BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 475 (Leno)
As Introduced February 21, 2013
Hearing date: April 16, 2013
Food and Agricultural Code
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GUN SHOWS AT THE COW PALACE
HISTORY
Source: Author
Prior Legislation: SB 585 (Leno) - vetoed, 2009
AB 2948 (Leno) - failed passage, Senate Floor
SB 1733 (Speier) - failed passage, Assembly Floor
HR 26 (Machado) - not heard, Assembly Committee on
Public Safety, 2000
AB 1575 (Machado) - as amended 5-24-99 and deleted
by amendments 7-1-99; Senate Committee on Public
Safety
AB 1107 (Ortiz) - failed Assembly Committee on
Appropriations, 1998
Support: Bayshore Friendship Senior Citizens Club; Brothers
Against Guns; California Chapters of the Brady Campaign
to Prevent Gun Violence; City and County of San
Francisco; Coalition Against Gun Violence; San Francisco
Supervisor Malia Cohen; Visitacion Valley Asian
Alliance; Law Center to Prevent Gun Violence; San
Francisco Supervisor John Avalos; City of Daly City;
Christy Lynn Wilson Foundation; Bend the Arc: Jewish
Partnership for Justice; Moms Demand Action for Gun
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Sense in America; San Francisco District Attorney;
several letters from private citizens
Opposition:California Right to Carry; Crossroads of the West;
National Shooting Sports Foundation, Inc.; Outdoor
Sportsman Coalition of California; Safari Club
International; National Rifle Association; California
Association of Federal Firearms Licensees; California
Sportsman's Lobby; California Rifle and Pistol
Association; several phone calls from private citizens
KEY ISSUE
SHOULD EVENTS AT THE COW PALACE WHERE FIREARMS OR AMMUNITION ARE
SOLD REQUIRE THE PRIOR APPROVAL OF THE SAN FRANCISCO AND SAN MATEO
BOARDS OF SUPERVISORS, AS SPECIFIED?
PURPOSE
The purpose of this bill is to provide that events at which a
firearm or ammunition is sold on the property or in the
buildings that comprise current or future Cow Palace property in
San Mateo County and the City and County of San Francisco or can
occur only upon prior approval, adopted by both the Board of
Supervisors of the County of San Mateo and the Board of
Supervisors of the City and County of San Francisco, as
specified.
Existing law provides the following pertaining to the Cow
Palace, a state-owned facility managed by Agricultural District
1-A:
Defines "state designated fairs" as fairs, as
specified, that may receive financial support or are
otherwise governed pursuant to specified sections of
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law. The district agricultural associations and their
locations are as follows: . . . (2) District 1-A,
held in the City of San Francisco.
Provides that the state is divided into agricultural
districts, including "District 1-A is the County of
San Mateo and the City and County of San Francisco."
(Food and Agricultural Code §§ 3851 and 3853.)
Provides that an association, with the approval of
both the Department of Food and Agriculture and the
Department of General Services, may do any of the
following:
(a) Contract.
(b) Purchase, acquire, hold, sell, exchange, or
convey any interest in real or personal property and
beautify or improve that property, as specified.
(c) 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.
(d) Use or manage its real estate or personal
property, or any portion of that property, for any or
all of the purposes of this section jointly with any
lessee, sublessee, or licensee, or otherwise use or
manage the property in connection with the lease,
sublease, or license which is made or granted.
(e) Lease or let its real property for public park,
recreational, or playground purposes.
(f) Rent or permit the use of its premises for any
purpose which is beneficial to the agricultural
industry, including, but not limited to, the holding of
sales or auctions of cattle or other livestock.
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(g) Contract with any county or county fair
association for holding a fair jointly with the county
or county fair association. The joint fair is a
district fair of the association.
(h) Make permanent improvements upon publicly owned
real property adjacent to real property of the district
when the improvements materially benefit the property
of the district.
(i) Pledge any and all revenues, moneys, accounts,
accounts receivable, contract rights, and other rights
to payment of whatever kind, pursuant to such terms and
conditions as are approved by the board, as specified.
Existing law generally requires that the sale, loan or transfer
of a firearm (handguns, rifles and shotguns) 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 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 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 and 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 §§ 12071, 12072, 12082, and 12084.) Numerous other
requirements in law pertain to the transfer of firearms,
including prohibited categories of persons who may not possess
firearms. There are a number of criminal penalties applicable
to those firearm provisions. (Penal Code §§ 12021 and 12021.1.)
Existing law (including the Gun Show Enforcement and Security
Act of 2000) places a number of specified requirements on gun
show operators, attendees at gun shows, and the Department of
Justice. (Penal Code §§ 12071.1 and 12071.4.)
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Existing law prohibits bringing specified weapons within any
state or local building, punishable as an alternate
misdemeanor/felony, with specified exceptions, including:
(7) (A) 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 Sections 12071.1 and 12071.4.
