Date: Tue, 17 Dec 1996 18:43:54 -0500 (EST) From: [E--rS--r] at [aol.com] To: Multiple recipients of list <[n--b--n] at [mainstream.net]> Subject: Kates apellate brief: Suter et al. v. City of Lafayette Don B. Kates JD and Chuck Michel JD are representing our suit in the California Court of Appeals to overturn the City of Lafayette's violation of state firearms preemption in their enactment of a residential gun dealer ban and other illegal regulation of firearm sales and storefront dealers. Kates and Michel's apellate brief in the Suter et al. v. City of Lafayette suit is attached. Edgar A. Suter MD National Chair Doctors for Integrity in Policy Research Inc. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT EDGAR S. SUTER, M.D., et al., ) 1 Civ. A073743 ) (Div. 1) Plaintiffs/Appellees ) ) Contra Costa County vs. ) # C-94-05444 ) CITY OF LAFAYETTE, et al., ) ) Defendants/Respondents ) -------------------------------------- ----------------------------------------------------------------- OPENING BRIEF ----------------------------------------------------------------- Don B. Kates C. D. Michel, Esq. State Bar # 39193 State Bar # 144258 Benenson & Kates Law Offices of C. D. Michel 920 Arlene Way 9920 La Cienega Blvd. # 707 Novato, CA 94947 Inglewood, CA 90301 Telephone: 415-883-5323 Telephone: 310-645-9920 Fax #: 415-883-5567 Fax #: 310-645-7444 Attorneys for Plaintiffs/Appellants IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT EDGAR S. SUTER, M.D., et al., ) 1 Civ. A073743 ) (Div. 1) Plaintiffs/Appellees ) ) Contra Costa County vs. ) # C-94-05444 ) CITY OF LAFAYETTE, et al., ) ) Defendants/Respondents ) -------------------------------------- STATEMENT OF APPEALABILITY Appellants challenged an ordinance adopted by respondent CITY OF LAFAYETTE which multiply regulates firearms sales. Between them, the original and amended complaints set out some 20 causes of action. After the complaint was filed the CITY repealed two of the ordinance's prohibitions and extensively amended others, thereby mooting c. 45% of the causes of action. Respondents' general demurrers to the remaining causes of action were sustained and the court thereafter rejected appellants' C.C.P. =15 1021.5 motion for attorneys fees as to the causes of action which had been mooted. The final judgment dismissing the entire case was filed with the court below February 21, 1996, notice of that judgment was mailed by respondents to appellants on February 22, 1996 and the notice of appeal (cum designation of record) was filed March 22, 1996. (NOTE: appellants and respondents later stipulated to the use of a joint appendix. All references herein to "J.A." are to the three volume Joint Appendix. A reporter's transcript was also ordered but when delivered was so garbled that the parties have agreed not to use or refer to it. 1 J.A. 003) In sum, this is an appeal from a final judgment incorporating orders sustaining general demurrers and denying attorneys fees -- which orders appellants contend were erroneous. PARTIES TO THIS APPEAL All plaintiffs-appellants who are taxpayers and citizens of the CITY OF LAFAYETTE sue as such as well as by any other more personal standing alleged. 2 J.A. 241. Plaintiff-appellant EDGAR A. SUTER, M.D., is a general and family medicine practitioner in Contra Costa County. Plaintiff-appellant HERCULES CHRISTOFIDES, an architect, is a citizen and taxpayer of the CITY OF LAFAYETTE. Both are highly skilled competitive target shooters who regularly shoot at target matches and are awarded prizes therein. Each wishes to be able to patronize gun dealers in the CITY OF LAFAYETTE, including those located in residential areas, for the purpose of purchasing firearms and ammunition therefrom. 2 J.A. 239. So does plaintiff-appellant ERIC H. ARCHER, Esq., an attorney practicing and living in Contra Costa County. 2 J.A. 239-40. Plaintiffs-appellants DAVID B. QUIRK, a banker, and WILLIAM P. MAGGIORE and GEORGE F. STEFFNER, each of whom are engineers, are citizens and taxpayers of the CITY OF LAFAYETTE who wish to be able to patronize gun dealers therein, including those located in residential areas, for the purpose of purchasing firearms and ammunition therefrom. 2 J.A. 239. Plaintiffs-appellants MICHAEL CHING and MAURY A. POLSE are citizens and taxpayers of the CITY OF LAFAYETTE. Each of them operate duly licensed gun sales businesses out of their homes therein. Plaintiff-appellant STEVEN STUCKERT is a citizen and taxpayer of the CITY OF LAFAYETTE and the owner of a duly licensed gun shop which operates therein. Plaintiff-appellant DAVID MANSKER is the owner of a duly licensed gun shop which operates in the CITY OF LAFAYETTE. Plaintiff-appellant ROBERT A. GRAY is a citizen and taxpayer of the CITY OF LAFAYETTE and is seeking licensure to operate a gun shop therein. 2 J.A. 240. Respondents are the CITY OF LAFAYETTE, the LAFAYETTE CITY COUNCIL, and GREGG MOORE and ROBERT F. D. ADAMS who are the "director of police services" and city manager of respondent CITY OF LAFAYETTE, respectively. [Barb: insert here facing page, table of contents, table of cases, table of other authorities cited.] Table of Contents should end with the following appendices Appendix A: Pertinent Provisions of Lafayette Municipal Code Appendix B: Attorney General's June 19, 1996 letter Appendix C: Legislative Counsel opinion. Appendix D: Atlantic Show Promotions, Inc. v. City of Tampa (unpublished opinion of the U.S. District Court for the Middle District of Florida) Appendix E: Nordyke v. County of Santa Clara (unpublished opinion of the U.S. District Court for the Northern District of California) ISSUES PRESENTED [Definitions: For the sake of simplicity, as used herein "the CITY" denotes all respondents jointly and "the Ordinance" denotes the amended Ordinance (unless otherwise expressly stated). Also the terms "Complaint" and "Amended Complaint" are used, though these pleadings were literally petition/complaints (and were so styled below) since appellants sought both mandamus and injunction.] 1. Whether Lafayette Municipal Code =15 8-609, imposing extra security requirements on firearms stores violates Pen. C. =15 12071 (b)(15) authorizing cities of Lafayette's size to impose only the security requirements specified in (b)(14). 2. Whether Lafayette Municipal Code =15 8-609, imposing extra security requirements on firearms stores intrudes on an area of regulation (firearms store security) occupied by state law. 3. Whether Lafayette Municipal Code =15 8-608 (9), effectively prohibiting the sale of lever action rifles and dozens of other firearms, violates the right of firearms owners to sell their arms. 4. Whether Lafayette Municipal Code =15 8-608 (9), effectively prohibiting the sale of lever action rifles and dozens of other firearms, violates Pen. C. =15 12026 (b) and Gov. C. =15 53071. 5. Whether Lafayette Municipal Code =15 8-608 (9), effectively prohibiting the sale of lever action rifles and dozens of other firearms, intrudes on areas of regulation occupied by state law. 6. Whether Lafayette Municipal Code =15 6-533 (d)(1) which authorizes denial of licensure to firearms stores based on an undefined, indefinable lack of "locational compatibility" with specified and unspecified other uses of property is so lacking in specificity as to be an unconstitutional delegation. 7. Whether Lafayette Municipal Code =15 6-533 (d)(1) which authorizes denial of licensure to firearms stores based on an undefined, indefinable lack of "locational compatibility" with specified and unspecified other uses of property violates the specificity and other requirements for zoning of an activity specially sanctioned by state law -- with which activity local governments are expressly preempted from dealing. 8. Whether Lafayette Municipal Code =15 6-533 (d)(1) which authorizes denial of licensure to firearms stores based on an undefined, indefinable lack of "locational compatibility" with specified and unspecified other uses of property violates the specificity and other requirements for zoning of an activity involving commercial speech. 9. Whether Lafayette Municipal Code =15 6-533 (d)(1) which authorizes denial of licensure to firearms stores based on an undefined, indefinable lack of "locational compatibility" with specified and unspecified other uses of property violates the equal protection and due process requirements of the federal or California constitutions. 10. Whether Lafayette Municipal Code =15 8-608 (3) is fatally vague as a civil and criminal penal law. 11. Whether Lafayette Municipal Code =15 8-608 (3) violates the equal protection requirements of the federal or California constitutions. 12. Whether the application of Lafayette Municipal Code =15 8- 608 (3) to appellants CHING's and POLSE's homes violates the right of privacy guaranteed them by California Constitution, Art. I, =15 1. 13. Whether the special liability insurance requirement that Lafayette Municipal Code =15 8-610 imposes on firearms stores, but not on vendors of equally or more hazardous products, violates the constitutional protection of commercial speech. 14. Whether the special liability insurance requirement that Lafayette Municipal Code =15 8-610 imposes on firearms stores, but not on vendors of equally or more hazardous products, violates the federal and California constitutional guarantees of equal protection. ENACTMENTS PARTICULARLY RELEVANT TO THIS BRIEF The CITY's Ordinance (as originally enacted) appears at 2 J.A. 341ff.. For the Court's convenience the CITY's counsel has graciously provided us with a copy of the entire Ordinance as currently integrated into the Lafayette Municipal Code which we have attached as Appendix A to this brief. For the Court's convenience we here present in haec verba the statutes we deem most relevant to this appeal. NOTE: Where only a part of the statute is relied upon, that part is italicized. [Preemption Statute] GOV. C. =15 53071. It is the intention of the Legislature to occupy the whole field of regulation of the registration or licensing of commercially manufactured firearms as encompassed by the provisions of the Penal Code, and such provisions shall be exclusive of all local regulations, relating to registration or licensing of commercially manufactured firearms, by any political subdivision as defined in Section 1721 of the Labor Code. [Right to Buy, Own, etc. Handguns] PEN. C. =15 12026. (a) Section 12025 shall not apply to or affect any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, who carries, either openly or concealed, anywhere within the citizen' s or legal resident's place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident any pistol, revolver, or other firearm capable of being concealed upon the person. (b) No permit or license to purchase, own, possess, keep, or carry, either openly or concealed, shall be required of any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, to purchase, own, possess, keep, or carry, either openly or concealed, a pistol, revolver, or other firearm capable of being concealed upon the person within the citizen's or legal resident's place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident. (c) Nothing in this section shall be construed as affecting the application of Section 12031. [Regulation of Gun Stores and Sales] PEN. C. =15 12071. (a) (1) As used in this chapter, the term "licensee," "person licensed pursuant to Section 12071," or "dealer" means a person who (A) has a valid federal firearms license, (B) has any regulatory or business license, or licenses, required by local government, (C) has a valid seller's permit issued by the State Board of Equalization, (D) has a certificate of eligibility issued by the Department of Justice pursuant to paragraph (4), (E) has a license issued in the format prescribed by paragraph (6), and (F) is among those recorded in the centralized list specified in subdivision (e). (2) The duly constituted licensing authority of a city, county, or a city and county shall accept applications for, and may grant licenses permitting, licensees to sell firearms at retail within the city, county, or city and county. The duly constituted licensing authority shall inform applicants who are denied licenses of the reasons for the denial in writing. (3) No license shall be granted to any applicant who fails to provide a copy of his or her valid federal firearms license, valid seller's permit issued by the State Board of Equalization, and the certificate of eligibility described in paragraph (4). (4) A person may request a certificate of eligibility from the Department of Justice and the Department of Justice shall issue a certificate to an applicant if the department's records indicate that the applicant is not a person who is prohibited from possessing firearms. (5) The department shall adopt regulations to administer the certificate of eligibility program and shall recover the full costs of administering the program by imposing fees assessed to applicants who apply for those certificates. (6) A license granted by the duly constituted licensing authority of any city, county, or city and county, shall be valid for not more than one year from the date of issuance and shall be in one of the following forms: (A) In the form prescribed by the Attorney General. (B) A regulatory or business license that states on its face "Valid for Retail Sales of Firearms" and is endorsed by the signature of the issuing authority. (C) A letter from the duly constituted licensing authority having primary jurisdiction for the applicant's intended business location stating that the jurisdiction does not require any form of regulatory or business license or does not otherwise restrict or regulate the sale of firearms. (7) Local licensing authorities may assess fees to recover their full costs of processing applications for licenses. (b) A license is subject to forfeiture for a breach of any of the following prohibitions and requirements: (1) (A) Except as provided in subparagraphs (B) and (C), the business shall be conducted only in the buildings designated in the license. (B) A person licensed pursuant to subdivision (a) may take possession of firearms and commence preparation of registers for the sale, delivery, or transfer of firearms at gun shows or events, as defined in Section 178.100 of Title 27 of the Code of Federal Regulations, or its successor, if the gun show or event is not conducted from any motorized or towed vehicle. A person conducting business pursuant to this subparagraph shall be entitled to conduct business as authorized herein at any gun show or event in the state without regard to the jurisdiction within this state that issued the license pursuant to subdivision (a), provided the person complies with (i) all applicable laws, including, but not limited to, the 15-day waiting period specified in subparagraph (A) of paragraph (3), and (ii) all applicable local laws, regulations, and fees, if any. A person conducting business pursuant to this subparagraph shall publicly display his or her license issued pursuant to subdivision (a), or a facsimile thereof, at any gun show or event, as specified in this subparagraph. (C) A person licensed pursuant to subdivision (a) may engage in the sale and transfer of firearms other than pistols, revolvers, or other firearms capable of being concealed upon the person, at events specified in subdivision (g) of Section 12078, subject to the prohibitions and restrictions contained in that subdivision. A person licensed pursuant to subdivision (a) also may accept delivery of firearms other than pistols, revolvers, or other firearms capable of being concealed upon the person, outside the building designated in the license, provided the firearm is being donated for the purpose of sale or transfer at an auction or similar event specified in subdivision (g) of Section 12078. (D) The firearm may be delivered to the purchaser, transferee, or person being loaned the firearm at one of the following places: (i) The building designated in the license. (ii) The places specified in subparagraphs (B) or (C). (iii) The place of residence of, the fixed place of business of, or on private property owned or lawfully possessed by, the purchaser, transferee, or person being loaned the firearm. (2) The license or a copy thereof, certified by the issuing authority, shall be displayed on the premises where it can easily be seen. (3) No firearm shall be delivered: (A) Prior to January 1, 1996, within 15 days of the application for the purchase, or, after notice by the department pursuant to subdivision (c) of Section 12076, within 15 days of the submission to the department of corrected copies of the register, or within 15 days of the submission to the department of any fee required pursuant to subdivision (d) of Section 12076, whichever is later. On or after January 1, 1996, within 15 days of the application for the purchase of a pistol, revolver, or other firearm capable of being concealed upon the person, or, after notice by the department pursuant to subdivision (c) of Section 12076, within 15 days of the submission to the department of corrected copies of the register, or within 15 days of the submission to the department