BILL ANALYSIS Ó
SB 475
Page 1
Date of Hearing: June 25, 2013
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 475 (Leno) - As Introduced: February 21, 2013
SUMMARY : Provides that gun shows at the Cow Palace can occur
only upon prior approval of both the Board of Supervisors of the
County of San Mateo and the City and County of San Francisco, as
specified. Specifically, this bill :
1)Provides 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.
2)A violation of these provisions would be a misdemeanor
punishable by imprisonment in a county jail not to exceed six
months, by a fine not to exceed $1,000, or by both a fine and
imprisonment.
EXISTING LAW :
1)Provides the following pertaining to the Cow Palace, a
state-owned facility managed by Agricultural District 1-A:
(California Food and Agricultural Code Sections 3851 and
3853.)
a) Defines "state designated fairs" as fairs, as specified,
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.
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b) 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."
c) 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:
i) Contract.
ii) Purchase, acquire, hold, sell, exchange, or convey
any interest in real or personal property and beautify or
improve that property, as specified.
iii) 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.
iv) 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.
v) Lease or let its real property for public park,
recreational, or playground purposes.
vi) 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.
vii) 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.
viii) 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.
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ix) 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.
2)Requires generally 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 Sections 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 Sections 12021 and 12021.1.)
3)Specifies a number of specified requirements on gun show
operators, attendees at gun shows, and the Department of
Justice. (Penal Code Sections 12071.1 and 12071.4.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : "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
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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.
"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)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
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
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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.
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
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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
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
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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.
5)Argument in Support : According to the California Chapters of
the Brady Campaign to Prevent Gun Violence , "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
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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 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."
6)Argument in Opposition: According to Crossroads of the West :
"We 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.
"We have also actively participated in the development of
state laws governing gun shows, including the enactment of AB
295 (Corbett, Chapter 247, Statutes of 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.
"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
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passing resolutions to approve it."
7)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.
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
Bayshore Friendship Senior Citizens Club
Brothers Against Guns
California Chapters of the Brady Campaign to Prevent Gun
Violence
City and County of San Francisco
City of Daly City
Coalition Against Gun Violence
County of San Mateo
Law Center to Prevent Gun Violence
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San Francisco District Attorney's Office
San Francisco Supervisor Jon Avalos
San Francisco Supervisor Malia Cohen
South County Citizens Against Gun Violence
Visitacion Valley Asian Alliance
Visitacion Valley Middle School
1 private individual
Opposition
1-A District Association, Department of the Division of Food and
Agriculture
California Association of Federal Firearms Licensees
California Police Chiefs Association
California Rifle and Pistol Association
California Sportsman's Lobby
Crossroads of the West
Gun Owners of California
National Rifle Association
National Shooting Sports Foundation
Outdoor Sportsmen's Coalition of California
Safari Club International
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744