Merced Municipal Code Ch. 8.22 Fireworks

This section shall be known and cited as the "Fireworks Ordinance." When used in this chapter, the phrase "this section" means the Fireworks Ordinance.

(Ord. No. 2424, § 1, 4-21-2014)

(a) 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 California Health and Safety Code Section 12505 et seq. or the possession, use, storage, sale and/or display of safe and sane fireworks on or at dates, times, and/or locations other than those permitted by this chapter. The administrative fines are imposed under the authority of California Government Code Section 53069.4; California Health and Safety Code Sections 12700 and 12557; and the police power of the City of Merced.

(b) The issuance of an administrative citation to any person constitutes but one (1) remedy of the city to redress violations of this chapter. 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 chapter which the city may otherwise pursue.

(c) The imposition of administrative fines under this chapter shall be limited to:

1. Persons who possess, use, sell and/or display dangerous fireworks in a quantity of twenty-five (25) pounds or less, or

2. Persons who possess, use, sell and/or display safe and sane fireworks on or at the dates, times, and/or locations other than those permitted by this chapter.

(d) Administrative fines collected pursuant to this chapter shall not be subject to California Health and Safety Code Section 12706. The administrative fines collected shall be allocated in compliance with California Health and Safety Code Section 12557, which requires the city to provide cost reimbursement to the California State Fire Marshal for reimbursement of costs, including, but not limited to, transportation, and disposal. Regulations are to be adopted by the California State Fire Marshal setting forth this allocation. Unless and until such regulations have been adopted by the State of California, the city shall hold in trust a two-hundred-fifty dollar ($250.00) fee in addition to any fine collected to cover the reimbursement to the California State Fire Marshal for the cost of transportation and disposal of the dangerous fireworks. This fee is non-refundable.

(e) Due to the serious threat of fire or injury posed by the use of dangerous fireworks in the city, or safe and sane fireworks on or at dates, times, and/or locations in the city other than those permitted by this chapter, this chapter also imposes strict civil liability upon the owners of real property for all violations of this chapter that occur on that property. Each individual use, display, and/or possession of a dangerous firework or a safe and sane firework on a property at a time and/or location other than those permitted by this chapter shall constitute a separate violation and shall be subject to a separate administrative fine.

(f) The fire chief or designee may seek cost recovery for any costs imposed on the fire department due to negligence, an intentional wrongful act, carelessness, or malice as set forth in Merced Municipal Code Master Fee Schedule.

(g) In addition to any other remedy available by law, any person or entity who possesses, uses, stores, sells and/or displays dangerous fireworks in the city, or any person or entity who possesses, uses, sells and/or displays safe and sane fireworks on or at dates, times, or locations in the city other than those permitted by this chapter are subject to an administrative fine of not less than one thousand dollars ($1,000.00) that may be issued for a first violation, and not less than two thousand dollars ($2,000.00) for a second violation in a twelve-month period and not less than three thousand dollars ($3,000.00) for each subsequent violation in a twelve-month period.

(Ord. No. 2424, § 1, 4-21-2014; Ord. No. 2570, § 1, 11-18-2024)

For the purposes of this chapter, unless otherwise apparent from the context, certain words and phrases used in this chapter are defined as follows:

a. "Dangerous fireworks" means any fireworks specified as such in the State Fireworks Law, California Health and Safety Code Sections 12505 and 12561, and such other fireworks as may be determined to be dangerous by the State Fire Marshal.

b. "Eligible organization" means an organization which has met all of the following criteria for a continuous period of not less than one (1) full year preceding submittal of an application for the permit required by this chapter (and which continues to do so thereafter):

1. The organization is exempt from federal income tax pursuant to the provisions of Internal Revenue Code Sections 501(c) (3), (4), (6), (7), (8), (10), (19), (23), or (26), or Section 501(d), or Section 501(e);

2. The organization must be headquartered within and clearly affiliated or identified with Merced;

3. The organization must be one which provides direct and regular community services and benefits to the citizens of the city; and,

