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HomeMy WebLinkAbout1996-05-13 City Council (4)City City of Palo Alto Manager’s Report 5 TO:HONORABLE CITY COUNCIL FROM:CITY MANAGER DEPARTMENT: POLICE AGENDA DATE: May 13, 1996 CMR:256:96 SUBJECT:Ordinance Amending Chapter 4.57 of the Palo Alto Municipal Code Relating to Firearms Dealers REOUEST This report requests Council approval of the attached ordinance amending Palo Alto’s Municipal Code Chapter 4.57 regulating firearms dealers. The existing Chapter was enacted in 1988 and regulates the activity of dealers in concealable firearms. Amendments to the Chapter are necessary in order to bring the City’s regulations into conformance with California’s Dangerous Weapons Control Law. This law now requires that municipalities accept applications for licenses to sell firearms (i.e., long guns and concealables) within the City, not just from those who seek to deal in concealable firearms. RECOMMENDATIONS Staffrecommends that Council adopt the attached ordinance amending Chapter 4.57 of the Palo Alto Municipal Code regulating firearms dealers. POLICY IMPLICATIONS The proposed ordinance incorporates the State mandate that local jurisdictions establish a licensing mechanism for dealers of all firearms into the City’s Municipal Code. EXECUTIVE SUMMARY Chapter 4.57 of the Palo Alto Municipal Code (Dealers in Concealable Firearms) was approved in 1988. It established a permit process for dealers of concealable firearms (e.g., handguns), which is administered by the Police Department. It was written to conform to state laws then in effect. However, since then significant changes, have been made in state regulations. The existing ordinance, therefore, no longer conforms with preemptive state standards. CMR:256:96 Page 1 of 5 The primary changes to State law include the following: California Penal Code (PC) Section 12071 (a)(2), now requires local jurisdictions to establish a licensing procedure for dealers of all firearms. In 1988, this same law mandated only that local jurisdictions accept applications for permits to sell concealable firearms (i.e., handguns) within their jurisdictions. Previously, State law allowed infrequent private-party sales and transactions of concealable firearms to be completed without any assistance from a dealer. Additionally, State law did not previously regulate the sellers of rifles and shotguns. However, current State law makes it unlawful (with very limited exceptions), for a person who is not a licensed firearms dealer pursuant to Penal Code Section 12071, to sell, loan, or otherwise transfer a ftrearm to a non- licensed person unless the sale, loan, or transfer is completed through a licensed dealer or law enforcement agency (PC 12071, 12072, 12082, 12084). The proposed ordinance incorporates these changes and, if enacted, will provide the Police Department with a firearms dealer licensing process which conforms to State standards. In addition to the amendments required to conform to State law changes, the proposed ordinance clarifies that a background invesfigaton will be conducted not only on the applicant, but on any officer, agency, or employee who acts on behalf of the applicant. A background investigation on these individuals will be conducted to prevent unauthorized and tmlicensed persons from operating out of a gun store and having access to firearms. Restrictions that require dealers to locate where retail service is approved, and prohibit location within or near any residential district, school, day-care center, adtflt entertainment establishment, hot-tub/sauna establishment, massage establishment, or other firearms dealers, remain unchanged. Federal Firearms License Holders There are currently nine Federal Firearms License (FFL) holders in Palo Alto. These licenses were issued for a three year period prior to the effective date of the Federal Crime Bill of 1994 and will expire in 1997. None of the current Federal licensees wotfld qualify for a Palo Alto license because they are all within, or are very close to, residentially zoned property. No FFL holder has applied for a local license since Chapter 4.57 was enacted, and staff believes it is very unlikely that any of the existing Palo Alto FFL holders is actually dealing in firearms. CMR:256:96 Page 2 of 5 Pursuant to the 1994 Crime Bill (Section 923(d)(1), Title 18 U.S.C.) at the time of application for new and renewal licenses (three year terms), FFL applicants are required to certify in writing that they: 1) have notified the Chief Law Enforcement Officer having jurisdiction over the locality where the firearms business is to be located of their intent to apply for an FFL; and 2) will comply with the requirements of State and local law within thirty days of approval of the FFL application; and 3) will not conduct business under the license until the requirements of State and local law applicable to the business have been met. The new statute was broadly written to encompass all local laws that regulate