Atwater Municipal Code Ch. 5.54 Fireworks

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Editor's note— Ord. CS 990, § 1, adopted Oct. 23, 2017, amended Ch. 5.54 in its entirety to read as herein set out. Former Ch. 5.54, §§ 5.54.010—5.54.080, pertained to similar subject matter and derived from Ord. CS 882, § 1, adopted May 14, 2007.

A. "Fireworks" means any device containing chemical elements and chemical compounds capable of burning independently of the oxygen of the atmosphere and producing audible, visual, mechanical, or thermal effects which are useful as pyrotechnic devices or for entertainment, including fireworks classified by the Health and Safety Code both as "dangerous fireworks" and as "safe and sane fireworks" and shall include firecrackers, torpedoes, skyrockets, roman-candles, bombs, sparklers, chasers, snakes or other fireworks containing any explosive or flammable substance. This definition does not include ammunition used for target shooting or hunting, nor does it include what is ordinarily known as cap pistol caps, party poppers or snap caps.

B. "Occupant" means the person or persons leasing, using, residing at or otherwise occupying real property, regardless of whether a lease or contract exists between said person and the owner.

C. "Owner" means the owner or owners of real property.

D. "Person" means any individual or entity of any form, including, but not limited to corporation, limited liability company, partnership, association.

E. "Permitted public display fireworks" means a fireworks display intended to be viewed by the public at large or a designated segment thereof and specifically includes any special effects manufactured, assembled, designed, or discharged in connection with television, theater, or motion picture productions, which may or may not be presented before live audiences, and any other articles containing any pyrotechnic composition used for commercial, industrial, education, recreation, or entertainment purposes which are authorized and permitted by the City of Atwater's Fire Marshal or other designee as set forth in Section 5.54.020(C).

(Ord. CS 990, § 1, 10-23-2017)

A. Subject to the provisions of the State Fireworks Law (Cal. Health and Safety Code §§12500 et. seq.) as may be amended from time to time, and any regulations promulgated thereunder, Safe and Sane Fireworks, as defined in Health and Safety Code Section 12529, may only be discharged within the city limits of the City of Atwater during the period beginning at 12:00 noon on the 28th day of June and ending at 12:00 midnight on the 4th of July, each year.

B. No fireworks classified as "dangerous fireworks" by Health and Safety Code Section 12505, as may be amended, may be sold or discharged within the City of Atwater at any time. Further, pursuant to Health and Safety Code Section 12677, as may be amended, it is unlawful for any person to possess dangerous fireworks without holding a valid permit.

C. Permitted public display fireworks may occur within the city limits of the City of Atwater on the terms and conditions authorized by City of Atwater's Fire Marshal or other designee pursuant to a validly issued permit for public display fireworks, which may be obtained by completing the City of Atwater's application process on the form and pursuant to the procedures established by the City and paying the associated fees.

D. Safe and sane fireworks permitted by this chapter shall not be discharged on public, semi-public or private open areas such as parking lots, vacant properties, or open commercial or industrial areas. Fireworks permitted by this chapter shall only be discharged on private property and residential public streets or right of ways.

E. It shall be unlawful for any person to ignite, explode, discharge, project, or otherwise fire or use any fireworks, or to permit the ignition, explosion, projection, firing or usage thereof, upon or over or onto the property of another without his or her consent.

F. Pursuant to Health and Safety Code Section 12680, as may be amended, no person shall place, throw, discharge, ignite, or fire dangerous Fireworks at or near any person or group of persons where there is a likelihood of injury to that person or group of persons or when the person willfully places, throws, discharges, ignites, or fires the fireworks with the intent of creating chaos, fear, or panic.

G. It shall be unlawful for any person having the care, custody or control of a minor under the age of 18 to permit such minor to ignite, explode, discharge, project, fire, or use any fireworks, unless such minor does so under the direct supervision of the minor's parent or guardian, or such other person having care, custody or control of such minor.

