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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

RECOMMENDATION
Provide direction on the regulation of mobile vendors.

PREVIOUS ACTION
On May 22, 2007, Mayor Taylor, with Council concurrence, asked staff to look into the sale of imitation firearms to minors by mobile vendors.

BACKGROUND
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.” (Emphasis added.)

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 resources.

FISCAL IMPACT
None.


 

 

City Administration
City of Brentwood City Council
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Brentwood, CA 94513
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