Chapter 5.55 FIREARMS DEALERS

The declared purpose of this chapter is to provide uniform regulations applicable to all firearm dealers in the city. The city council hereby finds that:

(a) The number of unlicensed firearm dealers in the city far exceeds the number of licensed firearm dealers; and

(b) Seven percent of all residential burglaries/residential grand thefts reported to the police department in 1992 resulted in the loss of firearms; and

(d) Forty-nine percent of all robberies reported to the police department in 1992 involved the use of a firearm; and

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

(f) Because of the range and effectiveness of firearms, the use of the firearms in violent crimes is more likely to result in the death or injury of bystanders; and

(g) There is a need to regulate the storage of firearms held for the sale, transfer, or lease, and to ascertain the suitability of permit applicants to operate as firearms dealers in order to minimize the risk of theft and illegal sale, distribution and usage of firearms. (Ord. 2082 § 1, 7-26-94. 1990 Code § 5-8101.)

5.55.030 Definitions.

The following words and phrases, whenever used in this chapter, are defined as follows:

(a) “Applicant” means the firearms dealer as defined in this chapter who is making application to the city for a firearms dealer permit or gunsmith permit as required by Cal. Penal Code § 12071(a)(1).

(b) “Chief of police” means the chief of police of the city or his/her designee charged with the administration of this chapter, subject to the administrative direction of the city manager.

(c) “Collector of curios and relics” means a person who is a collector of any antique firearm or any firearm which is a curio or relic as defined in Sections 178.11 et seq. of Title 27 of the Code of Federal Regulations and who only possesses a valid Bureau of Alcohol, Tobacco and Firearms Federal Firearms License of Type 03 (collectors of curios and relics).

(d) “Engaged in business” means the conduct of a business by the selling, transferring, or leasing of any firearm; or the preparation for such conduct of business as evidenced by the securing of applicable federal and state licenses; or the holding of one’s self out as engaged in the business of selling, transferring, or leasing of firearms in quantity, in series, or in individual transactions, or in any other manner indicative of trade.

(e) “Firearms” means any device, designed to be used as a weapon or modified to be used as a weapon, from which a projectile is expelled through a barrel by the force of an explosion or other form of combustion.

(f) “Firearms dealer” means a person engaged in the business of selling, transferring, leasing, or advertising for sale, transfer, or lease any firearm or component of a firearm with the exception of a Bureau of Alcohol, Tobacco and Firearms Federal Firearms License of Type 03 (collectors of curios and relics) and Type 01 (limited to those who engage only in gunsmith activities and do not conduct any sales transactions). Included in this definition are persons involved solely in the warehousing and storage of firearms and persons involved solely in the sale of firearms components including but not limited to ammunition, sights, scopes, and magazines.

(g) “Gunsmith” means a person whose occupation is to design, modify, make or repair firearms. For the sales of firearms, refer to “firearms dealer” under subsection (b) of this section.

(h) “Person” means any natural person, firm, corporation, organization, company association, business trust, joint-stock company, partnership, joint venture, club, or the agent, servant, manager, officer, employee, or lessee of any of them, and any municipal, political, or governmental corporation, district, body, or agency other than the city. (Ord. 2082 § 1, 7-26-94; Ord. 2203 § 3, 10-29-96; Ord. 2465 § 1, 6-11-02; Ord. 02-2020 § 1, 1-14-20. 1990 Code § 5-8102.)

5.55.040 Permit required.

(a) Firearms Dealers. No person, partnership, cooperative, corporation, firm, or association will engage in the business of operating or managing any business in the city which sells, transfers, leases, or offers or advertises for sale, transfer, or lease, any firearm without first obtaining a firearms dealer permit from the chief of police. Application for any such permit shall be made in writing to the chief of police in such form as shall be prescribed by him/her. The applicant shall provide all information requested, including proof of compliance with all applicable federal, state, and local laws, or the application will not be deemed complete. Persons who are collectors of antique firearms as described in Section 5.55.030(g) shall not be required to obtain and maintain a firearms dealer permit.

