Bakersfield Municipal Code Ch. 8.44 Fireworks

Sections: 8.44.010 Definitions. 8.44.020 Permit required. 8.44.025 Effective dates. 8.44.030 Application—Issuance—Fee. 8.44.035 Application—Issuance—Fee. 8.44.040 Regulations. 8.44.050 Revocation. 8.44.060 Appeal. 8.44.070 Penalty. 8.44.080 Administrative citation. 8.44.090 Administrative fines. 8.44.100 Administrative citation review process. 8.44.110 Administrative hearing officer.

• Prior history: Prior code §§ 14.40.010—14.40.060 and Ords. 2756, 2805, 2917, 2975, 3086, 3147, 3452, 3640, 3892 and 4042.

Whenever used in this chapter, unless a different meaning clearly appears from the context, the words set out in this section shall have the following meanings:

“Applicant” means those persons defined in Sections 8.44.030(A)(1) through (3).

“Person” means any individual, partnership, group, corporation or association of any nature whatsoever. (Ord. 4333 § 1, 2006; Ord. 4225 § 1, 2004)

It is unlawful for any person to sell or offer for sale or expose for sale within the city any fireworks in violation of this chapter or without having a valid permit in accordance with the provisions of this chapter. (Ord. 4333 § 1, 2006; Ord. 4225 § 1, 2004)

Not withstanding anything to the contrary in Section 8.44.030, Section 8.44.030 shall be effective through July 15, 2006. All organizations issued a fireworks permit in 2005 under Section 8.44.030 shall be eligible to reapply for a fireworks permit through July 15, 2006. (Ord. 4333 § 1, 2006; Ord. 4225 § 1, 2004)

A. A permit for the sale of safe and sane fireworks may not be issued except to the following applicants:

1. A nonprofit organization or corporation organized and existing primarily for veteran, patriotic, religious,
welfare, charitable or civic-betterment purposes, organized and established in the city at least one year prior
to the filing of application for permit under this chapter and having a bona fide membership of at least thirty-
five members. The organization must be one which provides direct and regular community services and
benefits to the citizens of the city. A local generally recognized nonprofit organization is eligible to submit one
application. Each educational and/or religious organization is eligible to submit one application (signed by the
local recognized leader of the organization).

2. Retail (for profit) business establishments which have, for a period of at least one year prior to the filing
of an application for permit under this chapter, held a valid business tax certificate issued by the city under
Chapter 5.02 of this code; provided, no such permit shall be issued to any such retail business establishment
unless such establishment was issued a permit the previous year.

3. Those applicants having first obtained a permit or license from the State Fire Marshal under Part 2,
Division 11 of the Health and Safety Code of this state.

B. All recipients of fireworks permits except those specifically exempted in subsection C of this section, shall be selected by a drawing (by lot) conducted by the city manager or designee not later than April 10th of each year.

C. The total number of fireworks permits to be issued shall not exceed one permit per four thousand population, or portion thereof, in the city, as set forth in the prior calendar year annual report of the State Department of Finance, but not less than seventy-five; provided, however, any person applying for a fireworks permit who had such permit in 1994 and also in each subsequent year shall be issued a permit if otherwise qualified without being included in the drawing, notwithstanding the fact that such issuance may increase the number of permits to more than that allowed herein.

D. Applications for fireworks permits shall be submitted by the “applicant” (as opposed to the fireworks vendor) commencing March 1st through March 30th of each year. No applications shall be accepted by the city after March 30th of each year. Applications for the drawing referenced in subsections B and C of this section need not include the state sales tax number nor will require items 3 through 8 of the application form. Those applicants successful in the drawing shall have until May 15th to complete their applications.

