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HomeMy WebLinkAboutItem No. 04 - Introduction and First Reading of Ordinance MC-1535 - Pertainin gto the Use of Fireworks Within City Limits Page 1 Staff Report City of San Bernardino Request for Council Action Date: April 15, 2020 To: Honorable Mayor and City Council Members From: Teri Ledoux, City Manager By:Eric McBride, Acting Chief of Police Subject: Introduction and First Reading of Ordinance MC-1535 – Penalties for Fireworks Violations Recommendation It is recommended that the Mayor and City Council of the City of San Bernardino, California introduce, read by title only, and waive further reading of Ordinance MC-1535, amending Chapters 8.60 and 8.61 of Title 8 and Chapter 9.93 of Title 9 of the San Bernardino Municipal Code, pertaining to the use of fireworks within city limits. Background Chapters 8.60 and 8.61 of the San Bernardino Municipal Code regulate fireworks sale s, designate certain restrictions on the possession and discharge of fireworks, and establish penalties for violations of fireworks regulations. Chapter 9.93 of the San Bernardino Municipal Code establishes the Administrative Civil Penalties program and sets a $1,000 maximum daily penalty per violation of the Municipal Code. During the July 17, 2019 Mayor and City Council meeting, it was directed that the Legislative Review Committee to explore modifying the Municipal Code to increase fines and penalties for fireworks violations in the City of San Bernardino. Legislative Review Committee Action On September 11, 2019, the Legislative Review Committee convened to discuss fireworks violations and to provide direction to staff. Following public comment and Committee member discussion, a majority of the Committee voted to direct staff to place an item on the agenda for a future meeting of the Mayor and City Council Members to: Consider amending the Municipal Code to adopt an enhanced penalty structure for fireworks violations, and Consider establishing a fund consisting of fines collected from fireworks violations to be used to pay a reward in the amount of $250 to any individual providing information leading to the identification and successful crimina l or civil prosecution of any person violating the City of San Bernardino Municipal Code related to the unlawful possession, sale, or discharge of fireworks. 6679 Page 2 Council Direction During the November 6, 2019 meeting, the Mayor and City Council unanimously accepted the recommendations provided in the Fireworks Permitting and Penalties for Fireworks Violations staff report. That report outlined a proposed structure for increased administrative civil penalties for fireworks violations as well as the establishment of a reward fund for individuals providing information leading to the identification and successful criminal or civil prosecution of any person violating any fireworks -related Municipal Code. City staff were directed to draft a proposed ordinance modifyin g Chapters 8.60, 8.61, and 9.93 of the Municipal Code according to the terms provided in the staff report and to bring the proposed ordinance back to the Mayor and City Council for further consideration. Discussion Existing Penalties for Fireworks Violations As currently established, Section 8.60.150 of the Municipal Code makes it an infraction or a misdemeanor to violate any provision of Chapter 8.60 of the Municipal Code relating to the sale, possession, and discharge of safe and sane fireworks. Section 8.61.030 of the Municipal Code makes it a misdemeanor to violate any provision of Chapter 8.61 of the Code relating to the possession and discharge of dangerous fireworks. Anyone convicted of an infraction is subject to a fine not to exceed $100 for a first violation, $200 for a second violation within one year, and $500 for any subsequent violation within one year (Municipal Code Section 1.12.010). Anyone convicted of a misdemeanor violation is subject to imprisonment in the County Jail for not more than six months and/or a fine not to exceed $1,000 (Municipal Code Section 1.12.010). In addition to criminal fines and the potential for imprisonment as outlined above, fireworks violations are also currently subject to an Administrative Civil Penalty of $1,000 per violation (Municipal Code Sections 8.60.150, 8.61.030, and 9.93.020). Each fireworks violation may be subject to criminal penalties, civil penalties, or both. Comparison of Fireworks Violation Penalties Throughout the Region The proposed increase to administrative civil penalties fines for fireworks violations is premised upon staff research and analysis of various penalties for fireworks violations in the region. Staff evaluated current fireworks