BILL ANALYSIS
SB 585
Page 1
Date of Hearing: June 30, 2009
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Juan Arambula, Chair
SB 585 (Leno) - As Amended: May 28, 2009
SUMMARY : Authorizes up to five events at which firearms or
ammunition may be sold at the Cow Palace per year until said
events are replaced with non-firearm or non-ammunition events.
Specifically, this bill :
1)Prohibits any officer, employee, operator, or any lessee of
District 1-A to contract for, authorize, or allow an event at
which any firearm or ammunition is sold on the property or in
the buildings that comprise the Cow Palace property in San
Mateo County and the City and County of San Francisco or any
successor or additional property owned, leased, or otherwise
occupied or operated by the District except as specified.
2)Provides that commencing January 1, 2010, no more than five
events at which firearms or ammunition are sold shall be
authorized or allowed per year on Cow Palace property. The
District shall phase out those events by replacing them with
non-firearm or non-ammunition related events and shall add no
event that increases the number of these events at the Cow
Palace property from the number in the preceding year.
3)Defines a "firearm" as the following:
a) Any device, designed to be used as a weapon, from which
is expelled through a barrel, a projectile by the force of
any explosion or other form of combustion.
b) The term "firearm" includes the frame or receiver of the
weapon.
c) A "firearm" also shall include any rocket, rocket
propelled projectile launcher, or similar device containing
SB 585
Page 2
any explosive or incendiary material whether or not the
device is designed for emergency or distress signaling
purposes.
4)Defines "ammunition" to include assembled ammunition for use
in a firearm and components of ammunition including smokeless
and black powder, and any projectile capable of being fired
from a firearm with deadly consequence.
EXISTING LAW :
1)Defines "State-designated fairs" as specified fairs that may
receive financial support or are otherwise governed pursuant
to specified sections of law. The district agricultural
associations and their locations are as follows: ". . . (2)
District 1-A, held in the City of San Francisco". (Food and
Agriculture Code Sections 3851 and 3853.)
2)Provides that an association, with the approval of both the
Department of Food and Agriculture and the Department of
General Services, may engage in a variety of specified
commercial activities, including lease, let, or grant licenses
for the use of its real estate or personal property, or any
portion of that property, to any person or public body for
whatever purpose may be approved by the board. (Food and
Agriculture Code Section 4051.)
3)Punishes any person who brings or possesses within any state
or local public building or at any meeting required to be open
to the public, a firearm, is guilty of a public offense
punishable by imprisonment in a county jail for not more than
one year, or in the state prison. The aforementioned shall not
apply to a person who, for the purpose of sale or trade,
brings any weapon that may otherwise be lawfully transferred,
into a gun show conducted pursuant to existing law. [Penal
Code Section 171b(a) and (b)(7)(A).]
4)Requires the sale, loan or transfer of a firearm in
California, including private party transactions, and
including transactions at gun shows, must be conducted through
a state-licensed firearms dealer or through a local sheriff's
department in counties of less than 200,000 in population. A
10-day waiting period, background check, and Handgun Safety
Certificate for handgun transfers are required prior to
delivery of the firearm. Firearms dealers are allowed to
SB 585
Page 3
conduct business only in their licensed premises, sell their
gun inventory at gun shows or events, or process private sales
or transfers of any firearms at gun shows or events. Handgun
purchases are limited to no more than one per 30-day period.
Transferees must be California residents, no person under age
21 may buy a handgun, and no person under 18 years of age may
buy a rifle or shotgun. (Penal Code Sections 12071, 12072,
12082, and 12084.)
5)Provides for a number of specified requirements on gun show
operators, attendees at gun shows, and the Department of
Justice (DOJ). (Penal Code Section 12071.1 and 12071.2.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Background : According to information provided by the author,
"The Board of Supervisors for the City and County of San
Francisco and the County of San Mateo have adopted resolutions
on unanimous votes to seek Legislative help to end the gun
shows at the Cow Palace. The state-owned facility straddles
both counties, and is located near the Sunnydale public
housing project and the communities of Visitacion Valley,
Bayview-Hunters Point and the Mission District. These
communities have been plagued by violence for many years.