of any fee required pursuant to subdivision (d) of Section 12076, whichever is later. On or after January 1, 1996, within 10 days of the application for the purchase of any other firearm, or, after notice by the department pursuant to subdivision (c) of Section 12076, within 10 days of the submission to the department of corrected copies of the register, or within 10 days of the submission to the department of any fee required pursuant to subdivision (d) of Section 12076, whichever is later. (B) Unless unloaded and securely wrapped or unloaded and in a locked container. (C) Unless the purchaser, transferee, or person being loaned the firearm presents clear evidence of his or her identity and age to the dealer. (D) Whenever the dealer is notified by the Department of Justice that the person is in a prohibited class described in Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code. (4) No pistol, revolver, or other firearm or imitation thereof capable of being concealed upon the person, or placard advertising the sale or other transfer thereof, shall be displayed in any part of the premises where it can readily be seen from the outside. (5) The licensee shall agree to and shall act properly and promptly in processing firearms transactions pursuant to Section 12082. (6) The licensee shall comply with Sections 12073, 12076, and 12077, subdivisions (a) and (b) of Section 12072, and subdivision (a) of Section 12316. (7) The licensee shall post conspicuously within the licensed premises the following warnings in block letters not less than one inch in height: (A) "IF YOU LEAVE A LOADED FIREARM WHERE A CHILD OBTAINS AND IMPROPERLY USES IT, YOU MAY BE FINED OR SENT TO PRISON." (B) "DISCHARGING FIREARMS IN POORLY VENTILATED AREAS, CLEANING FIREARMS, OR HANDLING AMMUNITION MAY RESULT IN EXPOSURE TO LEAD, A SUBSTANCE KNOWN TO CAUSE BIRTH DEFECTS, REPRODUCTIVE HARM, AND OTHER SERIOUS PHYSICAL INJURY. HAVE ADEQUATE VENTILATION AT ALL TIMES. WASH HANDS THOROUGHLY AFTER EXPOSURE." (8) Commencing April 1, 1994, no pistol, revolver, or other firearm capable of being concealed upon the person shall be delivered unless the purchaser, transferee, or person being loaned the firearm presents to the dealer a basic firearm safety certificate. (9) Commencing July 1, 1992, the licensee shall offer to provide the purchaser or transferee of a firearm, or person being loaned a firearm, with a copy of the pamphlet described in Section 12080 and may add the cost of the pamphlet, if any, to the sales price of the firearm. (10) The licensee shall not commit an act of collusion as defined in Section 12072. (11) The licensee shall post conspicuously within the licensed premises a detailed list of each of the following: (A) All charges required by governmental agencies for processing firearm transfers required by Sections 12076, 12082, and 12806. (B) All fees that the licensee charges pursuant to Sections 12082 and 12806. (12) The licensee shall not misstate the amount of fees charged by a governmental agency pursuant to Sections 12076, 12082, and 12806. (13) The licensee shall report the loss or theft of any firearm that is merchandise of the licensee, any firearm that the licensee takes possession of pursuant to Section 12082, or any firearm kept at the licensee's place of business within 48 hours of discovery to the appropriate law enforcement agency in the city, county, or city and county where the licensee's business premises are located. (14) In a city and county, or in the unincorporated area of a county with a population of 200,000 persons or more according to the most recent federal decennial census or within a city with a population of 50,000 persons or more according to the most recent federal decennial census, any time the licensee is not open for business, the licensee shall store all firearms kept in his or her licensed place of business using one of the following methods as to each particular firearm: (A) Store the firearm in a secure facility that is a part of, or that constitutes, the licensee's business premises. (B) Secure the firearm with a hardened steel rod or cable of at least one-eighth inch in diameter through the trigger guard of the firearm. The steel rod or cable shall be secured with a hardened steel lock that has a shackle. The lock and shackle shall be protected or shielded from the use of a bolt cutter and the rod or cable shall be anchored in a manner that prevents the removal of the firearm from the premises. (C) Store the firearm in a locked fireproof safe or vault in the licensee's business premises. (15) The licensing authority in an unincorporated area of a county with a population less than 200,000 persons according to the most recent federal decennial census or within a city with a population of less than 50,000 persons according to the most recent federal decennial census may impose the requirements specified in paragraph (14). (16) Commencing January 1, 1994, the licensee shall, upon the issuance or renewal of a license, submit a copy of the same to the Department of Justice. (17) The licensee shall maintain and make available for inspection during business hours to any peace officer, authorized local law enforcement employee, or Department of Justice employee designated by the Attorney General, upon the presentation of proper identification, a firearms transaction record. (18) (A) On the date of receipt, the licensee shall report to the Department of Justice in a format prescribed by the department the acquisition by the licensee of the ownership of a pistol, revolver, or other firearm capable of being concealed upon the person. (B) The provisions of this paragraph shall not apply to any of the following transactions: (i) A transaction subject to the provisions of subdivision (n) of Section 12078. (ii) The dealer acquired the firearm from a wholesaler. (iii) The dealer is also licensed as a secondhand dealer pursuant to Article 4 (commencing with Section 21625) of Chapter 9 of Division 8 of the Business and Professions Code. (iv) The dealer acquired the firearm from a person who is licensed as a manufacturer or importer to engage in those activities pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and any regulations issued pursuant thereto. (v) The dealer acquired the firearm from a person who resides outside this state who is licensed pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and any regulations issued pursuant thereto. (c) (1) As used in this article, "clear evidence of his or her identity and age" means either of the following: (A) A valid California driver's license. (B) A valid California identification card issued by the Department of Motor Vehicles. (2) As used in this article, a "basic firearm safety certificate" means a basic firearm certificate issued to the purchaser, transferee, or person being loaned the firearm by the Department of Justice pursuant to Article 8 (commencing with Section 12800) of Chapter 6. (3) As used in this section, a "secure facility" means a building that meets all of the following specifications: (A) All perimeter doorways shall meet one of the following: (i) A windowless steel security door equipped with both a dead bolt and a doorknob lock. (ii) A windowed metal door that is equipped with both a dead bolt and a doorknob lock. If the window has an opening of five inches or more measured in any direction, the window shall be covered with steel bars of at least one-half inch diameter or metal grating of at least nine gauge affixed to the exterior or interior of the door. (iii) A metal grate that is padlocked and affixed to the licensee' s premises independent of the door and doorframe. (B) All windows are covered with steel bars. (C) Heating, ventilating, air-conditioning, and service openings are secured with steel bars, metal grating, or an alarm system. (D) Any metal grates have spaces no larger than six inches wide measured in any direction. (E) Any metal screens have spaces no larger than three inches wide measured in any direction. (F) All steel bars shall be no further than six inches apart. (4) As used in this section, "licensed premises," "licensed place of business," "licensee's place of business," or "licensee's business premises" means the building designated in the license. (5) For purposes of paragraph (17) of subdivision (b): (A) A "firearms transaction record" is a record containing the same information referred to in Section 178.124a and subdivision (e) of Section 178.125 of Title 27 of the Code of Federal Regulations. (B) A licensee shall be in compliance with the provisions of paragraph (17) of subdivision (b) if he or she maintains and makes available for inspection during business hours to any peace officer, authorized local law enforcement employee, or Department of Justice employee designated by the Attorney General, upon the presentation of proper identification, the bound book containing the same information referred to in Section 178.124a and subdivision (e) of Section 178.125 of Title 27 of the Code of Federal Regulations. (d) Upon written request from a licensee, the licensing authority may grant an exemption from compliance with the requirements of paragraph (14) of subdivision (b) if the licensee is unable to comply with those requirements because of local ordinances, covenants, lease conditions, or similar circumstances not under the control of the licensee. (e) Except as otherwise provided in this subdivision, the Department of Justice shall keep a centralized list of all persons licensed pursuant to subparagraphs (A) to (E), inclusive, of paragraph (1) of subdivision (a). The department may remove from this list any person who knowingly or with gross negligence violates this article. Upon removal of a dealer from this list, notification shall be provided to local law enforcement and licensing authorities in the jurisdiction where the dealer's business is located. The department shall make information about an individual dealer available, upon request, for one of the following purposes only: (1) For law enforcement purposes. (2) When the information is requested by a person licensed pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code for determining the validity of the license for firearm shipments. (f) The Department of Justice may inspect dealers to ensure compliance with this article. The department may assess an annual fee, not to exceed eighty-five dollars ($85), to cover the reasonable cost of maintaining the list described in subdivision (e), including the cost of inspections. Dealers whose place of business is in a jurisdiction that has adopted an inspection program to ensure compliance with firearms law shall be exempt from that portion of the department's fee that relates to the cost of inspections. The applicant is responsible for providing evidence to the department that the jurisdiction in which the business is located has the inspection program. (g) The Department of Justice shall maintain and make available upon request information concerning the number of inspections conducted and the amount of fees collected pursuant to subdivision (f), a listing of exempted jurisdictions, as defined in subdivision (f), the number of dealers removed from the centralized list defined in subdivision (e), and the number of dealers found to have violated this article with knowledge or gross negligence. (h) Paragraph (14) or (15) of subdivision (b) shall not apply to a licensee organized as a nonprofit public benefit or mutual benefit corporation organized pursuant to Part 2 (commencing with Section 5110) or Part 3 (commencing with Section 7110) of Division 2 of the Corporations Code, if both of the following conditions are satisfied: (1) The nonprofit public benefit or mutual benefit corporation obtained the dealer's license solely and exclusively to assist that corporation or local chapters of that corporation in conducting auctions or similar events at which firearms are auctioned off to fund the activities of that corporation or the local chapters of the corporation. (2) The firearms are not pistols, revolvers, or other firearms capable of being concealed upon the person. PEN. C. =15 12072. (a) (1) No person, corporation, or firm shall knowingly supply, deliver, sell, or give possession or control of a firearm to any person within any of the classes prohibited by Section 12021 or 12021.1. (2) No person, corporation, or dealer shall sell, supply, deliver, or give possession or control of a firearm to any person whom he or she has cause to believe to be within any of the classes prohibited by Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code. (3) (A) No person, corporation, or firm shall sell, loan, or transfer a firearm to a minor. (B) Subparagraph (A) shall not apply to or affect those circumstances set forth in subdivision (p) of Section 12078. (4) No person, corporation, or dealer shall sell, loan, or transfer a firearm to any person whom he or she knows or has cause to believe is not the actual purchaser or transferee of the firearm, or to any person who is not the person actually being loaned the firearm, if the person, corporation, or dealer has either of the following: (A) Knowledge that the firearm is to be subsequently loaned, sold, or transferred to avoid the provisions of subdivision (c) or (d). (B) Knowledge that the firearm is to be subsequently loaned, sold, or transferred to avoid the requirements of any exemption to the provisions of subdivision (c) or (d). (5) No person, corporation, or dealer shall acquire a firearm for the purpose of selling, transferring, or loaning the firearm, if the person, corporation, or dealer has either of the following: (A) In the case of a dealer, intent to violate subdivision (b) or (c). (B) In any other case, intent to avoid either of the following: (i) The provisions of subdivision (d). (ii) The requirements of any exemption to the provisions of subdivision (d). (6) The dealer shall comply with the provisions of paragraph (18) of subdivision (b) of Section 12071. (b) No person licensed under Section 12071 shall supply, sell, deliver, or give possession or control of a pistol, revolver, or firearm capable of being concealed upon the person to any person under the age of 21 years or any other firearm to a person under the age of 18 years. (c) No dealer, whether or not acting pursuant to Section 12082, shall deliver a firearm to a person, as follows: (1) Prior to January 1, 1996, within 15 days of the application for the purchase, or, after notice by the department pursuant to subdivision (c) of Section 12076, within 15 days of the submission to the department of corrected copies of the register, or within 15 days of the submission to the department of any fee required pursuant to subdivision (d) of Section 12076, whichever is later. On or after January 1, 1996, within 15 days of the application for the purchase of a pistol, revolver, or other firearm capable of being concealed upon the person, or, after notice by the department pursuant to subdivision (c) of Section 12076, within 15 days of the submission to the department of corrected copies of the register, or within 15 days of the submission to the department of any fee required pursuant to subdivision (d) of Section 12076, whichever is later. On or after January 1, 1996, within 10 days of the application for the purchase of any other firearm, or, after notice by the department pursuant to subdivision (c) of Section 12076, within 10 days of the submission to the department of corrected copies of the register, or within 10 days of the submission to the department of any fee required pursuant to subdivision (d) of Section 12076, whichever is later. (2) Unless unloaded and securely wrapped or unloaded and in a locked container. (3) Unless the purchaser, transferee, or person being loaned the firearm presents clear evidence of his or her identity and age, as defined in Section 12071, to the dealer. (4) Whenever the dealer is notified by the Department of Justice that the person is in a prohibited class described in Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code. (5) Commencing April 1, 1994, no pistol, revolver, or other firearm capable of being concealed upon the person shall be delivered unless the purchaser, transferee, or person being loaned the firearm presents to the dealer a basic firearm safety certificate. (d) Where neither party to the transaction holds a dealer's license issued pursuant to Section 12071, the parties to the transaction shall complete the sale, loan, or transfer of that firearm through either of the following: (1) A licensed dealer pursuant to Section 12082. (2) A law enforcement agency pursuant to Section 12084. (e) No person may commit an act of collusion relating to Article 8 (commencing with Section 12800) of Chapter 6. For purposes of this section and Section 12071, collusion may be proven by any one of the following factors: (1) Answering a test applicant's questions during an objective test relating to basic firearms safety. (2) Knowingly grading the examination falsely. (3) Providing an advance copy of the test to an applicant. (4) Taking or allowing another person to take the basic firearms safety course