Challenge to Pleasant Hill gun law heats up

Pleasant Hill City Council consider their defense of its Pleasant Hill gun law challenged by City Arms East, LLC, and The National Shooting Sports Foundation (NSSF)

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city-arms-gun-store-zoning-lawsOn Tuesday, August 11 the Pleasant Hill City Council met in closed session to discuss the lawsuit filed last year challenging the Pleasant Hill law that regulates the city’s gun stores. City officials must consider next steps in defense of the suit filed by City Arms East, LLC, and The National Shooting Sports Foundation (NSSF). The case resides in Contra Costa County Superior Court, CASE No. MSN13-1922.

gun-sales-regulations-pleasant-hillIn July the plaintiffs filed a summary judgment motion with the court. A summary judgment motion asks the judge to find in the plaintiffs’ favor based upon the law and the facts. Such motions commonly are used to resolve a case quickly or narrow the issues that will proceed to trial.

In its motion, City Arms/NSSF asks the court to find the City’s firearms ordinance “invalid and unenforceable” and to repeal it permanently. The motion also asks the court to reimburse plaintiffs’ legal costs.

A hearing on the summary judgment motion is scheduled for October 23rd. The full trial is scheduled to begin on December 4, 2015.

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Pleasant Hill amends zoning rules; upholds gun sales restrictions despite legal challenge

On Monday, June 9th the Pleasant Hill City Council introduced zoning ordinance amendments to “sync up” with its law adopted last year that regulates firearms and ammunition sales. As expected, introduction of the zoning changes was approved on a 3-2 vote that mirrored last year’s adoption of the new gun law (Councilmembers Carlson and Weir opposed; Durant, Flaherty and Harris in support).

The zoning changes adopted by Council are the same ones unanimously rejected by the city’s Planning Commission last month because they were considered unnecessary.  The zoning changes are the last step City implementation of its controversial firearms law, which limits gun and ammunition sales to specified locations.  The City Council is expected to adopt the final zoning rules in July.

Both Sides Speak Up

jack weir
Pleasant Hill Concilmember Jack Weir

The public hearing attracted a large, generally well-behaved crowd of residents, business owners and interested Bay Area observers on both sides of the gun control debate.  A total of 26 people spoke at the meeting, 19 in opposition and 7 in support of the proposed zoning changes that define restrictions on gun sales.  Only 8 of the speakers identified themselves as Pleasant Hill residents (4 on each side of the issue, pro and con).

Supporters who spoke in favor of the new zoning changes included attorneys with the Law Center to Prevent Gun Violence, whose model ordinance was used to develop Pleasant Hill’s gun law.  Speakers expressed pride in Pleasant Hill’s leadership, by enacting so-called “smart gun laws” intended to prevent “illegal gun trafficking” so “people can feel safe and secure.”

Opponents speaking against the zoning changes echoed many of the same objections raised by Planning Commissioners, including concerns about the “irregular process” in which the City Council bypassed the Commission before adopting the gun law last year.  In addition, some expressed concerns about adverse impacts on the city’s reputation, overall business climate and existing gun retailers.  Several speakers urged the Council to rescind the gun law, to avoid litigation costs associated with the legal challenge against it from the National Shooting Sports Foundation and City Arms East.

Prickliness About City’s Tarnished Image

Photo Tim Flaherty
Pleasant Hill Mayor Tim Flaherty

In the evening’s only dramatic moment, Mayor Flaherty interrupted Councilmember Weir in an uncharacteristically angry outburst.  Weir expressed concern the firearms issue has created a “strained relationship” between the City Council and the Planning Commission that reflects poorly on the city and its management. Flaherty interjected by saying, “I’m tired of hearing the City is not well-managed.”

After a brief verbal tussle with raised voices, Flaherty backed off and permitted Weir to finish his comments. Later in the meeting Flaherty apologized to Weir, while also acknowledging his sensitivity to “criticism of the City’s reputation” that had been the subject of public comment earlier in the evening (including reference to the City’s mishandling of its former City Clerk).

Perhaps Flaherty was unusually touchy due to discomfort with being in the limelight as the “swing vote.”  In addition, during the public hearing he was publicly criticized for flip-flopping on the firearms issue, which he opposed as a Planning Commissioner and City Council candidate, before inexplicably changing his mind during 2013. Flaherty’s early opposition to gun-related zoning restrictions was unsurprising, given his profession as a real estate attorney.

Flaherty’s failure to offer an explanation for his 180 switch on the gun regulations prompted some to conclude he’d traded his vote for the Mayor’s seat.  Perhaps Flaherty’s deposition will be taken, as part of the NSSF/City Arms litigation process, to clarify the reasons for his flip-flop.

