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HomeMy WebLinkAbout08.A- City Attorney DOC ID: 1635 CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Budget Amendment From: James F. Penman M/CC Meeting Date: 03/05/2012 Prepared by: Stephanie Easland, (909)384- 5355 Dept: City Attorney Ward(s): N/A Subject: Budget Amendment Restoring$939,100 to the City Attorney's Office's FY 2011/2012 Budget Financial Impact: Sum of$939,100.00 to come from either the unappropriated budget reserve balance and/or the litigation reserve account. Motion: Direct the City Manager to restore $939,100.00 to the City Attorney's Office's budget for FY 2011/2012. Synopsis of Previous Council Action: 1. Final 2010/2011 Budget adopted on June 30, 2010 included a $410,000 loan from City Attorney's 2011/2012 budget. The City Attorney's Office had submitted a budget in the amount of$3,965.108.00,however the budget adopted for the City Attorney's Office was$3,026,000. 2. On May 25,2011 the Finance department reduced the 2011/2012 City Attorney budget by the $410,000 loan which left the revised budget at$3,026,000. 3. On August 1, 2011 the City Attorney's Office requested a budget increase to pay outside counsel however the Mayor and Common Council further reduced City Attorney budget by $6000.00 in order to pay outside counsel. 4. On August 15, 2011 the City Attorney's Office requested an increase of$197,000 for outside legal bills and Mayor and Common Council approved that amount to pay those bills but also further reduced the City Attorney budget by that amount. 5. On November 21, 2011 City Attorney's Office requested a budget increase to pay outside litigation fees and costs,this request was denied. Updated:3/1/2012 by Linda Sutherland Page 1 1635 6. On December 5, 2011, the City Attorney's Office requested a budget amendment in the total amount of$183,550.57 to pay billings from outside legal counsel for services rendered and to pay litigation expenses previously incurred,but this request was denied. 7. On January 23, 2012, the City Attorney's Office requested additional funding in the amount of$16,400 to pay outstanding defense expert costs in Richard"Scott" Moss, et al. vs. City of San Bernardino, et al., United States District Court, Central District of California, EDCV 07-01027 SGL(Opx). The item was tabled. Backeround: See attached Memorandum from City Attorney James F. Penman to the Mayor and Common Council dated March 1, 2012. Su000rtina Documents: i { { i PacketPg. Btt j Updated:3/1/2012 by Linda Sutherland Page 2 aEaxa ��� PM 7: 57 0 �pfp la� INTER OFFICE MEMORANDUM OFFICE OF THE CITY ATTORNEY CITY OF SAN BERNARDINO To: Mayor and Common Council From: James F. Penman 9 City Attorney Date: March 1, 2012 I Subject: Restoration of City Attorney Budget for FY 2011-2012 Copies: City Clerk, City Treasurer, City Manager, Assistant City Manager,Acting Director of Finance In June of 2011 this office submitted its proposed annual budget for FY 2011-2012 (FY 11/12)to the City Manager for consideration. The amount of the budget estimate at that time was based on the projected costs to defend the city in pending and future law suits, in addition to addressing the legal needs of the City for FY 11/12. This proposed annual budget for the City's legal needs was submitted to the Mayor and Common Council on August 15, 2011. Based on the political climate at that time, and with city elections less than three months away, the Mayor and the majority of the Common Council chose to ignore the fact that there had been a 33.77% increase in lawsuits over the previous two years. The action taken by the Mayor and the majority of the City Council on August 15,2011 in response to the City's pressing legal needs left only$81,700 to defend the City legally, and effectively reduced the legal budget to respond to all of the City's legal needs for Council actions). FY 11/12 by$939,100(when taken together with previous As predicted at that time, the pending lawsuits against the City have reached the point where the funds paid out have exceeded the $81,700 allocated for outside counsel by many hundreds of thousands of dollars. This office has found it necessary to expend its entire non-personnel funding(supplies,postage, and other work-related necessities) for litigation expenses and outside counsel fees. Beyond that,we have now had to expend funds from the City Attorney Personnel © Services allocation to pay the City's litigation costs. MCC 03/05/12 Agenda Item#8-A Memo to Mayor and Common Council March 1,2012 Page two These cuts have required the City to settle cases that this Office would normally have preferred to take to trial. However, the Council found itself in a situation where it felt settlement was the only option because some of the cases were deemed to be not only expensive to try, but because the risk of trial, coupled with the lack of funding for necessary expert witnesses, investigations, etc.,made unfavorable outcomes against the City more likely than