(B) A person who, for purposes of an authorized
public exhibition, brings any weapon that may
otherwise be lawfully possessed, into a gun show
conducted pursuant to Sections 12071.1 and 12071.4.
Existing law provides that unless a different penalty is
expressly provided, a violation of any provision of this code is
a misdemeanor. (Food & Ag. Code § 9.)
This bill would provide that an officer, employee, operator, or
lessee of Agricultural District 1-A, as defined, may contract
for, authorize, or allow an event at which a 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, only upon prior approval, by resolution, adopted
by both the Board of Supervisors of the County of San Mateo and
the Board of Supervisors of the City and County of San
Francisco. A violation of these provisions would be a
misdemeanor.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
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state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order to reduce the state's prison population to
137.5 percent of design capacity. The State submitted in part
that the, ". . . population in the State's 33 prisons has been
reduced by over 24,000 inmates since October 2011 when public
safety realignment went into effect, by more than 36,000 inmates
compared to the 2008 population . . . , and by nearly 42,000
inmates since 2006 . . . ." Plaintiffs, who oppose the state's
motion, argue in part that, "California prisons, which currently
average 150% of capacity, and reach as high as 185% of capacity
at one prison, continue to deliver health care that is
constitutionally deficient."
In an order dated January 29, 2013, the federal court granted
the state a six-month extension to achieve the 137.5 % prisoner
population cap by December 31st of this year.
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unsettled. However, in light of the real gains in reducing the
prison population that have been made, although even greater
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reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error; whether a measure proposes
penalties which are proportionate, and cannot be achieved
through any other reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
SB 475 will help bring local input into the decision
to host one of the largest gun shows in one of the
communities hardest hit by violent crime in the Bay
Area.
Every year at least five gun shows are held at the Cow
Palace, which straddles the counties of San Francisco
and San Mateo. The facility is located directly
across from the Sunnydale public housing project and
near the communities of Visitacion Valley,
Bayview-Hunters Point and the Mission District. These
communities have been plagued by gun violence for
years. Between 2005 and 2009, these communities have
accounted for 44% of the homicides and more than 30%
of the guns seized in the City and County of San
Francisco.
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In the last 6 months alone there have been 75
homicides and gun-related crimes in a two-mile radius
of the Cow Palace, in the City and County of San
Francisco.
These statistics speak to the difficultly that these
communities have faced in controlling the impact of
guns and related violence in the areas near the Cow
Palace. The efforts by schools, law enforcement, and
residents are made more difficult when gun show comes
to town every other month. The images and messages
associated with these shows often undermine the hard
work of these communities to reduce gun-related crimes
and to create a safer environment for children and
their families.
Because the Cow Palace is a state facility, which is
owned and managed by the California Department of
Agriculture's Division of Fairs and Expositions, state
legislation is necessary to allow the counties of San
Mateo and San Francisco to have a voice in the
decision to host these shows at the facility.
2. First Amendment Issues
As stated by the author, several counties have banned firearms
on county property with the result that gun shows are prohibited
on county property as well. Unlike the Cow Palace and the
California Exposition site in Sacramento, which are state
property, most fairs are held on county or city property.
Adopting bans on firearms on county property is partially the
result of court cases pertaining to county bans on gun shows in
general.
In 1997 the Ninth Circuit of the United States Court of Appeals
held that Santa Clara County violated the First Amendment to the
United States Constitution by prohibiting subleases of the Santa
Clara County fairgrounds for purposes of "selling, offering for
sale, supplying, delivering, giving possession or control of
firearms or ammunition at a gun show at the fairgrounds." The
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Court ruled that since guns were legal to sell on the property,
an offer to sell a gun at a gun show is a constitutionally
protected exercise of commercial speech under the First
Amendment and the lease restrictions violated that right.
"Since the sale of guns at a gun show at the Fairgrounds is
'lawful activity,' a proposal to engage in such a transaction is
protected as commercial speech under the First Amendment."
(Nordyke v. Santa Clara County, 110 F.3d 707, 711 (9th Cir.
1997)(citation omitted).)
However, the Court explained that if the county had made the
sale of guns at the fairgrounds illegal through an ordinance
(assuming the county had the authority to do so), prohibiting
gun shows altogether on the property would then not violate the
First Amendment. (Nordyke v. Santa Clara County, 110 F.3d 707
(9th Cir. 1997).) "[The lease addendum] is an attempt to
accomplish what it could have achieved by means of either a
properly drafted ordinance or a simple prohibition of gun shows
at the Fairgrounds. (Nordyke v. Santa Clara County, 110 F.3d
707, 713 (9th Cir. 1997).)
This bill would require approval of the county Boards of
Supervisors in San Francisco and San Mateo County for any gun
show to be authorized at this location. This does not appear to
violate the First Amendment because it would restrict the
ability to hold a gun show at all on the premises, not merely
the ability to offer guns for sale at such a show.
