Barstow Municipal Code Ch. 9.70 Fireworks

Footnotes:

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State Law reference— State Fireworks Law, Health and Safety Code § 12500 et seq.

The following words and phrases, as used in this chapter, are defined as follows, unless it is apparent from the context that a different meaning is intended:

Citation means an administrative citation issued pursuant to this chapter to remedy a violation.

Citee means any person served with an administrative citation charging him as a responsible person for violation.

Code enforcement officer (CEO) means any employee or agent of the city designated by the city council to enforce any provision of this chapter.

Dangerous fireworks means the same as in Health And Safety Code §§ 12505 and 12561 and the relevant sections of title 19, Code of Regulations, subchapter 6, which are hereby incorporated by reference.

Fireworks stand means any building, counter, or other structure of a temporary nature used in the sale, offering for sale, or display for sale of safe and sane fireworks. The term "fireworks stand" also means "temporary consumer fireworks retail sales facility" as used in chapter 7 of NFPA 1124.

Hearing officer means the person appointed by the city manager to serve as the hearing officer for administrative hearings hereunder.

Issuance or issued means the following:

(1) The preparation and service of an administrative fine citation to a citee in the same manner as a summons in a civil action in accordance with article III (commencing with § 415.10) of chapter 4 of title 5 of part 2 of the Code of Civil Procedure;

(2) Mailing of administrative fine citation to the citee by certified mail with return receipt, to the address shown on the official records of the county assessor; or

(3) By personally serving the responsible party by personal delivery of the administrative fine citation or by substituted service. Substituted service may be accomplished as follows:

a. By leaving a copy at the recipient's dwelling or usual place of abode, in the presence of a competent member of the household, and thereafter mailing by first class mail, postage prepaid, a copy to the recipient at the address where the copy was left; or

b. In the event the responsible party cannot be served by first class mail, postage prepaid, or cannot be personally served and has a property manager or rental agency overseeing the premises, substituted service may be made upon the property manager or rental agency or may be affected by posting the property with the administrative fine citation and mailing a copy by first class mail, postage prepaid, to the responsible party in violation at the address of the property where the violation exists.

NFPA means the National Fire Protection Association.

NFPA 1124 means the National Fire Protection Association's "Code for the Manufacture, Transportation, Storage and Retail Sales of Fireworks and Pyrotechnic Articles," 2006 edition.

Non-profit organization means any non-profit association, charity or corporation organized primarily for veteran, patriotic, welfare, civic betterment or charitable purposes which have been issued a tax-exempt certificate as required under the Revenue and Taxation Code of the state or a group which is an integral part of a recognized national organization having such tax-exempt status.

Persons means a natural person or a legal entity that is also an owner, tenant, lessee and/or other person with any right to possession or control of the property where a violation of this Code occurred.

Principal and permanent meeting place means, but is not limited to, a permanent structure, playing field, geographic area or service population which resides in or is located within the city.

Public display of fireworks means an entertainment feature where the public is admitted or permitted to view the display or discharge of fireworks, including but not limited to, those defined above.

Qualified applicants means any group or organization which has met all of the following criteria for a continuous period of not less than one full year preceding submittal of an application for a permit to sell required by this chapter and which continues to meet the criteria for the duration of any permit to sell issued by the city pursuant to this chapter:

(1) The organization shall be a non-profit organization pursuant to Internal Revenue Code subsections 501(c)3, 4, 6, 7, 8, 10, 19, 23 or 26, subsection 501(d), subsection 501(e), or a group which is an integral part of a recognized national organization having such tax-exempt status;

(2) The organization shall be organized primarily for veterans, patriotic, welfare, civic betterment, educational, youth development or charitable purposes;

(3) The organization must have its principal and permanent meeting place within the city;

(4) The organization must be one which provides direct and regular community services and benefits to the residents of the city;

(5) The organization has not been found by any court of competent jurisdiction or city administrative hearing officer to be in violation of any civil or criminal local, state or federal law relating to fireworks within 24 calendar months prior to the organization's submittal of an application for a permit to sell; and

(6) The organization has not had a permit to sell revoked within 24 months prior to the organization's submittal of an application for a permit to sell.

Responsible person means a person who causes a violation of this chapter to occur or allows a violation to exist or continue, by his action or failure to act, or whose agent, employee or independent contractor causes a violation to occur, or allows a violation to exist or continue. There is a rebuttable presumption that the record owner of a residential parcel, as shown on the county's latest equalized property taxes assessment rolls, and lessee of a residential parcel has a notice of any violation existing on said property. For purposes of this chapter, there may be more than one responsible person for a violation. Any person, irrespective of age, found in violation of any provision of this chapter may be issued a citation in accordance with the provisions of this chapter. Every parent, guardian or other person, having the legal care, custody or control of any person under the age of 18 years, who knows or reasonably should know that a minor is in violation of this chapter, may be issued a citation in accordance with the provisions of this chapter, in addition to any citation that may be issued to the offending minor.