(Ord. CS 990, § 1, 10-23-2017)

The provisions of this chapter are in addition to applicable state and federal law, including, but not limited to, the State Fireworks Law (Cal. Health and Safety Code §§ 12500, et seq.), as may be amended from time to time, the State Fireworks Regulations (Title 19, California Code of Regulations, Chapter 6), as may be amended from time to time, and any and all other state or federal laws or regulations pertaining to the sale or use of fireworks.

(Ord. CS 990, § 1, 10-23-2017)

It is unlawful for any person to sell safe and sane fireworks in the City of Atwater except from an approved booth for which a permit has been issued under the provisions of this chapter. No more than one permit per parcel site shall be issued.

(Ord. CS 990, § 1, 10-23-2017)

Fireworks sales permits shall be granted only to non-profit organizations with a specific community benefit to Atwater, which are certified as exempt from taxation under the laws of the State of California and the United States and which have an established bona fide place of operation within Merced County.

(Ord. CS 990, § 1, 10-23-2017)

Fireworks storage is permitted in buildings classified as an explosives warehouse or approved temporary storage building or container(s). Storage is prohibited in all other buildings, including, but not limited to: dwellings, attached garages, educational facilities, assembly occupancies (churches, theaters, mall, etc.), and institutional or social care facilities. A field inspection of the storage site will be performed and if the site does not comply with the requirements of this section, a permit will not be issued. In addition, all storage areas must comply with the following:

A. No parking is allowed within 25 feet of the storage container and applicants must show how the no parking area will be secured to preclude entry.

B. Storage sites must be at least 50 feet from inhabited buildings, including those on adjacent properties.

C. Storage sites must be at least 100 feet from locations where flammable liquids are used, stored or dispensed.

D. Storage sites must be at least 25 feet from property lines.

E. Smoking is prohibited within 50 feet of all storage sites. "No Smoking" signs shall be posted on all sides of buildings and containers at storage site(s).

F. A minimum of one 2-A rated water type or one 2A 10BC dry chemical type fire extinguisher with a current State Fire Marshal service tag attached must be available at every storage site.

G. The use of enclosed trucks or trailers may be permitted for storage of safe and sane fireworks. The truck or trailer must be inspected by the Fire Department for approval. "Dangerous" placards in compliance with Department of Transportation specifications must be placed on all four sides of truck or trailer. The truck or trailer must comply with the distance requirements set forth in this chapter.

H. No person shall sleep inside or within 50 feet of any booth or storage site. The prohibition set forth in this section includes sleeping in trailers, campers or other vehicles.

I. Addresses of storage sites located outside City limits must be provided to the City, along with written approval of fire authority having jurisdiction at the storage site.

(Ord. CS 990, § 1, 10-23-2017)

Application for the permit shall be accompanied by written documentation confirming the organization has a current determination of exempt status by the Franchise Tax Board and the Internal Revenue Service, a State Fireworks Permit, a certificate of insurance complying with current City requirements, written approval of the property owner, the name and address and phone number of the responsible person, and a processing fee in the amount set forth in the City of Atwater's Miscellaneous Fee Schedule. The application shall be signed by an authorized officer of the corporation and shall be subject to approval of the City of Atwater's Fire Marshal or other designee.

(Ord. CS 990, § 1, 10-23-2017)

The application period shall be from January 1 to June 1 of the year for which the permit is requested. No more than one application shall be accepted from any organization during the application period.

(Ord. CS 990, § 1, 10-23-2017)

A. Site Requirements. Together with a fireworks stand application, a site (parcel) plan shall be submitted showing booth specifications, booth location, parking and access routes. The Planning and Fire Departments shall review the plan to ensure compliance with this chapter and other applicable regulations.

B. Sales Requirements. If during the field inspection the sales stand location does not comply with the following requirements, a permit will not be issued.

1. No parking is allowed within 25 feet of fireworks stand and the applicant must demonstrate how the no parking area will be secured to preclude entry.

2. Stands must be located at least 50 feet from any building, inhabited trailer, camper or other vehicle. Sleeping is prohibited in the stand and within 50 feet of the stand.

