L.L. 2009/083

Enactment date: 12/28/2009

Int. No. 240-A

By Council Members Vann, Weprin, Arroyo, Brewer, Comrie, Foster, Gennaro, James, Koppell, Mark-Viverito, Nelson, Stewart, Liu, Vallone, Jr., Rivera, Jackson, White, Jr., Recchia, Garodnick, Mealy, Rodriguez and Lappin

A Local Law to amend the administrative code of the city of New York, in relation to the penalties associated with the sale of toy guns.

Be it enacted by the Council as follows:

Section 1. Findings and Intent. Toy manufacturers and retailers in New York City and around the nation produce and sell imitation firearms bearing a striking resemblance to real weapons, whether in size, shape, or overall appearance. Therefore, New York City presently prohibits the sale of toy firearms unless the physical appearance of the toy gun conforms with the requirements set out in subdivision g of section 10-131 of the administrative code. New York State's highest court has held that that this provision is not preempted by federal law, which requires only minimal markings on toy guns, such as an orange blaze around the barrel. Although the federal statute preempts local laws that require "inconsistent" markings, it allows cities to require clearer markings in addition to the federal ones.

Since this local legislation was enacted, the City's Department of Consumer Affairs (DCA) has uncovered numerous violations. DCA has removed more than 7,000 toy guns from the shelves of over 220 stores and levied $3.3 million in fines. However, the current penalty scheme insufficiently deters the sale of toy guns by City businesses. Indeed, some stores are repeat offenders, selling fake guns even after having paid penalties for previous violations. By increasing the base penalty for first violations and by imposing greater penalties for repeat offenses, the revised code provision would more forcefully deter businesses from stocking toy guns and would also target businesses that continue to flout the law even after paying penalties for previous violations. If a business commits three or more violations in a two-year period, then the revised code provision would allow it to be closed briefly to allow the business time to take corrective actions including, but not limited to, removing and disposing of all fake guns that do not comply with the law; reviewing inventory; reviewing shipment orders; removing promotional materials; drafting policies and procedures; and training staff to ensure that remaining fake guns comply with the law and to stop the ordering of fake guns that do not comply with the law.

Not only are realistic-looking fake guns used to commit crimes, but there have been a variety of tragic incidents involving young people carrying imitation guns who were wounded or killed by police officers who mistook toy weapons for real ones. In 2006, for example, police killed a 15-year-old at a middle school in Longwood, Florida after he brandished a look-alike gun whose safety markings had been painted black. On February 24, 2007, a 27-year-old man pointed a fake AK-47 assault rifle at New York City police officers, leading them to fire back but not to injure him.

Accordingly, the Council finds that legislation increasing penalties for stores that fail to abide by the terms of subdivision g of section 10-131 of the administrative code is warranted.

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[Consolidated provisions are not included in this Appendix A]

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§ 3. This local law shall take effect 30 days after it shall have become a law, provided that, prior to such effective date, the commissioner of consumer affairs and the head of any other agency designated by the mayor in accordance with paragraph 3 of subdivision g of section 10-131 of the New York City administrative code may promulgate such rules and take such other actions as are necessary to its timely implementation.