Chapter 92 — FIRE PROTECTION AND PREVENTION

The City Council adopts the California Fire Code as declared in municipal code Chapter 150: Building Regulations, Fire Code.

(Ord. 2018-007, passed 12-11-18)

FIRE PROTECTION DISTRICT

In accordance with the Cal. Health & Safety Code §§ 13950 et seq., the City Council hereby declares and determines its intention and desire to have the city’s entire territory and its established jurisdiction boundaries included within the Stanislaus County Consolidated Fire Protection District, and become a part thereof.

(`67 Code, § 8-1-1) (Ord. 35½, passed 5-1-31; Am. Ord. 2018-007, passed 12-11-18)

FIREWORKS SALES AND DISCHARGE

For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

CITY MANAGER. Shall mean the City Manager or designee.

DANGEROUS FIREWORKS. Every fireworks article which does not bear the safe and sane classification label and as further defined in Cal. Health & Safety Code §§ 12505 and 12561.

EXEMPT FIREWORKS. As defined in Cal. Health & Safety Code § 12508 means any special item containing pyrotechnic compositions which the State Fire Marshal, with the advice of the State Fire Advisory Board, has

investigated and determined to be limited to industrial, commercial, agricultural use or religious ceremonies when authorized by a permit granted by the authority having jurisdiction.

FIREWORKS. Any device containing chemical elements and chemical compounds that are capable of burning independently off of the oxygen of the atmosphere and producing audible, visual, mechanical, or thermal effects which are useful as pyrotechnic devices for entertainment. The term includes, but is not limited to, devices designated by the manufacturer as fireworks, torpedoes, skyrockets, roman candles, rockets, Daygo bombs, sparklers, party poppers, paper caps, chasers, fountains, smoke sparks, aerial bombs, and fireworks kits.

FIREWORKS STAND. Any building, counter, or other structure of a temporary nature used in the sale, offering for sale, or display for sale of safe or sane fireworks.

FIREWORKS WHOLESALER. Any person, other than an importer, exporter or manufacturer selling directly to wholesalers, who sells fireworks to a retailer or any other person for resale.

PERMIT. A certificate issued by the city that allows a qualified applicant to temporarily sell fireworks pursuant to the regulations set forth. A permit does not confer to any property rights and the city at its sole discretion, without notice or opportunity for a hearing, may revoke the permit.

PERMITTEE. Any applicant that has met the eligibility requirements and has been issued a permit for the sale of safe and sane fireworks, or a City Council approved state licensed pyrotechnic operator as defined under Cal. Health & Safety Code § 12578.

PROGRAM ADMINISTRATOR. The City Manager's designated department or division staff member that is assigned the responsibilities to administer the fireworks sales program.

SAFE AND SANE FIREWORKS. As defined in Cal. Health & Safety Code §§ 12529 and 12562 means any fireworks which do not come within the definition of DANGEROUS FIREWORKS or EXEMPT FIREWORKS. (Ord. 2018-007, passed 12-11-18)

The purpose of this subchapter is to restrict the sale and use of fireworks or the public display of fireworks within the city for the health, safety, and welfare of all persons and properties of the city. (Ord. 2018-007, passed 12-11-18)

The City Manager shall designate the Program Administrator responsible for the Temporary Sale of Safe and Sane Fireworks Permit Program. The City Manager may adopt reasonable processes and procedures to implement this subchapter in a manner consistent with any applicable rules and regulations set forth by ordinance of the City Council. The City Manager reserves the right to immediately revoke, without notice or hearing, the permit to sell fireworks when it is determined that a state or local regulation, law, or requirement has been violated or an immediate danger situation that arises; this action shall be final.

(Ord. 2018-007, passed 12-11-18)

(A) Fireworks labeled as SAFE AND SANE FIREWORKS are permitted pursuant to the provisions of this section.

(B) It shall be unlawful for any person, firm, or corporation to possess, sell, store, use, display or offer or make available for sale or expose for sale at retail, fireworks for use within the city that are not classified as "safe and sane fireworks" including altered safe and sane fireworks, or other combustible devices or explosive substance or any kind of fireworks by another name.