Safe and sane fireworks (a.k.a. "state-approved fireworks") means "safe and sane fireworks" as set forth in Health and Safety Code §§ 12529 and 12562 and the relevant sections of title 19, Code of Regulations, subchapter 6, which are hereby incorporated by reference.

Violation or violates refers to any violation of any provision of this chapter.

(Ord. No. 898-2013, § 1(9.70.010), 3-4-2013; Ord. No. 929-2014, § 1(9.70.010), 10-20-2014)

Except as otherwise provided in this chapter, no person shall possess, sell, use, display or explode any dangerous fireworks including, but not limited to, any rocket, firecracker, Roman candle, squib, torpedo, wire core sparkler, wooden core sparkler, black cartridge, aerial shell or other combustible device or explosive substance or any kind of fireworks, by whatsoever name known, or any altered safe and sane fireworks within the city.

(Ord. No. 898-2013, § 1(9.70.020), 3-4-2013; Ord. No. 929-2014, § 1(9.70.020), 10-20-2014)

(a) It shall be unlawful to cause, allow, permit, aid, abet, or suffer any discharge of dangerous fireworks (including a public display) or any use of special effects without having first obtained a city business license and paid the adopted business license fee as per section 5.08.210.

(b) The city manager shall have authority to adopt reasonable rules and regulations for those activities contained in Health and Safety Code § 12640, including supervised public displays of fireworks by a jurisdiction, fair association, amusement park, other organization, or for the use of fireworks by artisans in pursuit of their trade. Each such use or display shall be handled by a licensed pyrotechnic operator (as defined by Health and Safety Code § 12527), and shall be of such character and so located, discharged or fired as in the opinion of the city manager or his designee, after proper investigation, will not be hazardous or endanger any person.

(Ord. No. 898-2013, § 1(9.70.030), 3-4-2013; Ord. No. 929-2014, § 1(9.70.030), 10-20-2014)

(a) Any person, firm or corporation applying for a public display permit shall concurrently furnish to the city proof of coverage by a policy of public liability and property damage insurance. The policy shall provide limits of bodily injury and property damage liability of not less than $5,000,000.00 combined single limits for each occurrence annually for payments of damages to persons or property which may result from or be caused by such public display of fireworks, or any negligence on the part of the licensee or his agents, servants, employees and/or subcontractors presenting such public display.

(b) Any licensed pyrotechnic operator responsible for the public display of fireworks within the city limits shall furnish the city manager a certificate of insurance for each policy required, executed by the company issuing said policy and approved as to form by the city attorney. Such policies shall contain a provision which includes the "City of Barstow" as an additional insured and declares said insurance to be primary and that no other insurance carried by an insured party shall be called upon for contribution. Such insurance policies shall contain an endorsement that the company issuing such policy or policies will not allow the same to be canceled without serving, by first class mail, ten days' notice of cancellation upon the city clerk for the city. Notwithstanding any other provision of this chapter, the failure of the licensed pyrotechnic operator to carry such policy or policies in force and to properly renew said insurance during the time covered by such business license shall automatically revoke the business license as of the date of expiration of such insurance policy or policies. A payment of the full amount of the business license fee required by this chapter shall be made to the city before any such revoked business license may be reinstated.

(Ord. No. 898-2013, § 1(9.70.040), 3-4-2013; Ord. No. 929-2014, § 1(9.70.040), 10-20-2014)

The decision of the city manager or the city manager's designated representative in acting on an application for a business license to conduct a public display of fireworks in accordance with the provision of this chapter shall be subject to an appeal by the applicant to the city manager. Notice of such appeal shall be filed with the city manager within ten days after the date of the decision regarding such business license permit. Upon failure to file such notice within the ten-day period, the action of the city manager of the city manager's designated representative shall be final and conclusive. The applicant may appeal the decision of the city manager to the city council by filing a notice of appeal with the city clerk within ten days after the date of the city manager's decision. Upon failure to file such a notice within the ten days, the action of the city manager shall be final and conclusive.

(Ord. No. 898-2013, § 1(9.70.050), 3-4-2013; Ord. No. 929-2014, § 1(9.70.050), 10-20-2014)

It shall not be unlawful to possess, sell, use, display or discharge, within the city, those fireworks that are defined and classified as "safe and sane fireworks" (a.k.a. "state-approved fireworks") in the California State Fireworks Law (Health and Safety Code § 12500 et seq., and the relevant sections of title 19, Code of Regulations, subchapter 6) during that time period beginning at 12:00 noon on June 28 and ending at 10:00 p.m. on July 5 of that same year. It shall be unlawful for any person to sell safe and sane fireworks within the city without having first applied for and received a permit authorizing the sale of safe and sane fireworks from the city.

