Suter v. City of Lafayette, A073743

Citation67 Cal.Rptr.2d 420,57 Cal.App.4th 1109
Decision Date16 September 1997
Docket NumberNo. A073743,A073743
CourtCalifornia Court of Appeals
Parties, 97 Cal. Daily Op. Serv. 7426, 97 Daily Journal D.A.R. 11,940 Edgar S. SUTER et al., Plaintiffs and Appellants, v. CITY OF LAFAYETTE et al., Defendants and Respondents.

Don B. Kates, Novato, C. D. Michel, Los Angeles, for Plaintiffs and Appellants.

Charles J. Williams, Teresa L. Highsmith, Martinez, Eric Gorovitz, Landels, Ripley & Diamond, R. Morgan Gilhuly, San Francisco, Jamie O. Harris, Evans, Latham, Harris & Campisi, San Francisco, for Defendants and Respondents.

Richards, Watson & Gershon, Terence R. Boga, Los Angeles, for Amici Curiae: City of Lafayette.

STEIN, Associate Justice.

Appellants Edgar S. Suter et. al., appeal from a judgment entered after the superior The City of Lafayette enacted an ordinance requiring persons seeking to sell, transfer or lease weapons 1 to obtain land use permits and police permits in addition to the licenses already required by state and federal law. Appellants contend that the ordinance is preempted by state law and that it violates constitutional principles of equal protection and due process. We find that local governments are not generally excluded by state law from imposing additional licensing requirements on firearm dealers. We further find that with one exception, the specific provisions at issue here do not conflict with, duplicate, or enter into a field fully occupied by state law and are not, therefore, preempted. We find that provisions such as those at issue here are well within the police powers granted municipalities and that they meet constitutional requirements for equal protection and due process. We will affirm the judgment except as it upholds the validity of Lafayette Municipal Code section 8-609, which we find to be preempted by state law.

court sustained a demurrer without leave to amend to their consolidated complaint and petition for writ of mandate. They also appeal from a postjudgment order denying their request for attorney fees.

We also reject appellants' challenges to the order denying attorney fees, and affirm that order.


The City of Lafayette adopted ordinance No. 433, amending and adding to the Lafayette Municipal Code so as to restrict the areas in which firearms may be sold and to impose licensing requirements on their sale. Pursuant to local law, firearm dealerships are confined to certain commercially-zoned areas. In addition, firearm dealers are prohibited from selling, leasing or transferring weapons without first obtaining both a land-use permit and a police permit. (§ 6-533(b).) A dealer seeking to obtain or renew a police permit is required to file an application with the chief of police, providing a variety of information such as name, address, age and proof of compliance with all federal and state licensing laws. (Id., § 8-606.) The police chief is directed to conduct an appropriate investigation of the applicant to determine for the protection of the public safety whether a permit may be issued. (Id., § 8-607.) The issuance of a permit is subject to a number of conditions, several of which are relevant to the issues on appeal and will be discussed in further detail below. Lafayette Municipal Code section 8-608 requires firearm dealers to sell, lease or transfer a trigger lock or similar device with every firearm sold, leased or transferred. Lafayette Municipal Code section 8-609 requires that the sale of firearms be operated out of a secured facility, and specifies the security measures that must be taken. Lafayette Municipal Code section 8-610 requires the applicant to obtain a policy of insurance as specified by the code. If the code's provisions are met and if the applicant also complies with all applicable federal, state and local laws, the police department may grant a police permit to the applicant. The police permit expires one year after issuance, but may be renewed annually. (Id., § 8-611.) Finally, the code specifies the grounds upon which an application shall be denied, and provides for review of any decision by the police chief to deny or revoke a permit. (§§ 8-612, 8-613, 8-614.)

In determining if a land use permit should be issued, the planning commission is directed to consider if the location of the business is compatible with other existing uses in close proximity, and if the proposed use is architecturally compatible with other existing uses in the vicinity, taking into account the requirements for issuance of a police permit that firearm sales be conducted out of a secured facility. (Lafayette Mun.Code, § 6-533(d).) Firearm dealers in a residential zone as of the effective date of ordinance No. 433 are permitted to continue operations as a nonconforming use, provided they obtain a police permit and business registration within 60 days.

