convicted of the following:

1. Any offense which disqualifies the person convicted from owning or possessing a firearm under applicable federal, state, and local laws.

2. Any offense related to the manufacture, sale, possession, or registration of any firearm or dangerous or deadly weapon.

3. Any offense involving the use of violence upon the person of another.

4. Any offense involving theft, fraud, dishonesty, or deceit.

5. Any offense involving the manufacture, sale, possession, or use of any controlled substance as defined by the California Health and Safety Code Section 11007 as said definition now reads or may hereafter be amended to read.

F. The applicant, or any officer, employee, or agent thereof who will have access and control over firearms, is an unlawful user of any controlled substance as defined by the California Health and Safety Code Section 11007 as said definition now reads or may hereafter be amended to read, or is an excessive user of alcohol to the extent that such use would impair their fitness to be a dealer in firearms.

G. The applicant, or any officer, employee, or agent thereof who will have access and control over firearms, has been adjudicated as a mental defective, or has been committed to a mental institution, or suffers from any psychological disturbance which would impair their fitness to be a dealer in firearms.

H. The operation of the business as proposed will not comply with all applicable federal, state, and local laws.

I. The applicant, or any officer, employee, or agent thereof, proposes to operate the business in a location where such use is prohibited by the City of Berkeley Zoning Ordinance or has not been approved by the Zoning Officer or the Zoning Adjustments Board.

J. The applicant, or any officer, employee, or agent thereof, is not the owner of record of the real property at which the business is to be conducted, nor has a lease, license, or other entitlement to operate such business at such location and the written consent of the owner of record of such real property.

K. The premises at which such business is to be operated do not contain the security measures required by 9.72.070 of this chapter.

L. Any other grounds for denial that exist as specified in the Berkeley Municipal Code. (Ord. 6519-NS, 1999)

Every firearm that is kept in the permitted place of business shall be stored using one of the following methods set forth in Penal Code Section 12071(b)(14). Failure to fully comply with the requirements of one of these methods is sufficient cause for denial or revocation of the law enforcement permit by the Chief of Police. The three permitted methods are detailed in subsections (A), (B) and (C), respectively:

(A)Store the firearm in a secure facility that is part of, or that constitutes, the permittee’s business premises. A secured facility means a building that meets all of the following specifications, pursuant to Penal Code Section 12071(c)(3):

(1)All perimeter doorways shall meet one of the following:

(a)A windowless steel security door equipped with both a dead bolt and a doorknob lock; or

(b)A windowed metal door that is equipped with both a deadbolt and a doorknob lock. If the window has an opening of five inches or more measured in any direction, the window shall be covered with steel bars of at least one-half inch diameter or metal grating or at least nine gauge affixed to the exterior or interior of the door; or

(c)A metal grate that is padlocked and affixed to the permittee’s premises independent of the door and door frame;

(2)All windows are covered with steel bars;

(3)Heating, ventilating, air-conditioning and service openings are secured with steel bars, metal grating, or an alarm system;

(4)Any metal grates have spaces no larger than six inches wide measured in any direction;

(5)Any metal screens have spaces no larger than three inches wide measured in any direction;

(6)All steel bars shall be no further than six inches apart.

(B)Secure the firearm with a hardened steel rod or cable of at least one-eighth inch in diameter through the trigger guard of the firearm. The steel rod or cable shall be secured with a hardened steel lock that has a shackle. The lock and shackle shall be protected or shielded from the use of a bolt cutter and the rod or cable shall be anchored in a manner that prevents the removal of the firearm from the premises.

(C)Store the firearm in a locked fireproof safe or vault in the permittee’s business premises. (Ord. 6519-NS, 1999)

Any permit issued pursuant to this chapter shall be subject to all of the following conditions, the breach of any of which shall be sufficient cause for revocation of the permit by the Chief of Police and denial of any application to renew a permit or to obtain a future permit:

A. The business shall be carried on only in the building located at the street address shown on the City of Berkeley permit;

B. The permittee shall observe all federal, state and local constraints on the operation of the permitted business including but not limited to California Penal Code Sections 12072(b), 12073, 12074, 12077, and 12082, to the extent that the provisions remain in effect;

C. The permittee shall keep complete and current records of all firearms transactions. In addition to the requirements in California Penal Code Sections 12073, 12076, and 12077, permittee must also keep a complete current inventory of all firearms in stock. This inventory shall include an entry for each weapon, with the classification, serial numbers, and any other information that is necessary or helpful in tracking the weapon;

D. Whenever prospective purchasers of firearms or supplies therefor conduct themselves in a manner which would lead a reasonable person to conclude that the purchasers may be intending to use the firearms to harm themselves or others, the permittee, or any officer, employee, or agent thereof who will have access and control over firearms, shall inquire further into the reasons for such purchases. If the inquiry provides evidence which would confirm to a reasonable person, under similar circumstances, that the purchasers intend to use the firearms to harm themselves or others, the permittee, officer, agent or employee thereof shall decline to sell such prospective purchasers the firearms or supplies;