would have been the case had the litigation needs of the City received the necessary appropriations. The argument presented in August 2011 by those determined to reduce the City's ability to defend itself in lawsuits was that"every department must feel the pain of budget cuts." Failing to provide the necessary funding to defend the City from lawsuits in order to inflict"the feeling of pain,"is not a lawful function of municipal government. Moreover, there is no support for the Council to take an action for the purpose of"infliction of pain"in the City Charter, in the law of the State of California, or in California case law. The City is required however,pursuant to California case law and the City Charter, to provide sufficient funding for the City Attorney to carry out the mandated duties of the Office of the City Attorney. OWhile the City Attorney's Office, an inanimate entity,has yet to feel any pain,the taxpayers of this City are now experiencing the painful results of having an insufficient number of police officers remaining on the police force to address the rising crime in the City of San Bernardino, hearing police dispatchers tell them"we have no units to send,"when they call for police assistance; having streets and street lights insufficiently maintained; and having city lands, including public parks, rights of way and other public properties suffer deterioration to a point where the City itself is in violation of its own property maintenance codes. These deficiencies have led to an increase in law suits which we are now required to defend. This will continue unless the funding is restored to enable the City to prevail in the increased number of lawsuits now pending. I respectfully request that the $939,100 by which the City's legal funding was decreased in August 2011 now be restored so we may pay the outstanding bills of$450,116.91 in outside attorney fees and litigation costs that have been submitted but not paid,plus the$22,888.77 in bills submitted to the City Attorney's Office for other necessary expenses. This is a total of $473,005.68 in bills now due but unpaid. In order to complete the legal work needed for the balance of FY 11/12, we will need approximately$404,429.32 for the remaining five months of charges we will incur for outside counsel fees and legal costs,plus another$47,665 to continue operation of the City Attorney's Office through June 30. That leaves a remaining cost of approximately$14,000 of personnel funding used to cover imminent litigation costs over the past three months, which must be reimbursed. C Memo to Mayor and Common Council March 1,2012 Page three Hopefully, now that the fallacy of the"shared pain"philosophy has been "painfully felt"by our City's residents, the solution should also be obvious, even to the previous City Council. If not, a glance at the disregard of the 33.77% increase in litigation, and at the increasing number of lawsuits being filed as a result of the necessary work of other City departments should be apparent. From January 1,2011 to the present, there has been an additional 25.24% increase in law suits where the City of San Bernardino, one of its constituent entities or one or more employees are named. The overall increase in law suits from January 1, 2009 to February 29, 2012 is 67.5%. The increase in cases being handled by deputy city attorneys in-house is now an 89.36%increase since January 1,2009. The lesson to be learned is based on the City's experience of having to settle lawsuits on which we might otherwise have prevailed had we had the funding necessary to provide the caliber of defense this Office has provided for the City of San Bernardino over the past two decades when the Office was appropriately funded. I respectfully request that the sum of$939,100 be transferred from the unappropriated reserve or the Litigation Reserve to the City Attorney budget for Fiscal year 2011/2012. i i i QEpNARp o � a 2912M,R —5 PM T 5 r HREp IN\0 INTER OFFICE MEMORANDUM OFFICE OF THE CITY ATTORNEY CITY OF SAN BERNARDINO To: Mayor and Common Council From: James F. Penman City Attorney Date: March 1, 2012 Subject: Restoration of City Attorney Budget for FY 2011-2012 Copies: City Clerk, City Treasurer, City Manager,Assistant City Manager,Acting Director of Finance C In June of 2011 this office submitted its proposed annual budget for FY 2011-2012 (FY 11/12)to the City Manager for consideration. The amount of the budget estimate at that time was based on the projected costs to defend the city in pending and future law suits, in addition to addressing the legal needs of the City for FY 11/12. This proposed annual budget for the City's legal needs was submitted to the Mayor and Common Council on August 15, 2011. Based on the political climate at that time, and with city elections less than three months away, the Mayor and the majority of the Common Council chose to ignore the fact that there had been a 33.77% increase in lawsuits over the previous two years. The action