for one who is the applicant for the basic firearms safety certificate. (5) Allowing another to take the objective test for the applicant, purchaser, or transferee. (6) Allowing others to give unauthorized assistance during the examination. (7) Reference to materials during the examination and cheating by the applicant. (8) Providing originals or photocopies of the objective test, or any version thereof, to any person other than as specified in subdivision (f) of Section 12805. (f) No person who is licensed pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code shall deliver, sell, or transfer a firearm to a person who is licensed pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and whose licensed premises are located in this state unless one of the following conditions is met: (1) The person presents proof of licensure pursuant to Section 12071 to that person. (2) The person presents proof that he or she is exempt from licensure under Section 12071 to that person, in which case the person also shall present proof that the transaction is also exempt from the provisions of subdivision (d). (g) (1) Except as provided in paragraph (2) or (3), a violation of this section is a misdemeanor. (2) If any of the following circumstances apply, a violation of this section is punishable by imprisonment in the state prison for two, three, or four years. (A) If the violation is of paragraph (1) of subdivision (a). (B) If the defendant has a prior conviction of violating this section or former Section 12100 of this code or Section 8101 of the Welfare and Institutions Code. (C) If the defendant has a prior conviction of violating any offense specified in subdivision (b) of Section 12021.1 or of a violation of Section 12020, 12220, or 12520, or of former Section 12560. (D) If the defendant is in a prohibited class described in Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code. (E) A violation of this section by a person who actively participates in a "criminal street gang" as defined in Section 186.22. (3) If any of the following circumstances apply, a violation of this section shall be punished by imprisonment in a county jail not exceeding one year or in the state prison, or by a fine not to exceed one thousand dollars ($1,000), or by both the fine and imprisonment. (A) A violation of paragraph (2) of subdivision (a). (B) A violation of paragraph (3) of subdivision (a) involving the sale, loan, or transfer of a pistol, revolver, or other firearm capable of being concealed upon the person to a minor. (C) A violation of paragraph (4) of subdivision (a). (D) A violation of paragraph (5) of subdivision (a). (E) A violation of subdivision (b) involving the delivery of a pistol, revolver, or other firearm capable of being concealed upon the person. (F) A violation of paragraph (1), (3), (4), or (5) of subdivision (c) involving a pistol, revolver, or other firearm capable of being concealed upon the person. (G) A violation of subdivision (d) involving a pistol, revolver, or other firearm capable of being concealed upon the person. (H) A violation of subdivision (e). PEN. C. =15 12082. A person shall complete any sale, loan, or transfer of a firearm through a person licensed pursuant to Section 12071 in accordance with this section in order to comply with subdivision (d) of Section 12072. The Attorney General shall adopt regulations under this section to allow the seller or transferor or the person loaning the firearm and the purchaser or transferee or the person being loaned the firearm to complete a sale, loan, or transfer through a dealer, and to allow those persons and the dealer to comply with the requirements of this section and of Sections 12071, 12072, 12076, and 12077 and to preserve the confidentiality of records. The register shall state the name and address of the seller or transferor of the firearm or the person loaning the firearm in addition to any other information required by Section 12077. The seller or transferor or the person loaning the firearm shall deliver the firearm to the dealer who shall retain possession of that firearm. The dealer shall then deliver the firearm to the purchaser or transferee or the person being loaned the firearm, if it is not prohibited, in accordance with subdivision (c) of Section 12072. If the dealer cannot legally deliver the firearm to the purchaser or transferee or the person being loaned the firearm, the dealer shall forthwith, without waiting for the conclusion of the waiting period described in Sections 12071 and 12072, return the firearm to the transferor or seller or the person loaning the firearm. The dealer shall not return the firearm to the seller or transferor or the person loaning the firearm when to do so would constitute a violation of subdivision (a) of Section 12072. If the dealer cannot legally return the firearm to the transferor or seller or the person loaning the firearm, then the dealer shall forthwith deliver the firearm to the sheriff of the county or the chief of police or other head of a municipal police department of any city or city and county who shall then dispose of the firearm in the manner provided by Sections 12028 and 12032. The purchaser or transferee or person being loaned the firearm may be required by the dealer to pay a fee not to exceed ten dollars ($10) per firearm, plus the applicable fee that the Department of Justice may charge pursuant to Section 12076. Nothing in these provisions shall prevent a dealer from charging a smaller fee. The fee that the department may charge is the fee that would be applicable pursuant to Section 12076, if the dealer was selling, transferring, or delivering a firearm to a purchaser or transferee or person being loaned a firearm, without any other parties being involved in the transaction. A violation of this section by a dealer is a misdemeanor. HISTORY OF CASE Appellants are taxpayers and citizens of Lafayette, firearms store owners and/or prospective patrons. 2 J.A. 239-41. The CITY's original Ordinance tried to ban "ammunition that has no sporting purpose and is designed to expand upon impact." We say "tried", and emphasize "no sporting purpose", because no such ammunition exists -- nor can it exist. It cannot exist because it is an oxymoron: By definition, hunting ammunition has a "sporting purpose", and all hunting ammunition is designed to expand on impact, inter alia because the fish and game regulations require only expanding ammunition for hunting. 2 J.A. 031 (=14 47). The original Ordinance also misdefined "firearm" in such a way as to ban the use (except "in defense") of innumerable tools, including shingle staplers, weed sprayers, rivet and nail drivers, staple guns, sling shots, jack hammers, bunsen burners, gas stoves, baseball equipment, drill and other pneumatic presses. After reviewing appellants' original Complaint, the CITY repealed or rewrote the ammunition ban and other provisions, including the definition of firearm. Compare 3 J.A. 639-60 to 661-664. The result was to moot appellants' first Nine Causes of Action, plus one half of yet another claim. Appellants thereafter filed an Amended Complaint. It added new claims based on the revised Ordinance and reformulated old ones, bringing the total number of claims raised by appellants up from 15 in the first complaint to 20 (including the mooted claims). 2 J.A. 236-82. Appellants sought a preliminary injunction against some of the remaining portions of the Ordinance. This was denied on the basis that the claims were legally unmeritorious. On November 3, 1995 the court below sustained respondents' general demurrer to all of the remaining claims. Thereafter the court below denied appellants' motion for C.C.P. =15 1021.5 attorneys' fees as to all the claims which were mooted by the CITY's revising the original Ordinance. The final judgment dismissing the entire case was signed by Judge Trembath February 11, 1996 and filed with the court below February 21, 1996. 3 J.A. 694ff. On this appeal we contend that both the November 3, 1995 and February 11, 1996 rulings were erroneous as a matter of law. ARGUMENT *The special linguistics of gun control. With respect to most of the issues in this case, the law is so clearly adverse that the Ordinance would never have passed were its subject not guns or abortion or immigration or welfare or some similarly emotive issue. But for the blinding emotional quotient, the City Attorney would have advised the CITY that the proposed Ordinance clearly violated state law. Instead the City Attorney advised the CITY (for instance) that cities can ban sale of handgun ammunition, based on "interpretation" of an Attorney General Opinion (J.A. 533:6-8) -- despite what that Opinion actually says: "the language of [Pen. C.] sections 12026 and 12034, construed together, precludes a local entity from prohibiting the sale of handgun ammunition." 77 ATTORNEY GENERAL OPINIONS 147, 152-53 (our emphasis). Likewise, the CITY just interpreted away the conclusion of the same Attorney General Opinion that "regulating firearms sales is beyond the reach of local governments." When the emotional quotient runs high, plain language gives way to the linguistic principles of Alice in Wonderland and Orwell's 1984 where "WAR IS PEACE" or, as in this case, "CAN'T MEANS CAN." These special principles of linguistics help account for gun owners' notorious aversion to compromise on moderate, rational gun controls. A regular outcome of such compromise is that, once enacted, the "compromise" disappears: the language regulating guns is construed as expansively as it can be (or beyond) while the provisos supposedly protecting gun owners are simply ignored. *Public policy, municipal duty and judicial credibility As discussed under History of Case, above, provisions of the original Ordinance reflect its authors' technical ignorance of firearms. Moreover, the Ordinance as a whole epitomizes the criminological ignorance and misinformation typical of popular media treatments of guns and "gun control." Though unnoticed in the media, over the last two decades criminologists have grown ever more pessimistic of the potential of gun bans, or gun laws generally, for reducing violence. Significantly, many scholars were forced to repudiate gun control as a strategy despite their own deeply-held contrary views. We recognize the pronouncements of this Court and the Supreme Court that policy arguments regarding gun control are properly addressed to the Legislature, not the courts. Galvan v. Superior Court (1969) 70 C.2d 851, 869, Sippel v. Nelder (1972) 24 C.A. 3d 173, 177. We raise these issues only to emphasize that the laws which preclude the Ordinance represent the Legislature's informed judgment on the public policy issues involved. However sincerely the CITY disagrees, it is as bound to respect state law as county welfare departments are by state policies with which they disagree. See also Salute v. Pitchess (1976) 61 C.A. 3d 557 (state law provides for citizens to be licensed to carry concealed handguns, so sheriff may not deny all applications as matter of policy, but must exercise his discretion to examine applicants on their merits). Cities and counties are mere agents, "mere creatures of the state...." Board of Supervisors v. Local Agency Formation Com. (1992) 3 C. 4th 903, 914, Ross v. Superior Court (1977) 19 C.3d 899, 908. As the "judicial function is to enforce statutes as written", without regard to their "wisdom, desirability or propriety," so the CITY's duty (as a "mere creature of the state") is one of abject obedience to spirit and letter of state law. If state policy is believed to be erroneous, the only proper remedy is to ask the Legislature to change it. Burnsed, id., Board of Education v. Round Valley Teachers Ass'n. (1996) 13 C.4th 269, 279, California Ass'n. of Psychology Providers v. Rank (1990) 51 C.3d 1, 21, Daley v. State Department of Social Welfare (1969) 276 C.A. 2d 801, 804-5. Until that change occurs a city, like a court, "must take the statutes as they read" and may not "substitute its judgment for that of the Legislature." Round Valley, id. and the other cases cited above. A further value of scrupulously observing and enforcing state laws favorable to gun owners is that ignoring those laws feeds the paranoia that leads gun owners to fanatically oppose enactment of new controls. More important, it leads many owners to withhold the compliance needed for controls to work. The law is the Great Teacher, as Mr. Justice Brandeis observed; and if government has no compunction about flouting laws designed to protect gun owners, the lesson gun owners learn is that they need have no compunction about defying laws designed to control them. A. FIREARMS STORE SECURITY 1. LAFAYETTE's =15 8-609 exceeds and contradicts the authority state law gives cities to regulate firearms store security. The special extra security requirements imposed on firearms stores by =15 8-609 of the Ordinance far exceed those required by state law even for gun stores in major cities. (Note that the CITY's planning staff found no need for additional regulation of gun store security, based on research showing that the state- mandated precautions had sufficed to prevent any theft from a gun store in the entire history of the CITY. 2 J.A. 242 and 243). In any event, =15 8-609 is both preempted by and contrary to state law. In towns exceeding 50,000 population, gun stores must install the security precautions listed in Pen. C. =15 12071 (b)(14). As to gun stores in LAFAYETTE and other towns having less population, the next subsection, (b)(15), empowers the city council to impose "the requirements specified in paragraph (14)." (Our emphasis.) Inherent in this authorization to impose exactly specified requirements is that neither more nor less restrictive requirements may be imposed. Thus Ordinance =15 8-609 violates =15 12071 (b)(15) when it requires precautions exceeding those specified in (b)(14) which are the only requirements the CITY is authorized to impose by =15 12071 (b)(15). As recently stated as to a similar state law, "The Act expressly permits only the limitations set forth therein. By creating further restrictions the City's ordinance directly conflicts with the limitations in the Act." Water Quality Ass'n. v. County of Santa Barbara (1996) 44 C.A. 4th 732, 742. 2. State law precludes local regulation by implicitly preempting the entire area of regulation of gun store security. Beyond express preemption is implicit preemption, something which exists in either of two circumstances: "(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; [or] (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action...." -- Water Quality Ass'n., supra, 44 C.A. 4th at 742-43 (quoting innumerable prior Supreme Court cases). The subject matter here is firearms store security precautions. Pen. C. =15 12071 (b)(15) demonstrates that this area is occupied by state law to the exclusion of local regulation. If that were not so there would be no reason for (b)(15) to specifically authorize towns of less than 50,000 population to impose such requirements. The Legislature specifically authorizes such limited city action because cities would otherwise have no authority to regulate in the area at all. This point is reinforced by a consistent statutory pattern. In two circumstances cities are given severely limited power over gun store security; but in no case does that include discretion to pick and choose among different precautions. Thus =15 12071 (b)(15) does not grant cities any power to require security precautions lesser, greater or different than those (b)(14) specifies. Towns below 50,000 population are given discretion, but only to choose whether or not to impose the precautions the state has chosen. The Legislature could have let such towns decide what precautions are needed in light of local experience and conditions. Instead, the requisite security precautions are ornately specified in three subsections of =15 12071 (b)(14) and further defined in nine more subsections of =15 12071 (c)(3). The only other power cities are given over gun store security is similarly limited. Pen. C. =15 12071 (d) allows city officials to exempt gun stores from particular state-mandated requirements -- but only on the grounds that the store "is unable to comply with those requirements because of local ordinances, covenants, lease conditions or similar circumstances not under the control of the licensee." Once again, there is no local discretion to choose among various security precautions. That is expressly excluded. The only power given is that firearms stores must be excused from (only) those among the standard state precautions which the store cannot meet because of contrary contractual conditions or local aesthetic ordinances. (Note also that =15 12071 (d) authorizes action only by local administrators, not by local legislators.) Indeed, =15 12071 (d) may be seen as protecting firearms stores against pretextual local legislation. It is not difficult to divine a reason for the Legislature's unwillingness to trust in local judgment. One obvious method of banning or restricting firearms sales would be to impose exorbitant security costs to eliminate gun stores. This danger is unlikely to have escaped the Legislature which, from 1923 on, has had to prohibit both ingenuous and disingenuous local attempts to limit the possession and sale of firearms. Whatever the rationale for =15 12071 (b)(14) and (15), the pattern is clear: Expressly paramount state law determines which security precautions a firearms store must employ. Cities have no power to deviate from these requirements, except to diminish them, and even that authority is limited to two situations only: A city of less than 50,000 population can decide not to adopt any gun store security requirements at all; and city officials can exempt gun stores from security requirements if compliance would violate contractual conditions or zoning ordinances. In no case, however, may local authorities make their own judgments about security, overriding the state-mandated requirements on the ground that more or different precautions are required or that lesser ones will do. 3. The limitations of =1512071 (b)(15), and its implicit occupation of the area, are not gainsaid by Pen. C. =15 12071(a)(6)(C). The court below held state law does not preclude cities from imposing requirements on gun stores beyond those defined in (b)(14) and (c)(3). Respondents argued that carte blanche local power to regulate gun stores can be implied from Pen. C. =15 12071 (a)(6)(C). But (a)(6)(C) neither confers nor implies any power. It is simply a catch-all description of -- and exception to -- local business licensing. Pen. C. =15 12071 (a) requires gun stores to obtain local business licenses. All (a)(6)(C) does is recognize an exception for those cities or counties that do not have business licensure. To prove that they are not so regulated, gun stores in those areas must provide the Department of Justice (DOJ) with A letter from the duly constituted licensing authority having primary jurisdiction for the applicant's intended business location stating that the jurisdiction does not require any form of regulatory or business license or does not otherwise restrict or regulate the sale of firearms. [Emphasis added.] We emphasize the portion of (a)(6)(C) which the CITY deems a backhanded implication of carte blanche municipal authority over firearms sales. How wrong this implication is can be judged by an Attorney General opinion citing Pen. C. =15 12071 for the opposite conclusion -- "regulating firearms sales is beyond the reach of local governments." 