Chapter 5.26 — FIREARMS DEALERS

Footnotes:

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Editor's note— Ord. No. 12994, adopted February 16, 2010, amended Chapter 5.26 in its entirety to read as herein set out. Formerly, Chapter 5.26 pertained to similar subject matter, and derived from the prior code, §§ 2-10.1—2-10.19; Ord. No. 11947, § 1, adopted 1996; Ord. No. 12211, § 1, adopted 2000, and Ord. No. 12212, § 1, adopted 2000.

This Chapter shall be known as the firearms dealer or ammunition seller permit ordinance.

(Ord. No. 12994, 2-16-2010)

The City Council finds that:

A.

The number of unlicensed firearms dealers within the City far exceeds the number of legitimate licensed dealers; and

B.

Firearms used in violent crimes have been traced by the police department to firearms dealers operating without permits within the City; and

C.

Firearms are used in nearly 80 percent of the homicides committed in the City; and

D.

A considerable proportion of the firearms used in violent crimes were obtained illegally from unlicensed firearms dealers; and

E.

Since June of 1990, Highland Hospital in Oakland has treated an average of 32 Oakland residents a month for gunshot wounds, an average of one a day; and

F.

The average cost for treatment of a gunshot wound is $33,000.00, most of the cost borne by taxpayers. Nearly 400 gunshot wounds were treated at Highland Hospital in 1991; and

G.

The widespread availability of illegally obtained firearms has resulted in a rise in the number of shooting incidents involving minors; and

H.

Because of the range and effectiveness of firearms, the use of firearms in violent crimes is more likely to lead to the death or injury of bystanders.

(Ord. No. 12994, 2-16-2010)

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

"Ammunition" means projectiles, cartridge cases, primers, bullets, or propellant powder designed for use in any firearm, and any component thereof, but shall not include blank cartridges or ammunition that can be used solely in an "antique firearm" as that term is defined in section 921(a)(16) of Title 18 of the United States Code.

"Engaged in the business" means the conduct of a business by the selling, transferring, or leasing of any firearm or ammunition; or the preparation for such conduct of business as evidenced by the securing of applicable federal or State licenses; or the holding of one's self out as engaged in the business of selling, transferring, or leasing of any firearm or ammunition, or the selling, transferring, or leasing of firearms or ammunition in quantity, in series, or in individual transactions, or in any other manner indicative of trade.

"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.

"Firearms dealer" means a person engaged 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 firearm.

"Permit" means a license to sell or transfer firearms or ammunition under this Chapter.

"Permittee" means a person or entity licensed to sell or transfer firearms or ammunition under this Chapter.

"Person" means natural person, association, partnership, firm, or corporation.

(Ord. No. 12994, 2-16-2010)

It is unlawful for any person, partnership, cooperative, corporation, firm, or association to engage in the business of operating or managing any business which sells, transfers, leases, or offers or advertises for sale, transfer, or lease, any firearm or ammunition without first obtaining a permit from the Chief of Police of the Oakland Police Department.

(Ord. No. 12994, 2-16-2010)

The permit, or a certified copy of it, shall be displayed in a prominent place on the business premises where it can be easily seen by those entering the premises.

(Ord. No. 12994, 2-16-2010)

An applicant for a permit under this Chapter shall file with the Chief of Police a sworn application in writing, on a form to be furnished by the City. The applicant shall provide all information requested, including proof of compliance with all applicable federal, State, and local laws when required by the Chief of Police, or the application will not be deemed complete. The application shall be accompanied by a nonrefundable fee as set forth in the City municipal license/permit fee schedule. To the extent practicable, the fee amount shall reflect the cost of enforcing the requirements of this Chapter.

(Ord. No. 12994, 2-16-2010)

The Chief of Police shall conduct an appropriate investigation to determine for the protection of the public safety whether the permit may be issued. The Chief of Police may require additional information of an applicant deemed necessary to complete the investigation.

(Ord. No. 12994, 2-16-2010)

The Chief of Police shall deny the issuance of a permit, and has the authority to revoke an existing permit, when any of the following conditions exist:

A.

The applicant, or an officer, employee, or agent thereof, is under the age of 21 years.

B.

The applicant is not licensed as required by all applicable federal, State and local laws.

C.

The applicant, or an officer, employee, or agent thereof, has had a similar type permit previously revoked or denied for good cause within the immediately preceding two years.

D.

The applicant, or an officer, employee, or agent thereof, has made a false or misleading statement of a material fact or omission of a material fact in the application for a permit.

E.

