San Jose Municipal Code Part 2 Sale, Use, Possession and Storage of Fireworks

A. Except where otherwise expressly provided in this Code, it shall be unlawful for any person to sell, use or discharge any fireworks.

B. Except where otherwise expressly provided in this Code or under a permit issued by the California State Fire Marshal, it shall be unlawful for any person to offer for sale or store any fireworks.

C. Except where otherwise expressly provided in this Code, any social host shall be strictly liable for any unlawful use, discharge, or display of fireworks at their property or gathering.

(Ords. 29719, 30569.)

A. "Fireworks Exhibition" means any unpermitted discharge or use of fireworks as defined in Section 10.17.010.

B. "Spectator" shall mean any person who is present at a Fireworks Exhibition for the purpose of viewing, observing, watching, or witnessing the event. A Spectator includes any person at the location of the event without regard to the means by which the person arrived.

C. A person is "present" at the Fireworks Exhibition if that person is within two hundred (200) feet of the location of the Fireworks Exhibition.

D. It shall be unlawful for any person to be knowingly present as a Spectator at a Fireworks Exhibition.

1. Nothing in this Section prohibits peace officers or their agents, or any other employee of the city designated by the city manager to enforce the provisions of this Code, who are acting in the course of their official duties from being Spectators at a Fireworks Exhibition.

E. Relevant Circumstances to Prove a Violation:

1. Notwithstanding any other provision of law, to prove a violation of this Section, admissible evidence may include, but is not limited to, any of the following:

a. That the person charged has previously participated in or been a Spectator at a Fireworks Exhibition;

b. That the person charged has previously aided and abetted the illegal sale, use, discharge, storage, or possession of illegal fireworks;

c. That the person charged has previously attended a Fireworks Exhibition; or

d. That the person charged was previously present at a location where a Fireworks Exhibition was in progress.

e. Evidence of these prior acts may be admissible, to the fullest extent permissible by law, to show the opportunity, intent, plan, knowledge, identity, or the absence of a mistake or accident, or propensity of the defendant to be present at or attend a Fireworks Exhibition if the prior act or acts occurred within three (3) years of the presently charged offense. These prior acts may always be admissible to show knowledge on the part of the defendant that a Fireworks Exhibition was taking place.

2. In addition to the circumstances set out in subsection A. above, and notwithstanding any other provision of law, to prove a violation of this Section, admissible evidence may also include, but is not limited to, any of the following:

a. The time of day;

b. The nature and description of the Scene;

c. The number of people at the Scene;

d. The location of the person charged in relation to any person or group of persons present at the Scene;

e. That the person charged drove or was transported to the Scene.

3. For purposes subsection 2., above, "Scene" refers to the location of Fireworks Exhibition.

(Ord. 30569.)

Nothing in this chapter shall limit any of the penalties provided in the California Health and Safety Code or the California Penal Code with regard to the offer for sale, exposing for sale, sale at retail, use or discharge of any fireworks.

(Ord. 29719.)

A. A person who has violated this chapter may be liable for response costs incurred in responding to the unpermitted use, discharge or storage of fireworks.

B. If a person who violated this chapter is a minor charge, the responsible guardian(s) of the minor charge and the minor charge shall be jointly and severally liable for the response costs incurred pursuant to this chapter.

C. To incur liability for response costs imposed by this chapter, a person who violates this chapter need not be present at the event that causes the response giving rise to the imposition of response costs.

D. Response costs imposed by this chapter are in addition to any other costs that may be recovered under this Code.

(Ord. 29719.)

A. The bill or charges shall be served by the Chief of Police and/or the Fire Chief upon the responsible party.

B. The total amount of the response charge shall be deemed to be a civil debt to the City and the Director of Finance may take such action to recover the costs as the City is authorized to do by law for the recovery of a civil debt. The bill of charges shall state the response charge.

C. The bill of charges and any other notices required by this Part shall be served upon the responsible party in accordance with Section 1.04.140 of this Code. If the responsible party has no last known business or residence address, then the scene of the disturbance shall be deemed to be the proper address for service of notice.

D. The bill of charges shall include a notice of the right of the person being charged to request a hearing before the Appeals Hearing Board within ten (10) days of service of the bill to dispute the imposition of a response charge or the amount of the charge.

(Ord. 30569.)

A. Any request for a hearing to dispute the imposition of a response charge or the amount of the charge must be in writing and received by the Secretary of the Appeals Hearing Board within ten (10) days of the date of service of the bill of charges.

B. The hearing shall be conducted in conformance with Part 29 of Chapter 2.08 of Title 2 and the rules and regulations of the Appeals Hearing Board.

C. The decision of the Appeals Hearing Board shall be final.

(Ord. 30569.)