regulations and penalties in use by the County of San Bernardino, 23 incorporated cities within the County of San Bernardino, and the City of Riverside. Of the 25 jurisdictions evaluated, eight permit some form of lawful possession and discharge of safe and sane fireworks (Adelanto, Barstow, Chino, Colton, Fontana, Grand Terrace, Needles, and Rialto), and all impose some form of penalty structure for fireworks violations. Most of the jurisdictions evaluated establish criminal penalties for fireworks violations as either an infraction punishable by a fine up to $500, or as a misdemeanor punishable by a fine up to $1,000 and/or six months in County Jail. These criminal penalties are on par with the criminal penalties authorized by the City of San Bernardino Municipal Code, as well as state provisions for infraction and misdemeanor crimes. Given the relative uniformity in criminal penalties among the jurisdictions researched and the 6679 Page 3 determination that the City of San Bernardino Municipal Code is consistent with those penalties, staff recommends no changes to the current criminal penalty structure. Most of the jurisdictions evaluated also allow for some form of civil penalty in addition to any criminal penalties assessed. For dangerous fireworks violations, civil penalties range from $100 for a first violation on the low end of the spectrum to $10,000 for a third violation within one year on the high end of the spectrum. The cities of Fontana and Grand Terrace impose the highest civil penalties for dangerous fireworks violations among the evaluated cities: $2,500 for a first offense, $5,000 for a second offense within one year, and $10,000 for each subsequent offense within one year. However, these same cities provide for a much lower penalty structure for violations related to safe and sane fireworks: $250 for the first offense, $500 for the second offense within one year, and $750 for each subsequent violation within one year. The City of Montclair imposes the highest penalties for safe and sane fireworks violations: $1,000 for the first offense, $2,500 for the second offense within 36 months, and $5,000 for each subsequent offense within 36 months. There is no distinction in the Montclair penalty structure differentiating safe and sane fireworks violations and dangerous fireworks violations. In contrast to these three example cities, the City of San Bernardino Municipal Code provides for a $1,000 civil penalty for any fireworks-related violation, regardless of severity, type of fireworks involved, or number of occurrences within a given timeframe. Proposed Municipal Code Modifications In the Fireworks Permitting and Penalties for Fireworks Violations staff report presented to the Mayor and City Council during the November 6, 2019 meeting, staff recommended: The adoption of the highest regional administrative civil penalty fines for dangerous fireworks violations currently in use by the Cities of Fontana and Grand Terrace; The adoption of the highest regional administrative civil penalty fines for safe and sane violations currently in use by the City of Montclair; The adoption of a 36-month timeframe for escalating penalties in the case of repeat violations; and The creation of a reward fund consisting of fines collected from fireworks violations to be used to pay a reward in the amount of $250 to any individual providing information leading to the identification and successful criminal or civil prosecution of any person violating the City of San Bernardino Municipal Code related to the unlawful possession, sale, or discharge of fireworks. 6679 Page 4 The Mayor and City Council accepted each of the foregoing recommendations as presented. In an effort to enhance public safety through the deterrence of unlawful sales, possession, and discharge of fireworks while remaining consistent with regional standards, and in accordance with the direction of the Mayor and City Council, Ordinance MC-1535 will: Amend Section 8.60.150(B) of the Municipal Code to reflect the following civil penalties for violations of Chapter 8.60 regarding the sale and use of safe and sane fireworks: o $1,000 for the first offense, o $2,500 for the second offense within 36 months, and o $5,000 for each subsequent offense within 36 months. Amend Section 8.61.030(B) of the Municipal Code to reflect the following civil penalties for violations of Chapter 8.61 regarding dangerous fireworks: o $2,500 for the first offense, o $5,000 for the second offense within 36 months, and o $10,000 for each subsequent offense within 36 months. Amend Section 9.93.020(E) of the Municipal Code to allow for a civil penalty greater than $1,000 per violation of Chapters 8.60 and 8.61 of the San Bernardino Municipal Code. Add Section 8.60.155 to the Municipal Code authorizing the City Manager to create a reward fund consisting of fines collected from fire works violations to be used to pay a reward in the amount of $250 to any individual providing information leading to the identification and successful criminal or civil prosecution of any person violating the City of San Bernardino Municipal Code related to the unlawful possession, sale, or discharge of fireworks. 