E. Except as modified by subsection D of this section, applications for fireworks permits shall be made on forms to be furnished by the city manager or designee, shall be signed under penalty of perjury by the applicant and shall require the following information and documents:

1. The name, address and telephone number of the nonprofit organization or retail business establishment for which application is made;

2. The applicant’s business tax certificate number if it is a retail business establishment, and the name and address of all owners of such business;

3. The location of the proposed fireworks sales;

4. The purpose of the nonprofit organization or corporation including the services provided to the citizens of the city, the number of citizens within the city the organization serves; the approximate date of its establishment in the city; its principal and permanent meeting place in the city; the total number of its local membership; the names and addresses of its officers;

5. A plot plan, showing the location of the temporary fireworks stand, utilities, location of permanent and temporary structures, curb cuts and/or driveways and identifying the nearest available sanitary facilities, and fire hydrants. For those applicants who were issued a fireworks permit for the preceding year, the plot plan must be submitted with the application package. For those applicants successful in the drawing, plot plans must be submitted by May 15th of each year. Plot plans will be approved or rejected by the fire department by June 15th. Amendment will not be permitted to any plot plan rejected subsequent to the March 30th application deadline for renewal permits or the May 15th deadline for successful drawing applicants, except to correct any violation of the minimum distance separation as required by Section 8.44.040(F);

6. A written authorization from the owner of the location or person in lawful possession thereof, if other than the applicant, for the locating of the business upon his or her property;

7. Evidence, satisfactory to the city manager or designee, of: (a) general liability insurance providing coverage on an occurrence basis for bodily injury, including death of one or more persons, property damage and personal injury, with limits as required by the city, and (b) workers’ compensation, with statutory limits and employers liability insurance with limits as required by the city. All policies required of the applicant hereunder shall be primary insurance as to the city, its mayor, council, officers, agents, employees and volunteers and any insurance or self-insurance maintained by the city, its mayor, council, officers, agents, employees and volunteers shall be considered excess insurance over and above the applicant’s insurance and shall not contribute with it. The applicants shall save, hold harmless and indemnify the city, its officers, agents, employees and volunteers from all claims, demands, damages, judgments, costs or expenses in law or equity that may at any time arise from or is any way related to any work performed by applicant, his or her agents or employees under the terms of any permit issued under this chapter;

   8. Cash bond in the sum of one hundred dollars, to be forfeited to the city in the event the permittee fails to remove said stand, equipment and rubbish from the premises upon which the stand is located before twelve noon on July 15th of the year for which said permit is granted. The cash bond shall be returned to the applicant upon full performance of the requirements of this chapter;

   9. Approval from the public works department of the city that operation at the fireworks stand at the proposed location will not present any substantial hazard to vehicular or pedestrian traffic.

F. Location of temporary stands may not be changed after an application is filed except as required by the city, or where there is evidence of change in property ownership or management and prior approval or consent has been revoked by the new owners or managers.

G. No one organization eligible to receive a permit may receive more than one permit for fireworks sales during any one calendar year.

H. All permits issued under this chapter shall remain in effect from noon on July 1st to noon on July 5th unless earlier suspended or revoked.

I. All applicants for permits, whether selected by drawing or not, shall pay a non-refundable fee, on or before March 30th of each year, not to exceed the cost of processing any such application. All successful applicants for permits shall pay a fee, on or before May 15th of each year, not to exceed the full cost of inspecting and enforcing such business. All fees shall be established as set forth in Chapter 3.70 of this code.

J. Permits may be issued with conditions to ensure that the business will be operated in a safe and legal manner, will not disturb the peace and quiet of the neighborhood and will not constitute an undue burden on city resources.

K. This entire section shall sunset at midnight on July 15, 2006. (Ord. 4333 § 1, 2006; Ord. 4225 § 1, 2004)

A. On July 16, 2006, and thereafter, a permit for the sale of safe and sane fireworks may not be issued except to a nonprofit organization or corporation organized and existing primarily for veteran, patriotic, religious, welfare, charitable or civic-betterment purposes, organized and established in the city at least one year prior to the filing of application for permit under this chapter and having a bona fide membership of at least thirty-five members. The organization must be one which provides direct and regular community services and benefits to the citizens of the city. A local generally recognized nonprofit organization is eligible to submit one application. Each educational and/ or religious organization is eligible to submit one application (signed by the local recognized leader of the organization).