77 A.G. Ops. 147, 150 (1994) (city licensing power over gun stores is purely ministerial; Pen. C. =15=15 12070- 12084 constitute a comprehensive scheme of state regulation precluding local power to regulate firearms sales). Per the letter attached as Appendix C to this brief, the Legislative Counsel has independently reached the same conclusion; and the Legislature has ratified these opinions by reenacting =15 12070- 12084 without change. But that point is not even necessary to refute the claim that (a)(6)(C) allows cities to require gun store security precautions other than those specified in =15 12071 (b)(14). However (a)(6)(C) should be viewed, it does not specifically address gun store security. In contrast, as we have seen, subsection (b)(15) of the same statute limits municipal authority over gun store security to "impos[ing] the requirements specified in paragraph (14)." Even if (a)(6)(C) implied some general city power to regulate gun stores that must still yield to the more specific restriction of (b)(15). Moreover, (b)(15) controls because it was enacted after(a)(6)(C). Likewise, the CITY's position is precluded because it would render (b)(15) superfluous. To construe (a)(6)(C) as a general city regulatory power over gun stores would make it unnecessary to specially empower towns of less than 50,000 population to adopt gun store security precautions. So the CITY's proposed reading of =15 12071 (a)(6)(C) makes =15 12071 (b)(15) surplus. Given that a statute should not be interpreted so as to make even one word surplus, certainly an interpretation that would render an entire subsection surplus is inappropriate. And, once again, to construe (a)(6)(C) as allowing such cities to require more than those state-mandated precautions ignores the more specific (b)(15) language limiting cities to those precautions. Thus the CITY's attempt to imply municipal power to regulate firearms store security from sub-subsection (a)(6)(C) falls athwart the principle that statutes are read "'with reference to the entire scheme of law ... so that the whole may be harmonized and retain effectiveness.'" People v. Thomas (1992) 4 C.4th 206, 210. Statutes are not construed as conflicting if they may instead be harmonized, with both being given effect. The obvious method of harmonizing the statutes here is to limit (a)(6)(C) to its literal meaning -- a catch-all description of local business licensing -- rather than construing it as authorizing local control over firearms sales. The CITY's proposed construction is further precluded because it renders surplus both (b)(15)'s special grant to cities of narrow power over gun store security and (b)(15)'s limiting of that power to the adopt of the precautions specified by state law. Finally if two subsections cannot be harmonized, the later-enacted, more specific (b)(15) must control over the earlier and less specific (a)(6)(C). In sum, the CITY's attempt to require security precautions beyond those ordained by state statute, and conflicting therewith, is clearly invalid. [APOLOGY] We recognize, and apologize for, the fact that this brief is so tedious. In large part that is because this is a gun case. If this were just an ordinary case (about water softeners, for instance) it would suffice to show that state law "expressly permits only the limitations set forth therein." Water Quality Ass'n., supra, 44 C.A. 4th at 742. But that seems insufficient to counteract the prejudice against laws favoring gun owners. So we don't discuss just express preemption, we discuss implied as well. And we don't just mention one principle of statutory construction which the CITY's counter-argument violates, we plow through four. (If you think reading this is tedious, imagine how tedious writing it is.) Incidentally, we regret to report that the rest of this brief is no less detailed. B. TRIGGER-LOCK SALES REQUIREMENT The Ordinance, =15 8-608(9), prohibits sale of a firearm by a LAFAYETTE store unless a trigger-locking or similar safety device is sold with it. Though well-intentioned, =15 8-608(9) exemplifies the technical ignorance and ineptitude which beset the Ordinance in general. Appellants offered expert testimony that trigger- locks are not suitable for all kinds of firearms. Indeed, untrained persons trying to use them on some models may cause safety hazards or even unintended discharge. Even if it were not a product of technical ignorance, =15 8- 608(9) would be futile. All it requires is that a trigger-lock be sold with the firearm. It does not require that the (presumably unwilling) buyer actually use the trigger-lock. This is as futile and stupid as would be an Ordinance compelling every buyer of a fifth of gin to also buy a cup of coffee. The practical effect of =15 8-608(9) is diversion, not safety: A prospective buyer who does not already wish to spend extra money buying a trigger-lock is just diverted from a LAFAYETTE firearm store to a store in an adjacent city which has no such requirement and can therefore sell the firearm more cheaply. Beyond these pragmatic problems is the fact that =15 8-608 (9) is beyond the CITY's power to enact since it is worded as a ban of gun sales and that is its actual effect. As the Amended Complaint alleged (and the demurrer admitted), there are dozens of models of handgun and other firearms for which no trigger lock or similar device is made. Indeed, there are whole categories of firearm, e.g. lever-action and double-trigger rifles and shotguns, and derringers, which it is simply not possible to fit with a trigger lock or similar device. Section 8-608 (9) bars the sale of all such firearms since they are not exempt from the requirement that firearms can only be sold with a trigger lock. [2 J.A. 278-79.] The Attorney General and Legislative Counsel opinions concluding that cities cannot ban gun sales have alredy been mentioned. (See pp. 11-12, above.) More important, this Court's upholding of the statutory right to buy and own guns (Doe v. City & County of San Francisco (1982) 136 C.A. 3d 509, 518) is discussed below. First addressed, however, is that =15 8-608 (9) undercuts and violates the provisions of Pen. C. =15=15 12072 (d) and 12082 establishing and facilitating the right of private sale. 1. =15 8-608(9) conflicts with the statutory right of citizens to sell firearms and the registration and licensing provisions state law provides regarding such sales. For several decades California had in place a registration requirement and a background check (effectively a licensing system) -- but only for handgun sales made by retail gun dealers. Private sales were legal and unregistered; and, though state law prohibited felons from possessing firearms, no background check was required for private sales so private sellers had no way of knowing whether the buyer might be a felon. Nor could even the most conscientious private seller verify the buyer's bona fides by selling through a dealer. Dealers, having nothing to gain from facilitating such sales, would often or generally refuse to help process them. In 1988 the Legislature addressed this problem by creating an absolute right in private citizens to sell their firearms through dealers. As the Legislature itself explained, it was amending subdivision (d) of section 12072 of the Penal Code and adding Section 12082 of the Penal Code ... [in order] to give law abiding citizens the express statutory option of going through dealers to process their firearms transfers and to encourage the use of that process. -- Laws of 1988, ch. 1180, =15 1 (b) (emphasis added). In 1991 the Legislature went further yet, mandating that private sales of either handguns or long guns be processed through dealers. Pen. C. =15=15 12070 (a), 12072 (d), 12082. The CITY never denied that =15 8-608 (9) bars sale of the many guns for which trigger locks are not made; by its demurrer the CITY implicitly admitted our allegations to that effect. Thus the effect of the Ordinance is to bar dealers from making sales which the Penal Code both gives firearms owners a legal right to make and requires that they make through dealers whom the Penal Code expressly commands to make those sales. Thus =15 8-608 (9) is invalid for it "directly conflicts with the limitations" of state laws. Water Quality Ass'n., supra, 44 C.A. 4th at 742. A "local ordinance will be invalidated if it directly conflicts with state law, e.g., by prohibiting something permitted by the state law." 1 Witkin & Epstein, CALIFORNIA CRIMINAL LAW 66. Compare Sherwin- Williams Co. v. City of Los Angeles (1993) 4 C. 4th 893, 898: ...local legislation is "contradictory" to general law when it is inimical thereto. (See Ex parte Daniels (1920) 183 Cal. 636, 641-648 [finding "contradiction" where local legislation purported to fix a lower maximum speed limit for motor vehicles than that which general law fixed.].) Nor is the inimical effect of =15 8-608 (9) limited just to its barring sales of firearms for which no trigger lock exists. As to citizens selling firearms for which a trigger-lock does exist, =15 8-608 (9) interposes an extraneous element that discourages these sellers from complying with the state requirement that the sale be transacted through a dealer. The fact is that some buyers do not want trigger locks and will not pay for them. As to those buyers, =15 8-608 (9) leaves the private seller only two choices: lose the sale, or violate state law by making it outside the dealer system to avoid the CITY's trigger lock requirement. Thus that requirement "severely undermine[s]" state law -- and is "inimical" thereto -- by discouraging what Pen. C. =15=15 12070 (a), 12072 (d) and 12082 were enacted to require and encourage. Board of Education, 13 C. 4th supra at 286, Sherwin-Williams Co., 4 C. 4th supra at 898. Last, but by no means least, it is important to note why Pen. C. =15=15 12070 (a), 12072 (d) and 12082 mandate that private sales be transacted through dealers. The Legislature's purpose was to assure that sales of firearms be registered, and that buyers be licensed, as required by state law. So =15=15 12070 (a), 12072 (d) and 12082 relate to the registration and licensing of firearms. As such, they fall within Gov. C. =15 53071's express declaration that Penal Code provisions "relating to registration or licensing" of firearms exclude local law. Thus =15 8-608 (9) is not only implicitly preempted by Pen. C. =15=15 12070 (a), 12072 (d) and 12082, but expressly preempted by Gov. C. =15 53071 as well. 2. =15 8-608(9) conflicts with this Court's opinion in Doe -- which the Legislature has thrice ratified. By their express terms Gov. C. =15 53071 and Pen. C. =15 12026 (b) together preclude cities from requiring law abiding, responsible adults to obtain a permit to "purchase, own [or] possess" firearms. Doe construed these twin preclusions as implicitly preempting local gun bans of any kind, not just permit requirements. 136 C.A. 3d supra at 518. Subsequently, =15 12026 has three times been reenacted without change to the language Doe relied on. The Legislature is, therefore, presumed to have known of the Doe opinion and to have ratified it. In re Carmeleta B. (1978) 21 C. 3d 482, 490-91, Estate of Wernicke (1993) 16 C.A. 4th 1069, 1075, Orange County Employees Assn. Inc., supra, 14 C.A. 4th at 582-83, and cases there cited. Doe's holding is also confirmed by the legislative history of Gov. C. =15 53071 and Pen. C. =15 12026. The latter was enacted in 1923 when California adopted the Uniform Revolver Act. That Act, which still constitutes our basic gun control scheme, was drafted by the NRA as a compromise alternative to outright prohibition of handgun sales. Then in 1968 the Supreme Court held that, since =15 12026 spoke only to municipal regulation of handgun possession or sale, it did not preclude a San Francisco handgun registration ordinance. Galvan, supra 70 C.2d 851. The Legislature responded with Gov. C. =15 53071 preempting registration and regulation of possession or sale of any kind of firearm. These two statutes are part of a consistent pattern of state legislation preserving the right of law abiding, responsible adults to have and use firearms for family defense. That public policy's latest expression is SB 671 reducing the waiting period to buy any kind of firearm to 10 days from 20 days (handguns) or 15 (rifles and shotguns). Laws of 1996, ch. 128, signed July 5, 1996. Once again, the only mechanism for the CITY's disagreement with state laws favoring the right to buy firearms is asking the Legislature to repeal those laws. Once again, as the "judicial function is to enforce statutes as written", without regard to their "wisdom, desirability or propriety," (see fn. 6, above), so the CITY's duty is one of abject, servile obedience to the spirit, as well as the letter, of state law. In sum, the complaint stated a claim when it alleged that =15 8-608(9) violates state law by precluding the sale of firearms. 