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Ordinance 2016-04ORDINANCE NO. 2016-04 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GILROY AMENDING CHAPTER 12B OF THE GILROY CITY CODE, ENTITLED "JUNK AND SECONDHAND DEALERS" REGARDING METAL RECYCLING THROUGHOUT THE CITY OF GILROY WHEREAS, the California Constitution, article XI section 7, confers on the City of Gilroy ( "City ") the power to make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws; and WHEREAS, the proposed Ordinance will amend various provisions of the current Gilroy City Code, Chapter 12B, entitled "Junk and Secondhand Dealers" and the proposed text changes would occur in that chapter of the Gilroy City Code; and WHEREAS, the City Council, after considering this item as a study session item at a duly noticed City Council meeting on September 22, 2014, unanimously directed staff to prepare an ordinance to reflect the new legislation, specifically Senate Bill No. 1387 and Assembly Bill Nos. 1583 and 1508, which were enacted to address the prolific theft of metal from community facilities; and WHEREAS, on February 1, 2016, the City Council took and considered written and oral public testimony, the staff report dated February 1, 2016; and WHEREAS, the City Council finds that the proposed Ordinance is necessary for the protection of the public health, safety and welfare; and WHEREAS, the City Council further finds that the proposed Ordinance is necessary to reduce the unanticipated financial costs to the City because of prolific theft of metal in the City; and WHEREAS, these amendments to the Gilroy City Code are exempt from environmental review pursuant to Section 15061(b)(3) of the State Guidelines implementing the California Environmental Quality Act of 1970, as amended, because it can be seen with certainty that there is no possibility that said amendments will have a significant effect on the environment; and NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY DOES HEREBY ORDAIN AS FOLLOWS: 4817- 3267- 3325v2 _1- ORDINANCE NO. 2016-04 X04706083 SECTION I The Gilroy City Code, Chapter 12B, entitled "Junk and Secondhand Dealers" is hereby repealed in its entirety to be replaced with a new Chapter 12 B to read as follows: "12B.1 Definitions. (a) For the purposes of this chapter a "junk dealer" shall be a person, firm or corporation having a fixed place of business in the city and engaged in conducting, managing or carrying on the business of buying, selling or otherwise dealing in either wholesale or retail any old rags, sacks, plastic or glass bottles, cans, paper, scrap metal, metal wire or tubing, or metal in any form, or other articles commonly known as junk. (b) "Secondhand dealer," as used in this chapter shall be defined as provided in Sections 21626 and 21626.5 of the California Business and Professions Code. (c) "Tangible personal property," as used in this chapter, shall be defined as provided in Section 21627 of the California Business and Professions Code. 1213.2 Permit— Required. It shall be unlawful for any person to engage in, conduct, manage or carry on the business of secondhand dealer or junk dealer without first applying for and receiving a permit therefor in writing from the chief of police in the manner provided in this chapter. The conduct of such businesses shall comply with the requirements of this chapter and the California Business and Professions Code Sections 21600 et seq. 1213.3 Same — Application. Any person desiring to obtain a permit to conduct or carry on the business of a secondhand dealer or junk dealer shall file an application in writing therefor with the chief of police. In addition to any other information required on the form, the applicant shall specify by street and number the place where such business is proposed to be conducted or carried on and said application shall be signed by the applicant and shall contain the residence address of the applicant. In addition to the application required in this chapter, the applicant shall also be required to complete any such additional forms as prescribed and provided by the Department of Justice. 12BA Same — Issuance; subject to compliance, prerequisite to license. (a) No permit to conduct or to carry on the business of a secondhand dealer or junk dealer shall be granted to any person unless the person shall first have made an application in writing for a permit on forms required by the city and as prescribed and provided by the Department of Justice. No person shall be issued a permit to carry on the business of a 4817 - 3267- 3325v2 _2_ ORDINANCE NO. 2016.04 JH104706083 secondhand dealer or junk dealer if that person has been convicted of an attempt to receive stolen property or any other offense involving stolen property. Prior to the granting of a permit under this chapter, the application for said permit shall be submitted to the Department of Justice in accordance with the procedure set forth in Section 21641 of the California Business and Professions Code. (b) The city finance