business activity and would include such things as zoning restrictions on residential business. The Bureau of Alcohol Tobacco and Firearms has seen a significant decrease in California FFLs due to the stringent federal, state and local restrictions. Additionally, ATF has advised staffthat should the Police Department notify them that a new or renewal FFL applicant is unable to comply with (or is currently in violation of) local law, that they will take the appropriate action to deny, request a voluntary surrender, or in the worst case seek a revocation of the federal license. California’s Dangerous Weapons Control Law provides staff with additional measures to expose firearms transactions by unlicensed firearms dealers. A firearms dealer considered to be fully licensed pursuant to Penal Code Section 12071 must now have: 1) a valid FFL (other than that for a Collector of Curios and Relics), 2) a local license, 3) a valid seller’s permit issued by the State Board of Equalization, 4) a certificate of eligibility issued by the Department of Justice (certificate indicates the holder is not prohibited from processing firearms), 5) and be recorded as a firearms dealer on the centralized dealer list maintained by the California Department of Justice (DOJ). The central dealer list is utilized by firearms manufacturers and wholesalers for determining the validity of a dealer’s license prior to weapon shipments. The list provides assistance when local law enforcement officials seek to deterrnine or confirm those who are engaged in the business of firearms dealing within their jurisdictions. The requirement for a centralized dealer list became effective January.. 1, 1995. Additionally, California law requires firearm dealers to complete a Dealer’s Record of Sale (DROS) for each transaction. One copy of the DROS must be mailed to the Chief of Police of the city where the sale is made, and another copy must be forwarded to DOJ. In an effort to alleviate transactions by dealers who are not fully licensed, the Department of Justice created a 1994 Series DROS form and makes them available only to dealers licensed pursuant to Penal Code 12071. In 1994, the Police Department received DROS forms for no more than ten weapons from Palo Alto based FFL holders. In 1995, one DROS form was received, and it was for a transaction made before the DOJ cutoff date for pre-1994 Series DROS. No Palo Alto FFL holder is on CMR:256:96 Page 3 of 5 the centralized list, and no 1994 Series DROS forms been issued that are tied to a Palo Alto FFL. FISCAL IMPACT During the upcoming budget process, staffwill include recommendations that the current annual fees of $745 (for an initial applications) and $485 (for renewal applications) for Dealers in Concealable Firearms be increased. The additional fees are due to the increase in costs to process the applications. The proposed fee for an initial application will be $1,790, and the yearly renewal fee will be $715.00. The costs include staff time to process the application, interview and fingerprint the applicants, inspect premises for compliance with the ordinance and conduct a comprehensive police background check on applicants. Also included are the fees for Department of Justice ($42 which includes expedite fee) and FBI fingerprint ($24) processing fees. A separate fee of $136 would be charged for every officer, agent, or employee who acts on behalf of the applicant at the firearms dealer premises. The proposed annual renewal fee for each agent, officer, or employee would be $53.00. The proposed fees reflect full cost recovery for providing this service. All services will be performed with existing staff. Staff does not expect any revenue to be generated from these fees in the initial year, because all of Palo Alto’s current FFL holders operate in locations prohibited by the proposed ordinance. ENVIRONMENTAL ASSESSMENT This ordinance does not constitute a project for purposes of CEQA. CMR:256:96 Page 4 of 5 ATTACttMENTS CMR:323:8 Ordinance PREPARED BY:Judy Glaes, Code Enforcement Officer Lynne Johnson, Assi,, DEPARTMENT HEAD REVIEW: CITY MANAGER APPROVAL: CHRIS DURKIN, Poli FLEMING, CMR:256:96 Page 5 of 5 June 23, 1988 HONORABLE CITY COUNCIL Palo Alto, California Attention: Policy And Procedures Committee Permit for Dealers in Concealab!e Firearms Members of the Council: Section 12071 of the California Penal Code requires municipalities to accept applications for permits to sell concealable firearms within the City. The proposed ordinance will al!ow the Police Department to accept applications and issue permits to dealers of concealable firearms after specific conditions have been met. Background The Police Department recently received a request for a permit to sell concealable firearms in Palo Alto. Section 12071 of the California Penal Code states that municipalities must accept applications and may grant licenses permitting the sale of concealable firearms. Section 12071 does not apply to the infrequent sale or