3. The implied repeal of Pen. C. =15 12026 (b) and Gov. C. =15 53071 which the CITY reads into =15 12071 (a) fails to meet the rigorous standards for repeal by implication. The CITY sought to evade Gov. C. =15 53071 and Pen. C. =15 12026 (b) by implying (as mentioned above) local power to ban firearms sales into Pen. C. =15 12071 (a)(6)(C). But there is simply no way of harmonizing the implication thus foisted on (a)(6)(C) with =15 12026 (b) and Gov. C. =15 53071. It bears emphasis that this would be true even if Doe's broad preemption holding were disregarded! Under even the narrowest literal reading, =15 12026 (b) (and Gov. C. =15 53071) bar cities from requiring a permit for law abiding, responsible adults to buy, own or carry a handgun. But the very language the CITY quotes from =15 12071 (a)(6)(C) refers to cities acting "to restrict or regulate the sale of firearms." So, if read as recognizing a power rather than being a mere catch-all exception, (a)(6)(C) would mean that cities had power not just to ban guns but to require a permit as a condition to buying them. Thus as the CITY reads (a)(6)(C) it conflicts with Pen. C. =15 12026 (b) and Gov. C. =15 53071, whether they are read broadly or narrowly. Because neither of them is mentioned in (a)(6)(C), the CITY must claim it partially repeals them by implication. But (a)(6)(C) meets none of the standards for repeal by implication. The first problem is that, even if (a)(6)(C) did partially repeal Gov. C. =15 53071, it could not prevail over Pen. C. =15 12026, for =15 12026's last reenactment was after (a)(6)(C), though both were reenacted in the same legislative session: So, assuming there were a conflict, =15 12026 (b) would preclude Ordinance =15 8-608(9), at least as to handguns. But no such conflict can be assumed for (a)(6)(C)'s wording is not positive enough to overcome the presumption against implied repeals -- a presumption "so strong that the court will [deem it overcome] only if the later statute revises the earlier in a manner that necessarily implies legislative intent to substitute the new statute for the older." Manufacturers Life Ins. Co. v. Superior Court (1995) 10 C. 4th 257, 276-77 (our emphasis), citing Roberts v. City of Palmdale (1993) 5 C. 4th 363, 379. As discussed above, far from "necessarily" implying an intent to repeal, (a)(6)(C) is not phrased as a grant to cities of authority to regulate firearm sales at all. Its context is city licensing of firearm stores (not of gun sales). All (a)(6)(C) literally does is define an exception to 12071 (a)'s requirement that firearm stores need a city business license. Read literally, it is just a shorthand description of the contents of the letter a gun store gets from local officials to exempt itself from having to show that it holds a local license. Did the Legislature really intend (a)(6)(C) to be read as recognizing or conferring on cities the power to ban gun sales? If so, it chose a very backhanded manner of expressing that intent -- far too backhanded to provide the "'"undebatable evidence of an intent to supersede"'" [Ultramar, Inc., supra, 17 C.A. 4th at 710 (emphasis by court) and opinions there quoted] that is required for a court to hold that (a)(6)(C) repeals Gov. C. =15 53071 or Pen. C. =15 12026 (b) by implication. It is not enough that the wording of (a)(6)(C) could be interpreted as conflicting with the other two statutes. "'To overcome the presumption [against repeals by implication] the acts must be irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation. The courts are bound, if possible, to maintain the integrity of both statutes if the two may stand together. There must be no possibility of concurrent operation. [Citations omitted.]'" --Ultramar, id.; emphasis by court. In this case compliance with these rules is easily possible since the conflict only arises out of the gratuitous implication the CITY would foist on (a)(6)(C). Once again, read literally all (a)(6)(C) does is define the terms of a letter gun stores must obtain saying that the city does not regulate them. Thus, read according to its terms, (a)(6)(C) does not conflict with the other statutes and all may operate concurrently. The next problem for the CITY's view is that "'"so strong is the presumption against implied repeals that [for a later law to be so construed it] 'must constitute a revision of the entire subject, so that the court may say that it was intended to be a substitute for the first.'"'" Roberts, supra, 5 C. 4th at 379 (our emphasis) and innumerable cases there cited and quoted. But it is clear that (a)(6)(C) does not revise the "'"'entire subject'"'" of Pen. C. =15 12026 (b). That subject is the right to "[a] purchase, [b] own, [c] possess, [d] keep or [e] carry" a handgun within the citizen's business or home. Even as the CITY reads it, (a)(6)(C)'s subject is only (a), the right to purchase handguns. Moreover, the difference in subject matter between 12026 (b) and (a)(6)(C) makes the implied repeal the CITY argues for stupidly futile. So long as =15 12026's bar of city licenses for possession still stands, allowing a city to require prospective handgun buyers to get a permit is senseless: Those desiring to avoid the permit requirement would just buy in an adjacent area. Nor could the city forbid its residents from doing so or bringing the handgun so purchased back to town. Since (a)(6)(C) does not repeal the "'"'entire subject'"'" of =15 12026 (b), that statute still bars local bans on ownership or transporting of handguns. It argues against construing (a)(6)(C) as an implied repeal that the result would leave the municipal power over gun sales so restricted as to be pointless. "[L]egislative policy is best effectuated by avoiding those constructions which lead to mischief or absurdity." People v. Jeffers (1987) 43 Cal. 3d 984, 998-999. 4. Ordinance =15 8-608(9) is expressly preempted by Gov. C. =15 53071 and the handgun safety licensing system established by Pen. C. =15 12072 (c)(5). Further argument against =15 8-608 (9) may be superfulous. But as we are mindful that vindicating laws favorable to gun owners requires a far greater showing than is required to invoke other laws, we reiterate another aspect of Gov. C. =15 53071: It makes Penal Code provisions "relating to registration or licensing [of] commercially manufactured firearms" exclusive. (Emphasis ours.) The Legislature has adopted a handgun safety licensing requirement, Pen. C. =15 12072 (c)(5), prohibiting handgun sales unless purchasers possess a basic firearm safety certificate issued under DOJ standards provided for in =15=15 12800 et seq. By operation of Gov. C. =15 53071, this state safety license requirement is the exclusive law on the sale of handguns, thereby barring local safety conditions on handgun sales like =15 8-608(9). It is worth noting that Gov. C. =15 53071's express preemption is not even necessary here because =15 8-608(9) would in any case be implicitly barred. That is because it undermines and is inimical to the Pen. C. =15 12072 (c)(5) safety licensing program. As previously stated, the extent to which trigger-locks promote safety -- and whether they promote it at all -- is controversial. There are firearms on which trigger-locks do not work and others for which they are actually dangerous. In broader compass, it is arguable that trigger locks are only a "half-safety", and thus an invitation to disaster. Some experts feel they offer a false security, thereby diverting gun owners from the only viable safety measure which is to unload guns that are not in use and lock them up in a gun safe. We do not mention these controversies out of any delusion that they are properly addressed to this Court for resolution. That is a legislative rather than a judicial task. In fact, trigger-lock bills have been considered, but have not become law. (1991 Session, SB 134; 1992 Session, SB 861.) In lieu thereof, the Legislature has required that handgun purchasers master a curriculum developed by DOJ which specifically includes: "(A) The safe use, handling, and storage of firearms. [and] (B) Methods for childproofing those firearms." Pen. C. =15 12803(a)(1) (our emphasis). Under this program the decision about trigger-locks has been left to those who, after mastering that curriculum, have been licensed to purchase firearms. The CITY's trigger-lock requirement interferes with the Pen. C. =15 12800 et seq. safety licensing program and with the discretion to develop its curriculum which the Legislature has reposed in DOJ. Implicit in the CITY's trigger-lock requirement is the teaching that firearm purchasers should use trigger locks. Yet DOJ's course curriculum may be teaching the purchasers it licenses that trigger locks ought not to be used on some guns or even that the entire trigger lock concept is a diversionary substitute for safer storage practices. For the CITY OF LAFAYETTE to take any position regarding such controversies is ludicrous, given that it was forced to repeal provisions of the Ordinance which showed the authors' ignorance of firearms and utter incapacity to regulate them rationally. (See p. 1, above.) Even if the CITY COUNCIL were renowned firearms experts, =15 8-608(9) would still intrude where (as declared by Gov. C. =15 53071), Penal Code provisions regarding licensing exclude local law governing firearms purchases. But let us hypothesize that the LAFAYETTE CITY COUNCIL were composed of firearms experts. This only illustrates the problem that the controversies over trigger- locks divide such experts. What if the Compton City Council were composed of the firearms experts who disagree, decrying the entire concept of trigger-locks as a snare and delusion? What if LAFAYETTE's trigger-lock requirement prompted the Compton City Council to forbid firearms dealers to sell trigger locks? Next, let us hypothesize that the Martinez City Council were composed of experts of an intermediate persuasion who vote to bar sale of trigger locks to purchasers of certain specified firearms while conditioning sale of other specified firearms on buying a trigger lock? What if the Antioch City Council were composed of experts who fancy the Magne-Trigger, a much more sophisticated form of trigger-lock which adds $150.00-300.00 to the price? What if some other set of city council firearms experts decided that no one should be able to buy a $300.00 target pistol unless they also bought a $900.00 gun safe? The short and obvious answer to all these hypotheticals is that state law delegates the resolution of such issues to DOJ, requiring it to oversee training and licensing of gun purchasers to make such decisions for themselves. Gov. C. =15 53071, Pen. C. =15=15 12072 (c)(5), 12800 et seq. The CITY's =15 8-608(9) is implicitly preempted because it "severely undermines" this delegation and training-licensure program, and compromises the discretion vested in trained-licensed purchasers to decide their own firearm security arrangements. And it was to preclude such undermining in general that Gov. C. =15 53071 expressly provides for the exclusivity of the Penal Code sections we rely on. C. "LOCATIONAL COMPATIBILITY" The Ordinance grew out of a controversy that arose when some LAFAYETTE residents learned to their horror that a firearms store proposed to open in the CITY and that the CITY COUNCIL could not act in time to prevent that. 2 J.A. 242-44. In the course of the controversy the protestors were further horrified to find that firearms stores were already operating in LAFAYETTE. (This had not attained much public visibility because the stores were operating out of the licensees' homes, the business consisting not of stocking firearms but just of ordering specific firearms at the request of specific customers.) In connection with the discussion which follows, it is worth noting that the protestors were opposed to Pen. C. =15 12026 (b), Gov. C. =15 53071 and the rights/policies embodied therein. Their concern was not that gun stores represent some aesthetic or urban blight problem different from other businesses, but rather that gun sales and ownership (especially for self-defense) are morally and socially abhorrent. So they were not moved by the CITY's research staff's finding that no action was needed because there was no instance of any problem being caused by gun stores in the history of the CITY or any of other city. (2 J.A. 243.) The Ordinance eventually enacted at the protestors' behest solved the (non-existent) problem of home-based firearms dealers by banning such businesses in residential zones. (See discussion in Section D below). Though equally determined to eliminate the (non-existent) problem of store-front firearms dealers, the CITY was advised that an explicit total ban would not survive a legal challenge. So the Ordinance effectuated that ban covertly by =15 6- 533 (d)(1), a misuse of the zoning power which appellants alleged (and so the demurrer admitted) has the effect of "deter[ring], preclud[ing] and prevent[ing] new gun stores from applying for a land use permit in LAFAYETTE...." (2 J.A. 262, =14 102.) Under =15 6-533, prospective firearms dealers must confront the following obstacle course in order to get a permit: Before applying they must rent a specific location, though they cannot know whether the location meets =15 6-533 (d)(1). They cannot know that because they cannot predict how it will be applied since =15 6-533 (d)(1) expressly authorizes denial of the land use permit for locational non-compatibility with existing gun stores and any other existing use. Though validated as to "adult" commercial enterprise ordinances, the concept "locational [in]compatibility" is simply a fabrication when applied to gun stores. (Note that it cannot mean "architectural compatibility" since that is required independently by =15 6-533 (d)(2).) Unlike "adult" commercial uses, gun stores do not produce "secondary effects" from which it is necessary to protect the surrounding neighborhood. The only "[in]compatibility" problem of gun stores is that their primary effect, selling guns and promoting a "gun culture", is repugnant to many highly vocal people. Yet aversion to guns and the gun culture is a distinctly minority view which the Legislature has rejected by expressly authorizing gun sales, ownership and use for protection. To evade the law, =15 6-533 (d)(1) allows pretextual denial of gun store permits under the false rubric "locational compatibility." That concept has no meaning or ascertainable application to gun stores or their relation to existing uses named in (d)(1), e.g., residential areas, day care centers and pre-schools. In falsely invoking that concept what the CITY is actually expressing is its aversion to the kind of commercial, social and political speech involved -- its aversion to gun stores as exemplars of the "gun culture." (See detailed discussion at pp. 45-54 infra.) =15 6-533 differs from the adult business model in three respects, each augmenting the CITY's power to covertly ban gun sales. First, license denial is not limited just to "locational [in]compatibility" with the existing property uses specifically named in (d)(1). If no specified use provides an excuse, a permit application may be rejected on the theory that gun stores are incompatible with any other existing use the administrative agency (the CITY's Planning Commission) designates. Second, =15 6- 533 offers no limit or guideline the Planning Commission must observe for how remote (or how close) a firearms store must be to other uses. The CITY's demurrer admitted appellants' allegation that to reject all applications the Planning Commission need only adopt a 450 foot separation rule, there being no location in LAFAYETTE that is 450 feet from all the other specified uses. Third =15 6-533 does not choose between mutually exclusive zoning policies by which the Planning Commission can deny applications: That new gun stores must be grouped together with the other uses (d)(1) specifies; or that gun stores may not be so grouped. The Planning Commission is free to require that gun stores be grouped together with some of the other uses, but widely separated from others. Indeed, =15 6-533 leaves the Planning Commission free to reject applications by switching back and forth between opposite policies even as to the same uses. Under =15 6-533 the Planning Commission can reject some applications because the proposed gun store would be close to an existing gun store and then reject other applications because the proposed location is not close. Thus =15 6-533 (d)(1) effectively deters prospective gun store applications by offering no clear guidance as to how to comply or as to whether the location they must pre-rent is appropriate, and giving the Planning Commission carte blanche to deny all permits by inconsistent application of the undefined, indefinable and pretextual locational compatibility standard. 1. =15 6-533's lack of policy definition and standards to confine or guide administrative action renders it unconstitutional. The invalidity of =15 6-533 does not depend on appellants' allegations of CITY hostility to firearms and firearms dealers or on any theory of =15 6-533's motivation. Even disregarding those issues, "the absence of standards to guide [the CITY's licensing authority] in exercising" the discretion to deny a permit which =15 6-533 (d)(1) confers upon it, "render[s] the delegation invalid." Hittle v. Santa Barbara County Retirement Employee's Assn. (1985) 39 C. 3d 374, Groch v. City of Berkeley (1981) 118 C.A. 3d 518, 522-23. It is true that as to variances and conditional use permits (CUPs) this constitutional specificity requirement has been held to be satisfied by very general standards. But =15 6-533 cannot be squared with the fountainhead cases so holding, City & County of San Francisco v. Superior Court (1959) 53 C. 2d 236 and Tustin Heights Assn. v. Board of Supervisors (1959) 170 C.A. 2d 619. Those cases say the reason generality is acceptable in ordinances defining variances, CUPs, etc. is that these are exceptions to an overall statutory scheme that does have "detailed standards and limitations", thereby coloring the basis for making exceptions. 