Hi Ho, Hi Ho . . .  It’s Off to Court We Go

At one point in the meeting Councilmember Weir made a motion to reconsider the entire firearms law at a future Council meeting. Carlson seconded the motion, which elicited brief cheers from the audience.  Moments later the motion was rejected on a familiar 3-2 vote.

The NSSF/City Arms lawsuit is scheduled for an issues conference before the Judge in August, before the case moves to trial in September.

In November, Michael Harris and Jack Weir are expected to run for re-election.  Pleasant Hill’s firearms law and the court challenge against it are likely to be issues during the campaign, especially in light of the City’s projected deficit in its operating budget.

 

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Firearms Ordinance battle in Pleasant Hill, continues June 9

The Pleasant Hill City Council will hold a special public hearing on June 9, to consider its Planning Commission’s refusal to amend that city’s Zoning laws to accommodate the recent City Council Firearms Ordinance, which would further restrict the sale and purchase of firearms and ammunition. The hearing will begin at 7:30 p.m. on Monday, June 9, 2014, in the City Council Chambers, 100 Gregory Lane, Pleasant Hill. Interested parties will be heard at that time.

pleasant hill city council gun store zoningThe ordinance requires a police permit for firearms and ammunition dealers to satisfy a number of new restrictions such as not being located within 150 feet of a residence; within 500 feet of a park, another gun dealer, a massage parlor or an adult entertainment venue; or within 1,000 feet of a day care or school. Additionally, firearms dealers owners and employees must pass a criminal-background check. Dealers must have a working alarm system with surveillance cameras, and submit annual reports to the police chief detailing compliance with the new regulations.

Councilman Tim Flaherty, Mayor Michael Harris and Councilman David Durant voted for the firearms ordinance while Councilmen Jack Weir and Ken Carlson voted no.

But a lawsuit from the NRA and gun dealers challenged the firearms ordinance that forced the City Council to cover its tracks concerning several of its prohibitive zoning provisions that would leave few available spaces for firearms dealers to do business. The City Council then directed that City’s Planning Commission to “clear up” the zoning issues.

As previously reported in Halfway To Concord, the Firearms Ordinace came under furious attack by local residents. Additionally, members of the Planning Commission expressed weariness about having to deal with the restrictive zoning issues (again) after it refused to hear such recommendations back in 2011, making it clear that they saw no ‘need for additional regulation of firearms retailers.’

The litigation brought against Pleasant Hill by the National Shooting Sports Foundation claims that the distance requirements in the firearm ordinance restricting store locations is essentially a zoning ordinance. According to Lisa White’s report in the Contra Costa Times,

The lawsuit — filed with City Arms East, one of Pleasant Hill’s four gun dealers — also claims that by giving the city the right to inspect gun stores without a search warrant, the ordinance violates the Fourth Amendment protection against unreasonable searches and seizures. The lawsuit further alleges that the ordinance conflicts with state gun and labor laws and requires insurance against liability for criminal conduct. It is impossible to insure, the National Shooting Sports Foundation claims, or gun dealers have statutory immunity from such a requirement.

The Law Center to Prevent Gun Violence (LCAGV), a national advocacy group, has arranged for a San Francisco law firm (Keker & Van Nest) to defend the lawsuit pro bono for the city. Several of the attorneys are residents of Pleasant Hill. This is significant, because the Planning Commissioner Abbott is said to have told the LCAGV that they should never appear before the Planning Commission in Pleasant Hill again.

According to knowledgeable sources, in punting the ball back to Council, the Planning Commission as much as stated that staff (and by inference, the proponents of the firearms ordinance) had failed to provide adequate information on which to make a sound decision and had not answered a number of pertinent questions raised by the Planning Commission.

Some speculate that the Planning Commission, which has previously heard a proposal to regulate firearms in the city, and found no basis in terms of any existing need for prospective zoning changes, is signaling to staff and council that it will not rubber stamp the ordinance nor legitimize an end-run around proper zoning process.

The Public Hearing then will feature spirited public comment and discussion around the Firearms Ordinance and the Planning Commission again rejecting zoning change requirements for firearms dealers.

See the Pleasant Hill hearing notice below followed by comments from Planning Commission members reported in Halfway To Concord in March, and a letter to the Pleasant Hill Planning Commission from Mitchell & Associates concerning the current litigation over the firearms ordinance.