taken by the Mayor and the majority of the City Council on August 15, 2011 in response to the City's pressing legal needs left only$81,700 to defend the City legally, and effectively reduced the legal budget to respond to all of the City's legal needs for FY 11/12 by$939,100(when taken together with previous Council actions). As predicted at that time, the pending lawsuits against the City have reached the point where the funds paid out have exceeded the $81,700 allocated for outside counsel by many hundreds of thousands of dollars. This office has found it necessary to expend its entire non-personnel funding(supplies,postage, and other work-related necessities) for litigation expenses and outside counsel fees. Beyond that, we have now had to expend funds from the City Attorney Personnel © Services allocation to pay the City's litigation costs. MCC 03105/12 Agenda Item#8-A 't Memo to Mayor and Common Council March 1, 2012 Page two These cuts have required the City to settle cases that this Office would normally have preferred to take to trial. However, the Council found itself in a situation where it felt settlement was the only option because some of the cases were deemed to be not only expensive to try, but because the risk of trial, coupled with the lack of funding for necessary expert witnesses, investigations, etc., made unfavorable outcomes against the City more likely than would have been the case had the litigation needs of the City received the necessary appropriations. The argument presented in August 2011 by those determined to reduce the City's ability to defend itself in lawsuits was that"every department must feel the pain of budget cuts." Failing to provide the necessary funding to defend the City from lawsuits in order to inflict"the feeling of pain,"is not a lawful function of municipal government. Moreover,there is no support for the Council to take an action for the purpose of"infliction of pain"in the City Charter, in the law of the State of California, or in California case law. The City is required however,pursuant to California case law and the City Charter, to provide sufficient funding for the City Attorney to carry out the mandated duties of the Office of the City Attorney. © While the City Attorney's Office, an inanimate entity, has yet to feel any pain,the taxpayers of this City are now experiencing the painful results of having an insufficient number of police officers remaining on the police force to address the rising crime in the City of San Bernardino, hearing police dispatchers tell them "we have no units to send,"when they call for police assistance; having streets and street lights insufficiently maintained; and having city lands, including public parks,rights of way and other public properties suffer deterioration to a point where the City itself is in violation of its own property maintenance codes. These deficiencies have led to an increase in law suits which we are now required to defend. This will continue unless the funding is restored to enable the City to prevail in the increased number of lawsuits now pending. I respectfully request that the $939,100 by which the City's legal funding was decreased in August 2011 now be restored so we may pay the outstanding bills of$450,116.91 in outside attorney fees and litigation costs that have been submitted but not paid,plus the$22,888.77 in bills submitted to the City Attorney's Office for other necessary expenses. This is a total of $473,005.68 in bills now due but unpaid. In order to complete the legal work needed for the balance of FY 11/12, we will need approximately$404,429.32 for the remaining five months of charges we will incur for outside counsel fees and legal costs,plus another$47,665 to continue operation of the City Attorney's Office through June 30. That leaves a remaining cost of approximately$14,000 of personnel funding used to cover imminent litigation costs over the past three months, which must be reimbursed, Memo to Mayor and Common Council March 1, 2012 Page three I Hopefully, now that the fallacy of the"shared pain"philosophy has been "painfully felt"by our City's residents, the solution should also be obvious, even to the previous City Council. If not, a glance at the disregard of the 33.77% increase in litigation, and at the increasing number of lawsuits being filed as a result of the necessary work of other City departments should be apparent. From January 1,2011 to the present,there has been an additional 25.24%increase in law suits where the City of San Bernardino, one of its constituent entities or one or more employees are named. The overall increase in law suits from January 1,2009 to February 29, 2012 is 67.5%. The increase in cases being handled by deputy city attorneys in-house is now an 89.36% increase since January 1,2009. The lesson to be learned is based on the City's experience of having to settle lawsuits on which we might otherwise have prevailed had we had the funding necessary to provide the caliber