3. Stands must be at least 100 feet from locations where flammable liquids are used or stored.

4. Stands must be located at least 25 feet from any property line, public or private street or alley.

5. Smoking is prohibited within 50 feet of stand. No smoking signs shall be posted on all exterior sides and inside stands, buildings or structures used for sales or storage of fireworks. The Fire Department may designate other no smoking locations. The sign shall read "NO SMOKING." The lettering shall be red in color on a white background, be at least three inches in height, with a stroke of not less than one-half-inch.

6. An inspection of all stock for sale shall be made by the Fire Department prior to any fireworks sales. Inspections are by appointment only and 24-hour advance notice is required.

7. A minimum of one 2A-rated water type fire extinguisher or one 2A 10BC rated dry chemical type extinguisher with a current State Fire Marshal service tag attached must be properly mounted in accessible areas of the stand.

8. A clearance of 50 feet must be maintained between all combustible materials (weeds, rubbish, etc.), stands and/or storage areas. This clearance requirement applies to empty boxes that fireworks were shipped in.

9. The following items must be posted inside the stand:

I. A copy of City of Atwater Fireworks Sales and Storage Requirements, which must be initialed by all persons working in the booth.

II. A copy of the State Fire Marshal Retail Sales License A copy of the City of Atwater Retail Sales Permit.

III. A current, original Atwater Fire Department Permit.

10. The permit and retail sales license must be posted at sales location and must be in plain view of the public.

11. No one under 18 years of age may sell or transport fireworks, nor enter a temporary business or booth wherein fireworks are sold or stored.

12. Sleeping is prohibited inside or within 50 feet of any portion of the booth or storage site. This prohibition applies to sleeping in trailers, campers or other vehicles.

13. It is unlawful for any person to sell or transfer any safe and sane fireworks to a person who is under 16 years of age.

14. Use of safe and sane fireworks within 50 feet of a fireworks stand is prohibited.

15. All unsold stock of fireworks must be returned to the wholesaler prior to the 15th day of July the same calendar year.

16. No person shall use or handle fireworks while under the influence of intoxicating liquids or narcotics.

17. It is the responsibility of the organization authorized to sell safe and sane fireworks to instruct his or her employees who handle fireworks in any capacity, as to the hazards of fireworks and explosives and all rules regarding fireworks of City of Atwater and State Fire Marshal's office.

C. Stand Construction. Stands shall be constructed in a manner approved by the Fire Chief and in compliance with all of the following requirements.

1. Each stand must have a minimum of two exits. Exit doors must swing in the direction of egress and shall be operable from the inside without use of a key or special knowledge.

2. Fireworks stands shall be secured and enclosed so that fireworks displays and storage are out of the reach of customers.

3. No stand shall have a floor area in excess of 300 square feet.

4. No stand shall be constructed with a depth of more than 12 feet.

5. The City of Atwater's Fire Marshal or other designee must approve all temporary electrical wiring, including portable generators.

I. Over-circuit devices at their rated capacity must protect all conductors.

II. Electrical receptacles for conductors must be grounded.

III. Disconnecting switches or plugs must be installed to permit disconnection of all ungrounded conductors (supplied by portable generators).

IV. All electrical cords must be UL approved, heavy-duty grounded and protected from physical damage, including vehicular traffic. If supported overhead, the cords must be at least seven feet above grade in open areas.

(Ord. CS 990, § 1, 10-23-2017)

The stand shall not be in place prior to June 20 and shall be disassembled no later than July 6 of each permit year. The booth may be operated only from 12:00 noon on June 28 to midnight on July 4 in the City of Atwater.

(Ord. CS 990, § 1, 10-23-2017)

The applicant shall remove the stand and all materials from the site on or before July 12.

(Ord. CS 990, § 1, 10-23-2017)

A. It shall be unlawful for any person to violate, or to permit the violation of, any provision of this chapter. All owners, occupants, and other persons at or on the property or premises where fireworks are possessed, sold, ignited, exploded, discharged, projected, fired, or used may be cited for and convicted of violations of this chapter as well as any other applicable laws.