The applicant, or an officer, employee, or agent thereof, has been convicted of:

Any offense so as to disqualify the applicant, or an officer, employee, or agent thereof, from owning or possessing a firearm or ammunition under applicable federal, State, and local laws;

Any offense relating to the manufacturing, sale, possession, use, or registration of any firearm, ammunition or dangerous or deadly weapon;

Any offense involving the use of force or violence upon the person of another;

Any offense involving theft, fraud, dishonesty, or deceit;

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

F.

The applicant, or an officer, employee, or agent thereof, is an unlawful user of any controlled substance as defined by the California Health & Safety Code 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 his or her fitness for a permit under this Chapter.

G.

The applicant, or an officer, employee, or agent thereof, has been adjudicated as a mental defective, or has been committed to a mental institution, or suffers from any psychological disturbance which would impair his or her fitness for a permit under this Chapter.

H.

The operation of the business as proposed will not comply with all applicable federal, State, or local laws.

I.

The applicant, or an officer, employee, or agent thereof, proposes to operate in the following locations:

Within a zoning district in which general retail sales commercial activities are not a permitted or conditional use;

Within a zoning district in which residential use is the principal permitted or maintained use, or within 1,000 feet of the exterior limits of any such district;

Within 1,000 feet of a public or private day care center or day care home, or within 1,000 feet of any elementary, junior high, or high school whether public or private;

On or within 1,500 feet of the exterior limits of any other premises occupied by a dealer in firearms or ammunition, an adult entertainment establishment or a hot tub/sauna establishment.

J.

The applicant, or an officer, employee, or agent thereof does not have and or cannot provide evidence of a possessory interest in the property at which the proposed business will be conducted.

K.

Any ground for denial exists as specified in this Code.

(Ord. No. 12994, 2-16-2010)

In order to discourage the theft of firearms or ammunition stored on the premises, any business licensed under this Chapter must adhere to security regulations promulgated by the Chief of Police pursuant to the authority provided by this Chapter. Security measures shall include but not be limited to:

A.

The provision of secure locks, windows and doors, storage lockers, adequate lighting, video surveillance and alarm systems installed and maintained by an alarm company operator licensed pursuant to the Alarm Company Act, Business & Professions Code Sections 7590 et seq. with additional requirements as specified by the Chief of Police;

B.

Storing of all firearms and ammunition not principally used in handguns on the premises out of the reach of customers in secure, locked facilities, so that access to firearms and ammunition not principally used in handguns shall be controlled by the dealer or employees of the dealer, to the exclusion of all others. Ammunition principally used in handguns shall be stored pursuant to the requirements of Penal Code section 12061 (a)(2).

(Ord. No. 12994, 2-16-2010)

All permits issued pursuant to this Chapter shall be in the form prescribed by the Attorney General of the State of California.

(Ord. No. 12994, 2-16-2010)

All permits issued pursuant to this Chapter shall expire one year after the date of issuance; provided, however, that 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. Such renewal application must be received by the Chief of Police, in completed form, no later than 45 days prior to the expiration of the current permit.

(Ord. No. 12994, 2-16-2010)

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. No. 12994, 2-16-2010)

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. Any permit issued pursuant to this Chapter shall be subject to such additional conditions as the Chief of Police finds are reasonably related to the purpose of this Chapter.

A.

The business shall be carried on only in the building located at the street address shown on the license.

B.

The permittee shall comply with all federal, State, and local laws relating to the sale of firearms or ammunition.

C.

The permittee shall post conspicuously within the licensed premises the following warning in block letters not less than one inch in height as per Penal Code Section 12071(b)(11):

IF YOU LEAVE A LOADED FIREARM WHERE A CHILD OBTAINS AND IMPROPERLY USES IT, YOU MAY BE FINED OR SENT TO PRISON

D.

Persons Under the Age of 18 Excluded from Establishments Displaying Firearms. No person who maintains or operates any place of business in which firearms are kept, displayed or offered in any manner, sold, furnished or transferred shall permit the entry into the premises of persons under the age of 18 years, unless all firearms are completely and wholly kept, displayed or offered within a separate room or enclosure to which persons under the age of 18 years are excluded. Each entrance to such a room or enclosure shall be signposted in block letters not less than one inch in height to the effect that firearms are kept, displayed or offered in such room or enclosure and that persons under the age of 18 are excluded.

A person who maintains or operates any place of business that openly displays firearms without providing for separate enclosures therefor, must prevent entry into the premises of persons prohibited by age under State law from purchasing firearms. The entrance to the establishment shall be signposted in block letters not less than one inch in height to the effect that firearms are kept, displayed or offered on the premises and that persons under the age of 18 are excluded.