(b) Gunsmiths. No person, partnership, cooperative, corporation, firm, or association will engage in the business of operating or managing a business which designs, modifies, makes or repairs firearms in the city without first obtaining a gunsmith permit from the chief of police. Application for any such permit shall be made in writing to the chief of police in such form as shall be prescribed by him/her. The applicant shall provide all information requested, including proof of compliance with all applicable federal, state, and local laws, or the application will not be deemed complete. (Ord. 2082 § 1, 7-26-94. 1990 Code § 5-8103.)

5.55.050 Application fee.

The application shall be accompanied by a nonrefundable fee as set forth in the city of Fremont master fee resolution. The fee shall include an amount necessary to cover the full cost of processing, background, issuance, inspection, enforcement, and hearing procedures. (Ord. 2082 § 1, 7-26-94. 1990 Code § 5-8104.)

5.55.060 Administration of chapter – Application and investigation for permits.

(a) The chief of police shall administer this chapter.

(b) The chief of police shall conduct an appropriate investigation to determine the eligibility of each owner, partner, employee, manager, officer, agent, lessee, or other responsible person engaged in the business for which the applicant is seeking a firearms dealer permit or gunsmith permit. This investigation shall be conducted for the protection of the public safety and to determine if a permit may be issued. The applicant, owner, partner, employee, manager, officer, agent, lessee, or other responsible person engaged in the business shall fully cooperate by providing necessary authorization for access to private records and information. (Ord. 2082 § 1, 7-26-94. 1990 Code § 5-8105.)

5.55.070 Permit approval, renewal, suspension, conditions and revocation criteria.

The chief of police may issue or renew a permit only if the following criteria are met. The chief of police is hereby authorized to adopt all necessary administrative regulations to carry out the intent of this section including, but not limited to, the imposition of additional criteria. The chief of police may deny a new permit or suspend, revoke or impose reasonable conditions for issuance or renewal of an existing permit for failure to meet the following criteria:

(a) Applicants must be at least 21 years old.

(b) The applicant must hold all required federal, state and local licenses and authorizations.

(d) The applicant has provided accurate statements of fact on his/her application.

(e) The applicant must have paid all applicable fees as provided in the city of Fremont master fee resolution.

(f) The applicant is free of a conviction for any of the following offenses:

(1) Any offense that would disqualify the applicant from owning or possessing a firearm under federal, state and local laws.

(2) Any offense related to the manufacturing, sale, possession, use, or registration of any firearm or dangerous or deadly weapon.

(3) Any offense involving the use of force or violence against the person of another.

(4) Any offense involving the manufacturing, sale, possession, or use of any controlled substance as defined in the California Health and Safety Code.

(g) The applicant is not an unlawful user of any controlled substance as defined by the California Health and Safety Code, or an excessive user of alcohol to the extent that it would impair his/her ability to be a dealer in firearms.

(h) The applicant is not a mental patient in a hospital or institution, or on leave of absence from any hospital or institution, or adjudicated by a court to be a danger to others as a result of a mental disorder or illness, or a mentally disordered sex offender, or suffers from any psychological disturbance which would impair his/her ability to be a firearms dealer.

(i) The applicant proposes to operate the business in a manner which complies with all federal, state, and local laws.

(j) The applicant operates his or her business:

(1) Within a zoning district where the proposed use is permitted by zoning regulations; or

(2) Within a zoning district where applicant has obtained required permits or approvals as prescribed by this code and general law.

(k) The applicant can provide evidence of possessory interest in the property at which he/she proposes to conduct business. (Ord. 2082 § 1, 7-26-94. 1990 Code § 5-8106.)

5.55.080 Security requirements – Chief of police authority to adopt administrative regulations.

Firearms security regulations shall be adopted as provided in this section.

(a) A primary objective of this chapter is to discourage theft from the premises of firearm dealers, and to provide a safe and secure facility for storage and sale of firearms. To this end the permittee shall comply with all firearms dealer regulations prescribed by the chief of police. The chief of police is hereby authorized to adopt all necessary administrative regulations to carry out the intent of this chapter.

(b) The chief of police shall adopt firearms security regulations requiring, but not limited to, the following:

(1) The provision of secure locks, windows and doors, adequate lighting and an alarm security system in accordance with permitted city security regulations and/or specified by the chief of police.

