Loading...
HomeMy WebLinkAbout6.2 Sale and Use of Fireworks CITY OF DUBLIN AGENDA STATEMENT CITY COUNCIL MEETING DATE: February 8, 1988 SUBJECT • Ordinance Amending Ordinance No. 10-82 Regulating the, Sale and Use of Fireworks EXHIBITS ATTACHED Draft Ordinance; Ordinance No. 10-82; Memorandum from City Attorney dated July 23, 1987 RECOMMENDATION : Open TIV Public Hearing; Hear Staff Presentation; Hear Public Comments; Waive Reading and Adopt Ordinance Amending Ordinance No. 10-82 FINANCIAL STATEMENT: The passage of this Ordinance would not have a financial impact on the City, but may result in costs • being borne by fireworks booth applicants which are not recoverable. DESCRIPTION At the City Council meeting of January 25, 1988, the City Council waived the reading and introduced an ordinance amending Ordinance No. 10-82. This amendment to Ordinance No. 10-82 provides that a fireworks booth permit issued during calendar year 1988 shall include a condition on the permit that indicates that the permit would not be valid in the event that the City Council repeals Ordinance No. 10-82 and No. 12-82 prior to June 28, 1988, and further, that the permittee shall bear the risk of loss of any costs incurred in connection with obtaining the permit. In a Memorandum from the Assistant City Attorney dated July 23, 1987 (see attached) , the Assistant City Attorney indicated that unless the Council adopted such an ordinance, individuals holding valid permits to sell fireworks for 1988 would have a vested right to sell fireworks this year, even if the City Council enacted an Ordinance Prohibiting the Sale and Use of Fireworks prior to June 28, 1988. If the ballot measure authorized by the City Council to be placed on the June 7, 1988 ballot does not pass, this Ordinance would have no effect on those individuals or organizations holding permits to sell fireworks . Since the Council expressed its desire to proceed with this Ordinance at its meeting of January 25, 1988, it is Staff' s recommendation that the City Council waive the reading and adopt the attached Ordinance Amending Ordinance No. 10-82 . COPIES TO: ITEM NO. 450 �i • AN ORDINANCE OF THE CITY OF DUBLIN AMENDING ORDINANCE NO. 10-82 REGULATING THE SALE AND USE OF FIREWORKS The City Council of the City of Dublin does ordain as follows: Section 1 . Section 7 of Ordinance No . 10-82 is amended by adding thereto the following subparagraph (g) , to read as follows: " (g) Any permit issued hereunder during the calendar year 1988 shall include (1 ) a condition that the permit shall not be valid in the event the City Council repeals Ordinance Nos: 10-82 and 12-82 prior to June 28, 1988 and (2) a statement that the permittee shall bear the risk of loss of any costs incurred in connection therewith." Section 2 . EFFECTIVE DATE AND POSTING OF ORDINANCE . This Ordinance shall take effect and be in force thirty (30) days from and after the date of its passage . The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three (3 ) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED AND ADOPTED by the City Council of the City of Dublin on this day of , 1988, by the following vote: AYES : • NOES: ABSENT: Mayor ATTEST: City Clerk ORDINANCE NO. 10 AN ORDINANCE OF THE CITY OF DUBLIN . REGULATING THE SALE AND USE OF FIREWORKS THE CITY COUNCIL OF THE CITY OF DUBLIN DOES ORDAIN AS FOLLOWS: Section 1. DEFINITIONS. For the purpose of this article, the works, and phrases "fireworks , " and "safe and sane fireworks" shall have the respective meanings ascribed to them in Sections 12500 et seq. of the Health and Safety Code of the State of California. Section 2. PROHIBITIONS. (a) The manufacture of fireworks is prohibited within the jurisdiction. (b) No person shall possess, sell, deliver, deal in, use, explode or fire, or cause to be used, exploded or fired, any form of fireworks designated as 'dangerous fireworks ' by Section 12505 of the Health and Safety Code of the State of California. (c) The possession, sale, delivery, dealing in, use, exploding or firing of any form of fireworks designated as ' safe and sane fireworks ' by Section 12529 of the Health and Safety Code of the State of California is expressly permitted, except as • limited by this article. Section 3. EXCEPTIONS Nothing in this article shall be construed as