(C) Public display by state licensed pyrotechnic operator. Notwithstanding divisions (A) and (B) of this section, the City Council may for a one-time city conducted special event or celebratory occasion, allow for the issuance of a city fireworks permit for the public display of "dangerous fireworks" conducted by a state licensed pyrotechnic operator, who shall meet all the state and local regulations, laws, and requirements to ensure the safety and welfare of all persons and properties.

(Ord. 2018-007, passed 12-11-18)

(A) It shall be unlawful for any person, firm, or corporation to engage in the sale or distribution of fireworks within the city without first securing a permit from the city, the Fire Protection District, State Fire Marshal, and any other required state or local agency.

(B) State licensed pyrotechnic operator. A City Council approved state licensed pyrotechnic operator who is approved to provide a public display of fireworks by the discharge of dangerous fireworks for a one-time city

conducted special event or celebratory occasion, shall apply for a permit to ensure that all state and local regulations, laws, and requirements for the safety and welfare of persons and properties are met.

(Ord. 2018-007, passed 12-11-18)

Permits for the sale of safe and sane fireworks shall be issued only if:

(A) The applicant is a bona fide nonprofit organization or corporation, as recognized by the State of California, or a tax-exempt organization or corporation recognized by the Federal Internal Revenue Service that was formed primarily for veteran, patriotic, welfare, civic betterment, charitable, or charitable purposes;

(B) The applicant is a nonprofit or tax-exempt organization affiliated with the Riverbank Unified School District, located within the city limits of the city; or

(C) (1) The applicant is a nonprofit or tax-exempt organization from a school within six miles of the city limits that has a student body consisting of at least 50% Riverbank residents.

(2) Said applicant from a school outside the city limits shall not be eligible for a permit if a permit is granted or is expected to be granted by another jurisdiction.

• (D) The nonprofit or tax-exempt organization shall provide proof of:

(1) Having a minimum of ten members of which at least 80% of its current members reside within the city limits of Riverbank;

• (2) Having been established within the city's postal area for at least a period of one year;

• (3) Having its principal and permanent meeting place in the city's postal area; and

• (4) Having demonstrated its purpose for existence, and its direct and continuous services and benefits to the city in the past 12 months.

(5) An applicant from a school outside the city limits that may not meet all the aforementioned criteria shall meet criteria that are satisfactory to the Program Administrator.

(E) State licensed pyrotechnic operator. The City Council shall first approve the display and use of dangerous fireworks for a one-time city conducted special event or celebratory event, and said operator shall then apply for a permit with the designated Program Administrator.

(Ord. 2018-007, passed 12-11-18)

(A) Any organization or person(s) interested in obtaining a temporary permit for a fireworks stand and sale of safe and sane fireworks shall first obtain and file an application form provided by the city's Program Administrator.

• (B) Requirements shall include, but are not limited to:

• (1) Providing proof of tax exemption that is active and in good standing;

(2) Providing a certificate of liability insurance that shall indicate the limit amount as determined by the city's risk management authority for liability coverage per occurrence for bodily injury, property damage, including premises, operations, and product liability; that shall name the city as certificate holder; that shall contain an attached separate endorsement to the policy naming the city as an additional insured; and shall indicate that a 30-day advance notice will be given to the city prior to cancellation or material change of the policy; and

(3) Providing a copy of the applicant's current license as a fireworks wholesaler/retailer by the State of California.

(C) The application may require any other information and additional documentation as deemed necessary to make an adequate determination of eligibility.

(D) State licensed pyrotechnic operator. Application requirements shall be established as deemed necessary by the City Manager to ensure appropriate liability coverage and documentation has been secured and all state and local

regulations, laws, and requirements are met.

(E) A nonrefundable permit processing fee of $50, or an amount as amended by City Council resolution, shall be paid at the time of submittal of an application. An exception of a refund may occur if a limit on the number of permits allowed to be issued is declared by the City Manager, and as a result of conducting a lottery the applicant is not selected.

(F) Business license and tax payment. Pursuant to § 110.08(F) license fees for eligible nonprofit or tax-exempt organizations shall be waived.