Pleasant Hill Cty Council Public Hearing Notice for June 9 on Fireamrs Ordinance

The City of Pleasant Hill City Council will hold a special meeting to conduct a public hearing to consider a negative recommendation from the Planning Commission on a proposed ordinance to amend Sections 18.15.040 (Commercial Use Classifications), 18.20.070 (Home Occupations) and 18.25.020 (Land Use Regulations for all Commercial, Retail Business, Neighborhood Business, Office and Light Industrial Districts) of the Pleasant Hill Zoning Ordinance (Title 18 of the Municipal Code) to conform as needed to the provisions of Chapter 9.35 of the Pleasant Hill Municipal Code regulating firearms and ammunition sales.

grandmas with guns save GOP in 2010Pursuant to Section 15061(b).3 of the Guidelines for the Implementation of the California Environmental Quality Act (CEQA) of 1970, as amended, the lead agency has determined with certainty that the proposed activity will not have a significant effect on the environment as the proposed amendment is intended to define a firearms and ammunition sales use, regulate said use as a home occupation and establish distance provisions from certain uses consistent with Chapter 9.35 of the Pleasant Hill Municipal Code.

The City Council will hold a special meeting to conduct a public hearing on this matter, starting at 7:30 p.m. on Monday, June 9, 2014, in the City Council Chambers, 100 Gregory Lane, Pleasant Hill. Interested persons will be heard at that time.

NOTICE IS ALSO GIVEN pursuant to Government Code Section 65009(B) that, if this matter is subsequently challenged in Court by you or others, you may be limited to raising only those issues you or someone else has raised at a Public Hearing described in this notice or in written correspondence delivered to the City of Pleasant Hill at, or prior to, the Public Hearing.

For information on this matter, please call or email Troy Fujimoto, at (925) 671-5224 or tfujimoto@ci.pleasant-hill.ca.us.

Pleasant Hill Planning Commission member comments on proposed zoning changes for legal firearms dealers arising from the new Firearms Ordinance

– Commissioner Robert Abbott: “There is no need for regulation or a zoning ordinance amendment . . . There is no safety issue or problem that warrants this regulation.”

– Commissioner David Mascaro (current Vice-Chair): “I’m not interested in seeing this ordinance come back to us . . . I want to see regulations for firing ranges, but not regulations re firearms stores.”

– Commissioner Steve Wallace (current Chair): “I don’t want to see this again before this Commission.”

– Commissioner (and current Mayor who voted for the new law) Tim Flaherty: “I see nothing for this Commission to consider.”

– Commissioner Diana Vavrek: “I’m still in the dark regarding how this came to us. I don’t yet understand it . . . I’m open to this coming back to us, but I need more background . . . I need to know exactly what the danger is [with having a firearms store near DVC] . . .The concerns haven’t been spelled out . . . I don’t quite get the nature of the risk, concern . . . What’s the problem we’re trying to address?”

– Commissioner Jim Bonato: “I have not heard any compelling arguments that support need for a use permit [for retail firearms stores] . . . There is no basis for discussing this further . . . No risk has been spelled out . . . I don’t want this issue to come before us again.”

Letter from Mitchell & Associates to Pleasant Hill Planning Commission re taking action while the Firearms Rodinance is in litigation

We write on behalf of our clients, the National Rifle Association (“NRA”) and the California Rifle and Pistol Association (“CRPA”), as well as the hundreds of thousands of their members in California, including members residing in the City of Pleasant Hill. Our clients oppose adoption of the proposed Firearms and Ammunition Sales Ordinance currently being considered by the Commission that concerns the zoning of firearm and ammunition retailers in the City of Pleasant Hill (“Zoning Amendments”.)

Members of the Commission are undoubtedly aware of changes the City Council made to Pleasant Hill Municipal Code (“PHMC”) Chapter 9.35 late last year concerning firearm retailers (“Firearms Ordinance”). It is important to understand that the Zoning Amendments before this Commission have only one purpose: to cover the City Council’s illegal actions and mistakes in adopting the original Firearms Ordinance. The Commission should not accomodate the City council’s nefarious objective.

We understand this Commission has been placed in a difficult situation, and is busy diligently reviewing materials presented to it at the April 1 meeting. We write to the Commission now to bring to its attention the true nature of the Zoning Amendments potential effects, what actions can and should be taken by the Commission in the interest of justice, and some additional legal material not previously discussed in prior communications from the public.