The person who maintains or operates any place of business in which firearms are kept, displayed or offered in any manner, sold, furnished or transferred, and his employees, agents, and persons acting under his authority, are each and together separately and jointly responsible for requiring bona fide evidence of identity of persons to prevent the entry of persons not permitted to purchase a firearm under State law by reason of age. Bona fide evidence of identity of the person is a document issued by a federal, State, county, or municipal government, or subdivision or agency therefor, including, but not limited to, a motor vehicle operator's license or an identification card issued to a member of the Armed Forces, which contains the name, date of birth, description, and picture of the person.

E.

Persons Under the Age of 21 Excluded from Establishments Displaying Concealable Firearms. No person who maintains or operates any place of business in which concealable firearms are kept, displayed or offered in any manner, sold, furnished or transferred shall permit the entry into the premises of persons under the age of 21 years, unless all concealable firearms and concealable firearms accessories are completely and wholly kept, displayed or offered within a separate room or enclosure to which persons under the age of 21 years are excluded. Each entrance to such a room or enclosure shall be signposted in block letters not less than one inch in height to the effect that firearms are kept, displayed or offered in such room or enclosure and that persons under the age of 21 are excluded.

A person who maintains or operates any place of business that openly displays concealable firearms without providing for separate enclosures therefor, must prevent entry into the premises of persons prohibited by age under State law from purchasing concealable firearms. The entrance to the establishment shall be signposted in block letters not less than one inch in height to the effect that firearms are kept, displayed or offered on the premises and that persons under the age of 21 are excluded.

The person who maintains or operates any place of business in which concealable firearms are kept, displayed or offered in any manner, sold, furnished or transferred, and his employees, agents, and persons acting under his authority, are each and together separately and jointly responsible for requiring bona fide evidence of identity of persons to prevent the entry of persons not permitted to purchase concealable firearms under State law by reason of age. Bona fide evidence of identity of the person is a document issued by a federal, State, county, or municipal government, or subdivision or agency therefor, including, but not limited to, a motor vehicle operator's license or an identification card issued to a member of the Armed Forces, which contains the name, date of birth, description, and picture of the person.

F.

Persons Prohibited from Possessing Firearms and/or Ammunition Excluded from Establishments Displaying Firearms and/or Ammunition. Persons prohibited from possessing or purchasing firearms pursuant to California Penal Code Section 12021 and 12021.1 or possessing or purchasing ammunition pursuant to Penal Code Section 12316(b), or otherwise prohibited by federal, state or local law from possessing or

purchasing firearms, shall not enter into or loiter about any firearms dealership, defined as a place of business in which firearms are openly kept, displayed or offered in any manner, sold, furnished or transferred pursuant to Penal Code Section 12070. Each entrance to such an establishment shall be signposted in block letters not less than one inch in height to the effect that persons prohibited from possessing firearms pursuant to Penal Code Section 12021 are excluded from the premises.

When a firearms dealer displays or offers for sale firearms within a separate room or enclosure that segregates the firearms, and firearms related accessories (including but not limited to, ammunition, ammunition clips, and holsters) from other general merchandise, each entrance to such a separate room or enclosure shall be signposted in block letters not less than one inch in height to the effect that persons prohibited from possessing firearms pursuant to Penal Code Section 12021 are excluded from entering the separate rooms or enclosures.

Any dealer 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 firearm and/or ammunition within the City who knowingly violates the provisions of Subsection G., or fails to adhere to the notice provisions of Subsection G., shall be subject to the penalty provisions of this Chapter, including but not limited to suspension and/or revocation of his or her permit to sell firearms.

Any person prohibited from possessing firearms pursuant to Penal Code Section 12021 who enters into or loiters about firearms dealership in Oakland that has been properly posted pursuant to this Section is guilty of a misdemeanor.

G.

Inventory Reports. Within the first five business days of April and October of each year, the permittee shall cause a physical inventory to be taken that includes a listing of each firearm held by the permittee by make, model, and serial number, together with a listing of each firearm the permittee has sold since the last inventory period. In addition, the inventory shall include a listing of each firearm lost or stolen that is required to be reported pursuant to Penal Code Section 12071(b)(13). Immediately upon completion of the inventory, the permittee shall forward a copy of the inventory to the address specified by the Chief of Police, by such means as specified by the Chief of Police. With each copy of the inventory, the permittee shall include an affidavit signed by an authorized agent or employee on behalf of the permittee under penalty of perjury stating that within the first five business days of that April or October, as the case may be, the signer personally confirmed the presence of the firearms reported on the inventory. The permittee shall maintain a copy of the inventory on the premises for which the law enforcement permit was issued for a period of not less than five years from the date of the inventory and shall make the copy available for inspection by federal, State or local law enforcement upon request.