(Ord. No. 898-2013, § 1(9.70.060), 3-4-2013; Ord. No. 929-2014, § 1(9.70.060), 10-20-2014)

The following are the prerequisites required prior to the issuance of a permit for safe and sane fireworks:

(1) No qualified applicant shall submit more than one fireworks lottery application for the opportunity to be selected for a permit to sell safe and sane fireworks within the city. The fireworks lottery application shall serve to qualify applicants based on their tax-exempt status and verification of the organization's principal and permanent meeting place. If more than one application is submitted on behalf of any qualified applicant, all such requests shall be voidable at the discretion of the city manager. Any attempt to transfer an application shall void any and all applications filed by or on behalf of both the transferor/non-profit organization and the transferee/non-profit organization.

(2) Qualified applicants who are selected and/or issued a safe and sane fireworks permit shall be ineligible in the subsequent year.

(3) Should a conflict appear between two or more non-profit organizations regarding a location for a safe and sane fireworks stand, such issue shall be resolved by the city manager, or the city manager's designee, examining the following facts, criteria and/or materials in the descending order of priority:

a. The past history of the location, including what non-profit organization and/or licensed fireworks wholesaler has occupied, controlled and/or had permission to utilize this location for a safe and sane fireworks stand;

b. Which organization filed its fireworks lottery application with the city first along with all of the requisite documentation attached thereto.

(4) The maximum number of permits which may be issued and the maximum number of safe and sane fireworks stands that will be permitted pursuant to this chapter during any one calendar year shall not exceed six permits. Should the number of fireworks lottery applicants exceed the number of available stands, the qualified applicants shall be selected using a lottery process. Should the number of qualified applicants submitting a fireworks lottery application be fewer than six, applicants deemed qualified will move directly to the formal application process.

(Ord. No. 898-2013, § 1(9.70.070), 3-4-2013; Ord. No. 929-2014, § 1(9.70.070), 10-20-2014)

All fireworks lottery applications submitted for consideration to sell safe and sane fireworks shall be in writing to the community development department on forms supplied by the city. Applications may be filed beginning April 1 of each year up to and including April 15 of the same year, at which time the filing period for that year will be closed. Fireworks lottery applications which are deemed qualified will be notified no later than April 20 of the same year. Should the number of qualified applicants exceed six, a lottery process will be conducted no later than April 30 of the same year. Non-profit organizations selected through the lottery process shall then complete and submit a formal application for sale of safe and sane fireworks to the community development department beginning May 1 of each year up to and including May 15 of the same year. Failure to submit all requisite information as contained in this section by May 15, shall automatically disqualify the non-profit organization from issuance of a safe and sane fireworks permit. Formal applications shall set forth the proposed location of the fireworks stand being applied for, and other information as may be required by the city. In addition, the following provision shall apply towards the formal application process for the sale of safe and sane fireworks:

(1) Formal applications shall be accompanied by an assurance that, if the permit is issued to the applicant, the applicant shall, at the time of receipt of such permit, deliver to the city a certificate evidencing an occurrence-based policy of insurance naming the City of Barstow as an additional insured thereunder, with the following minimum limits: $1,000,000.00 public liability and property damage, and general aggregate coverage of $2,000,000.00. No policy will be acceptable which contains a provision allowing a deductible amount. A copy of the requisite state retail sales permit must also be attached.

(2) Formal applications shall include an indemnification agreement completed and signed by the manufacturer and/or wholesaler of the fireworks agreeing to defend, indemnify, and hold the city harmless from any claims, liability, litigation, damages, or other injuries resulting from the use of safe and sane fireworks.

(3) Each formal application shall include a copy of the approved state fire marshal's permit issued to the non-profit organization.

(4) Each formal application shall include a copy of the temporary sales tax permit issued by the California State Board of Equalization.

(5) Each formal application for a permit to sell safe and sane fireworks shall state the zoning of the real property on which the fireworks stand is to be located, which zoning classification shall be obtained from the planning department for the city.

(6) Each formal application shall set forth the proposed location of the fireworks stand, the name, address and telephone number of one or more responsible adults who will be in charge of and responsible for the fireworks stand during the period safe and sane fireworks are sold, displayed or stored at such location, and notarized permission from the owner of record upon which said proposed stand will be located.

(7) A building/temporary use permit application shall be submitted for approval for the construction and placement of the temporary fireworks stand as part of the formal application process. The cost of the building/temporary use permit shall be waived in association with the issuance of a safe and sane fireworks permit.

