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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: CHAS KELLEY, Councilmember
Chairman, Legislative Review
Committee
Subject: AN ORDINANCE OF THE CITY
OF SAN BERNARDINO ADDING CHAPTER
8.61, REPEALING SECTION 8.60.140, AND
AMENDING SECTION 8.60.150 OF THE SAN
BERNARDINO MUNICIPAL CODE
REGARDING FIREWORKS.
Date: April 3, 2008
MCC Date: April 7, 2008
Synopsis of Previous Council Action:
March 4, 2008 Legislative Review Committee recommended approval.
March 17, 2008 Council continued this matter to April 7, 2008.
Recommended motion:
That said Ordinance be laid over for final adoption.
Chas Kelley, Councilme
Contact person: Henry Emoeno. Ir.. Sr. Deoutv City Attornev
Phone:
5355
Supporting data attached: Staff Reoort
FUNDING REQUIREMENTS: Amount:
Source:
Ward:
Finance:
Council Notes:
Agenda Item No._
NO.~~
04-07-0rg
F:\EMPENO\Resos\Administrative Civil Penalties RCA.wpd
STAFF REPORT
Council Meeting Date: April 7, 2008
TO:
FROM:
Mayor aud Commou Couucil
Chas Kelley, Councilmember
Chairman, Legislative Review Committee
April 3, 2008
AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER
8.61, REPEALING SECTION 8.60.140, ANDAMENDINGSECTION 8.60.150 OF
THE SAN BERNARDINO MUNICIPAL CODE REGARDING FIREWORKS.
DATE:
AGENDA ITEM:
Currently, San Bernardino Municipal Code Chapter 8.60 regulates the sale and
discharge of safe and sane fireworks in the City of San Bernardino. Section 8.60.010
and 8.60.130 makes it unlawful to sell or discharge safe and sane fireworks except
during the time periods and in the locations identified in Chapter 8.60. Currently
Section 8.60.150 makes a first offense violation of Chapter 8.60 an infracti~n and any
subsequent violation within a three year period a misdemeanor. Currently, Section
8.60.140 only refers to state law, which prohibits and regulates fireworks not defined
as safe and sane fireworks.
The proposed Ordinance, if adopted by the Mayor and Common Council, will
repeal Section 8.60.140 and add Chapter 8.61 which will prohibitthe possession, sale,
use and discharge of any "dangerous fireworks" in the City of San Bernardino,
without a permit or license granted by the State Fire Marshal. "Dangerous fireworks"
(which does not include safe and sane fireworks) is defined in California Health and
Safety Code Section 12505, copy attached. A violation of Chapter 8.61 will be
chargeable as a misdemeanor and will be subject to a $1,000 Administrative Civil
Penalty for each violation, pursuant to Chapter 9.93 ofthe San Bernardino Municipal
Code. The adoption of Chapter 9.93, which establishes Administrative Civil
Penalties, is also on the April 7, 2008 Council Meeting Agenda.
The proposed Ordinance will also amend Section 8.60.150 to make any
F:\EMPENO\Resos\Administrative Civil Penalties Staff Report.wpd
Page 2
Staff Report
Agenda Item: AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 8.61,
REPEALING SECTION 8. 60.140, AND AMENDING SECTION 8.60.150 OF THE SAN
BERNARDINO MUNICIPAL CODE REGARDING FIREWORKS.
April 3, 2008
violation of Chapter 8.60, regarding safe and sane fireworks, either an infraction or
a misdemeanor, and also subject to a $1,000 Administrative Civil Penalty for each
violation pursuant to Chapter 9.93.
On March 4, 2008, the Legislative Review Committee voted unanimously to
recommend approval ofthis matter.
