CITY COUNCIL AGENDA ITEM NO. 17
Meeting Date: August 28, 2007
Subject/Title: Mobile Vendor Regulations
Prepared by: Damien Brower, City Attorney
Mark Evenson, Chief of Police
Submitted by: Damien Brower, City Attorney
Donna Landeros, City Manager
Provide direction on the regulation of mobile vendors.
On May 22, 2007, Mayor Taylor, with Council concurrence, asked staff to look
into the sale of imitation firearms to minors by mobile vendors.
Penal Code sections 12550-12556 regulate and restrict the sale of BB guns
and imitation fire arms. Generally, BB guns cannot be sold or transferred to
minors without parental consent. Furnishing BB devices to minors without
such consent is a misdemeanor. Imitation firearms cannot be sold to anyone,
with few exceptions (e.g., those that are used in theatrical productions,
military ceremonies, certified sporting events or as displays at local
schools). Imitation firearms do not include devices where the entire
exterior surface of the device is a bright color or where the entire device
is constructed of transparent materials.
The State Legislature has found some regulatory issues to be of statewide
concern and has not relinquished its authority on such issues to cities. One
such area where the state retains authority relates to imitation firearms.
Government Code section 53071.5 reads in pertinent part: “… the Legislature
occupies the whole field of regulation of the manufacture, sale or
possession of imitation firearms, as defined in Section 12550 of the Penal
Code, and that section shall preempt and be exclusive of all regulations
relating to the manufacture, sale or possession of imitation firearms.”
A survey of California cities suggests a wide range of regulations related
to mobile vendors and more specifically to ice cream vendors. Perhaps the
most common regulation prohibits ice cream vendors from selling products
within certain distances of schools, parks and other areas where children
may congregate during certain times of the day (Riverside). Other cities are
more expansive in their regulations and will limit the sale of goods from
ice cream trucks to food products (San Diego, Santa Clara and Santa Cruz).
At least one city (Stockton), includes location regulations, goods
restrictions, and requires ice cream vendors to go through a separate
permitting process in addition to obtaining a business license.
In Contra Costa County, a recent survey suggested that most cities contacted
do not have an ordinance regulating ice cream vendors and/or have not
experienced problems with ice cream vendors. Antioch and Concord both
prohibit the sale of products within a certain distance of schools and
Antioch limits the time in which products can be sold. Martinez regulates
ice cream vendors through its peddler ordinances and requires the vendors to
be fingerprinted and to obtain a peddler permit.
As stated above, the City is specifically precluded by the State from
regulating the sale of imitation firearms by ordinance. This preclusion does
not prevent the City’s Police Department from actively enforcing the Penal
Code section related to the sale of imitation firearms. For example, earlier
in the year the San Diego City Council amended their municipal code to read
as follows: “In addition to enforcing applicable federal, state and local
laws the City intends to strictly enforce any violations of the California
Penal Code regarding the sale, distribution and display of BB devices and
Imitation Firearms.” (San Diego Municipal Code section 42.0161). Although
the San Diego City Council recognized that its ability to regulate imitation
firearms was preempted by the State, it wanted emphasize the importance of
enforcing existing State law.
At this time, if the City Council wishes to take action on this matter,
staff would recommend that they adopt a resolution with language similar to
that recently adopted by the San Diego City Council. Such an action would be
consistent with State law and not place additional demands on City staff