4. The organization must hold its regularly scheduled meetings within the city.

i. "Eligible organization" also means an organization which has met criteria set out in subdivisions (1), (2) and (3) of this subsection, for a continuous period of not less than one (1) full year preceding submittal of an application for the permit required by this chapter (and which continues to do so thereafter) and which demonstrates at the time of each application that criteria set out in subdivision (4) of this subsection is not met only because adequate and appropriate facilities for the organization's regular meetings are not available for such purposes within city limits.

ii. "Eligible organization" also means any for-profit organization that obtained a permit to sell safe and sane fireworks and actually operated a fireworks stand in the city during the 2013 season with future eligibility being contingent upon obtaining successive, annual permits, and operating each successive season. A for-profit organization shall become permanently ineligible if the organization fails to obtain a permit and/or to operate a fireworks stand in any given year.

c. "Exempt fireworks" means any special item containing pyrotechnic compositions which the California State Fire Marshal, with the advice of the state advisory board, has investigated and determined to be limited to industrial, commercial, and agricultural use, or religious ceremonies when authorized by a permit granted by the authority having jurisdiction.

d. "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. These items include, but are not limited to:

1. Devices designated by the manufacturer as fireworks.

2. Any devices as defined in California Health and Safety Code Section 12511 (b).

e. "Fireworks host" means a person who either:

1. Has control of the property where a violation of this chapter occurs, including, but not limited to, an owner, landlord, lessee, tenant, or property manager; or

2. Otherwise organizes, supervises, officiates, conducts, controls, or is otherwise in charge of the non-fireworks related activity on a property.

f. "Safe and sane fireworks" as defined in California Health and Safety Code Section 12529, means any fireworks which do not come within the definition of 'dangerous fireworks' or 'exempt fireworks.' All safe and sane fireworks shall be labeled with the safe and sane fireworks seals as authorized by the California State Fire Marshal.

g. "Stand" means any building, counter, or other structure of a temporary nature used in the sale or offering for sale of fireworks pursuant to a permit duly issued.

(Ord. No. 2424, § 1, 4-21-2014; Ord. No. 2570, § 2, 11-18-2024)

The fire chief or designee shall have authority to adopt reasonable rules and regulations for the granting of permits for those activities contained in California Health and Safety Code, Section 12640, including supervised public displays of fireworks by a jurisdiction, fair association, amusement park, other organizations, 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 California Health and Safety Code, Section 12527, and shall be of such character and so located, discharged or fired as in the opinion of the fire chief, after proper investigation, will not be hazardous to property or endanger any person.

(Ord. No. 2424, § 1, 4-21-2014)

It shall be unlawful for any person to possess, store, to offer for sale, or sell at retail any fireworks in the city other than safe and sane fireworks, with the exception of those activities provided for in Section 8.22.040 of this section. It shall be unlawful to possess, store, offer for sale, or sell at retail safe and sane fireworks in the city without first obtaining a permit therefore. The fire chief shall have the authority to adopt reasonable rules and regulations for the granting of permits for the sale of safe and sane fireworks by eligible organizations. The fire chief shall also have the authority to adopt reasonable rules and regulations for the safe operation of firework stands. Such rules and regulations shall be made available upon request from the fire department.

(Ord. No. 2424, § 1, 4-21-2014)

Permits to sell and store safe and sane fireworks shall be issued by the fire department.

(a) All applications for permits shall be in writing and delivered to the fire chief on forms supplied by the fire department, and shall include all documentation and proof required by the rules and regulations established by the state fire marshal and the fire chief. All application materials must be complete to be received.

(b) Applications may be filed beginning the first regular business day of February of each year up to and including five p.m. on the first day of May of the same year. No applications shall be received after five p.m. on the first day of May, unless that day falls on a holiday or weekend—then the deadline shall be five p.m. on the next business day.

(c) Such applications shall be signed by a bona fide officer of the eligible organization wherein the officer, on behalf of the organization and its agents, shall agree to abide by all state laws, all administrative regulations, all city ordinances, all rules and regulations promulgated by the fire chief and the terms and conditions of the permit if permission to operate a fireworks stand shall be granted to the organization.

(d) Applications shall identify the name of the organization, the organization form, the address of the principal meeting place, number of members, the purpose of the organization or corporation and the date it came into existence within the city.

(e) Application Fees. There is a non-refundable application fee established by resolution of the city council and set forth in the master fee schedule. This application fee shall be in addition to any other chapter or article of the Merced Municipal Code.