B. A violation of this chapter shall constitute a misdemeanor and shall be punishable as set forth in California Health and Safety Code Sections 12700 and 12702, as may be amended from time to time. In addition, conviction under this chapter shall be punishable as follows: the first conviction shall be punishable by a fine not to exceed the amount of $500.00, the second and any subsequent conviction within a 12-month period shall be punishable by a fine not to exceed the amount of $1,000.00 or by imprisonment in the county jail for not to exceed one year, or by both the fine and imprisonment. These punishments may be increased in accordance with Section 12702 based on the amount of fireworks possessed.

C. Violations shall be prosecuted by the City Attorney through the provisions of this chapter, administrative code enforcement mechanisms, any other enforcement procedures provided in the Atwater Municipal Code, or any combination thereof.

D. In addition to any other remedy available at law, any person in violation of this chapter is subject to an administrative fine as follows:

E. Fines collected pursuant to this chapter related to "dangerous fireworks" shall not be subject to Health and Safety Code Section 12706, which section provides that certain fines must be deposited with and disbursed by the County Treasurer.

(Ord. CS 990, § 1, 10-23-2017; Ord. CS 1062, § 3, 4-24-2023)

A. Any condition caused or permitted to exist in violation of this chapter constitutes a threat to public health, safety, and welfare, and is declared and deemed a public nuisance, which may be summarily abated or restored by the City at the violator's expense and the City may institute a civil action to abate, enjoin, or otherwise compel the cessation of such nuisance.

B. Pursuant to the state fireworks law, the Fire Chief, his or her authorized representatives, and law enforcement officers may seize in any fireworks described in Health and Safety Code Section 12722 (as may be amended or renumbered from time to time), including but not limited to:

1. Dangerous fireworks, including fireworks kits, used, possessed, stored, manufactured, or transported by a person who does not possess a valid permit;

2. Safe and sane fireworks stored in violation of the conditions required by a permit;

3. Safe and sane fireworks sold or offered for sale at retail that do not bear the State Fire Marshal label of registration and firing instructions;

4. Safe and sane fireworks sold or offered for sale at retail that are in unsealed packages or containers that do not bear the state fire marshal label of registration and firing instructions; and

5. Fireworks still possessed by a person who has just thrown any ignited fireworks at a person or group of persons.

C. In addition to all other amounts which are authorized to be collected by the City for fines, late charges, penalties, interest, or costs, a responsible party shall pay to the City, which shall in turn remit to the State Fire Marshal, the actual cost for transportation and disposal of the seized fireworks, in an amount determined by adopted regulations, rules, policies, or procedures of the State of California or State Fire Marshal's office.

(Ord. CS 990, § 1, 10-23-2017; Ord. CS 1062, § 4, 4-24-2023)

The provisions of this chapter shall be enforced by the Atwater Police Department, CAL FIRE Public Officers and CAL FIRE Peace Officers. All members of the Atwater Police Department as well as all CAL FIRE Public Officers, CAL FIRE Peace Officers and the State Fire Marshal are authorized to enter upon, inspect, and examine any property or premises to determine whether a violation of this chapter exists or has occurred. If the owner or occupant of the property or premises refuses to permit entrance, inspection or examination pursuant to this chapter, the Atwater Police Department may seek an inspection warrant pursuant to California Code of Civil Procedure Section 1822.50, et. seq., as may be amended from time to time.

(Ord. CS 990, § 1, 10-23-2017)

A. If during the application of this chapter or the use of fireworks, any person who negligently, or in violation of the law, sets a fire, allows a fire to be set, or allows a fire kindled or attended by him or her to escape onto any public or private property is liable for the following costs pursuant to the California Health and Safety Code sections 13009 and 13009.1, as may be amended from time to time:

1. the fire suppression costs incurred in fighting the fire;

2. the cost of providing rescue or emergency medical service;

3. the cost of investigating and making any reports with respect to the fire;

4. the costs relating to accounting for that fire and the collection of any funds, including, but not limited to, the administrative costs of operating a fire suppression cost recovery program.

B. In addition to the costs identified in subdivision A, to the maximum extent allowable by law, the costs of obtaining compliance with the provisions of this chapter shall be charged to the responsible person. These recoverable costs may also include, but not be limited to, administrative costs and staff time, inspection fees, attorney's fees, and remediation costs, and other costs as may be permitted by a court of competent jurisdiction.