(8) All retail sales of safe and sane fireworks shall be permitted only from within a temporary fireworks stand, and sales from and/or storage at any other building or structure is prohibited except as defined in this chapter. Temporary stands shall be subject to the following provisions:

a. A minimum distance of 200 feet shall be maintained between all fireworks stands.

b. Fireworks stands shall be erected under the supervision of the building official, who shall require that stands be constructed in a manner that will reasonably ensure the safety of attendants and patrons. Occupants will not be allowed to utilize the fireworks stands to sell fireworks without the approval of an inspection of the temporary stand by the building official or his designee. In addition, a permit to operate shall be received from the fire district following an inspection for compliance with this chapter and state fire marshal requirements.

c. No stand shall have a floor area in excess of 400 square feet.

d. Each stand must have at least two exits, and each stand in excess of 40 feet in length must have at least three exits spaced approximate equal distance apart and in no case shall the distance between exits exceed 25 feet.

e. Each stand shall be provided with a 2½-gallon water pressure type fire extinguisher which must be mounted at each exit. The extinguisher must bear evidence that it has been inspected by a state-licensed agency. Extinguishers shall be in good working order and easily accessible.

f. All extension cords and wiring shall comply with the Uniform Electrical Code.

g. All temporary fireworks stands shall be removed from the temporary location they were installed at by 12:00 p.m. on July 11, and all accompanying debris and litter shall be cleared from such location by the same date and time. Failure to comply with this provision will subject the permittee that operated the temporary fireworks stand to paying administrative fines as outlined in section 9.70.220.

(9) Applicants for such permits shall be notified by May 25 of each calendar year by the city manager of the approval or disapproval of such applications for such permit. All organizations whose permits have been approved shall have up to and including June 15 of that year to pick up such permit.

(10) Every application for a permit shall be accompanied by a non-refundable public safety and administrative fee of $400.00. This application fee shall be in addition to any fee or tax imposed by this chapter.

(11) The original copy of the formal application shall be retained by the community development department and one copy shall be transmitted to the city manager.

(12) The continued validity of any city permit issued pursuant to this chapter shall be subject to the requirement that at least one or more representatives of each non-profit organization, preferably those responsible adults listed on the permit application, shall attend a mandatory safe and sane fireworks stand operator safety seminar conducted by the fire department and the licensed fireworks wholesaler that is supplying the safe and sane fireworks to the non-profit organization. Said seminar shall occur during the formal application, between May 1 but no later than May 15. Failure of a non-profit organization to have a responsible individuals attend the safety seminar shall void their formal application for safe and sane fireworks permit and disqualify the non-profit organization from obtaining a safe and sane fireworks permit.

(13) Qualified applicants who are issued a safe and sane fireworks permit shall be ineligible for consideration of issuance for a safe and sane fireworks permit in the subsequent year.

(Ord. No. 898-2013, § 1(9.70.080), 3-4-2013; Ord. No. 929-2014, § 1(9.70.080), 10-20-2014)

(a) On or before August 31 of any year authorized pursuant to a permit, the permittee shall submit to the city manager a financial summary of total sales from fireworks, on a form supplied by the city, which shall include the following information:

(1) Total gross receipts from the fireworks stand operated by the permittee;

(2) All expenses incurred and paid in connection with the purchase of fireworks and the sale thereof;

(3) Total net receipts from fireworks stand operated by permittee;

(4) A summary of to whom and for what purpose of the net proceeds were or will be disbursed; and

(5) A copy of the most recent report filed by the permittee to the state board of equalization.

(b) The filing of such a financial summary with the city shall be a condition precedent to the granting of any subsequent permit.

(Ord. No. 898-2013, § 1(9.70.090), 3-4-2013; Ord. No. 929-2014, § 1(9.70.090), 10-20-2014)

The city manager shall issue permits to sell safe and sane fireworks unless:

(1) The city manager finds, in writing, that the applicant failed to provide sufficient plans, information and/or other data necessary to determine compliance with the requirements of this chapter;

(2) The city manager finds, in writing, that the applicant falls within the provisions of any subsection of this chapter; or

(3) The city manager determines that the number of qualified applicants exceeds the number of permissible permits under subsection 9.70.070. After conducting the lottery selection process, the city manager will advise, in writing, all qualified applicants of their permit status no later than April 30.

(Ord. No. 898-2013, § 1(9.70.110), 3-4-2013; Ord. No. 929-2014, § 1(9.70.110), 10-20-2014)

If the deadline for submitting any type of application, payment of any administrative fine, filing of a notice of appeal, etc., called for within this chapter falls on a day city hall is closed, the deadline shall automatically be extended to the close of business of the next day city hall is open.

(Ord. No. 898-2013, § 1(9.70.120), 3-4-2013; Ord. No. 929-2014, § 1(9.70.120), 10-20-2014)

Qualified applications permitted to sell safe and sane fireworks in the city are required to obtain a temporary sales tax permit from the local office of the California State Board of Equalization.