department shall not issue any business license to any person to conduct or carry on the business of a secondhand dealer or junk dealer until the chief of police shall have granted a permit therefor as provided in this chapter. Permits granted under this chapter shall be renewable one year from the date of issue and annually thereafter upon the filing of a renewal application and the payment of appropriate fees as adopted by council resolution and subject to the requirements provided in Section 21642 of the California Business and Professions Code. 12B.5 Same — Revocation; hearing and notice thereof, restoration. (a) In the event that any person holding a permit to conduct or carry on the business of secondhand dealer or junk dealer shall violate, cause or permit to be violated any of the provisions of this chapter or any provision of any ordinance or any law relating to or regulating any such business or shall conduct or carry on such business in an unlawful manner or shall cause or permit such business to be conducted or carried on in an unlawful manner, it shall be the duty of the chief of police in addition to the other penalties provided by this chapter, to revoke the permit for conducting or carrying on such business, and after the permit of any person to conduct or carry on any business under the provisions of this chapter shall be revoked, no permit shall be granted to such person to conduct or carry on any such business within six (6) months after such revocation. (b) No permit shall be revoked without the option of an appeal hearing by the city council in the matter of the revocation of such permit. Notice shall state the grounds of complaint against the business carried on by such holder and shall also state the time when and the place where such hearing will be held. 12B.6 Records required; Contents open to inspection; language and legibility. (a) Every secondhand dealer or junk dealer shall keep a full, true and complete record of all goods, wares, merchandise or things purchased or received by the secondhand dealer or junk dealer. (b) Such record shall demonstrate a complete ownership transfer history, including the place and date of each article purchased or received, or sold or disposed of, and one of the following methods to identify the person from whom such article was purchased and the person from whom such article was received: 4817- 3267- 3325v2 -3- ORDINANCE NO. 2016 -04 JH104706083 (i) The name, valid driver's license number and state of issue or California or United States - issued identification card number. (ii) The name, identification number, and country of issue from a passport used for identification and the address from an additional item of identification that also bears the seller's name. (iii) The name and identification number from a Matricula Consular used for identification and the address from an additional item of identification that also bears the seller's name. (c) Such record shall also show the amount purchased and an itemized list of the articles purchased or received and if any articles so purchased and received have engraved thereon any number, word or initial or contain any settings of any kind, the description of such article in such record shall contain such number, word or initial and shall show the kind of settings and the number of each kind. (d) Such record shall also contain a full, true and complete description of all goods, wares, merchandise or things sold or otherwise disposed of by such secondhand dealer or junk dealer. (e) Such record shall include the vehicle license number, including the state of issue, of any motor vehicle used in transporting the junk to or from the junk dealer's or recycler's place of business. (f) A statement indicating either that the seller of the secondhand or junk items is the owner of it, or the name of the person he or she obtained the junk from, as shown on a signed transfer document. (g) The record referred to in this chapter shall be entered immediately after any transaction referred to in this section has taken place, and such record shall be kept as permanent record in the place of business of such secondhand dealer or junk dealer and shall be open at all times during business hours to the inspection of the chief of police or any police officer of the city. (h) Every record required by the terms of this chapter to be kept shall be written or printed entirely in the English language and in a clear and legible manner. 