(Ord. 2018-007, passed 12-11-18)

(A) Applications shall be made available by March 1 and shall be filed by the applicant no later than the close of business on March 31, or if offices are closed, the close of business on the next open business day. Applications submitted after the indicated deadline will not be accepted. Failure to meet the requirements of the application for a permit will be reason for denial.

(B) State licensed pyrotechnic operator. A City Council approved operator shall file an application for a permit not less than 15 days prior to the event.

(Ord. 2018-007, passed 12-11-18)

(A) The Program Administrator, upon satisfaction that the applicant met the requirements, may grant a permit, subject to any other conditions deemed necessary for the public's health, safety, and general welfare.

(B) The City Manager shall have the discretion to set a maximum number of permits that may be issued each calendar year to sell safe and sane fireworks. If the number of applications received exceeds the number of permits allowed for the year, a random lottery system will be conducted by the Program Administrator, and applicants will be notified accordingly.

(C) To allow various Riverbank nonprofit and tax-exempt organizations an opportunity to sell fireworks, no more than one permit per organization shall be issued for the sale of fireworks during any one calendar year; any affiliates will not be eligible for a permit. One issued permit allows for one temporary stand for the sale of fireworks.

(D) The temporary city permit issued shall only be valid for the organization named, the premises or address indicated, and for the dates specified on the permit. The permit shall not be transferable, assignable, or renewable. (E) Applicants for a permit shall be notified by the Program Administrator of the granting or denial of a permit no later than May 15 of each year.

(F) Transportation and storage. The permittee shall comply with all state and local regulations and laws for the transportation and storage of fireworks to be sold, used, or displayed.

(G) The city issued permit shall be posted at the stand for clear public view, along with the State Fire Marshal's retail fireworks license permit, and any other permit or sign required by state or local regulations or laws.

(H) The sale of fireworks may begin no earlier than 12:00 noon and end by 10:00 p.m. on June 28th, and may be sold daily thereafter from 9:00 a.m. to 10:00 p.m., and shall cease by 10:00 p.m. on July 4th. All unsold stock shall be removed from the location no later than 12:00 noon July 5th.

(Ord. 2018-007, passed 12-11-18; Am. Ord. 2020-005, passed 4-14-20)

(A) Any applicant who is issued a city permit to operate a temporary stand for the sale of fireworks shall abide by and comply with all the regulations, laws, requirements, conditions, and restrictions set by state and local regulations and laws, which shall include:

(1) No person other than the official members of the organization, their spouses, parents, or adult children shall sell or otherwise participate in the sale of fireworks at the stand.

(2) No person other than the permitted organization shall operate the stand or participate in the profits of the operation of the stand.

(3) No person shall be paid any consideration for selling or otherwise participate in the sale of fireworks at the stand.

(4) No person under the age of 18 shall sell or participate in the sale of fireworks, and no person under the age of 16 shall be sold or given fireworks.

(5) All retail sales of safe and sane fireworks shall be conducted only within the permitted temporary fireworks stand; sale from any other building or structure is prohibited.

(B) Should the dates and times allowed by the State Fire Marshal or local Fire Protection District exceed the dates and times set by the city's code, all permittees shall comply with the city's jurisdictional regulations.

(Ord. 2018-007, passed 12-11-18)

(A) It shall be unlawful to sell or offer for sale any fireworks in violation of the regulations established by the city's code.

(B) It shall be unlawful to possess, discharge, sell or offer for sale, any fireworks within the city which are classified as "dangerous fireworks" as defined by the Cal. Health & Safety Code.

(C) It shall be unlawful for any person having the care, custody or control of a person under the age of 16 years to permit such person to discharge 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 subchapter.

(D) It shall be unlawful to throw, toss, project or position an ignited firework of any kind in such a manner as to cause the firework or contents thereof to come in contact with another person's body, private property, or real property.

(E) It shall be unlawful for any person to discharge or permit the discharge of any safe or sane fireworks within any public property, buildings, or facilities, except by the approval of the City Council.

(F) It shall be unlawful to discharge any safe or sane fireworks during any other time except during the period beginning June 28 through July 6 between the hours of 12:00 noon and 10:00 p.m. of each year; or as amended by City Council resolution.