B. All recipients of fireworks permits shall be selected by a drawing (by lot) conducted by the city manager or designee not later than April 10th of each odd year. Each recipient successful in the odd year drawing shall be eligible to reapply for a fireworks permit the following year. Unsuccessful applicants may reapply for a fireworks permit the next odd year.

C. The total number of fireworks permits to be issued shall not exceed one permit per four thousand population, or portion thereof, in the city, as set forth in the prior calendar year annual report of the State Department of Finance, but not less than seventy-five.

D. Applications for fireworks permits shall be submitted by the “applicant” (as opposed to the fireworks vendor) commencing March 1st through March 30th of each year. No applications shall be accepted by the city after March 30th of each year. Applications for the drawing referenced in subsections B and C of this section need not include the state sales tax number nor will require items 3 through 8 of the application form. Those applicants successful in the drawing shall have until May 15th to complete their applications.

E. Except as modified by subsection D of this section, applications for fireworks permits shall be made on forms to be furnished by the city manager or designee, shall be signed under penalty of perjury by the applicant and shall require the following information and documents:

1. The name, address and telephone number of the nonprofit organization for which application is made;

2. The applicant’s business tax certificate number;

3. The location of the proposed fireworks sales;

4. The purpose of the nonprofit organization or corporation including the services provided to the citizens of the city, the number of citizens within the city the organization serves; its principal and permanent meeting place in the city; the approximate date of its establishment in the city; the total number of its local membership; the names and addresses of its officers;

5. A plot plan, showing the location of the temporary fireworks stand, utilities, location of permanent and temporary structures, curb cuts and/or driveways and identifying the nearest available sanitary facilities, and fire hydrants. For those applicants who were issued a fireworks permit for the preceding year, the plot plan must be submitted with the application package. For those applicants successful in the drawing, plot plans must be submitted by May 15th of each year. Plot plans will be approved or rejected by the fire department by June 15th. Amendment will not be permitted to any plot plan rejected subsequent to the March 30th application deadline for renewal permits or the May 15th deadline for successful drawing applicants, except to correct any violation of the minimum distance separation as required by Section 8.44.040(F);

   6. A written authorization from the owner of the location or person in lawful possession thereof, if other than the applicant, for the locating of the business upon his or her property;

   7. Evidence, satisfactory to the city manager or designee, of: (a) general liability insurance providing coverage on an occurrence basis for bodily injury, including death of one or more persons, property damage and personal injury, with limits as required by the city, and (b) workers’ compensation, with satisfactory limits and employers liability insurance with limits as required by the city. All policies required of the applicant hereunder shall be primary insurance as to the city, its mayor, council, officers, agents, employees and volunteers and any insurance or self-insurance maintained by the city, its mayor, council, officers, agents, employees and volunteers shall be considered excess insurance over and above the applicant’s insurance and shall not contribute with it. The applicants shall save, hold harmless and indemnify the city, its officers, agents, employees and volunteers from all claims, demands, judgments, costs or expenses in law or equity that may at any time arise from or is any way related to any work performed by applicant, his agents or employees under the terms of any permit issued under this chapter;

   8. Cash bond in the sum of one hundred dollars, to be forfeited to the city in the event the permittee fails to remove said stand, equipment and rubbish from the premises upon which the stand is located before twelve noon on July 15th of the year for which said permit is granted. The cash bond shall be returned to the applicant upon full performance of the requirements of this chapter;

   9. Approval from the public works department of the city that operation at the fireworks stand at the proposed location will not present any substantial hazard to vehicular or pedestrian traffic.

F. Location of temporary stands may not be changed after an application is filed except as required by the city, or where there is evidence of change in property ownership or management and prior approval or consent has been revoked by the new owners or managers.

G. No one organization eligible to receive a permit may receive more than one permit for fireworks sales during any one calendar year.