F:\EMPENO\Resos\Administrative Civil Penalties StaffReport.wpd
,...........-
EXPLOSIVES
Div. 1\
by Stats.1939, c. 534
1 inflammable liquid:
'55, c. 1891, p. 3493
r is now covered b;
12504.
i
FIRE!~ p1:f5c :::ES
Pt. 2
Health and Safety Code !is 12602, 12633,
12643, 12645, 12646.
Derivation: Former ~ 12502, added by Stats.
1939, c. 534, p. 1941.
~ 12505
,i,
F
Former ~ 12506, added by Stats.1955, c.
1891, p. 3495, ~ 2.
L
Library References
t,I64.
06.
Explosives ~2.
Westlaw Topic No. 164.
C.J.S. Explosives ~ 2 to 6.
978, c. 868, p. 2731,
~ C~ 12505. Dangerous fireworks
. "Dangerous fireworks" includes all of the following;
(a) Any fireworks which contain any of the following;
(I) Arsenic sulfide, arsenates, or arsenites.
(2) Boron.
(3) Chlorates, except:
(A) In colored smoke mixture in which an equal or greater amount of sodium
bicarbonate is included.
(B) In caps and party poppers.
(C) In those small items (such as ground spinners) wherein the total powder
content does not exceed 4 grams of which not greater than 15 percent (or 600
milligrams) is potassium, sodium, or barium chlorate.
(4) Gallates or Gallic acid.
(5) Magnesium (magnesium-aluminum alloys, called magnalium, are permit-
ted).
(6) Mercury salts.
(7) Phosphorus (red or white except that red phosphorus is permissible in
caps and party poppers).
(8) Picrates or picric acid.
(9) Thiocyanates.
(10) Titanium, except in particle size greater than 100-mesh.
(11) Zirconium.
(b) Firecrackers.
(c) Skyrockets and rockets, including all devices which employ any combusti-
ble or explosive material and which rise in the air during discharge.
(d) Roman candles, including all devices which discharge balls of fire into
the air.
(e) Chasers, including all devices which dart or travel about the surface of
the ground during discharge.
(f) Sparklers more than 10 inches in length or one-fourth of one inch in
diameter.
(g) All fireworks designed and intended by the manufacturer to create the
element of surprise upon the user. These items include, but are not limited to,
auto-foolers, cigarette loads, exploding golf balls, and trick matches.
523
-,
~ed and intended
'ops or unwanted
ment of sound or
l by 5Iats.1939, c. 534,
itats.1947, c. 1316, p.
~ requirement of a per~
'tats.1955, c. 1891, p.
matter is now covered
Ie ~ 12640.
12505, added by Slats.
2.
at is 100 degrees
70 of the American
,d by 5tats.1939, c. 534,
Stats.1947, c. 1316, p.
:ed to applications for
taken thereon, was re-
1891,p.3493,~ I. See
;~
:.~
~ 12505 EXPLOSIVES
Dlv. 11
(h) Fireworks known as devil-on-the-walk, or any other firework which
explodes through means of friction, unless otherwise classified by the State Fire
Marshal pursuant to this part.
(i) Torpedoes of all kinds which explode on impact.
G) Fireworks kits.
(k) Such other fireworks examined and tested by the State Fire Marshal and
determined by him, with the advice of the State Board of Fire Services, to
possess characteristics of design or construction which make such fireworks
unsafe for use by any person not specially qualified or trained in the use of
fireworks.
(Added by Stats.1973, c. 1109, c. 2256, 9 2. Amended by Stats.1974, c. 231, 9 1. eff.
May 8,1974; Stats.1977, c. 513, p. 1652,9 1, eff. Sept. 3,1977.)
Historical and Statutory Notes
Former 9 12505. added by Stats.1955. c. Derivation: Former 9 12500, added by Stats.
1891, p. 3495, 9 2, whicb defined "agricultural 1939, c. 534, p. 1941, amended by Stats.1945, c.
and wild life fireworks," was repealed by Stats. 982, p. 1880, 9 I; Stats.1947, c. 1316, p. 2853,
1973, c, 1109, p. 2255, 9 I. See Health and 9 I
Safety Code 9 12503. .