transfer, offering, exposing for sale,, or advertising of any handgun at a gun show, swap meet or similar event. A concealable firearm is defined as a weapon which has a barrel less than twelve inches in length. Staff researched the issue and determined that no Palo Alto ordinance exists allowing permits for dealers of concealable firearms. The attached ordinance conforms with Section 12071 of the California Penal Code and establishes a procedure for the processing of applications for permits to sell concealable firearms. The proposed permit is for dealers of concealable firearms within the City of Palo Alto (i.e., persons engaged in the business of selling or transferring, or who advertise, offer, or expose for sale, concealable firearms.) Permits to carry concealable firearms are handled through a different process, which is not the subject of this report. C~[R:323:8 Discussion of Issues To determine how the issuance of permits was accomplished in other jurisdictions, staff surveyed the following cities and counties: San Francisco, East Palo Alto, Atherton, Menlo Park, Mountain View, Sunnyvale, Santa Clara, Cupertino, Los Altos, Campbell, Milpitas, San Jose, San Mateo County, and Santa Clara County. The survey showed that most smaller agencies do not have an existing ordinance which provides for the issuance of permits to dealers of concealable firearms. Licensing in some of these agencies either was not done at all or was accomplished through the issuance of a business license. Other agencies had not received requests for licenses or were in the process of establishing licensing procedures. San Francisco and San Jose were found to have ordinances which specifically provide for the acceptance and processing of such permit applications and which address certain public safety concerns associated with the dealing of concealable firearms. It is also important to note that in addition to complying with state laws and local regulations (if any), a firearms dealer must also obtain a permit from the Federal Bureau of Alcoho!, Tobacco and Firearms (ATF). To obtain an ATF permit, dealers must complete a two-page application and pay a $30 fee. Based on information contained in the application, ATF conducts a cursory background investigation which does not include fingerprinting the applicant for verification of criminal history. A review of ATF records indicates that there are approximately 15 active dealers selling concealable firearms in the City of Palo Alto. Both the San Francisco and San Jose ordinances require police background investigations of applicants and regulation of locations where the business of dealing in concealable firearms can occur. Further, the San Francisco ordinance includes dealers of long guns and ammunition. The Palo Alto City Attorney’s office believes that the area of !ocal regulation of ~dealers of long guns and ammunition is preempted by State law. As a result, the proposed ordinance should be limited in scope to dealers of concealable firearms, and should not be expanded to include dealers in long guns and ammunition. The proposed ordinance will allow the Police Department to accept applications, conduct a comprehensive police background investigation and issue permits to dealers of concealable CMR:323:8 6-23-88 --2-- firearms. The proposed ordinance will prohibit such activity within or near any residential district, as well as in the immediate area of a school, day-care center, cardroom, adult entertainment establishment, hot tub/sauna establishment, massage establishment, or another dealer in concealable firearms. The proposed ordinance is the only means by which the City can regulate in Palo Alto the selling of concealable firearms by dealers. It is the opinion of staff that these requirements and limitations will provide reasonable safety and security to the public, meet the requirements of State and Federal laws and be consistent with existing restrictions on locations of other regulated activities in the City of Palo Alto, such as cardrooms, massage and adult entertainment establishments° The proposed ordinance will apply to all dealers of concealable firearms in the City of Palo Alto including those currently holding ATF permits. Staff has sent notices to all known holders of ATF permits in the City of Palo Alto advising them of the Policy and Procedures Committee meeting on this matter. Fiscal Impact Staff recommends that the cost for the initial application be $285, and the yearly renewal cost be $216. These costs include staff time to process the application, inspect the premises for compliance with the ordinance and conduct a comprehensive police background check, including fingerprinting. Based on the names, supplied by AFT, of current active dealers in the City of Palo Alto, the total revenue expected to be generated from these fees is approximately $4,275 for the initial year. The proposed fee reflects full cost recovery for providing this service. All services will be performed with existing staff. Recommendation