Santa Clara County Municipal Code Art. 2 Fireworks

Footnotes:

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Editor's note— Ord. No. NS-300.734, § 1, adopted October 5, 2004, amended the Code by adding provisions designated as a new Art. 2, §§ A33-60—A33-64. See also the Code Comparative Table.

For purposes of this article, all words not herein defined shall have the same meanings ascribed to them as under the State Fireworks Law (Health and Safety Code Section 12500 et seq.) and regulations promulgated thereunder.

(Ord. No. NS-300.734, § 1, 10-5-04)

The sale, use, possession or discharge of any fireworks or pyrotechnic devices, including but not limited to "safe and sane" fireworks, anywhere within the unincorporated area of the County of Santa Clara is prohibited unless otherwise allowed by this article.

(Ord. No. NS-300.734, § 1, 10-5-04)

The Fire Marshal may issue a permit for the use or discharge of fireworks and pyrotechnic devices only where the persons in charge of the display have obtained a license from the State Fire Marshal for a public display or special effects. The application, investigation and decision process shall be as follows:

(a) Definitions. For the purposes of this chapter, the following definitions shall apply:

(1) Fireworks shall mean 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. The term "fireworks" 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. For the purposes of this chapter, "fireworks" includes both "dangerous fireworks" and "safe and sane fireworks" as defined by the California Health and Safety Code.

(2) Property shall mean private property, rented residential premises, or rented commercial residences; including, but not limited to, a home, yard, or field, whether occupied on a temporary or permanent basis, whether or not occupied as a dwelling and whether owned, leased, rented, or used with or without compensation.

(3) Response costs means those reasonable and necessary costs directly incurred by public safety personnel for a response to an unpermitted discharge or illegal storage of fireworks, and include the cost of providing law enforcement, firefighting, and/or other emergency services at the scene of the unpermitted discharge or illegal storage of fireworks including, but not limited to:

a. Salaries and benefits of public safety personnel for the amount of time spent responding to, remaining at, or otherwise dealing with the unpermitted discharge or illegal storage of fireworks, and the administrative costs attributable to the response(s); and

b. The cost of any medical treatment to or for any public safety personnel injured responding to, remaining at or leaving the scene of the unpermitted discharge or illegal storage of fireworks; and

c. The cost of repairing any public safety equipment or property damage, and the cost of the use of any such equipment, in responding to, remaining at, or leaving the scene of an unpermitted discharge or illegal storage of fireworks.

(4) Responsible party includes, but is not limited to:

a. The person(s) who owns, rents, leases, or otherwise has possession of the residence or other private property;

b. The person(s) in immediate control of the residence or other private property; and

c. The person(s) who organizes, supervises, sponsors, conducts, allows, controls, or controls access to the illegal discharge or illegal storage of fireworks.

If the residence or other private property is rented or leased, the landlord or lessor is not covered by this chapter unless they fall within the category of persons described under [category] b. or c., herein [above]. A landlord or lessor can only be held responsible under category c. if they have knowledge that fireworks (including a public display) are being discharged or illegally stored on the property without obtaining a permit therefor from the Fire Marshal.

(5) Residence or other private property means a home, yard, apartment, condominium, hotel or motel room, other dwelling unit, a hall or meeting room, or commercial property, whether occupied on a temporary or permanent basis, whether occupied as a dwelling, party or other social function, and whether owned, leased, rented, or used with or without compensation.

(b) Permit application. All permit applications shall include the following:

(1) The name of the person or organization sponsoring the proposed activities, together with the names and license numbers of persons actually in charge of the activity;

(2) A full description of all proposed activities;

(3) The date and time of day the proposed activities would occur;

(4) The exact location of the activities;

(5) The size and number of all fireworks to be involved in the proposed activities, including the number of set pieces, shells and other items. Shells shall be designated by diameter specifying single, multiple break or salute;

(6) The manner and place of storage of all fireworks;

(7) A diagram of the grounds on which the activities are proposed to occur showing all points at which fireworks are proposed to be stored or discharged, the location of all buildings, roads, and other means of transportation to and from the site, the lines behind which the audience will be restrained, and the location of all nearby trees, telegraph or telephone lines and other overhead obstructions;

(8) Proof that satisfactory workers' compensation insurance is carried for all employees in compliance with Labor Code Section 3700;

(9) Documentary proof of conformance with the insurance requirements of Health and Safety Code sections 12610 and 12611;

(10) A State Fire Marshal license for the public display of fireworks or special effects; and

(11) The name and license number of the wholesaler(s) supplying all items used in the display.

(c) Investigation. When evaluating whether a permit should be granted, the Fire Marshal shall evaluate the following:

(1) Whether the proposed activity will be of such character or so located that it may be hazardous to property or dangerous to any person.

(2) Whether the activity will comply with all requirements of the California Fire Code, and the State Fireworks Law (Health and Safety Code Section 12500 et seq.) and regulations promulgated thereunder.