C. All recoverable costs shall be a charge against the person or people who violated this chapter or negligently set a fire. All costs shall constitute a debt of that person or those people, and shall be collectible by the person or agency incurring those costs in the same manner as in the case of an obligation under an express or implied contract.

(Ord. CS 990, § 1, 10-23-2017)

A. For purposes of this section, "social host" means:

1. Any owner of private property, as listed on the most recent county tax assessment roll;

2. Any person who has the right to use, possess or occupy a public or private property under a lease, permit, license, rental agreement, or contract; or

3. Any person who hosts, organizes, supervises, officiates, conducts, or sponsors a gathering on public or private property, and if such person is a minor, then that person's parents or legal guardians.

B. No social host shall permit any persons to use fireworks in violation of this chapter:

1. On property that is either owned by the social host or occupied or otherwise used by the social host pursuant to a lease, permit, license, rental agreement, or contract, or

2. At any gathering on public or private property that is hosted, organized, supervised, officiated, conducted, or sponsored by the social host.

C. It is the duty of any social host who knowingly hosts, permits, or allows any gathering to take place to take all reasonable steps to prevent the unlawful use of fireworks by that social Host's guests or invitees.

D. No social host shall, with respect to private property where fireworks are unlawfully used, be liable for a violation of this section if the social host can demonstrate that at the time of such violation, the social host (i) had rented or leased the property to another; (ii) was not present, and (iii) had no prior knowledge of the violation.

E. No person who has the right to use, possess, or occupy a unit in a multifamily residential property under a lease, rental agreement, or contract shall be liable under this section for violations occurring in the common areas of the property.

(Ord. CS 1062, § 6, 4-24-2023)

A. When a person responsible for enforcing this chapter determines that a violation of this chapter has occurred, that person may issue an administrative citation on a City-approved form listing the nature of the violation and the amount of the administrative fine required to be paid by the responsible person(s) in accordance with the provisions of this chapter.

B. Each administrative citation issued under this section shall contain the following information:

1. The name, mailing address, date of birth, California Driver's License number (if available), and home or business telephone number of the responsible person charged with any violation of this chapter;

2. The address or description of the location of the violation;

3. The date or dates on which the person violated this chapter;

4. The section or sections of this chapter that were violated;

5. A description of the violation(s);

6. The amount of the administrative fine for each violation, the procedure in place to pay the fines, and any late fee and interest charge(s), if not timely paid, and notice that if the city is required to take action to collect such fines, the responsible person may be charged costs and attorney's fees;

7. Notice of the procedure to request an administrative hearing to contest the citation (including the form to be used, how to obtain the form, and the period within which the request must be made in order for it to be considered timely);

8. The names, addresses, and telephone numbers of any witnesses to the violation(s);

9. The name and signature of the person who issued the citation and the name and signature of the citee, if he or she is physically present and will sign the citation at the time of its issuance. The failure or refusal of a citee to sign a citation or provide the information required on the citation, shall not affect its validity or any related subsequent proceedings, nor shall signing a citation constitute an admission that a person is responsible for a violation of this chapter; and

10. Any other information deemed necessary by the director for enforcement or collection purposes.

(Ord. CS 1062, § 6, 4-24-2023)

A. Any citee may contest the violation(s), or the fact that he or she is a responsible person, by filing a request for an administrative hearing on a city-approved form with the Atwater Police Department's office within 30 calendar days from the issuance date of a citation. If the police chief does not receive the request in the required time period, the citee shall have waived a right to a hearing and the citation shall be deemed confirmed and final.

B. No fees shall be charged for the filing of a request for a hearing.

C. Citees must deposit the full amount of the penalty listed on the citation on or before the request for a hearing is filed. Failure to deposit the full amount of all penalties within the required time period, or the tender of a non-negotiable check, shall render a request for an administrative hearing incomplete and untimely. Penalties that are deposited with the city shall not accrue interest. Penalties deposited shall be returned to the person who deposited them if the citation is overturned.