(Ord. 2018-007, passed 12-11-18)

Temporary stands are subject to the requirements as forth in the application and this code, including:

(A) A stand shall meet all the requirements for construction and maintenance as to ensure the safety of the attendants and patrons as required by the Chief Building Official or designee or the Fire Protection District.

(B) Fireworks stands may be erected no earlier than June 26 and shall be removed, along with any related litter, no later than July 7 of each year.

(Ord. 2018-007, passed 12-11-18)

Any violations of this section shall be subject to the fine(s) and appeal hearing process as stated under the fireworks regulations and enforcement subchapter.

(Ord. 2018-007, passed 12-11-18)

If the Program Administrator denies the issuance of a permit or the submittal of an application, the applicant making the request may appeal such action by filing a written notice of appeal with the City Council. Such written appeal notice shall be filed with the City Clerk within five days from the date of notification of denial. The notice of appeal shall set forth the reasons for the applicant's requested appeal. Upon receipt of a notice of appeal form, a hearing shall be set before the City Council at the next regularly scheduled meeting. Upon such hearing the Council may deny the application or grant the application with such conditions as the Council shall deem proper. (Ord. 2018-007, passed 12-11-18)

FIREWORKS REGULATIONS AND ENFORCEMENT

For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

ADMINISTRATIVE CITATION. An administrative citation is a "ticket" issued when the Code Enforcement Officer has determined that a violation of the city's code has occurred. It is an official notification, on an appropriate form as established by the city, to include the code violation(s), and the amount of the administrative fine required to be paid by the responsible person(s) in accordance with the provisions of this chapter. Administrative citations are not part of the judicial process unlike infraction or misdemeanor citations.

BLOCK PARTY. A festive gathering event, only sponsored by persons such as owners, residents, or tenants of a neighborhood, which will temporarily close no more than one city block to vehicular traffic. The event shall not be for commercial or advertising purposes or profit.

BLOCK PARTY PERMIT. The city's permitting process in which the city will issue residents a permit to temporarily close streets, other than arterial or collector streets, and to establish appropriate and safe conditions for the purpose of conducting a block party.

CITEE. Any person served with an administrative citation charging him or her as a responsible person for the violation.

CITATION. An administrative citation issued pursuant to this section to remedy a violation. CODE. The City of Riverbank Municipal Code.

CODE ENFORCEMENT OFFICER (CEO). Any employee or agent or public safety officer of the City of Riverbank designated by the City Council to enforce any provision of this code.

DANGEROUS FIREWORKS. As defined under Cal. Health & Safety Code §§ 12505 and 12561 are:

• (1) Any fireworks which contain any of the following:

• (a) Arsenic sulfide, arsenates, or arsenites;

• (b) Boron; or

• (c) Chlorates, except:

1. In colored smoke mixture in which an equal or greater amount of sodium bicarbonate is included;

2. In caps and party poppers;

3. In those small items (such as ground spinners) wherein the total powder content does not exceed four

grams of which not greater than 15% (or 600 milligrams) is potassium, sodium, or barium chlorate;

4. Gallates or Gallic acid;

5. Magnesium (magnesium-aluminum alloys, called magnalium, are permitted);

6. Mercury salts;

7. Phosphorous (red or white except that red phosphorus is permissible in caps and party poppers);

8. Picrates or picric acid;

9. Thiocyanates;

10. Titanium, except in particle size greater than 100 mesh; or

11. Zirconium.

• (2) Firecrackers.

• (3) Skyrockets and rockets, including all devices which employ any combustible or explosive material and which rise in the air during discharge.

• (4) Roman candles, including all devices which discharge balls of fire into the air.

• (5) Chasers, including all devices which dart or travel about the surface of the ground during discharge.

• (6) Sparklers more than ten inches in length or one-fourth of one (0.25") inch in diameter.

• (7) All fireworks designed and intended by the manufacturer to create the element of surprise upon the user. These items include, but are not limited to, auto-foolers, cigarette loads, exploding golf balls, and trick matches.

(8) Fireworks known as devil-on-the-walk, or any other firework which explodes through means of friction, unless otherwise classified by the State Fire Marshal pursuant to this section.