2020-2025 Strategic Targets and Goals The recommended action aligns with Key Target No. 3c: Improved Quality of Life: constantly evaluate public safety service delivery models to enhance the qual ity of service. Enhancing the penalties associated with the unlawful sales, possession, and discharge of fireworks and creating a reward fund to encourage the assistance of the public in the identification and successful prosecution of individuals who unla wfully sell, possess, and discharge fireworks will serve to deter unlawful fireworks activity and improve public safety. Fiscal Impact Administrative Civil Penalties citations generate revenue in the form of fines. The total amount of fines varies and is dependent upon a variety of factors including the level of enforcement, the number of Administrative Civil Penalties citations issued, the type of violation, the number of violations committed, and the ability of the City to collect the 6679 Page 5 fines. The amount of fines collected is anticipated to increase under the proposed enhanced penalty structure. The proposed ordinance authorizes the City Manager to establish a special reward fund consisting of fines collected from fireworks violations to pay rewards in the amount of up to $250 to individuals providing information leading to the identification and successful criminal or civil prosecution of any person violating any Municipal Code provision related to the unlawful possession, sale, or discharge of fireworks. The number of rewards paid from this fund will vary depending on a number of factors including: the number of violations, the willingness of members of the public to report violations, and the ability of City staff to cite and successfully prosecute violators. However, staff anticipates that fines collected for fireworks violations will be in a sufficient amount to cover the cost of the reward program. Conclusion It is recommended that the Mayor and City Council of the City of San Bernardino, California introduce, read by title only, and waive further reading of Ordinance MC-1535, amending Chapters 8.60 and 8.61 of Title 8 and Chapter 9.93 of Title 9 of the San Bernardino Municipal Code, pertaining to the use of fireworks within city limits. Attachments Attachment 1 Proposed Ordinance MC-1535 Ward: All Synopsis of Previous Council Items: None Ordinance No. MC-1535 ORDINANCE OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA AMENDING CHAPTERS 8.60 AND 8.61 OF TITLE 8 AND CHAPTER 9.93 OF TITLE 9 OF THE SAN BERNARDINO MUNICIPAL CODE, PERTAINING TO THE USE OF FIREWORKS WITHIN CITY LIMITS WHEREAS, “safe and sane fireworks” are defined as any fireworks which do not come within the definition of “dangerous fireworks” or “exempt fireworks” by the California Health and Safety Code Section 12529; and WHEREAS, during the Fourth of July celebrations, the City of San Bernardino experiences numerous fires caused by both “safe and sane” fireworks and the use of illegal “dangerous” fireworks; and WHEREAS, the use of “safe and sane” fireworks outside the permitted firework zone has caused the ignition of multiple fires; and WHEREAS, the use of illegal “dangerous” fireworks has sparked fires throughout the City; and WHEREAS, fire crews respond to numerous fires caused by both “safe and sane” and illegal “dangerous” fireworks throughout the City; and WHEREAS, the Police Department receives numerous calls related to the use of illegal fireworks in the days leading up to, including, and after July 4 each year; and WHEREAS, in the days leading up to and including July 4, 2019, an estimated 1,500 pounds of illegal fireworks were seized in the City by law enforcement personnel; and WHEREAS, in order to address this serious issue, City staff has sought ways to deter the possession and lighting of illegal fireworks in the City, including by increasing penalties; and WHEREAS, the City Council has determined that the public health, safety, and welfare will be served by: (1) increasing the maximum penalties for the use and possession of safe and sane fireworks outside of the permitted zone; (2) increasing the penalties for the use and possession of dangerous fireworks; and (3) establishing a reward for the information leading to