I. THE PENDING LAWSUIT CHALLENGING CHAPTER 9.35

It is apparent that the City Attorney and City Council believe that the current lawsuit challenging the Firearm Ordinance’ will likely be successful in striking that provision down as violating the California Goverment Code. They now seek a recommendation from the Commission on the Zoning Amendments in an attempt to moot certain issues in the lawsuit. Basically, they are trying to remedy the legal errors they made in passing the original ordinance, which they blatantly ignored beforehand, and hoping to get cover from the Commission for their abuse of process that they thought they would get away with. The Commission should not stand for it.

II. WHAT THE PLANNING COMMISSION CAN DO

Because the constitutionality of the Firearms Ordinance is already being challenged in court, it makes little sense for the Commission to act on the Zoning Amendments at this time. If the ordinance is invalidated as unconstitutional as a whole, it would be a waste of the Commission’s time to have considered the proposal in the first place. Moreover, the City Council has not adequately explained the present need for this law. Therefore, the Commission should continue the item until litigation is resolved. By doing so, the Commission will be in a position to make a fully informed decision concerning the legality of such a proposal, based on guidance from a court.

The City Council may attempt to bypass the Planning Commission altogether in pushing this item through. Regardless of whether it has the authority to do so, such an action would expose the City Council’s disregard for this Commission’s role and for fairness. We urge this Commission to continue the item regardless of any possible action the City Council may take. If, however, members of this Commission decide to weigh in, we strongly urge a unanimous negative recommendation for the following reasons.

III. WHY ANY RECOMMENDATION SHOULD BE A UNANIMOUS NEGATIVE RECOMMENDATION

A unanimous negative recommendation will serve as a strong rebuke of the City Council’s usurpation of the process, and will perhaps provide the only method of official protest this Commission can take in regards to the City Council’s duplicitous actions. It is clear that the City Council does not respect the Commission’s role in this process, and is attempting to use the Commission to remedy its own mistakes, which resulted from its disregard for the law in the first place.

It was clear from the special meeting on April 1 that the honorable members of the Commission were frustrated with the position the City Attorney and City Council placed them in. Residents ofPleasant Hill have already expressed their strong opposition to the proposal. And the materials (‘City Arms East, LLC v. City of Pleasant Hill, Case MSN13-.1922 (Filed 12/23/2013) already provided by the NRA, the CRPA, FFL-Guard, and the National Shooting Sports Foundation, as well as several reputable businesses located in the City of Pleasant Hill, show that both ordinances raise serious legal concerns.

In addition to the points raised in those materials, we invite the Commission to apply the court’s reasoning in the case of Anderson v. City of Hermosa Beach, 621 F.3d 1051 (2010)2 to the provisions at issue in Pleasant Hill. In Anderson, Hermosa Beach sought to prohibit tattoo parlors within their municipality just like Pleasant Hill is now attempting to prohibit firearm retailers.

pleasant-hill-gun-ordinanceBecause tattoos are speech under the First Amendment, the court correctly held that tattoo parlors were also protected by the First Amendment. Courts would undoubtedly view a library or bookstore as protected under the First Amendment. The Anderson court then correctly concluded that the ordinance violated the First Amendment because it was “substantially broader than necessary to achieve the City’s interest of health and public safety,” noting that instead of ensuring tattoo parlors operate in compliance with health and safety codes, the city effectively banned what is already a heavily regulated business.

The analysis for the Anderson case applies to the issue here which involves an equally important albeit different constitutionally protected right. Firearm retailers must be afforded protections under the Second Amendment, as a right to keep and bear arms implies a right to buy and sell arms.

See Jackson v. City and County of San Francisco, No. 12-17803, 2014 WL 1193434 (9th Cir. March 25, 2014) The City Council may have legitimate concerns for public health and safety with regards to firearm retailers, but it has not provided the Planning Commission with any evidence as to why the proposed restrictions are needed, let alone how they are related to furthering public health and safety. The requirements of the proposed zoning ordinance amount to a total ban on firearm retailers altogether. The map only just now supplied to the Commission does not rebut that conclusion as was pointed out during the April 1 meeting.

For these reasons, any recommendation by this Commission to the City Council should be a unanimous negative recommendation.

VI. CONCLUSION

In sum, we strongly urge the Planning Commission to continue the item until the pending litigation is resolved, as to not waste any more time of the Commission on consideration of an ordinance whose legitimacy is still pending in court. If, however, the Commission decides to give a recommendation, we strongly urge a negative recommendation for the above reasons.

NB: The decision in this case was given by the Ninth Circuit, which means that it is binding in all states within the Ninth Circuit, including California, and all municipalities within those states, which includes Pleasant Hill.

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Pleasant Hill Commission considers gun store zoning rules after law is passed!