• (9) Torpedoes of all kinds which explode on impact.

• (10) Fireworks kits.

(11) Such other fireworks examined and tested by the State Fire Marshal and determined by him or her, with the advice of the State Board of Fire Services, to possess characteristics of design or construction which make such fireworks unsafe for use by any person not specially qualified or trained in the use of fireworks.

EXEMPT FIREWORKS. As defined in Cal. Health & Safety Code § 12508 means any special item containing pyrotechnic compositions which the State Fire Marshal, with the advice of the State Fire Advisory Board, has investigated and determined to be limited to industrial, commercial, agricultural use, or religious ceremonies when authorized by a permit granted by the authority having jurisdiction.

ISSUANCE or ISSUED. Any of 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 Cal. Code of Civil Procedures Article III (commencing with § 415.10) of Chapter 4 of Title 5 of Part 2;

(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 residence, in the presence of a competent member of the household, and thereafter mailing by First Class Mail 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 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 to the responsible party in violation at the address of the property where the violation exists.

PERSON. 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.

RESPONSIBLE PERSON. A person who causes a code violation to occur or allows a violation to exist or continue, by his or her 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, or any person with an ownership interest or right of possession of the real property where unpermitted fireworks are possessed, sold, used, manufactured or discharged, including, but not limited to:

• (1) Any owner-occupant.

(2) Any lessee, subtenant, licensee, or other person having possessory control over a property, structure, or parcel of land.

(3) Any person that organizes, supervises, officiates, conducts, or controls the gathering or any other person accepting responsibility for such a gathering.

(4) Every owner, occupant, lessee, tenant, or holder of any possessory interest of a residence or other private property within the city is required to maintain, manage and supervise property and all persons thereon in a manner so as not to violate the provisions of this subchapter. A responsible party need not be present at the time dangerous fireworks are possessed, manufactured, sold, used, or discharged in order for the city to issue an administrative citation under this division.

(5) 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 subchapter. 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 section, in addition to any citation that may be issued to the offending minor.

(6) For purposes of this chapter, there may be more than one responsible person for a violation. SAFE AND SANE FIREWORKS. As defined in Cal. Health & Safety Code §§ 12529 and 12562 means any fireworks which do not come within the definition of "dangerous fireworks" or "exempt fireworks." VIOLATION or VIOLATES. Refers to any violation of any provision of this code.

(Ord. 2018-007, passed 12-11-18)

(A) This section authorizes the imposition of administrative fines on any person who violates any provision of this code in order to encourage and obtain compliance with the provisions of this code for the benefit and protection of the entire community.

(B) This section 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" as defined in Cal. Health & 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 Cal. Health & Safety Code §§ 12500 et seq. on or at dates, times and/or locations other than those permitted by this code. Said administrative fines are imposed under authority of Cal. Gov’t Code § 53069.4, Cal. Health & Safety Code § 12557, and the police power of the city.

(C) This section imposes a duty upon the owners of all real property to ensure that there are no violations of this code on such real property.

(Ord. 2018-007, passed 12-11-18)

(A) The issuance of citations imposing administrative fines may be performed at the discretion of the authorized officials of the city; 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 code, 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.

(B) Whenever a Code Enforcement Officer determines that a violation of the code has occurred, the officer may issue an administrative citation listing the code violation(s) and the amount of the administrative fine required to be paid by the responsible person(s) in accordance with the provisions of fines set forth.

(C) Each violation of this code, whether on the same day or different day, shall constitute a separate violation and shall be subject to a separate administrative fine.

(D) The citee shall be required to abate the violation, and immediately surrender all dangerous fireworks to the Code Enforcement Officer.

(E) The imposition of fines related to "dangerous firework" under this chapter shall be limited to persons who possess, sell, use and/or display, or the seizure of 25 pounds or less (gross weight), including packaging, of such dangerous fireworks.