H.

Background Investigation and Verification. Employees, agents or supervisors of the applicant or permittee may not have access to or control over workplace firearms or ammunition until those persons have undergone a law enforcement investigation and background verification process as required by the Chief of Police. A new law enforcement investigation and background verification of such persons must be conducted each time the permittee renews his or her permit, or applies for a new permit. The Chief of Police shall deny the issuance or renewal of a law enforcement permit, or shall revoke an existing permit, if

the applicant or permittee allows any employee, agent or supervisor to have access to or control over workplace firearms or ammunition prior to the completion of the law enforcement investigation and background verification of those persons, or if those persons have not undergone the law enforcement investigation and background verification process within the last 365 days.

(Ord. No. 12994, 2-16-2010)

In addition to any provisions constituting grounds for denial shall also constitute grounds for revocation.

(Ord. No. 12994, 2-16-2010)

A.

Any person whose application for a permit under this Chapter has been denied, or whose permit has been revoked pursuant to the provisions of this Chapter, shall have the right to a hearing before the Chief of Police or a designee prior to final denial or prior to revocation.

B.

The Chief of Police shall give the applicant or permittee written notice of the intent to deny the application or to revoke the permit. The notice shall set forth the ground or grounds for the Chief of Police's intent to deny the application or to revoke the permit, and shall inform the applicant or permittee that he or she has ten days from the date of receipt of the notice to file a written request for a hearing. The application may be denied or the permit revoked if a written hearing request is not received within the ten-day period.

C.

If the applicant or permittee files a timely hearing request, the Chief of Police shall set a time and place for the hearing. All parties involved shall have the right to offer testimonial, documentary and tangible evidence bearing on the issues, to be represented by counsel, and to confront and cross-examine any witnesses against them. The decision of the Chief of Police whether to deny the application or revoke the permit is final and nonappealable.

(Ord. No. 12994, 2-16-2010)

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 Attorney deems proper, executed by an insurance company approved by the City Attorney 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 sale, transfer or lease, or advertising for sale, transfer, or lease, or offering or exposing for sale, transfer, or lease, any firearm. The minimum liability limits shall not be less than $1,000,000.00 for damage to or destruction of property in any one incident, and $1,000,000.00 for the death or injury to any one person; provided, however, that additional amounts may be required by the City Attorney if deemed necessary.

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, 455 - 7th Street, Oakland, California, 94607, at least 30 days immediately prior to the time such cancellation becomes effective. Further, such policy of insurance shall name the City, its officers, agents, and employees as additional insureds. Additionally, applicants and permittees shall indemnify, defend, and hold harmless the City, its officers, agents, and employees, from claims arising from the negligence of the applicant or permittee.

No permit shall be issued or continued pursuant to this Chapter unless the applicant agrees 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, the applicant's officers, employees, agents and/or supervisors, or if the business is a corporation, partnership or other entity, the officers, directors or partners.

(Ord. No. 12994, 2-16-2010)

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, or health regulations, and provisions of this Chapter. A police investigator may conduct compliance inspections from time to time during regular business hours to insure conformance to all federal, State, and local law, and all provisions of this Chapter.

(Ord. No. 12994, 2-16-2010)

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 firearm or ammunition 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.

(Ord. No. 12994, 2-16-2010)

A.

If the dealer violates any federal, State or local county or City law, the Chief of Police may immediately suspend the right of the dealer to sell firearms or ammunition. If the violation results in a criminal charge filed in court by a federal, State, or county District Attorney, such permit to sell firearms or ammunition may be suspended until the case is adjudicated in a court of law. If the person is convicted, such permit must be immediately revoked.

B.

Notice of suspension shall be mailed to the person(s) who made application for the permit and shall be delivered to the address listed on the permit.

C.

In addition to any other penalty or remedy, the City Attorney shall report any person or entity whose law enforcement permit is suspended or revoked pursuant to this Article to the Bureau of Firearms of the California Department of Justice and the Bureau of Alcohol, Tobacco, Firearms & Explosives within the U.S. Department of Justice.

(Ord. No. 12994, 2-16-2010)

This Chapter shall be enforced to the full extent of the authority of the City. If any section, subsection, paragraph, sentence or word of this Chapter is deemed to be invalid or beyond the authority of the City, either on its face or as applied, the invalidity of such provision shall not affect the other sections, subsections, paragraphs, sentences, or words of this Chapter, and the applications thereof; and to that end the sections, subsections, paragraphs, sentences and words of this Chapter shall be deemed severable.

(Ord. No. 12994, 2-16-2010)