HomeMy WebLinkAbout35-Council Office ORIGINAL.
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: CHAS KELLEY, Councilmember Subject: AN ORDINANCE OF THE CITY
Chairman, Legislative Review OF SAN BERNARDINO ADDING CHAPTER
Committee 8.61, REPEALING SECTION 8.60.140, AND
AMENDING SECTION 8.60.150 OF THE SAN
BERNARDINO MUNICIPAL CODE
Date: April 3, 2008 REGARDING FIREWORKS.
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. 9
I � �
Chas Kelley, Councilmem
Contact person: Henry Empeno, Jr., Sr. Deputy ity Attorney_ Phone: 5355
Supporting data attached: Staff Report Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
Agenda Item No._ 3S
FAEMPENO\Resos\Administrative Civil Penalties RCA.wpd
STAFF REPORT
Council Meeting Date: April 7, 2008
TO: Mayor and Common Council
FROM: Chas Kelley, Councilmember
Chairman, Legislative Review Committee
DATE: April 3, 2008
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.
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 8.60.0 10
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 infraction 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 prohibit the 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 of the 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 of this matter.
F:\EMPENO\Resos\Administrative Civil Penalties Staff Report.wpd
7,T
EXPLOSIVES FIREWORKS & PYROTECHNIC DEVICES § 12505
Div. 11 Pt. 2
by Stats.1939, c. 534, Health and Safety Code §§ 12602, 12633, Former § 12506, added by Stats.1955, c.
1 inflammable liquid, 12643, 12645, 12646. 1891,p.3495,§ 2.
155, c. 1891, p. 3493, Derivation: Former§ 12502, added by Stats.
r is now covered by 1939,c. 534,p. 1941.
12504.
Library References
Explosives 0=2.
C, 164. Westlaw Topic No. 164.
o6. C.J.S.Explosives§§ 2 to 6.
( § 12505. Dangerous fireworks
;ned and intended Lr Dangerous fireworks" includes all of the following:
.ops or unwanted (a) Any fireworks which contain any of the following:
ment of sound or (1) Arsenic sulfide, arsenates, or arsenites.
a (2) Boron.
(3) Chlorates, except:
(A) In colored smoke mixture in which an equal or greater amount of sodium
J by Stats.1939, c. 534, bicarbonate is included.
itats.1947, c. 1316, p.
requirement of a per- (B) In caps and party poppers.
4ats.1955, c. 1891, p. (C) In those small items (such as ground spinners) wherein the total powder
matter is now covered
le§ 12640. content does not exceed 4 grams of which not greater than 15 percent (or 600
12505, added by Stats. milligrams) is potassium, sodium, or barium chlorate.
2. (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.
a (b) Firecrackers.
(c) Skyrockets and rockets, including all devices which employ any combusti-
nt is 100 degrees ble or explosive material and which rise in the air during discharge.
70 of the American (d) Roman candles, including all devices which discharge balls of fire into
the air.
978, c. 868, p. 2731, (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
:d by Stats.1939, c. 534, diameter.
Stats.1947, c. 1316, p. (g) All fireworks designed and intended by the manufacturer to create the
:ed to applications for element of surprise upon the user. These items include, but are not limited to,
taken thereon, was re-
1891,p.3493,§ 1. See auto-foolers, cigarette loads, exploding golf balls, and trick matches.
523
£ § 12505 EXPLOSIVES FIREWORKS &
Div. 11 Pt. 2
(h) Fireworks known as devil-on-the-walk, or any other firework which 69 Ca1.App.4th 190,
l: explodes through means of friction, unless otherwise classified by the State Fire Hied,review denied.
Marshal pursuant to this part.
(i) Torpedoes of all kinds which explode on impact. § 12506. Erne
b �l
(j) Fireworks kits. "Emergency si
' (k) Such other fireworks examined and tested by the State Fire Marshal and intended by the
'I determined by him, with the advice of the State Board of Fire Services, to reasonable degref
possess characteristics of design or construction which make such fireworks used according to
unsafe for use by any person not specially qualified or trained in the use of (Added by Stats.197
� fireworks.
1 Y _ (Added by Stats.1973, c. 1109, c. 2256, § 2. Amended by Stats.1974, c. 231, § 1, eff. Former § 12506,
( 2 May 8, 1974; Stats.1977, c. 513, p. 1652, § 1, eff. Sept. 3, 1977.) 1891,p. 3495, § 2, wh
- , Historical and Statutory Notes mable liquid," was re 1109,p.2255,§ 1. Sc
.;.�+
Former § 12505, added b § 12504.
y Stats.1955, c. Derivation: Former§ 12500, added by Stats.
+'. 1891, p. 3495, § 2, which defined "agricultural 1939,c. 534,p. 1941,amended by Stats.1945,c. Former§ 12506, ad.
and wild life fireworks," was repealed by Stats. 982, p. 1880, § 1; Stats.1947, c. 1316, p. 2853, p. 1941, requiring a p
i; 1973, c. 1109, p. 2255, § 1. See Health and § 1 ester before fireworks
Safety Code§ 12503.
Former§ 12505, added by Stats.1939, c. 534, Former § 12503, added by Stats.1955, c.