(Ord. 2018-007, passed 12-11-18)

(A) 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 follows:

(B) A person who fails to obtain a “block party permit,” license or approval from the city when required by § 95.01(C) of the city code shall be subject to administrative fine or fines under this chapter as follows:

(C) Any person, firm, or corporation who applies for and receives an administratively issued “block party permit,” or similar license or approval required by the city to close a street or otherwise reserve or use a piece of city property, shall comply with all conditions imposed upon the issuance of such permit, license, or approval, including but not limited to taking all reasonable efforts necessary to ensure that “dangerous fireworks” are not used at said event. Any person, firm, or corporation said to be in violation of the permit by virtue of the fact that there were dangerous

fireworks used at said event, shall be subject to the imposition and payment of an administrative fine or fines as follows:

(D) Any person that fails to obtain a permit from the city to sell “safe or sane fireworks” as required under this chapter, or any person who uses or discharges any safe and sane fireworks on or at dates and times or at locations other than what is allowed, are in violation of this chapter and shall be subject to the following fine or fines:

(E) The administrative fine(s) for violations of any of the above provisions shall be due and payable to the City of Riverbank within 30 calendar days from the date of issuance of the administrative citation. Failure to pay the penalties in full within that time, shall have a late charge imposed in the amount as set forth above, and shall begin accruing interest at the prevailing established rate until fully paid. Late charges may be suspended if the city has agreed to a payment plan, however, will be reinstated upon failure to make a payment.

(1) Payment Plan. The citee may request to pay a fine through a payment plan. The Director of Finance or designee will have the discretion to determine if it is feasible to do so, and may request documentary evidence to make a determination if paying the fine in full would cause undue financial hardship. A payment plan will include a payment processing fee to cover costs for this special service. The processing fee will be set by resolution, and is subject to change from time to time by the City Council.

(F) Recovery of administrative penalties. The city may collect the assessed administrative fine(s) and related administrative costs incurred such as attorney fees, costs to collect fine(s), late fees, and interest, in any manner allowed by law, including but not limited to recordation of a lien on any real property owned by the responsible person.

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

(H) On the second and each subsequent time that a person is issued a citation for the same violation in any 12month period, the fine is increased as indicated above and the citee shall be liable for the amount of the new fine, and any incurred associated late charges and interest, until it is paid, in addition to being responsible for payment of previous fines.

(I) Nothing in this section shall be intended to limit any of the penalties provided for under the Cal. Health & Safety Code or Cal. Penal Code.

(J) Fines collected pursuant to this administrative fine process for dangerous fireworks violations:

(1) Shall not be subject to Cal. Health & Safety Code § 12706, which provides that certain fines collected by a court of the state be deposited with, and disbursed by, the County Treasurer;

(2) Shall include 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; and

(3) Unless and until said regulations have been adopted by the State of California, the city shall hold in trust $250 or 25% 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.

(Ord. 2018-007, passed 12-11-18; Am. Ord. 2020-005, passed 4-14-20)

(A) Requesting an appeal hearing.

(1) Any citee may contest the violation(s) and the issued administrative citation by filing an appeal hearing request form with the City Clerk within 30 days of the date of the citation. A filing fee, if established by City Council resolution, shall be charged.

(2) Deposit. The citee must pay a deposit equal to half of the full amount of the fine indicated on the citation on or before the request for a hearing is filed; failure to deposit half of the amount of all fines appealed within the 30-day filing period, shall constitute the request for an appeal hearing incomplete and untimely and therefore not accepted.

(3) Failure to timely file an appeal hearing request form with the City Clerk, along with the filing fee, if required, and deposit shall constitute a waiver of the right to any appeal hearing, and the citation shall be deemed confirmed and final.

(4) Hardship waiver. If within the 30-day filing period, the appealing party establishes to the satisfaction of the Director of Finance or designee, by means of tax returns, pay stubs or other similar documentary evidence, and submits a declaration under penalty of perjury that paying the filing fee and/or deposit amount would cause undue financial hardship to the appealing party, the Director of Finance or designee may grant a waiver of the filing fee, and/or waiver or reduction of the deposit amount required. The Director of Finance's determination is not appealable and shall be final as to the hardship waiver request.

(B) Hearing body. The appeal shall be heard by an Appeals Board. The Planning Commission, in accordance with § 32.35(F) of this Code of Ordinances, shall act as the Appeals Board. Members of the Appeals Board shall not have had any responsibility for the investigation, prosecution or enforcement of nuisances under this chapter and shall not have any personal involvement with the appellant or with the appeal to be heard.