(Ord. No. 898-2013, § 1(9.70.130), 3-4-2013; Ord. No. 929-2014, § 1(9.70.130), 10-20-2014)

Except as provided herein, fireworks stands shall comply with Chapter 7 of NFPA 1124.

(1) All retail sales of safe and sane fireworks shall be permitted from within a temporary fireworks stand, and the retail sales from any other building or structure is hereby prohibited.

(2) No person shall knowingly sell fireworks to any person under the age of 18. For purposes of this section, bona fide evidence of age and identity of purchaser is a document issued by a federal, state, county or municipal government which contains a photograph of the purchaser including, but not limited to, a valid California driver's license or identification card issued to a member of the armed forces.

(3) The sale of safe and sane fireworks shall begin no earlier than 12:00 noon on June 28 and shall not continue after 10:00 p.m. on July 5 of the same year. Sale of fireworks shall be permitted only from 12:00 noon to 10:00 p.m. on June 28 and from 9:00 a.m. to 10:00 p.m. daily on June 29 through July 5.

(4) No person other than the permitted non-profit organizations or the non-profit organization with whom they have a joint venture shall operate the stand for which the permit is issued or share or otherwise participate in the profits of the operation of such stand. In addition, no person other than the individuals who are members of the permittee and/or joint venture non-profit organizations or the wives, husbands, parents or adult children of such members shall sell or otherwise participate in the sale of safe and sane fireworks at such stand.

(5) No person under the age of 18 shall sell or participate in the sale of safe and sane fireworks within such stand.

(6) No person shall be paid any consideration by the permittee non-profit organizations or any wholesaler/distributor of safe and sane fireworks for selling or otherwise participating in the sale of safe and sane fireworks at such stand; provided, however, compensation may be paid for licensed security personnel during sale or non-sale hours and to the party authorizing the location of the stand on its property. The city manager may revoke the fireworks storage permit and/or local business license of any fireworks wholesaler/distributor violating the terms of this section.

(7) All unsold stock of fireworks in the hands of the permittee after 10:00 p.m. on July 5 shall be returned to the wholesaler/distributor and removed from the city within ten days. On closing of the safe and sane fireworks stand, all litter shall be removed from the premises.

(8) Each safe and sane fireworks stand must post its city permit to sell safe and sane fireworks, temporary sales tax permit from the state board of equalization, state fire marshal retail sales permit and proof of insurance in a prominent place inside the safe and sane fireworks stand.

(9) No person shall smoke within 25 feet of the safe and sane fireworks stand. No person shall light, cause to be lighted or permit to be lighted any safe and sane fireworks or combustible material within 50 feet of any safe and sane fireworks stand.

(10) No signage related to the sales of safe and sane fireworks shall be placed on any public property or in the city's right-of-way. Signage is limited to placement upon said private property where the temporary stand is permitted.

(Ord. No. 898-2013, § 1(9.70.140), 3-4-2013; Ord. No. 929-2014, § 1(9.70.140), 10-20-2014)

(a) The city manager or the city manager's designee may revoke, immediately and without notice or hearing, the permit of any permittee who violates any provisions of this chapter. If the revocation occurs between June 22 and July 5, the city manager shall inform the permittee that the permittee may seek review of the decision on the next business day. At the earliest opportunity on the next business day after the revocation, the city manager shall provide the permittee with written notice that their fireworks permit has been revoked and include in that notice the name of the permittee and a brief statement of the grounds for revocation. The city manager, or the city manager's designee, shall meet with the permittee on that day, upon the permittee's request, to review the city manager's decision. The decision of the city manager shall be final. If the revocation occurs before or after the specified period, the appeal procedures of subsection (b) of this section shall apply.

(b) The city manager, or the city manager's designee, may revoke the permit of any permittee who violates any provision of this chapter. Such revocation shall not take effect for five days, during which time the permittee may seek review of the city manager's decision by submitting a written request for review. The city manager shall prepare a written notice that the permittee's fireworks permit has been revoked and include in that notice the name of the permittee and a brief statement of the grounds for revocation. The city manager, or the city manager's designee, shall meet with the permittee to review the city manager's decision. The decision of the city manager shall be final. Furthermore, any permittee whose permit has been revoked pursuant to this section shall be barred from receiving a permit under this chapter for up to five years from the date of revocation.

(Ord. No. 898-2013, § 1(9.70.150), 3-4-2013; Ord. No. 929-2014, § 1(9.70.150), 10-20-2014)

Limitations on the discharge of safe and sane fireworks are outlined below:

(1) It shall be unlawful to discharge any safe and sane fireworks except during the hours of 9:00 a.m. to 11:00 p.m. on the days on which said safe and sane fireworks may be sold.