(d) Grant or denial. The Fire Marshal shall exercise reasonable discretion to either grant or deny the permit, and may impose any conditions he or she deems necessary or appropriate to ensure there is no adverse impact to the public health, safety or general welfare.

(e) [Violation to discharge fireworks except as permitted by Fire Marshal.] It shall be a violation of this Code and a public nuisance pursuant to Section A1-33, et seq., for any person to cause, allow, permit, aid, or abet any discharge of fireworks (including a public display) without having first obtained a permit therefor from the County Fire Marshal, including a property owner who knows or should know of the violation.

(f) [Improper storage of fireworks—Violation.] It shall be a violation of this Code and a public nuisance pursuant to Section A1-33, et seq., for any person to store fireworks, including those classified as Safe and Sane by the California State Fire Marshal, except as expressly allowed by Section B7-15 of this Code.

(g) [Abatement.] As a public nuisance, an unpermitted discharge or illegal storage of fireworks may be summarily abated by law enforcement by all reasonable means, singularly or in combination, including, but not limited to:

(1) Issuance of an administrative citation or written notice that a violation of this chapter has occurred, as set forth in Section A33-62.5, subdivision (b);

(2) Issuance of a citation for recovery of response costs for repeated violations as set forth in Section A33-62.5, subdivision (e);

(3) Public nuisance abatement procedures as set forth in Section A1-33, et seq.; and

(4) Any other remedy provided by law.

(Ord. No. NS-300.882, § 1, 6-23-15)

(a) Any person who allows, permits, aids, or abets any discharge of fireworks (including a public display) without having first obtained a permit therefor from the Fire Marshal shall be in violation of this section, unless otherwise permitted by ordinance.

(b) Any person who stores fireworks, including those classified as Safe and Sane by the California State Fire Marshal, except as expressly allowed by Section B7-15 of this Code, shall be in violation of this section.

(c) Administrative citation. Upon identification of an unpermitted discharge or illegal storage of fireworks, law enforcement may issue an administrative citation or a notice of violation to all responsible person(s) present at the unpermitted discharge of fireworks. Law enforcement shall notify those responsible persons present at the unpermitted discharge or illegal storage that further violation of the ordinance may result in the issuance of increased fines and assessment of response costs.

The administrative fines shall be:

(1) Three hundred fifty dollars for the first administrative citation issued to the responsible person(s).

(2) Seven hundred dollars for the second administrative citation issued to the responsible person.

(3) One thousand dollars for the third and/or each subsequent administrative citation issued to the responsible person.

(d) Upon identification of an unpermitted discharge of fireworks, law enforcement may also issue a written notice to all other identifiable responsible persons not present at the unpermitted discharge of fireworks that a violation of the fireworks ordinance has occurred and that further violations may result in the assessment of response costs.

(e) Nothing in this chapter shall be intended to limit any of the penalties provided for under the California Health and Safety Code or Penal Code with regard to the sale, use, possession, delivery, storage, and/or transportation of dangerous fireworks.

(f) In addition to the penalties described above, any person described in Section A33-62(e), in addition to the penalties described in [this] Section A33-62.5, shall be guilty of a misdemeanor punishable by a fine of not more than $1,000.00, imprisonment in the county jail for a period not exceeding six months, or both, if the discharge of fireworks:

(1) Is a substantial factor in causing harm to persons or property; and

(2) Causes serious bodily injury to persons, defined as the serious impairment of physical condition, and may include but is not limited to loss of consciousness, concussion, bone fracture, protracted loss or impairment of function of any bodily member or organ, a wound requiring extensive suturing, and/or serious disfigurement; and/or

(3) Causes damage to real or physical property in excess of $1,000.00.

The penalties set forth herein are intended to be nonexclusive and are intended to be in addition to any other remedies provided in this chapter or any other law, statute, ordinance or regulation.

(g) Response costs. A responsible person(s) who has been issued a second administrative citation and/or written notice of violation of this ordinance may be liable for response costs incurred in responding to the unpermitted discharge or illegal storage of fireworks. All responsible persons shall be jointly and severally liable for the response costs incurred in the response and all subsequent responses.

If a responsible person is a juvenile, then the parents or guardians of that juvenile and the juvenile will be jointly and severally liable for the response costs incurred pursuant to this chapter. To incur liability for response costs imposed by this chapter, the responsible person for the unpermitted discharge or illegal storage of fireworks need not be present at the event that causes the response giving rise to the imposition of response costs. This chapter therefore imposes vicarious as well as direct liability upon a responsible person.

(h) Enforcement officer, defined.

(1) For purposes of this chapter, "enforcement officer" shall mean any County employee, agent of the County, or law enforcement officer with the authority to enforce any provision of this Code.

(2) Whenever an enforcement officer charged with the enforcement of any provision of this Code determines that a violation has occurred, the enforcement officer shall have the authority to issue an administrative citation to any person responsible for the violation.