(C) Setting the appeal hearing.

(1) The Appeals Board hearing shall be set in accordance with the regularly scheduled Planning Commission meeting, but shall be opened as a separate and distinct body.

(2) At least ten calendar days prior to the hearing, the City Clerk will notify all persons in writing indicating the date, time, and place to appear for their scheduled appeal hearing, and include a notice to their right to appeal to the City Council and the number of days to do so. First Class Mail or e-mail service of this notice is deemed complete at the time sent.

(3) The failure of an appellant to receive a properly addressed notice shall not invalidate the citation or any hearing, city action or proceeding, which is conducted pursuant to this chapter.

(4) The City Clerk shall notify the Code Enforcement staff of the filed appeal request; who shall then submit copies of any documentation to the City Clerk of the administrative citation(s), fines, and reasons for issuance.

(5) The hearing will be conducted within 60 days of the date that a timely and complete appeal request is received by the City Clerk. However, this time may be extended due to the constraints posed by the Planning Commission’s meeting schedule.

(D) Appeal hearing procedures. The Appeals Board shall hear all requests for administrative appeal hearings in accordance with the procedures established herein.

(1) Testimony at the hearing. At the time set for the appeal hearing, the Appeals Board shall proceed to hear testimony from the city’s representative, the appellant, and any other competent persons or witnesses.

(2) Oath of sworn testimony. The Appeals Board shall consider sworn testimony. The Chairperson or Clerk of the Board shall administer the oath or affirmation to anyone testifying or providing any evidence for the Board to consider.

(3) Evidence rules. Cal. Gov't Code § 11513(a), (b), and (c) shall apply to all administrative hearings. At the sole discretion of the Appeals Board Chair, other relevant evidence may be admissible and hearsay evidence may be used for the purpose of supplementing and explaining other evidence.

(4) Continuances. Hearings may be continued once for extreme or unusual cause at the request of city staff, the appellant, or upon the Appeals Board’s own motion.

(5) Record of oral evidence at hearing. The proceedings at the hearing shall be recorded by video and audio or by audio recording. Either party may provide a certified shorthand reporter to maintain a record of the proceedings at the requesting party's own expense.

(6) Burden of proof. The accuracy of the notice and order containing the description of the violations and/or public nuisance and the actions required to abate such nuisance or violation is deemed a rebuttable presumption and the burden is on the appellant to provide such facts and information to overcome such presumption by a preponderance of the evidence.

(E) Rights of parties.

(1) Each party shall have the following rights among others: To call and examine witnesses on any matter relevant to the issues of the hearing; to introduce documentary and physical evidence; to cross-examine opposing witnesses on any matter relevant to the issues of the hearing; to impeach any witness regardless of which party first called that witness to testify; to rebut the evidence against him or her; to represent himself or herself or to be represented by anyone of his or her choice.

(2) Use of interpreter. If a party does not proficiently speak or understand the English language, that party may provide an interpreter, at that party's own cost, to translate for the party. An interpreter shall be:

• (a) At least 18 years of age;

• (b) Shall not have been a resident of the premises at issue;

• (c) Shall not have had any personal relationship with or involvement in the party’s case prior to the hearing; and

• (d) Shall have the ability to translate the Oath of Sworn Testimony.

(F) Official notice. In reaching a decision, the Appeals Board may take official notice, either before or after submission of the case for decision, of any fact which may be judicially noticed by the courts of this state or which may appear in any of the official records of the city or county or any of their departments.

(G) Hearing decision.

(1) After consideration of all testimony and evidence submitted at the hearing, the Appeals Board shall issue a decision to uphold or reverse the notice of violation and citation imposed by the city, and shall state the reasons therefore. The Appeals Board may not reduce, waive or conditionally reduce the fines established by the city.

(2) The City Clerk shall affirm in writing the Appeals Board’s decision and reasons, within seven business days to the appellant, and include the ability to exercise appeal rights before the City Council. Notice of the decision will also be provided to the Code Enforcement Division and the Finance Department. Failure of the appellant to receive a

properly addressed written decision shall not invalidate any hearing, action, or proceeding conducted pursuant to this chapter.