(2) It shall be unlawful for any person to ignite, discharge, project or otherwise fire or use, any safe and sane fireworks, or permit the ignition, discharge or projection thereof, upon or over or onto the property of another without his consent or to ignite, discharge, project or otherwise fire or make use of any safe and sane fireworks within ten feet or any residence, dwelling or other structure used as a place of habitation by human beings.

(3) The use of safe and sane fireworks in the city shall be limited to private property except as otherwise provided herein. No safe and sane fireworks shall be discharged on public, semipublic or private open areas such as parking lots, vacant property or in public streets or rights-of-way. No fireworks shall be discharged in the high fire hazard areas as identified by fire district.

(Ord. No. 898-2013, § 1(9.70.160), 3-4-2013; Ord. No. 929-2014, § 1(9.70.160), 10-20-2014)

It shall be unlawful for any person having the care, custody or control of a minor (under 18 years old) to permit such minor to discharge, explode, fire or set off any dangerous fireworks, at any time, or to permit such minor to discharge or set off any safe and sane fireworks unless such minor does so under the direct supervision of a person over 18 years of age and during the hours and on the days permitted by this chapter.

(Ord. No. 898-2013, § 1(9.70.030), 3-4-2013; Ord. No. 929-2014, § 1(9.70.170), 10-20-2014)

Except as provided herein, no manufacturer, importer, exporter or wholesaler of fireworks shall offer for sale or sell at wholesale any fireworks of any kind without having first applied for and received a business license for wholesale distribution from the city. All applications for a business license to distribute fireworks shall abide by the following regulations:

(1) Be made in writing and accompanying a business license application and the adopted business license fee as per section 5.08.130.

(2) Be made on an annual basis between March 1 and March 31 of each calendar year.

(3) Be accompanied by a certificate evidencing an occurrence-based policy of insurance naming the "City of Barstow" as an additional insured thereunder, with the following minimum limits: $1,000,000.00 public liability and property damage, and general aggregate coverage of $2,000,000.00. No policy will be acceptable which contains a provision allowing a deductible amount.

(4) Contain such other information as may be required by the city.

(5) Contain a statement that fireworks shall not be furnished, sold, distributed or placed in the possession of any person or organization in the city, or for sale, use or distribution in the city, unless such person or organization holds a valid and unrevoked permit from the city to so possess, sell, use or distribute such fireworks.

(6) Wholesale storage of safe and sane fireworks by fireworks wholesalers licensed by the office of the state fire marshal shall be in a building meeting the requirements of chapter 6 of NFPA 1124, so long as said fireworks wholesaler has not been found to be in violation of any terms of this chapter.

(Ord. No. 898-2013, § 1(9.70.180), 3-4-2013; Ord. No. 929-2014, § 1(9.70.180), 10-20-2014)

The city manager, or the city manager's designee, may seize, take, remove or cause to be removed, at the expense of the permittee or licensed fireworks wholesaler, whichever is applicable, all stock of fireworks offered or exposed for sale, stored or held in violation of this chapter when such violation creates an imminent threat to public health or safety.

(Ord. No. 898-2013, § 1(9.70.190), 3-4-2013; Ord. No. 929-2014, § 1(9.70.190), 10-20-2014)

Each fireworks distributor/wholesaler who is supplying one or more of the Barstow non-profit organizations who are permittees under this chapter, shall annually submit a public education plan to the city by no later than 5:00 p.m. on June 1. Said public education plan should outline the public safety and education efforts for that year that have been initiated, supported and/or delivered by each fireworks distributor/wholesaler within the city. Said public education plan should include, but is not limited to, samples of all the materials and the extent of distribution of all of the safety and education materials discussed in that wholesaler's/distributor's plan.

(Ord. No. 898-2013, § 1(9.70.200), 3-4-2013; Ord. No. 929-2014, § 1(9.70.200), 10-20-2014)

(a) On or before May 1 of every year, both the city's police and fire departments must present to the city council an operation plan for the 30-day period surrounding the Fourth of July (June 17 through July 16) for that year. Said operation plan should include, but not be limited to, the following information:

(1) Identification of areas within the city where illegal fireworks were a problem in the previous year;

(2) A detailed explanation of the deployment of fire and law enforcement personnel to deal with those troublesome areas as well as with the balance of the city;

(3) A report on the apparatus and personnel who will be on duty for the period of June 17 through July 16 of that year, and more particularly, on July 1 through July 5, inclusive; and

(4) Recommendations on and discussion of what, if any, dedicated illegal fireworks enforcement patrols there should be for that year and all other relevant information and statistics deemed necessary by the city council.