Former 9 12505, added by Stats.1939, c. 534, Former 9 12503, added by Stats.1955, c.
related to the effect of the part on other laws 1891. p. 3494, 9 2, amended by Stats.1959, c.
and ordinances, and was repealed by Stats. 1135, p. 3228, 9 2; Stats.1968, c. 566, p. 1233,
1955, c. 1891, 9 I. The subject matter was 9 2; Stats.1968, c, 1220, p. 2299, 9 2; Stats.
later covered by Health and Safety Code 1969, c. 39, p. 147, 9 13.
9 12754 (repealed).
FIREWORKS &
Pt,2
69 Cal.App.4th 190, ,
nied, review denied.
~ 12506. Erne
"Emergency si
intended by the
reasonable degre,
used according to
(Added by Stats.197
Former 9 12506, ,
1891, p. 3495, 9 2, wh
mable liquid:' was rt
1109,p.2255,g 1. S,
9 12504.
Former 9 12506, adl
p. 1941, requiring a p
ester before fireworks
Classification, see Heal
Automobiles e=333.
Explosives e=2.
Westlaw Topic Nos. -4
Cross References
Classification, see Health and Safety Code 9 12561.
Code of Regulations References
Classification of fireworks, sparklers, see 19 Cal. Code of Regs. 9 986.1.
Library References
~ 12507. End Ii
"End fuse" meal
the end as distingu
(Added by Stats.1973
Explosives e=2.
Westlaw Topic No. 164.
C.J.S. Explosives ~ 2 to 6.
Research References
Former 9 12507, ae
1891, p. 3495, 9 2, wh
was repealed by Stats.
!i I.
Former 9 12507, add.
p. 1941, amended by
2855, 9 4, which defin
and "class B fireworks,'
f
Treatises and Practice Aids
2 Witkin Cal. Crim. L. 3d Crimes Against
Peace Welf 9 373, (g 373) Explosives.
Notes of Decisions
permitted to view the display or discharge of
such fireworks. 61 Op.Atty.Gen. 109, 3-14-78.
Dangerous fireworks
Instructions 2
Explosives e=2.
Westlaw Topic No. 16"
C.J.S. Explosives ~ 2
2. Instructions
1. Dangerous fireworks In prosecution for illegally possessing danger-
ous fireworks, jury should have been instructed
Public display licenses are required where a on statutory definition of "dangerous fire-
pyrotechnic operator intends to discharge dan- works," although term might be understood in a
gerous fireworks which may include a pyrotech~ general sense, as term had technical meaning
nic device, a special effects pyrotechnic device peculiar to the law; term was defined in statute
or an item of fireworks other than safe and sane enumerating items included in term. people v.
fireworks, if the public or a private group is Miller (App. 5 Dist. 1999) 81 Cal.Rptr.2d 410,
524
~ 12508. Exemp
"Exempt firework
tions which the Sta
Board, has investiga
1
ORDINANCE NO.
2
AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING
3 CHAPTER 8.61, REPEALING SECTION 8.60.140, AND AMENDING SECTION
8.60.150 OF THE SAN BERNARDINO MUNICIPAL CODE REGARDING
4 FIREWORKS.
5 The Mayor and Common Council of the City of San Bernardino do ordain as follows:
6 WHEREAS, the City faces an increasing incidence of the use of illegal fireworks, both on
7 ublic and private property in the City; and
8 WHEREAS, the use of illegal fireworks on public and private property can lead to an
9 increase in injuries to persons and damage to property; and
10 WHEREAS, the growing use of illegal fireworks on public and private property has
11 increased the need for Police and Fire Departments' response; and
12 WHEREAS, the City wishes to reduce the incidence of injuries and damage that result from
13 the use of illegal fireworks in the City of San Bernardino; and
14 WHEREAS, California Health and Safety Code Section 12557, effective January 1, 2008
15 by SB 839, requires that a city's ordinance related to dangerous fireworks comply with certain
16 requirements;
17 NOW THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF
18 SAN BERNARDINO DO ORDAIN AS FOLLOWS:
19
Section 1:
Chapter 8.61 Prohibited Fireworks, is hereby added to the San Bernardino
20 Municipal Code to read as follows:
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Chapter 8.61
PROHIBITED FIREWORKS
8.61.010
Dangerous Fireworks Prohibited.