But, unlike similar facilities owned by the county in which
they are located, the Cow Palace is owned and operated by the
California Department of Agriculture's Division of Fairs and
Expositions. For this reason, local residents have no local
control over the types of events that take place at the
facility.
"Because the Cow Palace is a state-owned facility, legislation
is needed to provide the neighboring residents and communities
with local control equivalent to communities with county-run
facilities. SB 585 would provide the communities of San
Francisco and San Mateo with an outcome that the counties of
Alameda, Marin and Los Angeles have been able to implement at
similar locally-operated facilities."
2)Current Cow Palace Usage : According to a San Francisco
Chronicle article, "The Cow Palace was opened in 1941 and is
an agency of the California Food and Agricultural Department's
Division of Fairs and Expositions. Originally built to serve
SB 585
Page 4
as a livestock pavilion, it now holds 100 events annually,
including four to six gun shows as well as more innocuous
activities including rodeos, dog shows, circuses and Disney on
Ice.
"San Francisco . . . adopted legislation banning gun shows on
city and county property. Other counties, including Alameda,
Marin and Los Angeles, have passed similar bans. But because
the Cow Palace sits on state-owned land between San Francisco
and San Mateo County, local governing bodies don't have
authority over its gun shows." [Knight, SF Mayor, Police
Chief Call for Gun-Show Ban at Cow Palace, San Francisco
Chronicle (Aug. 10, 2007) p. B-1.]
3)Existing Regulations of Gun Shows : Existing law requires that
firearms transactions must take place through a licensed
firearms dealer and involves a background check, a 10-day
waiting period before delivery of the firearm to the
transferee, and a Handgun Safety Certificate possessed by the
transferee if the firearm is a handgun.
In addition, AB 295 (Corbett) Chapter 247, Statutes of 1999,
amended the law pertaining to gun shows and added the Gun Show
Enforcement and Security Act of 2000 which includes a number
of requirements for producers that promote gun shows. To
obtain a certificate of eligibility from the DOJ, a promoter
must certify that he or she is familiar with existing law
regarding gun shows; obtain at least $1 million of liability
insurance; provide an annual list of gun shows the applicant
plans to promote; pay an annual fee of $85; make available to
local law enforcement a complete list of all entities that
have rented any space at the show; submit not later than 15
days before the start of the show an event and security plan;
submit a list to DOJ of prospective vendors and designated
firearms transfer agents who are licensed dealers; provide
photo identification of each vendor and vendor's employee;
prepare an annual event and security plan; and require all
firearms carried onto the premises of a show to be checked,
cleared of ammunition, secured in a way that they cannot be
operated, and have an identification tag or sticker attached.
AB 295 also provided for a number of penalties for a gun show
producer's willful failure to comply with the specified
requirements.
SB 585
Page 5
4)The Sale of Guns is Commercial Speech : The Supreme Court has
defined commercial speech as speech that "does no more than
propose a commercial transaction." [Virginia State Bd. of
Pharmacy v. Virginia Citizens Consumer Council (1976) 425 U.S.
748, 762; Board of Trustees of the State Univ. of N.Y. v. Fox
(1989) 492 U.S. 469, 482.] An offer to sell firearms or
ammunition is speech that "does no more than propose a
commercial transaction. Such an offer is, therefore,
commercial speech within the meaning of the First Amendment."
[Nordic v. Santa Clara County (9th Cir. Cal. 1997) 110 F.3d
707, 710.]
To survive First Amendment scrutiny, a restriction on commercial
speech must: (a) concern lawful activity; (b) be truthful;
(c) directly advance a substantial governmental interest; and
(d) be no more extensive than necessary to serve that
interest. [See Central Hudson Gas & Elec. Corp. v. Public
Serv. Comm'n of New York (1980) 447 U.S. 557; see also Greater
New Orleans Broadcasting Ass'n. Inc. v. United States (1999)
527 U.S. 173 (applying the Central Hudson test to a commercial
speech case); Pearson v. Edgar (7th Cir. 1998) 153 F.3d 397
(same).]
a) Firearm Ban on County Property Through Contract : The
Ninth Circuit of the United States Court of Appeals,
Nordyke v. Santa Clara County (9th Cir. Cal. 1997) 110 F.3d
707, held that Santa Clara County violated the First
Amendment to the United States Constitution by preventing
the operation of gun shows in Santa Clara County. The
County, which owned the Santa Clara Fairgrounds, had
inserted a clause in a lease contract to attempt to prevent
the lessee from subleasing the fairgrounds to gun shows.