170 C.A. 2d at 633; 53 C. 2d at 250 (imprecise standard for building permits must be understood "in light of existing and effective city ordinances prescribing express or minimum standards"). Moreover imprecision as to CUPs is inevitable because "it would be impossible and undesirable to devise specific standards to cover all conceivable variations of circumstances involving [and which may justify making an exception for] individual properties." Hunter v. City of Whittier (1989) 209 C.A. 3d 588, 596-97 (emphasis added), Tustin Heights Assn., 170 C.A. 2d at 634 and cases there cited. Nor are applicants so greatly harmed by denial of an exception as to a particular zoning area; after all, they can still locate in some other zone where their use is presumably not forbidden and they can engage in it as a matter of right. Id., 170 C.A. 2d at 630. But =15 6-533 (d)(1) corresponds to none of this. It makes gun stores an "exception" for the entire CITY. It leaves no area in which they have a right to exist. Nor does either it or any other ordinance offer "detailed standards and limitations" that easily could be supplied. The CITY could have cited many holdings that the standards for CUPs, variances and the like may be vague and general. What it cannot cite are cases holding that carte blanche may be given to pretextually exclude a lawful business from a whole city: a) by an undefined, undefinable (because irrelevant to it) concept of "locational compatibility"; b) under standards so vague that it is possible to reject gun store applications both because they are close to another gun store and because they are not close; and c) that the agency can exclude all new gun stores by just adopting a 150 yard separation requirement. This violates the minimum standards for delegation even as to zoning exceptions. These minimum standard are: that "(1) the [city council] retains control over the power to make fundamental policy decisions, and (2) the procedure established for the exercise of delegated power adequately safeguards those affected." Groch, 118 C.A. 3d at 522. 2. Much greater specificity is required because =15 6-533 impinges on legal rights in an area preempted from local action. As Hunter, 209 C.A. 3d at 596-97, held regarding federal preemption of CUP requirements for TV satellite dishes, though as a general rule of zoning law, broad general standards for conditional use permits have been upheld, ***[t]he approach is not the same when the property owner has independent rights which constitute a limitation upon the powers of the legislative body itself to regulate the matter. Thus, for example, when zoning restrictions operate on the property owner's exercise of First Amendment rights, the courts have required greater legislative specificity in order to avoid undue administrative discretion impinging on the owner's rights. [Emphasis added; cases omitted.] Gun stores and sales implicate two kinds of "independent rights", one constitutional and the other statutory. The constitutional right arises under the First Amendment: The offering of guns for sale involves commercial speech. Atlantic Show Promotions, Inc. v. City of Tampa, Nordyke v. County of Santa Clara. This would not preclude a flat ban on gun sales if a city has the power to ban them. But if (as in both Florida and California) state law denies cities that power, city curbs on such commercial speech can only be justified if the city "'shows that the restriction directly and materially advances a[nother] substantial [public] interest in a manner no more extensive than necessary to serve the interest.'" Atlantic Show, quoting, and applying to municipal regulation of gun sales, First Amendment principles from prior U.S. Supreme Court opinions. Compare Hampton v. Mow Sung Wong (1976) 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed. 2d 495 (where agency adopted a rule that Congress might properly have adopted, but the rationale justifying it did not fall within that agency's proper concern, Court would not give that rationale credence). Thus prohibitory zoning regulation of firearms stores must meet the very strict standards of specificity required for the regulation of commercial speech. Moreover, the operation of gun stores implicates statutory rights and privileges (both their own and their customers') against local prohibition or exclusion. This is implicit: *in Pen. C. =15=15 12072 and 12082 requiring (and enunciating a right) that private persons wishing to sell their own guns do so through firearms stores [see explanation quoted at p. 17 above from Laws of 1988, ch. 1180, =15 1(b)]; *in the Pen. C. =15 12026 right to buy handguns; *in Gov. C. =15 53071's preemption of local gun bans, *and in the preemption of firearms and ammunition sale by state occupation of the field (77 A.G. Ops. 147). Preclusion of local bans on gun stores is as implicit in these laws as the operation of abortion clinics is implicit in a right to abortion. If the operation of abortion clinics (and gun stores) were not protected, the right to have an abortion (or to buy a gun) "would be a mere mockery under the law." However much the CITY disagrees with the statutory right of responsible law abiding, adults to buy firearms, its disagreement can be expressed only by asking the Legislature to repeal =15 12026 (b) and the other statutes we have cited. Until their repeal, the CITY must honor their spirit as well as their letter. Ramos, supra, 4 C. 3d 685 (though child labor laws are not directed at county welfare agency, it may not require that underage welfare children work). If the "judicial function is to enforce statutes as written" (Sanders, supra, 2 C.A. 4th at 476) without regard to their "wisdom, desirability or propriety" (Burnsed, supra, 189 C.A. 3d 219), the most abject obedience to those statutes is required of cities, which are "mere creatures of the state...." Local Agency Formation Com., supra, 3 C. 4th at 914, Ross, supra, 19 C.3d 899. 3. =15 6-533 (d)(1) omits numerous safeguards that are required when zoning impinges on rights or activities which constitutional or statutory law (or both) denies the CITY power to ban. Cases involving "adult" commercial activities establish the specificity requirements for zoning provisions like =15 6-533. No more than other commercial speech, do adult commercial activities enjoy the full protection accorded to "core" political speech. Nevertheless zoning ordinances are closely scrutinized for they may provide administrators a pretext for banning uses sanctioned by constitutional or statutory law. A zoning ordinance is invalid if it "presents no definite, objective standards for making such determinations. An ordinance requiring a CUP for an activity sanctioned by higher law must be highly specific and meet other criteria that are entirely absent from =15 6-533. Since the city is forbidden to wholly exclude the activity, zoning standards applied to it must be so specific as to assure that it may occur somewhere in the city and to preclude administrators from excluding the activity overtly or covertly. So appellants stated a claim by alleging (2 J.A. 260-62) that =15 6-533 gives the Planning Commission power to exclude gun stores from Lafayette: *by adopting a requirement that they be 450 yards distant from all the other existing uses it specifically names; *and further by allowing rejection of license applications for undefined "locational [in]compatibility" of gun stores with any existing use, specified or unspecified. Where an activity has constitutional or statutory sanction, CUP requirements for it must expressly: *provide "recognition of the [pertinent legal] right ... as a factor to be evaluated" by the Commission in deciding permit applications, Hunter, 209 C.A. 3d at 599; *"give the applicant a [clear] standard he or she can hope to understand and meet", Smith, supra, 24 C.A. 4th at 1007; *and require that applicants who meet the standard shall get a permit. Ebel, supra, 120 C.A. 3d at 408-09 and cases there cited. But =15 6-533 lacks any of these express standards and admonitions to the zoning administrators. If an activity enjoys constitutional or statutory sanction, zoning regulations are only valid if focused not on the protected activity itself, but solely on its "secondary effects ... on the surrounding community." So locational compatibility provisions cannot be so vaguely worded that the Commission could "consider a neighborhood resident's psychological discomfort (or perhaps even religious revulsion) with the notion [that] people were dancing nude inside a nearby building." Smith, 24 C.A. 4th at 1005. It follows that appellants stated a cause of action when they alleged that those are exactly the kinds of revulsions =15 6-533's allows to be effectuated when it lets permits be denied for undefined, undefinable "[in]compatibility" not only with named existing uses but with any other use in the city. Moreover, if a permit may be denied because of inadequate "buffering" from some existing use, the ordinance must provide definite criteria "specifying a quantifiable perimeter, such as 500 feet, or a relatively precise term like 'adjacent'"; zoning standards are invalid if so vaguely worded that administrators may deny a license because a location is somewhere within a ten block radius of a residence. Smith, 24 C.A. 4th at 1006-07. Thus =15 6-533 (d)(1) is invalid in giving the Planning Commission carte blanche to say how close or far away a proposed location must be in relation to existing property uses. (Federal cases are, if anything, even more insistent on specification of precise numerical footage if an ordinance requires "buffering" between existing property uses and adult businesses.) The caselaw enunciates two further requirements (which =15 6- 533 lacks) for a locational compatibility provision targeting an activity sanctioned by higher law: The provision must enumerate "the kind of detrimental impacts ... e.g., traffic, crime, etc." that justify denying a permit; and it must indicate "the degree of detrimental impact required to" deny a license; this need not be set out "in quantitative terms, of course, but the standard should convey a sense that the impact must be substantial." Smith, 24 C.A. 4th at 1005, emphasis in original. Again, =15 6-533 offers no such guidance or limitation. So it is invalid because under it the "commission could reject [a permit] application ... despite the fact that all but a single inconsequential adverse effect were buffered from surrounding residents." Smith, id. The over-arching rationale Smith enunciates for these points is equally applicable to local regulation of firearms stores (or abortion clinics, or other controversial uses sanctioned by higher law), and is oft reiterated in the cases: If [local] legislators are to entrust an administrative body with a good part of the subjective decisionmaking involved in the placement of adult businesses ... the Constitution requires the legislators to identify the impacts the administrative body can appropriately consider and provide some guidance as to how adverse and serious those impacts must be in order to justify that body's denial of a CUP. Otherwise decisions reached for constitutionally impermissibly reasons can be justified with loose findings about questionably negative effects. Unless the administrative body's discretion is narrowed by specific appropriate criteria, the inquiry becomes a search for any reason to deny the CUP ... rather than a dispassionate examination of the evidence and an objective weighing of the factors bearing on a correct decision. First Amendment activities, especially those of a controversial or politically unpopular nature, are not well shielded by [vague] standards.... This is yet another reason the Constitution requires "narrow objective and definite" standards when First Amendment activities are at stake. -- Smith, 24 C.A. 4th at 1007-08 (emphasis in original) 4. A locational compatibility requirement is invalid because gun stores have no adverse "secondary effects" on surrounding areas. The foregoing discussion ought not to obscure an even more fundamental problem with =15 6-533: It allows denial of licenses based on the fiction of some totally undefined issue of "locational compatibility" between gun stores and existing uses. To justify such licensing, the CITY must demonstrate that gun stores do have special adverse "secondary" effects on the area around them -- and that these effects are remediable by zoning. Renton, 475 U.S. at 50-52, 89 L.Ed. 2d at 39-40 (ordinance must be based on evidence of adverse secondary effects, but evidence may include studies and facts developed by other cities and/or in prior cases). As the same Court reemphasized just last year: "... a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." [T]his requirement [is] critical; otherwise, a State could with ease restrict commercial speech in the service of other objectives that could not themselves justify a burden on commercial speech." -- Rubins v. Coors Brewing Co. (1995) 514 U.S. --, 115 S.Ct. 1585, 1592, 131 L.Ed 2d. 532, quoting prior U.S. Supreme Court caselaw (emphasis added). But the CITY can prove none of this for a gun store has no more adverse "secondary effects" than has any other store. A new gun store is no more or less "locational[ly] [in]compatib[le]" with existing uses than is a new market or jeweler or hardware, toy, clothing, computer or variety store. Gun stores do generate the same adverse secondary effects as do other businesses, e.g. traffic congestion. So gun stores may be subjected to the same zoning ordinances by which businesses in general are governed. City of Indio v. Arroyo (1983) 143 C.A. 3d 151, 159. A fortiori, however, the CITY cannot subject gun stores -- a controversial business sanctioned by higher law -- for special regulation based on "secondary effects" identical to those of non-controversial businesses the city does not so regulate. Gonzales, supra, 180 C.A. 3d at 1124, 1126 (where city permits some kinds of signs it cannot invoke aesthetics as a basis for banning others that are aesthetically indistinguishable), 44 Liquormart, supra, 116 S.Ct. at 1513, n. 20, citing Cincinnatti v. Discovery Network (1993) 507 U.S. 410, 428, 113 S.Ct. 1505, 1516, 120 L.Ed.2d 99 as holding that even if "States could prevent all newsracks from being placed on public sidewalks,... they could not ban only those newsracks that contained certain commercial publications." Far from bearing its burden of proof, the CITY did not even intimate that gun stores cause special adverse secondary effects. The only "evidence" in this case about the validity of locational compatibility as a concept is an allegation the CITY admitted by its demurrer: When assigned to research the matter, the CITY's staff was forced to recommend against the Ordinance, for it could find no problem gun stores had caused in LAFAYETTE or any other community. 2 J.A. 243. In sum, appellants stated a claim by alleging there are no adverse effects of gun stores locating in a neighborhood. While the CITY failed to bear its burden of showing adverse secondary effects from gun stores, appellants have no hesitation in showing the converse. It is necessary only to ask why does the Ordinance differ so markedly from state gun policy? The answer is that state gun policy rests on studies and empirical evidence about gun owners, not on baseless stereotypes. Scholarly studies allow us to readily distinguish those who patronize gun stores from the patrons who cause the deviance and crime effects associated with adult commercial activities (see footnote 29 above). A National Institute of Justice-funded review of all available national and local data concludes that, [while] the "typical" private weapons owner is often depicted as a virtual psychopath -- unstable, violent, dangerous[, t]he empirical research reviewed in this chapter leads to a sharply different portrait. The key findings are[:] [=14] Most private weaponry is possessed for reasons of sport and recreation... Relative to non- owners, gun owners are disproportionately rural, Southern, male, Protestant, affluent and middle class... There is no evidence suggesting them to be an especially unstable or violent or maladapted lot; their "personality profiles" are largely indistinct from those of the rest of the population. In a subsequent study, also funded by the National Institute of Justice, the same sociologists emphasized the difference between the great majority of gun owners and the small, highly aberrant minority of criminal misusers: It is clear that only a very small fraction of privately owned firearms are ever involved in crime or [unlawful] violence, the vast bulk of them being owned and used more or less exclusively for sport and recreational purposes, or for self-protection. This is not to deny that gun owners do differ from non-owners in some ways. For instance, a study of citizens who rescued crime victims or arrested violent criminals found these Good Samaritans were two-and-half times more likely to be gun owners than non- owners. Concomitantly, studies find that gun owners are more likely to approve "defensive" force, i.e. force used to repel attackers -- while, in contrast, those exhibiting "violent attitudes" (approval of violence against social deviants or dissenters) are no more likely to own guns than not. Notions of adverse effects (whether primary or secondary) are further dispelled by Professor Kleck's conclusions in the latest and most comprehensive study: Gun ownership is higher among middle-aged people than in other age groups, presumably reflecting higher income levels and the sheer accumulation of property over time. Middle and upper income people are significantly more likely to own than lower income people... [=14] Gun owners are not, as a group, psychologically abnormal, nor [do attitude surveys show them to be] ... more racist, sexist, or violence-prone than nonowners... [=14] Probably fewer than 2% of handguns and well under 1% of all guns will ever be involved in even a single violent crime. Thus, the problem of criminal gun violence is concentrated within a very small subset of gun owners. These criminal gun owners most commonly get their guns by buying them from friends and other nonretail sources, or by theft. Therefore, gun regulation would be more likely to succeed in controlling gun violence if it could effectively restrict nonretail acquisitions. [POINT BLANK, supra, at 22 and 47-48 (emphasis added).] The "locational [in]compatibility" the CITY sees as to day care centers, schools and pre-schools does not involve any special adverse secondary effects of gun stores. The unstated concern underlying =15 6-533 (d)(1) is aversion to "the gun culture," i.e., the political, social and commercial speech associated with gun stores. (See footnote 36, above.) 