(Ord. No. 2424, § 1, 4-21-2014)

(a) Only eligible organizations as defined in Section 8.22.030(b) will be permitted to sell and store safe and sane fireworks. Each of the eligible organizations that were issued permits and operated a stand in the year 2013 (including for-profit organizations), and that submit the required fee and a complete application acceptable to the fire chief or designee by the filing deadline in 2014 pursuant to Section 8.22.060, shall be granted a permit to operate a stand in the year 2014. Thereafter, an organization granted a permit in any given year shall be granted a permit in each subsequent year, so long as this section remains in effect and the organization continues to: (1) be an eligible organization, (2) timely submit complete applications annually, and (3) operate annually without the occurrence of any act or omission that could subject the permittee to revocation of a permit pursuant to Section 8.22.120.

(Ord. No. 2424, § 1, 4-21-2014; Ord. No. 2570, § 3, 11-18-2024)

Permits will be effective only when delivered by the fire department after the final inspection of the stand shows compliance with all the requirements established by the fire chief for the operation of a fireworks stand and the applicant has paid the required permit fee. Each approved organization shall submit to the finance office a permit fee or additional fees recommended by the fire chief and approved by the city council by resolution to cover all of the costs and expenses of the city related to the permitting of the sales and storage of fireworks, including, but not limited to, "standby" and cleanup costs incurred by the city. Any permit issued pursuant to this section shall be nontransferable, and shall be valid only as to the applicant and location provided on the permit issued by the city fire department.

(Ord. No. 2424, § 1, 4-21-2014)

a. Ignition, Use, Discharge, or Display by Minors. Any person having the care, custody, or control of a person under eighteen (18) years of age shall be strictly liable for any unlawful ignition, use, discharge, or display of dangerous fireworks or safe and sane fireworks within the city in violation of Sections 8.22.40, 8.22.100, and 8.22.110. Nothing in this subsection shall limit the liability of any fireworks host for a violation of this chapter.

b. Fireworks Host Liability. Any fireworks host shall be liable for any unlawful ignition, use, discharge, or display of any dangerous fireworks or safe and sane fireworks within the city in violation of Sections 8.22.40, 8.22.100, and 8.22.110 at the property they control pursuant to Section 8.22.030(e) or any gathering they organize or control; except that:

1. 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 subsection for violations of Sections 8.22.40, 8.22.100, and 8.22.110 occurring in the common areas of the property, or in another unit, unless that person is in violation of this chapter.

2. No fireworks host shall be liable under this subsection if they have initiated contact with law enforcement or fire officials to assist in removing any person from the property or terminating the activity to comply with this chapter if the request for assistance is made before the arrival of law enforcement or fire officials to the property to investigate a reported violation of this chapter.

3. No owner of private property shall be liable under this section for a violation of Sections 8.22.40, 8.22.100, and 8.22.110 on that property if that owner can demonstrate that at the time of such violation the violator(s) unlawfully trespassed onto the property.

c. Violations in the Right-of-Way. No fireworks host shall aid or abet another person's violation of a provision of this chapter in a public right-of-way adjacent to the fireworks host's property. A fireworks host aids and abets another person's violation of this chapter if they know the other person's unlawful purpose and the social host specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the other person's commission of that violation in the public right-of-way.

(Ord. No. 2570, §§ 4, 6, 11-18-2024)

Editor's note— Ord. No. 2570, §§ 4, 6, adopted Nov. 18, 2024, renumbered the former §§ 8.22.090—8.22.140 as §§ 8.22.100—8.22.150 and enacted a new § 8.22.090 as set out herein. The historical notation has been retained with the amended provisions for reference purposes.

Fireworks stands may be operated only from the hours of six a.m. until ten thirty p.m. on and between Sundays and Thursdays with the exception of the third and fourth day of July, and may be operated from six a.m. until twelve a.m. on Fridays, Saturdays, and on the third and fourth day of July.

(Ord. No. 2424, § 1, 4-21-2014; Ord. No. 2570, §§ 4, 6, 11-18-2024)

Editor's note— Ord. No. 2570, §§ 4, 6, adopted Nov. 18, 2024, renumbered the former §§ 8.22.090—8.22.140 as §§ 8.22.100—8.22.150 as set out herein. The historical notations have been retained with the amended provisions for reference purposes.