prohibiting the use of torpedoes, flares, or fuses by railroads or other transportation agencies for signal purposes of illumination; or the sale or use of blank cartridges • for ceremonial purposes, athletic, or sports events or military ceremonials or demonstrations; or the sale, dis- charge or display of fireworks by permittees having a permit as hereinafter provided; or the use and display of fireworks of whatever nature by any person engaged in the production of motion pictures, theatricals, or operas when such use and display is a necessary part of such production; or the transportation of fireworks through the City in regular course, and in original packages or containers from any point outside of the City to any other point outside the City. Section 4. PUBLIC DISPLAY OF FIREWORKS - PERMIT REQUIRED Any person desiring to hold a public display of fireworks within the City shall submit an application for permit to the office of the Fire Chief of the Dublin San Ramon Services District only between the dates of April 1 and April 30 of each year. In the event a permit is granted, sale, possession, use .and distribution of fireworks for such display shall be lawful for that purpose only. No permit granted hereunder shall be transferable. Said Fire Chief shall have power to adopt reasonable rules and regulations for granting of permits for supervised public displays of fireworks by a jurisdiction, fair associ- ation, amusement park or other organziation for the use of fireworks by artisans in pursuit of their trade. Every such use or display shall be handled by a competent operator approved by the Fire Chief and shall be of such character and so located, discharged or fired as in the opinion of the Fire Chief shall not be hazardous to persons or property. The permittee shall furnish a bond or certificate of insurance in an amount deemed adequate by the Fire Chief for the payment of all damages which may be caused to a person or persons or to any property by reason of the permitted display and arising from any acts of the permittee, his agents, employees or subcontractors . By accepting a permit, permittee agrees to indemnify and hold both the City and the Dublin San Ramon Services District harmless from any such damages. All fireworks that remain unfired after the display is concluded shall be immediately disposed of in an approved manner for the particular type of fireworks remaining . Section 5. LIMITATION ON NUMBER OF PERMITS The maximum number of permits to sell safe and sane fireworks which may be issued pursuant to this Article during any one _calendar year shall not exceed one permit for each 3, 000 residents of the City, based on the most recent population figure developed by the City Planning Director. If the number of applications received up to and including the last day for making applications pursuant to this Ordinance exceeds the number of permits to be issued for the City, the Fire Chief shall immediately thereafter supervise an impartial drawing to determine an order of priority for each application.. Section 6 . PREREQUISITES FOR ISSUANCE OF PERMIT. (a) No permit to sell safe and sane fireworks shall be issued to any person except nonprofit organizations -2- IP or corporations which have obtained tax exempt status from. the State Franchise Tax Board under section 23701, (b) , (d) , (f) , (g) , or (1) of the Revenue and Taxation Code . (b) Each such organization must have its principal and permanent meeting place in the City limits and must maintain a bona fide membership of at least 20 members , and must have been organized and established within the City for a minimum of one year continually preceding the filing of the application for the permit. Section 7 . PERMITS TO SELL SAFE AND SANE FIREWORKS . (a) Any nonprofit organization desiring to sell or to offer for sale safe and sane fireworks shall first make a written application to the Fire Chief of the Dublin San Ramon Services District for a permit to sell fireworks at a fireworks stand. (b) Every application for a permit shall be accompanied by a fee in the amount of $100 .00 to cover reasonable costs of investigation and administration. If the application is denied for any reason, one half of said fee shall be refunded. (c) The application shall state the name of the applicant, the