(b) By no later than September 1 of that same year, both police and fire departments must report back to the city council with an after-action report. That report should include, but is not limited to:

(1) An evaluation of the success or failure of that department's operation plan for that year including a listing of any significant fireworks-related incidents, both dangerous fireworks and safe and sane fireworks;

(2) Relevant incident statistics for the period of June 17 through July 16, arrest and citation statistics for all crimes, but more particularly for the possession, sale and/or use of dangerous fireworks, altered safe and sane fireworks and misuse of safe and sane fireworks outside the strict limitations of this chapter; and

(3) A report on how many calls there were regarding suspected dangerous fireworks, how many of those calls either of the departments responded to, how many of those calls resulted in seizures and/or administrative fine citations, the status of payment of those administrative fines, and how many fireworks seizures resulted in no citations and if so, why.

(Ord. No. 898-2013, § 1(9.70.210), 3-4-2013; Ord. No. 929-2014, § 1(9.70.210), 10-20-2014)

(a) Purpose.

(1) This chapter authorizes the imposition of administrative fines on any person who violates any provision of this chapter in order to encourage and obtain compliance with the provisions of this chapter for the benefit and protection of the entire community. This chapter governs the imposition, enforcement, collection and administrative review of all administrative fines, related to: the possession, use, storage, sale and/or display of those fireworks classified as "dangerous fireworks" in Health and Safety Code § 12500 et seq., with the exception of a pyrotechnic licensee when operating pursuant to that license; and the use of safe and sane fireworks as defined in Health and Safety Code § 12500 et seq. on or at dates, times and/or locations other than those permitted by this chapter. Said administrative fines are imposed under authority of Government Code § 53069.4, Health and Safety Code § 12557, and police power of the city.

(2) The issuance of citations imposing administrative fines may be performed at the discretion of the officials of the city authorized hereunder; and the issuance of a citation to any person constitutes but one remedy of the city to redress violations of this Code by any person. By adopting this chapter, the city does not intend to limit its authority to employ any other remedy, civil or criminal, to redress any violation of this Code by any person, which this city may otherwise pursue.

(3) The imposition of fines related to dangerous fireworks under this chapter shall be limited to persons who posses, sell, use and/or display, or the seizure of, less than 25 pounds (gross weight) of such dangerous fireworks.

(4) Fines collected pursuant to this chapter related to dangerous fireworks shall not be subject to Health and Safety Code § 12706, which section provides that certain fines collected by a court of the state be deposited with, and disbursed by, the county treasurer. However, the city shall provide cost reimbursement to the state fire marshal pursuant to regulations to be adopted by the state fire marshal addressing the state fire marshal's cost for the transportation and disposal of dangerous fireworks seized by the city, which costs will be part of any administrative fine imposed. Unless and until said regulations have been adopted by the state, the city shall hold in trust $250.00 or 25 percent of any fine collected, whichever is greater, to cover the cost reimbursement to the state fire marshal for said cost of transportation and disposal of the dangerous fireworks.

(5) Because of the serious threat of fire or injury posed by the use of dangerous fireworks that can result from persistent or repeated failures to comply with the provisions of this Code and the effect of such conditions or activities on the safety and the use and enjoyment of surrounding properties and to the public health, safety and welfare, this chapter imposes strict civil liability upon the owners of residential real property for all violations of this Code existing on their residential real property. Each contiguous use, display and/or possession shall constitute a separate violation and shall be subject to a separate administrative fine.

(6) At least 50 percent of the fines collected pursuant to this chapter must be placed in a segregated fund entitled "Barstow Illegal Fireworks Enforcement Fund." The sole and exclusive purpose of this fund is to pay for increased fire and police deployment, protection and investigation of and against illegal fireworks in the city for the 30-day period surrounding the Fourth of July (June 17 through July 16).

(b) Issuance of administrative citations.

(1) Whenever a code enforcement officer (CEO) determines that a violation of the Code has occurred, the CEO may issue an administrative citation on a city-approved form listing the Code violation and the amount of the administrative fine required to be paid by the responsible person in accordance with the provisions of this chapter.

(2) Each administrative citation shall contain the following information:

a. The name, mailing address, date of birth, CDL number, and home or business telephone number of the responsible person charged with any violation of this Code;

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

c. The date or dates on which the person violated this Code;

d. The section or sections of this Code that were violated;

e. A description of the violation(s);

f. The amount of the administrative fine for each violation, the procedure in place to pay the fines, and any late fee and interest charges, 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;

g. 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);

h. The name and signature of the CEO 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 refusal of a citee to sign a 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 the Code; and

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

(c) Administrative fines.