of defense this Office has provided for the City of San Bernardino over the past two decades when the Office was appropriately funded. I respectfully request that the sum of$939,100 be transferred from the unappropriated reserve or Qthe Litigation Reserve to the City Attorney budget for Fiscal year 2011/2012. O OE ARp�� o PM 7: 57 0 Np£p IH\0 INTER OFFICE MEMORANDUM OFFICE OF THE CITY ATTORNEY CITY OF SAN BERNARDINO To: Mayor and Common Council From: James F. Penman 9 City Attorney Date: March 1, 2012 Subject: Restoration of City Attorney Budget for FY 2011-2012 Copies: City Clerk, City Treasurer, City Manager, Assistant City Manager,Acting Director of Finance In June of 2011 this office submitted its proposed annual budget for FY 2011-2012 (FY 11/12)to the City Manager for consideration. The amount of the budget estimate at that time was based on the projected costs to defend the city in pending and future law suits, in addition to addressing the legal needs of the City for FY 11/12. This proposed annual budget for the City's legal needs was submitted to the Mayor and Common Council on August 15, 2011. Based on the political climate at that time, and with city elections less than three months away, the Mayor and the majority of the Common Council chose to ignore the fact that there had been a 33.77% increase in lawsuits over the previous two years. The action taken by the Mayor and the majority of the City Council on August 15,2011 in response to the City's pressing legal needs left only$81,700 to defend the City legally, and effectively reduced the legal budget to respond to all of the City's legal needs for FY 11/12 by$939,100(when taken together with previous Council actions). As predicted at that time, the pending lawsuits against the City have reached the point where the j funds paid out have exceeded the $81,700 allocated for outside counsel by many hundreds of i thousands of dollars. This office has found it necessary to expend its entire non-personnel funding(supplies,postage, and other work-related necessities) for litigation expenses and outside counsel fees. Beyond that, we have now had to expend funds from the City Attorney Personnel Services allocation to pay the City's litigation costs. MCC 03/05/12 Agenda Item# 8-A Memo to Mayor and Common Council March 1, 2012 Page two These cuts have required the City to settle cases that this Office would normally have preferred to take to trial. However, the Council found itself in a situation where it felt settlement was the only option because some of the cases were deemed to be not only expensive to try, but because the risk of trial, coupled with the lack of funding for necessary expert witnesses, investigations, etc., made unfavorable outcomes against the City more likely than would have been the case had the litigation needs of the City received the necessary appropriations. The argument presented in August 2011 by those determined to reduce the City's ability to defend itself in lawsuits was that"every department must feel the pain of budget cuts." Failing to provide the necessary funding to defend the City from lawsuits in order to inflict"the feeling of pain,"is not a lawful function of municipal government. Moreover,there is no support for the Council to take an action for the purpose of"infliction of pain"in the City Charter, in the law of the State of California, or in California case law. The City is required however,pursuant to California case law and the City Charter,to provide sufficient funding for the City Attorney to carry out the mandated duties of the Office of the City Attorney. 3 While the City Attorney's Office, an inanimate entity,has yet to feel any pain,the taxpayers of this City are now experiencing the painful results of having an insufficient number of police officers remaining on the police force to address the rising crime in the City of San Bernardino, hearing police dispatchers tell them"we have no units to send,"when they call for police assistance; having streets and street lights insufficiently maintained; and having city lands, including public parks, rights of way and other public properties suffer deterioration to a point where the City itself is in violation of its own property maintenance codes. These deficiencies have led to an increase in law suits which we are now required to defend. This will continue unless the funding is restored to enable the City to prevail in the increased number of lawsuits now pending. I respectfully request that the$939,100 by which the City's legal funding was decreased in August 2011 now be restored so we may pay the outstanding bills of$450,116.91 in outside attorney fees and litigation costs that have been submitted but not paid,plus the$22,888.77 in bills submitted to the City Attorney's Office for other necessary expenses. This is a total of $473,005.68 in bills now due but unpaid. hi order to complete the legal work needed for the balance of FY 11/12,we will need approximately$404,429.32 