address of the organization, and its principal or permanent meeting place. The application shall be accompanied by a letter or certificate from the State Franchise Tax Board which will show that the applicant is exempt from the payment of the Bank and Corporation Tax by Section 23701 , (b) , (d) , (f) , (g) , or (1) of the State Revenue and Taxation Code . (d) The application shall state the date and time on which it is proposed that fireworks be sold, which in no event shall be for any period of time not within 12 :00 noon on June 28th to 12 :00 noon on July 5th of each year. (e) The application shall set forth the proposed location of the fireworks stand, including a map or plot plan of the lot or premises on which the stand is to be located depicting the stand and other structures on the premises . Any such stand must be located on private property , located within commercially zoned districts , and must other- wise conform to zoning and other applicable laws and regulations . The written permission of the owner of record or lessees must also accompany the application. (f) Fireworks stands shall be located only in an area bearing a commercial zoning designation. -3- Section 8 . OPERATION OF THE STAND. • (a) No person other than the permittee shall operate the stand for which the permit is issued or share or otherwise participate in the profits of the operation of such stand. (b) No person other than the individuals who are members of the permittee organization, or the parents, wives or husbands or adult children of such members, shall sell or otherwise participate in the sale of fireworks at such stand. Section 9 . FIREWORKS STANDS REQUIREMENTS All retail sales of safe and sane fireworks shall be permitted only from within a temporary fireworks stand and sales from any other: building or structure is hereby prohibited. Temporary stands shall be subject to the following provisions : (a) No fireworks stand shall be located within 25 feet of any other building nor within 100 feet of a gasoline pump. (b) Each stand in excess of 24 feet in length must have at least two exits; and each stand in excess of 40 feet in length must have at least three exits spaced approximately equidistance apart, providing, however, that in no case shall the distance between exits exceed 24 feet. (c) Permittee shall provide each stand with two, two and one-half gallon fire extinguishers suitable for Class A fires, in good working order and easily accessible for use in case of fire and approved as to type by the Fire Chief and conforming to the provisions of this code. Section 10 . GENERAL REQUIREMENTS FOR PERMITTEES. (a) All weeds and combustible material shall be cleared from the location of the stand including a distance of at least 20 feet surrounding the stand. (b) "No Smoking" signs' shall be prominently displayed on the fireworks stand.. (c) The sale of fireworks shall not be made to minors under the age of sixteen (16) nor begin before 12 o 'clock noon on the 28th of June and not continue after the 5th day of July. (d) An information brochure concerning instructions as to the use of safe and sane fireworks and the hazards -4- attendant with their use by minors shall be furnished each purchaser by the permitee. No fireworks , or other explosives of any nature, shall be discharged upon the premises or lot upon which a fireworks stand is located. (e) All unsold stock and accompanying litter shall be removed from the location of the stand by 5 :00 o' clock p .m. on the 7th day of July, and the fireworks stand shall be removed from the location no later than the 10th day of July. Section 11 . TEMPORARY SALES TAX PERMIT REQUIRED Organizations licensed for the selling of fireworks are required to obtain a temporary sales tax permit from the Regional Office of the State Board of Equalization. Section 12 . DISPLAY OF PERMITS The permit to sell fireworks and temporary sales tax permit shall be display in a prominent place in the fireworks stand. Section 13 . PROVISIONS TO SUPPLEMENT STATE FIREWORKS LAW. The provisions of this Article shall supplement and be construed in harmony with the "State Fireworks Law" (Part 2 , Division 11 of the Health and Safety Code of the State of California) and other applicable provisions of the laws of the State of California. Section 14. SEIZURE OF FIREWORKS The Fire Chief shall have the authority to seize, take, remove , or cause to be removed at the expense of the owner, all stocks of fireworks offered or exposed for sale, stored, or held in violation of this article . Section 15 . VIOLATION OF THIS ORDINANCE Persons violating this ordinance shall be deemed guilty of a misdemeanor, and upon conviction, shall be punished by a fine not to exceed $500 . 