In accordance with state law, it is unlawful for any person, organization,
group, association, etc., to possess, sell, use, or discharge any "dangerous fireworks"
in the City of San Bernardino, without a permit or license granted by the State Fire
Marshal.
F:\EMPENO\Ordinances\Ordinance re 8.61 - Fireworks.wpd 1
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8.61.020 Dangerous Fireworks Defined.
"Dangerous fireworks," as that term is used in this chapter, shall mean and
carry the same definition as provided in California Health and Safety Code Section
12505, as amended by the State Legislature from time to time.
8.61.030 Violation - Penalty.
A. Any person, organization, group, association, etc., violating any provision of
this Chapter is guilty of a misdemeanor, which upon conviction thereof, is
punishable in accordance with the provisions of Section 1.12.0lO of this
Code.
B. In addition to any other penalties provided by law, any person, organization,
group, association, etc., violating any provision of this Chapter shall be
subject to an Administrative Civil Penalty of one thousand dollars ($1,000)
for each violation, pursuant to Chapter 9.93 of this Code."
8.61.040 State-Law Limitations.
A. Any administrative fine or administrative civil penalty assessed pursuant to
this Chapter 8.61, shall provide for cost reimbursement to the Office of the
State Fire Marshal and the collection of disposal costs pursuant to Health and
Safety Code Section 12557.
B. Chapter 8.61 shall be limited to apply only to a person, organization, group,
association, etc., who possesses or the seizure of 25 pounds or less of
dangerous fireworks.
C. Any administrative fine or administrative civil penalty collected pursuant to
this Chapter 8.61, shall not be subject to Health and Safety Code Section
12706, Disposition of Fines and Forfeitures.
F:\EMPENO\Ordinances\OTdinance re 8.61 - Fireworks.wpd 2
1 Section 2: Section 8.60.150 Violation-Penalty, regarding safe and sane fireworks, is
2 hereby amended to read as follows:
8.60.150 Violation-Penalty.
A. Any person, organization, group, association, etc., violating any provision of this
Chapter is guilty of an infraction or a misdemeanor, which upon conviction thereof
is punishable in accordance with the provisions of Section 1.12.010 of this Code.
B. In addition to any other penalties provided by law, any person, organization, group
association, etc., violating any provision of this Chapter shall be subject to an
Administrative Civil Penalty of one thousand dollars ($1,000) for each violation,
pursuant to Chapter 9.93 of this Code.
Section 3: Section 8.60.140 is hereby repealed.
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1 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 8.61,
2 REPEALING SECTION 8.60.140, AND AMENDING SECTION 8.60.150 OF THE SAN
BERNARDINO MUNICIPAL CODE REGARDING FIREWORKS.
3
4 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and
5 Council ofthe City of San Bernardino at a
meeting thereof, held on the _ day of
6
, 2008, by the following vote, to wit:
7
8 COUNCIL MEMBERS:
9 ESTRADA
10 BAXTER
11 BRINKER
12 DERRY
13 LLEY
14 JOHNSON
15 MC CAMMACK
16
17
AYES
NAYS
ABSTAIN ABSENT
Rachel Clark, City Clerk
18
19
The foregoing Ordinance is hereby approved this _ day of
,2008.
20
21
PATRICK 1. MORRIS, Mayor
City of San Bernardino
22 Approved as to form:
23 JAMES F. PENMAN
City Attorney
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