for the remaining five months of charges we will incur for outside counsel fees and legal costs,plus another$47,665 to continue operation of the City Attorney's Office through June 30. That leaves a remaining cost of approximately$14,000 of personnel funding used to cover imminent litigation costs over the past three months, which must be reimbursed. Memo to Mayor and Common Council March 1, 2012 Page three Hopefully, now that the fallacy of the "shared pain"philosophy has been "painfully felt"by our City's residents, the solution should also be obvious, even to the previous City Council. If not, a glance at the disregard of the 33.77%increase in litigation, and at the increasing number of lawsuits being filed as a result of the necessary work of other City departments should be apparent. From January 1,2011 to the present, there has been an additional 25.24% increase in law suits where the City of San Bernardino, one of its constituent entities or one or more employees are named. The overall increase in law suits from January 1,2009 to February 29, 2012 is 67.5%. The increase in cases being handled by deputy city attorneys in-house is now an 89.36% increase since January 1,2009. The lesson to be learned is based on the City's experience of having to settle lawsuits on which we might otherwise have prevailed had we had the funding necessary to provide the caliber of defense this Office has provided for the City of San Bernardino over the past two decades when the Office was appropriately funded. I respectfully request that the sum of$939,100 be transferred from the unappropriated reserve or the Litigation Reserve to the City Attorney budget for Fiscal year 2011/2012. I �- . . 't 3 i I j i i ti KAMALA D. HARRIS State of California Attorney General R E C E i DEPARTMENT OF JUSTICE 71 T T _ . 13001 STREET,SUITE 125 1011 DEC 27 f 2 50 P.O.BOX 944255 SACRAMENTO,CA 94244-2550 Entered Into Rec. at MCC Mk tg: 3l SO OL Public: (916)445-9555 Telephone: (916)324-5172 b �nynQn Facsimile: (916)322-2368 y' � E-Mail: Patti.Freeman @doj.ca.gov Agenda Item No: December 20, 2011 by: City ClerVCDC Secretary City of San Bernardino James F. Penman Office of the City Attorney City of San Bernardino 300 North D Street San Bernardino, CA 92418-0001 RE: Opinion No. 07-503 Dear Mr. Penman: Enclosed is our Opinion No. 07-503 issued in response to your request of May 16, 2007. Sincerely, s10a40 ��aAk-C/� SUSAN DUNCAN LEE Supervising Deputy Attorney General For KAMALA D. HARRIS Attorney General SDL:pkf Enclosure Ing -ht 9 4 f l TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California KAMALA D. HARRIS Attorney General OPINION No. 07-503 of December 20, 2011 KAMALA D. HARRIS Attorney General DIANE E. EISENBERG Deputy Attorney General THE HONORABLE JAMES F. PENMAN, PROSECUTING CITY ATTORNEY FOR THE CITY OF SAN BERNARDINO, has requested an opinion on the following questions: 1. May a city enact an ordinance making it unlawful and a misdemeanor violation for any person to sell, offer for sale, use, discharge, possess, store, or transport any fireworks within city limits that are not "exempt fireworks" or "safe and sane fireworks" as defined in Health and Safety Code sections 12508 and 12529, respectively? 2. If a city is authorized to enact such an ordinance, may it impose an administrative fine pursuant to Government Code section 53069.4 of up to $1,000 for each violation? 1 07-503 M1 I y CONCLUSIONS 1. A city may enact an ordinance making it unlawful and a misdemeanor violation for any person to sell, use, or discharge any fireworks that are not "exempt fireworks" or"safe and sane fireworks" within city limits. However, although a city may enact an ordinance regulating the offering for sale, possession, storage, or transportation of such fireworks within city limits to the extent that the regulation is consistent with the State Fireworks Law, it may not enact an ordinance that would operate as a total ban on those activities. 2: If a city enacts an ordinance regulating fireworks activities within city limits, the city may impose an administrative fine pursuant to Government Code section 53069.4 of up to $1,000 for each violation. ANALYSIS The State Fireworks Law' sets out "a thorough guide for the state-wide administration and regulation of the manufacture, transportation, licensing, sale and use of fireworks."' Generally speaking, the State Fireworks Law contemplates a system of state licenses governing various fireworks activities, supplemented by local permits where local control is called for. "Anyone wanting to sell or manufacture fireworks must have a license from the state and a permit from the city or local government."' Thus it is clear that the State Fireworks Law allows for some degree of local regulation to supplement the state law. The central question here is how much local regulation is permissible. As we shall see, the answer depends on what area of fireworks activity is being considered.' ' Health and Safety Code §§ 12500-12728. Further references to the Health and Safety Code are by section number only. 3 Ventura v. City of San Jose, 151 Cal. App. 3d 1076, 1078 (1984). 