E. The permittee consents to the City’s inspection of the business premises and records in order for the City to establish continued compliance with the terms of the permit;

F. The permit shall not become effective until the permittee has obtained all other permits required by federal, state or local law including but not limited to a business license and zoning and building permits;

G. The law enforcement permit, or a certified copy of it, shall be displayed on the premises where it can be easily seen;

H. The permittee shall not permit any person under 18 years of age to enter or remain within the premises without being accompanied by their parent or legal guardian where firearm sales activity is the primary business performed at the site;

I. The permittee shall mail or deliver a copy of each Dealer Record of Sale (DROS) form to the Chief of Police within seven days of the transfer of any firearm. (Ord. 6764-NS § 1, 2003; Ord. 6519-NS, 1999)

All permits issued pursuant to this chapter shall expire one year after the date of issuance or automatically upon revocation or expiration of permittee’s Federal Firearms License, whichever is earlier. Such permits may be renewed by the Chief of Police for additional periods of one year upon the approval of an application for renewal by the Chief of Police and payment of the renewal fee established by City Council resolution. A completed application for renewal shall be submitted to the Chief of Police at least 45 days prior to the expiration of the current permit or else the permit shall expire at the expiration of its term. Renewal of the permit is contingent upon all the terms and conditions of the original application and permit, as detailed in this chapter. The renewal application includes, but is not limited to, a new investigation by the Chief of Police and background verification for the applicant and any employee, officer, or agent of the applicant. If the application is submitted in a timely manner, the permit to operate shall continue in effect until two weeks after the Chief of Police mails written notice to the applicant denying renewal. The City of Berkeley permit shall be granted conditionally upon the applicant providing proof of a valid Federal Firearms License; the permit will not become effective until applicant shows proof of compliance with all applicable California state regulatory laws. (Ord. 6519-NS, 1999)

The assignment or attempt to assign any permit issued pursuant to this chapter is unlawful and any such assignment or attempt to assign a permit shall render the permit null and void. (Ord. 6519-NS, 1999)

In addition to any other basis for revocation set forth in this chapter, any circumstances constituting grounds for denial shall also constitute grounds for revocation. Such revocation shall only occur after notice and an opportunity to respond in writing to the intention to revoke and written notice of the revocation. (Ord. 6519-NS, 1999)

No permit shall be issued or continued pursuant to this chapter unless there is in full force and effect a policy of insurance in such form as the City deems proper, executed by an insurance company approved by the City whereby the applicant or permittee is insured against liability for damage to property and for injury to or death of any person as a result of the theft, sale, transfer, or lease, or offering or exposing for sale, transfer, or lease, of any firearm. The minimum liability limits shall not be less than one million dollars for damage to or destruction of property in any one incident, and one million dollars for the death or injury to any one person. Such policy of insurance shall contain an endorsement providing that the policy will not be canceled until notice in writing has been given to the City, addressed in care of the Chief of Police, 2171 McKinley Street, Berkeley, California, 94703, at least 30 days immediately prior to the time such cancellation becomes effective. Upon expiration of any such policy and if no additional insurance has been secured prior to the expiration thereof in the manner provided for the initial securing of a permit under this chapter, the permit shall be deemed canceled without further notice or opportunity to be heard. (Ord. 6519-NS, 1999)

Any and all investigating officials of the City shall have the right to enter the building designated in the permit from time to time during regular business hours to make reasonable inspections to observe and enforce compliance with building, mechanical, fire, electrical, plumbing, and health regulations, as well as the provisions of this chapter. A police investigator may conduct compliance inspections to ensure conformance with all federal, state, and local laws, and the provisions of this chapter. Permittees shall maintain all records, documents, and firearms in a manner and place accessible for inspection by Police Department personnel. (Ord. 6519-NS, 1999)

Any person engaging in the business of selling, transferring, or leasing, or advertising for sale, transfer, or lease, or offering or exposing for sale, transfer, or lease, any firearms on the effective date of this chapter shall have a period of 60 days after such effective date to comply with the provisions of this chapter. Nothing in this section shall, however, require the City to delay enforcement of any other provision of law. (Ord. 6519-NS, 1999)

If any article, section, subsection, sentence, clause or phrase, of this chapter is for any reason declared unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or the effectiveness of the remaining portions of this chapter or any part thereof. The City Council hereby declares that it would have adopted this chapter notwithstanding the unconstitutionality, invalidity or ineffectiveness of any one or more of its articles, sections, subsections, sentences, clauses or phrases. (Ord. 6519-NS, 1999)

Any person who conducts a business in violation of this chapter shall be guilty of a misdemeanor. (Ord. 6519-NS, 1999)