D. A request for a hearing shall contain the following:

1. The citation number;

2. The name, address, telephone number, and any facsimile numbers and e-mail addresses of each person or responsible person contesting the citation;

3. A statement of the reason(s) why a citation is being contested; and

4. The date and signature of the citee(s).

(Ord. CS 1062, § 6, 4-24-2023)

A. Once a request for administrative hearing that meets the requirements of Section 5.54.190 is received, the city will set a date for the hearing that is within 60 calendar days from receipt of the timely and complete application by the police chief.

B. The city will notify all persons or responsible person(s) who file a request for a hearing in writing by first class mail of the date, time, and place set for the hearing at least ten calendar days prior to the date of the hearing. Service of this notice is deemed complete at time of mailing. The failure of a citee to receive a properly addressed notice shall not invalidate the citation or any hearing, city action, or proceeding conducted pursuant to this chapter.

C. If the city representative handling the code enforcement matter submits any additional written reports or materials concerning the citation to the city for consideration at the hearing, those materials will also be served by first class mail on the person who requested the administrative hearing, no less than seven calendar days prior to the date of the hearing. Failure to receive such materials shall not invalidate the citation or any hearing, city action, or proceeding pursuant to this chapter.

D. The City Manager shall designate or appoint a hearing officer, who shall hear all requests for administrative hearings on administrative fines in accordance with the procedures established by this section.

E. Administrative hearings are informal, and formal rules of evidence and discovery do not apply. Photographs of seized fireworks shall be admissible evidence of the violation. The city bears the burden of proof to establish a violation and responsibility therefore by a preponderance of evidence. The citation is prima facie evidence of the violation, however, the person who issued the citation is required to attend or participate at the hearing. The citee(s) and issuing person, if present, shall have an opportunity to present evidence and witnesses and to cross-examine witnesses.

F. A citee may appear at the hearing in person or by written declaration executed under penalty of perjury. Said declaration and any documents in support thereof shall be tendered to and received by the city at least seven business days prior to the hearing. If the citee fails to attend or does not submit a written declaration in a timely manner, he or she shall be deemed to have waived the right to a hearing. In such an instance, the hearing officer shall cancel the hearing and not render a decision. In such instances, the citation shall be deemed confirmed.

G. After considering all of the testimony and evidence submitted at the appeal hearing, the hearing officer shall issue a written decision to uphold or dismiss the administrative citation, and shall list in the decision the reasons therefor.

1. If the hearing officer determines that the administrative citation should be upheld, the hearing officer may increase the fine amount. The appellant shall pay any increased amount within 30 days of receiving the hearing officer's decision.

2. If the hearing officer determines that the administrative citation should be dismissed or the fine reduced, city shall refund the appropriate amount of the pre-deposited fine within 30 days of the hearing.

H. Hearings may be continued once at the request of a citee or the officer who issued the citation. The hearing officer may also continue the hearing for cause.

(Ord. CS 1062, § 6, 4-24-2023)

A. After considering all the testimony and evidence submitted at the hearing, the hearing officer shall issue a written decision to uphold or overturn the citation and shall state the reasons therefore.

B. The hearing officer shall serve citee(s) by first class mail with a copy of the written decision. The date the decision is deposited with U.S. Postal Service shall constitute the date of its service. The failure of a citee to receive a properly addressed decision shall not invalidate any hearing, city action, or proceeding conducted pursuant to this chapter.

C. The decisions of the hearing officer may be appealed by the citee to the city council within 30 calendar days after the date of service of the decision. Each decision shall contain a statement advising the citee of this appeal right and the procedure for its exercise.

D. If a hearing officer's decision is not appealed in a timely manner, the decision shall be deemed confirmed.

E. If a responsible person prevails on appeal, the city shall reimburse his or her fine deposit within 30 calendar days of the city council's decision on the appeal.

(Ord. CS 1062, § 6, 4-24-2023)

The provisions of this chapter are supplementary to the provisions of the Fire Code of the City of Atwater. In case of a direct conflict between the provisions of the Fire Code of the city, and the provisions of this chapter, the provisions of this chapter shall prevail. Except with respect to such direct conflict, the provisions of the Fire Code of City of Atwater shall remain in full force and effect.

(Ord. CS 1062, § 6, 4-24-2023)