(2) The storage of all firearms on the premises out of reach of customers in secure, locked locations, so that the access to the firearms is controlled by the dealer and/or owner, partner, employee, manager, officer, agent, lessee, or other responsible person engaged in the business and to the exclusion of others. Storage of ammunition, gunpowder or other flammable or explosive material shall be in accordance with the Uniform Fire Code and the city’s hazardous materials management ordinance (Chapter 8.35). (Ord. 2082 § 1, 7-26-94. 1990 Code § 5-8107.)

5.55.090 Permit forms.

All permits issued pursuant to this chapter shall be in a form prescribed by the Attorney General of the state. (Ord. 2082 § 1, 7-26-94. 1990 Code § 5-8108.)

5.55.100 Permit duration.

(a) All permits issued pursuant to this chapter shall expire one year after the date of issuance, unless suspended or revoked prior to the expiration date.

(b) All permits issued pursuant to this chapter shall be subject to renewal after one year. The permittee shall file a renewal application and pay all applicable fees as specified in the city of Fremont master fee resolution. Such application will then be reviewed by the chief of police for compliance with the provisions of this chapter. A permit will be issued by the chief of police for a renewal application which meets the provisions specified in this chapter. The permit will be valid for one year.

(c) Applications for renewal of an existing valid permit must be completed and received by the chief of police, in completed form, no later than 30 days prior to the expiration of the current permit. (Ord. 2082 § 1, 7-26-94. 1990 Code § 5-8109.)

5.55.110 Permit transition period.

(a) A federally licensed firearms dealer possessing a home occupation permit for the sale of firearms from his/her residence will be required to cease operation by April 19, 1997. A residentially based firearms dealer shall be subject to all provisions specified in this chapter; however, such dealer shall be exempted from the requirement for liability insurance. A residentially based firearms dealer who receives approval of a renewal of his/her home occupation permit shall cease operation by April 19, 1997.

(b) A federally licensed firearms dealer conducting business as a gunsmith from a residence under a home occupation permit will be required to cease operation by December 31, 2019. (Ord. 2082 § 1, 7-26-94; Ord. 02-2020 § 2, 1-14-20. 1990 Code § 5-8110.)

5.55.120 Permit conditions.

(a) All permits issued pursuant to this chapter shall be subject to the following conditions. The violation of any of the listed conditions will be grounds for suspension or revocation of the permit by the chief of police.

(1) No firearms dealer permit will be issued to a person engaged in the business of selling, transferring, leasing, or advertising for sale, transfer, or lease any firearm from a residence.

(2) The business shall be conducted only in the building located at the street address indicated on the permit.

(3) The sales of firearms shall be conducted only by the person(s) listed on the firearms dealer permit issued by the city, known as the “permittee.” If the permittee is to be assisted by another person such as an owner, partner, employee, manager, officer, agent, lessee, or other responsible person engaged in the business of the sale of firearms, these individuals must be reviewed under the requirements of Section 5.55.070(a), (e), (f), (g), and (h).

(4) The permittee shall comply with Cal. Penal Code §§ 12072(b), 12073, 12074, 12076, 12077, and 12082, to the extent that the provisions remain in effect.

(5) The permittee shall comply with all sections of this chapter.

(b) Any permit pursuant to this chapter shall be subject to additional conditions as the chief of police deems reasonably related to the purpose of this chapter. (Ord. 2082 § 1, 7-26-94; Ord. 2203 § 4, 10-29-96; Ord. 2465 § 2, 6-11-02. 1990 Code § 5-8111.)

5.55.130 Permit denial, suspension, conditioning, revocation, denial of renewal.

(a) The chief of police may deny a new permit application or suspend, modify, revoke or deny renewal of an existing permit for failure of the applicant or permittee to satisfy any of the criteria provided in Sections 5.55.070, 5.55.080, 5.55.110, 5.55.120, 5.55.160 and 5.55.170.

(b) Any decision to deny a new permit application, suspend, revoke, modify or deny renewal of an existing permit shall be given to the applicant or permittee in writing, addressed to the permittee or applicant at the address on the application, and shall set forth the factual and legal grounds for the decision. (Ord. 2082 § 1, 7-26-94. 1990 Code § 5-8112.)

5.55.140 Appeal of adverse action.

(a) Within 30 days after the date of deposit of the decision of the chief of police in the mail in accordance with Section 5.55.130, the applicant or permittee may appeal the decision in writing to the city manager, setting forth the factual and legal grounds for appeal.