H. All permits issued under this chapter shall remain in effect from noon on July 1st to noon on July 15th unless earlier suspended or revoked.

I. All applicants for permits shall pay a non-refundable fee, on or before March 30th of each year, not to exceed the cost of processing any such application. All successful applicants for permits shall pay a fee, on or before May 15th of each year, not to exceed the full cost of inspecting such business, enforcing this code and providing public information, as well as safety education. All fees shall be established as set forth in Chapter 3.70 of this code.

J. Permits may be issued with conditions to ensure that the business will be operated in a safe and legal manner, will not disturb the peace and quiet of the neighborhood and will not constitute an undue burden on city resources. (Ord. 4333 § 1, 2006; Ord. 4225 § 1, 2004)

A. Those fireworks which are classified as “dangerous” fireworks under Section 12505 of the California Health and Safety Code are prohibited, except that such fireworks as are defined and classified as “safe and sane fireworks” in Section 12529 of the California Health and Safety Code may be displayed, sold and used pursuant to the provisions of this chapter and not otherwise. Notwithstanding anything to the contrary, “piccolo pete” type and “ground flower” type fireworks shall not be used, displayed, or sold separately or in combination with otherwise allowed fireworks.

B. No permit holder shall shout, make any outcry, blow a horn, ring a bell or use any other sound device including any loudspeaker, radio or amplifying system where sound of sufficient volume is emitted or produced there from capable of being plainly heard upon the streets, alleys, parks or other public places.

C. Any permit issued pursuant to this chapter shall be nontransferable, and shall be valid only as to the applicant and location provided on the application for such permit, or as set forth in Section 8.44.030(F) or 8.44.035(F). Locational preference shall be given for the consecutive use of a particular location by the applicant as established by the previous year’s approved plot plan assuming all other provisions of this chapter are complied with. If two or more applications for new stand locations are within the minimum four hundred foot distance requirement of each other, preference shall be determined by a drawing conducted by the city manager or designee.

D. Except as expressly permitted by and in accordance with the provisions of Chapter 12.44 of this code, the sale, offer to sell, advertising or display of merchandise on any street or sidewalk in the city or roof of the fireworks stand is prohibited.

E. All retail sales of safe and sane fireworks shall be permitted only from a temporary fireworks stand and the sale from any other building or structure is prohibited. The sale of any other items or commodities (e.g., consumables) in conjunction with the sale of safe and sane fireworks is strictly prohibited.

F. No fireworks stand shall be located within one hundred feet of any aboveground or underground gasoline storage or gasoline pump or any garage or within thirty feet of any other building, or within four hundred feet of any other fireworks stand, when measured closest point to closest point.

G. Fireworks stands need not comply with the provisions of the building code of the city except that the building official shall have authority to require that stands be constructed in a manner which will reasonably ensure the safety of attendants and patrons. Fireworks stands may utilize shading devices such as canopies or awnings for the convenience of patrons subject to the following limitations:

1. The location and dimensions must be shown on the approved plot plan;

2. Cannot cover or impede any public rights-of-way;

   3. Must be freestanding (not anchored or tied to any public property such as light or electrical poles);

   4. Must not cover the booth or any portion thereof;

   5. Must meet all Uniform Fire Code specifications as adopted by the city, including flame retardancy and setback requirements;

   6. Must provide shade from the top only (no sides). Banners, signs or other items on or hanging from the awning or canopy are prohibited;

   7. May not reduce the number of parking spaces required by the traffic authority; and

   8. Display or sale of fireworks from the awning or canopy area is prohibited.

H. Fireworks stands shall be located only in a C-1 zoning district or a zoning district less restrictive than C-1, unless located upon property owned and occupied by a church and/or school, which church or school is either a legal or legal nonconforming use of such property.

I. All temporary stands for the display and sale of fireworks shall obtain an electrical permit from the city building department, if electrical current is utilized or necessary.