Thus, gun shows were not illegal. The County had attempted
to prevent them by a contract clause. The Court explained
that since guns were legal to sell, an offer to sell a gun
at a gun show is a constitutionally protected exercise of
free expression under the First Amendment.
However, the Court explained, if the County had made the sale
of guns illegal (and assuming the County had the authority
to do so), it would not violate the First Amendment to
prohibit gun shows. A total ban on gun shows on county
property is within the scope of a county's authority.
"Under California Government Code section 23004(d), a
county is given substantial authority to manage its
SB 585
Page 6
property, including the most fundamental decision as to how
the property will be used and that nothing in the gun show
statutes evince intent to override that authority. The gun
show statutes do not mandate that counties use their
property for such shows. If the county does allow such
shows, it may impose more stringent restrictions on the
sale of firearms than state law prescribes." (Id. at 766.)
At the time of the Ninth Circuit decision, there was no
local ordinance prohibiting gun shows.
b) County Ordinances May Ban the Sale of Firearms on County
Property : In a companion case, Great W. Shows, Inc. v.
County of L.A. (2002) 27 Cal.4th 853, an operator of gun
shows brought an action in federal district court against
Los Angeles County seeking an injunction against
enforcement of a county ordinance prohibiting the sale of
firearms and ammunition on county property. The California
Supreme Court held that state law neither preempted the
county ordinance, nor did it compel counties to allow their
property to be used for gun shows where guns and ammunition
were sold. (Id. at 861.) The Legislature has preempted
discrete areas of gun regulation rather than the entire
field of gun control. (Id. at 861.) " . . . [S]tate law
tends to concentrate on specific areas, leaving unregulated
other substantial areas relating to the control of
firearms, indicates an intent to permit local governments
to tailor firearms legislation to the particular needs of
their communities." (Suter v. City of Lafayette (1997) 57
Cal.App.4th 1109, 1119.) Government Code Section 23004(d)
authorizes counties to manage their own property, and that
includes deciding how the property may be used, whether
that decision is embodied in a contract with a private
party, in an ordinance, or in some combination of the two.
(Great W. Shows, Inc., supra, 27 Cal.4th at 871.)
c) Cow Palace is Situated on State-Owned Land : Both Great
Western and Nordyke stand for a narrow proposition that
state gun show regulations - which expressly contemplate
additional local regulation - do not preclude local
governments from banning the sale or possession of firearms
and ammunition at gun shows on county-owned public
property. The Cow Palace is not county-owned public
property, thus the Legislature must enact a law to
specifically ban gun shows. County and or city bans of gun
shows on the aforementioned property are unenforceable.
SB 585
Page 7
5)Impairment of Contracts : Notwithstanding the ability of
counties and the state to regulate firearms and ammunition,
this bill prohibits the fair district which oversees the Cow
Palace property from allowing more than five events per year
involving the sale of firearms or ammunition at the Cow
Palace. To the extent that the Cow Palace property is used as
a site for gun shows by the fair district and to the extent
that the fair management has more than five ongoing contracts
that extend beyond January 1, 2010 when this bill would take
effect, it might be asserted that existing contracts cannot be
voided by this bill because of the impairment of contracts
clause of the state and federal constitutions. (U.S. Const.,
art I, 10; Cal. Const., art. I, 9.)
6)Argument in Support : According to the City and County of San
Francisco , "San Francisco has invested heavily both in public
safety and front-end prevention efforts to keep its streets
safe. It continues to bring the best law enforcement
practices and technology to the City. One aspect of this
effort is a local ordinance banning gun shows on City and
County property. Unfortunately, this ordinance does not apply
to one venue for large public gatherings that still hosts gun
shows. This is the Cow Palace, which is owned by the State.