00 or by imprison- ment in the county jail for a period not exceeding 30 days , or both such fine and imprisonment . -5- • • • Section 16. SUPERSESSION OF COUNTY ORDINANCE It is the intention of the City Council of the 'City of Dublin that this ordinance shall supersede the effectiveness of Ordinance No. 76-34 of the County of Alameda relating to fireworks , as adopted by the City Council by Ordinance No . 1 of the City of Dublin. PASSED AND ADOPTED by the City Council of the City of Dublin on this 29th day of March 1982 , by the following votes : AYES : Councilmembers Burton, Hegarty and Moffatt. NOES : • • ABSENT: None Mayor ATTEST : • Cit/'Clerk -A- • MEYERS, NAVE, 7ZI13ACK et WEST MICHAEL R.NAVE ATTCFNEYS AT LAW PENINSULA OFFI E STEVEN R.MEYERS - 1220 HOWARD AVE.SUITE 250 • NATALIE E:WEST - - - CIVIC CENTER COMPLEX • ELIZABETH H SILVER 835 EAST 14TH STREET BURUNGAIAE.CA 9a01 Fi MICHAEL S.RIBACK SAN LEANORO.CALIFORNIA 94577 (415)348-7130 • (41 5)577.3333 •.IA RIN OFFICE OF COUNSEL 1202 GRANT AVE..SUITE'_ THOMAS F.BERTRAND - NOVATO.CA 94947 • 015)892.8878 July 23 , 1987 n _ (.; 'LI j `� _ REPLY TO: 1, o , ,-„ To: Richard Ambrose r City Manager • From : Elizabeth H. Silver Assistant City Attorney Re : Effect of Repeal of Fireworks Ordinances on Permits Issued in Spring, 1988 The Council intends to place an advisory measure on the ballot on June 7, 1988 , asking the voters whether the current City Ordinances , authorizing the sale of safe and sane fireworks , should be repealed. If the voters vote in favor of the advisory measure, the Council, at its next regularly scheduled meeting (June 13 , 1988 ) , could enact an ordinance repealing the current City Ordinances. If the ordinance were made an Urgency Measure, it could become effective immediately. The question presented is what impact the enactment of such an ordinance (prohibiting the sale and use of safe and sane fireworks ) would have on permits to sell safe and sane fireworks validly issued under the current City Ordinances (Ord. Nos . 10-82 and 12-82 ) . Under the current Ordinances , the Fire Chief issues such permits in the spring of each year. Thus , by June 28, when a permittee can begin selling fireworks , valid permits would have been issued to a specified number of applicants . It is our opinion that, under the current Ordinances ,' the holders of these permits would have a vested right to sell safe and sane fireworks , notwithstanding the repeal of the ordinances under which the permits were issued. • However, if the City Council were to amend the current Ordinances to provide that any permit issued during calendar year 1988 should be conditioned so that it would not be valid in the event the Council repealed Ord. Nos. 10-82 and 12-82 prior to June 28, 1988 , we believe the holders of the permits would be' placed on notice and hence • • JJ • • 0 • ' To: :Richard Ambrose ' City Manager From : Elizabeth H. Silver - Asst. City Attorney - Re : Effect of Repeal of Fireworks Ordinance on Permits Issued in _ Spring, 1988 July 23 , 1987 - Page Two would not be able to claim a vested right to sell safe and sane fireworks. Such a condition would provide that the City Council would have to act prior to June 28 inasmuch as the current ordinances allow the sale of safe and sane fireworks commencing on June 28 . The Council could encact such an amendment to Ord. Nos. 10-82 and. 12-82 at any time, so long as the amended ordinance became effective prior to the time that the Fire Chief begins taking applications for permits • to sell safe and sane fireworks. In the event you wish us to draft such an ordinance, please advise. The Registrar of Voters will not have a calendar for the June 1988 election until November. Once we receive the calendar,we will prepare the necessary resolutions to submit an advisory measure to the voters at that election. Elizabeth H . Silver EHS/mis