(3) Refund. If the decision of the administrative citation is reversed, a refund of the deposit shall be made by the city in accordance with the city’s customary refund and payment process.

(4) Payment of fine. If the decision of the administrative citation is upheld, full payment by the appellant is due by the 11th calendar day following the date of the Appeal’s Board decision. If a complete and timely appeal hearing request before the City Council has been filed with the City Clerk, the payment shall be suspended until a final decision by the Council has been made. Full payment is not required if a payment plan has been agreed upon with the city. Late charges may be suspended with an agreed upon payment plan, however, will be reinstated upon failure to make a payment.

(a) Payment plan. The appellant may request to pay a fine through a payment plan. The Director of Finance or designee will have the discretion to determine if it is feasible to do so, and may request documentary evidence to make a determination if paying the fine in full would cause undue financial hardship. A payment plan will include a payment processing fee to cover costs for this special service. The processing fee will be set by resolution, and is subject to change from time to time by the City Council.

• (H) Finality of appeal's decision.

(1) If an appellant is not satisfied with the action of the Appeals Board a request for an appeal hearing before the City Council may be made by filing an appeal request form, and a filing fee established by resolution, with the City Clerk within ten calendar days following the date of the Board’s decision.

(2) If the Appeals Board’s decision is not appealed in a timely manner as required, the decision shall be deemed confirmed and final. Full payment of the fine shall immediately be due, unless a payment plan with the city has been agreed upon.

(3) Setting the appeal hearing. The process to set an appeal hearing before the City Council will be processed as set for an appeal hearing under § 92.44(C).

(4) Appeal hearing procedures. The City Council shall hear all requests for administrative appeal hearings in accordance with the procedures established under § 92.44(D), (E), (F), and (G); except for the right to appeal the matter further. The term Appeal’s Board shall be replaced by the term City Council where applicable.

(5) The City Council of the City of Riverbank is the final reviewing authority and an appeal of the City Council’s final decision is not appealable to the Superior Court.

(Ord. 2018-007, passed 12-11-18; Am. Ord. 2020-005, passed 4-14-20)

SMOKING RESTRICTIONS

(A) Purpose. Every citizen has the right to choose for himself or herself whether to smoke tobacco or marijuana and it is not the intention of the city to interfere with such freedom of choice. Further, every citizen who chooses to not smoke has the right to be free from offensive tobacco or marijuana smoke and to be free from the health hazard of tobacco or marijuana smoke when employed by the city or conducting business with the city in specified areas. (’67 Code, § 4-8-1)

(B) Definition. SMOKE or SMOKING . As used in this section means the carrying, holding, possession or smoking of a lighted pipe, cigar, cigarette, joint or the lighting of a pipe, cigar, cigarette or joint. (’67 Code, § 4-8-2)

(C) Areas subject to nonsmoking regulations. Areas subject to nonsmoking regulation are:

• (1) All city offices and conference rooms.

• (2) Elevators which are generally used by and open to the public.

• (3) Council Chambers of the City Hall.

• (4) Public waiting rooms, hallways and lobbies except those which may be specifically designated as smoking

areas.

• (5) Riverbank Community Center, Riverbank Teen Center, and Riverbank Pool.

(’67 Code, § 4-8-3)

(D) Duty to post signs or notices. Appropriate “No Smoking” signs shall be conspicuously posted in each area of those city buildings where smoking is prohibited by this chapter. The city official in charge of the building in which areas have been closed to smoking shall ensure that signs are posted and remain posted advising city employees and the public of designated nonsmoking areas.

(’67 Code, § 4-8-4)

(E) Enforcement. The city official in charge of the building in which areas have been closed to smoking shall make a report to the City Council in the event voluntary compliance by members of the public becomes ineffective.

(’67 Code, § 4-8-5) (Ord. 91-04, passed 3-11-91; Am. Ord. 2017-004, passed 2-28-17; Am. Ord. 2018-007, passed 1211-18)

Statutory reference:

State smoking regulations generally, see Cal. Health & Safety Code §§ 118875 et seq.