Staff recommends that the Policy and Procedures Committee recommend that the City Council adopt the attached ordinance which provides for the acceptance and processing of applications .for permits to deal in concealable firearms, and include in the 1988-89 budget process a fee to recover costs associated with the issuance of such permits. Police .Chief Assistant City Manager Attachment CMI%:323:8 6-23-88 m3-- ORDINANCE NO. ORDINANCE OF THE CITY OF PALO ALTO AMENDING CHAPTER 4.57 OF TITLE 4 OF THE PALO ALTO MUNICIPAL CODE REGULATING FIREARMS DEALERS The Council of the City of Palo Alto does ORDAIN as follows: SECTION I. The Council finds as follows: (a) Chapter 4.57 of Title 4 of the Palo Alto Municipal Code was enacted in 1988 in response to requirements of. California law that local agencies accept applications for permits to sell concealable firearms within their jurisdiction; and, (b) California Penal Code sections 12070-12084 have been amended to now require local agencies to establish a licensing scheme for all firearms dealers, not just for dealers in concealable weapons, and to require that all firearms dealers have a federal firearms license as wel! as California permits; and, (c) Council desires to amend its regulations to conform to the current requirements of California law by expanding its licensing requirements to cover all firearms dealers and deleting the prior exception for infrequent sellers; and, (d) Council desires to concurrently amend its regulations to provide for investigation and authorization by the police department not only for firearms dealers but also for all employees, officers, and agents of firearms dealers in order to assure that all these persons are not prohibited by federal or state law from possessing firearms; and, (e) Council desires to clarify its firearms dealer regulations to require permittees to conform to building, fire, health, and zoning restrictions of the Palo Alto Municipal Code. SECTION 2. Chapter 4.57 of Title 4 of the Palo Alto Municipal Code is hereby amended to read as follows: 4.57. 010 Definitions. (a) In addition to those words and phrases defined in Section 4.04.010 of this code, the following words and phrases, whenever used in this chapter, shall be construed as defined in this section: (I) "Chief of police" means the chief of police or his or her designee. (2) "City" means the city of Palo Alto. 960506 syn 0042508 Justice. (4)"Department" means the California Department of (5) "Engaged in the business" means the conduct of a business by the selling, transferring, or leasing of any pistol, person; or the preparation for such conduct of business as evidenced by the securing of applicable federal or state licenses~ii or the holding of one’s self out as engaged in the business selling, transferring, or leasing ofan~!~i~i~~%~-~-~ ..... , ~.~.~,~ ........~ ~ person; or the selling, transferring, or leasing ~iiii[iiiiiii~ny pi-’-~, ~.~.~,~ ......~-- ~ sermes or mn individual transactions, or in any other manner in cative of trade ~ ~- not mean (6) "Person" means natural person, partnership, firm, or corporation. association, 4.57.020 Permit -- Required. No person shall engage in the- business of selling, transferring or leasing, or advertising for sale, transfer or lease, or offering or exposing for sale, transfer or lease!~i!~~ .......................... :"::::[’:::!~::~ili::<:::i%~::::~::~i~"::ili::i::::~ ~ ~ ~ ~ ~ ....l ..~ ~ ~ ’~ ~ ~ ~ ~ ~ ~::":::+:":+:~::’:::;:::;:’:;+:~i~i~i~i~i~any ~ ....., ~c ....er, or ot ....fmrea~.~,~of 5elng ~’~’~"~"~"~"~"’~~~, ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~~ ~ ~ ~ ~ ~ ~ i"::i!::........... w .............unless .........~ .........~s.8~::::::::has beenissued a permit pursuant to the provisions 4.57.030 Application-- Form-- Fees. applicant for a permit under this chapter shall file wit~:::::~:~:: chief of police a sworn application in writings, on a form t o be furnished by the cit]~iiiiiiii!ii~!ii!iiii~iiiiiii~!i~i~iiiiiii~iiiiiii~!~i~iiii! 960506 syn 0042508 ~:~’’:~:~~~~"~":~~:~~~:~~~~ proof of compliance with all applicable federal, state, and local laws when re~ired by the chief of police, or the application will not be deemed complete. ~e application shall be accompanied by a nonrefundable fee as set forth in the municipal fee schedule. 4.57. 040 Application -- Investigation. The chief of police shall conduct an appropriate investigation of the applicant to determine for the protection of the public safety whether the permit may be issued. The chief of police may require ’additional information of an applicant which he or she deems necessary to complete the investigation. 