(i) Payment of administrative fines.

(1) The administrative fines and/or response costs shall be paid to the County within 30 days from the date of service of the citation, unless the person charged in the citation requests a hearing as set forth in Section A33-62.5, subdivision (j), below.

(2) Payment of a fine and/or response costs under this chapter shall not excuse or discharge any continuation or repeated occurrence of the Code violation that is the subject of the administrative citation.

(j) Hearing request.

(1) Any recipient of an administrative citation may contest that there was a violation of the code or that he or she is the responsible person by writing to the County Executive, or his/her designee, at 70 W. Hedding Street, East Wing, San Jose, California 95110, within 30 days from the date of service of the citation. The contesting party shall identify the date and location of the alleged violation and indicate in the letter that he or she is requesting a hearing. The contesting party shall attach a copy of the citation to the letter requesting a hearing.

(2) The person requesting the hearing shall be notified of the time and place set for the hearing at least ten days before the date of the hearing.

(3) If the enforcement officer submits an additional written report concerning the administrative citation to the hearing officer for consideration at the hearing, then a copy of this report also shall be served on the person requesting the hearing at least five days before the date of the hearing.

(k) Hearing officer. The County Executive shall designate the hearing officer for the administrative citation hearing.

(l) Hearing procedure.

(1) A hearing before the hearing officer shall be set for a date that is not less than 15 days and not more than 60 days from the date that the request for hearing is filed in accordance with the provisions of this chapter.

(2) At the hearing, the party contesting the administrative citation shall be given the opportunity to testify and to present evidence concerning the administrative citation.

(3) The failure of any recipient of an administrative citation to appear at the administrative citation hearing shall constitute a failure to exhaust administrative remedies.

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

(5) The hearing officer may continue the hearing and request additional information from the enforcement officer or the recipient of the administrative citation before issuing a written decision.

(m) Hearing officer's decision.

(1) After considering all of the testimony and evidence submitted at the hearing, the hearing officer shall issue a written decision to uphold or cancel the administrative citation and shall list in the decision the reasons for that decision. The decision of the hearing officer shall be final.

(2) If the hearing officer determines that the administrative citation should be upheld, then the responsible person shall pay the fine amount within 30 days.

(3) The recipient of the administrative citation shall be served with a copy of the hearing officer's written decision.

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

(n) Late payment charges.

(1) Unless otherwise provided in this Code, any person who fails to timely pay, in full, any fine imposed pursuant to the provisions of this chapter, on or before the date that fine is due, shall also be liable for the payment of a late payment charge of ten percent of the amount of the delinquent fine.

(2) Any person who fails to timely pay, in full, any fine imposed pursuant to the provisions of this chapter, on or before 30 days after its due date shall also pay a second penalty of ten percent of the delinquent amount.

(o) Recovery of administrative fines and costs.

(1) The County may collect any past due administrative citation fine or late payment charge by use of all available legal means, including filing a civil lawsuit.

(2) Any person who fails to pay any obligation shall be liable in any action brought by the County for all costs incurred in securing payment of the delinquent amount, including, but not limited to, administrative costs, and attorneys' fees.

(3) Collection costs shall be in addition to any penalties, interest, and/or late charges imposed upon the delinquent obligation.

(4) Collection costs imposed under this provision shall be added to and become a part of the underlying obligation.

(p) Right to judicial review. Any person aggrieved by an administrative decision of a hearing officer on an administrative citation may obtain review of the administrative decision by filing a petition for review with the Superior Court in accordance with the timelines and provisions set forth in California Government Code Section 53069.4.

(q) Notices.

(1) The administrative citation required to be given by this chapter shall be served on the responsible person in the same manner as summons in a civil action in accordance with Article 3 (commencing with § 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure. All subsequent notices shall be served on the responsible person by personal delivery or by deposit in the United States mail, in a sealed envelope postage prepaid, addressed to such person to be notified at his last-known business or residence address as the same appears in the public records or other records pertaining to the matter to which such notice is directed. Service by mail shall be deemed to have been completed at the time of deposit in the post office.

(2) Failure to receive any notice specified in this chapter does not affect the validity of proceedings conducted hereunder.

(Ord. No. NS-300.882, § 2, 6-23-15)

A final decision of the Fire Marshal to grant or deny a permit may be appealed to the Board of Supervisors.

(Ord. No. NS-300.734, § 1, 10-5-04)

In addition to obtaining a permit from the Fire Marshal, any use or discharge of any fireworks and pyrotechnic devices shall comply with all other applicable federal, state and local laws and regulations. The issuance of a permit from the Fire Marshal pursuant to this Article shall not obviate the need for a permit for an entertainment event if such a permit is required pursuant to Chapter VI, Division B3 of this Code.

(Ord. No. NS-300.734, § 1, 10-5-04)