(1) Each person who violates any provision of this Code as it relates to the possession, use, storage, sale and/or display of dangerous fireworks shall be subject to the imposition and payment of an administrative fine or fines as provided below:

(2) Each person who uses safe and sane fireworks on or at dates, times and/or locations other than those permitted by this chapter shall be subject to the imposition and payment of an administrative fine or fines as provided below:

(3) In the case of a violation of any of the provisions listed above, the administrative fine shall be due and payable within 30 calendar days from the issuance of the administrative fine citation, and the citee shall be required to abate the violation, and surrender all dangerous fireworks to the CEO, immediately. For penalties not paid in full within that time, a late charge in the amount set forth above is hereby imposed and must be paid to the city by the citee. Fines not paid within the time established by this chapter shall accrue interest at the prevailing established rate. On the second and each subsequent time that a person is issued a citation for the same violation in any 12-month period, the fine is increased as indicated above and the citee shall be liable for the amount of the new fine until it is paid, in addition to being responsible for payment of previous fines.

(4) All administrative fines and any late charges and interests due shall be paid to the city at such a location or address as stated on the citation, or as may otherwise be designated by the city manager. Payment of any fine or fines shall not excuse the citee from complying with the provision of the Code so violated. The issuance of the citation and/or payment of any fine shall not bar the city from employing any other enforcement action or remedy to obtain compliance with the provisions of the Code so violated including the issuance of additional citations and/or criminal prosecution.

(5) Upon confirmation of the citation or when the citation is deemed confirmed, all unpaid administrative fines, late fees and/or interests shall constitute a judgment which may be collected in any manner allowed by law for collection of judgments including but not limited to recordation to create a lien on any real property owned by the responsible person. The city shall be entitled to recover its attorney's fees and costs incurred in collecting any administrative fines, late charges and/or interests.

(6) Payment of the administrative fine shall not excuse or discharge a citee from the duty to immediately abate and correct a violation of this chapter, nor from any other responsibility or legal consequences for a continuation or a repeated occurrence of a violation of this chapter.

(d) Right to an administrative hearing.

(1) Any citee may contest the violation, or that he is a responsible person, by filing a request for an administrative hearing on a city-approved form with the city clerk within 30 calendar days from the issuance date of a citation. If the city clerk 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.

(2) No fees shall be charged for the filing of a request for a hearing.

(3) Citees shall 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 in if the citation is overturned.

(4) A request for a hearing shall contain the following:

a. The citation number;

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

c. A statement of the reason why a citation is being contested;

d. The dates and signature of the citee.

(5) The city shall notify all persons who filed 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.

(6) The hearing shall be conducted within 60 days of the date a timely and complete request is received by the city clerk.

(7) If the CEO submits an additional written report concerning the citation to the city for consideration at the hearing, the CEO shall also serve a copy of such report by first class mail on the person requesting an administrative hearing no less than seven calendar days prior to the date of the hearing. Failure to receive said report shall not invalidate the citation or any hearing, city action or proceeding pursuant to this chapter.

(e) Administrative hearing procedures.

(1) The hearing officer designated or appointed by the city manager shall hear all requests for administrative hearings of administrative fines in accordance with the procedures established herein.

(2) Administrative hearings are informal, and formal rules of evidence and discovery do not apply. The city bears the burden of proof to establish a violation and responsibility therefor by a preponderance of evidence. The citation is prima facie evidence of the violation, however, and the CEO who issued the citation is not required to attend or participate at the hearing. The citee and CEO, if present, shall have an opportunity to present evidence and witnesses and to cross examine witnesses. A citee may bring an interpreter to the hearing provided there is no expense to the city therefor. The hearing officer may question any person who presents evidence or who testifies at any hearing.

(3) 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 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.

(4) 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.

(f) Hearing decision right of appeal.

(1) 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 therefor.

(2) The hearing officer shall serve citee 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.

(3) Decisions of the hearing officer may be appealed to the city council within 30 days after the date of their service. Each decision shall contain a statement advising the citee of this appeal right and the procedure for its exercise. A citee shall file a notice of appeal with the city within 20 calendar days after the date of service of the hearing officer's decision.

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

(5) The city council is the sole reviewing authority and an appeal from a hearing officer's decision is not appealable to the superior court. If a responsible person prevails on appeal, the city shall reimburse his fine deposit within 30 calendar days of the city council's decision on the appeal.

(Ord. No. 898-2013, § 1(9.70.220), 3-4-2013; Ord. No. 929-2014, § 1(9.70.220), 10-20-2014)

This chapter is not the exclusive regulation for fireworks within the city. It shall supplement and be in addition to the other regulatory codes, statutes, regulations and ordinances heretofore and hereafter enacted by the city, the state or any other legal entity or agency having jurisdiction. Any provisions of this Code in conflict herewith are hereby repealed. This chapter supersedes any conflicting provisions of the Uniform Fire Code and Uniform Building Code.

(Ord. No. 898-2013, § 1(9.70.230), 3-4-2013; Ord. No. 929-2014, § 1(9.70.230), 10-20-2014)