prohibiting the sale of firearms on the Fairgrounds. Plaintiffs base their contention on the allegation that the County considered no objective evidence that there is a "substantial governmental interest" at stake herein in passing the addendum at issue. Plaintiffs argue that the County Board members simply superimposed their own personal viewpoints regarding gun sales and the "image" of the County which they wish to project and concluded that there is a substantial governmental interest in banning gun sales at the Fairgrounds.
Defendants counter that it is not necessary for the Board to base its decision to ban gun sales at the Fairgrounds on empirical data but may rest its decision on rational speculation and the County's perceived health, safety and welfare of its citizens. Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 328, 341, 92 L. Ed. 2d 266, 106 S. Ct. 2968 (1986); National Paint & Coatings v. City of Chicago, 45 F.3d 1124, 1127 (7th Cir. 1995). Prior to its passage of the addendum, the Board heard the testimony of Dina Dickinson, the Executive Director of Public Health, and Dick de la Rosa, Mayor Hammer's Gang Policy Manager, regarding the fact that the proliferation of guns has created an alarming public health and fiscal crisis for the County of Santa Clara.
In response to Defendants' arguments, Plaintiffs point out that four Supreme Court Justices recently criticized the. Posadas conclusion regarding a governmental body's discretion to suppress truthful, nonmisleading information for paternalistic purposes. See, 44 Liquormart, Inc. V. Rhode Island, 134 L. Ed. 2d 711, 116 S. Ct. 1495 (1996). Therefore, Plaintiffs contend that the Court should disregard the Posadas holding in this case.
The 44 Liquormart case struck down the state of Rhode Island's attempt to ban accurate information regarding retail prices of alcoholic beverages. Four Justices in Liquormart criticized the Posadas holding for the proposition that the price advertising ban should be permitted because it targets commercial speech which pertains to a "vice" activity. The Supreme Court refused to recognize a "vice" exception to the commercial speech doctrine. See, Rubin v. Coors Brewing Co., 131 L. Ed. 2d 532, 115 S. Ct. 1585, 1589 (1995).
The Liquormart Court did not overrule the holding in Posadas and the Court finds that it may rely on the Posadas holding for the proposition that the County may act in the absence of empirical evidence when it rationally perceives a threat to the health, welfare and benefit of its citizens. However, there has been no evidence presented to the Court which shows that the Board acted in response to a perceived threat to the County's health or welfare when it passed the ban on gun sales at the Fairgrounds. Absolutely no evidence was presented to the Board which suggested any need to curtail gun sales at that location. There have been no problems associated with Plaintiffs' gun shows, or any gun shows, held at the Fairgrounds. There is no evidence of any unlawful activity occurring at such shows. In fact, if a gun is purchased a such a show, it does not actually exchange hands until the requisite waiting period has expired, some fifteen or more days after the show.
Although the Board was presented with some testimony regarding the fact that the sale of guns creates a health and financial crisis for the County, such testimony was not in any way directed to the sale of guns at the Fairgrounds. There is absolutely no evidence in the record as to why the Board chose to target file Fairgrounds as a place to ban gun sales and yet allows such guns to be sold down the street.
For the reasons stated above, the Court finds that the County has not articulated a substantial government interest in banning gun sales at the County Fairgrounds. Therefore, the addendum is unconstitutional and cannot be enforced until the conclusion of this action.
Even assuming that the County had articulated a substantial governmental interest in banning gun sales at the Fairgrounds, the Court would have to consider whether the ban directly advances the governmental interest asserted and whether such ban is not more extensive than necessary to serve that interest. Central Hudson, supra at 566. In order to evaluate whether the ban on gun sales at the Fairgrounds directly advances the County's interest in protecting the safety and welfare of its citizens, the Court, must determine whether the ban provides effective or direct support for the government's interest. Id.
In this case, there is no evidence that the ban on gun sales at the Fairgrounds would curtail the possession of firearms on the County's premises. In addition, as noted above, the ban is not narrowly tailored to achieve the ends desired since the guns are not even exchanged at the Fairgrounds but at a much later date. By banning gun sales only at the Fairgrounds, the Board achieves nothing in the way of curtailing the overall possession of guns in the County.
As noted above, the ban does not restrict gun sales in any of the over 100 distributorships throughout the County. The County simply wishes to portray a "weapons-free" image at its Fairgrounds, however, such an image is not created by banning gun sales since the sales do not permit any exchange of the guns on the property owned by the County. Even with the ban, prospective buyers can examine the merchandise and discuss the prospective sale with Plaintiffs at the Fairgrounds during the operation of Plaintiffs' shows. Therefore, the Court does not find that the addendum directly advances the governmental interest asserted and finds that it is more extensive than necessary to achieve such interest.
For the reasons stated above, the Court GRANTS Plaintiffs' motion for entry of a preliminary injunction. The Court finds that the addendum to the County Fairgrounds lease provision which bans gun sales on the premises of the County Fairgrounds is not constitutionally permissible and violates Plaintiffs' constitutional rights. Plaintiffs are free to conduct their gun shows at the Fairgrounds and may sell guns at such shows. Based on the reasons set forth in this Order, the Court finds that Plaintiffs are likely to succeed on the merits of their constitutional challenge to the addendum at trial and that the balance of hardships tip sharply in their favor. Therefore, the claim for injunctive relief is granted. Defendants may not enforce the addendum pending the outcome of this litigation. The parties are ordered to file briefs on or before July 22, 1996 addressing why this preliminary injunction should not be made permanent.
DATED: July 3, 1996
United States District Judge
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