3. Governor's Veto Message for SB 475 (Leno) (2009)
The Legislature approved SB 475 in 2009, which would have
required similar local government approval of gun shows at the
Cow Palace in 2010, 2011 and 2012, would have limited the number
of such events permissible in those years, and would have banned
such shows at the Cow Palace altogether after 2012. (SB 475
(Leno).) Governor Schwarzenegger vetoed that bill stating:
This bill would prohibit the sale of firearms and
ammunition at the Cow Palace. This bill would set a
confusing precedent at the state level by statutorily
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prohibiting one District Agricultural Association
(DAA) from selling firearms and ammunition, a legal
and regulated activity, while allowing other DAAs to
continue to do so. In addition, this bill would
result in decreased state and local tax revenues by
restricting events at the Cow Palace.
4. Argument in Favor
The California Chapters of the Brady Campaign to Prevent Gun
Violence states:
The Cow Palace is a State owned property located in
both San Francisco and San Mateo counties. State
owned fairgrounds are generally operated by the State
Department of Food and Agriculture and are exempt from
local ordinances. Senate Bill 475 requires that
before events in which firearms or ammunition are sold
at the Cow Palace, prior approval must be obtained
from the San Mateo and San Francisco county boards of
supervisors.
Local jurisdictions have the primary responsibility
for providing for the public safety of their
communities. Local entities are often able to adopt
ordinances more stringent than those that apply to the
State as a whole in order to protect their citizens.
Despite advances in gun show regulation, local
communities plagued by gun violence may find that gun
shows still pose an unacceptable risk to public
safety.
We understand that both San Mateo County and San
Francisco County adopted resolutions in 2003 asking
the California Legislature to terminate gun shows at
the Cow Palace. Ten years later, the Legislature has
failed to act and the resolutions are not binding on
State property.
The Brady Campaign to Prevent Gun Violence, as a
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matter of general principle, neither supports nor does
it oppose firearm bans. The Brady Campaign, however,
does strongly support the right of local communities
to adopt measures to enhance local public safety.
Accordingly, the California Brady Campaign Chapters
support SB 475.
5. Argument in Opposition
Crossroads of the West Gun Shows states:
I have been the operator of the gun shows at the Cow
Palace for 25 years. During that time, no gun sold at
the show has ever been reported by law enforcement as
a crime gun. All laws pertaining to gun shows have
always been strictly followed.
I have also actively participated in the development
of state laws governing gun shows, including the
enactment of AB 295 in 1999. As a result of the
passage of these laws, California gun shows are very
thoroughly regulated and enforced. The same laws that
apply to sales at a firearms dealers store also apply
to sales at gun shows, including sales between private
parties.
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A study of gun shows conducted at the University of
California, Davis found that California's gun shows
are well run and lawfully conducted. The study
further indicated that California's gun shows, and the
state's laws governing them, are the model for other
states to emulate.
SB 475 would abandon to local governments the
Legislature's and the State of California's power and
responsibility relative to gun shows held at the Cow
Palace, Agricultural District 1 - A. It would do so
by allowing the County of San Mateo and the County and
City of San Francisco to effectively prohibit the
state from contracting for gun shows or other events
at which firearms or ammunition are sold by simply not
passing resolutions to approve it.
Firearms sales at gun shows are conducted through a
dealer licensed in accordance with California law.
The dealer retains custody of the firearm during the
ten-day waiting period and sends the buyers
information to the State Department of Justice, which
conducts a criminal and mental history background
check to determine if the person is in a category
prohibited from possessing firearms.
A person having a past felony conviction cannot buy a
firearm at a gun show or at a dealers store. There
are many other prohibited categories as well. Because
of the ten-day waiting period, guns cannot be
delivered to a buyer at a gun show which typically is
conducted over a two day weekend. Instead, the buyer
must go to a dealers store to take delivery after the
ten days have passed.
There is also a strong law enforcement presence at gun
shows, both in uniform and undercover. Guns at shows
are secured in a manner that precludes theft, thus
increasing the level of security at shows.
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There is no compelling reason to allow local
governments to stop gun shows at the Cow Palace or
other state owned property. Banning the shows would
not increase public safety nor decrease crime. But it
would send many gun sales now lawfully conducted
through licensed firearms dealers at gun shows into
the streets or other unlawful venues. Law
enforcement, which now is able to track those sales,
would lose their ability to do so. In this respect,
gun shows do fulfill a valid need that results in a
public benefit.
SB 475 would have a harmful effect on Cow Palace gun
shows, their patrons and the businesses that derive
revenue from them.
It is estimated that, if the bill is enacted, the
annual revenue decline to the Cow Palace from lost gun
show leases, parking and related revenues will be
approximately $610,000 and the annual loss in sales
tax revenue to the state would be about $480,000.
Additionally, the jobs of over 30 Cow Palace full- and
part-time employees would be adversely affected.
Closure of the gun shows would likely result in
further cutbacks in employment at the Cow Palace. The
revenue generated from leasing, parking and
concessions by the gun shows pays the salaries of
several full- and part-time employees, who would very
likely lose their jobs or have their wages and hours
reduced significantly.
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