Appellants are persons affected by ordinance No. 433 in that they sell firearms out of their residences, wish to purchase firearms in zones other than those specified by ordinance No. 433 or otherwise are concerned that Lafayette's laws will restrict their ability to sell or purchase firearms. They challenged ordinance No. 433 by filing a petition for writ of mandamus and a complaint, seeking equitable and declaratory relief. Prior to any judicial review of the matter, Lafayette amended ordinance No. 433, effectively mooting appellants' first nine causes of action. The trial court sustained a demurrer to appellants' complaint without leave to amend, and entered judgment dismissing the action in its entirety. Appellants nonetheless sought attorney fees pursuant to California's private attorney general statute, Code of Civil Procedure section 1021.5, claiming that they were the catalyst for the amendment that mooted their first nine causes of action. The court rejected appellants' argument and denied their request for fees.

I. State Preemption of Local Laws

California Constitution Article XI, section 7, confers on a city such as Lafayette the power to "make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." Thus, "[u]nder the police power granted by the Constitution, counties and cities have plenary authority to govern, subject only to the limitation that they exercise this power within their territorial limits and subordinate to state law. (Cal. Const., art. XI, § 7.) Apart from this limitation, the 'police power [of a county or city] under this provision ... is as broad as the police power exercisable by the Legislature itself.' (Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 140 [130 Cal.Rptr. 465, 550 P.2d 1001].)" (Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885, 218 Cal.Rptr. 303, 705 P.2d 876.) Local legislation that conflicts with state law, however, is preempted by such law and is void. (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897, 16 Cal.Rptr.2d 215, 844 P.2d 534; Candid Enterprises, Inc. v. Grossmont Union High School Dist., supra, 39 Cal.3d 878, 885, 218 Cal.Rptr. 303, 705 P.2d 876.) "A conflict exists if the local legislation duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication." (Sherwin-Williams Co. v. City of Los Angeles, supra, 4 Cal.4th at p. 897, 16 Cal.Rptr.2d 215, 844 P.2d 534, internal quotation marks and citations omitted.)

The State Legislature has chosen to prohibit local government from enacting certain types of weapons legislation. Penal Code section 12026, for example, specifically and expressly prohibits local governments from requiring citizens or legal residents to obtain local licenses to "purchase, own, possess, keep, or carry" specified firearms anywhere within the citizen's or legal resident's place of residence, place of business, or on private property owned or possessed by such person. The State Legislature also has expressed an intent fully to occupy other specific areas of weapons control. Government Code section 53071 thus provides: "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...." Government Code section 53071.5 similarly states an intent fully to occupy the "whole field of regulation of the manufacture, sale, or possession of imitation firearms...." (Italics added.)

Whether the state law has preempted Lafayette's local laws depends on whether there is legislation prohibiting local governments from requiring local licenses or permits from persons wishing to sell, lease or transfer firearms, or an expression by the Legislature of its intent to fully occupy that field. 2 Support for the conclusion that the Legislature has intended to preempt only narrow areas of firearms control has been found in the fact that statutes such as Penal Code section 12026 would be redundant if the state had intended to preempt the entire field of weapons control. (Galvan v. Superior Court, supra, 70 Cal.2d at p. 860, 76 Cal.Rptr. 642, 452 P.2d 930.) That state law tends to concentrate on specific areas, leaving unregulated other substantial areas relating to the control of firearms, indicates an intent to permit local governments to tailor firearms legislation to the particular needs of their communities. (Id. at pp. 862-863, 76 Cal.Rptr. 642, 452 P.2d 930.) "That problems with firearms are likely to require different treatment in San Francisco County than in Mono County should require no elaborate citation of authority." (Id. at p. 864, 76 Cal.Rptr. 642, 452 P.2d 930.) In addition, a significant factor in...

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