J. If a toilet is not immediately available during all open or sale hours of the fireworks stand, then an approved chemical one must be provided.

K. Each fireworks stand must have at least two exits. Each fireworks stand in excess of forty feet (12,192 mm) in length must have at least three exits. Exits shall have a minimum width of thirty inches (76 mm). An aisle with a minimum width of thirty inches (76 mm) shall lead to each exit. Exit doors shall be operable from the inside without the use of a key or any special knowledge or effort.

L. Each stand shall be provided with not less than two 2A 10 BC-type fire extinguishers, underwriter approved, in good working order and easily accessible for use in case of fire.

M. No person shall light, or cause or permit to be lighted, any fireworks or any other article or material within any such stand, or within fifty feet thereof.

N. No smoking shall be allowed in any stand, nor within fifty feet thereof. “No smoking” signs shall be prominently displayed.

O. All weeds and combustible material shall be cleared from the location of the stand, including a distance of at least twenty feet surrounding the stand.

P. There shall be at least one adult in attendance during the open or sale hours of the fireworks stand. No minor under the age of eighteen shall be permitted in a stand.

Q. All permits must be posted in a conspicuous place.

R. “Safe and sane” fireworks may be sold only as follows:

1. On July 1st between the hours of twelve noon and eleven p.m.

2. On July 2nd between the hours of six a.m. and eleven p.m.

3. On July 3rd between the hours of six a.m. and eleven p.m.

4. On July 4th between the hours of six a.m. and 12:01 a.m. of the next day.

S. Except for licensed pyrotechnicians, “safe and sane” fireworks may be used only on the following dates and times:

1. On July 2nd between the hours of nine a.m. and 12:01 a.m. of the next day.

2. On July 3rd between the hours of nine a.m. and 12:01 a.m. of the next day.

3. On July 4th between the hours of nine a.m. and twelve-thirty a.m. of the next day.

4. On December 31st between the hours of twelve noon and twelve-thirty a.m. of the next day.

T. Permittee shall strictly comply with all provisions of the State Fireworks Law (Section 12500 et seq., of the Health and Safety Code).

U. The fireworks stand shall be removed from the temporary location by twelve noon on July 15th, and all accompanying litter shall be cleared from said location on or before said time.

V. Night watchman accommodations shall not be closer than twenty-five feet from the fireworks stand.

W. No fireworks shall be placed in any fireworks stand until a permit for such stand has been issued by the city.

X. Any person who receives a notice to correct any violation of these regulations or any other condition of the permit, and who fails to correct such violation within the time prescribed in the notice, may be assessed a fee not exceeding the city’s cost of reinspection in accordance with Section 3.70.040 of this code.

Y. Each fireworks stand shall prominently display and provide safety educational materials that have been approved by the city’s fire chief. A copy of the required materials shall be provided by the Bakersfield fire department. Required materials shall be paid for by the applicant and distributed with each fireworks sale.

Z. All enforcement of the provisions of this chapter may be conducted pursuant to Chapter 15.65. (Ord. 4867 § 1, 2016; Ord. 4845 § 1, 2016; Ord. 4333 § 1, 2006; Ord. 4225 § 1, 2004)

Any permit issued pursuant to this chapter shall be immediately revoked by the city manager or designee whenever he or she finds:

A. That misrepresentations were made on the application; or

B. That any of the terms or conditions of said permit have been violated, or that the business has been operated in violation of local, state or federal law. (Ord. 4333 § 1, 2006; Ord. 4225 § 1, 2004)

A. Should any applicant be dissatisfied with the decision of the city manager or designee not to grant a permit or to revoke a permit, then such applicant may, no later than ten days after notice of such decision is deposited in the United States mail, addressed to the applicant or permittee at the address provided on the application, make written objection to the city council setting forth the grounds for dissatisfaction, whereupon the council shall hear such objections at a regular meeting no later than three weeks following the filing of the objection with the city clerk. The applicant shall be given written notice no less than three days prior to the hearing. The council may, upon the hearing, sustain, suspend or overrule the decision of the city manager or designee, which decision shall be final and conclusive.