5. The concept of "locational compatibility" is irrelevant to gun stores vis-a-vis the other uses =15 6-533 (d)(1) specifies. Under =15 6-533 (d)(1) the Planning Commission may reject gun store applications as incompatible with any other existing use. The existing uses (d)(1) specifically names as incompatible are: other gun stores; residential areas; bars, liquor stores; schools and pre-schools or day care centers. To demonstrate the falsity of the entire concept it is necessary only to examine it in relation to each of these specified existing uses: a. Other firearms stores. We are unable to divine any public policy within the CITY's power to adopt that would dictate that gun stores either should or should not be located close to each other. Being identical uses, by definition they are "locationally compatible" -- unless, perhaps, the CITY is laboring under the delusion that firearms are fissionables which, when congregated in sufficient mass, trigger chain reactions. It is as absurd to speak of locational compatibility between gun stores as it would be to require that book stores (for instance) either be separated from each other or grouped together. Requiring guns stores to be locationally compatible with each other just gives the Commission an excuse to reject new gun stores in order to minimize gun sales and out of objection to the commercial and other expression that goes on there. In short, it allows the CITY to covertly do what it is forbidden to do by the First Amendment and Pen. C. =15 12026, Gov. C. =15 53071, etc. If some other basis exists for applying the concept "locational [in]compatibility" to identical uses, the CITY failed to raise it in the court below. b. Residential areas. As of the end of 1994, Americans were estimated to own more than 231 million firearms; 50% of all homes have at least one firearm of some type and the average gun owning household contains four or more. Unlike gun stores, where the stock is unloaded, in many homes firearms are loaded. By what rationale can gun stores be "locational[ly] [in]compatible" with these gun-rich residential areas? The non-existent danger of ammunition storage cannot be the rationale. The meaningless (as applied to gun stores and residential areas) reference to locational compatibility is just a euphemism for the CITY's antagonism toward the "gun culture" and its commercial, social and political expression in gun stores. If there is some other rationale, the CITY failed to mention it in the court below. c. Day care centers, schools and parks. Obviously, children should not have unsupervised access to loaded firearms. Far less should they have unsupervised access to motor vehicles, boats, and, in the case of young children, swimming pools, vitamins and poisonous fluids. Yet no one would argue that these facts call for zoning to separate paint or variety or hardware stores or car dealers or swimming pool contractors from day care centers, etc. For the accident problem lies not with the businesses that sell cars, guns, swimming pools etc., but in later negligence of the buyer or others who use them after purchase. (With guns, fatal accidents are concentrated among highly aberrant -- and illegal - - owners and their unfortunate children and associates.) What is the rationale for gun stores being "locationally [in]compatible" with schools and day care centers? If minors had the money to buy guns, the store still may not sell to them. As discussed in part A of this brief, gun stores are required to maintain extensive security. Self-interest makes them take care that to prevent even adult customers (much less children) having unsupervised access to their merchandise. Surely children are not more likely than adults to steal from gun stores or more able to defeat gun store security precautions. Nor is distancing gun stores 500 feet (or even 500 yards) away from schools likely to deter a child who is so determined to steal a gun that he would expend the effort required to defeat the security precautions. If there is some use of property that endangers schools and day care centers, it is not gun stores but nearby residential areas. To reiterate, these are areas in which an average of more than four guns is already present in 50% of homes. And, unlike gun stores, many homes are unoccupied during the school day, have minimal security, and keep their guns loaded. As to schools and day care centers, we are, once again, unable to divine any public policy within the CITY's power to adopt that would dictate that gun stores should be either separate from them or sited close to them. Certainly it cannot be argued that, vis-a-vis schools or day care centers, the location of gun stores has a "substantial", or more than an "inconsequential adverse effect" (Smith, supra, 24 C.A. 4th at 1005), much less that =15 6-533 (d)(1) "directly and materially advances a substantial interest [within the CITY's power to regulate] in a manner no more extensive than necessary to serve the interest.'" On the contrary, the actual rationale seems to be insulating children from the "gun culture." Liquor stores and bars. The argument here follows from those made above. Of course, drunks should not be able to stagger from a bar into a gun store and out again with a gun. Nor can they do so -- because state law requires that stores must wait 10, 15 or 20 days before allowing a buyer to take possession of a gun. That being so, what difference does it make that gun stores are (or are not) located close to bars and liquor stores? If there is some "locational compatibility" issue here, once again the CITY failed to explain it in the court below. SUMMARY: Even if the concept of "locational [in]compatibility" were relevant to gun stores, =15 6-533 (d)(1) would be invalid for failing to meet the specificity required where zoning ordinances single out for prohibitory regulation a use the CITY is forbidden to ban by constitutional or statutory law. Indeed, =15 6-533 fails even the very relaxed specificity requirement the constitutional delegation doctrine applies to CUP requirements for uses not sanctioned by higher law. Finally, the concept of "locational [in]compatibility" is not relevant to gun stores. So =15 6-533 (d)(1)'s invocation of it violates not only the constitutional and statutory provisions that bar the CITY from using a CUP to pretextually exclude gun stores from LAFAYETTE, but due process, equal protection and the principle that "local regulations [of business] may not be arbitrary or unreasonable." Korean American Legal Advocacy Foundation v. City of Los Angeles (1994) 23 C.A. 4th 376, 390 and authority there cited. (Though we believe we have done so, appellants are not required to show that the concept of locational compatibility is completely irrelevant to gun stores. As discussed above, =15 6-533 (d)(1) specifies several kinds of existing uses (including other gun stores) whose incompatibility will justify denying a license application for a new gun store. Even if the CITY bore its burden by showing adverse secondary effects on some of the existing uses specified, its failure to bear that burden as to all of those uses requires reversal of the general demurrer granted below. If even one of =15 6-533 (d)(1)'s specifications is invalid (or if 6- 533 is invalid under any of the other theories addressed), the judgment below is erroneous, even if none of our other challenges are viable. Saunders v. Cariss (1990) 224 C.A. 3d 905, 909 ("Our task is to determine whether the pleaded facts state a cause of action on any available legal theory."), PH II, Inc. v. Superior Court (1995) 33 C.A. 4th 1680, 1682 (general demurrer does not lie if only part of a claim is invalid). D. PROHIBITION OF HOME-BASED FIREARMS DEALERS The invalidity of banning home-based the sale of firearms by dealers out of their homes need not long detain us. The operative legal principles were detailed in the preceding section. Given the constitutional and statutory sanctions for firearm sales, the CITY can only justify banning them even in residential areas by showing some reason to believe such a location will cause adverse secondary effects. Once again, the granting of the demurrer freed the CITY from even attempting to make such a showing. Of course traffic congestion, noise and the other adverse effects on residential areas from sales businesses could justify zoning them all out, including gun sales. But LAFAYETTE has not excluded such uses per se. 2 J.A. 252, =14 84. Excepting only guns, residents may stock and sell anything out of their homes -- paint, hardware, camping and hunting and fishing equipment, computers -- even ammunition, chemicals and explosives. Likewise, gunsmiths, lawyers, accountants, etc. are allowed to operate offices in their homes. This precludes the CITY's ban of firearms sales unless the CITY can demonstrate that such sales have secondary effects on residential areas different in kind or degree from those of the other sales businesses it allows. When it tolerates the secondary effects of other kinds of sales in residential areas, it cannot use such effects as an excuse to ban only a form of sales that enjoys constitutional and statutory sanction. Allied to CITY's the First Amendment problem is one of Equal Protection: Since a regulation that bans gun sales but not other sales impinges on commercial speech, the issue is judged under the strict scrutiny standard. That means that "'the burden shifts [to the CITY] ... the state must first establish that it has a compelling interest which justifies the law and then demonstrate that the distinctions drawn by the law are necessary to further that purpose." People v. Mitchell (1994) 30 C.A. 4th 783, 794 (emphasis in original). So the CITY must show that =15 6- 533 (d) serves a compelling municipal interest and that banning gun sales, but not of other types of sale, is necessary to serve that interest. No such showing was even attempted below. In addition, the court below erred in failing to apply the rigorous test that California equal protection requires even to minimal scrutiny cases. Nor did the court below require the CITY to meet the commercial speech standard of "'show[ing] that the [=15 6-533 (d)] restriction directly and materially advances a substantial [CITY] interest in a manner no more extensive than necessary to serve the interest.'" Atlantic Show, supra. As the CITY failed to make the required showings, and as the appropriate tests were either not used or not satisfied, it was error to sustain the general demurrer to appellants' 11th Claim. E. BARRING MINORS FROM GUN STORES 1. The failure to define the "primary business performed" renders =15 8-608 (3) a fatally vague criminal proscription. Lafayette Municipal Code =15 1-301 makes it a misdemeanor to "violate any provision or fail to comply with any requirement of this Code." One such provision and requirement is that if gun sales are "the primary business performed" in a store, entrance must be denied to minors who are not accompanied by a parent or guardian: =15 8-608 (3) -- which is additionally enforced by loss of the store's license for violation; see =15 8-613. Guns are sold in sports stores, variety stores (e.g., K- Mart) and gun stores, all of which sell other items as well. How are store clerks to determine whether minors are barred since =15 8-608 (3) gives them no standard by which to determine what "the primary business performed" is? Is "primary" to be determined by the total floor space devoted to gun sales versus the space devoted to hunting garb, camping and sports equipment, gun books and magazines, holsters, ammunition, gunsmithing or other uses or services? Moreover, floor space usage varies from month to month (or even day to day). If "primary business" is to be determined from floor space, as of what time period is that determination to be made? Alternatively the criterion for "primary business" might be comparative gross sales from firearms versus other items. Or it could be net profit. In either case, what time period is to be employed: the last calendar year's figures or the average over the past five years, or some other period? Or is there some other standard according to which dealers, police and courts are to determine that a dealer is "primar[il]y" engaged in gun sales and thus subject to criminal and civil penalties based on =15 8-608 (3)? Last, but not least, even if a dealer is subject to =15 8-608 (3), it gives no indication of what must be done in order to comply: Is it enough to "card" anyone who looks young, or will dealers be held strictly liable if a minor shows false ID? Is it enough to ask adults accompanying minors if they are the minor's parent or guardian, or is the dealer strictly liable if it turns out the adult has falsely claimed that status? It is no answer to suggest, as the CITY did below, that all plaintiffs and other store personnel need do is wait until they are charged with violating =15 8-608, whereupon the ambiguity will be cured by judicial determination. A fundamental requirement of due process is that laws must be sufficient clear that people may know what is prohibited so that they can conform before being subject to punishment. People v. Superior Court (Caswell) (1988) 46 C.3d 381, 389-90, Burg, supra, 35 Cal.3d at 269. The clarity requirement applies doubly when penalties include delicensure. Morrison v. State Board of Education (1969) 1 C. 3d 214. NOTE: Far from our being "difficult" about this matter, we reiterate a suggestion we made below which would cure most or all of the constitutional problems. Replace =15 8-608 (3) with a ban on unaccompanied minors in the area of the store in which firearms are sold. That leaves it up to each store to decide whether it can and should separate and segregate that area out or whether it wishes to bar minors from the entire store. 