4.57.050 Application -- Denial. (a) The shief of police (I) The applicant, or an officer, employee, or agent thereof is under the age of twenty-one years; (2) The applicant is not licensed as required by all applicable federal, state, and local laws; (3) The applicant, or an officer, employee, or agent thereof has had a similar type of permit previously revoked or denied for good cause within the immediately preceding year; (4) The applicant, or an officer, employee, or agent thereof has knowingly made any false or misleading statement of a material fact or omission of a material fact in the application for a permit; (5) The applicant, or an officer, employee, or agent thereof has been convicted of: (A) Any offense so as to disqualify the applicant, or an officer, employee, or agent thereof from owning or possessing a firearm under applicable federal, state, and local laws, (B) Any offense relating to the manufacture, sale, possession, use, or registration of any firearm or dangerous or deadly weapon, 3960506 syn 0042508 (C) Any offense involving the use of force or ~iolence upon the person of another, (D) Any dishonesty, or deceit, offense involving theft, fraud,’ (E) Any offense involving the manufacture, sale, possession, or use of any controlled substance as defined by the California Health and Safety Code as said definition now reads or may hereafter be amended to read; (6) The applicant, or an officer, employee, or agent thereof is an unlawful user of any controlled substance as defined by the California Health and Safety Code as said definition now reads or may hereafter be amended to read, or is an excessive user of alcohol, to the extent that.such use would impair his or her fitness to be a i~i~~ dealer in ~~ ~ .....CO~C~ ...........~, (7) The applicant, or an officer, employee, or agent thereof has been adjudicated as a mental defective, or has been committed to a mental institution, or suffers from any psychological disturbance which would impair his or her fitness to .................................. dealer ......................... , (8) The operation of the business as proposed will not comply with al! applicable federal, state, and !ocal laws; (9) The business as proposed will be operated in the following locations: (A) Within a zoning district in which retail service is not a permitted or conditional use, (B) Within a zoning district in which residential use is the principal permitted or maintained use, or within two hundred fifty feet of the exterior limits of any such district, (C) On or within two hundred fifty feet of the exterior limits of any other premises occupied by a public or private day care center or day care home, elementary school, junior high school, or high school, (D) On or within one thousand two-hundred feet of the exterior limits of any other premises occupied by a dealer in concaalabl~ firearms, a cardroom, a massage establishment, and adult entertainment establishment, or a hot tub/sauna establishment. Priority between such existing establishments shall be assigned in accordance with the dates upon which such establishments commenced such lawful operation, priority being given to the establishment having the earliest of such dates. In the event any dispute arises regarding said date, the applicant shall have the obligation to establish the date on which he or she commenced lawful operation. 960506 syn 0042508 All distances referred to in this subsection shall be measured between the closest points on the exterior property lines or area boundaries of the parcels or areas involved, except that when a dealer in ccnc~alabl~ firearms subject to the provisions of this chapter occupies one unit of a multi-unit structure !ocated on a single parcel, distances shall be measured from the exterior boundaries of the unit occupied° This subsection shall supersede any and all conflicting provisions regulating home occupations set out in Title 18 of this code; (i0) The applicant, or an officer, employee, or agent thereof does not have and/or cannot provide evidence of, a possessory interest in the property at which the proposed business will be conducted; ~ iii~i~i~iiiiiiii!iiiii~Any ground for denial specified in Section 4.04.140 of this c~-~ ........... 4.57.060 Permit -- Form. All permits issued pursuant to this chapter shall be in the form prescribed by the Attorney General of the State of California. 4.57.070 Permit -- Duration -- Renewal. All permits issued pursuant to this chapter shall expire one year after the date is issuance; provided, however, that such permits may be renewed by the chief of police for additional per ods of one year upon ~..~.~ ..................... ~n~P~~ of an application for renewal ~9 ~ the chief of policeli!iiiii~!!iiii~~iiiiiii!i~i~i i~!iiiiii~~i!i!iii~. Such renewi:~"~application must be ~:~~~~~~~~ :::::::::::::::::::::::::::::::::::::::: in completed form, no later than forty-five days prior to the expiration of the current permit. 4.57.080 Permit -- Assignment. The assignment or attempt to assign any permit issued pursuant to this chapter is unlawful and any such assignment or attempt to assign a permit shall render the permit null and void. 4.57.090 Permit -- Conditions. (a) Any permits issued pursuant to this chapter shall be subject to all of the following conditions, the breach of any of which shall be sufficient cause for revocation of the permit by the chief of police: (i) The bus~ness shall be ~@~e~:~i~:~ carr-~c= on only in the building ~~iiii~iiiii~iiiii~i~i~iiii~~iiii!i:~signated in the 960506 syn 0042508 (2) The permit or a copy thereof, certified by the chief of police, shall be displayed on the premises where it can easily be seen; he permittee shall comply and ~n~ ....... ~~~ ....... ~.