It shall be unlawful to:

(a) Obtain or use more than one (1) permit or to operate more than one (1) stand in the city per year;

(b) Sell fireworks in the city earlier than noon on the twenty-eighth day of June or later than noon on the sixth day of July;

(c) Use or explode any fireworks in the city earlier then noon on the twenty-eighth day of June or later than noon on the sixth day of July without a permit issued by the fire chief or designee for public displays of fireworks;

(d) Sell fireworks to persons under the age of sixteen (16) years old;

(e) Sell, assign, or in any way transfer a permit to operate a fireworks stand, or a place or position on the permit waiting list, to another organization, individual, or entity;

(f) Use or explode any fireworks inside a building other than an outdoor stadium; or,

(g) Fail to dismantle and remove any stand or structure of any nature where fireworks are sold or offered for sale no later than the eighth day of July at five p.m.

(Ord. No. 2424, § 1, 4-21-2014; Ord. No. 2570, §§ 4, 6, 11-18-2024)

Editor's note— Ord. No. 2570, §§ 4, 6, adopted Nov. 18, 2024, renumbered the former §§ 8.22.090—8.22.140 as §§ 8.22.100—8.22.150 as set out herein. The historical notations have been retained with the amended provisions for reference purposes.

Any violation of this section or other city ordinances or policies, or the terms and conditions of the permit, or state laws or administrative regulations, or safety rules of the fire department, shall be grounds for the immediate revocation of the permit. All officers, agents, and employees of the eligible organization shall be responsible for compliance with all of the provisions of this section.

(Ord. No. 2424, § 1, 4-21-2014; Ord. No. 2570, §§ 4, 6, 11-18-2024)

Editor's note— Ord. No. 2570, §§ 4, 6, adopted Nov. 18, 2024, renumbered the former §§ 8.22.090—8.22.140 as §§ 8.22.100—8.22.150 as set out herein. The historical notations have been retained with the amended provisions for reference purposes.

The fire chief, or the designee thereof, shall seize, take, remove, or cause to be removed, at the expense of the owner, all stocks of fireworks offered or exposed for sale, stored, or held in violation of this section.

(Ord. No. 2424, § 1, 4-21-2014; Ord. No. 2570, §§ 4, 6, 11-18-2024)

Editor's note— Ord. No. 2570, §§ 4, 6, adopted Nov. 18, 2024, renumbered the former §§ 8.22.090—8.22.140 as §§ 8.22.100—8.22.150 as set out herein. The historical notations have been retained with the amended provisions for reference purposes.

Any person violating any provisions of this section shall be guilty of a misdemeanor and shall be subject to criminal prosecution, civil remedies, administrative fines and penalties, and any other remedies available to the city for enforcement of this code. In addition, an administrative fine of not less than one thousand dollars ($1,000.00) that may be issued for a first violation, and not less than two thousand dollars ($2,000.00) for a second violation in a twelve-month period and not less than three thousand dollars ($3,000.00) for each subsequent violation in a twelve-month period.

(Ord. No. 2424, § 1, 4-21-2014; Ord. No. 2570, §§ 4—6, 11-18-2024)

Editor's note— Ord. No. 2570, §§ 4—6, adopted Nov. 18, 2024, renumbered the former § 8.22.130 as § 8.22.140 as set out herein. The historical notations have been retained with the amended provisions for reference purposes.

There shall be allowed no more than one (1) fireworks stand for every two thousand five hundred (2,500) residents in the city. The number of residents shall be determined based on the most recent annual population figures provided by the state to the city as of the first day of May of each year. The number of stands allowed shall increase according to increases in population.

(Ord. No. 2424, § 1, 4-21-2014; Ord. No. 2570, §§ 4, 6, 11-18-2024)

Editor's note— Ord. No. 2570, §§ 4, 6, adopted Nov. 18, 2024, renumbered the former §§ 8.22.090—8.22.140 as §§ 8.22.100—8.22.150 as set out herein. The historical notations have been retained with the amended provisions for reference purposes.