the identification and successful prosecution of violators. THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO DO ORDAIN AS FOLLOWS: SECTION 1. The above recitals are true and correct and are incorporated herein by this reference. This Ordinance is enacted in accordance with the City’s police powers and in accordance with the City’s powers as a charter city. Ordinance No. MC-1535 SECTION 2. Section 8.60.150 B. of the San Bernardino Municipal Code is amended to read as follows: “B. In addition to any other penalties provided by law, any person, organization, group association, etc. violating any provisions of this Chapter shall be subject to an Administrative Civil Penalty of: 1. One-thousand dollars ($1,000) for the first offense; and 2. Two-thousand five hundred dollars ($2,500) for the second offense within 36 months; and 3. Five-thousand dollars ($5,000) for each subsequent offense within 36 months.” SECTION 3. Section 8.61.030 B. of the San Bernardino Municipal Code is amended to read as follows: “B. In addition to any other penalties provided by law, any person, organization, group or association, etc. violating any provisions of this Chapter shall be subject to an Administrative Civil Penalty of: 1. Two-thousand five hundred dollars ($2,500) for the first offense; and 2. Five-thousand dollars ($5,000) for the second offense within 36 months; and 3. Ten-thousand dollars ($10,000) for each subsequent offense within 36 months.” SECTION 4. Amending section 9.93.020 E. of the San Bernardino Municipal Code to read as follows: “E. Administrative Civil Penalties for violations of any provision of the Municipal Code shall be assessed at a daily rate determined by the Enforcement Officer, or by the Administrative Hearing Officer pursuant to the criteria listed in Section 9.93.040 of this Chapter. The maximum rate shall be $1,000 per violation per day unless a different amount is set elsewhere in this Municipal Code. The maximum amount of Administrative Civil Penalties shall not exceed $100,000 per parcel or structure for any related series of violations.” SECTION 5. Adding Section 8.60.155 to the San Bernardino Municipal Code to read as follows: “8.60.155 Reward Fund The City Manager may establish a special fund consisting of fines collected from firework violations to pay rewards in the amount of no more than two-hundred and fifty dollars ($250) to individuals providing information leading to the identification and successful criminal or civil Ordinance No. MC-1535 prosecution of any person violating this Municipal Code related to the unlawful possession, sale, or discharge of fireworks.” SECTION 6. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance, or any part thereof, is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portion of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsection, subdivision, paragraph, sentence, clause or phrase be declared unconstitutional. If for any reason any portion of this ordinance is found to be invalid by a court of competent jurisdiction, the balance of this ordinance shall not be affected. SECTION 7. Certification. City Clerk of the City of San Bernardino shall certify to the adoption of this Ordinance and cause publication to occur in a newspaper of general circulation and published and circulated in the City in a manner permitted under section 36933 of the Government Code of the State of California. SECTION 8. CEQA. The City Council finds that this Ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this ____ th day of _____________, 2020 John Valdivia, Mayor City of San Bernardino Attest: __________________________________ Genoveva Rocha, CMC, Acting City Clerk Approved as to form: _________________________________ Sonia Carvalho, City Attorney Ordinance No. MC-1535 CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO) ss CITY OF SAN BERNARDINO ) I, Genoveva Rocha, CMC, Acting City Clerk, hereby certify that the attached is a true copy of Ordinance No. MC-_________, introduced by the Mayor and City Council of the City of San Bernardino, California, at a regular meeting held the ________day of ___________, 2020. Ordinance No. MC-__________was approved, passed and adopted at a regular meeting held ___ day of __________, 2020 by the following vote: Council Members: AYES NAYS ABSTAIN ABSENT SANCHEZ _____ _____ _______ _______ IBARRA _____ _____ _______ _______ FIGUEROA _______ SHORETT _____ _____ _______ _______ NICKEL _____ _____ _______ _______ RICHARD _____ _____ _______ _______ MULVIHILL _____ _____ _______ _______ WITNESS my hand and official seal of the City of San Bernardino this ____day of ___________, 2020. ______________________________ Genoveva Rocha, CMC, Acting City Clerk