1891, 3494, § 2, amended b
related to the effect of the part on other laws P• y Stats.1959, c. Classification,see Heal
1 and ordinances, and was repealed by Stats. 1135, p. 3228, § 2; Stats.1968, c. 566, p. 1233,
1955, c. 1891, § 1. The subject matter was § 2; Stats.1968, c. 1220, p. 2299, § 2; Stats.
1• later covered by Health and Safety Code 1969,c.39,p. 147,§ 13.
§ 12754(repealed). Automobiles e-333.
# Explosives«2.
Cross References Westlaw Topic Nos. 4
" Classification,see Health and Safety Code§ 12561.
Code of Regulations References § 12507• End fi
Classification of fireworks, sparklers,see 19 Cal.Code of Regs.§ 986.1. "End fuse" meat
the end as distingu
Library References
Explosives a2. (Added by Stats.1973
Westlaw Topic No. 164.
C.J.S. Explosives§§ 2 to 6.
Former § 12507, ac
Research References 1891, p. 3495, § 2, wh
Treatises and Practice Aids was repealed by Stats.§ 1
(> 2 Witkin Cal. Crim. L. 3d Crimes Against Former§ 12507, adde
Peace Welf§ 373,(§ 373)Explosives. P. 1941, amended by
2855, § 4, which defin
Notes of Decisions and "class B fireworks,'
Dangerous fireworks 1 permitted to view the display or discharge of
j Instructions 2 such fireworks. 61 Op.Atty.Gen. 109, 3-14-78.
'
Explosives a2.
# 2. Instructions Westlaw Topic No. 16,
1. Dangerous fireworks In prosecution for illegally possessing danger- C.J.S.Explosives§§ 2
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 § 12508. Exelnp
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 "Exempt firework
or an item of fireworks other than safe and sane enumerating items included in term. People v. bons which the Sta
fireworks, if the public or a private group is Miller (App. 5 Dist. 1999) 81 Ca1.Rptr.2d 410,
524 Board, has investiga
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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 public 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:
21 Chapter 8.61
22 PROHIBITED FIREWORKS
23 8.61.010 Dangerous Fireworks Prohibited.
24 In accordance with state law, it is unlawful for any person, organization,
25 group,association,etc.,to possess,sell,use,or discharge any"dangerous fireworks"
26 in the City of San Bernardino, without a permit or license granted by the State Fire
27 Marshal.
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F TWENUOrdinances\Ordinance re 8.61 -Fireworks.wpd 1
1 8.61.020 Dangerous Fireworks Defined.
2 "Dangerous fireworks," as that term is used in this chapter, shall mean and
3 carry the same definition as provided in California Health and Safety Code Section
4 12505, as amended by the State Legislature from time to time.
I
5 8.61.030 Violation - Penalty.
6 A. Any person,organization,group,association,etc.,violating any provision of
7 this Chapter is guilty of a misdemeanor, which upon conviction thereof, is
8 punishable in accordance with the provisions of Section 1.12.010 of this
9 Code.
10 B. In addition to any other penalties provided by law, any person, organization,
11 group, association, etc., violating any provision of this Chapter shall be
12 subject to an Administrative Civil Penalty of one thousand dollars ($1,000)
13 for each violation,pursuant to Chapter 9.93 of this Code."
14 8.61.040 State-Law Limitations.
15 A. Any administrative fine or administrative civil penalty assessed pursuant to
16 this Chapter 8.61, shall provide for cost reimbursement to the Office of the
17 State Fire Marshal and the collection of disposal costs pursuant to Health and
18 Safety Code Section 12557.
19 B. Chapter 8.61 shall be limited to apply only to a person, organization, group,
20 association, etc., who possesses or the seizure of 25 pounds or less of
21 dangerous fireworks.
22 C. Any administrative fine or administrative civil penalty collected pursuant to
23 this Chapter 8.61, shall not be subject to Health and Safety Code Section
24 12706, Disposition of Fines and Forfeitures.
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FAEMPENO\Ordinances\Ordinance re 8.61-Fireworks.wpd 2
I Section 2: Section 8.60.150 Violation-Penalty, regarding safe and sane fireworks, is
2 hereby amended to read as follows:
3 8.60.150 Violation-Penalty.
4 A. Any person, organization, group, association, etc., violating any provision of this
5 Chapter is guilty of an infraction or a misdemeanor, which upon conviction thereof
6 is punishable in accordance with the provisions of Section 1.12.010 of this Code.
7 B. In addition to any other penalties provided by law, any person, organization, group
8 association, etc., violating any provision of this Chapter shall be subject to an
9 Administrative Civil Penalty of one thousand dollars ($1,000) for each violation,
10 pursuant to Chapter 9.93 of this Code.
11 Section 3: Section 8.60.140 is hereby repealed.
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FAEMPENO\Ordinances\Ordinance re 8.61 -Fireworks.wpd 3
I 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 of the 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: AYES NAYS ABSTAIN ABSENT
9 ESTRADA
10 BAXTER
11 BRINKER
12 DERRY
13 KELLEY
14 JOHNSON
15 MC CAMMACK
16
17 Rachel Clark, City Clerk
18 The foregoing Ordinance is hereby approved this day of 2008.
19
20
PATRICK J. MORRIS, Mayor
21 City of San Bernardino
22 Approved as to form:
23 JAMES F. PENMAN
City Attorney
24
25
C.'ec H-+
27 �r
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