12B.7 Unlawful acts. It shall be unlawful for any persons engaged in conducting or carrying on the business of secondhand dealer or junk dealer or for any agent or employee of any such person to fail, refuse or neglect to exhibit to the chief of police or any police officer of the city immediately 4817- 3267 - 33262 -4- ORDINANCE NO. 2016 -04 X04706083 upon demand the privilege of the inspection of any such record or records in this chapter that are required to be kept. 1213.8 Retention of tangible personal property; reporting of transactions. (a) Every secondhand or junk dealer shall retain in his or her possession for a period of thirty (30) days, all tangible personal property reported under the provisions of this chapter. The thirty -day holding period with respect to such tangible personal property shall commence with the date the report of its acquisition was made to the chief of police by the secondhand dealer or junk dealer. The chief of police may for good cause, as specified by the Department of Justice, authorize prior disposition of any such property described in a specific report; provided, that a secondhand dealer or junk dealer who disposes of tangible personal property pursuant to such authorization, shall report the sale thereof to the chief of police. (b) Every secondhand dealer or junk dealer shall report daily, or on the first working day after receipt for purchase of tangible personal property, on forms prescribed or provided by the Department of Justice, all tangible personal property which he or she has purchased, taken in trade, taken in pawn, accepted for sale or consignment, or accepted for auctioning, to the chief of police in accordance with the provisions of this chapter and the provisions of Section 21628 of the California Business and Professions Code. 12B.9 Engaging in more than one business. If any person shall engage in conducting, managing or carrying on at the same time more than one of the businesses defined and referred to in this chapter, such person shall be deemed to be engaged in conducting, managing and carrying on such business separate and apart from such other business and the person shall comply in all respects with the provisions of this chapter relating to each such business and it shall be unlawful for any such person to fail, refuse or neglect to do so. 12B.10 Violation; penalty. (a) The violation of any of the provision of this chapter not otherwise punishable under Section 21645 of the California Business and Professions Code is a misdemeanor. (b) It is unlawful and a violation of this chapter for any person who is engaged in the salvage, recycling, purchase, or sale of scrap metal to possesses any of the items listed below that were owned or previously owned by any public agency, city, county, city and county, special district, or private utility that have been stolen or obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or fails to report possession of the items pursuant to the California Business and Professions Code. (i) A fire hydrant or any reasonably recognizable part of that hydrant. 4917- 3267- 3325v2 -5- ORDINANCE NO. 2016 -04 JH104706083 (ii) Any fire department connection, including, but not limited to, reasonably recognizable bronze or brass fittings and parts. (iii) Manhole covers or lids, or any reasonably recognizable part of those manhole covers and lids. (iv) Backflow devices and connections to that device, or any part of that device. (c) A junk dealer who unknowingly takes possession of one or more of the items listed in the subdivision (b) above, as part of a load of otherwise non - prohibited materials without a written certification has a duty to notify the appropriate law enforcement agency by the end of the next business day upon discovery of the prohibited material. Written confirmation shall relieve the junk dealer or recycler from any civil or criminal penalty for possession of the prohibited material. The prohibited material shall be set aside and not sold pending a determination made by the chief of police. (d) Each person shall be deemed guilty of a separate offense for every day during a portion of which any violation of any provision of this chapter, not otherwise punishable under Section 21645 of the California Business and Professions Code is committed, continued or permitted by such person, and shall be punishable therefor as provided elsewhere in this Code. SECTION II If any section, subsection, subdivision, sentence, clause, or phrase of this Ordinance is for any reason held to be unconstitutional or otherwise void or invalid by any court of competent jurisdiction, the validity of the remaining portion of this Ordinance shall not be affected thereby. SECTION III Pursuant to section 608 of the Charter of the City of Gilroy, this Ordinance shall be in full force and effect thirty (30) days from and after the date of its adoption. PASSED AND ADOPTED this 7tJ day of March, 2016 by the following roll call vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: 4817 - 3267- 3325v2 -6- ORDINANCE NO. 2016-04 JK04706083 APP ED: Perry Whodlv*d, Mayor 4817 - 3267 - 3325x2 _7- ORDINANCE NQ, 2016 -04 JH104706083 I, SHAWNA FREELS, City Clerk of the City of Gilroy, do hereby certify that the attached Ordinance No. 2016 -04 is an original ordinance, or true and correct copy of a City ordinance, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 7h day of March, 2016, at which meeting a quorum was present. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Gilroy this Sth day of March, 2016. City Clerk of the City of Gilroy (Seal)