2. As the exemption for stores selling firearms as a secondary part of their business does not rationally relate to the subject matter of the ordinance, it violates equal protection (17th C/A). The CITY explained that in general =15 8-608 (3) serves the "interest in protecting children from acquisition and use of deadly weapons...." The CITY failed to explain how this goal is rationally furthered by excluding minors only from stores where gun sales are the primary sales activities, but allowing them where gun sales are a secondary business. Presumably a large store that stocks 350 guns represents ten times more danger to minors than a small store that stocks 35 guns. Nor is that 10- fold greater danger mitigated by the large store's gun sales being only a secondary activity of an enterprise devoting far more space to gunsmithing, selling ammunition and/or hunting garb and camping and other sports equipment. Presumably the purpose of the "primary business" provision is to let such large sports stores admit children even though guns are available for sale. But that purpose makes the tail wag the dog. By exempting sports stores it exposes children to the same or greater (supposed) danger which is the basis of excluding them from gun stores. Even minimal scrutiny classifications must rest on some "'ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly situated shall be treated alike.'" Young v. Haines (1986) 41 C.3d 883, 899 (emphasis added). The CITY itself says "the object of the legislation" here is protecting children -- not assuring K-Marts, Big-5s and other stores against sales diminutions that may occur if children are excluded. Once again, the constitutional problem would be eliminated by a rule that treated all stores equally by requiring that all exclude minors from the portion of the store in which guns are stocked. That would exclude minors entirely from small stores whose business is devoted to gun sales, while allowing the more diversified stores to fence minors out of the firearms sale area. What cannot be justified is a "primary" vs. secondary gun sales standard, for that has no necessary relation to the supposed danger, i.e., the presence of guns. As discussed above, because gun sales involve commercial speech, strict scrutiny is the applicable standard of Equal Protection review. =15 8-608 (3) does not meet the requisites of strict scrutiny; i.e. The CITY cannot show that exempting stores where gun sales are a secondary business is necessary to serving the CITY's compelling interest in protecting child safety. Mitchell, supra, 30 C.A. 4th at 794. On the contrary, the exemption of such stores disserves the interest in child safety. In fact, =15 8-608 (3) cannot even meet minimal scrutiny -- for "judicial review under that standard, though limited, is not toothless." Young, supra, 41 C.3d 883, 899. "'[W]hat is required is that the court conduct "a serious and genuine inquiry into the correspondence between the classification and the legislative goals."'" Elysium Institute, Inc. v. County of Los Angeles (1991) 232 C.A. 3d 408, 427 quoting Hays v. Wood (1979) 25 Cal.3d 772 -- emphasis added to highlight the lack of correspondence between the classification (primary vs. secondary) and the goal of saving children's lives. Even social and economic legislation cannot stand where this correspondence is lacking. To reiterate, the issue is not whether the classes differ, but whether they differ in relation to the danger which the law exists to avoid. For instance, the difference between motels and hotels doesn't justify different regulation of signs used by each. Gawzner Corp. v. Minier (1975) 46 C.A. 3d 777, Carlin v. City of Palm Springs (1971) 14 C.A. 3d 706, 714. Similarly, pinball machines differ from "archery, baseball, basketball and quoits"; nevertheless, since banning pinball machines but not archery, etc. is irrelevant to the city's proffered rationale of banning commercialized "games of skill", it would violate equal protection. Cossack v. City of Los Angeles (1974) 11 C. 3d 726. In this case the CITY says the danger is that children might obtain guns. The CITY does not explain how stores whose primary business is selling guns differ in regard to that danger from larger stores which stock as many or more guns. The CITY admits the Ordinance must have a rational basis for covering only part of the danger. The CITY fails to note the correlative rule that the part covered must be the worst part: "the most conspicuous example of the danger [the enactment seeks] to preclude." Hays v. Wood (1979) 25 Cal.3d 772, 792. As stated in Cossack, supra, 11 C.3d at 735 the classification drawn by =15 8-608 (3) must be "'"'based upon some distinction'"'" which is "'"'not only germane to the purpose of the law but ... which suggests the need for and the propriety of the legislation.'"'"). How does allowing children in stores where gun sales is only a secondary purpose "'"'suggest the need for'"'" protecting them from being in places where guns are available. Clearly, small stores stocking a few guns are not "the most conspicuous example of the danger" when the access of minors to large stores stocking far more guns goes entirely unregulated. 3. The =15 8-608 (3) exclusion of minors deprives the appellants who operate gun businesses out of their homes of their privacy rights (15th C/A). Being grandfathered, appellants CHING and POLSE operate gun sales businesses out of their homes. So =15 8-608 (3) dictates that any minor present therein must be accompanied by parents or legal guardian. In other words CHING and POLSE cannot allow their children to invite other children over (unless accompanied by a parent); nor can CHING and POLSE leave their children in their own home under the care of a babysitter. The CITY does not even try to meet the strict requirements for justifying such a violation of the Cal. Const., Art. I, =15 1 right of privacy. These are that the challenged legislation must serve a "'compelling interest'", and that no restriction that is less intrusive regulation will do. To reiterate, the interest involved (according to the CITY) is keeping minors from obtaining firearms. Less intrusive ways of serving that interest not only exist but are already required: e.g. the Pen. C. =15 12071 (b)(14) and (15) requirement that guns be locked in a safe or other secured area when the proprietor (in this case also the parent) is absent. This is, of course, far more security than is required of other parents who own firearms in residential areas. This raises an insuperable strict scrutiny equal protection problem for =15 8- 608 (3). F. GUN STORE INSURANCE REQUIREMENT The CITY's =15 8-610 requires that gun stores have liability insurance in the sum of at least $1 million per occurrence. The Amended Complaint alleged: *that the CITY does not impose such a requirement on any other kind of business; *but that car rental companies and car dealers are far more likely than gun dealers to be sued for either furnishing a defective product or furnishing it to an unqualified person; *that many other businesses have the same or greater potential for defective product liability, e.g. gunsmiths, sellers of ammunition, car tires, gas or electric ranges, Christmas tree lights and all kinds of appliances as well as repair shops for such things; *that gun stores are no less capable of self-insuring than are liquor stores, ammunition dealers and gunsmiths, brake shops, or sellers of Christmas tree lights and other appliances; and, *that it was irrational to fix the same liability insurance policy requirement on all gun stores regardless of size. 2 J.A. 275-77; 1 J.A. 072, =14 13. Insofar as the principles protecting commercial speech are involved, these allegations clearly stated a claim. They shifted the burden to the CITY to prove "that the challenged regulation advances the [CITY]'s interest 'in a direct and material way.'" Rubins, supra, 514 U.S. ---, 115 S.Ct. 1585, 1592, 131 L.Ed 2d. 532. The CITY must prove both that there is a real problem, and that =15 8-610 "will significantly reduce" that problem. 44 Liquormart, supra, 116 S.Ct. at 1509 (emphasis in original). Moreover, the proof must be based on studies (Ibanez, supra, 129 L. Ed 2d at 129-30), not "'mere speculation and conjecture'", not "anecdotal evidence and educated guesses...." Rubins, supra. Most important of all, to vindicate its restriction the CITY must show that it is imposed on all those similarly situated, not just on the constitutionally protected commercial speech activity or on some subset thereof while other businesses to which it is equally applicable are not so regulated. Gonzales, supra, 180 C.A. 3d at 1124, 1126 (if city permits some kinds of signs it cannot invoke aesthetics as a basis for banning others that are aesthetically indistinguishable), 44 Liquormart, supra, 116 S.Ct. at 1513, n. 20. The allegations that many other businesses represented as great or greater a problem stated a claim under strict scrutiny equal protection as well. Appellants were entitled to a chance to prove those allegations. If they are proved, the burden shifts to the CITY to demonstrate that imposing an insurance requirement on gun stores but not similarly situated businesses is necessary to the compelling interest =15 8-610 serves. Mitchell, supra, 30 C.A. 4th at 794. Indeed, appellants' allegations stated a viable claim even under minimal scrutiny. Once again, in determining a challenge to an enactment under the minimal scrutiny standard the court must "'conduct "a serious and genuine inquiry into the correspondence between the classification and the legislative goals."'" Elysium Institute, 232 C.A. 3d at 427 quoting Hays v. Wood (1979) 25 Cal.3d 772. Given a "'"serious and genuine inquiry"'", it is difficult to see why liability insurance is required of gun stores, but not of other businesses involving the same or a greater danger of injury. It is elementary "that persons who are similarly situated" must "receive like treatment and statutes may single out a class for distinctive treatment only if that classification bears a rational relationship to the purposes of the statute." Britt, supra, 223 C.A. 3d at 274 -- citing cases which voided municipal taxes: on people lodging in places with more than five rentals, but not on people lodging in places with fewer than five; on transients living in trailers, but not those living in hotels or lodging houses; and on retirees living in for-profit retirement homes but not on those living in non-profit ones. 223 C.A. 3d at 275-7. When a "law provides that one [class] receives different treatment than another ... there must be some rationality in the separation of the classes." Britt, supra 223 C.A. 3d at 274. The "classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly situated shall be treated alike." -- Young, supra, 41 C.3d at 899 (emphasis added) and cases there cited. Once again, imposing a liability insurance requirement on gun dealers, but not on ammunition or liquor stores or gunsmiths or car dealers and repairers and renters, fails the test that differences in treatment must rest on some "'ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly situated shall be treated alike.'" Young, supra, 41 C.3d at 899 (emphasis added). Obviously no such "'ground of difference'" appears where the classification is more applicable to comparable uses it leaves unaffected than to the single use it prohibits. =15 8-610 falls athwart the test that there must be differences between those affected and those unaffected by a classification which reflect "'"some substantial qualities or attributes which suggest the need for and the propriety of the legislation."'" Cossack, supra, 11 C.3d at 735 (citations omitted; emphasis added). Obviously, that test cannot be met here where those unaffected by the Ordinance are actually more subject to regulation under its rationale than those it does regulate. Moreover under California equal protection, a classification which excludes some aspect of a problem is valid only if the part it regulates represents a more acute part of the problem than the part it does not. Though the federal equal protection standard is different, under California law, legislation is impermissibly underinclusive unless the legislature reasonably could have concluded that the phase of the problem singled out for differential treatment was "the most conspicuous example of the danger it sought to preclude. [quoting Hays, supra, 25 C.3d at 792.] Firearms dealers are clearly not the most conspicuous example of the danger which gives rise to =15 8-610's liability insurance requirement. Firearms dealers who have very limited civil liability are clearly not the most conspicuous examples of the danger of uncompensated judgments when car rental companies, automobile dealerships and bars, home-based and storefront ammunition dealers and liquor stores have comparable liability -- and much more occasion for actual suit. Comparable economic or social legislation was voided under minimal scrutiny review in: Cossack, 11 C.3d at 734-5, which held that a city cannot, under a purported rationale of banning commercialized "games of skill", ban pinball machines but allow "'archery, baseball, basketball and quoits....'" Gawzner Corp. held that cities can't require motels (but not hotels) which advertise rates on outdoor signs to list rates for all rooms rather than just the cheapest. Hotels and motels are "obviously different" -- but not in relation to the purpose of the law, so "it is discriminatory to restrict the outdoor rate advertising of [motels] in an attempt to protect the motoring public and not to restrict [hotel] advertising ...." 46 C.A. 3d at 791. G. ATTORNEYS' FEES Despite having lost on every litigated claim, appellants sought attorneys' fees under C.C.P. =15 1021.5 and Title 42 U.S.C. =15 1988. The fee application was based on the CITY's repeal of three sections of its original Ordinance shortly after suit was filed. Under both statutes attorneys fees are available "'If the plaintiff's lawsuit "'induced'" defendant's response or was a "'material factor'" or "'contributed in a significant way'" to the result achieved.'" Belth v. Garamendi (1991) 232 C.A. 3d 896, 901 (collecting cases). Appellants' motion was supported by declarations showing all the elements for an award under both statutes. Appellants made out a prima facie case that the CITY's repeal was a response to their suit. Specifically, appellants showed: *that they had faxed the City Attorney's Office a pre-filing copy of their complaint on these three provisions; *that the Assistant City Attorney had replied that she would recommend repeal and non-enforcement of these provisions pending repeal; *and that each provision had been repealed within a few weeks of the suit being filed. 2 J.A. 446-47. The CITY opposed the motion on the ground that even before receiving appellants' faxed pleadings it had discovered all the problems and intended to repeal the three sections. Appellants do not deny that the CITY overcame their prima facie case as to two of the three provisions. As to the third repealed provision (a total ban on the sale of high capacity magazines), however, the CITY offered no supporting evidence at all for its claim of prior independent discovery. Thus the denial of attorneys's fees can only be sustained if the record is lacking as to some element of a claim for attorneys' fees. The record is not lacking, nor is it contradicted by factual submissions from the CITY. Most of the CITY's argument, and all its factual submissions, concerned either the other two repealed sections or legal issues as to the amount of the fees requested (hourly rate and multiplier). Thus appellants were uncontradicted factually on the following required elements for C.C.P. =15 1021.5 awards: Financial burden. The evidence (2 J.A. 449-51) showed that the financial burden of private enforcement was far beyond any plaintiff's individual stake. Need for private enforcement. "When an action is brought against governmental agencies, the need for private enforcement is clear." Richard Pearl, CALIFORNIA ATTORNEY FEE AWARDS =15 4.32 (CEB, 1995) citing Woodland Hills Residents Assn. v. City Council (1979) 23 C.3d 917, 941. Significant benefit to large class. The magazine cause of action raised preemption issues based on Pen. C. =15 12026 (b) and Gov. C. =15 53071. (1 J.A. 063-64. This was, therefore, a suit that "vindicated legislative intent", meaning that it "benefitted not only those who are [directly involved]..., but the citizenry as a whole." Folsom, supra, 32 C.3d at 684. Planned Parenthood v. Aakhus (1993) 14 C.A. 3d 162, 171-72. Moreover, by analogy to cases vindicating the rights of those seeking to have abortions, this case must be deemed to have vindicated the right of all law- abiding responsible adults to buy such magazines, whether or not they may ever desire to do so. Planned Parenthood, supra, 14 C.A. 4th 172 (by vindicating right of women to be free of interference with abortion, this case "benefits all women in the state."). Relative public importance. Preemption involves constitutional provisions governing local and state governmental relations. So this case falls under the principle that the relative importance of the public policy vindicated is clear when that policy is of constitutional stature. Serrano v. Priest (1977) 20 C. 3d 25, 46, n. 18, Press, supra, 34 C.3d at 318; Pearl, above, =15 4.16. (See also the facts attested at 2 J.A. 454- 57.) CONCLUSION As a practical matter ignoring and flouting constitutional and statutory provisions favorable to gun owners produces not gun control but decontrol. It feeds the paranoia that leads the gun lobby to fanatically oppose enactment of new controls. More important, it leads many owners to withhold the compliance needed for controls to work. We reiterate: The law is the Great Teacher; and if government has no compunction about flouting laws designed to protect gun owners, the lesson gun owners learn is that they need have no compunction about defying laws designed to control them. For the foregoing reasons it is respectfully submitted that the judgment below erred in that appellants stated a viable claim against each provision of the Ordinance as discussed herein. It is further submitted that the following sections of the Lafayette Municipal Code are plainly unlawful on their face and should be so declared in this Court's opinion without necessity of further consideration by the trial court: 6-533 (d)(1) ("locational compatibility"); =15 8-608 (3) (exclusion of minors). DATED: July 20, 1996. Respectfully submitted, __________________________ Don B. Kates Counsel for Appellants DECLARATION OF SERVICE BY UPS I, Barbara Miller, declare that I am not a party to the above-entitled action, that I am over the age of 18 years, that my business address is 300 Montgomery, Suite 538, San Francisco, CA. On July 23, 1996 I served the within brief personally depositing true copies in a UPS overnight delivery mail facility at San Francisco, California, with postage thereon fully prepaid in envelopes addressed as follows: one copy to Law Offices of Charles J. Williams 1320 Arnold Dr., Suite 160 Martinez, CA. 94553 and another to Hon. James R. Trembath Contra Costa Superior Court 725 Court St. Martinez, CA 94553 and 5 copies to Clerk California Supreme Court 303 Second St., South Tower San Francisco, CA 94107 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct of my own personal knowledge and that this declaration is executed at San Francisco, California on July 23, 1996. Barbara Miller=1A --PART.BOUNDARY.0.15854.emout14.mail.aol.com.850860090--