(b) The city manager (or designee) shall:

(1) Set a time and place for the hearing on the appeal;

(2) Appoint a city hearing officer to conduct a hearing; and

(3) Notify the applicant or permittee in writing of such date and time not later than 30 working days from the date the appeal was received by the city manager.

(c) The hearing shall be conducted within 45 days from the date the appeal was received by the city manager. In any hearing under this section, the applicant shall bear the burden of proof to establish entitlement to the requested permit by a preponderance of the evidence.

(d) After hearing the appeal, the city hearing officer may:

(1) Refer the matter back to the chief of police for a new investigation and decision consistent with direction provided by the hearing officer;

(2) Affirm the decision of the chief of police;

(3) Approve the application for a permit subject to any conditions the hearing officer may prescribe; or

(4) Approve the application for a permit without conditions.

(e) The decision of the city hearing officer shall be the final administrative determination and is subject to judicial review. (Ord. 2082 § 1, 7-26-94. 1990 Code § 5-8113.)

5.55.150 Costs of appeal and attorneys’ fees.

In any appeal hearing conducted under this chapter, the city hearing officer shall award all costs of the hearing, including direct and indirect staff costs and overhead, hearing officer costs and attorneys’ fees, to the city whenever the city prevails. (Ord. 2082 § 1, 7-26-94. 1990 Code § 5-8114.)

5.55.160 Permit liability insurance.

(a) No firearms dealer permit shall be issued or renewed pursuant to this chapter unless there is in full force and effect prior to issuance of a permit or renewal a policy of insurance in such form that the city attorney and city risk manager deem 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 advertising for lease, any firearm. The minimum liability limits shall not be less than $1,000,000 for damages to or destruction of property in any one incident, and $1,000,000 for the death or injury of any one person; provided, however, that additional amounts may be required by the city attorney if deemed necessary. Person(s) engaged in the business of operating or managing a gunsmith business which designs, modifies, makes or repairs firearms will not be required to obtain and maintain liability insurance as discussed in this section.

(b) The policy of insurance shall name the city, its officers, agents and employees as additional insureds. 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. 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 chief of police 60 days prior to cancellation.

(c) A federally licensed firearms dealer possessing a home occupation permit for the sale of firearms from his/her residence shall be exempted from this requirement. (Ord. 2082 § 1, 7-26-94. 1990 Code § 5-8115.)

5.55.170 Inspection authority.

The chief of police or his/her designee shall have the right to enter any firearms dealer establishment from time to time during regular business hours to make reasonable inspections to ascertain whether the provisions of this chapter are being complied with. A warrant shall be obtained whenever required by law. (Ord. 2082 § 1, 7-26-94. 1990 Code § 5-8116.)

5.55.180 Compliance.

Any person engaging in the business of selling, transferring, or leasing, or advertising for sale, transfer, or lease, or offering for sale, transfer, or lease, any firearm on the effective date of this chapter shall have 60 days from the effective date to comply with the provisions of this chapter. (Ord. 2082 § 1, 7-26-94. 1990 Code § 5-8117.)

5.55.190 Temporary suspension.

(a) If a firearm 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.

(b) The temporary suspension will not exceed three days. If the violation results in a criminal charge filed by a federal, state, or county district attorney, such permit to sell firearms may be suspended until the case is adjudicated in a court of law.

(c) Notice of suspension and rights to appeal and costs shall be the same as provided in Sections 5.55.130, 5.55.140 and 5.55.150. (Ord. 2082 § 1, 7-26-94. 1990 Code § 5-8118.)

5.55.200 Severability.

(a) This chapter shall be enforced to the full extent of the authority of the chief of police. If any section, subsection, sentence, clause, phrase or portion of this chapter is, for any reason, held to be invalid or unconstitutional by decision of any court of competent jurisdiction, such decisions shall not affect the validity of the remaining portions of this chapter.

(b) The city council hereby declares that it would have adopted this chapter, and each section, subsection, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or more sections, subsections, clauses, phrases or portions should be declared invalid or unconstitutional. (Ord. 2082 § 1, 7-26-94. 1990 Code § 5-8119.)