'Id. (original emphasis). ° Under the State Fireworks Law, "fireworks" is a comprehensive term incorporating all classifications of fireworks, including "dangerous" fireworks (§ 12505), "exempt" fireworks (§ 12508), and "safe and 'sane" fireworks (§ 12529). See § 12511 ("fireworks"). Other classifications of fireworks include "agricultural and wildlife fireworks" (§ 12503); "model rocket engines" (§§ 12519-12520), and "emergency signaling devices" (§ 12506). Special rules apply to "exempt" fireworks (§ 12508) and to "safe and sane" fireworks (§ 12529), and those categories of fireworks are not included 2 07-503 Sale, Use, or Discharge The specific activities of sale, use, and discharge of fireworks are not preempted by state law. Section 12541 provides that, "Nothing in [the State Fireworks Law] authorizes the sale, use, or discharge of fireworks in any city, county, or city and county in which the sale, use, or discharge is otherwise prohibited or regulated by law or ordinance."' In Ventura v. City of San Jose, the Court of Appeal concluded that this language "is in effect a disclaimer of preemption," allowing cities and counties free reign to regulate the fireworks activities to which the section applies.' We therefore have no trouble concluding that a city may enact an ordinance regulating, or even banning, the sale, use, or discharge of fireworks within city limits, notwithstanding the detailed regulation of those activities contained in the State Fireworks Law. Moreover, a violation of a city ordinance is a misdemeanor unless by ordinance it is made an infraction.' Hence, to the extent an ordinance is valid, violations of it may be made misdemeanors simply by not making them infractions. Consequently, we conclude that a city may enact an ordinance making it unlawful and a misdemeanor violation for any person to sell, use, or discharge any fireworks that are not "exempt fireworks" or "safe and sane fireworks" within city limits. Other Activities The questions presented to us inquire not only about the sale, use, or discharge of fireworks, but also about offering them for sale,' and their possession, storage, and transportation. Because section 12541 does not refer specifically to these latter activities, it is not as clear whether, or to what extent, local regulation in these areas may be within the scope of the question before us. For purposes of brevity, we use the term "fireworks" throughout this opinion to mean "dangerous fireworks" as defined in section 12505. ' See also §12541.1(a) (allowing fire district to prohibit or regulate sale, use, or discharge of fireworks within that district, subject to preemption by other state, city or county regulation). 6 151 Cal. App. 3d at 1079 (considering earlier version of§ 12541, which applied to "use" and "discharge,"but not to "sale," of fireworks). Govt. Code §§ 25132(a) (counties), 36900(a) (cities). ' State law distinguishes between sale and offering for sale. See e.g., § 12672. "Offering for sale," for example, may include advertising for sale. See § 12502. 3 07-503 preempted by the State Fireworks Law. In order to answer this part of the question, we turn to general principles of preemption. The California Constitution provides that, "A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws."' If local legislation is in conflict with state law, it is deemed preempted by state law." "A conflict between state law and an ordinance exists if the ordinance duplicates or is coextensive therewith, is contradictory or inimical thereto, or enters an area either expressly or impliedly fully occupied by general law."" Therefore, if a city ordinance duplicates or contradicts state law, or invades an area fully occupied by state law, it is in conflict with state law and void to the extent of the conflict. An examination of the State Fireworks Law generally reveals a detailed, state- wide scheme of fireworks regulation that may fairly be described as "comprehensive."" It provides for classification of fireworks," licensing of fireworks activities," and monitoring of fireworks transactions at the state level," and it authorizes the State Fire Marshal to enact supplemental regulations to carry out those functions.16 Among other things, it prescribes a one-week period in each calendar year during which "safe and sane" fireworks may be sold," and provides for pre-approved routes by which firework shipments maybe transported.18 And yet, despite its scope and detail, the State Fireworks Law is clearly not intended to shut local agencies entirely out of the field of fireworks regulation. " Rather, ' Cal. Const. art. XI, § 7. °Sherwin-Williams Co. v. City of Los Angeles, 4 Cal. 4th 893, 897 (1993). "Am. Fin. Serv. Assn. v. City of Oakland, 34 Cal. 4th 1239, 1251 (2005). =See 61 Ops.Cal.Atty.Gen. 61, 65 (1978). " §§ 12560-12566. 