Since the State Department of Agriculture's Division of Fairs
and Expositions owns and manages the Cow Palace the only way
to close this 'loophole' in the local policy is through state
legislation.
"The neighborhoods adjacent to the Cow Palace have had more than
their share of gun violence over the years and the residents
believe that the gun shows contribute to the proliferation of
available weapons through the illegal sale of firearms. They
have continually pleaded with local leaders to remedy the
situation.
"SB 585 would address this concern by phasing out the sale of
firearms and ammunition at the Cow Palace. It would provide
the same protections to residents living near the Cow Palace
as are currently afforded to those residing elsewhere in the
City."
7)Argument in Opposition : According to the National Shooting
Sports Foundation, Inc. , "When a person buys a firearm at a
California gun show, the transaction is the same as if it was
SB 585
Page 8
purchased at a licensed firearms dealer's regular place of
business. All gun show firearms sales, by existing law, must
be conducted at the show through a fully licensed firearms
dealer who is present at the show and provides such service.
The dealer takes the firearm being transferred into his or her
possession and will store the firearm at the dealer's regular
place of business during the mandatory 10-day waiting period.
During this time, DOJ will conduct the required criminal and
mental history background check to determine if the transferee
is lawfully prohibited from possessing a firearm.
"If the transferee is prohibited, the DOJ will conduct a
background check on the transferor, if the transaction is a
private-party sale, to determine if the dealer can return the
firearm to him or her. If not, the dealer will then turn the
firearm over to local law enforcement for disposition.
"In addition to the above, state law mandates numerous security
and accountability standards for both the gun show operator
and the facility where the show is held. Close cooperation
with local law enforcement is required in order to assure a
safe, secure and lawful event. Both local law enforcement and
the DOJ often have personnel in plain clothes in attendance to
monitor for compliance with the law. Additionally, uniformed
officers are often on hand to provide a visual presence. Gun
show operators reimburse local law enforcement for costs
associated with the event. The gun show laws can be found in
Penal Code Section 12071, 12071.1 and 12071.4. They are very
thorough and effective.
"Gun shows at the Cow Palace are conducted lawfully in
compliance with state statutes, and in cooperation with local
law enforcement. No valid purpose would be served by
prohibiting gun shows at the Cow Palace. In fact, the shows
serve a useful purpose for law enforcement as they assure that
the private-party sales conducted there are in full compliance
with the law, thus reducing the potential for illegal sales on
the street or elsewhere."
8)Prior Legislation :
a) AB 2948 (Leno), of the 2007-08 Legislative Session,
would have prohibited the sale of firearms or ammunition on
state property known as the "Cow Palace." AB 2948 failed
passage on the Senate Floor.
SB 585
Page 9
b) SB 1527 (Yee), of the 2007-08 Legislative Session, would
have sold the Cow Palace for fair market value to the Daly
City Redevelopment Agency or to the City of Daly City. SB
1527 failed passage on the Assembly Floor.
c) SB 1733 (Speier), of the 2003-04 Legislative Session, is
duplicative of this bill. SB 1733 failed passage on the
floor of the State Assembly
d) HR 26 (Machado), of the 1999-00 Legislative Session,
requested that the Governor place a moratorium on all gun
shows that would take place on state-owned property until
the Attorney General and local law enforcement officials
are satisfied that existing federal and state laws
relating to gun shows are sufficiently enforced. HR 26
was never heard by this Committee.
e) AB 1107 (Ortiz), of the 1997-98 Legislative Session,
would have authorized any city, county or agricultural
association to prohibit gun sales at gun shows or events.
AB 1107 failed in the Assembly Committee on Appropriations.
REGISTERED SUPPORT / OPPOSITION :
Support
City and County of San Francisco
Opposition
California Association of Firearm Retailers
California Sportsman's Lobby
Crossroads of the West Gun Shows President, Bob Templeton
El Cajon Gun Exchange, Vice President, Ronald Godwin
Gun Owners of California
National Rifle Association
National Shooting Sports Foundation, Inc.
Outdoor Sportsman Coalition of California
Safari Club International
1,286 private individuals
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744
SB 585
Page 10