~.~4~.~’-.’-- ,~ of o~4 ~ Any permit issued pursuant to this chapter shall be subject to such additional conditions asthe chief of police finds are reasonably related to the purposesof this chapter. 960506 syn 0042508 4 o 57. i00 Permit -- Grounds for revocation. In addition to any provisions contained in this chapter, the provisions of Section 4.04.140 of this code shall apply to revocation of permits required under this chapter. Any circumstances constituting grounds for denial shall also constitute grounds for revocation. 4.57.110 Permit -- Hearing. (a) Any person whose application for a permit has been denied, or whose permit has been revoked pursuant to the provision of this chapter, shall have the right to a hearing before the chief of police prior to final denial or prior to revocation. (b) The chief of police shall give the applicant or permittee written notice of his is her intent to deny the application or to revoke the permit. The notice shall set forth the ground or grounds for the chief of police’s intent to deny the application or to revoke the permit, and shall inform the applicant or permittee that he or she has ten days from the date of receipt of the notice to file a written request for a hearing. The application may be denied or the permit revoked if a written hearing request is not received within the ten-day period. (c) If the applicant or permittee files a timely hearing request, the chief of police shall set a £ime and place for the hearing. All parties involved shall have the right to offer testimony, documentary and tangible evidence bearing on the issues, to be represented by counsel, and to confront and cross-examine any witnesses against them. The decision of the chief of police whether to deny the application or revoke the permit is final and nonappealable. 960506 syn 0042508 7 4.57.120 Permit -- Liability insurance. No permit shall be issued or continued pursuant to this chapter unless there is in full force and effect a policy of insurance in such form as the city attorney and risk manager deem proper, executed by an insurance company approved by the city attorney and risk manager, whereby the applicant or permittee is insured against liability for damage to property and for injury to or death of any~person as a result of the sale, transfer, or lease, or advertising for sale, transfer, or lease, or offering or exposing for sale, transfer, or lease any~~,~ ..... ~.~.~,~ ...... ~ f~rearm ~ ....of bein~upon the ~ ......The minimum liability limits.shall not be less than one million dollars for damage to or destruction of property in any one incident, and one million dollars for the death of or injury to any one person; provided, however, that additional amounts may be required by the city attorney and risk manager if deemed necessary. Such policy of insurance shall contain an endorsement providing that the policy will not be cancelled until notice in writing has been given to the city, addressed in care of the chief of police, 275 Forest Avenue, Palo Alto, California, 94301, at least thirty days immediately prior to the time such cancellation becomes effective. Further, such policy of insurance shall name the city, its officers, agents, and employees as additional insureds. Additionally, applicants and permittee shall indemnify, defend, and hold harmless the city, its officers, agents and employees, from claims arising from the negligence of the applicant or permittee. 4.57.130 Permit -- Authority to inspect. Any and all investigating officials of the city shall have the right to enter the building designated in the permit from time to time during regular business hours to make~ reasonable inspections to observe and enforce compliance with building, mechanical, fire, electrical,or health ions, or provisions of this ever A 4.57.140 -- Compliance. Any person engaging in the business of selling, transferring, or leasing, or advertising for sale, transfer or lease, or offering or exposing for sale, transfer or lease, any the person on the effective date of the ordinance codified in this chapter shall have a period of sixty days after such effective date to comply with the provisions of this chapter. 960506 syn 0042508 SECTION 3. The Council hereby finds and determines that this action is not a project for which environmental review is required. SECTION 4. This ordinance shall be effective on the commencement of the thirty-first day after the date of its adoption. INTRODUCED : PASSED : AYES : NOES : ABSTENTIONS : ABSENT : ATTEST :APPROVED: City Clerk APPROVED AS TO FORM: Senior Asst. City Attorney Mayor City Manager Police Chief 960506 syn 0042508