14 §§ 12516, 12570-12608. " §§ 12555-12556, 12615-12620. 16 § 12552-12554. " § 12599. `° §§ 12651-12652. " 61 Ops.Cal.Atty.Gen. at 65. 4 07-503 the Legislature has struck a careful balance between state and local concerns by disclaiming preemption in the areas of sale, use, and discharge,30 while affording local jurisdictions "permitting" authority in other areas" A review of the State Fireworks Law discloses that cities and counties are expressly authorized to issue permits" for a variety of fireworks activities, specifically including offers for sale,' possession,24 storage," and transportation.26 If a statute authorizes a local agency to issue permits for specified activities, then it is undoubtedly appropriate for the local agency to adopt regulations that provide definite and uniform standards for the issuance of those permits.2' And local regulation, of course, must take the form of an ordinance if it is,to be enforced by the imposition of a § 12541; see Ventura v. City of San Jose, 151 Cal. App. 3d at 1078. Z' It stands to reason that a significant degree of local involvement is allowed, for variability in local conditions makes a significant degree of local control over fireworks regulation highly desirable. Indeed, the Legislature has long recognized that "local regulation of fireworks more restrictive than state law is necessary as a fire prevention measure in [many] areas of the state." 1975 Stat. ch. 104 § 2 (amending State Fireworks Law to disclaim preemption in areas of use and discharge). u See § 12522 ("`Permit' means the nontransferable permission granted by the public agency having local jurisdiction ..."). 2' § 12688 (unlawful to advertise to sell fireworks without valid license or permit); see § 12502 ("`Advertise' means ... offering to sell ..."). ' §§ 12640, 12677 (unlawful to possess fireworks without permit); see § 12557 (authorizing development of model ordinance regarding possession of 25 pounds or less of fireworks). 35 §§ 12640, 12673 (unlawful to store fireworks without valid permit); see §§ 12572, 12604. " Special rules apply to the transportation of fireworks. See generally §§ 12579, 12640-12654. Pre-approved routes of travel are prescribed by law. § 12561; see Veh. Code § 31616. In most cases, a state license to engage in a specified fireworks activity includes a license to transport fireworks for the specified purpose over the pre-approved routes. § 12579. However, local permits are required where travel extends outside of the pre-approved routes. See §§ 12651-12653. Z' See Kugler v. Yocum, 69 Cal. 2d 371, 376-377 (1968); Smith v. Co. of Los Angeles, 24 Cal. App. 4th 990, 1000 (1994). 5 07-503 fine's It is beyond the scope of this opinion to speculate on the specific forms that local ordinances may or may not legitimately take for purposes of regulating fireworks activities. We note, however, that it is well settled that local agencies may use their licensing and permitting powers as an aspect of their police powers to, for example, discourage illegitimate activity associated with certain kinds of businesses, or alleviate the burdens that local enforcement of state law imposes on local officials." We therefore find that a city may enact an ordinance regulating offers for sale, possessing, storing, or transporting fireworks within city limits. This finding, however, is necessarily qualified by an important limitation: that is, a local agency may not enact any fireworks regulation that is inconsistent with the State Fireworks Law.30 The instruction of Ventura is that the Legislature knows how to fully disclaim preemption when it wants to, and the Legislature has done so with respect to the sale, use, and discharge of fireworks. The power to "regulate" other fireworks-related activities is not necessarily the power to forbid those activities completely. An outright ban on an activity would not be valid where, as here, state law calls for shared control of that activity by means of state licenses and local permits." Accordingly, we conclude that a city may enact an ordinance regulating the offering for sale, possession, storage, or transportation of fireworks within city limits to the extent that the regulation is compatible with the State Fireworks Law, but that a city may not enact an ordinance that would operate as a total ban on those activities. Administrative Fines The second question is whether a city may impose administrative fines pursuant to Government Code section 53069.4 for violations of a fireworks ordinance, rather than prosecuting violations within the criminal justice system. We conclude that such fines are permissible. Govt. Code §§ 36900, 36901. :9 See Cohen v. Bd. of Supervisors, 40 Cal. 3d 277, 296-300 (1985). 30 See Cal. Const. art. XI, § 7; Govt. Code § 37100. " See Ventura v. City of San Jose, 151 Cal. App. 3d at 1081-1082. Cf. § 11571.1(a)(4) ("Nothing in this article shall prevent a local governing body from adopting and enforcing laws, consistent with this article, relating to drug abatement. Where local laws duplicate or supplement this article, this article shall be construed as providing alternative remedies and not preempting the field."). 