B. Pending the hearing before the council, the decision of the city manager or designee shall remain in full force and effect and any reversal thereof by the city council shall not be retroactive but shall take effect as of the date of the council’s decisions. (Ord. 4333 § 1, 2006; Ord. 4225 § 1, 2004)

Violation of any provision of this chapter law may be punishable as an infraction, or misdemeanor pursuant to Bakersfield Municipal Code Section 1.40.010, an administrative citation pursuant to Bakersfield Municipal Code Section 8.44.080, or any other available remedies allowed by law. (Ord. 4846 § 2, 2016; Ord. 4673 § 1, 2012; Ord. 4333 § 1, 2006)

A. Whenever an enforcement officer charged with the enforcement of this chapter determines that a violation of a provision has occurred, the enforcement officer shall have the authority to issue an administrative citation to any person responsible for the violation. Said enforcement officer shall be a trained employee from the city of Bakersfield.

B. Each administrative citation shall contain the following information:

1. The date of the violation or, if the date of the violation is unknown, then the date the violation is identified;

2. The address or a definite description of the location where the violation occurred;

3. The section of the code violated and a description of the violation;

4. The amount of the fine and how to pay it;

5. A description of the administrative citation review process;

6. An order prohibiting the continuation or repeated occurrence of the code violation described in the administrative citation;

7. The name and signature of the citing enforcement officer.

C. The fine shall be paid to city within thirty days from the date of the administrative citation; payment of a fine under this section shall not excuse or discharge any continuation or repeated occurrence of the code violation that is the subject of the administrative citation.

D. The city may collect any past due administrative citation fine by use of all available legal means. (Ord. 4846 § 3, 2016)

A. The fines for violation of this chapter shall be as follows:

1. Each violation of this chapter shall be subject to a one thousand dollar fine.

B. Any administrative citation fine, or portion thereof, paid pursuant to subsection A shall be refunded if it is determined, after a hearing, that the person charged in the administrative citation was not responsible for the violation or that there was no violation as charged in the administrative citation. (Ord. 4846 § 3, 2016)

Any recipient of an administrative citation may appeal the citation by completing a request for hearing form and returning it to city within thirty days from the date of the administrative citation, together with an advance deposit of the fine.

A. No appeal hearing to contest an administrative citation shall be held unless the fine has been deposited in advance.

B. An appeal hearing shall be set for a date that is not less than fifteen days and not more than sixty days from the date that the request for hearing is filed.

C. The appellant shall be notified of the time and place set for the hearing at least ten calendar days prior to the date of the hearing.

D. At the hearing, the appellant shall have the opportunity to testify and to present evidence concerning the administrative citation.

E. The failure of the appellant to appear at the appeal hearing shall constitute a forfeiture of the fine and a failure to exhaust their administrative remedies.

F. The administrative citation and any additional report submitted by the enforcement officer shall constitute prima facie evidence of the respective facts contained in those documents.

G. The hearing officer may continue the hearing and/or request additional information from the enforcement officer or the recipient of the administrative citation prior to issuing a written decision.

H. Any person aggrieved by an administrative decision of a hearing officer on an administrative citation appeal may obtain review of the administrative decision by filing a petition for review with the Kern County Superior Court in accordance with the timelines and provisions set forth in California Government Code Section 53069.4. (Ord. 4846 § 3, 2016)

The city manager shall designate the hearing officer for the appeal hearing.

A. 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 for that decision. The decision of the hearing officer shall be final.

B. If the hearing officer determines that the administrative citation should be upheld, the hearing officer may decrease the fine amount. The appellant must pay the city any increased amount within thirty days of receiving the decision of the hearing officer.

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

D. The employment, performance evaluation, compensation and benefits of the hearing officer shall not be directly or indirectly conditioned upon the amount of administrative citation fines upheld by the hearing officer. (Ord. 4846 § 3, 2016)