A special Pleasant Hill Planning Commission meeting on April 1 will consider gun store zoning rules after the law has been already passed by City Council. What’s the point? Is it just for show? This meeting writes another sorry  chapter in the city’s years-long battle to regulate its firearms and ammunition retailers. 

After three years of political maneuvering and despite strong opposition from residents, the City’s Chamber of Commerce and businesses, on November 18, 2013 the City Council adopted an ordinance (on a 3-2 vote) establishing a business permit system and zoning restrictions for retailers that sell firearms or ammunition. And once again they want the Planning Commission to cover for them.

city-arms-gun-store-zoning-laws

The ordinance amendments approved by the City Council did not go before the Planning Commission first.  Instead, in what may be an unprecedented move, ordinance amendments regarding Zoning Rules for gun stores will go before the volunteer, seven-member, City Council-appointed Planning Commission now, after the changes have already been made law.

Impacts of Pleasant Hill Firearms Ordinance

The new law prohibits new firearms stores from locating around schools, parks and day care centers, requires background checks for store employees and gives the Chief of Police sole authority and full discretion to grant permits to sell firearms/ammunition. 

No existing store locations qualify under the new law, but “grandfathering” is granted so they can continue operations for now.  The law also requires that firearms sales cease if the owner dies or the business otherwise changes ownership.  Thus the law has dramatically reduced the value of existing businesses.

With numerous schools, parks and day care facilities located throughout Pleasant Hill, it remains unclear what, if any, places are permissible for new firearms stores.  To date, no zoning map has been presented publicly that shows acceptable locations for new retailers.

Recently the Chief of Police announced his intent to approve a firearms sales permit for the Dick’s Sporting Goods store set to open soon at the site of the Old Dome theatre.  No analysis has been made public that identifies the distance between the Dick’s store and area schools, day care centers and other sensitive uses specified in the new law.

City Defends Law and Zoning Rules in Courts

As expected, one of the existing retailers subject to the new law, City Arms, quickly joined with the National Shooting Sports Foundation in bringing a legal challenge claiming (among other issues) the City amended its zoning rules improperly, without the necessary Planning Commission review.  This concern was expressed by many during the public hearing before the City Council last fall.  

The lawsuit is in the early stages, with trial scheduled to begin September 12th.

No Due Process for Zoning Rules

The purpose of Tuesday’s public hearing before the Planning Commission is to consider zoning rules for gun stores already approved by the City Council.  Since Planning Commission decisions can be appealed to the City Council, this circumstance makes a mockery of due process and places Commissioners in the awkward position of either:  a) rubber-stamping the City Council’s prior decision; or b) rejecting the zoning amendments and potentially compromising the City’s legal defense strategy.

 Commission Views on Gun Store Zoning Rules

Three years ago the Planning Commission refused to consider similar zoning rules proposed by Councilmembers Michael Harris and David Durant.  At its April 26, 2011 meeting, Planning Commissioners made it clear they saw no need for additional regulation of firearms retailers.  Here is a sampling of Commissioner comments made at that meeting:

  • Commissioner Robert Abbott“There is no need for regulation or a zoning ordinance amendment . . . There is no safety issue or problem that warrants this regulation.”
  • Commissioner David Mascaro (current Vice-Chair)“I’m not interested in seeing this ordinance come back to us . . . I want to see regulations for firing ranges, but not regulations re firearms stores.”
  • Commissioner Steve Wallace (current Chair)“I don’t want to see this again before this Commission.”
  • Commissioner (and current Mayor who voted for the new law) Tim Flaherty“I see nothing for this Commission to consider.”
  • Commissioner Diana Vavrek“I’m still in the dark regarding how this came to us.  I don’t yet understand it . . . I’m open to this coming back to us, but I need more background . . . I need to know exactly what the danger is [with having a firearms store near DVC] . . .The concerns haven’t been spelled out . . . I don’t quite get the nature of the risk, concern . . . What’s the problem we’re trying to address?”
  • Commissioner Jim Bonato“I have not heard any compelling arguments that support need for a use permit [for retail firearms stores] . . . There is no basis for discussing this further . . . No risk has been spelled out . . . I don’t want this issue to come before us again.”

Despite its timing, this after-the-fact public hearing on gun store zoning rules isn’t an April Fool’s Day joke. In fact, it’s a high-stakes game with serious political, legal and cost implications.  The City Council has placed its Planning Commissioners and the public in an impossible position. 

Here’s another idea:  Rather than throwing away more time and money trying to salvage and defend an ordinance that never should have been passed in the first place, perhaps now would be a good time for the City Council to repeal it altogether.

 

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