6 07-503 The Legislature's purpose in enacting Government Code section 53069.4 was to provide a faster and more cost-effective enforcement mechanism than a criminal prosecution for the violation of a local ordinance." The section was expressly modeled on state legislation that removed the enforcement of most parking violations from the criminal justice system and mandated enforcement of parking violations through civil administrative procedures and civil penalties." Government Code section 53069.4(a)(1) provides: The legislative body of a local agency, as the term "local agency" is defined in Section 54951, may by ordinance make any violation of any ordinance enacted by the local agency subject to an administrative fine or penalty. The local agency shall set forth by ordinance the administrative procedures that shall govern the imposition, enforcement, collection, and administrative review by the local agency of those administrative fines or penalties. Where the violation would otherwise be an infraction, the administrative fine or penalty shall not exceed the maximum fine or penalty amounts for infractions set forth in subdivision (b) of Section 25132 and subdivision (b) of Section 36900. It has been suggested that this provision does not apply to misdemeanor violations because it specifically mentions only infractions. We reject the suggestion. The first sentence of Government Code section 53069.4(a)(1) plainly states that the section applies to "any violation of any ordinance." This all-inclusive language necessarily encompasses ordinances creating misdemeanors as well as ordinances creating infractions. Moreover, the specific mention of infractions in the phrase "where the violation would otherwise be an infraction" implies that the section is not limited to ordinances creating infractions; if it were so limited, the phrase would be surplusage. We are not free to construe a statute in that manner.'° 32 See Assem. Comm. on Pub. Safety, Analysis of Sen. 814 (as amend. Apr. 24, 1995), 1995-1996 Reg. Sess. 1 (June 12, 1995). "Id.; Sen. Rules Comm., Unfinished Bus.—Analysis of Sen. 814 (as amend. Aug. 21, 1995), 1995-1996 Reg. Sess. 2 (Sept. 1, 1995). See Veh. Code §§ 40200 et seq. (parking enforcement provisions). 34 Harris v. Capital Growth Investors UV, 52 Cal. 3d 1142, 1159 (1991). 7 07-503 Moreover, several provisions of the State Fireworks Law itself expressly acknowledge the possibility that a local jurisdiction may impose administrative fines for violations of its fireworks ordinances. Section 12557 refers to the administrative fine procedures authorized by Government Code section 53069.4 as a remedy for violations of a local ordinance related to the possession of 25 pounds or less of fireworks. Section 12726(c) mandates a particular distribution of administrative fines or penalties collected by a local government if dangerous fireworks are seized pursuant to a local ordinance that provides for such fines or penalties. We believe that these provisions manifest the Legislature's determination that violations of local fireworks ordinances are appropriate for the administrative penalties and procedures authorized by Government Code section 53069.4. Finally, we are asked whether a city may impose an administrative fine of up to $1,000 for each violation of its fireworks ordinance. Government Code section 53069.4 specifies the maximum amount of the administrative fine or penalty that could be imposed fora violation that would otherwise be an infraction,' but does not address the amount of an administrative fine or penalty that could be imposed for a violation that would otherwise be prosecuted as a misdemeanor. We note that a fine of $1,000 is typically the maximum fine authorized as punishment for a misdemeanor,36 and that the maximum monetary fine or monetary penalty specifically for a violation of a city ordinance is also $1,000." We note also that section 12700(a), within the State Fireworks Law itself, imposes a fine of up to $1,000 for a misdemeanor violation of the State Fireworks Law. In light of all these provisions, we believe that it would be reasonable for a city to impose an administrative fine up to a maximum of$1,000 for each violation of its fireworks ordinance. Accordingly, we conclude that if a city enacts an ordinance regulating fireworks activities within city limits, the city may impose an administrative fine pursuant to Government Code section 53069.4 of up to $1,000 for each violation. J5 Maximum penalties for infractions range from $100 to $1,000 per offense, depending on the nature of the infraction and on how many times a person has committed the same infraction. See Govt. Code §§ 25132 (counties), 36900 (cities). J6 Pen. Code § 19 ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both."). " Govt. Code § 36901. 8 07-503 y 9 07-503